Nevada Reports 1992 (108 Nev.) PDF

108 Nev.
1, 1 (1992)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 108
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108 Nev. 1, 1 (1992) Dickson v. State
KEVIN DICKSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20972
January 2, 1992 822 P.2d 1122
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
possession of a controlled substance. Third Judicial District Court, Lyon County; Mario G.
Recanzone, Judge.
Defendant was convicted in the district court of possession of controlled substance.
Defendant appealed. The supreme court held that it was error to allow jury to see defendant in
chains and error was harmful.
Reversed.
Mowbray, C. J., dissented.
Hager & Mausert and Gordon E. Logan, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Keith Loomis, District Attorney
and Robert Estes, Deputy District Attorney, Lyon County, for Respondent.
1. Criminal Law.
It was error to allow jury to see defendant in chains and error was harmful; while not all jurors saw defendant in chains, incident
was discussed at length in front of all jurors in voir dire, at least one juror indicated it would be hard to weigh evidence fairly
because of that incident, other jurors indicated they felt sympathy for defendant because of seeing him in chains, and evidence against
defendant was extremely close.
2. Criminal Law.
When error in trial infringes on defendant's constitutional rights, error may be deemed harmless only if appellate tribunal is able to
declare belief that it was harmless beyond a reasonable doubt.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
possession of a controlled substance. NRS 453.336. The district court sentenced appellant to
eighteen months in the Nevada State Prison.
On April 26, 1989, Deputy Sheriff Jeroen Wynands went to a trailer with two other
deputies for the purpose of arresting appellant on an outstanding warrant. Officer Wynands
knocked on the door of the trailer, and appellant opened the door. Appellant gave a false
name to the deputies and falsely stated that the man they were looking for was not at the
trailer. Appellant consented to a search of the trailer. The deputies located a woman inside the
trailer who correctly identified appellant as Kevin. Appellant initially denied having any
identification, but when Officer Wynands noticed a wallet in appellant's pants, appellant
admitted that he was Kevin Dickson. Officer Wynands placed appellant under arrest, and
proceeded with a pat down search. As a result of that search, Officer Wynands found a
small plastic tube (a plastic pen barrel) in appellant's pocket. Based on his training, Officer
Wynands believed that the plastic tube was of the type typically used to inhale controlled
substances into the nose. Appellant did not exhibit any symptoms of being under the
influence of methamphetamine.
The owner of the trailer was John Montagano. In March of 1989, John's son Jeff had been
arrested on a drug charge at the very trailer where appellant was found. Jeff lived in the trailer
for about eight months in 1988 and 1989. Jeff had drug paraphernalia at the trailer which
included five or six pen barrels that Jeff had broken or cut in half to use for ingesting
methamphetamine. Jeff identified the plastic tube as a pen barrel that he had modified for the
ingestion of methamphetamine.
Richard A. Smith, a criminalist for the Washoe County Sheriff's Department, washed the
plastic tube with a dilute solution of sulfuric acid. An infrared test on the solution indicated
the presence of less than one one-hundredth of a gram of methamphetamine.
Appellant testified that on the day he was arrested he had been cleaning the trailer and had
picked up the pen barrel along with some loose change and screws so they would not be
sucked up in the vacuum cleaner.
As appellant was transported to the courthouse, at least one of the prospective jurors saw
him in chains. This fact was brought out during the district court's examination of the
prospective jurors, and was discussed in front of all of the prospective jurors. The prospective
jurors were admonished not to allow the incident to affect them. Counsel for appellant made
further inquiry of the jury regarding this incident and two jurors indicated that they felt sorry
for appellant because he had been brought to court in chains. One juror indicated that it would
be hard to weigh the evidence fairly because of this incident. Both sides passed the jury for
cause. Because the jurors answering questions are not identified in the transcript, it is not
possible to determine from the record whether any juror who saw appellant in chains was
excused as a result of a peremptory challenge. Appellant's motion for a mistrial was denied.
[Headnote 1]
Appellant contends, and the state concedes, that it was error to allow the jury to see
appellant in chains. We agree. A criminal defendant clearly has the right . . . to appear before
his jurors clad in the apparel of an innocent person. Grooms v. State, 96 Nev. 142, 144, 605
P.2d 1145, 1146 (1980) (citations omitted); see, generally, Illinois v. Allen, 397 U.S. 337
(1970) (the sight of shackles might have a significant effect on the jury's feelings about the
defendant, and requiring a defendant to appear in shackles could have an impact on the
defendant's Sixth Amendment rights).
[Headnote 2]
The state argues, however, that the error was harmless. When an error in a trial infringes
on a defendant's constitutional rights, the error may be deemed harmless only if the appellate
tribunal is able to declare a belief that it was harmless beyond a reasonable doubt. Chapman
v. California, 386 U.S. 18, 24 (1967).
Based on our review of the record on appeal, we cannot conclude that the error in this case
was harmless beyond a reasonable doubt. While the dissent cites cases from other
jurisdictions, we are bound to follow the law in Nevada. In Grooms, which governs this type
of case, this court was willing to conclude that the error was harmless based on a review
of the entire record.
which governs this type of case, this court was willing to conclude that the error was harmless
based on a review of the entire record. In the instant case, however, the error is more
egregious, and the case against appellant closer, than in Grooms.
First, all of the jurors were informed that appellant was seen by at least one juror in chains.
While not all of the jurors actually saw appellant in chains, the incident was discussed at
length in front of all the jurors in voir dire. As noted above, at least one juror indicated that it
would be hard to weigh the evidence fairly because of this incident. Other jurors indicated
that they felt sympathy for appellant because of seeing him in chains. Accordingly, we cannot
say that seeing appellant in chains had no effect on the jury.
Further, we note that the evidence against appellant was extremely close. The amount of
methamphetamine found in the pen barrel was minuscule. At oral argument, the state
conceded that it would have been impossible for anyone without scientific equipment to have
known that there was methamphetamine inside the pen barrel. The pen barrel was admittedly
the property of Montagano, a known drug user. Under these circumstances, we cannot
conclude that the error was harmless beyond a reasonable doubt. Accordingly, we reverse the
judgment of conviction.
1

Mowbray, C. J., dissenting:
Respectfully, I dissent.
Appellant Kevin Dickson was lawfully arrested at a house trailer on an outstanding
warrant. A pat down search revealed a small plastic tube containing a white powdery
residue. Laboratory analysis later identified the residue as methamphetamine.
In Watson v. State, 88 Nev. 196, 198, 495 P.2d 365, 366 (1972), this court concluded that
minute quantities of a narcotic could not support the intent element of the crime of possession
of a controlled substance. See also Beutler v. State, 88 Nev. 707, 709, 504 P.2d 699, 700
(1972). However, Watson was tried before the 1971 amendment to NRS ch. 453. Watson at
198 N.2, 495 P.2d at 366 n.2.
1
The current provisions of NRS 453.570 provide as follows:
Amount of controlled substance needed to sustain conviction for prohibited offense.
The amount of a controlled substance needed to sustain a conviction of a person for
an offense prohibited by the provisions of NRS 453.011 to 453.552, inclusive, is that
amount necessary for identification as a controlled substance by a witness qualified
to make such identification.
__________

1
In light of our disposition of this appeal, we decline to consider appellant's contention that there was
insufficient evidence to sustain the jury's verdict.

1
The case of Beutler v. State, 88 Nev. 707, 505 P.2d 699 (1972), followed the holding of Watson v. State,
88 Nev. 196, 495 P.2d 365 (1972); however, Beutler's conviction also preceded the 1971 amendment to NRS ch.
453.
substance needed to sustain a conviction of a person for an offense prohibited by the
provisions of NRS 453.011 to 453.552, inclusive, is that amount necessary for
identification as a controlled substance by a witness qualified to make such
identification.
In Sheriff v. Benson, 89 Nev. 160, 509 P.2d 554 (1973), this court interpreted NRS
453.570 in light of Watson and reasoned that [t]he quantity of controlled substance to
support the intent necessary to establish the crime of possession is vital only in the absence of
other evidence of intent. Id. at 163, 509 P.2d at 556. The Benson court then concluded:
When there is present in the record other evidence of intent to commit an offense
prohibited by NRS ch. 453, then all that is needed to sustain a conviction is that amount
of controlled substance necessary for identification. Where there is a total absence of
other evidence to establish the intent to commit an offense prohibited by NRS ch. 453
then the rule announced in Watson is controlling.
Id.
I conclude that the standard articulated in Benson is the standard that should be followed
in this case. I likewise believe that if Benson is followed, Dickson's conviction should be
affirmed by this court.
At trial, Dickson asserted that he did not intend to possess the methamphetamine. He
testified that he had picked up a small tubedescribed as a pen barrelwhile he was
vacuuming the floor, and that he had placed it in his pocket without knowledge of its
contents.
However, Dickson's friend testified on rebuttal that he had seen Dickson involved with
methamphetamine in Dickson's home. Further, Dickson admitted that he had seen the friend
use a pen barrel to ingest methamphetamine. Therefore, it was reasonable for the jury to
conclude that Dickson knew that the white powdery substance in the pen barrel was
methamphetamine.
Based on the above evidence, I strongly disagree with the majority's conclusion to reverse
this case simply because a prospective juror saw Dickson in chains outside the courtroom.
The incident occurred as Dickson was being brought into the courthouse, prior to trial. When
a juror later brought this to the attention of the court, the District Judge adequately
admonished the jury.
2
Dickson's counsel had an opportunity to question the jurors on voir
dire.
__________

2
The judge explained: Many times a defendant will be arrested and not able to make bail, and that's a fact
of finances. And if he can't make bail he's in jail, [sic] that has nothing to do with his guilt or innocence. At the
conclusion of the trial, the trial judge further admonished:
jurors on voir dire. Two jurors expressed sympathy for Dickson. One juror stated: I feel bad
for him if he's not guilty which he's already presumed not to be. . . . There was no evidence
indicating any prejudice against Dickson resulting from the incident. Consequently, I see no
reason to depart from this court's holding in Grooms v. State, 96 Nev. 142, 144-145, 605 P.2d
1145, 1147 (1980), wherein we concluded that any prejudice that resulted from the viewing
was cured by the scrupulous conduct of the district judge in ensuring that jurors were not
influenced by the error.
I firmly support the view that [i]t is a far-fetched conjecture that jurors under oath would
spontaneously harbor prejudice immediately upon seeing a defendant brought to court in
manacles. State v. Hashimoto, 377, P.2d 728, 734 (Haw. 1962). Furthermore, I believe my
honorable colleagues should adhere to the following counsel provided by the Washington
Supreme Court:
In addition, we must indulge some presumptions in favor of the integrity of the jury. It
is a branch of the judiciary, and if we assume that jurors are so quickly forgetful of the
duties of citizenship as to stand continually ready to violate their oath on the slightest
provocation, we must inevitably conclude that a trial by jury is a farce and our
government a failure.
State v. Grisby, 647 P.2d 6, 15 (1982), cert. denied, 459 U.S. 1211 (1983) (quoting State v.
Pepoon, 114 P. 449, 453 (Wash. 1911)).
An inadvertent incident where a juror sees a defendant outside a courtroom in handcuffs or
chains cannot be anything more than harmless error, absent a showing of prejudice. See
Hamrick v. People, 624 P.2d 1320, 1323 (Colo. 1981); State v. Pendergrass, 615 P.2d 201,
205 (Mont. 1980); Snyder v. State, 738 P.2d 548, 550 (Okla. 1987). As heretofore noted, the
jurors expressed sympathy for Dickson and the record does not provide any evidence of
prejudice. Furthermore, I cannot agree with my distinguished colleagues that the case against
Dickson was extremely close. Upon hearing the testimony of Dickson and other witnesses,
the jury returned a guilty verdict. The evidence is sufficient to support the jury's conclusion
that Dickson intentionally possessed methamphetamine.
__________
As jurors it is your exclusive duty to decide all questions of fact submitted to you for the purpose of
determining the effect and value of the evidence. In performing this duty, you must not be influenced by
pity for the defendant or by passion or prejudice against him. You must not be biased against the
defendant because he has been arrested for this offense or because he has been brought to trial.
tionally possessed methamphetamine. Therefore, I would conclude that the error by the State
was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967);
see also Hendee v. State, 92 Nev. 669, 670, 557 P.2d 275, 276 (1976); NRS 177.255.
Accordingly, I reject the majority's conclusion to the contrary.
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108 Nev. 7, 7 (1992) Nardozzi v. Clark Co. School Dist.
LINDA J. NARDOZZI, Appellant, v. CLARK COUNTY SCHOOL DISTRICT, a Political
Subdivision of the State of Nevada, Clark County, Respondent
No. 21727
January 2, 1992 823 P.2d 285
Appeal from a district court order granting summary judgment in favor of respondent in a
personal injury action. Eighth Judicial District Court, Clark County; John S. McGroarty,
Judge.
Plaintiff who slipped and fell at entrance of elementary school brought personal injury
action against school district, alleging that it negligently failed to take safety precautions by
keeping floor dry on a rainy day. The district court granted district's motion for summary
judgment, and plaintiff appealed. The supreme court, Rose, J., held that: (1) fact that plaintiff
filed notice of appeal before district court entered order denying rehearing did not render
appeal void; (2) school district which lacked actual knowledge of hazardous condition was
entitled to immunity; (3) express knowledge exception to immunity statute does not extend to
situations in which governmental entity had only implied knowledge of hazardous condition;
and (4) county employee's knowledge of hazardous condition could not be imputed to school
district.
Affirmed.
[Rehearing denied February 11, 1992]
Jimmerson, Davis & Santoro, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy, Jemison & List and Greg W. Marsh and Daniel F.
Polsenberg, Las Vegas; Donald H. Haight, General Counsel, Clark County School District,
Las Vegas; Edwards, Hunt, Hale & Hansen and Trevor Atkin, Las Vegas, for Respondent.
1. Appeal and Error.
Filing notice of appeal before district court entered order denying rehearing did not render appeal void, on theory that motion for
rehearing is functional equivalent of motion to alter or amend judgment, and thus falls within NRCP providing that appeal is void
when notice is filed before formal disposition of timely postjudgment motion. NRCP 50(b), 52(b), 56(e), 59(e).
2. Municipal Corporations.
Immunity statute will not bar actions against a public entity based upon that entity's failure to act reasonably when it has express
knowledge of a hazard. NRS 41.033.
3. Schools.
Under statute, school district was immune from slip and fall claim, where district had no knowledge of alleged hazardous
condition caused by wet floor, notwithstanding contention that district had implied knowledge of the condition because any inspection
of premises would have led to immediate discovery of condition; express knowledge exception of immunity statute does not extend to
situations in which there is only implied knowledge of the condition. NRS 41.033.
4. Schools.
County employee's knowledge of hazardous condition caused by water on floor of entryway of elementary school could not be
imputed to school district for purposes of immunity statute, as district and county were separate entities with different governing
boards. NRS 41.033.
OPINION
By the Court, Rose, J.:
[Headnote 1]
Appellant Linda Nardozzi (Nardozzi) slipped and fell at the entrance of Tomiyasu
Elementary School, the property of respondent Clark County School District (CCSD). As a
result of the fall, Nardozzi broke her ankle in several places. She filed suit against CCSD,
alleging that it negligently failed to take safety precautions by keeping the floor dry on a rainy
day. CCSD denied any knowledge of the alleged hazardous condition and claimed total
immunity under NRS 41.033. The district court granted CCSD's motion for summary
judgment. Nardozzi argues that the court erred because there are disputed issues of material
fact and because implied knowledge is sufficient to circumvent the governmental immunity
established in NRS 41.033.
1
See NRCP 56(e).
__________

1
CCSD argues that this court does not have jurisdiction to consider this appeal because Nardozzi filed notice
of appeal before the district court entered its order denying rehearing. According to CCSD, a motion for
rehearing is the functional equivalent to a motion under NRCP 59, which provides that an appeal is void when
notice is filed before the formal disposition of any timely post-judgment motion filed under Rule 50(b), Rule
[Headnotes 2, 3]
Based on her contention that implied notice is sufficient to circumvent the governmental
immunity established by NRS 41.033, Nardozzi argues that material facts remain in dispute
as to whether CCSD had implied notice of the hazardous condition. NRS 41.033 provides:
Conditions and limitations on actions: Failure to inspect or discover. No action may
be brought under NRS 41.031 or against an officer or employee of the state or any of its
agencies or political subdivisions which is based upon:
1. Failure to inspect any building, structure or vehicle, or to inspect the construction
of any street, public highway or other public work to determine any hazards,
deficiencies or other matters, whether or not there is a duty to inspect; or
2. Failure to discover such hazard, deficiency or other matter, whether or not an
inspection is made.
This court has held that immunity will not bar actions based upon a public entity's failure to
act reasonably when the entity has express knowledge of a hazard. Lotter v. Clark Co. Bd. of
Commissioners, 106 Nev. 366, 368, 793 P.2d 1320, 1322 (1990) (where county inspectors
had knowledge of house's framing defects and approved framing despite those defects, NRS
41.033 providing immunity to county from liability to purchaser for negligent inspection or
failure to inspect did not apply). Nardozzi argues that the Lotter holding applies to implied
knowledge of the defect, because Mr. Lotter's complaint alleged that any inspection of the
premises would have led to the immediate discovery of the defects. Lotter is distinguishable
from the case at bar, however, because the basis of our decision was that there were sufficient
facts presented to show that the inspection was actually made, and in so doing, it would have
been impossible to have avoided actual knowledge of the defects. See also Crucil v. Carson
City, 95 Nev. 583, 585, 600 P.2d 216, 217 (1979) (where automobile accident victims alleged
that city had actual knowledge of downed condition of stop sign, complaint satisfied
requirements of NRCP 8). In Crucil, the complaint alleged that the city had either actual
and/or constructive knowledge of the hazardous condition. The court found that although
NRS 41.033 grants immunity when the State has failed to inspect or discover a hazard, the
statute does not apply in cases where the complaint alleges actual knowledge of the hazard.
__________
52(b) or Rule 59. A motion for rehearing cannot reasonably be construed as a motion to alter or amend the
judgment pursuant to Rule 59(e). Alvis v. State, Gaming Control Bd., 99 Nev. 184, 186 n.1, 660 P.2d 980, 981
n.1 (1983). We therefore conclude that CCSD's argument lacks merit.
alleges actual knowledge of the hazard. Despite Nardozzi's interpretations of the relevant
cases, the express knowledge exception to NRS 41.033 has not been extended to include
situations in which the government had only implied knowledge of the conditions. Therefore,
we conclude that Nardozzi's argument lacks merit.
[Headnote 4]
Nardozzi further argues that even if CCSD is immune from liability for implied
knowledge, CCSD had actual notice of the hazardous condition. She asserts that a Clark
County employee acknowledged that he had seen water on the floor of the entryway shortly
before Nardozzi fell. That individual, however, was employed by the Clark County Parks and
Recreation Program, not CCSD, and there is no evidence that he informed a CCSD employee
of the hazardous condition. The school district and the county are separate entities with
different governing boards. See Walsh v. Clark County School District, 82 Nev. 414, 419
P.2d 774 (1966). Therefore the knowledge of the Clark County employee cannot be imputed
to CCSD. We hereby affirm the decision of the district court.
Springer, Steffen and Young, JJ., concur.
One purpose of NRS 41.031, Nevada's waiver of immunity statute, is to compensate
victims of governmental negligence in circumstances like those in which victims of private
negligence would be compensated. Harrigan v. City of Reno, 86 Nev. 678, 475 P.2d 94
(1970). Another purpose, often overlooked though equally important, is to encourage officers
and employees of the state, state agencies and political subdivisions of the state to perform
their duties using reasonable care. The majority today defeats both of these public policies.
Not only does the majority deny appellant the opportunity to obtain compensation from the
state for injuries that may well have resulted from governmental negligence, but in doing so,
the majority unwittingly promotes willful blindness as a means by which the state can
avoid tort liability. Officers and employees will now be encouraged to close their eyes to
hazardous conditions they confront while performing their duties.
Appellant has alleged that respondent school district had actual knowledge of the
hazardous pool of water inside the school building. Construing the pleadings and
documentary evidence in favor of appellant, I perceive a genuine issue of material fact
concerning the school district's knowledge of the pool of water.
concerning the school district's knowledge of the pool of water. See Wiltsie v. Baby Grand
Corp., 105 Nev. 291, 774 P.2d 432 (1989). Moreover, a summary judgment motion should
not be granted if there is any possibility that the factual aspects of the case will look different
at trial from the evidence tendered in support of and against the motion. See Adickes v. S.H.
Kress & Co., 398 U.S. 144 (1970). Here, discovery and other pretrial procedures may well
disclose additional evidence sufficient to persuade a trier of fact of the truth of appellant's
allegation. Summary judgment was thus improper.
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108 Nev. 11, 11 (1992) Southwest Gas v. Woods
SOUTHWEST GAS CORPORATION, Appellant, v. BRUCE WOODS; AND THE
APPEALS OFFICE OF THE HEARINGS DIVISION OF THE DEPARTMENT OF
ADMINISTRATION, Respondents.
No. 21889
January 2, 1992 823 P.2d 288
Appeal from a district court order affirming an appeals officer's decision regarding a
contested industrial claim against Southwest Gas, a self-insured employer. First Judicial
District Court, Carson City; Michael R. Griffin, Judge.
Appeals officer modified claimant's permanent partial disability award under Industrial
Insurance Act, and employer sought judicial review. The district court affirmed, and employer
again appealed. The supreme court held that: (1) Industrial Insurance Act, prior to amendment
effective July 5, 1991, did not specifically provide claimants with authority to select rating
physician, but also did not specifically prohibit them from doing so, and (2) appeals officer
did not abuse his discretionary authority under the Act in choosing to accept substantive
testimony from a certified rating physician selected by the claimant.
Affirmed.
Jerry Collier Lane, Las Vegas, for Appellant.
Raymond Badger, Carson City, for Respondents.
1. Workers' Compensation.
Appeals officer renders final administrative decision on all questions of fact under the Industrial Insurance Act, including proper
percentage of permanent partial disability. NRS 616.010 et seq.
Industrial Insurance Act, prior to amendment effective July 5, 1991, did not specifically provide claimants with authority to select
rating physician, but also did not specifically prohibit them from doing so. NRS 616.010 et seq., 616.5426, subd. 3.
Appeals officer, acting prior to effective date of amendment to Nevada Industrial Insurance Act, did not abuse his discretionary
authority under the Act in choosing to accept substantive testimony from a certified rating physician selected by the claimant. NRS
616.010 et seq., 616.5426, subd. 3.
OPINION
Per Curiam:
The sole issue on appeal is whether an appeals officer, acting prior to July 5, 1991, abused
his discretionary authority, as provided in NRS 616.5426(3) of the Nevada Industrial
Insurance Act, in choosing to accept substantive testimony from a certified rating physician
selected by a claimant.
1
We conclude that he did not.
THE FACTS
On January 31, 1989, Bruce Lee Woods (Woods) injured his lower back on the job
while he was employed by Southwest Gas Corporation (Southwest Gas). Following the
incident, Southwest Gas referred Woods to David Toeller, D.O., a certified rating physician
(rating physician),
2
to obtain a permanent partial disability (PPD) evaluation, pursuant
to NRS 616.605(2).
3
Based on Dr. Toeller's recommendation, Southwest Gas offered Woods
a three percent PPD award.
Woods subsequently sought a opinion from John M. Knutson, M.D., another rating
physician. Dr. Knutson determined that Woods' injuries were more severe and that his PPD
award should be fourteen percent.
__________

1
The Nevada Legislature recently amended the Nevada Industrial Insurance Act to allow for claimants to
choose their own rating physician to rebut the PPD award provided by the insurer's rating physician, See S.B. 7,
65th Sess., 37, Journal of the Senate
------
(July 5, 1991).

2
Rating physician refers to physicians certified by the Administrator of the Department of Industrial
Insurance Relations Act to evaluate injuries and offer opinions regarding the allowable percentage of PPD,
pursuant to NRS 616.605(2).

3
NRS 616.605(2) provides in pertinent part as follows:
The insurer shall select a physician from a group of rating physicians designated by the administrator,
to determine the percentage of disability in accordance with the American Medical Association's Guides
to the Evaluation of Permanent Impairment in the form most recently published and supplemented before
January 1, 1985.
Woods' injuries were more severe and that his PPD award should be fourteen percent. Shortly
thereafter, Woods sought administrative review of a hearing officer, pursuant to NRS
616.5414.
4
The hearing officer determined that Dr. Knutson's evaluation was not legally
probative. Consequently, Dr. Knutson's recommendation was not considered and the hearing
officer affirmed the three percent PPD award. Woods then made one final administrative
appeal, as provided under NRS 616.5422(1).
5

Prior to his hearing before the appeals officer, Woods obtained a third evaluation from
another rating physician, James B. Golden, M.D., who recommended an eighteen percent
PPD award. The appeals officer admitted the evidence of all three rating physicians.
6
Dr.
Golden was the only physician to testify before the appeals officer. Dr. Golden testified, inter
alia, that Woods' spine had a deranged disc at L5-S1, which was worth seven percent PPD.
Dr. Golden's testimony was uncontroverted.
The appeals officer subsequently determined that Woods' PPD award should be modified,
because Dr. Golden persuasively established that Dr. Toeller did not recognize that
[Woods'] symptoms and signs were consistent with the distribution of the S1 nerve.
Consequently, the appeals officer added the additional seven percent PPD identified by Dr.
Golden to Woods' previous three percent award for a total PPD award of ten percent. Dr.
Toeller's evaluation was upheld in all other respects.
Southwest Gas sought judicial review from the district court on the grounds that the
appeals officer's decision was improperly influenced by Dr. Golden's testimony. On
December 29, 1990, the district court entered an order affirming the appeals officer's
decision. In so doing, the district court found that an Appeals Officer can properly rely upon
the opinion of a certified rating physician selected by a claimant in determining the proper
percentage of PPD. We agree.
__________

4
NRS 616.5414 provides as follows:
Contested claims: Employee of self-insurer may request hearing. If an employee of a self-insured
employer is dissatisfied with a decision of his employer, he may request a hearing before the hearing
officer.

5
NRS 616.5422(1) provides as follows:
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.

6
Southwest Gas had filed a motion in limine to prevent the reports of Dr. Knutson and Dr. Golden from
being considered except for the limited purpose of attacking the validity of Dr. Toeller's evaluation. The
motion was denied.
DISCUSSION
[Headnote 1]
The issue of this case was substantially decided in Georgeff v. Sahara Hotel, 103 Nev.
485, 745 P.2d 1142 (1987). There, we held that an appeals officer renders the final
administrative decision on all questions of fact, including the proper percentage of PPD. Id. at
489, 745 P.2d at 1144. In Georgeff, the claimant selected his own rating physician and we
upheld the appeals officer's decision to accept the rating physician's testimony as substantive
evidence. Georgeff, 103 Nev. at 489, 745 P.2d at 1145.
[Headnotes 2, 3]
Southwest Gas argues that no provision in the Nevada Industrial Insurance Act . . .
authorize[s] a claimant to select his own rating physician. However, NRS 616.5426(3)
provides an appeals officer with broad discretion to select another rating physician if he feels
doing so would resolve a medical question concerning an injured employee's condition. We
see nothing wrong with the appeals officer's decision to accept Dr. Golden's substantive
testimony since he had the authority to send Woods to Dr. Golden for an evaluation anyway.
Here, it is reasonable to conclude that the power of choice includes the power of ratification.
It would be a meaningless exercise for us to require the appeals officer to refer Woods to a
rating physician of his choice if he was satisfied with Dr. Golden's testimony.
The Administrative Procedure Act requires that all parties be provided the opportunity to
respond and present evidence and argument on all issues involved. NRS 233B.121(4).
Appeals officers are given quasi-judicial powers to the extent necessary to execute their
duties, pursuant to NRS 616.542, which include accepting and evaluating evidence, and
entering final administrative decisions in accordance therewith. See Nevada Industrial
Comm'n v. Reese, 93 Nev. 115, 120-21, 560 P.2d 1352, 1359 (1977) (citing Ormsby County
v. Kearney, 37 Nev. 314, 346, 142 P. 803, 808 (1914); Humboldt Land & Cattle Co. v. Sixth
Judicial Dist. Court, 47 Nev. 396, 224 P. 612 (1924)). Nevada law also provides: Each party
may call and examine witnesses . . . on any matter relevant to the issues . . . and rebut the
evidence against him. NRS 233B.123(4).
We have previously held:
It has been a long-standing policy of this Court to liberally construe such laws to protect
injured workers and their families. Unquestionably, compensation laws were enacted as
a humanitarian measure. The modern trend is to construe the industrial insurance acts
broadly and liberally, to protect the interest of the injured worker and his
dependents.
the interest of the injured worker and his dependents. A reasonable, liberal and practical
construction is preferable to a narrow one, since these acts are enacted for the purpose
of giving compensation, not for the denial thereof.
Dep't Ind. Relations v. Circus Circus, 101 Nev. 405, 411, 705 P.2d 645, 649 (1985) (quoting
Hansen v. Harrah's, 100 Nev. 60, 63, 675 P.2d 394, 396 (1984), quoting Industrial
Commission v. Peck, 69 Nev. 1, 10-11, 239 P.2d 244, 248 (1952)). Therefore, although the
Nevada Industrial Insurance Act, prior to July 5, 1991, did not specifically provide claimants
with authority to select a rating physician, we will not construe that to mean that claimants
were specifically prohibited from doing so. NRS 616.5426(2) requires an appeals officer to
hear any matter raised before him on its merits, including new evidence bearing on the
matter. We read this to include the acceptance of substantive testimony of a rating physician
selected by the claimant.
Administrative agencies may receive and weigh evidence and a reviewing court may not
substitute its judgment on questions of fact. NRS 233B.135(3). The findings of the appeals
officer will not be set aside absent a showing that they are against the manifest weight of the
evidence. See Nevada Indus. Comm'n v. Hildebrand, 100 Nev. 47, 51, 675 P.2d 401, 404
(1984) (citing Interlake Steel Corp. v. Industrial Comm'n, 326 N.E.2d 744, 747 (Ill. 1975)).
We conclude that the district court was correct in upholding Woods' ten percent PPD award.
Accordingly, we affirm the district court.
____________
108 Nev. 15, 15 (1992) S.N.E.A. v. Daines
STATE OF NEVADA EMPLOYEES ASSOCIATION, INC., A NEVADA
CORPORATION, JEANINE ELLIOTT, BONNIE ALLEC, CARL BARBEE,
HARRY GAMMIE, PAULA TLACHAC, NOVELLA WATSON-LEE AND FRED
SUWE, Petitioners, v. DARREL DAINES, IN HIS OFFICIAL CAPACITY AS
CONTROLLER OF THE STATE OF NEVADA, Respondent.
No. 22590
January 2, 1992 824 P.2d 276
Original petition for a writ of mandamus.
State employees petitioned for writ of mandamus compelling state controller to issue
warrants for salaries of state employees, including pay raise appropriated by legislature and
signed by governor. The supreme court held that: (1) state controller did not have discretion
to refuse to allocate the appropriated funds, and {2) governor's supreme executive power
did not permit him to defer disbursement of the salary increases.
108 Nev. 15, 16 (1992) S.N.E.A. v. Daines
have discretion to refuse to allocate the appropriated funds, and (2) governor's supreme
executive power did not permit him to defer disbursement of the salary increases.
Petition granted.
Norah Ann McCoy, Carson City, for Petitioners.
Frankie Sue Del Papa, Attorney General and Kateri Cavin and James T. Spencer, Deputy
Attorneys General, Carson City, for Respondent.
1. States.
State controller has nondiscretionary duty to pay salary increases enacted by legislature; unless act itself allows discretion in
payment of salary increases, controller has absolute duty to issue his warrants according to the legislative will. NRS 227.160.
2. States.
Board of examiners did not have discretion to fail to allocate sums appropriated for pay raises for public employees, even though
statute indicated that board may allocate such funds; legislature's use of the word may was conditional, not permissive.
3. States.
Board of examiners was required to disburse money appropriated by legislature to increase salaries of public employees, despite
contention that appropriation creates no duty that appropriated money actually be spent, where failure to spend appropriated funds
would defeat legislative purpose and essentially rewrite statute. NRS 353.260, subd. 1.
4. States.
The executive branch is not empowered to disregard the mandate of the legislature that certain salaries be paid.
5. States.
Governor's authority as supreme executive power did not permit him to order deferral of disbursement of salary increases for
public employees authorized by legislature; supreme executive power did not include power to disregard acts of legislature, and power
of controlling public purse lies within legislative, not executive authority. Const. art. 5, 1.
6. States.
Constitutional provision permitting board of examiners to examine claims against the state before the legislature passes upon such
claims did not permit board to defer payment of legislatively enacted salary increase after act had been signed into law by governor.
Const. art. 5, 21.
7. States.
Statute permitting chief of budget division of Department of Administration to require controller of heads of various agencies
within executive branch to set aside reserves to meet emergencies did not permit governor or chief of budget division to invalidate act
of legislature appropriating funds for increase in salary of public employees. NRS 353.225, 353.225, subd. 2.
108 Nev. 15, 17 (1992) S.N.E.A. v. Daines
OPINION
Per Curiam:
Petitioners in this original action seek a writ of mandamus compelling respondent Darrel
Daines, Controller of the State of Nevada, to issue warrants for petitioners' salaries, including
the four percent pay raise appropriated by the 1991 Nevada State Legislature to become
effective October 1, 1991. 1991 Nev. Stat. ch. 496 at 1515 (approved June 30, 1991).
On December 13, 1991, following the oral arguments in this matter, this court directed the
clerk of this court to issue a writ of mandamus compelling respondent forthwith to issue
warrants sufficient to pay the salary increases provided to the classified employees of the state
by the legislature. We specifically directed such salary increases to be paid retroactively from
October 1, 1991, and we indicated that a formal opinion setting forth the grounds for our
decision would be forthcoming. This opinion constitutes our final resolution of this
proceeding.
FACTS
On June 30, 1991, the Nevada State Legislature passed a bill appropriating funds for a four
percent salary increase for classified state employees. The salary increase was to become
effective October 1, 1991. 1991 Nev. Stat. ch. 496 at 1515 (Assembly Bill 815). The
governor signed the bill (hereinafter the act) into law.
On September 26, 1991, at a meeting of the Nevada State Board of Examiners, the clerk of
the board of examiners, based on projected revenue shortfalls, recommended that the Board
of Examiners defer allocation and disbursement of the funds appropriated for salary
adjustments for up to three months from the time the legislature contemplated their
enactment. The board of examiners unanimously adopted the clerk's recommendation.
As a result of the action of the board of examiners, the respondent state controller refused
to issue warrants sufficient to pay the authorized salary increases in the paychecks delivered
to state employees beginning on October 11, 1991. This petition followed.
DISCUSSION
[Headnote 1]
Petitioners contend that, pursuant to NRS 227.160, the state controller has a
non-discretionary duty resulting from his office to pay the salary increases enacted by the
legislature.1 We agree.
108 Nev. 15, 18 (1992) S.N.E.A. v. Daines
pay the salary increases enacted by the legislature.
1
We agree. This court has held that [a]n
appropriation of money to a specific object would be an authority to the proper officers to pay
the money, because the auditor is authorized to draw his warrant upon an appropriation, and
the treasurer is authorized to pay such warrant if he has appropriated money in the treasury.
State v. Eggers, 29 Nev. 469, 481, 91 P. 819, 823 (1907) (quoting Ristine v. State, 20 Ind.
339). Thus, unless the act itself allows the board or the governor discretion in the payment of
the salary increases, or the board or the governor are empowered by the constitution or by
statute to defer payment of legislatively authorized salary increases, the controller has an
absolute duty pursuant to NRS 227.160 to issue his warrants according to the legislative will.
[Headnote 2]
Respondent essentially concedes this point and argues correctly that the proper analysis of
this matter begins and ends with the classified pay bill. Section 1(2) of the act provides:
2. The state board of examiners, upon recommendation of the director of the
department of administration, may allocate and disburse to the various departments,
commissions and agencies of the State of Nevada, out of the money appropriated by
this section such sums of money as may from time to time be required, which when
added to the money otherwise appropriated or available equals the amount of money
required to pay the salaries of the classified employees of the respective
departments, commissions and agencies under the adjusted pay plan.
__________

1
NRS 227.160 (emphasis added) provides, in pertinent part:
1. The state controller shall:
(a) Audit all claims against the state, for the payment of which an appropriation or authorization has
been made but of which the amount has not been definitely fixed by law, which have been examined and
passed upon by the state board of examiners, or which have been presented to the board and not
examined and passed upon by it within 30 days from their presentation.
(b) Allow of those claims mentioned in paragraph (a) as not having been passed upon by the state
board of examiners within 30 days after presentation the whole, or such portion thereof as he deems just
and legal; and of claims examined and passed upon by the state board of examiners, such an amount as he
decrees just and legal not exceeding the amount allowed by the board.
. . . .
3. For the purpose of satisfying himself of the justness and legality of any claim, he may examine
witnesses under oath and receive and consider documentary evidence in addition to that furnished him by
the state board of examiners. He shall draw warrants on the state treasurer for such amounts as he
allows of the character above described, and also for all claims of which the amount has been definitely
fixed by law and for the payment of which an appropriation or authorization has been made.
108 Nev. 15, 19 (1992) S.N.E.A. v. Daines
money required to pay the salaries of the classified employees of the respective
departments, commissions and agencies under the adjusted pay plan.
1991 Nev. Stat. ch. 496, 1, at 1515 (emphasis added).
2

Respondent argues that the legislature's use of the word may rather than shall in
sections 1(2), 2(2) and 3(3) indicates that allocation and disbursement of the appropriated
amounts to pay salary increases is discretionary with the board of examiners and the Director
of the Department of Administration.
We disagree.
This court has stated that in statutes, may is permissive and shall is mandatory unless
the statute demands a different construction to carry out the clear intent of the legislature.
Givens v. State, 99 Nev. 50, 54, 657 P.2d 97, 100 (1983). This court has also held, however,
that the term may in a statute is conditional rather than permissive if the purpose of the
statute requires that construction. Nev. Real Est. Comm. v. Ressel, 72 Nev. 79, 82, 294 P.2d
1115, 1116 (1956) (may in a statute was not permissive; the statute created a duty to act
upon the occurrence of a specified condition, leaving no area for the exercise of discretion).
This construction of the word may has been recognized in numerous cases, especially
where used to define the duties of a public officer. Id.
Close examination of the language of the act in this case reveals that may in the act is
conditional rather than permissive. Section 2(3) of the act provides that the state board of
examiners may allocate and disburse . . . out of the money appropriated such sums of
money as may from time to time be required to pay the salaries of the classified employees
. . . under the adjusted pay plan.
The pay plan is the grade and step salary schedule for classified employees created by
the Department of Personnel pursuant to NRS 284.175. Clearly, the legislature intended that
the Department of Personnel would adjust the pay plan by approximately four percent.
3
The
language of the act requires the board of examiners to allocate additional funds to state
agencies to meet these pay increases upon the conditions set forth, i.e., when the funds
previously appropriated for salaries are insufficient to pay the salaries required under the
revised grade and step pay plan.4 We conclude, therefore, that the governor and the
board's decision to defer the legislatively enacted salary increases cannot be justified
under the language of the act.
__________

2
The language of sections 2(2) and 3(3) is identical to that of section 1(2) except that section 2(2) applies to
employees of the department of motor vehicles and public safety, the public service commission, and the
attorney general's office, and section 3(3) applies to the University of Nevada System.

3
The act refers to a raise of approximately four percent, rather than four percent, because the grade and step
pay schedule created by the Department of Personnel contains specific dollar figures derived by multiplying
present amounts by 1.04. The resulting figures must be rounded to the nearest whole dollar amounts.
108 Nev. 15, 20 (1992) S.N.E.A. v. Daines
board of examiners to allocate additional funds to state agencies to meet these pay increases
upon the conditions set forth, i.e., when the funds previously appropriated for salaries are
insufficient to pay the salaries required under the revised grade and step pay plan.
4
We
conclude, therefore, that the governor and the board's decision to defer the legislatively
enacted salary increases cannot be justified under the language of the act.
[Headnotes 3, 4]
Respondent asserts, nevertheless, that an appropriation creates no duty that the
appropriated money actually be spent. Respondent argues that because public officials are
specifically prohibited from spending more than the amount appropriated but not specifically
enjoined from spending less, it is permissible to spend less. See NRS 353.260(1). The instant
case is not, however, a case of a public official spending less than the amount appropriated by
the legislature. In this case, the legislature enacted a pay raise, designated a date on which the
raise would become effective, and appropriated funds to accomplish its purpose. The
executive branch has attempted to impound the funds specifically appropriated for this salary
increase in a manner that would defeat the legislative purpose and essentially rewrite the act.
The executive is not empowered to disregard the mandate of the legislature that certain
salaries be paid. See Ellis v. City of Valdez, 686 P.2d 700, 705 (Alaska 1984) (recognizing a
distinction between cases where the executive has attempted to impound funds and cases in
which an agency has exercised discretion with respect to the expenditure of funds authorized
for particular purposes within the expertise of the agency).
[Headnote 5]
Respondent contends that the governor could order deferral of disbursement of the salary
increases pursuant to the supreme executive power vested in him by Article 5, Section 1 of
the Nevada Constitution.5 Respondent has failed to cite any authority, however, for the
proposition that the supreme executive power of the State of Nevada includes the power
to disregard acts of the legislature.
__________

4
In sections 6 and 7 of the act, dealing with potential pay raises in the second biennium, the act sets forth
certain amounts that are contingently appropriated to provide additional salary increases depending on the
projected balance. These provisions do not purport to give the board of examiners discretion to disburse or not
disburse the amounts needed. Rather, they direct the board to implement certain pay raises if the projected
balances support the increases. Notably, the legislature did not make the payment of the October 1, 1991, pay
raises dependent on any revenue or state general fund projections. This supports our conclusion that the
legislature enacted salary increases and provided a fund from which to pay the increases; the legislature did not,
as contended by respondent, simply appropriate funds for discretionary distribution by the executive if it
determined a pay raise was warranted.
108 Nev. 15, 21 (1992) S.N.E.A. v. Daines
Nevada Constitution.
5
Respondent has failed to cite any authority, however, for the
proposition that the supreme executive power of the State of Nevada includes the power to
disregard acts of the legislature. Indeed, the governor has a constitutional duty to see that the
laws enacted by the legislature are faithfully executed. Nev. Const. art. 5, 7; Galloway v.
Truesdell, 83 Nev. 13, 20, 422 P.2d 237, 242 (1967) (executive power extends to carrying out
and enforcing laws enacted by the legislature).
Further, it is well established that the power of controlling the public purse lies within
legislative, not executive authority. See, e.g., State v. Fairbanks North Star Borough, 736 P.2d
1140 (Alaska 1987) (a statute purporting to give the governor the power to withhold or
reduce the budget of state agencies was struck down as an unconstitutional delegation of
legislative power); State v. State Board of Finance, 367 P.2d 925 (N.M. 1961) (statute
purporting to permit state board of finance to reduce annual operating budgets struck down as
violative of separation of powers doctrine); County of Oneida v. Berle, 404 N.E.2d 133 (N.Y.
1980) (governor could not reduce a lawfully enacted appropriation); see also House of
Representatives v. Martinez, 555 So.2d 839, 845 (Fla. 1990) (governor may not veto one of
several funding sources; he must veto all or none). Thus, the action of the governor was not
authorized by his supreme executive power.
[Headnote 6]
Similarly, the board of examiners had no constitutional authority to defer salary increases
enacted by the legislature and signed into law by the governor. Article 5, Section 21 of the
Nevada Constitution provides:
The Governor, Secretary of State and Attorney General . . . shall also constitute a
Board of Examiners, with power to examine all claims against the State (except salaries
or compensation of Officers fixed by law) and perform such other duties as may be
prescribed by law, and no claim against the State (except salaries or compensation of
Officers fixed by law) shall be passed upon by the Legislature without having been
considered and acted upon by said Board of Examiners.
This provision empowers the board of examiners to examine claims (except salaries or
compensation of officers) against the state before the legislature passes upon such claims;
there are no provisions in this section allowing the board to defer payment of a
legislatively enacted salary increase after the act has been signed into law by the
governor.
__________

5
Article 5, Section 1 of the Nevada Constitution provides that [t]he supreme executive power of this State,
shall be vested in a Chief Magistrate who shall be Governor of the State of Nevada.
108 Nev. 15, 22 (1992) S.N.E.A. v. Daines
provisions in this section allowing the board to defer payment of a legislatively enacted salary
increase after the act has been signed into law by the governor. Therefore, we conclude that
there is no constitutional authority for the action of the board.
[Headnote 7]
Respondent contends that the board's action was authorized by NRS 353.225, which
provides for a reserve to meet emergencies. NRS 353.225 (emphasis added) provides:
1. In order to provide some degree of flexibility to meet emergencies arising during
each fiscal year in the expenditures for the state distributive school account in the state
general fund and for operation and maintenance of the various departments, institutions
and agencies of the executive department of the state government, the chief, with the
approval in writing of the governor, may require the state controller or the head of each
such department, institution or agency to set aside a reserve in such amount as the chief
may determine, out of the total amount appropriated or out of other funds available
from any source whatever to the department, institution or agency.
2. At any time during the fiscal year this reserve or any portion of it may be returned
to the appropriation or other fund to which it belongs and may be added to any one or
more of the allotments, if the chief so orders in writing.
This statute authorizes the chief of the Budget Division of the Department of
Administration, with the approval of the governor, to require the controller of the heads of
various agencies within the executive branch of government to set aside reserves to meet
emergencies. We cannot conclude, however, that the legislature intended, when it enacted this
statute, to endow the chief of the Budget Division of the Department of Administration or the
governor with power to invalidate the acts of the legislature. Nor did the legislature intend
NRS 353.225(2) to be construed as an authorization for a blanket executive repeal of a pay
raise enacted by it. The provision was instead intended to provide a means for the executive
and the individual agencies to provide flexibility to meet emergencies by utilizing available
monies from the various budgets to fund a reserve for use at a later date. We conclude that
this statute, at best, is irrelevant to this case. Accordingly, we decline to consider the
constitutional challenges to the statute.
CONCLUSION
The governor and the board of examiners have no constitutional or statutory authority to
defer the salary increases enacted by the legislature.
108 Nev. 15, 23 (1992) S.N.E.A. v. Daines
by the legislature. Thus, the action of the board taken on September 26, 1991, was a nullity,
and the state controller has an absolute duty to issue his warrants pursuant to the legislative
mandate. A writ of mandamus may issue to compel the performance of an act which the law
especially enjoins as a duty resulting from an office, trust or station and where there is no
plain, speedy and adequate remedy at law. See NRS 34.160; Choose Life Campaign 90' v.
Del Papa, 106 Nev. 802, 801 P.2d 1384 (1990). Accordingly, we grant this petition.
Mowbray, C. J., Springer, Steffen and Young, JJ., and Kosach, D. J.,
6
concur.
____________
108 Nev. 23, 23 (1992) Brannan v. Nevada Rock & Sand
DAVID F. BRANNAN, Appellant, v. NEVADA ROCK & SAND COMPANY, Respondent.
No. 20813
January 6, 1992 823 P.2d 291
Appeal from a judgment entered upon a jury verdict in favor of respondent. Eighth Judicial
District Court, Clark County; Myron E. Leavitt, Judge.
Motorcyclist brought action against rock and sand company for injuries sustained when his
motorcycle collided with company truck. The district court entered verdict in favor of
company, and motorcyclist appealed. The supreme court held that: (1) company did not
possess and control public road where collision occurred; (2) evidence that truck's brakes
were faulty at time of collision should have been admitted; and (3) refusal to give
motorcyclist's requested instructions on per se negligence was error.
Reversed and remanded.
Mowbray, C. J., dissented in part.
[Rehearing denied July 21, 1992]
Burris & Thomas, Las Vegas, for Appellant.
Rawlings, Olson & Cannon and John E. Gormley, Las Vegas, for Respondent.
__________

6
The Honorable Steven R. Kosach, Judge of the Second 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. Automobiles.
Rock and sand company was not possessor of public road, and therefore had no duty to maintain that road, even though company
periodically plowed portions of road, road was used extensively by company's trucks, and company had placed warning signs at
various points where road intersected with another street.
2. Automobiles.
Under statute which states that occupier of open land owes no duty to keep premises safe from entry or use by others for
recreational purposes, rock and sand company which allegedly possessed and controlled public road had no duty to protect
motorcyclist injured in collision with company's truck. NRS 41.510.
3. Automobiles.
Evidence that truck which collided with motorcyclist had faulty brakes was admissible where truck driver testified that it was
possible that he had hit his brakes 100 yards prior to impact, and motorcyclist's accident reconstruction expert testified that truck driver
could have stopped before actual point of impact, assuming minimum braking power and normal driver reaction time.
4. Automobiles.
In action by motorcyclist against rock and sand company for injuries sustained when his motorcycle collided with company's
truck, refusal to give motorcyclist's requested instructions on per se negligence was error; motorcyclist was member of class of persons
designed to be protected by statute which requires that all brakes on vehicles be maintained in good working order, and testimony of
truck driver and motorcyclist's accident reconstruction expert was sufficient to establish causal connection between truck's improperly
maintained brakes and collision. NRS 484.597.
OPINION
Per Curiam:
On December 28, 1982, appellant David Brannan (Brannan) and a friend were riding their
motorcycles in an uninhabited area of desert near the intersection of Hollywood Boulevard
and Pabco Road in the Las Vegas Valley. While traveling south on Pabco Road at an
excessive speed, Brannan collided with a Nevada Rock & Sand Company (Nevada Rock)
tandem trailer belly dump truck that was traveling west on Hollywood Boulevard. As a
result of the accident, Brannan suffered catastrophic injuries.
Brannan brought suit against Nevada Rock for negligently maintaining and possessing
Hollywood Boulevard, for negligently maintaining the brakes on the company's trucks, and
for the negligent driving of its truck driver. The jury returned a verdict in favor of Nevada
Rock, and the present appeal ensued.
[Headnotes 1, 2]
Brannan first contends that the district court erred in excluding evidence that Nevada Rock
possessed and controlled Hollywood Boulevard, because possession and control of land
gives rise to a duty to maintain that land.
Boulevard, because possession and control of land gives rise to a duty to maintain that land.
See Restatement (Second) of Torts 367 (1965).
1
To support his claim, Brannan presented
evidence that Nevada Rock periodically plowed portions of Hollywood Boulevard, that
Hollywood Boulevard was used extensively by Nevada Rock's trucks in going back and forth
between the rock quarry and the rock crushing plant, and that at some entrances to the
intersection, Nevada Rock had placed warning signs. We conclude that the facts cited by
Brannan are insufficient to establish that Nevada Rock was a possessor of the intersection in
question and that the district court did not abuse its discretion in excluding this evidence.
Moreover, even if Brannan had presented facts sufficient to establish Nevada Rock's
possession, Nevada law precludes the imposition of a duty upon Nevada Rock to protect
Brannan. NRS 41.510 states that an occupier of open land owes no duty to keep the premises
safe from entry or use by others for recreational purposes. Brannan's motorcycle-riding was
undisputedly a recreational use.
[Headnotes 3, 4]
Brannan next asserts that the district court erred in refusing to permit the introduction of
facts to establish that Nevada Rock's truck had faulty brakes and that Nevada Rock had a
policy of not maintaining its trucks' brakes. Brannan contends that had this evidence been
admitted, he also would be entitled to an instruction stating that the failure to maintain the
truck's brakes as required by NRS 484.597 established per se negligence. The district court
refused to admit the evidence of faulty brakes or faulty brake maintenance or give the
requested per se negligence instruction because it found that no causal connection between
the truck's faulty brakes and the accident had been shown. We conclude otherwise and hold
that the district court should have both admitted the evidence of faulty brakes and given the
requested jury instruction.
NRS 484.597 requires that all brakes on vehicles be maintained in good working order.
Brannan was prepared to present evidence to demonstrate that Nevada Rock violated this
statute. After the accident, an officer of the Nevada Motor Carrier Division inspected the
brakes on the truck. The inspection revealed that the brakes on two of the six axles were
nonfunctional, and the inspector characterized five of the six axle brakes as inoperable.
__________

1
The Restatement (Second) of Torts 367 (1965) states:
A possessor of land who so maintains a part thereof that he knows or should know that others will
reasonably believe it to be a public highway is subject to liability for physical harm caused to them, while
using such part as a highway, by his failure to exercise reasonable care to maintain it in a reasonably safe
condition for travel.
Even when the inspector began his inspection, the driver of the truck warned him that he
wasn't going to like what [he] found and that Nevada Rock put all of its bad trucks hauling
gravel on Hollywood Boulevard. Other truck drivers testified that when a driver brought a
truck in complaining about the brakes, Nevada Rock would send the truck out with another
driver. If a driver refused to drive a truck because it was unsafe, the complaining driver would
be sent home and another driver assigned to drive the truck. One driver testified that there
was no regular brake maintenance program and that the brakes on the trucks were not
properly maintained.
Nevada Rock contends that there was no causal connection between the faulty brakes and
the accident because Brannan failed to demonstrate that the accident could have been
prevented had the driver hit his brakes prior to the collision. Although the evidence
concerning this point was conflicting, we conclude that Brannan presented sufficient facts to
support his contention. At trial, the driver of the truck testified that he hit his brakes only after
the motorcycle hit the side of his vehicle. However, on cross-examination, it was brought out
that in his prior deposition, the truck driver had indicated that he hit his brakes substantially
before impact. He acknowledged his prior statement and admitted that it was possible that he
hit his brakes 100 yards prior to impact, but now he could not recall. Brannan's reconstruction
expert testified that if the truck was traveling at twenty-five miles per hour, as claimed, and
the truck driver observed the motorcyclist coming toward the intersection when the truck was
110 feet away, the truck driver could have stopped before the actual point of impact,
assuming a minimum braking power and a normal driver reaction time. While this expert
modified his conclusion somewhat during cross-examination, there was still sufficient expert
testimony to show that the driver could have stopped his truck when he first was able to see
Brannan, if the brakes were in good operating order, if he immediately hit his brakes 110 feet
from the point of impact. Because Brannan should have been permitted to present evidence as
to the truck driver's ability to stop his vehicle, the effectiveness of the brakes could also have
had a direct bearing on the jury's deliberation and should have been explored.
NRS 484.597 is designed to protect the traveling public and to ensure that all those
operating motor vehicles adequately maintain their brakes. Brannan is a member of a class of
persons designed to be protected by this statute and there was evidence to establish a causal
connection between the improperly maintained brakes and the accident. See Barnes v. Delta
Lines, Inc., 99 Nev. 688, 669 P.2d 709 (1983) (when defendant violates statute designed to
protect class of persons to which plaintiff belongs, and thereby proximately causes injury
to plaintiff, such violation constitutes negligence per se).
designed to protect class of persons to which plaintiff belongs, and thereby proximately
causes injury to plaintiff, such violation constitutes negligence per se). Therefore, the district
court also should have given the requested instruction stating that a violation of NRS 484.597
would be per se negligence. See Beattie v. Thomas, 99 Nev. 579, 583, 668 P.2d 268, 271
(1983) (party is entitled to have jury instructed on its theory of the case if sufficient evidence
is presented to support it). The jury would then be in a position to determine whether the
brakes on the truck were improperly maintained in violation of NRS 484.517, and if so,
whether the faulty brakes were a proximate cause of the accident. Failure to admit this
evidence and to instruct the jury properly prevented Brannan from asserting an essential
portion of his case and mandates reversal.
Appellant's remaining contentions are without merit. Accordingly, we reverse the
judgment of the district court and remand this case with instructions that it be retried before a
different district court judge.
Springer, Rose and Young, JJ., and Griffin, D. J.,
2
concur.
Mowbray, C. J., concurring in part and dissenting in part:
I concur in the majority opinion insofar as it holds that Nevada Rock, as an occupier of
open land, had no duty to keep the premises safe from entry or use by David Brannan, whose
use was recreational. This holding is compelled by the plain meaning of the language
contained in NRS 41.150.
I cannot agree with the majority, however, that the district court erred in refusing to admit
evidence of faulty brakes and rejecting the corresponding per se negligence instruction
requested by Brannan. The majority's conclusion, though appealing in light of the dreadful
injuries suffered by Brannan, contravenes basic principles of tort law.
An essential element of the plaintiff's cause of action for negligence is that there be some
reasonable connection between the act or omission of the defendant and the harm which the
plaintiff has suffered. W. Page Keeton et al., Prosser and Keeton on the Law of Torts 41, at
263 (5th ed. 1984). This connection is dealt with by courts in terms of what usually is called
proximate cause. Id. In determining whether an act or omission proximately caused the
harm in question, our threshold inquiry is whether the act or omission constitutes a cause in
fact of the harm. Id. at 264.
__________

2
The Honorable Michael R. Griffin, Judge of the First Judicial District Court, was designated by the
Governor to sit in place of The Honorable Thomas L. Steffen, Justice. Nev. Const. art. 6, 4.
harm. Id. at 264. Under this inquiry, [a]n act or omission is not regarded as a cause of an
event if the particular event would have occurred without it. Id. at 265.
In the case before us, Nevada Rock was unquestionably negligent in operating its truck
without proper brakes, in violation of NRS 484.597. Yet, even if the brakes had been in the
best of condition, the driver of Nevada Rock's truck could not have stopped in time to avoid
colliding with Brannan. The evidence firmly established that Brannan was traveling at an
excessive speed and that he struck the rear side of the truck, some twenty-five feet from the
front of the vehicle. Reasonable minds could not escape the conclusion that the cause in
fact of the accident was not Nevada Rock's negligence, but Brannan's reckless operation of
his motorcycle. As a matter of law, then, Nevada Rock's negligence did not proximately cause
the harm suffered by Brannan.
Because of the lack of any causal connection whatsoever between the faulty brakes and the
accident, the evidence concerning Nevada Rock's brake maintenance and repair practices has
little probative value. See NRS 48.015. At the same time, this evidence is tremendously
prejudicial to Nevada Rock's defense. The trial court, recognizing that the scant probative
value of this evidence was vastly outweighed by the danger of unfair prejudice to Nevada
Rock, correctly refused to admit it at trial. See NRS 48.035.
With respect to the negligence per se instruction requested by Brannan, the district court
correctly rejected the instruction unless it can be shown that Brannan presented sufficient
evidence to establish that Nevada Rock's act or omission proximately caused the accident. See
Barnes v. Delta Lines, Inc., 99 Nev. 688, 669 P.2d 709 (1983). As noted above, Brannan
failed to demonstrate the required causal connection. Therefore, the trial court did not err in
refusing the instruction.
In my view, the judgment of the trial court should be affirmed.
____________
108 Nev. 29, 29 (1992) Hook v. Giuricich
SUSAN M. HOOK, Appellant, v. ROBERT ALLEN GIURICICH, and NEVADA STAR
CAB CORPORATION, Respondents.
No. 21819
January 6, 1992 823 P.2d 294
Appeal from a district court order granting summary judgment and awarding attorney's
fees to respondents. Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Taxi driver who was injured in collision with other cab brought tort action against driver
employed by another taxicab corporation and that driver's employer. The district court entered
summary judgment in favor of defendants pursuant to exclusive remedy provision of workers'
compensation statute, and appeal was taken. The supreme court held that evidence raised fact
issue as to whether two taxicab corporations were joint venturers, precluding summary
judgment.
Jason A. Awad and Associates and Michael V. Dentico, Las Vegas, for Appellant.
Wells, Kravitz, Schnitzer, Sloan & Lindsey, Las Vegas, for Respondents.
1. Judgment.
Summary judgment is only appropriate when, after review of record viewed in light most favorable to nonmoving party, there
remains no issues of material fact.
On appeal from grant of summary judgment, supreme court determines whether district court erred in concluding that there was
absence of genuine issues of material fact.
3. Joint Ventures.
Joint venture is less formal relationship than partnership and is typically association entered into to perform more limited
business objective for more brief period of time.
4. Joint Ventures.
Joint venture is less permanent than partnership and is usually limited to single business project.
Burden of proof is upon employer to prove joint venture where employer is seeking immunity from common-law tort action based
on other venturer's enrollment in State Industrial Insurance System (SIIS). NRS 616.270, 616.560.
6. Judgment.
Evidence raised fact issue as to whether two taxicab corporations were joint venturers, precluding summary judgment under
workers' compensation statute's exclusive remedy provision in common-law tort action brought by driver
employed by one corporation against other corporation and driver employed by it after the two drivers
were involved in collision; although SIIS maintained one account for both companies, there was no
evidence that companies shared profits or losses or entered into relationship for brief undertaking of single
business project.
compensation statute's exclusive remedy provision in common-law tort action brought by driver employed by one corporation against
other corporation and driver employed by it after the two drivers were involved in collision; although SIIS maintained one account for
both companies, there was no evidence that companies shared profits or losses or entered into relationship for brief undertaking of
single business project. NRS 616.270, 616.560.
OPINION
Per Curiam:
The question on appeal is whether two closely related taxicab corporations are joint
venturers, thus sharing immunity for worker's compensation purposes. We hold that summary
judgment was inappropriate in light of the facts presented to the district court.
FACTS
On July 8, 1987, appellant Susan Hook (Hook) was driving a taxicab owned and operated
by Nevada Yellow Cab Corporation (Yellow Cab) in the course of her employment. Another
taxicab driven by respondent Robert Giuricich (Giuricich) and owned and operated by
respondent Star Cab Corporation (Star Cab) struck Hook's vehicle from the rear. Hook
brought suit against Star Cab and Giuricich under common law tort theories. Hook has
received $47,740.36 in compensation from the State Industrial Insurance System (SIIS) as of
April 30, 1989.
Star Cab filed a motion for summary judgment, seeking immunity provided to employers
and co-employees under NRS 616.270
1
and NRS 616.560,
2
respectively. Star Cab contends
that Yellow Cab and Star Cab are conducting business as a joint venture, and thus the
statutory immunity provided to Yellow Cab extends to Star Cab as an employer and
extends as well to Giuricich as a co-employee of Hook.
__________

1
NRS 616.270 provides in relevant part:
Employers to provide compensation; relief from liability.
1. Every employer within the provisions of this chapter, and those employers who shall accept the terms
of this chapter and be governed by its provisions, as in this chapter provided, shall provide and secure
compensation according to the terms, conditions and provisions of this chapter for any and all personal
injuries by accident sustained by an employee arising out of and in the course of employment.
. . . .
3. In such cases the employer shall be relieved from other liability for recovery of damages or other
compensation for such personal injury, unless by the terms of this chapter otherwise provided.

2
Liability of third parties for damages. . . .
1. When an employee coming under the provisions of this chapter
venture, and thus the statutory immunity provided to Yellow Cab extends to Star Cab as an
employer and extends as well to Giuricich as a co-employee of Hook. The district court
granted summary judgment to Star Cab, finding that Yellow Cab and Star Cab are treated as a
single employer by SIIS and are therefore both employers of Hook. The court thereby limited
Hook's recovery to the sole benefits provided by SIIS.
Hook appeals the grant of summary judgment, contending that there is a substantial and
material issue of fact as to whether Star Cab and Yellow Cab are joint ventures. We agree.
DISCUSSION
[Headnotes 1, 2]
Summary judgment is only appropriate when, after a review of the record viewed in a light
most favorable to the non-moving party, there remain no issues of material fact. Butler v.
Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). On appeal, this court determines
whether the district court erred in concluding that there was an absence of genuine issues of
material fact. Bird v. Casa Royale West, 97 Nev. 67, 68, 624 P.2d 17, 18 (1981).
[Headnotes 3, 4]
This court has defined a joint venture as a contractual relationship in the nature of an
informal partnership wherein two or more persons conduct some business enterprise, agreeing
to share jointly, or in proportion to capital contributed, in profits and losses. Bruttomesso v.
Las Vegas Met. Police, 95 Nev. 151, 154, 591 P.2d 254, 256 (1979). A joint venture is a less
formal relationship than a partnership and is typically an association entered into to perform a
more limited business objective for a more brief period of time. Fredrickson v. Kluever, 152
N.W.2d 346, 348 (S.D. 1967). A joint venture is less permanent than a partnership and is
usually limited to a single business project. Baker Farmers Co. v. Harter, 328 N.E.2d 369,
372 (Ill.App.Ct.).
[Headnote 5]
This court has held that where the evidence of a joint venture is uncontroverted and one
joint venturer is immune from suit by virtue of being enrolled in SIIS, the other joint
venturers are also immune from suit.
__________
receives an injury for which compensation is payable under this chapter and which injury was caused
under circumstances creating a legal liability in some person, other than the employer or a person in the
same employ, to pay damages in respect thereof . . . .
(Emphasis added.)
immune from suit. Haertel v. Sonshine Carpet Co., 104 Nev. 331, 335, 757 P.2d 364, 366
(1988). The burden of proof is upon the employer to prove a joint venture where the employer
is seeking immunity from a common law tort action. Placing the burden of proof on the
employer is necessary in order to avoid self-serving claims of joint ventureship.
[Headnote 6]
In the case at hand, there was no evidence before the district court indicating whether
Yellow Cab and Star Cab shared profits or losses. The district court made no findings
regarding whether Yellow Cab and Star Cab entered into a relationship for a brief
undertaking of a single business project. Rather, the district court granted summary judgment
to the cab companies, finding a joint venture solely on the fact that SIIS maintains one
account for both Star Cab and Yellow Cab.
Summary judgment was unwarranted in this case as a joint venture was not established
from uncontroverted facts. With the evidence before the district court, there remained
substantial issues of material fact: whether Yellow Cab and Star Cab satisfied the criteria for
a joint venture as discussed in this opinion.
CONCLUSION
The judgment of the district court is reversed, along with the award of attorney's fees and
costs to respondents, and the case is remanded for further proceedings consistent with this
opinion.
Mowbray, C. J., Rose, Steffen and Young, JJ., and Huffaker, D. J.,
3
concur.
____________
108 Nev. 32, 32 (1992) Desert Cab v. Marino
DESERT CAB INC., Doing Business Under the Firm Name of DESERT CAB COMPANY
and JAMES EDWARDS, Appellants, v. MARIA MARINO, Respondent
No. 21377
January 6, 1992 823 P.2d 898
Appeal from a judgment entered against appellants following a jury verdict. Eighth
Judicial District Court, Clark County; Jack Lehman, Judge.
__________

3
The Honorable Stephen L. Huffaker, 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.
Taxicab driver who was assaulted by driver for another company brought personal injury
action against the other driver's employer. The district court entered judgment on jury verdict
in favor of taxicab driver, and employer appealed. The supreme court held that: (1) evidence
that State Industrial Insurance System had determined that cab driver was in the course of her
employment at the time of the assault was irrelevant; (2) error in admitting that evidence was
harmless; and (3) evidence that assaulting driver had been convicted of misdemeanor assault
and battery was relevant and admissible.
Affirmed.
Jeffrey R. Albregts, Las Vegas, for Appellants.
Denton & Denton, Ltd., Las Vegas, for Respondent.
1. Evidence.
Evidence that is not relevant is not admissible; relevant evidence is that which has a tendency to make the existence of any fact
of consequence to the determination of the action more or less probable than it would without the evidence. NRS 48.015, 48.025.
2. Master and Servant.
State Industrial Insurance System (SIIS) ruling that taxicab driver was acting within the course of her employment when she was
attacked by a driver for another company was not relevant to issue of the other company's liability for its cab driver's attack. NRS
48.015, 48.025.
Error in admitting, in action brought by taxicab driver against employer of second driver who assaulted her, determination of SIIS
that taxicab driver was in the course of her employment at the time of the assault was harmless where the court instructed the jury that
evidence of the decision was admissible only to show that SIIS had accepted the claim for industrial compensation and where employer
of taxicab driver had agreed not to proffer the decision in return for employer's agreement not to introduce certain other evidence and
employer had breached that agreement during opening statement.
Finding that taxicab driver committed wrongful act by attacking driver of another company was a prerequisite to imposition of
liability on the employer of the driver who committed the assault.
Judgment of conviction for misdemeanor assault and battery of taxicab driver who assaulted driver for another company was
relevant in victim's action against the assaulting driver's employer to establish wrongfulness of assaulting driver's conduct. NRS
41.133, 48.015.
6. Evidence.
Probative value of evidence that taxicab driver who assaulted driver for another company had been convicted of misdemeanor
assault and battery outweighed potential for unfair prejudice in action against the assaulting cab driver's employer. NRS 41.133.
OPINION
Per Curiam:
THE FACTS
On October 6, 1986, respondent Maria Marino (Marino), a cab driver with
Yellow-Checker Cab Company (Yellow-Checker Cab), and appellant James Edwards
(Edwards), a cab driver with appellant Desert Cab Company (Desert Cab), parked their
cabs at the taxicab stand of the Sundance Hotel and Casino in Las Vegas to await fares.
Marino's cab occupied the first position in the line and Edwards occupied the third. As
Marino stood alongside her cab conversing with the driver of another taxi, Edwards began
verbally harassing her from inside his cab. When Marino approached Edwards to inquire as to
the reason for the harassment, he jumped from his cab, grabbed Marino by her neck and
shoulders, began choking her, and threw her onto the front of his taxicab. A bystander
intervened, pulled Edwards off of Marino and escorted her back to her cab.
Marino sustained injuries that rendered her unable to work for a time. Before she could
return to work, Yellow-Checker Cab terminated her. Marino subsequently filed a wrongful
termination suit against her former employer.
Edwards was convicted of misdemeanor assault and battery for his attack on Marino.
Marino brought this personal injury action against James Edwards and Desert Cab.
1
At
trial, the jury confronted two critical issues: (1) whether Edwards' tortious conduct arose out
of the course and scope of his employment with Desert Cab, and if so, (2) what damages did
Marino suffer as a result of this conduct. Concluding that Edwards' tortious conduct arose out
of the course and scope of his employment, the jury found Desert Cab liable for Marino's
injuries and awarded her $65,000.00 in compensatory damages.
Desert Cab appeals several of the district court's evidentiary rulings.
2
For reasons set forth
below, we conclude that the district judge's rulings were not erroneous.
1. The SIIS Hearing Officer's Decision
At trial, Marino introduced the written decision of a State Industrial Insurance System
(SIIS) hearing officer awarding Marino industrial compensation for the injuries she
sustained as a result of Edwards' attack.
__________

1
Edwards neither answered Marino's complaint nor appeared at the trial. Consequently, the district court
entered a default judgment against him on October 5, 1989.

2
Though listed as an appellant, Edwards raises no issues on this appeal.
Marino industrial compensation for the injuries she sustained as a result of Edwards' attack.
The critical prerequisite to this award was a finding by the hearing officer that Marino's
injuries arose out of the course and scope of her employment with Yellow-Checker Cab. The
written decision contained this finding. Over the objection of Desert Cab, the district court
admitted into evidence this decision, deeming it admissible to show that SIIS accepted
Marino's claim for industrial compensation. Desert Cab contends that the SIIS hearing
officer's decision is irrelevant and therefore should have been excluded from the trial. We
agree.
[Headnote 1]
Evidence that is not relevant is not admissible. NRS 48.025. 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; e.g., Land Resources Dev. v. Kaiser Aetna, 100 Nev. 29, 676 P.2d 235 (1984).
[Headnote 2]
The SIIS decision is not relevant to the issue of Desert Cab's liability for Edwards' attack.
The determination of whether Marino's injuries arose out of the course and scope of her
employment with Yellow-Checker Cab is separate and distinct from the determination of
whether Edwards' tortious conduct arose out of the course and scope of his employment with
Desert Cab. Moreover, while the phrase arising out of the course and scope of employment
has received a liberal interpretation by this court where the issue is entitlement to industrial
compensation, Molino v. Asher, 95 Nev. 33, 588 P.2d 1033 (1979); Provenzano v. Long, 64
Nev. 412, 183 P.2d 639 (1947); Nevada Ind. Com. v. Leonard, 58 Nev. 16, 68 P.2d 576
(1937), no similar interpretation has been utilized where the issue is the vicarious liability of
an employer for the tortious acts of an employee. Thus, the hearing officer's conclusion with
respect to Marino's injuries has no bearing whatsoever upon the issue of Desert Cab's
liability.
[Headnote 3]
Though we are convinced that the district court erred by admitting the SIIS decision, we
also conclude that this error was harmless. Realizing that the jury might improperly infer
from the SIIS decision that Edwards' conduct arose out of the course and scope of his
employment, the district court instructed the jury accordingly, emphasizing that the decision
was admissible only to show that SIIS had accepted Marino's claim for industrial
compensation. In addition, the parties negotiated a pretrial agreement before the trial court
whereby Marino agreed not to proffer the SIIS decision in return for Desert Cab's assurance
that it would not introduce evidence of the disciplinary citation Marino received from the
Taxicab Authority for "participating in verbal argument" with Edwards prior to the attack.
SIIS decision in return for Desert Cab's assurance that it would not introduce evidence of the
disciplinary citation Marino received from the Taxicab Authority for participating in verbal
argument with Edwards prior to the attack. Marino proffered the SIIS decision only after
Desert Cab's counsel abrogated this agreement in his opening statement. We are loathe to
disturb a jury verdict where the alleged error is seemingly invited by the complaining party.
Finally, Desert Cab has failed to show that the error complained of so substantially affected
its rights that it could be reasonably assumed that, if not for the alleged error, a different result
might reasonably have been expected. El Cortez Hotel, Inc. v. Coburn, 87 Nev. 209, 213, 484
P.2d 1089, 1091 (1971).
2. Edwards' Judgment of Conviction.
The district court admitted into evidence the judgment of Edwards' misdemeanor assault
and battery conviction. The court found this evidence admissible pursuant to NRS 41.133
and NRS 41.130 to conclusively prove Edwards' civil liability to Marino.
3
Desert Cab
argues that the judgment of conviction was irrelevant and should not have been admitted.
According to Desert Cab, the critical issue before the jury was whether or not Desert Cab
could be held liable for Edwards' tortious attack on Marino. Edwards' liability to Marino,
Desert Cab insists, was never an issue at trial.
[Headnotes 5, 6]
We are not persuaded by Desert Cab's argument. By the express language of NRS 41.133,
Edwards' judgment of conviction provides conclusive evidence of his civil liability to Marino.
A finding that Edwards committed a wrongful act by attacking Marino is a prerequisite to
imposing liability upon Desert Cab. The judgment of conviction establishes the wrongfulness
of Edwards' conduct. Therefore, the judgment is relevant evidence. See NRS 48.015.
[Headnote 7]
Desert Cab also contends that any probative value found in Edwards' judgment of
conviction pales in comparison to the unfairness this evidence injected into the trial.
__________

3
NRS 41.133 provides:
If an offender has been convicted of the crime which resulted in the injury to the victim, the judgment
of conviction is conclusive evidence of all facts necessary to impose civil liability for the injury.
Whenever any person shall suffer personal injury by wrongful act, neglect or default of another, the
person causing the injury shall be liable to the person injured for damages; and where the person causing
such injury is employed by another person or corporation responsible for his conduct, such person or
corporation so responsible shall be liable to the person injured for damages.
Edwards' judgment of conviction pales in comparison to the unfairness this evidence injected
into the trial. Admission of the judgment pursuant to NRS 41.133, Desert Cab submits,
created an irrebuttable presumption that it was liable to Marino because of Edwards'
conviction for assault and battery. For this reason, Desert Cab concludes, the trial court
should not have admitted Edwards' judgment of conviction.
We disagree. Edwards' judgment of conviction does not by itself establish Desert Cab's
liability to Marino. In order to find Desert Cab liable, Marino still had to satisfy the terms of
NRS 41.130 by establishing that Desert Cab was responsible for Edwards' conduct. Desert
Cab could be found responsible only if Marino proved that the attack arose out of the
course and scope of Edwards' employment with Desert Cab. Thus, the trial court did not
abuse its discretion in finding that the prejudicial effect of Edwards' judgment of conviction
did not substantially outweigh its probative value.
CONCLUSION
We find any error in the trial court's evidentiary rulings to be harmless. Desert Cab's
remaining contentions lack merit. Therefore, we affirm the judgment of the district court.
Mowbray, C. J., Rose, Steffen and Young, JJ., and Christensen, D. J.,
4
concur.
____________
108 Nev. 37, 37 (1992) Sports Form v. Leroy's Horse & Sports
SPORTS FORM, INC., Appellant, v. LEROY'S HORSE AND SPORTS PLACE, a Nevada
Corporation, Respondent.
No. 21574
January 16, 1992 823 P.2d 901
Appeal from a jury verdict in favor of respondent and from an award of attorney's fees.
Eighth Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Betting establishment brought action against gaming disseminator for failure to provide
equal access to gaming information. The district court entered jury verdict for the
establishment, and disseminator appealed. The supreme court held that statutes requiring fair
and equitable dissemination of gaming information did not provide gaming entities with
private cause of action.
__________

4
The Honorable Carl J. Christensen, Judge of the Eighth Judicial District Court, was designated by the
requiring fair and equitable dissemination of gaming information did not provide gaming
entities with private cause of action.
Reversed.
Young, J., dissented.
[Rehearing denied May 18, 1992]
Nitz, Walton & Hammer, Las Vegas, for Appellant.
Neil J. Beller, Las Vegas, for Respondent.
1. Gaming.
Gaming entities are intended beneficiaries of statutes requiring fair and equitable dissemination of gaming information. NRS
463.440, subd. 1(a), 463.460.
2. Action.
Though gaming entities are primary beneficiaries of statutes requiring fair and equitable dissemination of gaming information,
nothing in those statutes provides them with private cause of action; legislature intended that only Nevada Gaming Control Board or
Nevada Gaming Commission could bring enforcement actions. NRS 463.440, subd. 1(a), 463.460.
3. Administrative Law and Procedure.
Doctrine of primary jurisdiction requires that courts should sometimes refrain from exercising jurisdiction so that technical issues
can first be determined by administrative agency.
OPINION
Per Curiam:
LeRoy's Horse and Sports Place (LeRoy's) is a betting establishment which offers
wagering on sports and race events. In order to offer this service, LeRoy's must subscribe,
from a licensed disseminator, to either a live audio or visual signal which is transmitted from
the point of origin of the event to the race and sports place. Mr. Victor Salerno is the
president of LeRoy's.
Sports Form is a licensed disseminator of gaming information. Chuck DiRocco is a
principal of Sports Form, Inc.
In 1987, LeRoy's entered into a one-year contract with Sports Form for receipt of the
signal. Mr. Salerno failed to make timely payments on the contract, and the signal was
terminated. Sports Form subsequently sued LeRoy's for the full price of the contract and
prevailed.
On May 18, 1988, Mr. Salerno received a letter from Sports Form inviting him to
subscribe to the Chicago/Hawthorne/Arlington signal. The letter emphasized compliance with
the ten day requirement of the Nevada Gaming Commission. On June 13, 19SS, Mr.
13, 1988, Mr. Salerno contacted Mr. DeRenzo, a long-term employee of WINCO/Sports
Form, and said that he would like to have the service. He was told that he needed to get a
waiver from the Gaming Commission.
Mr. Salerno contacted Dennis Amerine, the designated representative of Mike Rumboltz
of the Gaming Control Board, and obtained an oral waiver of the ten day rule. He was
subsequently informed by Mr. DeRenzo that Mr. DiRocco required the waiver to be in
writing. Mr. Salerno obtained a letter from Mr. Amerine which he delivered to Mr. DeRenzo.
Despite obtaining a waiver, Sports Form declined to provide the signal, citing LeRoy's history
of slow payment.
LeRoy's filed suit in the district court for failure to provide equal access to gaming
information. See NRS 463.440(1)(a)
1
and NRS 463.460.
2
A jury awarded $13,969.00 in
damages. On appeal, appellant contests the existence of a private cause of action under NRS
Chapter 463.
In determining whether respondent has a private cause of action under NRS Chapter 463
and, specifically, NRS 463.440(1)(a) and NRS 463.460, it is helpful to look to the Supreme
Court case of Cort v. Ash, 422 U.S. 66 (1975).
In Ash, the Supreme Court articulated four general factors to be considered in determining
whether a private remedy is implicit in a federal statute. Those factors include the following:
(1) whether the plaintiff was one of the class for whose special benefit the statute was
enacted; (2) whether there was any indication of legislative intent, explicit or implicit,
either to create such a remedy or to deny one; (3) whether the implication of such a remedy
was consistent with the underlying purposes of the legislative theme; and (4) whether the
cause of action was one traditionally relegated to state law, in an area basically that
concerned the State, so that it would be inappropriate to infer a cause of action based solely
on federal law. Ash, 422 U.S. at 78.
__________

1
NRS 463.440(1)(a) provides:
(a) All persons licensed to operate and maintain a sports pool or race book are entitled to receive on a
fair and equitable basis all information concerning such racing that is being disseminated into and within
this state.

2
463.460 Licensee to furnish information without discrimination. Any disseminator of such
information obtaining a license under NRS 463.430 to 463.480, inclusive, shall furnish such information
to any licensed race book or sports pool which applies to the disseminator therefor, and the information
must be furnished by the disseminator as adequately and efficiently as it is furnished to any other users of
the information furnished by the disseminator.
The first three of the Ash factors are applicable to this case. We will now consider each
factor in turn.
1. Protected class.
[Headnote 1]
Appellant contends that the Gaming Control Act, NRS Chapter 463, was not enacted for
the special benefit of gaming entities. Appellant cites the case of Dunn v. Tax Commission,
67 Nev. 173, 216 P.2d 985 (1950), which states: The contention that the purpose of the
[gaming licensing] act is to favor or benefit the race track books and not for the protection of
the public and in the public interest' as recited in section 2 of the act is not tenable. Id. at
184, 216 P.2d at 991.
We conclude that Dunn is inapplicable to the present case. In Dunn, the issue was whether
a statute (1949 Nev. Stats. ch. 152) providing for the licensing of the supplying and
dissemination of horse racing information was constitutional. Id. at 175-176, 216 P.2d at 997.
3
In contrast, the present issue is whether gaming entities are the intended beneficiaries of
statutes requiring the fair and equitable dissemination of gaming information. See NRS
463.440(1)(a); see also NRS 463.460.
While the overarching purpose behind the Gaming Control Act is to protect the public,
gaming entities are the primary beneficiaries of NRS 463.440(1)(a) and NRS 463.460. NRS
463.440(1)(a) specifically states that it is the public policy of the State that: All persons
licensed to operate and maintain a sports pool or race book are entitled to receive on a fair
and equitable basis all information concerning such racing that is being disseminated into and
within this state.
2. Legislative intent.
[Headnote 2]
Respondent argues that the legislature intended to enforce NRS 463.440(1)(a) and NRS
463.460 through private civil actions. We disagree. Though gaming entities are the primary
beneficiaries of these statutes, nothing in NRS 463.440(1)(a) or NRS 463.460 provides them
with a private cause of action. Instead, enforcement is governed by NRS 463.141, which
states: The commission or board shall initiate proceedings or actions appropriate to enforce
the provisions of this chapter. See also NRS 463.310.
4
Clearly, the legislature intended
that only the Nevada Gaming Control Board or the Nevada Gaming Commission may bring
enforcement actions for violations of NRS 463.440{1){a) and NRS 463.460.
__________

3
We determined that the licensing act was proper under the State's police power, since the interest in
protecting the public was manifest. Dunn, 67 Nev. at 184, 216 P.2d at 997.

4
NRS 463.310 states, in pertinent part, as follows:
Investigations; disciplinary proceedings; duties of board and commission; powers of commission.
1. The board shall make appropriate investigations:
Clearly, the legislature intended that only the Nevada Gaming Control Board or the Nevada
Gaming Commission may bring enforcement actions for violations of NRS 463.440(1)(a) and
NRS 463.460.
3. Legislative scheme.
Appellant suggests that the legislative scheme of Chapter 463 does not contemplate a
private cause of action. We agree.
[Headnote 3]
The doctrine of primary jurisdiction requires that courts should sometimes refrain from
exercising jurisdiction so that technical issues can first be determined by an administrative
agency. Kapplemann v. Delta Air Lines, 539 F.2d 165, 168-169 (1st Cir. 1976). In
Kapplemann, the court articulated two policies advanced by the traditional primary
jurisdiction doctrine: (1) the desire for uniformity of regulation and, (2) the need for an
initial consideration by a tribunal with specialized knowledge. Kapplemann, 539 F.2d at
169.
The continued growth and success of Nevada gaming is dependent upon public confidence
and trust that licensed gaming is conducted honestly and competitively. This confidence and
trust can only be maintained by strict and uniform regulation of all aspects of the gaming
industry. See NRS 463.0129. Recognizing this, the legislature vested authority for
enforcement of Chapter 463 in the Nevada Gaming Control Board and the Nevada Gaming
Commission. Therefore, absent express language to the contrary, the legislative scheme of
Chapter 463 precludes a private cause of action.
In sum, under the relevant factors enumerated in Ash, we conclude that a private cause of
action does not exist under NRS 463.440(1)(a) and NRS 463.460.
Because we find that no private cause of action exists, we need not address appellant's
other contentions.
Accordingly, we reverse the judgment of the district court.
Mowbray, C. J., Springer and Steffen, JJ., and Foley, D. J.,
5
concur.
Young, J., dissenting:
Respectfully, I dissent. I would hold that there is a private cause of action under NRS
Chapter 463.
__________
(a) To determine whether there has been any violation of this chapter or chapter 464 or 465 of NRS or
any regulations adopted thereunder.

5
The Honorable Thomas A. Foley, 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.
The majority concedes that the purpose of NRS 463.440(1)(a) and NRS 463.460 is to
benefit gaming entities. Clearly, NRS 463.440(1)(a) and NRS 463.460 create a right in favor
of race books. Race books are entitled to receive all information concerning racing which is
being disseminated in Nevada. NRS 463.440(1)(a). The information is to be furnished to any
race book which applies for it, and the disseminator may not discriminate against any
applicant. NRS 463.460. In order to give NRS 463.460 meaning, a private cause of action
must be afforded to those gaming entities which are denied the rights granted to them by
statute.
The majority concedes that gaming entities are the primary beneficiaries of NRS
463.440(1)(a) and NRS 463.460, but goes on to say that nothing in those statutes provides
gaming entities with a private cause of action. Where a statute does not expressly create or
deny a private cause of action, the legislative history will typically be ambiguous or silent on
the issue. Cannon v. University of Chicago, 441 U.S. 677, 694 (1978). Therefore, in
situations such as the present one in which it is clear that [the statute] has granted a class of
persons certain rights, it is not necessary to show an intention to create a private cause of
action . . . .' Id. at 694 (quoting Cort v. Ash, 422 U.S. 66, 82 (1975)) (emphasis in original.)
No private remedy should be implied if it is contrary to the underlying purpose of the
legislation. Cannon, 441 U.S. at 703. However, when a private cause of action is helpful to
accomplish the statutory purpose, the court should be receptive to allowing the remedy. Id.
Affording LeRoy's a private cause of action furthers the legislative intent to protect gaming
entities from denial of racing information being disseminated in the State of Nevada.
The majority limits LeRoy's remedy to enforcement of the statute through the Nevada
Gaming Control Board and the Nevada Gaming Commission. Preclusion of a private cause of
action renders a hollow victory to LeRoy's, which was denied the rights afforded it by statute
but which is not entitled to damages for that denial. Sports Form is merely slapped on the
wrist for discriminating against LeRoy's in violation of NRS 463.460. If a private cause of
action were recognized, it would discourage Sports Form or others from discrimination in the
future.
I therefore dissent.
____________
108 Nev. 43, 43 (1992) Rice v. State
BRUCE ALLEN RICE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21150
January 24, 1992 824 P.2d 281
Appeal from a judgment of conviction upon jury verdict of one count of possession of
stolen property. Eighth Judicial District Court, Clark County; Joseph T. Bonaventure, Judge.
Defendant was convicted before the district court of possession of stolen property, and he
appealed. The supreme court held that: (1) error which occurred when two State witnesses
made references to Department of Parole and Probation, thus permitting jury to infer that
defendant had engaged in prior criminal activity, was not prejudicial; (2) it was not logically
inconsistent for jury to acquit defendant of grand larceny charge and to convict him for
possessing same property as stolen; and (3) evidence was sufficient to sustain conviction.
Affirmed.
Rose, J., dissented.
Morgan D. Harris, Public Defender and Patrick E. McDonald, Deputy, Clark County, for
Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney and
James Tufteland, Deputy, Clark County, for Respondent.
1. Criminal Law.
Test for determining whether statement is an impermissible reference to criminal history is whether jury would reasonably infer
from the facts presented that accused had engaged in prior criminal activity.
2. Constitutional Law.
Because it affects the presumption of innocence, reference to criminal history, absent special conditions of admissibility, is a
violation of due process. U.S.C.A.Const. amend. 14.
3. Criminal Law.
Error in allowing two State witnesses to make references to the Department of Parole and Probation, from which jury could infer
that defendant had engaged in prior criminal activity, was harmless, considering that statements were unsolicited, or inadvertent, and
that defense counsel declined judge's offer to give jury a limiting instruction.
4. Criminal Law.
There was no inconsistency in jury verdict acquitting defendant of grand larceny but convicting him of possessing the same
property as stolen; fact that jury did not convict defendant of grand larceny did not mean that jury concluded that property was not
stolen. NRS 205.275, subd. 1.
108 Nev. 43, 44 (1992) Rice v. State
5. Receiving Stolen Goods.
Evidence was sufficient to sustain conviction for possession of stolen property; there was no question that defendant possessed the
property, and jury could have concluded that he possessed it for his own gain because he admitted to having sold some of the items.
NRS 205.275, subd. 1.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction upon jury verdict of one count of
possession of stolen property. NRS 205.275(1). The district court adjudicated appellant a
habitual criminal. Accordingly, appellant was sentenced to fifteen years in the Nevada State
Prison.
[Headnotes 1-3]
Appellant first contends that the district court violated his due process rights by denying
his motion for a mistrial after two state's witnesses made references to the department of
parole and probation, in violation of a motion in limine. The test for determining whether a
statement is a reference to criminal history is whether the jury could reasonably infer from the
facts presented that the accused had engaged in prior criminal activity. Manning v. Warden,
99 Nev. 82, 659 P.2d 847 (1983). Because it affects the presumption of innocence, a
reference to criminal history, absent special conditions of admissibility, is a violation of due
process. Id.; Courtney v. State, 104 Nev. 267, 756 P.2d 1182 (1988). Although a reasonable
juror could conclude from the references at issue that appellant had engaged in prior criminal
activity, we conclude that the error was harmless beyond a reasonable doubt. See Chapman v.
California, 386 U.S. 18 (1967). The statements were unsolicited, the references were
inadvertent, and defense counsel declined the judge's offer to give the jury a limiting
instruction. Under these circumstances, the error was not prejudicial. Cf. Stickney v. State, 93
Nev. 285, 564 P.2d 604 (1977).
[Headnote 4]
Appellant next contends that the evidence presented at trial was insufficient to support the
jury's finding of guilt. Specifically, appellant contends that it was logically inconsistent for
the jury to acquit him of the grand larceny charge and to convict him for possessing the same
property as stolen. Furthermore, appellant denies having the requisite intent.
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.
108 Nev. 43, 45 (1992) Rice v. State
367, 609 P.2d 309 (1980). To begin, we note that there is no inherent illogic in the jury's
verdict. The fact that the jury did not convict appellant of grand larceny does not necessarily
mean that the jury concluded that the property was not stolen, but rather that the jury was not
convinced beyond a reasonable doubt that it was appellant who stole it. As the jury was
correctly instructed, an accused may not be convicted of both larceny and possession of stolen
property. Point v. State, 102 Nev. 143, 146-47, 717 P.2d 38, 40-41 (1986).
[Headnote 5]
Moreover, the record reveals sufficient evidence to support the jury's verdict. There is no
question that appellant possessed the property. The jury could have concluded that he
possessed it for his own gain because he admitted to having sold some of the items. The jury
could have also concluded that he possessed it to prevent the victim from again possessing it
because he moved it without telling her. In addition, as noted above, the jury could have
concluded that someone else stole the goods, but that appellant knew or should have known
that they were stolen. See NRS 205.275(1).
The jury could reasonably infer from the evidence presented that appellant possessed
stolen property. It is for the jury to determine the weight and credibility to give conflicting
testimony, and the jury's verdict will not be disturbed on appeal where, as here, substantial
evidence supports the verdict. See Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981).
Accordingly, we affirm the judgment of conviction.
Rose, J., dissenting:
The district court realized the impropriety and damage that evidence of appellant Rice's
prior criminal convictions would do to his defense. A motion in limine was granted
precluding the State from making any reference to the fact that Rice was on parole when the
alleged crimes were committed. This, of course, would include reference to parole and
probation officers supervising Rice.
Once such an order is entered, the prosecution has the obligation to admonish his law
enforcement witnesses not to mention that the defendant was being supervised by parole and
probation officers, as well as not referring to it himself or attempting to elicit such testimony.
Either the prosecutor in this case did not adequately warn the law enforcement witnesses, or
the law enforcement witnesses deliberately ignored the warning.
The officer that responded to the burglary call was asked on the stand if she relayed the
information over the radio about Rice's likely whereabouts. She answered, No, and then
volunteered that what had happened was that when she had completed the crime report,
"two Parole and Probation officers came to the apartment" and informed her of Rice's
probable location.
108 Nev. 43, 46 (1992) Rice v. State
that what had happened was that when she had completed the crime report, two Parole and
Probation officers came to the apartment and informed her of Rice's probable location. The
defense raised the appropriate objection and requested a mistrial, on the grounds that the
witness's response was a clear violation of the court's order. Later, a second officer stated that
he went to the scene where the furniture was found to assist the Parole and Probation
officers, and that he entered the residence when P&P invited [him] in. The defense
attorney again objected and moved for a mistrial, which the court denied.
These statements unquestionably violated the district court's order. Therefore, in order to
affirm this conviction, we must be convinced that these errors were harmless beyond a
reasonable doubt. See Chapman v. California, 386 U.S. 18 (1967).
Rice was charged with grand larceny and possession of stolen property. He was accused of
stealing and having in his possession furniture and personal items belonging to his roommate,
which Rice moved to another location while the roommate was out of town. Rice's defense
was that he was not stealing anything and that he had moved all of the furniture when he was
forced to move from the apartment. The jury convicted Rice of possession of stolen property
but acquitted him on the charge of grand larceny.
This was a reasonably close case, depending largely on the credibility of the accused. See
Big Pond v. State, 101 Nev. 1, 692 P.2d 1288 (1985). The fact that Rice was on parole and
obviously had committed other crimes may have undermined the credibility of his defense
and led some jurors to return a conviction on one of the two counts. Accordingly, I would
reverse and remand this case for a new trial.
____________
108 Nev. 46, 46 (1992) Damus v. Avis Rent A Car
CHARLES DAMUS, Appellant, v. AVIS RENT A CAR SYSTEM, INC., Respondent.
No. 21672
January 24, 1992 824 P.2d 283
Appeal from an order of the district court that vacated an order changing venue. Second
Judicial District Court, Washoe County; Charles M. McGee, Judge.
Plaintiff brought suit against defendant to recover for property damage. Defendant
obtained change of venue to transferee court. Plaintiff then brought motion in transferor court
to vacate order changing venue.
changing venue. The district court vacated order changing venue, and defendant appealed.
The supreme court held that transferor court relinquished jurisdiction over all further
proceedings, including motion to vacate, by transferring venue to transferee court.
Vacated and remanded.
Charles M. Damus and Joel M. Cooper, Las Vegas, for Appellant.
Paul J. Williams, Reno, for Respondent.
1. Venue.
Change of venue to county in which defendant resided at time of commencement of action was proper. NRS 13.040.
2. Venue.
Once court ordered entered venue transferred, it relinquished jurisdiction over all further proceedings, including subsequent
motion by plaintiff to vacate venue transfer order. NRS 13.050, subd. 3.
3. Venue.
Plaintiff should have directed motion to vacate change of venue to court of transferee county. NRS 13.050, subd. 3.
4. Venue.
In case in which party requesting change of venue failed to pay filing fee upon transfer, as required by rule, proper course of
conduct, when faced with opposing party's request to return file to transferor court, would have been for clerk of transferee court to
stamp file as received and to make formal demand upon party who commenced transfer to pay necessary fee, rather than acceding in
request to return file. NRS 13.050, subd. 3, 19.013, subds. 1, 2, 19.060.
OPINION
Per Curiam:
On May 8, 1990, respondent Avis Rent A Car System, Inc., filed in the Second Judicial
District Court for Washoe County a complaint for property damage against appellant Charles
Damus. Appellant allegedly caused an automobile accident in Las Vegas which resulted in
approximately $4,600.00 damage to a vehicle owned by respondent.
On May 21, 1990, appellant filed in the Second Judicial District Court for Washoe County
an unopposed demand and motion for change of venue on the ground that the accident
occurred in Clark County and that he resides in Clark County. On June 13, 1990, Second
Judicial District Court Judge Charles M. McGee entered an order granting appellant's motion
and changing venue to the Eighth Judicial District Court for Clark County. He ordered the
action transferred and the files forwarded to the Clerk of the Eighth Judicial District Court.
ordered the action transferred and the files forwarded to the Clerk of the Eighth Judicial
District Court. Respondent did not appeal the order changing venue.
On September 20, 1990, respondent filed in the Second Judicial District Court a motion to
vacate or withdraw the order changing venue on the ground that appellant refused to pay a
filing fee to the Clerk of the Eighth Judicial District Court as required by NRS 19.013(1). The
Clerk of the Eighth Judicial District Court had, on August 13, 1990, returned the case file to
the Second Judicial District Court at the request of respondent's attorney.
On October 9, 1990, Judge McGee granted respondent's motion to vacate. Accordingly,
the court vacated its previous order changing venue to the Eighth Judicial District Court and
ordered the action returned to the Second Judicial District Court. This timely appeal followed.
[Headnote 1]
Preliminarily, we note that Clark County is the proper venue for commencement of this
action. Pursuant to NRS 13.040, an action shall be tried in the county in which the
defendants . . . may reside at the commencement of the action . . . . No one disputes that
appellant was and is a resident of Clark County. Thus, appellant properly moved for, and the
district court properly granted, a change of venue from Washoe County to Clark County. See
Halama v. Halama, 97 Nev. 628, 637 P.2d 1221 (1981) (NRS 13.040 does not permit
exercise of discretion by district court).
[Headnotes 2-4]
Appellant contends that once the Second Judicial District Court ordered venue changed, it
lost jurisdiction over the case because, [w]hen the place of trial is changed, all other
proceedings shall be had in the county to which the place of trial is changed . . . . NRS
13.050(3). We agree. Once venue was ordered transferred, the Second Judicial District Court
relinquished jurisdiction over all further proceedings, including respondent's motion to
vacate. From that point on, jurisdiction was in the transferee court. Therefore, respondent's
motion should have been directed to the Eighth Judicial District Court. Cf. Stocks v. Stocks,
64 Nev. 431, 183 P.2d 617 (1947) (once venue is transferred, only the transferee court has
jurisdiction over further proceedings); Williams v. Keller, 6 Nev. 141 (1870) (when the
movant is clearly entitled to a change of venue under the statute, any subsequent proceedings
should be had in the transferee court; motion for change of venue deprived original court of
all jurisdiction except to decide appellant's residence and to transfer the case).
appellant's residence and to transfer the case). Because the Second Judicial District Court
lacked jurisdiction to entertain the motion to vacate its previous order changing venue, it
erred in granting respondent's motion.
1

We have considered appellant's remaining contentions and have determined that they are
without merit. In addition, we decline the parties' invitations to impose sanctions.
Accordingly, we vacate the order of the district court vacating its previous order changing
venue, and we remand this matter to the Second Judicial District Court with instruction to
transfer the matter to the Eighth Judicial District Court.
____________
108 Nev. 49, 49 (1992) State v. Gattuso
THE STATE OF NEVADA, Appellant, v. PETER GATTUSO, Respondent.
No. 21613
January 24, 1992 825 P.2d 569
Appeal from an order of the district court dismissing a criminal complaint charging
appellant with felony escape from lawful confinement. First Judicial District Court, Carson
City; Michael R. Griffin, Judge.
Eleven months after his recapture, prisoner was charged with felony escape from lawful
confinement. The district court dismissed criminal complaint, and state appealed. The
supreme court held that neither prisoner's Sixth Amendment right to speedy trial, nor
statutory right of arrested person to be brought before magistrate without unnecessary delay,
was violated by eleven-month delay between prisoner's recapture and filing of criminal
complaint.
Frankie Sue Del Papa, Attorney General and Stuart J. Newman, Deputy, Carson City, for
Appellant.
__________

1
Pursuant to NRS 19.013(1), appellant, as the party commencing the transfer, is responsible for paying the
fee upon transfer. We note, however, that the Clerk of the Eighth Judicial District Court acted improperly in
returning, at respondent's request, the case file to the county from which it was transferred. See NRS 13.050(3)
(upon change of venue, all other proceedings shall take place in transferee court and papers shall be filed or
transferred accordingly). Thus, the proper course of conduct would have been for the Clerk of the Eighth
Judicial District Court to stamp the file as received and to make formal demand upon appellant to pay the
necessary fee. NRS 19.013(2); 19.060.
James J. Jackson, State Public Defender and James P. Logan, Deputy, Carson City, for
Respondent.
1. Arrest.
Prisoner's recapture was continuation of lawful custody in state penitentiary and not arrest.
2. Arrest.
Requirement in statute that arrested person be brought before magistrate without unnecessary delay was not applicable to
prisoner's recapture following escape from state penitentiary, inasmuch as prisoner's recapture was continuation of lawful custody and
not arrest. NRS 171.178.
3. Indictment and Information.
Eleven-month delay in charging prisoner with felony escape from lawful confinement did not violate statutory right to be brought
before magistrate without unnecessary delay. NRS 171.178.
Prisoner's Sixth Amendment right to speedy trial was not violated by eleven-month delay between his recapture and filing of
criminal complaint charging him with felony escape from lawful confinement, inasmuch as prisoner's recapture was not arrest but
simply continuation of custody lawfully granted correctional institution by sentencing court, and delay occurring prior to formal charge
did not of itself constitute violation of Sixth Amendment right to speedy trial. U.S.C.A.Const. amend. 6.
Even assuming that prisoner's Sixth Amendment right or statutory right to speedy trial was called into play by eleven-month delay
between his recapture and filing of criminal complaint charging him with felony escape from lawful confinement, prisoner failed to
show any prejudice, such as would have supported dismissal of complaint, where he did not show that he actually suffered any
detriment to his condition of incarceration, or that any such detriment resulted from delay in formally charging him with crime of
escape, rather than from appropriate prison discipline. NRS 171.178; U.S.C.A.Const. amend. 6.
OPINION
Per Curiam:
This is an appeal from an order of the district court dismissing a criminal complaint
charging appellant with felony escape from lawful confinement.
On February 21, 1989, respondent Peter Gattuso, an inmate at the Nevada State Prison,
escaped from the custody of correctional officers transporting him to a medical office in
Carson City. After a chase involving gunshots in a residential area, Gattuso was recaptured in
the back yard of a residence in Carson City. On January 19, 1990, almost eleven months later,
a criminal complaint alleging escape and other charges was filed in the Justice's Court of
Carson City Township. A warrant for Gattuso's arrest was issued on January 24, 1990.
was issued on January 24, 1990. Gattuso was brought before a magistrate on March 23, 1990,
about two months after the criminal complaint was filed and fourteen months after he escaped
and was apprehended. On April 5, 1990, at the preliminary hearing, counsel for Gattuso orally
moved to dismiss the complaint on the grounds of pre-accusation delay. A decision on the
motion was deferred to the district court.
On August 2, 1990, Gattuso filed in the district court a motion to dismiss. On September
14, 1990, the district court held a hearing on the motion, at which neither party presented
evidence. At the hearing the district court asked the deputy attorney general to explain the
eleven-month delay in filing a complaint against Gattuso. The deputy attorney general stated
that he had no evidence and could offer no excuse. He explained, however, that the delay
resulted from the slow referral of the case by prison officials to the attorney general's office
for prosecution. The district court noted that the offense had occurred in a Carson City
neighborhood, not at the prison. On September 26, 1990, the district court entered an order
granting the motion and dismissing the complaint. This appeal followed.
The district court dismissed the complaint based on its findings that the delay in
prosecuting Gattuso constituted a violation of Gattuso's constitutional right to a speedy trial
and of the statutory requirement that an arrested person be brought before a magistrate
without unnecessary delay. See U.S. Const. amend VI; NRS 171.178. The district court found
that Gattuso was prejudiced by the delay because he suffered more restrictive custody, his
ability to earn good time credits was abridged, the duration of his imprisonment may increase
and the conditions under which he must serve his sentence were greatly worsened. Further,
the district court found that the state had not shown good cause for the delay, and that the
delay was caused by the state's conscious indifference to Gattuso's speedy trial right.
[Headnotes 1-4]
The state contends that the district court erred in dismissing the criminal complaint filed
against Gattuso. We agree. This court has previously held that the apprehension of a prisoner
is not an arrest within the meaning of NRS 171.178. Rather, it is simply a continuation of the
custody granted to the correctional institution by the sentencing court. Bushnell v. State, 97
Nev. 591, 592-93, 637 P.2d 529, 530 (1981). Likewise, the United States Supreme Court has
held that delay which occurs before a person is arrested or formally charged does not of itself
constitute a violation of the Sixth Amendment right to a speedy trial. United States v.
Lovasco, 431 U.S. 783 (1976); United States v. Marion, 404 U.S. 307, 313-23 (1971). The
fact that Gattuso made good his escape and was recaptured while at large in the community
does not distinguish this case from Bushnell, where the defendants were apprehended in
an "off limits" area of the correctional institution.
and was recaptured while at large in the community does not distinguish this case from
Bushnell, where the defendants were apprehended in an off limits area of the correctional
institution. The defendants in both Bushnell and this case were under an uninterrupted lawful
sentence of confinement at all relevant times.
Further, NRS 171.178 does not require reversal absent a showing that the delay caused the
defendant to suffer prejudice or deprived him of a fair trial. Bushnell, 97 Nev. at 593, 637
P.2d at 530 (citing Tellis v. Sheriff, 85 Nev. 557, 459 P.2d 364 (1969)). Similarly, the
Supreme Court has explained that a defendant can obtain relief from preaccusation delay that
does not exceed the applicable statute of limitations only if he can show that the delay
prejudiced his ability to obtain a fair trial or that prosecution was delayed to gain some
tactical advantage over him or to harass him. Marion, 404 U.S. at 325.
Because Gattuso's recapture was a continuation of lawful custody and not an arrest, the
requirement in NRS 171.178 that an arrested person be brought before a magistrate without
unnecessary delay was not applicable. Similarly, Gattuso's Sixth Amendment right to a
speedy trial was not violated. Thus, those provisions do not authorize dismissal of the
criminal complaint filed against Gattuso. See Marion, 464 U.S. at 323, Bushnell, 97 Nev. at
592-93, 627 P.2d at 530.
[Headnote 5]
Further, the district court's finding that Gattuso was prejudiced is not supported by any
evidence in the record on appeal. No evidence was presented to the district court at the
hearing on the motion to dismiss, and the district court noted in its order that its findings
were based on the arguments and briefs of counsel. Gattuso has not shown that he actually
suffered any detriment in his condition of incarceration, or that any such detriment resulted
from the delay in formally charging him with the crime of escape, rather than from
appropriate prison disciplinary action. The record does not contain any evidence that the
delay in filing formal charges diminished Gattuso's ability to obtain a fair trial, that the delay
was intended to oppress Gattuso or gain some advantage over him, or that Gattuso suffered
any actual prejudice caused by the delay. Therefore, the district court erred in dismissing the
criminal complaint. See Marion, 464 U.S. at 323, Bushnell, 97 Nev. at 592-93, 637 P.2d at
530.
Accordingly, we vacate the order of the district court dismissing the criminal complaint
filed against Gattuso and remand this matter for further proceedings.
____________
108 Nev. 53, 53 (1992) McNair v. State
KIMBLE McNAIR, II, M.D., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20127
January 24, 1992 825 P.2d 571
Appeal from judgment of conviction of six counts of sexual assault. Eighth Judicial
District Court, Clark County; Thomas A. Foley, Judge.
Defendant, licensed physician specializing in obstetrics and gynecology, was convicted in
the district court of six counts of sexual assault, committed against patients, and he appealed.
The supreme court held that there was sufficient evidence of patients' lack of consent to
support convictions.
Affirmed.
William H. Smith and Annette R. Quintana, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, and
John P. Lukens, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
It is jury's function, not that of court, to assess weight of evidence and determine credibility of witnesses.
2. Criminal Law.
In criminal case, verdict supported by substantial evidence will not be disturbed by reviewing court.
3. Rape.
Physical force is not necessary element in commission of crime of rape; statute requires only commission of act of sexual
penetration against will of victim. NRS 200.366(1).
4. Rape.
Rape victim is not required to do more than her age, strength, and surrounding facts and attending circumstances would
reasonably dictate as manifestation of her opposition; in other words, whether victim manifested opposition or did in fact consent
depends on facts of particular case. NRS 200.366(1).
5. Rape.
Submission is not equivalent of consent, for purposes of offense of rape; lack of protest by victim is simply one among totality of
circumstances to be considered by trier of fact. NRS 200.366(1).
6. Rape.
When physician succeeds in penile penetration of a patient under guise of performing medical examination, sexual assault is
committed by fraud and deceit and without victim's consent. NRS 200.366(1).
7. Rape.
Sufficient evidence of sexual penetration against victim's will exists under Nevada's sexual assault statute when penetration is
accomplished under pretext of medical treatment and without victim's foreknowledge or consent; penetration occurs against victim's
will or without her consent when, for any reason, victim is not in position to exercise independent judgment concerning act of sexual
penetration. NRS 200.366(1).
8. Rape.
There was sufficient evidence of patient's lack of consent to support physician's conviction of sexual assault for penile penetrations
effected during gynecological examinations, despite patients' lack of protest, considering patients' trust and vulnerability, and similarity
in their testimony regarding assaults. NRS 200.366(1).
9. Jury.
Prosecutor may not purposefully discriminate on basis of race in selection of petit jury. U.S.C.A.Const. amend. 14.
10. Jury.
Prospective juror's connection with defendant's spouse through her church activity was facially neutral, nonpretextual reason for
exercise of peremptory challenge to exclude juror, so that exclusion was not Batson violation. U.S.C.A.Const. amend. 14.
11. Jury.
Jury's verdict was not improperly influenced by juror's suddenly remembering, during deliberations in sexual assault prosecution,
that her biological mother had been sexually molested thirty-seven years earlier, where jury simply noted fact in passing and did not
improperly dwell upon it.
12. Criminal Law.
Question determinative of claim of judicial bias is whether trial umpire's misadventures are so pervasive and of such magnitude
that trial ambiance is discernibly unfair to defendant when viewed from cold record on appeal.
13. Criminal Law.
Friction displayed during trial between judge and defense counsel, relating to attempts to bait judge, using disrespectful body
language toward judge, and reacting to adverse rulings from bench by use of profanity sotto voce, did not create impression of judicial
bias prejudicial to defendant; departures from strict judicial impartiality were brief episodes within context of entire six weeks of trial.
OPINION
Per Curiam:
Appellant, Kimble McNair, a licensed physician specializing in obstetrics and gynecology,
was convicted of six counts of sexual assault and sentenced to four consecutive and two
concurrent life sentences. His victims were also his patients. McNair raises several issues on
appeal, but most insistently contends that the evidence does not support a finding of lack of
consent, an element essential to his convictions. Our review indicates that McNair was fairly
tried and convicted. We therefore affirm.
The Facts
McNair, a graduate of Stanford University School of Medicine, was a solo practitioner in
obstetrics and gynecology. Each of the assaults at issue occurred in McNair's medical offices
during a period extending from 1984 through 1988 and were strikingly similar in the methods
by which they were accomplished. The patients-victims testified that they were assaulted
during the routine course of medical examinations conducted in McNair's examining room.
The victims testified that McNair asked them to bend over a chair, or to squat in front of him,
or he would bend them over by exerting pressure on the small of their backs. Unfortunately,
the trusting patients discovered that they had unwittingly positioned themselves for an anal
penile penetration by their physician.
1
The patients testified that McNair inserted his penis,
or his finger and then his penis, into their recta while they were in the orchestrated positions
of vulnerability.
2

A more detailed review of the facts surrounding the victim who triggered McNair's arrests
is helpful to our legal analysis. On January 2, 1988, McNair completed a gynecological
examination of Elizabeth, which included a breast, pelvic and rectal examination. During the
latter exam, McNair wore a glove and used a lubricant. Elizabeth was dressed in a
hospital-type gown open in the back. She had asked for this particular appointment and
examination after noticing a dark discharge from her breast. McNair had been her trusted,
treating gynecologist for well over a year. After this examination, she was relieved to find out
that there was probably nothing seriously wrong. Impulsively, Elizabeth asked to hug her
doctor. According to Elizabeth's testimony, McNair suggested that he check her again to see
if I hurt you. He thereafter put on another glove, and proceeded to move his finger in and out
of her rectum. McNair then moved her to an examining table, positioned her over the table,
inserted his penis into her anus, and ejaculated. Elizabeth did not push him away.
Immediately after leaving McNair's offices, Elizabeth called her therapist. After some
reluctance, and repeated showers and baths, Elizabeth went to a rape crisis center and a
hospital emergency room. The physical examination revealed no trauma. After further
prodding, Elizabeth reported the assaults to the Las Vegas Metropolitan Police Department.
The police fitted her with a body wire for her next visit to McNair's offices.
__________

1
The patients testified that McNair's nurse, a defense witness, left the examination room shortly after
McNair had ostensibly concluded his examination. The assaults took place in the one examining room which had
a windowless door. McNair's wife also worked regularly in his front office and supervised his office records.

2
Eight of McNair's patients testified at trial. McNair was acquitted of five counts concerning four of the
patients. One count was dismissed.
a body wire for her next visit to McNair's offices. During this visit, Elizabeth repeatedly
confronted McNair about the assault. The record reveals that he insisted to her that nothing
like this had happened before and that he was a happily married man of sixteen years. The
record also reveals that McNair apparently sought to soften Elizabeth's antagonism toward
him by emotionally suggesting that he was suicidal over the incident.
3

After McNair's arrest, other patients and victims voluntarily came forward to the police.
Elizabeth was the only victim involved in the instant appeal who reported McNair's criminal
conduct contemporaneously to law enforcement authorities. Two victims reported McNair's
crimes to their therapists, who corroborated the victims' testimony at trial.
Legal Discussion
[Headnotes 1, 2]
The standard of review in a criminal case is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319 (1979); Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984). The established
rule is that it is the jury's function, not that of the court, to assess the weight of the evidence
and determine the credibility of witnesses. Walker v. State, 91 Nev. 724, 726, 542 P.2d 438,
438-39 (1975). In a criminal case, a verdict supported by substantial evidence will not be
disturbed by a reviewing court. Nix v. State, 91 Nev. 613, 614, 541 P.2d 1, 2 (1975); Sanders
v. State, 90 Nev. 433, 434, 529 P.2d 206, 207 (1974).
The primary issue raised on appeal is whether the State met its requisite burden of proving
that the sexual acts occurred without the consent of the victims. NRS 200.366.
4
McNair
insists that where the victim is capable of understanding or resisting the sexual advances,
there must be a demonstrable objective manifestation of protest which is reasonable under the
circumstances. Our legal inquiry into the issue of nonconsent, an essential element of sexual
assault, encompasses two aspects: {1) whether the circumstances surrounding the
incidents indicate that the victims had reasonably demonstrated their lack of consent and
{2) whether it was reasonable from the point of view of the perpetrator to conclude that
the victims had manifested consent.
__________

3
An enhanced audio tape of the entire conversation between Elizabeth and McNair was played to the jury.

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.
element of sexual assault, encompasses two aspects: (1) whether the circumstances
surrounding the incidents indicate that the victims had reasonably demonstrated their lack of
consent and (2) whether it was reasonable from the point of view of the perpetrator to
conclude that the victims had manifested consent.
[Headnote 3]
We initially note that Nevada's statute does not explicitly require the use of overt force as
an element of sexual assault. Physical force is not a necessary element in the commission of
the crime of rape. Dinkens v. State, 92 Nev. 74, 77, 546 P.2d 228, 230 (1976).
5
Our statute
only requires the commission of the act of sexual penetration against the will of the victim.
Id.
[Headnote 4]
A rape victim is not required to do more than her age, strength, and the surrounding facts
and attending circumstances would reasonably dictate as a manifestation of her opposition.
Id. at 78, 546 P.2d at 230. In other words, whether the victim manifested opposition or did in
fact consent, depends on the facts of the particular case.
[Headnote 5]
Submission is not the equivalent of consent. Tryon v. State, 567 P.2d 290, 293 (Wyo.
1977). While consent inevitably involves submission, submission does not inevitably involve
consent. Id. Lack of protest by a victim is simply one among the totality of circumstances to
be considered by the trier of fact. See State v. Thomas, 510 P.2d 1137, 1139 (Wash.Ct.App.
1973).
[Headnote 6]
The record in the instant case reveals that in almost every instance the victims had no
opportunity to voice their consent or objection to McNair's assaults. When a physician
succeeds in the penile penetration of a patient under the guise of performing a medical
examination, a sexual assault is committed by fraud and deceit and without the victim's
consent. See R. Perkins & R.
__________

5
The concept that a woman consents unless she resists to the limits of her strength was discarded long ago.
See State v. Thomas, 520 P.2d 1137, 1140 (Wash.Ct.App. 1973); see also People v. Bermudez, 157 Cal.App.3d
619-625 (Cal.Ct.App. 1984) (the legislature has shifted the statutory focus from the quality of physical resistance
to the overbearing of the victim's will). The law has good reason to require proof of physical force or threats of
bodily injury in ambiguous circumstances arising between acquaintances whose intentions can be misinterpreted.
Bermudez, 157 Cal.App.3d at 622. However, a criminal invasion of sexual privacy does not become a nonrape
merely because the victim is too fearful or hesitant to say something to the effect that I guess you know I don't
want you to do this.' Id.
Boyce, Criminal Law 1080 (3rd ed. 1982). In such cases the unlawful intercourse is rape for
the very sufficient reason that it was without the woman's consent. She consented to one
thing, he did another materially different . . . .' Id. (quoting The Queen v. Flattery, 2 Q.B.D.
410, 413 (1887)). Accord, 3 C. Torcia, Wharton's Criminal Law 290 (14th ed. 1980). See,
e.g., Annot., Conviction of Rape or Related Sexual Offenses on Basis of Intercourse
Accomplished Under the Pretext of, or in the Course of, Medical Treatment, 65 A.L.R.4th
1064 (1988 & Supp. 1990).
We note approvingly that one court has persuasively stated that when a doctor has
obtained sexual intercourse by means of fraud, legally recognized consent is negated:
It would indeed be a reproach upon our statute if a physician, under the pretense that
it was necessary for a woman patient to submit to examination of her sexual organs in
order to assist him in the diagnosis of her ailment, and under the pretense that it was
necessary for her to expose her person and to assume a position which, at the same
time, incidently afforded ready opportunity for sexual attack, could safely take
advantage of her position and make an unexpected and uninvited sexual invasion of her
person. If, under such circumstances, a physician takes such an unconscionable
advantage of the woman's position, and, to her complete surprise, and without the
slightest ground to assume that he has her consent, violates the trust and confidence
imposed in him and perverts her position and his opportunity into an uninvited and
cowardly attempt to gratify his lust, the force merely incident to penetration should be
deemed sufficient force within the meaning of our rape statute.
People v. Borak, 301 N.E.2d 1, 4 (Ill.App.Ct. 1973) (quoting State v. Atkins, 292 S.W. 422,
426 (Mo. 1926)).
[Headnote 7]
We hold that sufficient evidence of sexual penetration against the victim's will exists under
Nevada's statute when the penetration is accomplished under a pretext of medical treatment
and without the victim's foreknowledge or consent. Id. at 5. Moreover, penetration occurs
against the victim's will or without her consent when, for any reason, the victim is not in a
position to exercise an independent judgment concerning the act of sexual penetration.
6
Wilson v. State, 655 P.2d 1246, 1258 (Wyo. 1982).
__________

6
We note further that mere gestures of affection should not be construed as invitations to an assault. A useful
analysis is found in State v. Myers, 606
At oral argument, McNair contended vigorously that to find consent under the
circumstances would amount to judicial legislation. We disagree. The language of our statute
is sufficiently broad and explicit to encompass conduct involving an act of sexual penetration
occurring as a result of fraud and deceit in the course of a medical examination and without
the consent of the patient. The statute's reference to victims incapable of resisting or
understanding the nature of . . . [the perpetrator's] conduct
7
is also applicable to the conduct
occurring here, where the trusting patients were unable to resist because the sexual
penetration was initiated by subterfuge and without the foreknowledge of the victims.
[Headnote 8]
Moreover, under the totality of the circumstances present in McNair's case, it was
unreasonable for the trusted physician to believe that his patients had in fact consented to his
sudden sexual invasions. To the contrary, the record substantially reflects that McNair abused
his professional status and trust during medical examinations that were staged to exploit his
unsuspecting and vulnerable patients and gratify his personal sexual desires. The record
reveals that McNair's conduct was both repetitive and predatory.
As a gynecologist, McNair held a position of trust and respect reserved for members of the
medical community. His patients came to his office on the premise that they would receive
ethical, professional medical treatment for their ailments. These competent adult patients
approached their medical appointments in a compliant attitude of cooperation in order to
receive effective medical attention. They disrobed in good faith as patients, not as their
trusted physician's objects of sexual gratification. They followed the directions of their
physician in positioning their bodies for examination. In good faith they allowed themselves
to be alone with their doctor in an examining room. Their testimony is that of victims
criminally betrayed by McNair as he misused his professional status and trust to place his
patients in situations where they became his vulnerable and unsuspecting prey. Any belief by
McNair that his patients consented to his sexual behavior by not instantly resisting, would be,
on this record, patently unreasonable.
__________
P.2d 250 (Utah 1980). The law does not justify a conclusion that if a woman is friendly' in accepting the
proffered hospitality of a man for food and drink, and engages in necking,' . . . and that this persists over a
period of time, she loses her right to protest against further advances the man may decide to force upon her; and
thereby subjects herself to such advances and should be deemed to consent to intercourse if he, but not she, so
desires. Id. at 252.

7
See footnote 4.
unreasonable. See Scadden v. State, 732 P.2d 1036, 1043 (Wyo. 1987) (a person of ordinary
sensibilities when occupying a position of authority clearly should have known that his
conduct was forbidden).
Experts for the State testified that patients become intensely confused when they are
sexually assaulted by a trusted health care professional. Ann Burgess, professor of psychiatric
mental health nursing at the University of Pennsylvania School of Nursing in Philadelphia,
described the type of assault at issue as the confidence style assault. Victims experience
feelings of betrayal and confusion which take a considerable time to sort out. According to
the witness, one of the characteristics of an assault of this nature is delayed reporting.
8

McNair testified extensively in his own defense. His insistence that Elizabeth had seduced
and aggressively pursued him was diametrically opposed to her own sworn testimony on the
witness stand. The demeanor and credibility of the complaining witnesses and McNair was
pivotal to the proceedings below.
Whether McNair's sexual advances occurred with the consent of his complaining patients
presented questions of fact for the jury to decide from all the evidence it had a right to
consider.
9
See Thomas, 510 P.2d at 1139. Under certain circumstances, a lack of protest may
properly be viewed as evidence of consent. In this case, the jury decided from all the
surrounding circumstances that the victims' lack of protest was not evidence of consent.
__________

8
See A. W. Burgess & C. Hartman, Sexual Exploitation of Patients by Health Professionals (1986). Victims
of sexual exploitation by a health professional will turn for help to professionals in psychiatry, social services
and the law. Id. at 43. Often, the inaction of individuals with knowledge of the exploitation allowed the
offending health professionals to continue their abusive behaviors at the expense of additional victims. Id.
Delayed reporting is a problem endemic to the crime of sexual assault. It is possible if not probable that the
prestige of McNair's position contributed to the victim's delay in reporting the sexual assaults. One
seventeen-year-old victim testified to the disbelief of one of her parents who thought she must have
misunderstood something. The parent returned her to McNair's care, accompanied by a sibling.

9
Only one victim had advance notice of appellant's predatory urges. After an initial assault, the victim
returned to McNair in order to secure a promised letter concerning her physical health which she needed in order
to seek reemployment with an employer which had recently terminated her. Assaulted a second time, she did not
push McNair away. She testified to being in great disarray at the time due to the influence of narcotics. The first
sexual assault by McNair had further entrenched her addiction. She testified that her reaction at the time of the
first assault was not to immediately report the assault to police but to attempt to obliterate the effect of the sexual
assault with an increased ingestion of cocaine. On the issue of lack of consent, it was for the jury to determine
the weight and credibility of such testimony. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981);
Hankins v. State, 91 Nev. 477, 477, 538 P.2d 167, 168 (1975).
case, the jury decided from all the surrounding circumstances that the victims' lack of protest
was not evidence of consent. A sharp conflict in the evidence confronted the jury, and it was
within the jury's province to resolve the evidence against the physician. See People v.
Ogunmola, 193 Cal.App.3d 274, 281 (Cal.Ct.App. 1987) (the jury or judge may resolve
conflicting testimonial evidence that an obstetrician/gynecologist raped two patients although
the physician claimed that the configuration of the examining room made such events highly
unlikely); Story v. State, 721 P.2d 1020, 1026 (Wyo.), cert. denied, 479 U.S. 962 (1986) (it
was the function of the jury to resolve a testimonial dispute as to whether a patient had been
sexually assaulted in the course of medical examination); People v. Minkowski, 204
Cal.App.2d 832, 843 (Cal.Dist.Ct.App. 1962) (adverse inferences could be drawn from
evidence of the circumstances and methodology of the medical examination and the unusual
behavior of the doctor).
Persuasive corroborative evidence supports McNair's convictions. The victims did not
know each other. Yet they testified to similar sexual assaults accomplished under the guise of
medical examination at McNair's private offices and under similar circumstances.
Circumstantial evidence alone may sustain a conviction. Deveroux v. State, 96 Nev. 388, 391,
610 P.2d 722, 724 (1980); Crawford v. State, 92 Nev. 456, 457, 552 P.2d 1378, 1379 (1976).
The assaults all took place in the course of the physician-patient relationship. The jury was
free to determine that McNair had used the physician-patient relationship to find his victims
and to satisfy his predatory sexual desires. Our review of the record reveals substantial
evidence in support of the jury's verdicts.
10
See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20,
20 (1981).
[Headnotes 9, 10]
McNair also contends that he was prejudiced by a constitutionally prohibited exercise of a
racially biased peremptory challenge by the prosecutor during the selection of the trial jury.
Under Batson v. Kentucky, 476 U.S. 79 (1986), a prosecutor may not purposefully
discriminate on the basis of race in the selection of the petit jury. Id. at 96-97. Here, the
prosecutor peremptorily removed one black juror and voiced no objection to the seating of
another.
__________

10
McNair also contends that his actions are simply of ethical concern suitable for resolution by the medical
society. Those who commit criminal acts risk criminal prosecution as a protective measure against further injury
to the public. Although some of the same concerns may overlap, professional disciplinary procedures have a
different purpose and are chiefly concerned with maintaining the integrity and standards of the profession.
another. The prosecutor challenged the one black juror because he had a direct connection
with McNair's wife through her church activity. After careful review, we are persuaded that
the prosecutor offered facially neutral, nonpretextual reasons for the challenge. McNair did
not establish a prima facie Batson violation requiring an evidentiary hearing. See Clem v.
State, 104 Nev. 351, 355, 760 P.2d 103, 105 (1988), overruled on other grounds, 106 Nev.
571, 798 P.2d 548 (1990).
[Headnote 11]
McNair also claims that the trial court erred in failing to replace a juror who, during the
jury's deliberations, suddenly remembered that her biological mother had been sexually
molested. The record indicates that the juror had lived with her father from the age of nine;
that the incident occurred thirty-seven years previously; that the juror had not discussed the
incident in ten years; that the juror had never been apprised of the details; and that the
deliberating jury simply noted the fact in passing and did not improperly dwell upon this
extraneous matter. We conclude that the jury's verdict was not improperly influenced under
the circumstances. See Hale v. Riverboat Casino, Inc., 100 Nev. 299, 305, 628 P.2d 190, 193
(1984).
[Headnote 12]
Next, McNair contends that he was denied due process by a biased and hostile judge. We
have said that a trial judge must not only be totally indifferent as between the parties, but he
must also give the appearance of being so. Kinna v. State, 84 Nev. 643, 647, 447 P.2d 32, 35
(1968). However, it has also been recognized that few trials are totally devoid of inadvertent
remarks or actions by a trial judge which may seem inappropriate when later examined in
the calm cloisters of the appellate court. United States v. Polizzi, 500 F.2d 856, 892 (9th Cir.
1974), cert. denied, 419 U.S. 1120 (1975). The question is whether the trial umpire's
misadventures are so pervasive and of such a magnitude that the trial ambiance is discernibly
unfair to the defendant when viewed from the cold record on appeal. Id.
[Headnote 13]
At oral argument, the state noted that McNair's counsel attempted to bait the judge, a fact
also noted in the record by the trial judge himself. The state also apprised this court of the use
by defense counsel of assertedly disrespectful body language toward the district court judge.
The record indicates, in addition, that McNair's counsel reacted to adverse rulings from the
bench by the use of profanity sotto voce.11 Such courtroom comportment can never be
fully captured by the record.12
the use of profanity sotto voce.
11
Such courtroom comportment can never be fully captured
by the record.
12

We note with commendation and approval, that following one incident in regard to
McNair's counsel, the trial judge apologized to the jury for his outburst and properly
cautioned the jury. The jury was properly instructed in its duty to follow the law and the
instructions as provided by the court.
The interaction between litigants, counsel and the district court judge should be properly
viewed against the entire trial background, in this case a lengthy and trying six weeks, rather
than the myopic perspective afforded by isolated incidents.
13
It appears conclusively from
the record that McNair was given full ventilation of his defense at trial. We are persuaded that
the friction displayed during the trial did not create an impression of judicial bias prejudicial
to McNair's defense. The record reflects that the departures from strict judicial impartiality
were brief episodes within the context of the entire trial. See United States v. Nazzaro, 472
F.2d 302, 312-313 (2nd Cir. 1973).
We have fully examined the remaining issues raised by McNair and conclude that they are
without merit. For the reasons stated above, we affirm the convictions and sentences entered
by the district court.
__________

11
As one court observed [t]he human tendency to blame a trial judge for the jury's verdict of guilt is a
frailty we often encounter . . . . United States v. Nazzaro, 472 F.2d 302, 303 (2d Cir. 1973).

12
If the representations concerning defense counsel's trial behavior are accurate, the trial judge should
unhesitatingly report such behavior to the appropriate bar discipline board for investigation and possible
imposition of discipline. This court does not condone disrespectful courtroom conduct by lawyers licensed to
practice in Nevada courts.

13
When McNair's counsel tediously questioned Elizabeth about the type and color of her automobile, the
trial judge asked to see counsel in chambers. The record indicates that the trial judge had strong concerns over
the slow pace of the trial, and warned counsel that the jury was falling asleep. After repeated warnings to
appellant's counsel about the improper use of leading questions, the court imposed fines which were
subsequently lifted.
____________
108 Nev. 64, 64 (1992) City of Las Vegas v. Int'l Assoc. Firefighters
CITY OF LAS VEGAS, NEVADA, a municipal corporation of the State of Nevada,
Appellant/Cross-Respondent, v. INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS, LOCAL 1285, an unincorporated association,
Respondent/Cross-Appellant.
No. 21277
January 24, 1992 824 P.2d 285
Appeal and cross-appeal from an order of the district court vacating an arbitration award.
Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.
City appealed from order of the district court, which vacated arbitrator's decision
upholding the motion of firefighter. The supreme court held that power of city under
collective bargaining agreement to discharge for discipline included the lesser power to
demote.
[Rehearing denied March 3, 1992]
Roy A. Woofter, City Attorney, and Richard Bortolin, Deputy City Attorney, Las Vegas,
for Appellant/Cross-Respondent.
Hilbrecht & Associates and Jeffrey E. Fisher, Las Vegas, for Respondent/Cross-Appellant.
1. Labor Relations.
Under Positive Discipline Manual, incorporated in collective bargaining agreement, allowing disciplinary actions consisting of
either oral reminder, written reminder, decision-making leave, or discharge, city had the authority to impose discipline of demotion;
power to discharge included the lesser power to demote.
2. Labor Relations.
Allegations of petty larceny could be considered by arbitrator in determining proper discipline for firefighter even though he was
not convicted because the store did not pursue the matter, where firefighter presented no exculpatory evidence.
OPINION
Per Curiam:
Scott Harris was a fire investigator with the Las Vegas Department of Fire Services (Fire
Department), a division of the City of Las Vegas (City), until October 16, 1988. On that day,
the Fire Department demoted Harris from fire investigator to firefighter. This disciplinary
action was prompted by three recent instances of misconduct.
of misconduct. First, Harris was observed using a computer terminal in a restricted fire
services records room in violation of an existing order. Second, Harris used profane language
over a Fire Department communications channel. Third, the Fire Department learned that
Harris had received a misdemeanor citation for petty larceny in May, 1988, for taking a
cordless telephone antenna from a Montgomery Ward store. Montgomery Ward chose not to
pursue the charge, and it was dismissed before Harris was demoted. Prior to these incidents,
Harris had been an exemplary employee for seventeen years.
After receiving the demotion notice, Harris filed a grievance, and was represented by the
International Association of Firefighters, Local 1285 (Local 1285), respondent herein. Local
1285 is a labor organization representing firefighters and fire investigators employed by the
City. Local 1285 and the City had negotiated a collective bargaining agreement (CBA)
covering firefighters and fire investigators. The CBA incorporated two sets of documents
dealing with discipline: the Fire Department's Rules and Regulations and the Positive
Discipline Manual.
Local 1285 invoked binding arbitration to challenge Harris' demotion, contending that
demotion was not an available disciplinary option under the CBA. Local 1285 also argued
that no just cause for demotion existed. The arbitrator rejected these claims and sustained the
City's decision demoting Harris.
The district court vacated the arbitration award on the basis that the arbitrator lacked
authority under the CBA to sustain the City's disciplinary demotion of Harris. The City
thereafter appealed from the district court's order vacating the arbitrator's award, and Local
1285 cross-appealed from that part of the order which allows the City to impose other
discipline on Harris consistent with the negotiated agreement. Local 1285 also challenges the
propriety of the arbitrator's consideration of petty larceny allegations for which Harris was not
convicted.
[Headnote 1]
We are persuaded that the arbitrator did not exceed his authority by sustaining the City's
demotion of Harris. It is true that the Positive Discipline Manual specifies four disciplinary
actions: oral reminder, written reminder, decision-making leave,
1
and discharge. Demotion
is not mentioned as an option. However, article 9(C) of the collective bargaining agreement
states:
The City and the Union recognize and understand that the Fire Department Rules
and Regulations are general in nature and shall not be considered all inclusive.
__________

1
Decision-making leave is given to an employee to decide whether he or she wants to continue working for
the organization in compliance with its rules.
Fire Department Rules and Regulations are general in nature and shall not be
considered all inclusive. No inference will be drawn from the absence of a rule in the
Fire Department Rules and Regulations.
It is thus seen that the established disciplinary framework was not inflexible. The City could
have discharged Harris for insubordination under the Positive Discipline Manual's provisions
for crisis discharge. In recognition of Harris' excellent record, the City chose to retain Harris
in a less sensitive position. Given the latitude recognized under article 9(C) of the CBA, we
must conclude that the power to discharge includes the lesser power to demote. We therefore
hold that the City acted within the purview of the CBA by choosing demotion over discharge.
See International Assoc. Firefighters v. City of Las Vegas, 107 Nev. 906, 823 P.2d 877
(1991).
Since demotion was an option available to the City, the arbitrator did not exceed his power
by sustaining Harris' demotion. Therefore, the district court erred in vacating the arbitration
award. NRS 38.145(1)(c).
[Headnote 2]
On cross-appeal, Local 1285 argues that the arbitrator improperly considered the
allegations of petty larceny against Harris in the absence of a conviction. At arbitration,
Harris denied that he intended to steal a cordless telephone antenna from Montgomery Ward.
However, the security manager of Montgomery Ward testified that she observed Harris, on
closed circuit TV, unscrew the telephone antenna and carry it off. The security manager
further testified that Harris signed a statement admitting he took the antenna after he was
confronted outside the store.
2
Harris presented no exculpatory evidence. The arbitrator
determined that the petty larceny incident was serious enough that preliminary discipline such
as a warning or reprimand was unnecessary.
Contrary to Local 1285's assertion, our decision in International Assoc. Firefighters v. City
of Las Vegas, 104 Nev. 615, 764 P.2d 478 (1988), does not prevent a public employee from
being disciplined for the underlying actions of a dismissed criminal charge.
__________

2
The security manager testified to the following conversation with Harris outside the store:
[Security manager]: I said I need to talk to you about the antenna you have in your hand. Would you
please give it back? He looked at me and he opened his hand up and the antenna was there and I took it
from him. I asked him to return to the store with us which he did, and as we were talking I said, Do you
have a cordless telephone that you own? And he said, Yes. I said, Is your antenna broken on your
phone? And he said, Yes. I said, That must be why you did this. And he said, Yes, it was stupid.
being disciplined for the underlying actions of a dismissed criminal charge. In International
Assoc. Firefighters, firefighter Williams was suspended because he faced criminal charges of
larceny. The district attorney dropped the charges after a witness was unable to identify
Williams as the perpetrator of the crime. Since the authorities dropped the charges against
Williams, we felt compelled to conclude that he didn't commit the crime. Id. at 621, 764 P.2d
at 482. In the instant action, however, the charges were not dismissed for lack of evidence.
Montgomery Ward simply chose not to demand prosecution, despite convincing evidence that
Harris took the antenna. A conviction of petty larceny was an unnecessary prerequisite to a
determination that Harris violated Fire Department Rules and Regulations requiring
employees to obey the law and conduct themselves so as to reflect credit on the department.
Moreover, despite overwhelming evidence against Harris, we note that the degree of proof
required in a criminal action is of greater magnitude than that required in a disciplinary
proceeding. See Thangavelu v. Department of Licensing & Regulation, 386 N.W.2d 584, 589
(Mich.Ct.App. 1986) (acquittal of criminal charges does not preclude disciplinary action for
same conduct as administrative proceedings differ in purpose and degree of proof required);
Flynn v. Board of Fire & Police Comm'rs, 342 N.E.2d 298, 304 (Ill.App.Ct. 1975) (sufficient
evidence existed to discharge police officer for unlawful conduct despite state's voluntary
dismissal of criminal charges.) The petty larceny incident was properly considered by the
arbitrator.
In view of our disposition of this appeal and cross-appeal, we decline to address other
issues raised by the parties.
For the reasons specified above, the decision of the district court is reversed and the matter
is remanded for entry of an order confirming the arbitration award sustaining the City's
demotion of Harris.
____________
108 Nev. 67, 67 (1992) Kazalyn v. State
JOSEPH ROBERT KAZALYN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21429
January 24, 1992 825 P.2d 578
Appeal from a judgment of conviction of murder with the use of a deadly weapon. Eighth
Judicial District Court, Clark County; Earle W. White, Jr., Judge.
Defendant was convicted in the district court of murder, enhanced for use of deadly
weapon, for death of his wife caused when he left her incapacitated in roadway and watched
while another vehicle struck her helpless form. On appeal, the supreme court held that: (1)
evidence was sufficient to support conviction; (2) automobile was not deadly weapon for
purposes of sentence enhancement statute; and (3) error in holding separate penalty hearing
was harmless.
Affirmed in part, vacated in part.
Morgan D. Harris, Public Defender, and R. Michael Gardner, Deputy Public Defender,
Clark County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex A. Bell, District Attorney,
James Tufteland, Deputy District Attorney, and Thomas Carroll, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Standard of review for sufficiency of evidence upon appeal is whether jury, acting reasonably, could have been convinced of
defendant's guilt beyond reasonable doubt; when there is substantial evidence to support jury's verdict, it will not be disturbed on
appeal.
2. Homicide.
Evidence indicating that defendant deliberately left his spouse incapacitated in roadway and watched while another vehicle struck
her helpless form was sufficient to support defendant's conviction of murder.
3. Criminal Law.
Decision to admit or exclude evidence, after balancing prejudice to defendant with probative value, is within discretion of trial
judge, whose determination will not be reversed absent manifest error. NRS 48.035.
4. Criminal Law.
Error was harmless in admitting in homicide prosecution statements made by defendant to police wherein he offered to take
polygraph examination to prove that his version of circumstances surrounding his wife's death was the truth, considering that such
evidence enhanced defendant's credibility.
5. Criminal Law.
Generally, disclosure that defendant was willing or unwilling to take lie detector test is inadmissible because it tends to prejudice
jury for or against defendant.
6. Criminal Law.
Strength of evidence against defendant is one criterion for determining whether admission of defendant's willingness or
unwillingness to take polygraph examination is prejudicial error; where there is strong evidence of guilt, disclosure of whether
defendant was willing to take lie detector test tends to be less prejudicial.
7. Criminal Law.
It is harmless error to admit defendant's statements regarding his willingness to take polygraph examination, where defendant
cannot show he was prejudiced by admission of those statements.
8. Criminal Law.
Evidence of prior misconduct is not admissible if its only relevance is to show that accused most likely committed crime because
he is of criminal character. NRS 48.045, subd. 2.
9. Criminal Law.
Any error in admitting, in prosecution of defendant for murdering his wife, defendant's statements that he had struck his wife on
one occasion prior to their marriage was harmless, considering strength of evidence against defendant. NRS 48.045, subd. 2.
10. Criminal Law.
Evidence of defendant's prior imprisonment could be admitted in prosecution of defendant for murdering his wife as relevant to
what happened on night of wife's death, where evidence was contained in defendant's statements explaining that he had left wife on
road, where she was struck by another vehicle and killed, because he was concerned about violating his parole and being sent back to
prison after he had just finished serving ten years. NRS 48.045.
11. Constitutional Law; Criminal Law.
Instruction on statutory definition of reasonable doubt satisfied requirements of due process. NRS 175.211, subd. 1;
U.S.C.A.Const. amend. 14.
12. Homicide.
Instructions given in homicide prosecution adequately distinguished between premeditation and malice aforethought.
13. Criminal Law.
Automobile is not deadly weapon within meaning of sentence enhancement statute; automobile which is used in manner
contemplated by its construction and design is not inherently dangerous and likely to cause life threatening injury or death. NRS
193.165.
14. Criminal Law.
Separate penalty hearing is appropriate only where death penalty is sentencing option. NRS 175.552.
15. Homicide.
Error in holding separate penalty hearing in homicide prosecution, when death penalty was not sentencing option, was not
reversible error, absent any showing of prejudice. NRS 175.552.
16. Criminal Law.
Instruction advising jury that defendant would be eligible for parole in ten years was not misleading, though defendant would have
been eligible for parole in twenty years under sentence enhancement submitted to jury, where it was determined on appeal that
defendant was not subject to that enhancement.
OPINION
Per Curiam:
FACTS
At approximately midnight on March 20, 1989, appellant Joseph Robert Kazalyn
(Kazalyn) and his bride of one month, Judy Pain Kazalyn, argued on the way home from a
dinner party. Kazalyn contends they argued about Mrs. Kazalyn's use of cocaine and the fact
that he threw her cocaine out of the car window.
cocaine and the fact that he threw her cocaine out of the car window. The argument resulted
in Mrs. Kazalyn exiting the car on Industrial Road near Las Vegas.
Subsequently, Dennis Sweeney (Sweeney) was driving on Industrial Road when he struck
an object lying in the roadway. Sweeney stopped his truck and backed up, discovering that he
had hit a woman. He got out of his truck and began looking for a vehicle to flag down for
assistance. Both Sweeney and his passenger, Pamela Anderson, noticed a car on the
southbound shoulder of the road, approximately 150 yards away, when the car's headlights
came on and began to approach Sweeney and the victim. Sweeney asked the driver of the car,
Kazalyn, to call the police. Sweeney became suspicious when he noticed a woman's purse
sitting on the passenger seat next to Kazalyn. Sweeney said, She was with you, wasn't she?
whereupon Kazalyn smiled and said, What's happening? Sweeney then left to call the
police.
Shortly thereafter, Anthony Montoya was travelling on Industrial Road when he saw a
body lying in the road. He pulled his truck over so that his headlights illuminated the body.
He noticed Kazalyn's car about five or ten yards away and went over to find out if the police
had been called. He thought Kazalyn was a bystander because Kazalyn did not display any
emotion. Montoya got a creepy feeling from Kazalyn and went back to his truck because he
did not want to be near Kazalyn.
Upon arriving at the scene, the police learned that the woman Sweeney ran over was
Kazalyn's wife, and that she had been a passenger in Kazalyn's vehicle. Kazalyn gave a series
of three statements to the police, in which he recounted different versions of the events
leading to his wife's death.
At the scene of the accident, two pools of Mrs. Kazalyn's blood were found. One pool was
found at the point of initial impact by Sweeney's truck, which was connected to the second
pool of blood by drag marks of blood and flesh. During an examination of Mrs. Kazalyn's
body, the police found a tire track on her right thigh which bore the general characteristics of
Kazalyn's left rear tire. Mrs. Kazalyn's face also showed signs of bruising, which the medical
examiner testified occurred prior to being hit by Sweeney's truck. Mrs. Kazalyn did not have
bruises on her face earlier that evening at the dinner party.
Kazalyn stood trial and was convicted by a jury of murder with the use of a deadly
weapon. A penalty phase was conducted, whereupon the jury sentenced the defendant to life
without the possibility of parole. The sentence was enhanced by a consecutive term of life
imprisonment without the possibility of parole for the use of a deadly weapon.
Issues on Appeal
On appeal, Kazalyn asserts the following errors: (1) there was insufficient evidence to
convict him of first degree murder; (2) statements made to the police regarding a polygraph
examination and prior bad acts should not have been admitted into evidence; (3) the jury
instruction on reasonable doubt violated his due process rights; (4) the jury instructions did
not adequately define premeditation; (5) the enhanced penalty for use of a deadly weapon was
improper; (6) a separate penalty hearing should not have been held; and lastly, (7) the district
court erred in informing the jury that with a sentence of life imprisonment with the possibility
of parole, Kazalyn would be eligible for parole in ten years, when he actually would be
eligible in twenty years.
DISCUSSION
I. Sufficiency of the evidence.
Standard of Review
[Headnotes 1, 2]
The standard of review for sufficiency of evidence upon appeal is whether the jury, acting
reasonably, could have been convinced of the defendant's guilt beyond a reasonable doubt.
Edwards v. State, 90 Nev. 255, 258-59, 524 P.2d 328, 331 (1974). Where there is substantial
evidence to support the jury's verdict, it will not be disturbed on appeal. Cunningham v. State,
94 Nev. 128, 130, 575 P.2d 936, 937 (1978).
The State's theory at trial was that Kazalyn incapacitated his wife and left her lying in the
roadway to be hit by another vehicle. Kazalyn contends that any number of vehicles may have
struck the body and continued on without stopping.
While the case against Kazalyn is circumstantial, there was sufficient evidence for the jury
to find the defendant guilty of murder in the first degree. The uncontroverted physical and
testimonial evidence indicates that Kazalyn deliberately left his wife incapacitated in the
roadway and watched while another vehicle struck her helpless form. There was more than
sufficient evidence upon which a reasonable jury could find Kazalyn guilty beyond a
reasonable doubt.
II. Admissibility of certain statements by Kazalyn.
[Headnote 3]
The decision to admit or exclude evidence, after balancing the prejudice to the defendant
with the probative value, is within the discretion of the trial judge. Halbower v. State, 93 Nev.
212, 215, 562 P.2d 4S5, 4S6-S7 {1977); see also, NRS 4S.035.1 The trial court's
determination will not be reversed absent manifest error.
562 P.2d 485, 486-87 (1977); see also, NRS 48.035.
1
The trial court's determination will not
be reversed absent manifest error. Lucas v. State, 96 Nev. 428, 431-32, 610 P.2d 727, 730
(1980).
A. Kazalyn's statements regarding polygraph examinations.
[Headnote 4]
Kazalyn made three statements to the police wherein he offered several times to take a
polygraph examination to prove that his version of the circumstances regarding his wife's
death was the truth. Kazalyn initiated the offer to take a polygraph examination in each and
every instance. At trial, all three statements were admitted into evidence. Kazalyn argues that
the admission of his offers to take a polygraph examination is reversible error.
The case which articulates the standard in Nevada regarding polygraph evidence is
Santillanes v. State, 102 Nev. 48, 714 P.2d 184 (1986). There, we held that a defendant's
refusal or offer to submit to a polygraph examination is inadmissible and incompetent
evidence. Id. at 50, 714 P.2d at 186. However, in the recently decided Davis v. State, 107
Nev. 600, 817 P.2d 1169 (1991), this court held that the admission of the defendant's
videotaped statement wherein he offered to take a polygraph examination and subsequent
prosecutorial references to the offer was harmless error.
The case before us differs from both Santillanes and Davis; here, the prosecutor did not
refer to Kazalyn's offer to take a polygraph examination. There was no emphasis placed on
the polygraph offers. This case also differs from Santillanes in that Kazalyn's offers to take a
polygraph were not introduced into evidence in order to show consciousness of his guilt.
Rather, the offers came into evidence simply as part of the interviews between Kazalyn and a
police detective.
[Headnotes 5, 6]
Generally, a disclosure that a defendant was willing or unwilling to take a lie detector test
is inadmissible because it tends to prejudice the jury for or against the defendant. 95 A.L.R.2d
827 (1964). The strength of the evidence against a defendant is one criterion for determining
whether the admission of the defendant's willingness or unwillingness to take a
polygraph examination constitutes prejudicial error. Id. at S30.
__________

1
NRS 48.035 states in relevant part:
Exclusion of relevant evidence on grounds of prejudice, confusion or waste of time.
1. Although relevant, evidence is not admissible if its probative value is substantially outweighed by
the danger of unfair prejudice, of confusion of the issues or of misleading the jury.
2. Although relevant, evidence may be excluded if its probative value is substantially outweighed by
considerations of undue delay, waste of time or needless presentation of cumulative evidence. . . .
criterion for determining whether the admission of the defendant's willingness or
unwillingness to take a polygraph examination constitutes prejudicial error. Id. at 830. Where
there is strong evidence of guilt, disclosure of whether the defendant was willing to take a lie
detector test tends to be less prejudicial. Id.
[Headnote 7]
A defendant's offer to take a polygraph examination tends to strengthen the credibility of
the defendant. State v. Freeman, 538 P.2d 1168, 1169 (Ariz.Ct.App. 1975); Coughran v.
State, 565 P.2d 688, 691 (Okla.Crim.App. 1977). Where the defendant cannot show he was
prejudiced by the admission of his willingness to take a polygraph examination, it is harmless
error to admit his statements. Freeman, 538 P.2d at 1169; People v. Skiles, 450 N.E.2d 1212,
1220 (Ill. 1983); Coughran 565 P.2d at 691. Kazalyn enhanced his credibility by
spontaneously offering to take a polygraph examination. He failed to show that the jury was
prejudiced against him by admission of the statements. Additionally, there is substantial
evidence of his guilt.
This court is not advocating that a defendant's offer to take a polygraph examination be
admitted into evidence. We affirm our holding in Santillanes that polygraph evidence in any
form (whether it be the defendant's offer or refusal to take a polygraph examination or results
of the examination) is not admissible unless the parties have stipulated to its admission in
writing. Santillanes v. State, 102 Nev. 48, 50, 714 P.2d 184, 186 (1986). However, in the case
before us, we hold that admission of Kazalyn's offers to take a polygraph examination was
harmless error.
B. Kazalyn's statements regarding striking his wife prior to their marriage.
[Headnote 8]
Evidence of prior misconduct is not admissible if its only relevancy is to show that the
accused most likely committed the crime because he is of a criminal character; the evidence
must be relevant for some other purpose. Daly v. State, 99 Nev. 564, 567, 665 P.2d 798, 801
(1983); see also, NRS 48.045(2).
2
This court has recognized that a defendant may be
prejudiced by evidence of past crimes; the jury may find guilt more easily when it is known
that the defendant has committed other acts of wrongdoing.
__________

2
NRS 48.045 states in relevant part:
2. 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.
past crimes; the jury may find guilt more easily when it is known that the defendant has
committed other acts of wrongdoing. Nester v. State, 75 Nev. 41, 46, 334 P.2d 524, 527
(1959).
[Headnote 9]
Kazalyn argues that the district court erred when it admitted his statements that he had
struck his wife on one occasion prior to their marriage, approximately five weeks before Mrs.
Kazalyn's death. The State argues that the statements were highly relevant to the issue of how
Mrs. Kazalyn received the bruises on her face prior to her death, and that the evidence is
actually favorable to Kazalyn because it shows that he was not in the habit of beating his
wife.
The testimony regarding Kazalyn striking his wife is prejudicial, and the State does not
make an adequate argument as to how the probative value of the statements outweigh the
prejudicial value. However, the decision to admit evidence of prior bad acts is within the
discretion of the district court and we cannot say that the admission of the evidence is
manifest error. This is especially true given the strength of the evidence against Kazalyn. We
hold that the admission of evidence regarding Kazalyn striking his wife on one occasion prior
to their marriage is harmless error.
C. Evidence of Kazalyn's imprisonment.
[Headnote 10]
Kazalyn's statements to the police included evidence of prior incarceration. In the
interviews, Kazalyn brought up his prior imprisonment in explaining why he did not come to
the aid of his wife once she had exited the car. He stated that he left his wife on Industrial
Road because he was concerned about violating his parole and being sent back to prison after
he had just finished serving ten years. His concern about being sent back apparently stemmed
from his alcohol use and his wife's use of cocaine. The district court specifically found that
the probative value of establishing what happened on the night of Mrs. Kazalyn's death
outweighed the prejudice to the defendant. We agree.
Kazalyn's statement are highly probative of what occurred on the night of his wife's death.
His statements explain why he pulled his car off to the side of the road and waited, rather than
returning to his wife's aid.
Kazalyn also apparently, finds error in the admission of his second statement which
disclosed that the interview was held at Indian Springs Prison. This one mention of
imprisonment was not overwhelmingly prejudicial to Kazalyn. We therefore hold that it was
harmless error.
III. The jury instruction on reasonable doubt.
[Headnote 11]
The defendant argues that the instruction given to the jury on reasonable doubt is
unconstitutional.
In Lord v. State, 107 Nev. 28, 806 P.2d 548 (1991), this court examined NRS 175.211(1),
3
and the exact same instruction as was given in this case, in comparison with Cage v.
Louisiana,
------
U.S
------
, 111 S.Ct. 328 (1990). This court held that the Cage holding is
limited to the interpretation of a single Louisiana instruction that is not similar to the
instruction on reasonable doubt given in Nevada . . . . [NRS 175.211] satis[fies] the due
process requirements of both the United States and the Nevada Constitution. Lord, 107 Nev.
40, 806 P.2d at 556.
Kazalyn's argument on this issue is without merit.
IV. The jury instruction on premeditation.
[Headnote 12]
Kazalyn argues that the jury instruction on premeditation is misleading because it does not
distinguish between premeditation and malice aforethought.
The instruction on premeditation given by the district court is as follows:
Premeditation is a design, a determination to kill, distinctly formed in the mind at
any moment before or at the time of the killing.
Premeditation need not be for a day, an hour or even a minute. It may be as
instantaneous as successive thoughts of the mind. If the jury believes from the evidence
that the act constituting the killing has been preceded by and has been the result of
premeditation, no matter how rapidly the premeditation is followed by the act
constituting the killing, it is wilful, deliberate and premeditated murder.
The court further instructed the jury on malice aforethought; the definition included the
following language: Malice aforethought does not imply deliberation or the lapse of any
considerable time between the malicious intention to injure another and the actual
execution of the intention but denotes rather an unlawful purpose and design in
contradistinction to accident and mischance.
__________

3
NRS 175.211, in its entirety, reads:
Reasonable doubt defined; no other definition to be given to juries.
1. A reasonable doubt is one based on reason. It is not mere possible doubt, but is such a doubt as
would govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the
entire comparison and consideration of all the evidence, are in such a condition that they can say they feel
an abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable
must be actual and substantial, not mere possibility or speculation.
2. No other definition of reasonable doubt shall be given by the court to juries in criminal actions in
this state.
Malice aforethought does not imply deliberation or the lapse of any considerable time
between the malicious intention to injure another and the actual execution of the
intention but denotes rather an unlawful purpose and design in contradistinction to
accident and mischance.
The premeditation instruction closely follows the definition this court has set forth:
To make a killing deliberate as well as premeditated, it is unnecessary that the intention
to kill shall have been entertained for any considerable length of time. It is enough if
there is time for the mind to think upon or consider the act, and then determine to do it.
If, therefore, the killing is not the instant effect of impulseif there is hesitation or
doubt to be overcome, a choice made as the result of thought, however short the
struggle between the intention and the actit is sufficient to characterize the crime as
deliberate and premeditated murder. In other words, one may be guilty of murder in the
first degree although the intent to commit such a homicide is formed at the very
moment the shot is fired.
Payne v. State, 81 Nev. 503, 508-09, 406 P.2d 922, 925-26 (1965) (citations omitted).
The jury instruction on premeditation meets the criteria set forth in Payne. We hold that
the instruction on malice aforethought was sufficiently distinct from the instruction on
premeditation, and thus, both instructions adequately informed the jury of the law.
V. Deadly weapon enhancement.
[Headnote 13]
Kazalyn asserts that his sentence was enhanced erroneously, because under the recently
decided Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990), an automobile is not a deadly
weapon. We agree. An automobile which is used in the manner contemplated by its
construction and design is not inherently dangerous and likely to cause a life threatening
injury or death. As we said in Zgombic, the Legislature intended to curb the potential violence
inherent in the weapon itself and to deter injuries caused by weapons. Id. at 576, 798 P.2d at
551. An automobile clearly is not within the Legislature's contemplation of a deadly weapon.
We therefore vacate the consecutive life sentence without the possibility of parole which
was imposed on Kazalyn for use of a deadly weapon.
VI. The separate penalty hearing.
[Headnotes 14, 15]
Kazalyn moved the court to forego a separate penalty hearing on the grounds that a hearing
is only appropriate in death penalty cases. The court denied the motion, stating that in a first
degree murder case, the jury was entitled to know aggravating and mitigating circumstances
along with the defendant's criminal history.
Kazalyn argues that it was error for the district court to hold a separate penalty hearing.
The State argues that a district court is permitted to hold a separate penalty hearing in a first
degree murder case, even where the death penalty is not a sentencing option, because the
hearing is helpful to the jury.
A separate penalty hearing is mandated in death penalty cases by NRS 175.552, which
provides in relevant part:
Requirement; jury; panel of judges; evidence. Upon a finding that a defendant is
guilty of murder of the first degree, the court shall conduct a separate penalty hearing to
determine whether the defendant shall be sentenced to death or to life imprisonment
with or without possibility of parole. The hearing shall be conducted in the trial court
before the trial jury, or before a panel of three district judges if the trial was without a
jury . . . .
This court has held that a separate penalty hearing is not required in non-death penalty
cases. McCabe v. State, 98 Nev. 604, 655 P.2d 536 (1982). We now hold specifically that a
separate penalty hearing is appropriate only where the death penalty is a sentencing option.
The main purpose of the hearing is to determine whether a sentence of death or life
imprisonment should be imposed. Id. at 607, 655 P.2d at 538. Absent consideration of the
death sentence, a separate penalty hearing is simply not warranted.
While it was error in this case to hold a separate penalty hearing, we hold that it was not
reversible error. Kazalyn has failed to show how he was prejudiced by the separate penalty
hearing and jury sentencing.
VII. Eligibility of parole.
[Headnote 16]
The district court gave a jury instruction that a sentence of life imprisonment with the
possibility of parole would result in Kazalyn being eligible for parole after ten years. Kazalyn
requested that the jury be informed that he would be eligible for parole in twenty years
because of the sentencing enhancement mandated by NRS 193.165.4 He now argues that
the failure to accurately inform the jury of the correct parole date misled the jury and
deprived him of a fair penalty hearing.
twenty years because of the sentencing enhancement mandated by NRS 193.165.
4
He now
argues that the failure to accurately inform the jury of the correct parole date misled the jury
and deprived him of a fair penalty hearing.
The State argues that court's refusal to inform the jury of the date of possible parole is
harmless error, because the jury sentenced him to life without the possibility of parole.
This court explained in Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), that a jury
instruction discussing parole in a murder case is proper as long as it does not mislead the jury,
and further, that it is not error to inform the jury when the defendant will be eligible for
parole. Id. at 57, 692 P.2d at 511.
If a trial court wishes to inform the jury of the possible date of parole, it must do so with
accuracy. However, without the penalty enhancement for use of a deadly weapon, Kazalyn
would have been eligible for parole in ten years if the jury had chosen to sentence him to life
imprisonment with the possibility of parole. We have explained that the enhancement does
not apply to this case. Therefore, the jury was not misled as to when Kazalyn would be
eligible for parole.
Conclusion
We find no reversible error in the guilt phase of the trial. However, we find that the
penalty enhancement for use of a deadly weapon was in error. Accordingly, we affirm the
conviction and vacate the consecutive life sentence imposed for the use of a deadly weapon.
__________

4
Additional penalty when deadly weapon or tear gas used in commission of crime; restriction of
probation.
1. Any person who uses a firearm or other deadly weapon or a weapon containing or capable of
emitting tear gas, whether or not its possession is permitted by NRS 202.375, in the commission of a
crime shall be punished by imprisonment in the state prison for a term equal to and in addition to the term
of imprisonment prescribed by statute for such crime. The sentence prescribed by this section shall run
consecutively with the sentence prescribed by statute for such crime.
____________
108 Nev. 79, 79 (1992) Leonard v. State
WILLIAM BRYON LEONARD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21742
January 24, 1992 824 P.2d 287
Appeal from judgment pursuant to jury verdict of first-degree murder and sentence of
death. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Inmate was convicted in the district court of first-degree murder and was sentenced to
death. Defendant appeal. The supreme court held that: (1) inmate's attorney had no conflict of
interest; (2) trial judge's statements did not demonstrate bias; and (3) evidence at penalty
hearing of inmate's escape attempt and other prior crimes did not unfairly prejudice inmate.
Affirmed.
E. Sue Sanders, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, and David Sarnowski, Chief Criminal Deputy
Attorney General, Carson City, for Respondent.
1. Criminal Law.
No actual conflict of interest existed between attorney's representation of inmate charged with capital murder and attorney's
representation of another inmate, who received favorable plea bargain in return for his deposition about defendant's attack on murder
victim and information regarding escape attempt by defendant; deposition testimony regarding murder was favorable to defendant and
supported defendant's theory of self-defense, and State did not use inmate's testimony affirmatively at trial. U.S.C.A.Const. amend 6.
2. Criminal Law.
Court did not demonstrate bias by stating that inmate who was capital murder defendant was dangerous person and had been
control and discipline problem; court's statements demonstrated realistic concern that defendant posed serious safety risk in court, as
defendant had killed three people, battered others, threatened his attorney, and was nearly successful in escaping from prison.
Inmate/capital murder defendant's due process rights were not violated by fact that several security officers guarded him at
courthouse and some jurors saw him being shackled and unshackled outside courtroom; jury knew defendant was inmate at Nevada
State Prison. U.S.C.A.Const. amend. 14.
4. Homicide.
Inmate/capital murder defendant was not unfairly prejudiced at penalty hearing by evidence of his escape attempt and other prior
crimes; inmate's history of violent behavior and attempted escape provided basis for fairly inferring that his
incarceration would not deter him from endangering lives of others.
crimes; inmate's history of violent behavior and attempted escape provided basis for fairly inferring that his incarceration would not
deter him from endangering lives of others. NRS 48.035, subd. 1.
5. Criminal Law.
Prosecutor's statement that capital murder defendant did what he did because he liked it was improper, but was harmless beyond
reasonable doubt; defense attorney did not object, overwhelming evidence of defendant's guilt existed, and prosecutor's inappropriate
comments did not contribute to verdict.
6. Homicide.
Sentence of death was properly imposed on inmate/capital murder defendant who murdered fellow inmate by stabbing him
twenty-one times and who had previously been convicted of two murders as well as other felonies. NRS 177.055, subd. 2(b), (c), (d).
OPINION
Per Curiam:
Appellant William Bryon Leonard challenges the judgment entered pursuant to jury
verdict of first-degree murder and the sentence of death that followed. Leonard contends that
both the individual and cumulative effect of specified trial error deprived him of a fair trial
both in the guilt and sentencing phases of trial. We disagree and affirm.
FACTS
On the evening of October 22, 1987, Leonard, a maximum security inmate in the Nevada
State Prison (NSP), killed another inmate, Joseph Wright, by stabbing him twenty-one times
with a steel shank. Although he received only superficial scratches on the inside of his arm
during his attack on Wright, Leonard nevertheless insists that Wright's death resulted from an
act of self-defense.
At trial, the jury found Leonard guilty of first-degree murder with the use of a deadly
weapon, battery with the use of a deadly weapon by a prisoner in lawful custody or
confinement, and possession of a dangerous weapon by a prisoner in lawful custody or
confinement.
At the penalty phase of the trial, the State established that Leonard was previously
convicted in Nevada for the stabbing murder of Russell Williams, and in Florida for the
stabbing murder of Lawrence Dunn. Leonard also had been previously convicted in Nevada
of battery with the use of a deadly weapon by a prisoner in lawful custody or confinement for
attacking Michael Simms, another inmate. Leonard's attack on Simms was similar to his
attack on Wright. Leonard's record also included a conviction of assault with the use of a
deadly weapon and battery with the use of a deadly weapon by an incarcerated person for
an assault on a correctional officer.
with the use of a deadly weapon by an incarcerated person for an assault on a correctional
officer.
At the conclusion of the penalty phase, the jury found two aggravating circumstances: (1)
the murder was committed while Leonard was under sentence of imprisonment; and (2) the
murder was committed by a person who had been previously convicted of other murders and
felonies. NRS 200.033. The jury found two mitigating factors: (1) Wright had been a
participant in Leonard's criminal conduct or consented to the act; and (2) Leonard's previous
crimes were committed while Leonard was under the influence of drugs or alcohol. NRS
200.035. The jury unanimously set the penalty at death.
DISCUSSION
[Headnote 1]
Leonard initially contends that his attorney, James Wessel, had a conflict of interest which
prejudiced Leonard's defense because Wessel represented another inmate, Don Hill, in a
different matter. Hill received a favorable plea bargain on two pending charges in return for
his deposition about Leonard's attack on Wright and information regarding an escape attempt
by Leonard. Hill's deposition testimony regarding the Wright homicide was favorable to
Leonard and supported Leonard's theory of self-defense. The State did not use Hill's
testimony affirmatively at trial. Leonard was aware of and did not object to Wessel's
representation of Hill, and no actual conflict between Leonard and Hill existed which would
have affected Wessel's efforts on behalf of Leonard. [T]he possibility of conflict is
insufficient to impugn a criminal conviction. . . . [A] defendant must establish that an actual
conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S.
335, 350 (1980). Because no actual conflict of interest existed, Leonard's argument is without
merit.
Leonard's next contention is that the district court judge was biased against him and erred
by not recusing himself. Specifically, Leonard contends that the judge demonstrated bias by
stating Mr. Leonard is a dangerous person . . . [and] has been a control and discipline
problem.
[Headnote 2]
We conclude that the judge's statements do not demonstrate bias. Rather, the judge's
statements demonstrate a realistic concern that Leonard posed a serious safety risk in court.
Leonard had killed three people, battered others, threatened his attorney, and was nearly
successful in escaping from prison. [T]he burden is on the party asserting the challenge to
establish sufficient factual grounds warranting disqualification. In re Petition to Recall
Dunleavy, 104 Nev. 7S4, 7SS
Recall Dunleavy, 104 Nev. 784, 788, 769 P.2d 1271, 1273-74 (1988) (citing Ritter v. Bd. of
Com'rs of Adam County, Etc., 637 P.2d 940, 946 (Wash. 1981)). We conclude that Leonard
failed to establish any grounds necessitating the judge's disqualification.
[Headnote 3]
Leonard also argues that his due process rights were violated because several security
officers guarded him at the courthouse, and some of the jurors saw him being shackled and
unshackled outside the courtroom. However, the record evidence demonstrated that the jury
knew Leonard was an inmate at Nevada State Prison. No prejudice can result from seeing
that which is already known.' Shuman v. State, 94 Nev. 265, 272, 578 P.2d 1183, 1187
(1987) (quoting Estelle v. Williams, 425 U.S. 501, 507 (1976)). Therefore, Leonard was not
unfairly prejudiced by the necessary security measures.
[Headnote 4]
Leonard maintains that he was unfairly prejudiced because the district court admitted
evidence of his escape attempt and other prior crimes at the penalty hearing. In determining
admissibility, the court often must weigh the probative value of proffered evidence against
the risk of unfair prejudice. See NRS 48.035(1). When evidence shows that incarceration
will not deter the defendant from endangering others' lives, a prosecutor is entitled to ask the
jury to draw that inference.' Riley v. State, 107 Nev. 205, 219, 808 P.2d 551, 560 (1991)
(quoting Haberstroh v. State, 105 Nev. 739, 741, 782 P.2d 1343, 1344 (1989)). Leonard's
history of violent behavior and attempted escape provides a basis for fairly inferring that his
incarceration will not deter him from endangering the lives of others. Therefore, Leonard was
not unfairly prejudiced because the trial court allowed evidence of his escape attempt and
prior crimes. Moreover, Nevada law allows a sentencing body to hear evidence of other
crimes and reliable background information that will provide enlightenment concerning the
defendant as a whole person in considering the imposition of sentence. Gallego v. State,
101 Nev. 782, 791, 711 P.2d 856, 862-63 (1985); NRS 175.552. There was no error.
[Headnote 5]
Leonard also contends his trial was tainted by prejudicial prosecutorial misconduct related
to characterizations, innuendos, and conclusions. The prosecutor's statement that Leonard did
what he did because he liked it was improper. However, we conclude that the statement
was harmless beyond a reasonable doubt. The defense attorney did not object, overwhelming
evidence of Leonard's guilt exists, and the prosecutor's inappropriate comments did not
contribute to the verdict. Under these circumstances, this court will not interfere with the
sentence because of prosecutorial misconduct.
circumstances, this court will not interfere with the sentence because of prosecutorial
misconduct. Pellegrini v. State, 104 Nev. 625, 628-29, 764 P.2d 484, 487 (1988). As to
Leonard's other assignments of misconduct, we conclude that they are without merit.
[Headnote 6]
Finally, Leonard argues that the cumulative impact of trial error mandates reversal and that
the evidence against him was not overwhelming. We disagree. The State presented an
overwhelming basis for the conviction and sentence through witnesses and medical and
physical evidence.
The record evidence also supports the finding of aggravating circumstances essential to a
sentence of death. NRS 177.055(2)(b). Additionally, the record supplies no basis for
concluding that the sentence was imposed under the influence of passion, prejudice or any
arbitrary factors. We also conclude that Leonard's sentence is not excessive when considering
both the crime and the defendant. NRS 177.055(2)(c-d).
For the reasons specified above, we are persuaded that Leonard was fairly tried and
sentenced. We therefore affirm the judgment of conviction entered pursuant to jury verdict,
and the sentence of death.
____________
108 Nev. 83, 83 (1992) Wellman v. Fox
DALTON WELLMAN, SR., DALTON E. WELLMAN, JR., WALLACE K. WELLMAN
AND EDGAR E. WELLMAN, Appellants, v. R.H. FOX, JR., EDWARD B. FOX,
THOMAS W. ERVIN, KENNETH WEEKS, ALGIGNON SMITH, ALTON
PALMER, L.H. STRONG AND DAVID BISHOP, Respondents.
No. 21966
January 24, 1992 825 P.2d 208
Appeal from an order of the district court granting judgment in favor of respondents in an
action for defamation and libel. Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Unsuccessful union election candidate brought libel suit against incumbent business
manager for assertions made in election flyer. The district court entered summary judgment in
favor of business manager and members of union's executive board. Business manager
appealed. The supreme court held that: (1) actual assertions that unsuccessful candidate
was dishonest were not actionable; {2) exaggerations and over broad generalization were
not libel; and {3) unsuccessful candidate waived right to jury trial by failing to make
timely request.
108 Nev. 83, 84 (1992) Wellman v. Fox
actual assertions that unsuccessful candidate was dishonest were not actionable; (2)
exaggerations and over broad generalization were not libel; and (3) unsuccessful candidate
waived right to jury trial by failing to make timely request.
Affirmed.
Carl E. Lovell, Las Vegas, for Appellants.
Levy, Goldman & Levy, Los Angeles, California, for Respondents.
1. Libel and Slander.
To prevail on claim of libel, party must show publication of false statement of fact, as opposed to opinion; whether objectionable
statements constitute fact or opinion is question of law.
Actions involving libel must be reviewed de novo on appeal, including examination of context in which statements were made, to
determine whether First Amendment protection applies. U.S.C.A.Const. amend. 1.
Assertions by union business manager in election flyer, that identified opposing candidate and his family as dishonest, were
factual for purposes of libel suit by opposition candidate. U.S.C.A.Const. amend. 1.
Factual assertion by union business manager in union election flyer, which claimed that opposition candidate and his family were
dishonest did not form basis of libel claim given that statements were shown to have been true. U.S.C.A.Const. amend. 1.
Exaggerated statements are not libelous in context which statements would be interpreted by reasonable person as mere rhetorical
hyperbole. U.S.C.A.Const. amend. 1.
Exaggeration by union business manager in election flyer which made reference to opposing candidate's family as Dalton Gang
was not libelous. U.S.C.A.Const. amend. 1.
Even if union election flyer prepared by business manager was libelous, members of union's executive board could not be liable
given that Labor Management Reporting and Disclosure Act prohibits union officers from censoring campaign literature.
U.S.C.A.Const. amend. 1; Labor-Management Reporting and Disclosure Act of 1959, 401(c), 29 U.S.C.A. 481(c).
8. Jury.
Refusing to grant libel plaintiff's untimely request for jury trial was not abuse of discretion. Const. art. 1, 9; NRCP 38(b).
108 Nev. 83, 85 (1992) Wellman v. Fox
OPINION
Per Curiam:
In August, 1983, Operating Engineers Local 501, an organization comprised of building
maintenance engineers in the Southern Nevada and Southern California region, held elections
for officers. The organization's chief executive officer is accorded the title of Business
Manager. In the 1983 election, two of the candidates for Business Manager were incumbent
R.H. Fox (Bob Fox) and Dalton Wellman, Jr. (Dee Wellman).
Prior to the announcement of candidates for the 1983 election, appellants Dee and Dalton
Wellman, Sr. distributed a small card of introduction to union members at union meetings in
Las Vegas, Nevada, and Anaheim, California, describing the Wellman family's involvement
with the union. It described the employment and union backgrounds of Dee, Dalton, Wallace
and Edgar Wellman, and it urged members to vote in the upcoming election. The card did not
indicate that any of the Wellmans would be candidates in that election.
Incumbent business manager Fox distributed a flyer to all Local 501 members in response
to the Wellmans' card of introduction. The front side of the flyer contains a three-paragraph
letter from Bob Fox that warns against the danger that the Wellman gang presents to Local
501's members and assets. Furthermore, the flyer asserts that the leader of the gang was
thrown off of the union's executive board for obtaining funds fraudulently, and that the gang
is replete with nepotism and even includes a strikebreaker. On the reverse side of the
flyer, the Wellmans' card of introduction is reprinted and annotated. The annotations purport
to disprove factual assertions implied by the card, such as the assertion that the Wellmans are
a financially successful union family. The reverse flyer refers to the Wellmans as the Dalton
Gang, and implies that Barney Vardiman, who is a strikebreaker, is a member of the gang,
even though he was not mentioned on the card. The flyer also advises union voters not to be
conned. Finally, Dee Wellman's Chapter VII personal bankruptcy petition from 1980 is
reprinted on the reverse side of the flyer beneath the annotations.
The Wellmans object to the Fox flyer on the grounds that no one in their family has ever
been convicted of a crime or involved with a criminal group or gang. Similarly, they
complain that the statement that Dalton Wellman was expelled from the union's executive
board for misuse of funds overstated the truth. Dalton Wellman had in fact been
disqualified from the board by the membership in an internal union proceeding for double
dipping.
108 Nev. 83, 86 (1992) Wellman v. Fox
dipping.
1
However, Bob Fox testified that his flyer was mere election propaganda, and that
the threat posed by the Dalton Gang was merely that they were inept and inexperienced. He
also stated that his comment regarding nepotism merely referred to the fact that Dee
Wellman represented Dalton during his membership trial. Fox admitted that the Wellmans
had never been in a position where they could have hired each other. Fox also stated that he
knew when he sent out the flyer that Edgar and Wallace Wellman were not candidates in the
1983 election. Furthermore, he did not know the extent of strikebreaker Barney Vardiman's
connection to the Wellmans.
Bob Fox was re-elected by a large margin. In January of 1984, appellants commenced a
defamation and libel action against Bob Fox, union business representative Kenneth Weeks,
and members of the union's executive board who were in office when the flyer was
distributed and assisted in its distribution. All respondents except Bob Fox were subsequently
dismissed from the action without prejudice.
The Wellmans' complaint alleged that the statements contained in the Fox flyer were false
and malicious. It asserts that reference to the Wellmans as the Dalton Gang was a deliberate
attempt to associate the Wellman family with a notorious criminal gang from the early 1900's,
and that the flyer implies that the Wellmans are thieves. The Wellmans also alleged damage
to both their social and business reputations and requested compensatory damages to each of
them in excess of $10,000 and punitive damages in excess of $10,000.
At a bench trial, the judge found that the Wellmans were public figures, that the statements
occurred in the context of a labor dispute, and that both of these factors implicated the actual
malice standard. See New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964). Because
the judge found that the statements contained in the Fox flyer were either opinion or
politically-motivated hyperbole, he concluded that appellants failed to satisfy the actual
malice standard. The judge also awarded attorney's fees to Fox amounting to $5,000 because
he found appellants' action frivolous. We affirm judgment.
[Headnotes 1, 2]
To prevail on a claim of libel, a party must show publication of a false statement of fact, as
opposed to opinion. Nevada Ind. Broadcasting v. Allen, 99 Nev. 404, 410, 664 P.2d 337, 341
(1983) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 {1974)).
__________

1
Dalton Wellman's double dipping consisted of submitting claims for compensation for time lost as a
result of attending union meetings while someone simultaneously was punching him in as present at his job.
108 Nev. 83, 87 (1992) Wellman v. Fox
(1974)). Whether the objectionable statements constitute fact or opinion is a question of law.
Harte-Hanks, Inc. v. Connaughton, 491 U.S. 657, 688 (1989). Consequently, actions
involving libel must be reviewed de novo on appeal. Milkovich v. Lorain Journal Co., 497
U.S. 1, 17, 110 S.Ct. 2695, 2705 (1990). Such a review also must examine the context in
which the statements are made to determine whether they are of a character which the First
Amendment protects. Id. See also Las Vegas Sun v. Franklin, 74 Nev. 282, 329 P.2d 867
(1958).
It is well-established that statements are libelous only if they are presented as fact rather
than opinion, and only if the facts asserted are false. See, e.g., Nevada Ind. Broadcasting, 99
Nev. at 410-13, 664 P.2d at 341-43. The distinction between fact and opinion is often a close
one, with some statements containing elements of both. Nevada Ind. Broadcasting v. Allen,
99 Nev. 404, 411, 664 P.2d 337, 342 (1983). The Wellmans assert that the statements
contained in the Fox flyer constitute actionable libel because they imply assertions that the
Wellmans are dishonest, crooked, and untrustworthy. Fox responds that his flyer is merely a
statement of opinion, and that to the extent it contains factual assertions, these assertions are
true.
2

The United States Supreme Court recently addressed the issue of how to distinguish fact
from opinion in Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695 (1990).
Milkovich involved a libel action against the author of a newspaper column who implied that
a wrestling coach had lied under oath regarding an altercation that had occurred between his
team and another team during a wrestling match. Milkovich, 497 U.S. at 3, 110 S.Ct. at
2697-98. The Supreme Court concluded that the statements were libelous if false because a
fact finder could conclude that they implied the factual assertion that Milkovich committed
perjury in a judicial proceeding. Id. at 21, 110 S.Ct. at 2707.
[Headnotes 3, 4]
In the instant case, with respect to the first side of the Fox flyer, the assertions presented
therein appear to be factual. Fox asserts that the Wellmans are dishonest by stating: You will
discover as others have that the story they want you to believe and the truth of the
matter are two very different things.
__________

2
At trial, several witnesses testified as to the impressions they received from the flyer. Expert witness Dr.
Felicia Campbell of the Department of English at the University of Nevada testified that the flyer consisted
primarily of factual assertion, not opinion. In contract, expert Tony Cosola, a former Department of Labor
employee with experience investigating union election disputes, testified that the statements in the flyer were
primarily opinion. Union member Thomas Ervin, who had received the Fox flyer in the mail, testified that he
believed that the first side of the flyer contained fact, not opinion, and that he did not believe that any of the
statements contained therein were false. However, he also testified that he thought that the message of side one
was [j]ust to vote for Bob. Because this case requires de novo review, we have relied primarily on our own
interpretation of the flyer.
108 Nev. 83, 88 (1992) Wellman v. Fox
You will discover as others have that the story they want you to believe and the truth of
the matter are two very different things. This gang is led by a member who was thrown
off of the local union executive board for obtaining union funds fraudulently, the only
such blemish in our proud history. This gang is replete with nepotism, and the real
topper is it even includes a strikebreaker.
(Emphasis added.) We conclude that the underscored statements constitute factual assertions
under Milkovich. However, these factual assertions are not actionable unless they have no
basis in truth. Id. at 22, 110 S.Ct. at 2707-08. Dalton Wellman's expulsion from the union's
executive board for fraudulently submitting duplicative time sheets was affirmed by the Ninth
Circuit Court of Appeals. See Wellman v. Int. Union of Operating Engineers, 812 F.2d 1204,
1205 (9th Cir. 1987). In addition, Fox demonstrated that Barney Vardiman was a former
strikebreaker who was receiving at least nominal support from Dalton Wellman. Similarly,
the factual statements on the reverse side of the Fox flyer were proven at trial to be true.
Thus, we conclude that these statements do not form the basis for a claim of libel.
[Headnotes 5, 6]
Certain secondary statements in the Fox flyer suggest exaggeration or overbroad
generalization. These would include reference to the Wellmans as the Dalton Gang and the
reference to Vardiman as being an intimate of this group. However, such exaggerated
statements are permissible in contexts in which the statements would be interpreted by a
reasonable person as mere rhetorical hyperbole. See, e.g., Letter Carriers v. Austin, 418 U.S.
264, 283 (1974). We conclude that in the context of a union election, Fox's exaggerations and
overbroad generalizations were not libelous.
If the primary facts asserted in the Fox flyer had been false, we would have had to consider
whether the context of the statements as made against allegedly public figures would exempt
Fox from liability for statements made in good faith. Curtis Publishing Co. v. Butts, 388 U.S.
130 (1967); New York Times v. Sullivan, 376 U.S. 254, 271-73 (1964). However, because
we conclude that Fox's assertions are founded on truth, we need not address this issue.
[Headnote 7]
We also reject the Wellmans' argument that the district court should not have dismissed
their action against the other members of the union's executive board. Even if the Fox flyer
had been found to be libelous, dismissal of the other defendants was proper under the Labor
Management Reporting and Disclosure Act, which prohibits union officers from censoring
campaign literature and requires them to comply with all reasonable requests by a
candidate to distribute campaign literature.
108 Nev. 83, 89 (1992) Wellman v. Fox
which prohibits union officers from censoring campaign literature and requires them to
comply with all reasonable requests by a candidate to distribute campaign literature. 29
U.S.C.A. 481(c) (1985).
[Headnote 8]
Finally, the Wellmans object to the district court's ruling that they had waived their right to
a jury trial by failing to timely request one pursuant to NRCP 38.
3
They argue that even if
they did not comply with the procedure set forth in the statute, they have an inviolable right to
a jury trial under Article I, Section 9 of the Nevada Constitution. This section states in
pertinent part:
In all criminal prosecutions and civil actions for libels, the truth may be given in
evidence to the Jury; and if it shall appear to the Jury that the matter charged as libelous
is true and was published with good motives and for justifiable ends, the party shall be
acquitted or exonerated.
(Emphasis added.) From the plain language of this provision, we conclude that a jury trial is
not mandated for all libel actions irrespective of a party's compliance with the procedures for
requesting such trials. Because we also find that the Wellmans did not comply with NRCP
38, we hold that the district court judge acted within his discretion in refusing to grant a jury
trial.
We affirm the district court's ruling in favor of Fox. We also conclude, however, that
appellants' claim was not so meritless on appeal to warrant an award of attorney's fees to
respondents.
____________
108 Nev. 89, 89 (1992) Schoka v. Sheriff
ANDRE SCHOKA, Appellant, v. SHERIFF, WASHOE COUNTY, NEVADA, Respondent.
No. 22363
January 24, 1992 824 P.2d 290
Proper person appeal from and order of the district court forfeiting appellant's property.
Second Judicial District Court, Washoe County; Mark Handelsman, Judge.
Forfeiture action was brought against automobile and investment account of claimant
accused of real estate fraud. The district court entered order forfeiting car and account, and
claimant appealed.
__________

3
NRCP 38(b) states:
Any party may demand a trial by jury . . . by serving upon the other parties a demand therefor in
writing at any time after the commencement of the action and not later than the time of the entry of the
order first setting the case for trial.
court entered order forfeiting car and account, and claimant appealed. The supreme court held
that forfeiture of claimant's automobile and account was not supported by evidence.
Reversed.
Andre Schoka, In Proper Person, Carson City, for Appellant.
Dorothy Nash Holmes, District Attorney and Arthur Noxon, Deputy District Attorney,
Washoe County, for Respondent.
Forfeitures.
Forfeiture of automobile and investment account was not supported by evidence that claimant had been involved in pattern of real
estate fraud, or by testimony of victims that claimant had driven car to meet with them; there was no evidence that claimant used either
his automobile or investment account to commit fraudulent acts.
OPINION
Per Curiam:
On August 29, 1989, the sheriff of Washoe County (state) filed in the district court a
complaint for forfeiture. That complaint named as respondents a 1985 Mercedes Benz
(car), and a Charles Schwab account (account) in the amount of $23,634.38. The
complaint charged that Schoka used the car and the account as instrumentalities in the
commission of various felonies.
On September 21, 1989, Schoka filed his answer to the complaint. Schoka denied the
state's allegations. On February 19, 1991, the state filed a trial statement which described the
car as an instrumentality of crime, but described the account as the proceeds of crime.
According to the state, Schoka was involved in a pattern of real estate fraud. Schoka would
buy properties with assumable loans, collect the rent on those properties, and then fail to
make the monthly mortgage payments.
On February 22, 1991, the district court commenced a hearing on the state's complaint for
forfeiture. On May 29, 1991, the district court entered its decision and order forfeiting the car
and the account. This appeal followed.
The district court found that forfeiture was proper under NRS 179.121.
1
Specifically, the
district court found that the state proved that Schoka used the car and the account as
instrumentalities in the commission of various felonies.
__________

1
NRS 179.121 reads in pertinent part as follows:
1. All personal property, including any tool, substance, weapon, machine, money or security, which
is used as an instrumentality in the
proved that Schoka used the car and the account as instrumentalities in the commission of
various felonies. Based on our review of the record on appeal, we conclude that the state
failed to present sufficient evidence to support the order of the district court forfeiting
Schoka's property. The state called several witnesses who testified to fraudulent conduct on
the part of Schoka. The testimony concerning the car and the account was, however, very
limited.
With regard to the car, two victims did see Schoka driving the car to meet with them. One
victim even testified that he was more impressed with Schoka because of the way Schoka
dressed and the car he drove. There was no evidence, however, that Schoka made any effort
to display his car to his victims, or that Schoka made any use of his car in the commission of
a crime other than the incidental use of transporting him to the scene of the crime. The result
of this case might be different if Schoka had used the car to transport stolen property, or as a
means of escape. The evidence presented, however, does not show that the car played any
role in the commission of a crime. This evidence is insufficient to establish that the car was
an instrumentality of a crime.
Likewise, there was no evidence at all that the account was an instrumentality of a crime.
Further, because there was no evidence which traced any of the funds in the account to any
criminal activity, we cannot conclude that the account was forfeitable as the proceeds of
crime.
Because the state failed to present sufficient evidence to support the forfeiture of either the
car or the account, we reverse the order of the district court forfeiting appellant's property.
2

__________
commission of or attempted commission of the crime of murder, robbery, kidnaping, burglary, invasion
of the home, grand larceny or pandering, or a violation of NRS 200.465, 202.265, 202.287 or 465.070 to
465.085, inclusive, is subject to forfeiture.
2. Except as otherwise provided for conveyances forfeitable pursuant to NRS 453.301 or 501.3857,
all conveyances, including aircraft, vehicles or vessels, which are used or intended for use during the
commission of a felony or a violation of NRS 202.287 or 465.070 to 465.085, inclusive, are subject to
forfeiture . . . .

2
Although appellant has not been granted permission to file documents in this matter in proper person, see
NRAP 46(b), we have received and considered appellant's proper person documents. We deny as moot
appellant's motion to file an opening brief.
The Honorable Cliff Young, Justice, did not participate in the decision of this appeal.
____________
108 Nev. 92, 92 (1992) A-NLV Cab Co. v. State, Taxicab Authority
A-NLV CAB COMPANY, Appellant, v. THE STATE OF NEVADA, TAXICAB
AUTHORITY, an Agency of the State of Nevada, WHITTLESEA BLUE CAB
COMPANY; HENDERSON TAXI; NEVADA CHECKER CAB CORPORATION;
NEVADA YELLOW CAB CORPORATION and NEVADA STAR CAB
CORPORATION, Respondents.
No. 22084
January 24, 1992 825 P.2d 585
Motion to strike portions of appellant's opening brief. Eighth Judicial District Court, Clark
County; Thomas A. Foley, Judge.
Petition was filed for judicial review of administrative decision. The district court denied
petition. The supreme court held that: (1) citations to unpublished administrative decisions of
other jurisdictions in appellant's brief were improper; (2) attorney work-product doctrine did
not preclude appellant's attorney from divulging cognizable citations to those administrative
decisions; and (3) offer of affidavits of individual legislators in support of its argument
concerning legislature's intent in enacting particular statute was improper.
Motion granted in part.
Gordon & Silver and Scott Scherer and Elizabeth A. Kohnen, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City, Jean M. Mischel, Deputy Attorney
General, Las Vegas, for Respondent State of Nevada, Taxicab Authority.
Hilbrecht & Associates and Alaina Burtenshaw and Morgan D. Davis, Las Vegas, for
Respondents Whittlesea Blue Cab Company and Henderson Taxi.
Alverson, Taylor, Mortensen & Nelson and David R. Clayson and Gary C. Milne, Las
Vegas, for Respondents Nevada Checker Cab Corporation, Nevada Yellow Cab Corporation
and Nevada Star Cab Corporation.
Citation in appellate brief to unpublished decisions of administrative agencies of other jurisdictions was improper where brief
failed to identify publication where decisions would be found, and, with one exception, failed to identify specific agencies which
issued those decisions. SCR 123.
2. Pretrial Procedure.
Attorney's refusal to provide opposing counsel with cognizable legal citations to administrative agency decisions cited in appellate
brief, on ground that providing that information would amount to unethical divulsion of attorney work
product, was erroneous; attorney work-product doctrine does not preclude attorneys from divulging
cognizable citations to legal authority.
ground that providing that information would amount to unethical divulsion of attorney work product, was erroneous; attorney
work-product doctrine does not preclude attorneys from divulging cognizable citations to legal authority.
3. Statutes.
Submission of affidavits of state legislators in appellate brief, in effort to establish legislature's intent in enacting particular statute,
was improper; legislator's statement of opinion may not be used as means of divining legislative intent.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying appellant's petition for judicial
review. Respondents Whittlesea Blue Cab Company and Henderson Taxi have moved to
strike portions of appellant's opening brief. Respondents Nevada Checker Cab Corporation,
Nevada Yellow Cab Corporation and Nevada Star Cab Corporation have joined in the motion
to strike. Appellant opposes the motion.
In support of the motion, respondents contend that appellant improperly submitted to the
district court, and to this court, the affidavits of individual members of the Nevada State
Legislature in an effort to demonstrate the legislature's intent with regard to the enactment of
NRS 706.8827(2).
[Headnote 1]
Respondents further contend that appellant has improperly cited a number of unpublished
decisions of administrative agencies outside this jurisdiction. Four such decisions identified
by respondents are cited in appellant's opening brief as follows:
(1) Re California Transport Company, Decision No. 40473, California Application
No. 27220, June 28, 1947;
(2) Re S.B. Hamilton Trucking, New York Case MT-2850, May 26, 1958;
(3) Re Wright, Colorado Application No. 9405, Decision No. 31381, October 4,
1948; and
(4) Re Perricone, Colorado Application No. 11163, Decision No. 37123, July 23,
1951.
Our review of the opening brief reveals a fifth administrative agency decision
similarly cited by appellant as follows:
(5) Re Los Angeles Traffic Manager's Conference, Decision No. 44095, Case No.
4808, April 25, 1950.
Relying on SCR 123 and this court's opinion in State, Emp. Sec. Dep't v. Weber, 100 Nev.
121, 676 P.2d 1318 (1984), respondents contend that appellant's citations to these decisions
are deficient and do not provide a means of verifying the existence or contents of those
decisions.
are deficient and do not provide a means of verifying the existence or contents of those
decisions. In addition, respondents note that their request for assistance in locating these
administrative agency decisions was declined by attorney Elizabeth A. Kohnen, counsel for
appellant and a member of the Las Vegas, Nevada, law firm of Gordon & Silver, on the
asserted ground that such assistance would violate her ethical duty not to disclose her attorney
work product.
In opposition to respondents' motion to strike appellant's references to these administrative
agency decisions, appellant asserts that the Weber decision does not support respondents'
argument, that SCR 123 clearly does not prohibit A-NLV from citing administrative
decisions from other states, and that A Uniform System of Citation actually supports
A-NLV's position that the administrative decisions it cited are a recognized form of legal
authority. Appellant does not present any argument to support these conclusory assertions.
We agree with respondents' contention that the above citations are deficient. As
respondents correctly argue, appellant has failed to identify a publication, if any exist, where
these decisions can be found. Moreover, with the exception of appellant's reference to Re
Wright, which appellant indicates was decided by the Colorado Public Service Commission,
appellant's opening brief fails to identify the agency that issued those decisions.
Clearly, appellant has failed to provide either respondents or this court with a means of
verifying the existence or contents of the administrative agency decisions referenced in
appellant's opening brief. Such a failure to provide citations to legal authority in a cognizable
form has been expressly proscribed by this court in Weber, 100 Nev. at 123, 676 P.2d at
1319.
[Headnote 2]
In addition, attorney Kohnen's refusal to provide opposing counsel with cognizable legal
citations to these administrative agency decisions, and counsel's assertion that providing such
information would amount to assistance in researching certain authorities and an unethical
divulsion of her attorney work product, are unfounded. Attorney Kohnen's claim that the
attorney work-product doctrine precludes her from divulging cognizable citations to legal
authority is patently erroneous.
Accordingly, we grant respondents' motion to strike appellant's references to the above
administrative agency decisions and all arguments in the opening brief which relate to those
decisions. The clerk of this court shall strike the following from appellant's opening brief:
page 13, line 26; page 14, lines 1 through 16; page 15, lines 13 through 28; and page 16, lines
1 through 18.
[Headnote 3]
We also agree with respondents' contention that appellant has improperly offered the
affidavits of individual legislators to support its argument regarding the legislature's intent in
enacting NRS 706.8827(2).
In opposition to respondents' motion to strike these affidavits, appellant asserts that,
because the affidavits are not offered as evidence on any issue of fact, but are offered as a
means of assisting this court in resolving an issue of law, this court's consideration of the
affidavits is permissible. To support this argument, appellant cites this court to Cal. Tchrs.
Ass'n v. San Diego Com. College, 621 P.2d 856 (Cal. 1981).
We agree with the California Supreme Court's holding in Cal Tchrs. Ass'n, which
expressly proscribes the use of a legislator's statement of opinion as a means of divining
legislative intent. Specifically, the California Supreme Court noted that:
The district contends that the use of Senator Rodda's statement would violate
well-settled principles of statutory construction. We agree. In construing a statute we
do not consider the motives or understandings of individual legislators who cast their
votes in favor of it. [Citations.] Nor do we carve an exception to this principle simply
because the legislator whose motives are proffered actually authored the bill in
controversy [citation]; no guarantee can issue that those who supported his proposal
shared his view of its compass. (In re Marriage of Bouquet (1976) 16 Cal.3d 583,
589-590, 128 Cal.Rptr. 427, 546 P.2d 1371.) A legislator's statement is entitled to
consideration, however, when it is a reiteration of legislative discussion and events
leading to adoption of proposed amendments rather than merely an expression of
personal opinion.
621 P.2d at 860 (citations omitted; emphasis added).
In the instant case, appellant's opening brief offers the affidavits of five members of the
Nevada State Legislature's Transportation Assembly Committee in an effort to establish the
legislature's intent in enacting NRS 706.8827(2). Each of those affidavits recites that it is
based on the affiant's opinion and belief. Consequently, those five affidavits have been
improperly submitted to this court, and appellant's submission to the district court of four
such affidavits was similarly improper. Accordingly, the clerk of the court shall strike the
following from appellant's opening brief: page 17, lines 25 through 28; page 18, lines 1
through 28; and page 19, lines 1 through 4.
We note, however, that the record on appeal contains the affidavits of four individual
legislators which are, in three instances, identical to the affidavits appended to appellant's
opening brief.
instances, identical to the affidavits appended to appellant's opening brief. Because we are
disinclined to excise portions of the record as made in the district court, we deny respondents'
motion to strike the affidavits which are appended to appellant's opening brief. This court
will, however, disregard those affidavits in resolving the merits of this appeal.
Finally, notwithstanding counsel's failure to heed the express directives set forth by this
court in Weber with regard to providing cognizable citations to legal authority, we have
determined that sanctions against appellant's counsel are not warranted at this time. We
admonish the law firm of Gordon & Silver, however, that this court will not hesitate to
impose sanctions in the future should similar unprofessional conduct come to this court's
attention.
____________
108 Nev. 96, 96 (1992) Beales v. Hillhaven, Inc.
NORMA BEALES, Appellant/Cross-Respondent, v. HILLHAVEN, INC.,
No. 20668
January 24, 1992 825 P.2d 212
Appeal and cross-appeal from a judgment upon a jury verdict in favor of appellant. Second
Former employee brought wrongful discharge action against employer, seeking both past
and future damages, as well as damages for bad-faith discharge. The district court entered
verdict in favor of employee, and both employer and employee appealed. The supreme court,
Mowbray, C. J., held that: (1) employee was not entitled to pursue bad-faith discharge claim
against employer; (2) jury instruction on mitigation of damages was adequate; (3) refusal to
grant employer's motion for new trial on ground of juror misconduct was not error; (4) award
of future damages was supported by evidence; and (5) statements in employee handbook and
termination policy removed employee from scope of employment at-will doctrine.
Affirmed.
Young and Steffen, JJ., dissented in part.
Perry & Spann, Reno, for Appellant/Cross-Respondent.
Vargas & Bartlett, and Albert F. Pagni, Reno; Jackson, Lewis, Schnitzler & Krupman and
Gary R. Kessler, Atlanta, Georgia, for Respondent/Cross-Appellant.
Employee was not entitled to pursue bad-faith discharge action against employer where, although employee's employment contract
provided that employee would be discharged only for dishonest or unethical conduct, employer discharged employee for poor job
performance.
For purposes of calculating damages in wrongful discharge case, employee is entitled to recover present value of difference, over
term of contract, between agreed-upon wages and amount which employee could have earned if he had, with reasonable diligence,
searched for similar employment.
In wrongful discharge action, jury instruction on mitigation of damages which provided that employee's affirmative duty to
mitigate her damages included the seeking and acceptance of alternative employment for the period covered by the agreement was
adequate; trial court was not required to instruct jury that employee's duty to mitigate damages included duty to maintain comparable
subsequent employment.
4. New Trial.
Refusal to grant employer new trial in wrongful discharge action, on ground of juror misconduct, was not error where, although
potentially prejudicial text was present in jury room during deliberations, text was consulted by just one juror, and trial court
subsequently disqualified and dismissed that juror from case, after determining that remaining jurors had not been prejudiced.
Award of future damages for wrongful discharge, in amount of $208,476, was supported by testimony of employee's expert
economist that employee's future wage loss could range from $49,152 to $315,791, depending upon variation in local employment rate
and upon whether employee chose to work to age sixty-five or seventy.
Designation of employee as permanent employee in and of itself and without further definition does not mean that employee is
no longer employee at will; permanent could be used to distinguish regular employee from temporary or probationary employee, with
neither party intending to change at-will status of employee.
Although designation of employee as temporary, probationary, or permanent should be considered as one factor in determining
whether employee is employee at will, this designation standing alone is insufficient to change presumption in favor of at-will
employment.
Employee's subjective expectation of long-term employment does not alter employee's at-will status; evidence to establish implied
or express contract between employee and employer must be presented to support assertion that employee can only be fired for cause
and to overcome rebuttable presumption of at-will employment.
Establishing discipline procedure, in and of itself, does not transform affected employee from employee who may be terminated at
will to employee who may be terminated only for cause.
Finding that employee was not subject to employment at-will doctrine, but could be discharged only for cause, was supported by
statements in employer's written termination policy that "the days of termination at will or at whim are
gone," and by section of employee handbook which detailed progressive discipline procedure consisting of
warnings, probation, suspension, and dismissal.
ments in employer's written termination policy that the days of termination at will or at whim are gone, and by section of employee
handbook which detailed progressive discipline procedure consisting of warnings, probation, suspension, and dismissal.
Based upon evidence that employee was terminated less than three weeks after she negotiated job performance goals with
employer, that employee was fifty-nine years old at time of discharge, that due to discharge employee was forced to withdraw deferred
income from her retirement fund at loss, that employee was receiving less retirement benefits than she would have had she remained
employed until she was sixty-five years old, and that salary of new employee hired to replace employee was substantially less than
salary which employee had received, jury could have found that employer's established termination procedure was not followed or that
employee was terminated for reasons other than those specifically stated by employer, and in either case employee was entitled to
recover for wrongful discharge.
OPINION
By the Court, Mowbray, C. J.:
Norma Beales, sixty-two years old at the time of trial, was first hired at the Reno
Convalescent Center (RCC) on April 27, 1971, as office manager. Beales was hired, pursuant
to an employee handbook, as a permanent employee, subject to a ninety-day probationary
period. With respect to this matter, RCC and respondent Hillhaven, Inc. are the same entity.
To avoid confusion, Hillhaven will be used exclusively below.
On February 23, 1972, Beales became the acting administrator. After passing the state
licensing examination, Beales became the actual full administrator of Hillhaven, in which
position she remained until her termination of employment on June 16, 1986.
Alan Oppenheim became the district director of the Nevada District, and Beales'
immediate supervisor, on January 15, 1986. Beales reported directly to Oppenheim and
Oppenheim reported to Gary McGuire, the director of operations. Oppenheim testified that,
when he first became district director, McGuire told him that Hillhaven was having problems
with nursing hours per patient day and accounts receivable figures.
As the administrator of Hillhaven, Beales was responsible for keeping nursing hours per
patient day under 2.75 hours and the aged accounts receivable to under five percent. On
February 12, 1986, Oppenheim wrote Beales a memorandum critical of her handling of
nursing hours per patient day and accounts receivable. On March 5, 1986, Oppenheim sent
another critical memorandum to Beales regarding communication and management problems.
On April 14, 1986, Oppenheim wrote two memoranda to Beales placing her on probation
and setting forth requirements as to accounts receivable and nursing hours per patient day.
During this same time period, in mid-April and early May, Beales received letters from Ed
Laskey (vice-president of operations), Oppenheim, and Neil Elliot (president, convalescent
division) congratulating her for fifteen years of dedicated service. Elliot's letter stated that the
residents are especially appreciative of her efforts because the continuity of a stable staff
means so much to them. In the beginning of May, Beales attended the monthly meeting of
administrators where she received a fifteen-year diamond pin and congratulations for her
services as a long-standing and loyal employee.
On May 7, 1986, Oppenheim wrote Beales a memorandum stating that although nursing
hours spent per patient day showed improvement, they remained short of the facility
objective. The memorandum extended the probationary period through May 31, 1986.
Each fiscal year the administrator and Hillhaven's management would agree on
performance objectives and state them in a Management Objective Form (MBO). Beales
negotiated the yearly MBO with Oppenheim (for fiscal year 86/87June 1, 1986, to May 31,
1987) and Oppenheim signed off on it on May 6, 1986. As to the accounts receivable, the
MBO stated that Hillhaven would attain 60 day receivable outstanding to $5,000.00 by 8/86
and maintain thereafter at fiscal year 1985-86 levels. On May 27, 1986, Beales and
Oppenheim renegotiated a new MBO forecast for 1986-87 in which the accounts receivable
goal and the goal for nursing hours per patient day were lowered. Oppenheim testified at trial
that the reason both the accounts receivable and nursing hours per patient day levels were
lowered in the second MBO was that McGuire felt that was totally unachieveable [sic] for
the history of Reno and he increased that percentage to help the facility make it more
realistic.
Mike Jacobs, the prior district director, testified that he considered the MBO a binding
agreement between himself and the administrator, and that it was part of the employment
contract. Jacobs further testified that, in his opinion, Beales followed established practice and
procedure and was aware of her accounts receivable and made an effort to collect them. In
apparent contradiction, Oppenheim testified that MBOs are not part of the contract for
performance, but rather guidelines.
On June 16, 1986, Oppenheim told Beales that she was to be terminated. He told her that
since she had been a good long-term employee, she could resign. Beales telephoned her
attorney and then turned in a written resignation.
then turned in a written resignation. Subsequently, the jury would find that the resignation
was involuntary and of no legal effect.
About three months after Beales left Hillhaven, she obtained a position as a nursing home
administrator with ARA Convalescent in California for $36,000.00 per year. Beales left this
job because the facility burned down. On December 1, 1987, Beales took a position at the
Riverside Nursing Home (Riverside) in Reno. Beales had a written contract for $40,000.00
per year, which contained a provision for termination by either party with fifteen days notice.
The owner of Riverside terminated the contract on January 29, 1988.
Approximately three months later, Beales went to work as an administrator of the Mission
Terrace Nursing Home in Santa Barbara, California, at a salary of $50,000.00 per year. Soon
thereafter, however, she left Mission Terrace. According to Beales, she left after witnessing
numerous violations of patient and employee rights. Beales returned to Reno and sought
employment in her field until the trial of this action in 1989. She was unable to find
employment.
Eventually, Ms. Beales had her day in court. Both the facts recited above and substantial
additional evidence were presented at trial. The jury concluded that Ms. Beales had been
wronged and awarded her $32,821.42 in past damages and $208,476.00 in future damages.
The future damage award was considerably less than the maximum figure of $315,791.00
calculated by Dr. Cargill, an expert witness for Beales.
[Headnote 1]
Beales' contention on appeal is that the district court erred when it granted Hillhaven's
NRCP 41(b) motion to dismiss her bad faith discharge tort. See Bates v. Cottonwood Cove
Corp., 84 Nev. 388, 391, 441 P.2d 622, 624 (1968). Beales argues that her contract allowed
discharge only for dishonest or unethical conduct, and that her discharge for poor
performance gave rise to a bad faith tort.
1
See K Mart Corp. v. Ponsock, 103 Nev. 39, 49,
732 P.2d 1364, 1370 (1987).
Beales' argument lacks merit. We have previously restricted the bad faith discharge tort to
those rare and exceptional cases that the duty is of such a nature as to give rise to tort
liability. Id. at 49, 732 P.2d at 1370. See also Western States Minerals v. Jones, 107 Nev.
116, 819 P.2d 206 (1991). We cannot conclude that the facts of the present case are so
exceptional as to give rise to a bad faith discharge tort.
__________

1
Respondent's personnel manual contained no provision for discharge for job performance; it included only
a provision for discharge for cause with cause being defined as dishonest or unethical behavior.
Hillhaven raises several issues by way of cross-appeal. Hillhaven's first contention is that
the jury was inadequately instructed as to the duty to mitigate damages.
[Headnotes 2, 3]
The usual damage formula in wrongful discharge cases is that the employee is entitled to
recover the present value of the difference, over the term of the contract, between the
agreed-upon wages and the amount which the employee could have earned if he had, with
reasonable diligence, searched for similar employment. 22 Am.Jur.2d Damages 111
(1988). In the present case, the trial court offered the following instruction to the jury:
The Plaintiff has a duty to mitigate her damages, that is an affirmative burden to act
in a manner that minimizes her damages. This includes the seeking and acceptance of
alternate employment for the period covered by the agreement.
Hillhaven contends that the above instruction was insufficient to properly instruct the jury
regarding Beales' duty to maintain comparable subsequent employment.
2
We disagree. We
conclude that the trial court's instruction adequately apprised the jury of Beales' duty to seek
and maintain subsequent employment.
[Headnote 4]
Hillhaven also contends that the district court erred in refusing to grant a new trial due to
juror misconduct. Specifically, Hillhaven cites the presence of a text entitled Fear of Firing
in the jury room. The text at issue was consulted solely by one juror whom the judge
disqualified and dismissed from the case. The court determined that the remaining jurors
were not prejudiced. We find no indication that the trial court abused its discretion in finding
no prejudice; therefore, denial of the motion for new trial motion was proper. See Stackiewicz
v. Nissan Motor Corp., 100 Nev. 443, 452, 686 P.2d 925, 931 (1984) (question of prejudice is
a question of fact for the trial court and will not be disturbed on appeal absent an abuse of
discretion).
[Headnote 5]
Hillhaven claims that there was insufficient evidence presented at trial to support the
award of future damages, and the dissent echoes this point.
__________

2
Respondent requested the following additional paragraph for clarification:
This also includes an obligation to maintain subsequent employment. Thus, if you find that plaintiff
either voluntarily quit suitable employment or was terminated for cause from her subsequent
employment, the earnings she would have earned from those subsequent jobs had they continued should
also be deducted from her claim for lost wages and benefits.
echoes this point. The jury was instructed that Beales had the obligation to mitigate her
damages by seeking other employment. She testified she could not find employment in her
field once she returned to Reno in 1988. Apparently, the jury believed her. Dr. Cargill, Beales'
economist, made a series of projections concerning Beales' future economic loss which
included two principal variables: the chances of her finding comparable work in the Reno
area (with a pessimistic calculation of a twenty-five percent chance of finding employment
and an optimistic one of seventy-five percent) and whether she would work to age sixty-five
or seventy. The series of calculations ranged from a minimum wage loss of $49,152.00 to a
maximum of $315,791.00. Therefore, once the jury found that she was entitled to future
damages, it was entitled to weight the variables and award Beales the appropriate amount. Its
verdict of $208,476.00 in future damages was well within the parameters set by Dr. Cargill.
[Headnotes 6, 7]
Finally, Hillhaven contends that the evidence was insufficient to establish an employment
contract that provided that she could only be fired for cause. According to the terms of
Hillhaven's handbook, all employees are designated as permanent employees once they have
successfully completed the probationary period. But designation of an employee as a
permanent employee in and of itself and without further definition does not mean that the
employee status has been changed from at will. Permanent could be used to distinguish
from a temporary or probationary employee with no intent of either party to change the at will
status of an employee. See Smith v. Cladianos, 104 Nev. 67, 752 P.2d 233 (1988). Although
the designation of an employee (i.e., temporary, probationary, permanent) should be
considered as one fact in determining if the employee is something other than at will, this
designation standing alone is insufficient to change the presumption of at will employment.
Likewise, Beales' subjective expectation of long-term employment does not alter her at
will status. Vancheri v. GNLV Corp., 105 Nev. 417, 777 P.2d 366 (1989). Evidence to
establish an implied or express contract between employee and employer must be presented
to support the assertion that an employee can only be fired for cause and to overcome the
rebuttable presumption of at will employment.
[Headnotes 9, 10]
Nevertheless, this case does contain sufficient evidence in Hillhaven's employee handbook
and termination policy guidelines to support Beales' claim that she was a for cause employee.
The termination policy describes three categories of termination: resignation, termination
for cause and layoffs.
resignation, termination for cause and layoffs. It further states that termination must be
carefully and professionally handled and that the days of termination at will' or at whim'
are gone. The handbook set up a progressive discipline procedure consisting of warnings,
probation, suspension and dismissal. Establishing such a discipline procedure, in and of itself,
does not change the employee's status from at will to for cause. Id. at 422, 777 P.2d at 369.
But when this written for cause discipline procedure is coupled with Hillhaven's termination
policy and Beales' testimony, a jury could reasonably conclude that the entire dismissal
procedure was referring to for cause employees, one of whom was Beales.
[Headnote 11]
Having concluded that there was sufficient objective evidence upon which to base the
jury's determination that Beales was a for cause employee, we must then determine if the
contractual procedures afforded a for cause employee at Hillhaven were adhered to in this
case.
3
Ample evidence was presented from which the jury could conclude that the
termination procedure was not followed or that Beales was terminated for reasons other than
those specifically stated. She was terminated less than three weeks after the MBO had been
revised to reflect more realistic goals, and this short period provided insufficient time for
either adequate performance feedback or improvement. Beales was fifty-nine years old at the
time of her discharge. Because of her termination, Beales was forced to withdraw the deferred
income from her retirement fund early and at a loss. She is consequently receiving less
retirement now than she would have if she had remained an employee of Hillhaven until she
was sixty-five years old. Furthermore, the salary of the employee hired to replace Beales was
$30,000.00; Beales was receiving $36,729.00 when she was terminated, in addition to
benefits for her disabled husband. Hillhaven saved a substantial amount of money by
terminating Beales, and the jury could have reasonably concluded that this was the real reason
behind termination.
All remaining contentions are meritless. Accordingly, we affirm the judgment of the
district court.
Springer and Rose, JJ., concur.
Young, J., with whom Steffen, J. joins, concurring in part and dissenting in part: I concur
generally with the court's conclusion that appellant's and cross-appellant's arguments on
appeal are without merit.
__________

3
Termination policy for performance-based termination requires: (1) providing adequate performance
feedback to the employee; (2) insuring that the employee has had adequate training to succeed; and (3) allowing
the employee sufficient time for improvement.
I concur generally with the court's conclusion that appellant's and cross-appellant's
arguments on appeal are without merit. I dissent, however, from the majority's affirmance of
the award of future damages.
The jury awarded appellant $208,476.00 in future damages. We have previously held that
an appellant court will disallow or reduce the award if its judicial conscience is shocked;
otherwise it will not. Miller v. Schnitzer, 78 Nev. 301, 309, 371 P.2d 824, 829 (1962). I am
troubled by the award of future damages in this case and particularly in view of the assertion
by respondent that appellant had begun working for a nursing home shortly after trial.
After leaving her position at Hillhaven, appellant had three jobs in the span of
approximately two and one-half years. The first position paid a salary comparable to what she
was earning at Hillhaven. Her next position paid approximately $3,000.00 per year more than
her salary at Hillhaven. Appellant's third position paid $50,000.00 per yearan annual
increase of more than $13,000.00 above her salary at Hillhaven. These facts alone suggest
that appellant was indeed capable of finding employment after her termination from
Hillhaven. Appellant's own expert witness testified at trial that, if appellant had been
employed at the time of trial, the measure of future damages would be zero. To award her
$208,476.00 in future damages, given these facts, seems to me to make Hillhaven the
indefinite insurer of appellant's employment, even after the age of sixty-five when most
employees retire.
Furthermore, after trial, Hillhaven moved to reopen discovery on the issue of future
damages and alleged that appellant had begun working for a nursing home almost
immediately after trial. In response, although appellant denied that she had begun working
the week after trial, appellant did not deny that she had begun working.
Appellant was fifty-nine years old when she was terminated by Hillhaven and sixty-two
years old at time of trial. She testified that nothing in her health would prevent her from
working to or beyond the age of seventy. She received $32,821.42 for compensatory damages
up to the time of trial. Presumably, the jury took into consideration the money earned by her
during the two and one-half years after termination and before trial. Her annual salary when at
Hillhaven was $36,729.00. The record does not reflect the net salary after taxes. It seems
questionable to affirm a future damages award equivalent to almost six years of her gross
salary at Hillhaven when appellant had obtained three comparable jobs after her Hillhaven
employment ended and was employed again shortly after trial. Under the circumstances, I
believe that respondent should have been able to determine when appellant was employed
and whether this employment was a reasonable prospect at the time of trial.
respondent should have been able to determine when appellant was employed and whether
this employment was a reasonable prospect at the time of trial. I therefore dissent.
____________
108 Nev. 105, 105 (1992) Bulbman, Inc. v. Nevada Bell
BULBMAN, INC., Appellant/Cross-Respondent, v. NEVADA BELL,
No. 21733
January 24, 1992 825 P.2d 588
Appeal and cross-appeal from orders of the district court partially granting respondent's
motion for summary judgment and entering final judgment.
1
Second Judicial District Court,
Washoe County; Charles M. McGee, Judge.
Customer of telephone company which purchased telephone system for his business sued
company alleging breach of contract, breach of warranty, and intentional misrepresentation.
The district court partially granted telephone company's motion for summary judgment
determining that tariff limitation on liability was valid and enforceable. Customer appealed.
The supreme court held that: (1) tariff limitation of liability applied to telephone system
purchased by customer; (2) tariff limitation of liability precluded customer's breach of
contract and breach of warranty claims; (3) tariff's liability protection did not extend to fraud
claims; and (4) customer failed to establish fraudulent intent on part of company or
inducement as result of alleged misrepresentations by company so as to be entitled to recover
on grounds of fraud.
Affirmed.
Kevin J. Mirch, Reno, for Appellant/Cross-Respondent.
Woodburn, Wedge & Jeppson and Shawn B. Meador and Suellen Fulstone, Reno, for
1. Telecommunications.
Tariff limitation on liability was defense to customer's breach of contract and breach of warranty claims against telephone
company arising out of purchase of telephone system for business; exemption of telephone system from tariff regulation as to pricing
did not remove system from coverage of tariff's liability limitation. NRS 704.040, subd. 3.
__________

1
After the trial court entered its final judgment, Nevada Bell moved for an award of attorney's fees. The trial
court denied the motion, and Nevada Bell appealed this denial. In its appellate brief, however, Nevada Bell
abandons this appeal.
Tariff liability limitation did not apply to customer's fraud claim against telephone company alleging that company made
intentional misrepresentations as to cost and installation time, reliability and performance of telephone system purchased for customer's
business.
3. Fraud.
Telephone company's representations to customer about cost of telephone system and installation time were estimates and opinions
based on past experience with system, and thus, representations were not actionable in fraud.
4. Fraud.
Telephone company's representations as to reliability and performance of telephone system purchased by customer constituted
mere commendatory sales talk about product, i.e., puffing, and were not actionable in fraud.
5. Fraud.
Testimony of customer that he did not believe telephone company had intentionally lied to him about its telephone system but
rather that company might have been more careful in making representations about system, particularly with respect to how long it
would take to install system, established absence of fraudulent intent on part of telephone company.
6. Fraud.
Mere failure to fulfill promise or perform in future will not give rise to fraud claim absent evidence that promissor had no intention
to perform at time promise was made.
OPINION
Per Curiam:
THE FACTS
Appellant Bulbman, Inc. (Bulbman) is a Reno, Nevada, company that markets and
distributes light bulbs. Bulbman's business is primarily conducted through telephone and mail
orders. Respondent Nevada Bell (Nevada Bell) is a regulated public utility engaged in the
business of providing business and residential telephone services. Nevada Bell is governed by
tariffs promulgated and approved by the Nevada Public Service Commission. These tariffs
include Tariff No. A2, which limits Nevada Bell's liability arising out of or in any way
connected with any defect, error, omission, delay, interruption, suspension or other failure in
connection with furnishing service or facilities . . . .
In 1986, Bulbman concluded that its existing telephone system could not handle the
volume of calls being placed and that no more phone lines could be added to that system. As
a result, Gerald Roth, Jr. (Roth), a managerial employee of Bulbman and son of the
company's owner, contacted Bill McDonald (McDonald), an independent telephone
consultant, for advice on how best to expand Bulbman's telephone system.
how best to expand Bulbman's telephone system. After examining several expansion
alternatives, McDonald recommended the Centrex system, and Bulbman accepted this
recommendation.
Having made the decision to go with Centrex, Roth contacted Nevada Bell and was
referred to Nevada Bell salesman David Dehls (Dehls). According to Bulbman, Dehls stated
that the system took only thirty minutes to install and made additional representations
concerning the system's cost, performance and reliability. Bulbman also alleges that Dehls
failed to disclose problems in the Centrex system that were known to Nevada Bell.
On October 14, 1986, a Centrex system was installed at Bulbman's place of business. In
their affidavits, three Nevada Bell employees responsible for installing the system stated that
the actual cut-over took less than thirty minutes to complete. Bulbman contends that the
installation was not completed in thirty minutes because the system was not properly
operating after this thirty minute period.
Additional problems plagued Bulbman's Centrex system for several days after it was
installed. At one point, at least twenty percent of Bulbman's incoming 800 (WATS) line
calls were not being received. Not until October 21, 1986, one week after Nevada Bell
installed Bulbman's systemdid the system operate properly.
Bulbman filed suit against Nevada Bell, alleging (1) breach of contract, (2) breach of
warranty, and (3) intentional misrepresentation (fraud). Nevada Bell subsequently moved for
summary judgment, seeking to invoke Tariff No. A2 as a defense to Bulbman's breach of
contract and breach of warranty claims and to dismiss the fraud claim for lack of triable
issues of material fact. The trial court partially granted Nevada Bell's motion, determining
that the tariff limitation on liability was valid and enforceable and that there was no basis for
the claim in fraud, and ordered the parties to appear for a hearing on the issue of damages.
Prior to this hearing, the parties stipulated to damages of $1,000.00 and on June 4, 1990, the
trial court entered final judgment. Bulbman appeals both the final judgment and the order
partially granting summary judgment.
DISCUSSION
I. NEVADA BELL'S LIMITED LIABILITY.
[Headnote 1]
Bulbman contends that Tariff No. A2's limitation on liability does not apply to Nevada
Bell's Centrex system because the system is a competitive product. In support of this
contention, Bulbman cites the March 1988, decision of the Nevada Public Service
Commission {Docket S7-371) exempting the system from tariff regulation.
Service Commission (Docket 87-371) exempting the system from tariff regulation. This
argument lacks merit.
First, Bulbman purchased and installed Centrex in October of 1986 and Nevada Bell did
not apply to the Public Service Commission to have its Centrex product exempted from tariff
until March of 1987. It was not until March of 1988 that the Public Service Commission
entered its order directing that Nevada Bell's Centrex be exempted from tariff. Thus, when
Bulbman purchased and installed its Centrex system, Nevada Bell operated under the Public
Service Commission's tariffs, including Tariff No. A2.
Furthermore, Bulbman misunderstands the exemption from tariff granted Nevada Bell in
March of 1988. Under NRS 704.040(3), the Public Service Commission is authorized to
exempt to the extent it deems reasonable any services of a telecommunication or public
utility from any or all of the provisions [governing the regulation of public utilities] upon a
determination that the services are competitive and that further regulation is unnecessary.
Pursuant to this statute, the Public Service Commission exempted Nevada Bell's Centrex
from tariff regulation as to pricing so as to allow Centrex to compete in a competitive market.
The Public Service Commission did not remove the system from the coverage of Tariff No.
A2. Tariff No. A9, which describes the tariff exemption granted to Nevada Bell in March of
1988, expressly states that Tariff No. A2 is incorporated by reference as applicable to the
provisioning of those services [Centrex] exempt from tariff by Docket 87-371.
[Headnote 2]
We hold that Tariff No. A2's liability limitation applies to the Centrex system purchased
by Bulbman.
Tariff No. A2 provides in relevant part:
The liability, if any, of the Utility arising out of or in any way connected with any
defect, error, omission, delay, interruption, suspension or other failure in connection
with furnishing service or facilities shall, unless otherwise provided in the tariff
schedules, be in an amount not in excess of the charge for the service or facility
involved for the period during which the defect, error, omission, delay, interruption,
suspension or other failure continues.
The trial court found this tariff to be valid and enforceable as to Bulbman's breach of
warranty and breach of contract claims. In doing so, the trial court adopted the position held
by most jurisdictions; namely, upholding validly promulgated provisions of Public Service
Commission tariffs and holding that the liability limitations contained in such tariffs apply to
claims for simple negligence and breach of contract. See, e.g., Waters v. Pacific Telephone
Company, 523 P.2d 1161 {Cal.
negligence and breach of contract. See, e.g., Waters v. Pacific Telephone Company, 523 P.2d
1161 (Cal. 1974). Also consistent with this majority view is the trial court's conclusion that
tariff liability protection should not be accorded to willful, wanton conduct or gross
negligence. Thus Tariff No. A2 does not apply to Bulbman's fraud claim, and Nevada Bell
concedes as much.
Confronting this issue for the first time, we concur in the trial court's decision. As Nevada
Bell observes, absent liability limitations such as that contained in Tariff No. A2, the broad
liability exposure faced by utilities would create tremendous upward pressure on utility
service rates. For example, although Bulbman's claim concerns a minor defect in telephone
equipment, Bulbman claims to have suffered over $730,000 in damages from the disruption
in its telephone service. Defects and disruptions are inevitable when providing service to
hundreds of thousands of customers. If Nevada Bell were to be found liable for similar
business losses arising out of every telephone disruption, the potential liability would be
enormous. As a result, utilities would be forced to raise rates to cover the increased costs of
providing service.
In Waters, the plaintiff claimed that Pacific Telephone had, among other things,
improperly installed the telephone system, furnished inadequate telephone service, removed
phones without authorization and failed to provide maintenance. The plaintiff sought an
award of damages in the amount of $750,000. Id. at 1163. In affirming summary judgment in
favor of Pacific Telephone, the California Supreme Court held that the public service
commission has broad supervisory and regulatory powers, that the limitation of liability is a
proper subject of regulation and supervision and that the commission had properly approved
the liability limiting tariff. Id. at 1163-1167. In explaining the public policy considerations
that support enforcement of liability limiting tariffs, the court stated:
The theory underlying [enforcement of liability limitations] is that a public utility, being
strictly regulated in all operations with considerable curtailment of its rights and
privileges, shall likewise be regulated and limited as to its liabilities. In consideration of
its being peculiarly the subject of state control, its liability is and should be defined and
limited.' [citation omitted]. There is nothing harsh or inequitable in upholding such a
limitation of liability when it is thus considered that the rates as fixed by the
commission are established with the rule of limitation in mind. Reasonable rates are in
part dependent upon such a rule.
Id. at 1164 (quoting Cole v. Pacific Tel. & Tel. Co., 246 P.2d 686, 688 (1952)). We find the
Waters rationale persuasive and therefore affirm the trial court's endorsement of this
majority view.2
therefore affirm the trial court's endorsement of this majority view.
2

II. BULBMAN'S CLAIM IN FRAUD.
[Headnote 3]
Under NRCP 56(c), summary judgment should only be granted when there are no genuine
issues of material fact and one party is entitled to judgment as a matter of law. Wiltsie v.
Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989). A genuine issue of material
fact exists where the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Valley Bank v. Marble, 105 Nev. 366, 367, 775 P.2d 1278, 1279 (1989)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)).
Orders granting summary judgment are reviewed de novo. Tore, Ltd. v. Church, 105 Nev.
183, 185, 772 P.2d 1281, 1282 (1989). On appeal, this court is required to determine whether
any genuine issues of material fact were created by the pleadings and proof offered below. Id.
While the pleadings and proof offered below must be construed in the light most favorable to
the non-moving party, Hoopes v. Hammergren, 102 Nev. 425, 429, 725 P.2d 238, 241 (1986),
the non-moving party must, by affidavit or otherwise, set forth specific facts demonstrating
the existence of a genuine issue for trial or have summary judgment entered against him.
Collins v. Union Fed. Savings & Loan, 99 Nev. 284, 294, 662 P.2d 610, 618-619 (1983). The
non-moving party is not entitled to build a case on the gossamer threads of whimsy,
speculation, and conjecture.' Id. at 302, 662 P.2d at 621 (quoting Hahn v. Sargent, 523 F.2d
461, 467 (1st Cir. 1975), cert. denied, 425 U.S. 904 (1976)).
In partially granting Nevada Bell's motion for summary judgment, the trial court concluded
that Bulbman had failed to demonstrate the existence of any triable issue of material fact with
respect to Bulbman's fraud claim. In particular, the trial court determined that there is a
paucity of evidence . . . from which a court could infer any intention on the part of [Nevada
Bell] to deliberately cause harm or to deliberately deceive [Bulbman]. On appeal, Bulbman
contends that the district court erred in granting summary judgment as to its fraud claim. We
agree with the trial court.
A plaintiff has the burden of proving each element of fraud claim by clear and convincing
evidence.
__________

2
Tariff A9 requires that all investments, expenses and revenues associated with [Centrex] services be
retained within Nevada Bell's regulated rate base. Thus, Bulbman is wrong to assert that upholding Tariff A2's
liability limitation allows Nevada Bell to have its cake and eat it too.
claim by clear and convincing evidence. Lubbe v. Barba, 91 Nev. 596, 540 P.2d 115 (1975).
These elements are:
1. A false representation made by the defendant;
2. Defendant's knowledge or belief that the representation is false (or insufficient basis for
making the representation);
3. Defendant's intention to induce the plaintiff to act or to refrain from acting in reliance
upon the misrepresentation;
4. Plaintiff's justifiable reliance upon the misrepresentation; and
5. Damage to the plaintiff resulting from such reliance.
Id. at 599, 540 P.2d at 117.
[Headnotes 4, 5]
Summary judgment as to the fraud claim is proper. First, Bulbman fails to raise a genuine
issue concerning whether Nevada Bell either knowingly made false representations or lacked
sufficient basis for making the representations. Nevada Bell's representations to Bulbman
about the cost of Centrex and the installation time are estimates and opinions based on past
experience with the system. As such, these representations are not actionable in fraud. See
Clark Sanitation v. Sun Valley Disposal, 87 Nev. 338, 487 P.2d 337 (1971). Nevada Bell's
representations as to the reliability and performance of the system constitute mere
commendatory sales talk about the product (puffing), also not actionable in fraud. See e.g.,
Coy v. Starling, 630 P.2d 1323 (Or.App. 1981). Furthermore, in his deposition, Gerald Roth,
Jr., testified that he did not believe Nevada Bell had intentionally lied to him about its
Centrex system. Rather, Roth stated that Nevada Bell might have been more careful in
making certain representations, particularly with respect to how long it would take to install a
Centrex system. Roth's testimony establishes the absence of fraudulent intent on the part of
Nevada Bell.
Bulbman also fails to demonstrate a triable issue concerning whether Bulbman was
induced to purchase Centrex by the alleged misrepresentations of Nevada Bell. The
deposition testimony indicates that Bulbman based its decision to purchase Centrex solely on
the advice of the independent telephone consultant retained by Bulbman.
[Headnote 6]
Where an essential element of a claim for relief is absent, the facts, disputed or otherwise,
as to other elements are rendered immaterial and summary judgment is proper. See Sims v.
General Telephone & Electric, 107 Nev. 516, 815 P.2d 151 (1991). Bulbman fails to
demonstrate triable issues of material fact as to the essential elements of a fraud claim. At
most, Bulbman's evidence presents a question of fact concerning the discrepancy between
what Nevada Bell promised and what Nevada Bell actually performed.
evidence presents a question of fact concerning the discrepancy between what Nevada Bell
promised and what Nevada Bell actually performed. The mere failure to fulfill a promise or
perform in the future, however, will not give rise to a fraud claim absent evidence that the
promisor had no intention to perform at the time the promise was made. Webb v. Clark, 546
P.2d 1078 (Or. 1976). This case involves a routine commercial transaction, a purchase and
sale of services. The intentional wrongful conduct required to convert a contract case into a
fraud case cannot be found here. Or, as the trial court commented, the evidence in this case
is simply not the stuff of an intentional tort sounding in fraud.
CONCLUSION
The trial court correctly concluded that the liability limitation contained in Nevada Public
Service Commission Tariff No. A2 applies to Bulbman's claims in negligence and breach of
contract but does not cover the claim of intentional wrongdoing. In so concluding, the trial
court followed a majority of neighboring jurisdictions. As to Bulbman's claim of intentional
misrepresentation, the trial court committed no error in finding no material issues of genuine
fact existed for trial. Among other things, there is no evidence that Nevada Bell harbored the
requisite fraudulent intent.
For the reasons specified above, the partial summary judgment entered by the district court
is affirmed.
____________
108 Nev. 112, 112 (1992) Dawson v. State
HENRY DANIEL DAWSON, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21799
January 24, 1992 825 P.2d 593
Appeal from an order of the district court denying appellant's petition for post-conviction
relief. Eighth Judicial District Court, Clark County; Earle W. White, Jr., Judge.
Defendant was convicted of first degree murder and sentenced to death. After remand for a
new penalty determination, 103 Nev. 76, 734 P.2d 221, defendant was again sentenced to
death, and sentence was affirmed, 104 Nev. 855, 809 P.2d 601. Defendant's petition for
post-conviction relief was denied by the district court and he appealed. The supreme court
held that: (1) trial counsel's failure to impeach murder victim's husband's testimony about
color of his car did not prejudice defendant; {2) jury instruction indicating that jury "may
impose a sentence of death" if it finds that aggravating circumstances outweigh
mitigating circumstances properly informed jury that death sentence was not
compulsory; and {3) trial counsel's alleged failure to conduct sufficient voir dire of jury
when State peremptorily challenged only potential black juror was not ineffective
assistance.
color of his car did not prejudice defendant; (2) jury instruction indicating that jury may
impose a sentence of death if it finds that aggravating circumstances outweigh mitigating
circumstances properly informed jury that death sentence was not compulsory; and (3) trial
counsel's alleged failure to conduct sufficient voir dire of jury when State peremptorily
challenged only potential black juror was not ineffective assistance.
Affirmed.
Cherry & Bailus, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Chief Deputy District Attorney, and William P. Henry, Deputy District Attorney,
1. Criminal Law.
Even if trial counsel was deficient in failing to impeach murder victim's husband's testimony about color of his car, which
allegedly was burgundy, the same color as defendant's car, defendant was not prejudiced, and thus was not denied effective assistance
of counsel; police searched defendant's car and found button identified as having characteristics identical to remaining buttons on
victim's blouse. U.S.C.A.Const. amend. 6.
2. Criminal Law.
Failure of trial counsel to further investigate possible defense that another black man, who had previously thrown beer can hitting
murder victim in back after she had turned him down for a date, committed charged murder was based on trial strategy focusing on the
husband-did-it theory, and thus was not ineffective assistance of counsel. U.S.C.A.Const. amend. 6.
3. Criminal Law.
Supreme Court's previous ruling on direct appeal rejecting defendant's contention about discrepancy in his blood type negating
evidence that it was murder victim's blood in his car was law of case, and thus, supreme court would not address defendant's renewal of
argument about discrepancy on appeal from denial of post-conviction relief.
4. Homicide.
Jury instruction indicating that jury may impose a sentence of death if it finds that aggravating circumstances outweigh
mitigating circumstances properly informed jury in capital murder prosecution that death sentence was not compulsory, even if
aggravating circumstances outweighed mitigating circumstances. NRS 200.030, subd. 4.
5. Homicide.
Statutory aggravating circumstance for first degree murder that murder was committed when defendant was engaged in
committing or attempting to commit robbery, sexual assault, burglary, or other offenses does not require that the aggravating
circumstance also be committed to avoid lawful arrest or to effect an escape from custody; rather, murder to avoid lawful arrest or to
effect an escape from custody is separate circumstance by which first degree murder can be aggravated.
circumstance by which first degree murder can be aggravated. NRS 200.033, 200.033, subds. 4, 5.
6. Criminal Law.
Failure of trial counsel to move to exclude prostitute's testimony, as evidence of other crime, that on day of charged capital murder
she was followed by defendant to her apartment, that he pretended to be police officer and that he raped her, did not fall below
reasonableness standard, and thus was not ineffective assistance of counsel; prostitute's testimony was at preliminary hearing and she
was unavailable at trial, and trial court excised reference to rape. U.S.C.A.Const. amend. 6.
7. Criminal Law.
Trial court's admission of preliminary hearing testimony by prostitute that defendant had followed her to her apartment on day of
charged capital murder and stated that he was going to do the same thing to me he did with a girl at Caesar's Palace with a Coke can,
excising prostitute's reference to defendant's alleged rape of her, was not abuse of discretion; prostitute was subpoenaed to appear at
trial but nonetheless skipped town and was unavailable.
8. Criminal Law.
Trial counsel's failure to move for jury instruction on voluntariness of defendant's post-arrest statements did not fall below
reasonableness standard, and thus was not ineffective assistance; after arrest, defendant was read his Miranda rights, acknowledged he
understood those rights, signed card, and made statement, and detective testified to that statement. U.S.C.A.Const. amend. 6.
9. Criminal Law.
Trial counsel's alleged failure to conduct sufficient voir dire of jury when State peremptorily challenged only potential black juror
was not ineffective assistance of counsel, where at time of trial United States Supreme Court had not yet decided Batson.
10. Criminal Law.
Defendant's claim that he was victim of discrimination and that his counsel was ineffective for not preventing State from imposing
death sentence because he was black and victim was white was not supported by record; defendant offered no evidence that death
sentence was given in discriminatory way or in manner that transgressed any of his constitutional rights. U.S.C.A.Const. amend. 6.
11. Homicide.
Information charging defendant with killing victim with malice aforethought, which information had heading indicating that
murder was with use of deadly weapon, was sufficient to apprise defendant of facts on which State based murder charge, and thereafter
it was jury's duty to assign degree of murder. NRS 179.375, 193.165, 200.010, 200.030.
OPINION
Per Curiam:
Appellant Henry Daniel Dawson (Dawson) was convicted of first degree murder and
sentenced to death. We affirmed the conviction and remanded for a new penalty
determination. See Dawson v. State, 103 Nev. 76, 734 P.2d 221 (1987). After his second
penalty hearing, Dawson was sentenced to death, and we affirmed the sentence.
affirmed the sentence. See Dawson v. State, Docket No. 18558, Order Dismissing Appeal,
October 21, 1988. Dawson filed a proper person petition for post-conviction relief, alleging
that he had received ineffective assistance of counsel and requesting the appointment of
counsel. The district court denied the request for counsel and dismissed the petition. We
directed the district court to hold an evidentiary hearing to resolve the factual issues raised in
Dawson's petition and to appoint counsel to represent him during those proceedings. See
Dawson v. State, Docket No. 20440, Order of Remand, November 17, 1989. After an
evidentiary hearing, the district court denied Dawson's petition for post-conviction relief. We
conclude that none of Dawson's claims of ineffective assistance of counsel warrant relief. We
therefore affirm the district court.
Discussion
Claims of ineffective assistance of counsel are reviewed under the reasonably effective
assistance standard articulated by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). See Bejarano v. State, 106 Nev. 840, 842, 801 P.2d 1388,
1389 (1990). This standard requires the defendant to show that counsel's assistance was
deficient and, secondly, that the deficient assistance prejudiced the defense. Strickland,
466 U.S. at 687.
More particularly, deficient assistance requires a showing that counsel's representation
fell below an objective standard of reasonableness. Id. at 688. In order to eliminate the
distorting effects of hindsight, courts indulge in a strong presumption that counsel's
representation falls within the broad range of reasonable assistance. If the defendant shows
that counsel's performance was deficient, the defendant must show that, but for counsel's
errors, the result of the trial would probably have been different. Id. at 694; Davis v. State of
Nevada, 107 Nev. 600, 601, 602, 817 P.2d 1169, 1170 (1991).
We now address, based on the above standards, the various claims of ineffective assistance
of counsel.
Failure to properly impeach Shepard's husband.
[Headnote 1]
On March 7, 1985, the body of Leslie Shepard (Shepard) was found behind Caesar's
Palace. She was almost nude and had been bludgeoned to death by a soft-drink canister. At
approximately 5:50 a.m. that morning, Shepard reported to work at a Stop 'N' Go market. She
disappeared shortly thereafter. At trial, Shepard's husband testified that he fought with his
wife the night before her death, and that after their fight, he went "bar hopping" with a
friend.
before her death, and that after their fight, he went bar hopping with a friend. He further
testified that he had physically injured Shepard several times during their marriage. Dawson's
counsel attempted to paint Shepard's husband as the murderer.
Dawson first contends that his counsel failed to properly impeach Shepard's husband as to
his heavy substance abuse and his propensity for violence based on his criminal history. The
record, however, reveals that Dawson makes unfounded statements about the husband's
substance abuse and that Mr. Shepard's criminal history (arrest reports) does not show a
propensity for violence.
1

Dawson secondly contends that his counsel failed to properly impeach Shepard's husband
when Mr. Shepard testified that his car was red. Dawson asserts that the police report
indicates that Mr. Shepard's car was burgundy, the same color as Dawson's car. At the
evidentiary hearing, however, Dawson stated his car was not burgundy but was a
white-over-maroon, 1971 two-door Lincoln Continental.
Even if counsel's failure to impeach Mr. Shepard's testimony about the color of his car
constitutes deficient performance, the overwhelming evidence in this case undermines any
showing by Dawson that he was prejudiced by such deficient performance. A trial witness
who knew Dawson placed him at the scene of the abduction around the time Shepard
disappeared. According to that testimony, Dawson was driving alone in his car as he pulled
into the Stop 'N' Go market. He pulled up to the gas booth which Shepard tended, stopped for
about five minutes, and drove away with a white passenger who had brownish,
shoulder-length hair and wore a blue shirt. Pictures of Shepard's body were introduced at trial.
Shepard was also identified as a white female with brownish-blond, shoulder-length hair.
Shepard wore a blue Stop 'N' Go shirt as part of her work uniform. After leaving the Stop 'N'
Go market, Dawson ran a red light and headed toward the back of Caesar's Palace. Another
witness, an employee of Caesar's Palace, testified at trial that she saw a two-toned car
speeding away from the back of Caesar's Palace at approximately the same time that Shepard
was killed.
Furthermore, the police searched Dawson's car and found two buttons, a small piece of
belt and some hair samples. A witness identified one of the buttons as having characteristics
identical to the remaining buttons on Shepard's blouse. The belt was identified as part of
Shepard's belt. The hair samples had similar characteristics as hair samples taken from
Shepard's body.
__________

1
The record indicates that Shepard's husband had been arrested for burglary and driving under the influence
of alcohol. However, the burglary charge was dismissed because there was insufficient evidence.
characteristics as hair samples taken from Shepard's body. Hence, we conclude that Dawson
has failed to show that he was prejudiced by counsel's failure to impeach Mr. Shepard when
he testified about the color of his car.
Accordingly, these impeachment contentions fail the standards set forth in Strickland.
Failure to conduct a proper investigation.
[Headnotes 2, 3]
Dawson next argues that his counsel failed to conduct a proper investigation into a
plausible line of defense, namely, that another black man named Warren Cowart murdered
Shepard. He contends that the charge against appellant was a case of mistaken identity.
Dawson's support for this argument is that approximately one month before Shepard's death,
Cowart asked Shepard out on a date. She declined. He got angry and threw a beer can which
hit her in the back. He later pled guilty to misdemeanor assault charges. At the evidentiary
hearing, counsel noted that he was aware of this altercation, but that his trial strategy
nevertheless focused on the husband-did-it theory. After review of the record, we conclude
that counsel conducted a reasonable investigation into the Cowart incident and thereafter
reasonably pursued another line of defense. Strategic choices made by counsel after
thoroughly investigating the plausible options are almost unchallengeable. Strickland, 466
U.S. at 690. Accordingly, we find that counsel's performance did not fall below the
reasonableness standard enunciated in Strickland.
2

Failure to object to a jury instruction.
[Headnote 4]
Dawson contends that during the penalty phase of his trial, counsel failed to properly argue
that NRS 200.030(4)
3
does not mandate that the jury impose the death penalty, even
when aggravating circumstances outweigh mitigating circumstances.
__________

2
Dawson also renews an argument about a discrepancy in his blood type, negating evidence that it was
Shepard's blood on his car. This court has previously rejected this argument as meritless. See Dawson v. State,
Docket No. 18558, Order Dismissing Appeal, October 21, 1988. Therefore, this is the law of the case, and we
will not address this issue. Hall v. State, 91 Nev. 314, 315, 535 P.2d 797, 798 (1975).

3
NRS 200.030(4) provides:
4. Every person convicted of murder of the first degree shall be punished;
(a) By death, only if one or more aggravating circumstances are found and any mitigating
circumstance or circumstances which are found do not outweigh the aggravating circumstance or
circumstances.
(b) Otherwise, 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.
mandate that the jury impose the death penalty, even when aggravating circumstances
outweigh mitigating circumstances. He further argues that his counsel failed to point out that
Dawson was not required to establish any mitigating circumstance in order to receive a
sentence less than death.
The jury instruction which Dawson now contends should have been objected to at the
penalty hearing provided:
The jury may impose a sentence of death if it finds at least one aggravating
circumstance has been established beyond a reasonable doubt and further finds that
there are not mitigating circumstances sufficient to outweigh the aggravating
circumstances found.
Otherwise, the punishment imposed shall be imprisonment in the State Prison for
life with or without the possibility of parole.
(Emphasis added.)
Recently, we discussed this exact instruction and found that the word may is commonly
understood by reasonable jurors as a permissive word that does not mandate a particular
action. Riley v. State, 107 Nev. 205, 217, 808 P.2d 551, 558-59 (1991). Thus the jury was
properly informed that the imposition of the death sentence was not compulsory, even if
aggravating circumstances outweighed mitigating circumstances. Id; see also Bennett v.
State, 106 Nev. 135, 144 787 P.2d 797, 803 (1990) (Nevada's statute does not require the
jury to impose the death penalty under any circumstances, even when the aggravating
circumstances outweigh the mitigating circumstances.), cert. denied, 111 S.Ct. 307 (1991).
[Headnote 5]
Dawson also alleges that his counsel was ineffective for failing to object to the following
aggravating circumstances instruction on the ground that it was unconstitutionally overbroad:
You are instructed that the following factors are circumstances by which murder of the
first degree may be aggravated:
1. The murder was committed while the defendant was engaged in the commission of
or an attempt to commit or flight after committing or attempting to commit
Kidnapping in the First Degree.
2. The murder was committed while the defendant was engaged in the commission of
or an attempt to commit or flight after committing or attempting to commit sexual
assault.
(Emphasis added.) Dawson argues that without a further definition, this instruction merely
repeats a crucial element of the underlying offense.
underlying offense. He contends that this aggravating circumstance actually refers to killings
that occur when an individual attempts to fend off an actual arrest and flee custody.
Apparently, Dawson is arguing that NRS 200.033(4)
4
must be coupled with NRS 200.033(5)
5
; otherwise, any murder committed during the crimes enunciated in NRS 200.033(4) will
always be aggravated.
We conclude, however, that the instruction reflected a proper reading of NRS 200.033.
NRS 200.033(4) is a separate circumstance by which murder of the first degree may be
aggravated. There is no requirement that the aggravating circumstance in NRS 200.033(4)
must also be committed to avoid a lawful arrest or to effect an escape from custody. Instead,
NRS 200.033 provides that a murder to avoid lawful arrest or to effect an escape from
custody is, pursuant to NRS 200.033(5), a separate circumstance by which a first degree
murder can be aggravated.
Accordingly, counsel did not have adequate grounds to object to these jury instructions,
and, consequently, Dawson's claims in regard to these jury instructions do not meet the
Strickland test.
Failure to move to exclude the prostitute's testimony.
[Headnote 6]
Yvonne Jackson (Jackson), a Las Vegas prostitute, testified at a preliminary hearing that
on the day of Shepard's death, she was followed by Dawson to her apartment; he pretended to
be a police officer and raped her. Jackson was warned that if she did not testify, the State
would get a material witness warrant to compel her appearance. Jackson was thereafter
subpoenaed to appear at trial; nonetheless, she skipped town and was unavailable at trial. Her
preliminary hearing testimony was therefore read into evidence.
Dawson argues that counsel was ineffective because he failed to move to exclude
Jackson's testimony, as prejudicial reference to a prior criminal act, namely, that Dawson
raped Jackson. The district court, however, excised the reference to rape.6 In regards to
this argument, we therefore find that counsel's performance was within the
reasonableness standard of Strickland.
__________

4
NRS 200.033(4) provides that a first degree murder may be aggravated when:
4. The murder was committed while the person was engaged, alone or with others, in the commission
of or an attempt to commit or flight after committing or attempting to commit, any robbery, sexual
assault, arson in the first degree, burglary, invasion of the home or kidnaping in the first degree, and the
person charged:
(a) Killed or attempted to kill the person murdered; or
(b) Knew or had reason to know that life would be taken or lethal force used.

5
NRS 200.033(5) provides that first degree murder may be aggravated when [t]he murder was committed
to avoid or prevent a lawful arrest or to effect an escape from custody.
district court, however, excised the reference to rape.
6
In regards to this argument, we
therefore find that counsel's performance was within the reasonableness standard of
Strickland.
[Headnote 7]
Dawson also argues that counsel was ineffective for failing to object to the admission of
Jackson's testimony based on the fact Dawson was denied the right to cross-examine Jackson.
The decision to admit preliminary hearing testimony after balancing the prejudicial effect
against its probative value is one addressed to the sound discretion of the trial court.
Passarelli v. State, 93 Nev. 292, 294, 564 P.2d 608, 610 (1977). We conclude that the district
court did not abuse its discretion in admitting Jackson's testimony with the reference to rape
excised. Accordingly, Dawson's claim fails under Strickland.
Failure to move to suppress Dawson's statements and for a jury instruction on the
voluntariness of those statements.
[Headnote 8]
Dawson argues that counsel was ineffective for failing to move to suppress Dawson's
statements which he made to the police at his apartment. Because this argument was
previously raised and rejected on appeal, Dawson, 103 Nev. at 78, n.1, 734 P.2d at 221, n.1, it
is the law of the case. Hall, 91 Nev. at 315, 535 P.2d at 797. We therefore will not address
this contention.
Dawson also argues that the statements he gave at his apartment and his post-arrest
statements required a voluntariness jury instruction. After Dawson was arrested, he was read
his Miranda rights, acknowledged he understood those rights, signed the Miranda card, and
made a statement. A detective testified as to that statement. An instruction regarding the
voluntariness of a suspect's statement need be given only when voluntariness is at issue.
Laursen v. State, 97 Nev. 568, 570, 634 P.2d 1230, 1231 (1981). Here, voluntariness was
never raised as an issue. Hence, with respect to this claim, Dawson fails to show that
counsel's performance fell below the reasonableness standard of Strickland.
Failure to argue that jury selection and the infliction of the death penalty were racially
motivated.
[Headnote 9]
Dawson contends that counsel failed to conduct sufficient voir dire of the jury when the
State allegedly preempted the only potential black juror in violation of Batson v.
Kentucky, 476 U.S. 79 {19S6).
__________

6
Only the following parts of Jackson's testimony were read into the record: Dawson came into her
apartment, pretended he was a police officer, and stated that he was going to do the same thing to me he did
with the girl at Caesar's Palace with a coke can.
dire of the jury when the State allegedly preempted the only potential black juror in violation
of Batson v. Kentucky, 476 U.S. 79 (1986). At the time of trial, the United States Supreme
Court had not yet decided Batson. Dawson cannot now claim that a failure to object under
Batson was ineffective assistance even before Batson was decided.
[Headnote 10]
Next, Dawson contends that he was the victim of discrimination and that his counsel was
ineffective for not preventing the State from imposing the death sentence because he was
black and the victim was white. A review of the record does not support Dawson's contention.
Dawson offered no evidence that the death sentence was given in a discriminatory way or in a
manner that transgresses any of his constitutional rights. See Williams v. State, 103 Nev. 227,
232, 737 P.2d 508, 511 (1987) (appellant offered no evidence to show Nevada's death penalty
was unconstitutionally inflicted upon indigents and minorities). Therefore, Dawson has failed
to show that counsel's performance fell below an objective level of reasonable assistance.
Failure to assert that the information did not apprise Dawson of the acts he allegedly
committed.
[Headnote 11]
Finally, appellant alleges that his counsel failed to assert, by pre-trial writ, that the
information did not comply with Nevada law in that it did not sufficiently inform appellant
that he faced the charges of murder, sexual assault, and kidnapping. We reject this contention.
We first note that at the preliminary hearing, the State attempted to amend the criminal
complaint by adding the charges of rape and kidnapping. The district court denied the
proposed amendment, and the information charged Dawson only with murder. Because
Dawson was not charged with sexual assault or kidnapping, we need only address this issue
as to the murder charge. The information provided in part:
Robert J. Miller, District Attorney within and for the County of Clark, State of
Nevada, in the name and by the authority of the State of Nevada, informs the Court:
That HENRY DANIEL DAWSON, JR., the Defendant above named, on or about
the 7th day of March 1985, at and within the County of Clark, State of Nevada, contrary
to form, force and effect of statutes in such cases made and provided, and against the
peace and dignity of the State of Nevada, did then and there, without authority of law
and with malice aforethought, wilfully and feloniously kill LESLIE GAIL SHEPARD,
a human being, by striking the said LESLIE GAIL SHEPARD about the head with a
deadly weapon, to wit: a soft drink canister.
LESLIE GAIL SHEPARD about the head with a deadly weapon, to wit: a soft drink
canister.
The information heading provided MURDER WITH USE OF A DEADLY WEAPON
(FelonyNRS 200.010, 200.030, 193.165).
Under our law, the information must specify the acts of criminal conduct. Sheriff v.
Standal, 95 Nev. 914, 916, 604 P.2d 111, 112 (1979). An information charging murder is
sufficient to charge murder in the first degree. Thedford v. Sheriff, Clark County, 86 Nev.
741, 745, 476 P.2d 25, 29 (1970). The information essentially followed the suggested form
set forth in NRS 179.375.
7
The information properly charged Dawson with murder; it
specifically explained the means by which Dawson allegedly killed Shepard, apprising him of
the facts on which the State based the murder charge. Thereafter, it was the jury's duty to
assign the degree of murder. Therefore, this claim of ineffective assistance of counsel fails
under the Strickland test.
All of Dawson's contentions having failed to meet the test for ineffective assistance of
counsel established in Strickland, we hereby affirm the order of the district court denying
Dawson's petition for post-conviction relief.
__________

7
Information: An information may be in substantially the following form:
INFORMATION
STATE OF NEVADA }
} ss.
COUNTY
------------------------------
}
In the
------------
court. The State of Nevada against A. B., C. D. district attorney within and for the
county of
----------------
in the state aforesaid, in the name and by the authority of the State of Nevada,
informs the court that A. B. on the
--------
day of
-----------------------
, A.D. 19
------
, at the county
of
--------------------
, did (here state offense) against the peace and dignity of the State of Nevada.
C.D., District Attorney
or C.D., District Attorney, by H.M., Deputy.
____________
108 Nev. 123, 123 (1992) SIIS v. Khweiss
STATE INDUSTRIAL INSURANCE SYSTEM, an Agency of the State of Nevada,
Appellant, v. EMAD KHWEISS, Respondent.
No. 22120
January 24, 1992 825 P.2d 218
Appeal from an order of the district court reversing the determination of an appeals officer
in a worker's compensation case. Eighth Judicial District Court, Clark County; Gerard J.
Bongiovanni, Judge.
Workers' compensation claimant filed claim for emergency out-of-state surgery on venous
malformation of claimant's shoulder. State Industrial Insurance System (SIIS) denied request
for compensation and appeal was taken. The district court reversed. SIIS appealed. The
supreme court held that finding that additional emergency surgery was unrelated to industrial
accident was supported by evidence that previous surgery had restored claimant's shoulder to
preaccident condition.
Reversed.
R. Scott Young, General Counsel, Carson City; Arleen N. Kaizer, Associate General
Counsel, Las Vegas, for Appellant.
H. Douglas Clark, Las Vegas, for Respondent.
Claimant may be entitled to workers' compensation benefits for out-of-state surgery, even without preauthorization, where insurer
fails to object and does not dispute that particular surgical procedure was reasonable and necessary medical treatment.
Although district court may decide pure legal questions without deference to agency determination, agency's conclusions of law
which are closely related to agency's view of facts are entitled to deference and should not be disturbed if they are supported by
substantial evidence. NRS. 233B.010 et seq., 233B.135, subds. 1-3.
State Industrial Insurance System, after paying for surgery which restored claimant's shoulder to pre-accident condition, was not
responsible for later out-of-state emergency surgery for venous malformation; finding that emergency surgery was unrelated to
industrial accident was compelling evidence that claimant failed to meet his burden of showing that industrial injury aggravated
pre-existing condition. NRS 233B.010 et seq., 233B.135, subds. 1-3.
OPINION
Per Curiam:
Around 1981, Emad Khweiss had a tumor surgically removed from his right shoulder.
from his right shoulder. His physician advised him of its potential for regrowth. In July, 1985,
while working at the Marrakech Restaurant, Khweiss fell and injured the same shoulder.
Khweiss filed a claim for worker's compensation in August of 1985, which SIIS denied on
the ground that the agency could not substantiate his assertion that he was working on the
date of the injury. Khweiss appealed, and SIIS reversed as to this ground. However, because
of a December 15, 1986 report from Jesse Perry, M.D., stating that Khweiss's proposed
surgery doesn't have any relationship to his fall other than trying to clear up the mass over his
right shoulder which apparently was aggravated by his fall, SIIS ultimately denied Khweiss's
request for compensation for his surgery. Khweiss appealed, and in April, 1987, a hearings
officer affirmed SIIS's determination to deny compensation for the surgery, finding that the
medical reporting does not establish a causal relationship between the proposed surgery and
any industrial causation, nor demonstrate where the condition of Mr. Khweiss is found to be a
compensable consequence of [the industrial injury]. Khweiss again appealed, and on
September 4, 1987, the appeals officer entered an interim order that a medical review board
be convened to determine whether the industrial injury precipitated the trauma and led to the
need for surgery.
In August of 1987, Khweiss underwent emergency surgery in Washington, D.C., which
was a second incision of the venous malformation of his right shoulder. The medical review
board's report of May, 1988, stated that the tumor predated the fall and also stated that:
[Khweiss] should have been covered under an Industrial basis for all his disability and
wound care up to the time of the definitive surgery at George Washington on August
7th, but that the definitive surgery should probably not be covered as it was a
pre-existing tumor that was present at the time of the fall, and that the tumor was not
caused by the fall.
(Emphasis added.) The medical review board also noted that that type of surgery is not
routinely performed in the Las Vegas area. In another medical report, Dr. Trout, the vascular
surgeon who performed the initial surgery four years prior to the industrial injury, stated:
[I]t is a pre-existing condition and . . . propensity for regrowth was always there, since
it is obvious that I did not completely excise it at the first operation. Whether it would
ever have regrown without the trauma is not possible to answer.
In December, 1988, an appeals officer affirmed that SIIS was not responsible for payment
for the shoulder surgery. She noted that the claimant's surgical procedure performed in
Washington, D.C., in August, 1987, is the same procedure accomplished on a non-industrial
basis in 1981. The instant procedure was performed out of state, was unauthorized, and its
denial by the State Industrial Insurance System was proper. Khweiss appealed to the district
court, which held on February 11, 1991, that the appeals officer had incorrectly relied upon
State Industrial Insurance System v. Kelly, 99 Nev. 774, 671 P.2d 29 (1983). The district
court reversed the appeals officer's decision and remanded the case back to SIIS with
instructions to pay for the August, 1987 surgery.
[Headnote 1]
SIIS assumed responsibility for payment for the medical work required to return Mr.
Khweiss's shoulder to its condition prior to the industrial accident. It is undisputed that
Khweiss had a pre-existing condition that had required prior surgery. However, SIIS disputes
the district court's determination that SIIS must compensate Khweiss for the emergency
surgery on his shoulder.
1
SIIS argues that the district court should have affirmed the decision
of the appeals officer because Nevada law upholds the discretionary authority of
administrative hearing officers unless they misconstrue the applicable law.
2
SIIS argues that
the hearings officer correctly applied Kelly to the facts.
__________

1
The fact that Khweiss did not obtain authorization before his emergency surgery does not mean he is not
entitled to compensation. A claimant may be entitled to compensation for out-of-state surgery even without
pre-authorization where the insurer failed to object and did not dispute that the particular surgical procedure was
reasonable and necessary medical treatment. Day v. S & S Pizza Co., 714 P.2d 275 (Or.App. 1986). See also
Gullick v. Industrial Commission, 383 P.2d 123 (Ariz. 1963).

2
NRS 233B.135(2) and (3) provide:
2. The final decision of the agency shall be deemed reasonable and lawful until reversed or set aside
in whole or in part by the court. The burden of proof is on the party attacking or resisting the decision to
show that the final decision is invalid pursuant to subsection 3.
3. The court shall not substitute its judgment for that of the agency as to the weight of evidence on a
question of fact. The court may remand or affirm the final decision or set it aside in whole or in part if
substantial rights of the petitioner have been prejudiced because the final decision of the agency is:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Made upon unlawful procedure;
(d) Affected by other error of law;
(e) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record;
or
(f) Arbitrary or capricious or characterized by abuse of discretion.
[Headnote 2]
Under the Administrative Procedure Act, district court review of any agency's decision is
to be conducted by the court without a jury and is restricted to the record. NRS 233B.135(1).
The question is whether the [administrative] board's decision was based on substantial
evidence; neither this court nor the district court may substitute its judgment for that of the
administrative agency. State, Emp. Sec. Dep't v. Weber, 100 Nev. 121, 124, 676 P.2d 1318,
1320 (1984) (citing McCracken v. Fancy, 98 Nev. 30, 639 P.2d 552 (1982)). Although the
district court may decide pure legal questions without deference to an agency determination,
an agency's conclusions of law which are closely related to the agency's view of the facts are
entitled to deference and should not be disturbed if they are supported by substantial
evidence. See Barnum v. Williams, 84 Nev. 37, 42, 436 P.2d 219, 222 (1968).
[Headnote 3]
In State Industrial Insurance System v. Kelly, 99 Nev. 774, 671 P.2d 29 (1983), the first
Nevada case to discuss whether industrial aggravation of a pre-existing condition is
compensable, this court stated that:
The claimant has the burden of showing that the claimed disability or condition was in
fact caused or triggered or contributed to by the industrial injury and not merely the
result of the natural progression of the preexisting disease or condition.
Id. at 775-76, 671 P.2d at 30. In Kelly the claimant successfully demonstrated that the
industrial injury aggravated his medical condition. Thus, this court held that SIIS had to
compensate him for his surgery.
In SIIS v. Thomas, 101 Nev. 293, 701 P.2d 1012 (1985), however, restoring a claimant to
pre-injury condition was sufficient to preclude coverage. Thomas was a police officer with a
history of shoulder dislocations. When he dislocated his shoulder again during the course and
scope of employment, SIIS paid for his medical treatment; subsequently, his physician
recommended corrective surgery to prevent future dislocations. SIIS denied approval for the
operation because of his history of prior dislocations. Id. at 294, 701 P.2d at 1013. The
appeals officer also denied Thomas's request for coverage, finding that Thomas had suffered
multiple dislocations prior to his work-related injury, that he had been returned to his
pre-injury condition, and that the industrial injury had not caused his need for further surgery.
Id. at 296-97, 701 P.2d at 1015. This court upheld the appeals officer's finding and reversed
the district court because there was substantial evidence that Thomas had been restored to
his pre-injury condition. Id. at 297, 701 P.2d at 1015.
substantial evidence that Thomas had been restored to his pre-injury condition. Id. at 297, 701
P.2d at 1015.
We conclude that the instant case is more analogous to Thomas than Kelly. As in Thomas,
SIIS compensated a claimant for medical work that restored him to his pre-injury condition.
The finding of the medical review board that the additional surgery in Washington, D.C., was
unrelated to the industrial accident, as well as the appeals officer's ruling to the same effect,
are compelling evidence that SIIS should not be held responsible for the operation. The
substantial evidence against Khweiss convinces us that Khweiss has not met his burden of
showing that the industrial injury aggravated the condition. Thus, we conclude that the
district court's ruling was error.
Accordingly, we reverse the judgment of the district court.
____________
108 Nev. 127, 127 (1992) Homick v. State
STEVEN MICHAEL HOMICK, Appellant, v. THE STATE OF NEVADA, Respondent
No. 20447
January 27, 1992 825 P.2d 600
Appeal from judgment of conviction, pursuant to jury verdict, of three counts of
first-degree murder with use of a deadly weapon, robbery with use of a deadly weapon,
burglary, and a sentence of death. Eighth Judicial District Court, Clark County; Myron E.
Leavitt, Judge.
Defendant was convicted in the district court of three counts of first-degree murder with
use of a deadly weapon, robbery with use of a deadly weapon, and burglary, and was
sentenced to death. He appealed. The supreme court held that: (1) defendant's remarks in
allocution exceeded facts in mitigation or pleas for leniency permitted in allocution, and thus,
prosecutor's rhetorical questions to jury were proper rebuttable argument invited by
unauthorized remarks; (2) prosecutor's remarks regarding surviving members of victim's
family were not improper victim impact comments; and (3) Nevada statutory and case law
permits use of multiple underlying felonies, committed in continuous course of conduct, as
aggravating circumstances.
Affirmed.
Schieck & Derke, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney; and
Melvyn T. Harmon, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Defendant's remarks in allocution in penalty phase of capital murder trial stating that prosecution witnesses during guilt phase
were liars and that he had never confessed to murder exceeded facts in mitigation or pleas for leniency permitted in allocation, and
thus, prosecutor's rhetorical questions to jury regarding whether defendant had told them what his long-time criminal confederate had
told defendant were proper rebuttal argument invited by unauthorized remarks.
2. Criminal Law.
Capital defendant has narrowly defined right to make brief unsworn statement in mitigation to jury or three judge panel at close of
presentation of penalty phase; before defendant speaks, he shall be instructed by a court, outside of presence of jury, of limited scope of
right, that his statement is subject to court's supervision, and that should statement go beyond boundaries permitted he will be subject
to corrective action by court, including either comment by court or prosecutor or in some cases possible reopening of case for
cross-examination.
3. Criminal Law.
Prosecutor's remarks regarding surviving members of victims' family, in penalty phase of capital murder prosecution, were not
improper victim impact comments.
4. Criminal Law; Homicide.
Nevada Constitution imposes no barrier to capital sentencing jury considering victim impact evidence as it relates to victim's
personal character or emotional impact of murder on victim's family, nor does it preclude prosecution from arguing such evidence.
5. Criminal Law.
Key to criminal sentencing in capital cases is ability of sentencer to focus upon and consider both individual characteristics of
defendant and nature and impact of crime he committed; only then can sentencer truly weigh evidence before it and determine
defendant's just deserts.
6. Homicide.
Nevada law permits use of multiple underlying felonies, committed in continuous course of conduct, as aggravating circumstances
in penalty phase of capital murder trial. NRS 200.033, subd. 4.
7. Homicide.
Evidence of California homicides, concerning which charges were pending, was neither impalpable nor highly suspect, and thus
could be admitted in penalty phase of Nevada murder trial; evidence was introduced through testimony of police officer based upon
investigations connected by California and Nevada law enforcement authorities. NRS 175.552.
8. Criminal Law.
Failure of detective to preserve his notes regarding informal interview of defendant's ex-girlfriend concerning alibi did not require
reversal of capital murder conviction; girlfriend formally recanted her earlier statements concerning alibi, girlfriend testified at trial
making it clear that event which allegedly provided alibi did not occur, and defendant did not allege bad faith on part of State in failing
to preserve notes of informal interview.
9. Criminal Law.
Evidence of subsequent shootings by third party with same gun allegedly used by defendant to commit charged capital murders
was properly admitted to connect weapon used in charged murders to defendant; same weapon had been used in each incident, and
testimony of shooter in uncharged incident explained why same weapon had been used in both incidents.
shooter in uncharged incident explained why same weapon had been used in both incidents. NRS 48.045, subd. 2.
10. Criminal Law.
Testimony indicating that defendant had provided cocaine to his confederate was relevant to show motive of confederate in
accepting weapon defendant allegedly had used in charged capital murders to use in attempted murder by confederate. NRS 48.045,
subd. 2.
11. Criminal Law.
Evidence of defendant's threats against jeweler and his girlfriend concerning jewelry taken during charged capital murder and
shown to jeweler by defendant was admissible to tie defendant to charged murders and to explain why jeweler delayed disclosing to
police his knowledge of defendant's involvement in murders.
12. Criminal Law.
State's presentation of evidence at trial of involvement in two prior California homicides by defendant's confederate did not violate
trial court's in limine ruling that evidence concerning California homicides would be excluded as unduly prejudicial, or unduly
undermine such ruling; names of victims, surrounding circumstances of other murders, and defendant's personal involvement or
presence at scene of other murders occurring months before charged capital murders were not revealed directly or indirectly to jury,
and references to California murders were limited to testing confederate's credibility on stand.
13. Criminal Law.
Hearsay statement attributed to defendant's cohort, given at time when cohort had motive to lie in manner that would benefit
defendant, was inadmissible in capital murder prosecution under rule excluding statement which tends to expose declarant to criminal
liability and which is offered to exculpate defendant unless supported by clearly trustworthy corroborating circumstances; and
semblance of corroboration for hearsay was eliminated when informal statement by third party paralleling cohort's was recanted. NRS
51.345, subd. 1.
14. Homicide.
Defendant charged with capital murder is not entitled to requested special instructions listing residual doubt as mitigating
circumstance.
15. Homicide.
Evidence, including testimony concerning defendant's admissions to jeweler, to whom defendant allegedly had shown jewelry
stolen from victim, was sufficient to support defendant's convictions of first-degree murder of three unarmed victims with use of a
deadly weapon.
16. Homicide.
Sentence of death imposed on defendant, who was convicted of three counts of first-degree murder of unarmed victims with use of
deadly weapon was not result of passion, prejudice, or any arbitrary factor and was not excessive; among aggravating factors were that
murders were committed while defendant was committing burglary and robbery and that murders were committed to avoid or prevent
arrest.
OPINION
Per Curiam:
Appellant Steven Michael Homick was convicted by a jury of the first-degree murder of
three unarmed victims with the use of a deadly weapon and sentenced to death.
the first-degree murder of three unarmed victims with the use of a deadly weapon and
sentenced to death. Homick was also convicted of robbery with the use of a deadly weapon,
and burglary. On appeal, Homick raises several assignments of error, including emphatic
claims of reversible error stemming from an alleged violation of the Fifth Amendment
judicial nuance precluding the State from commenting on an exercise of the right to remain
silent, and prosecutorial comment on the family of the victims. We conclude from our review
of the trial record that Homick was fairly tried, convicted, and sentenced. We therefore affirm
the judgment and sentence of death entered below.
FACTS
In the early afternoon of December 11, 1985, David Tipton, unsuccessful in contacting his
wife by telephone concerning their planned luncheon engagement for the day, drove
unsuspectingly to a horror scene awaiting him at his Las Vegas home. After entering his
residence and walking down the hall, he observed the body of a male sprawled across the
floor at the entrance to the master bedroom. Mr. Tipton also noticed that the bedroom had
been ransacked and that jewelry boxes were strewn about on the floor. Finally, the frantic
man saw the bodies of his wife, Bobbie Jean Tipton, and the Tipton's housekeeper, Marie
Bullock, on the floor of the walk-in closet containing a floor safe.
The trial evidence reflects that Homick had learned of the valuable jewelry owned by Mrs.
Tipton as a result of his employment as a security specialist with The Tower of Jewels, a Las
Vegas jewelry store where the victim had taken 50 to 60 pieces of her jewelry for appraisal
and cleaning. Timothy Catt, a jeweler employed at The Tower of Jewels, testified that
Homick told him that he had heard through his wife that Bobbie Jean Tipton was a very
wealthy lady with magnificent jewelry, and that only a portion of it had been taken to The
Tower of Jewels.
During the month following the murders, Homick twice showed Catt items of jewelry that
Catt recognized as part of a collection belonging to Bobbie Jean Tipton. Homick did not
indicate where he had obtained the jewelry, and warned both Catt and Catt's girlfriend, under
threat, to keep quiet about the jewelry. Catt, who on occasion had worked on various pieces
of the victim's jewelry, was familiar with many of the items because of their unique qualities.
Finally, after inquiring of Catt as to the value of a pear-shaped diamond ring owned by Mrs.
Tipton, Homick arranged to meet Catt at a commercial center. The meeting took place in
Catt's automobile. After complaining of money problems, Homick eventually told Catt about
the crimes he had committed in the Tipton residence.
Catt's testimony concerning Homick's admissions was consistent with the evidence found
at the scene of the crimes. Homick stated to Catt that when Mrs. Tipton opened the floor safe,
he shot her in the head. Homick also declared that he also shot the nigger. As Homick
continued to search for money inside the house, the doorbell rang. Homick answered the
door, yanked the man inside and offed him. The latter victim, James Meyers, was a
deliveryman for a local steak and seafood business. Catt, fearful of Homick, did not reveal his
knowledge of Homick's criminal conduct to the police until after Homick was taken into
custody.
Autopsy examinations of the two female victims revealed that each had been shot in the
head three times, evincing wounds consistent with those made by .22 caliber bullets. An
autopsy on the body of James Meyers disclosed two bullet wounds to the head and one .38
caliber bullet wound to the anterior chest. The trial evidence revealed that Homick had
possessed handguns consistent with those used in killing the three victims.
We deem it unnecessary to recite in detail the full extent of the evidence adduced at trial in
support of the State's case against Homick. To characterize the evidence of his guilt as
overwhelming is an evaluation fully supported by the record. The evidence of record vividly
portrays the picture of what occurred in the Tipton residence on the morning of December 11,
1985. Homick's own daughter provided police with items of jewelry taken from the Tiptons
and given to her by her father. Other witnesses presented testimony clearly identifying
jewelry belonging to Mrs. Tipton in the possession of Homick. Indeed, a police surveillance
in California produced evidence obtained by binocular viewing of Homick and others passing
pieces of jewelry, and Homick placing the jewelry in plastic bags. A search of the surveilled
premises pursuant to a search warrant, produced, among other items, a stone later identified
as having been specially created for, and belonging to, Bobbie Jean Tipton.
Additional evidence of Homick's guilt included testimony by a long time friend and
criminal confederate of Homick's, Michael Dominguez, who, at Homick's behest, attempted
to murder a man by the name of Craig Maraldo to satisfy a drug debit owed to Homick. A
firearms expert, Richard Good, testified that the eight .22 caliber Remington long rifle
expended cartridge casings recovered from the Tipton house were fired from the same
weapon as six of the seven expended casings found at Maraldo's residence. Moreover,
Dominguez testified that on the afternoon of the day of the Tipton murders, he saw in
Homick's car the same .22 Ruger with silencer that Homick had loaned to Dominguez to kill
Maraldo.
In January of 1986, Ronald Byrl, another of Homick's associates, was arrested and his
house examined pursuant to a warranted search. Among the items uncovered by the search
were a diamond ring and two handguns, a .38 and a .22, both equipped with silencers. Byrl
testified that Homick brought a number of pieces of jewelry to him in order to use his
portable grinder to clean the items and remove identifying markings. Homick explained to
Byrl that the jewelry came from a good job. Also included among the items taken to Byrl
were several rings, a lady's blue Piaget wristwatch, and a man's Rolex watch later identified
as belonging to David and Bobbie Jean Tipton, Byrl testified that Homick had also asked him
to store eight handguns.
As previously stated, it is unnecessary to recite fully the evidence of Homick's guilt. The
qualitative and quantitative magnitude of the evidence against Homick leaves slight room for
doubt concerning the verity of his guilt.
1

DISCUSSION
Homick strenuously contends that reversible error occurred in the penalty phase of his
trial. We will therefore address that phase of trial first and thereafter discuss issues relating to
assignments of error attributable to the guilt phase of trial.
THE PENALTY PHASE
[Headnote 1]
I. Whether constitutional error resulted from a prosecutorial comment on Homick's
exercise of his Fifth Amendment right to remain silent. Homick insists that the prosecutor
improperly commented on the exercise of his Fifth Amendment right to remain silent after he
had presented his unsworn testimony pursuant to his common law right of allocution. See
Griffin v. California, 380 U.S. 609, 615 (1965). During the guilt phase of the trial, Homick
had exercised his constitutional right not to testify. In order to analyze the propriety of the
prosecutor's conduct, it is helpful to explore the history and substance of the right of
allocution.
The right of allocution was recognized as early as 1689. See Green v. United States, 365
U.S. 301, 305 (1961), citing Anonymous, 3 Mod. 265, 266, 87 Eng. Rep. 175 (K.B.).
Allocution constituted a formal address by the court to the defendant after he was convicted
but prior to the imposition of sentence, inquiring as to whether there were any reasons
why judgment should not be pronounced.
__________

1
A pen register device monitoring Homick's phone line had been secured by the FBI in connection with a
prior investigation. The device revealed that Homick had placed a call to the Tipton residence on December 2,
1985, and on the evening of the date of the murders. Homick had also asked a friend in the police department to
run a check on the registration of two vehicles; both vehicles were registered to the Tiptons.
was convicted but prior to the imposition of sentence, inquiring as to whether there were any
reasons why judgment should not be pronounced. Barrett, Allocution, 9 Mo. L. Rev. 115
(1944).
More recently, allocution has been viewed as the right of the defendant to stand before the
sentencing authority and present an unsworn statement in mitigation of sentence, including
statements of remorse, apology, chagrin, or plans and hopes for the future. DeAngelo v.
Schiedler, 757 P.2d 1355, 1358 (Or. 1988). Although the United States Supreme Court has
declared that the right of allocution is not of constitutional derivation or dimension, it has
been aptly stated that it bespeaks our common humanity that a defendant not be sentenced to
death by a jury which never heard the sound of his voice.' State v. Zola, 548 A.2d 1022,
1045 (N.J. 1988) (quoting McGautha v. California, 402 U.S. 183, 220 (1971).
Importantly, however, the right of allocution is not without constraints. The New Jersey
Supreme Court focused on the concern of the prosecution that a defendant should not be
permitted to lie with impunity to a jury that is attempting to reach a rational fact-based
conclusion on whether he shall live or die. Zola, 548 A.2d at 1045. The Zola court wisely
determined that a defendant would not be permitted to rebut any facts in evidence, to deny
his guilt, or indeed, to voice an expression of remorse that contradicts evidentiary facts. Id.
See also State v. Mak, 718 P.2d 407 (Wash.), cert. denied, 479 U.S. 995 (1986) (allocution
rule does not contemplate the defendant presenting evidence on the issue before the jury that
would be unsworn, unrebuttable, uncross-examined and unanswerable by argument). The
reasoning of the Zola and Mak courts is persuasive. Prior to commencing the penalty phase of
trial and the imposition of sentence, issues of guilt and innocence have been considered and
decided adversely to the defendant. They should not be reintroducible through an unsworn
statement by the defendant under guise of the right of allocution.
[Headnote 2]
We conclude that capital defendants in the State of Nevada enjoy the common law right of
allocution.
2
However, if a defendant succeeds in abusing the right and extends his
remarks beyond acceptable expressions of remorse, pleas for leniency, and plans or hopes
for the future, into the realm of facts or circumstances relating to guilt or exculpation,
"[t]hese types of facts are subject to rebuttal and form the basis for disputed issues
which the trier of fact must resolve and, therefore, justify impeachment."
__________

2
In Hardison v. State, 104 Nev. 530, 763 P.2d 52 (1988), we concluded that statutory rights to allocution did
not apply in capital cases because of the more specific statutorily derived procedures for determining the
appropriate punishment in first-degree murder cases. We therefore concluded that after a jury has assessed a
penalty of death, the judge has no discretion and must enter judgment according to the verdict of the jury . . . .
Thus, a statement by [the defendant] in his own behalf would serve no function. Id. at 534-35, 763 P.2d at 55
(emphasis added). To the extent necessary, we clarify Hardison. As noted above, Hardison addressed the right
of a defendant to
ant succeeds in abusing the right and extends his remarks beyond acceptable expressions of
remorse, pleas for leniency, and plans or hopes for the future, into the realm of facts or
circumstances relating to guilt or exculpation, [t]hese types of facts are subject to rebuttal
and form the basis for disputed issues which the trier of fact must resolve and, therefore,
justify impeachment. Sullivan, The Capital Defendant's Right to Make a Personal Plea for
Mercy: Common Law Allocution and Constitutional Mitigation, 15 N.M. L. Rev. 41, 63
(1985). We endorse and adopt the following ruling of the New Jersey Supreme Court in Zola:
[W]e shall permit the narrowly-defined right of a capital defendant to make a brief
unsworn statement in mitigation to the jury [or a three judge panel] at the close of the
presentation of evidence in the penalty phase. Before a defendant speaks, he shall be
instructed by the court, outside of the presence of the jury, of the limited scope of the
right; that his statement is subject to the court's supervision; and that should the
statement go beyond the boundaries permitted he will be subject to corrective action by
the court including either comment by the court or prosecutor or in some cases possible
reopening of the case for cross-examination.
Zola, 548 A.2d at 1046, See also State v. Bontempo, 406 A.2d 203, 213 (N.J.Super.Ct. Law
Div. 1979) (a defendant who undertakes to answer part of the evidence against him in an
unsworn statement is subject to comment as to factual thrusts he does not meet).
Having determined the proper latitude to be accorded defendants in the exercise of their
right of allocution, we turn now to the facts of the instant case. Homick utilized his moment
of allocution to stray far beyond facts in mitigation of sentencing or pleas for leniency;
instead, Homick proclaimed his innocence and revisited facts and testimony of relevance
only during the guilt phase of his trial.
__________
address the judge after sentence has been determined by the sentencing body (jury or three-judge panel) and
there remains no sentencing discretion. Our ruling in the instant case affirms the right of a capital defendant to
make an unsworn statement to the sentencing body prior to the determination of sentence.
In Hardison, the appellant also contended that the trial court had an affirmative duty to advise him of the
possibility of giving an unsworn statement to the jury. Our response to the contention basically indicated that
pursuant to NRS 175.552, Hardison had every opportunity to present any information in mitigation of
punishment. Although our use of the word information as opposed to evidence may reflect an indication that
Hardison would have been allowed to make an unsworn statement to the jury prior to the determination of
sentence, we now eliminate doubt on the point and again stress the right of a capital defendant to make such a
statement before the sentencing body reaches a determination concerning sentence. However, it is the obligation
of defense counsel to advise the defendant of the right of allocution rather than the trial court.
for leniency; instead, Homick proclaimed his innocence and revisited facts and testimony of
relevance only during the guilt phase of his trial. During his comments, he stated that
Michael Dominguez told me of who and what happened regarding Tipton. Homick also
declared that I never confessed to Tim Catt and that the State's witnesses during the guilt
phase were liars. These are precisely the type of improper remarks that justify prosecutorial
impeachment if the trial judge fails to suppress their introduction by the defendant.
Here, the prosecutor responded to Homick's improper and unsworn comments by
rhetorically asking the jury: Did he tell you what Mike Dominguez told him? Has he told
anybody what Michael Dominguez told him? Far from constituting impermissible comment
on the defendant's post-arrest silence, the prosecutor properly posed the questions in the form
of rebuttal argument invited by Homick's unauthorized remarks. There was no error of
constitutional dimension or otherwise.
[Headnote 3]
II. Whether the State's comments concerning the impact of the murders on the surviving
members of the victims' families constituted reversible error. Homick complains about two
areas of comment made by the prosecutor in closing argument. The prosecutor stated:
That's the only reason Marie Bullock doesn't breathe to this day is because he didn't
want somebody looking at him and telling the police. Just like James Meyers, she was
in the wrong spot at the wrong time. It's the only reason her child is without a mother.

. . . .

I'll tell you quite honestly I grieve for the family of Steve Homick. I am sure they
have been traumatized by the charges and by these proceedings in a sense they're
victims just like Debbie Meyers and David Tipton and the family of Marie Bullock.

. . . .

It's interesting at this hearing how everything somehow gets turned upside down. It
was all right for the defense to call witness after witness . . . .
(Emphasis added.)
It is arguable that the underscored, passing remarks in the prosecutor's argument
constituted improper victim impact comments under the rulings of Booth v. Maryland, 482
U.S. 496 (1987) and South Carolina v. Gathers, 490 U.S. 805 (1989). Booth and Gathers both
proscribed victim impact evidence during the penalty phase of a capital trial on grounds
that such evidence was per se barred by the Eighth Amendment.
evidence was per se barred by the Eighth Amendment. However, in the recent case of Payne
v. Tennessee, 111 S.Ct. 2597 (1991), the Booth and Gathers cases were reevaluated and
specifically overruled. The Court in Payne concluded that the Eighth Amendment posed no
barrier to a capital sentencing jury considering victim impact evidence as it relates to the
victim's personal character and the emotional impact of the murder on the victim's family nor
precluded the prosecution from arguing this type of evidence at the capital sentencing
hearing. The Supreme Court cited Booth for the proposition that the capital defendant must be
treated as a uniquely individual human being, Booth, 482 U.S. at 504, and that an
individualized determination must be made based upon the character of the individual and
the circumstances of the crime. 482 U.S. at 502. The defendant may offer any relevant
mitigating evidence in support of a sentence less than death. Eddings v. Oklahoma, 455 U.S.
104, 114 (1982). However, the Payne Court reasoned that a misreading of Booth has resulted
in virtually limitless admissions of mitigating evidence concerning a defendant's own
circumstances while the State has been barred from either offering a glimpse of the life
which the defendant chose to extinguish, Mills v. Maryland, 486 U.S. 367, 397 (1988)
(Rehnquist, C. J. dissenting), or demonstrating the losses to the victim's family and to society
which have resulted from the defendant's act of murder. Payne, 111 S.Ct. at 2607.
The Payne Court rectified the imbalance attributable to Booth and Gathers, as noted
above, by ruling that:
[T]he State has a legitimate interest in counteracting the mitigating evidence which the
defendant is entitled to put in, by reminding the sentencer that just as the murderer
should be considered as an individual, so too the victim is an individual whose death
represents a unique loss to society and in particular to his family. Booth, 482 U.S., at
517 (White, J., dissenting) [citation omitted]. By turning the victim into a faceless
stranger at the penalty phase of a capital trial, Gathers, 490 U.S. at 821 (O'Connor, J.,
dissenting), Booth deprives the State of the full moral force of its evidence and may
prevent the jury from having before it all the information necessary to determine the
proper punishment for a first-degree murder.
Payne, 111 S.Ct. 2608. We applaud the decision in Payne as a positive contribution to capital
sentencing, and conclude that it fully comports with the intendment of the Nevada
Constitution.
[Headnotes 4, 5]
Homick urges us to disapprove of the ruling in Payne and search for loftier heights in our
constitution.
search for loftier heights in our own constitution. We are cautioned that otherwise defendants
who murder more reputable and valued citizens will be more likely to suffer the imposition of
death than the murderer who kills citizens of lesser stature. We find the argument
unpersuasive. The key to criminal sentencing in capital cases is the ability of the sentencer to
focus upon and consider both the individual characteristics of the defendant and the nature
and impact of the crime he committed. Only then can the sentencer truly weigh the evidence
before it and determine a defendant's just deserts. Apropos to the point is the statement by the
venerable Justice Cardozo in Snyder v. Massachusetts, 291 U.S. 97, 122 (1934), that justice,
though due to the accused, is due to the accuser also. The concept of fairness must not be
strained till it is narrowed to a filament. We are to keep the balance true.
We would have great difficulty finding reversible error in the passing references of the
prosecutor even under the Booth and Gathers standards. In any event, Payne is dispositive of
the issue, and we therefore conclude that error did not result from the comments of the
prosecutor regarding the surviving members of the victims' families. Homick created the
evidence portraying the immutably tragic consequences to his victims and their loved ones.
He is hardly in a position to complain that a jury of his peers was given a fair exposure to his
handiwork.
[Headnote 6]
III. Whether error resulted from using both robbery and burglary in support of separate
aggravating circumstances. Homick contends that the district court erred in permitting the
State to utilize both robbery and burglary as a basis for separate aggravating circumstances
despite the commonality of facts underlying both. He maintains that the result of such a
stacking practice is the arbitrary and capricious imposition of the death penalty. We are
aware that certain jurisdictions among our sister states do not permit the use of multiple
felonies occurring during an indivisible course of conduct as support for separate
aggravating circumstances. People v. Harris, 679 P.2d 433, 449-50 (Cal.), cert. denied, 469
U.S. 965 (1984). We do not agree with the reasoning of those courts that preclude the use of
multiple felonies committed in a continuous course of conduct, and have adopted a contrary
position in Nevada.
In Wilson v. State, 99 Nev. 362, 376, 664 P.2d 328, 336 (1983), we stated:
A logical reading of the statute [NRS 200.033(4)] requires that each felony be used as
an aggravating circumstance. First degree murder is aggravated when it is committed
during the course of one of the enumerated felonies contained in NRS 200.033{4).
during the course of one of the enumerated felonies contained in NRS 200.033(4).
Therefore, when the murder is committed during the course of more than one of the
felonies listed, the murder is more aggravated and heinous than it would have been if
only one of the felonies were present.
More recently, in Bennett v. State, 106 Nev. 135, 143, 787 P.2d 797, 802, cert. denied, 111
S.Ct. 307 (1990), we stated that Nevada statutory and case law specifically authorize the use
of multiple underlying felonies as aggravating circumstances . . . . We reaffirm our rulings in
Wilson and Bennett which are dispositive of this issue. Therefore, Homick's claim of error is
without merit.
[Headnote 7]
IV. Whether uncorroborated evidence of homicides committed by Homick in California
were properly admissible. Homick claims that he was prejudiced by the introduction of
evidence concerning homicides which he allegedly committed in California. This issue is also
without merit. Under Nevada law, NRS 175.552, evidence which may or may not ordinarily
be admissible under the rules of evidence may be admitted in the penalty phase of a capital
trial as long as the questioned evidence is not supported solely by impalpable or highly
suspect evidence. Young v. State, 103 Nev. 233, 237, 737 P.2d 512, 515 (1987). In Crump v.
State, 102 Nev. 158, 716 P.2d 1387, cert. denied, 479 U.S. 871 (1986), we noted that our
decision in Gallego v. State, 101 Nev. 782, 711 P.2d 856 (1985), cert. denied, 479 U.S. 871
(1986), held that evidence that a defendant had committed an unrelated homicide for which
he had not been convicted may be admitted during the penalty phase of the defendant's trial,
not to establish the existence of an aggravating circumstance, but rather as other matter
which the court deems relevant to sentence.' Crump, 102 Nev. at 161, 716 P.2d at 1388
(citation omitted) (quoting NRS 175.552). The determination of whether to admit or exclude
such evidence is left to the sound discretion of the trial court. Gallego, 101 Nev. at 791, 711
P.2d at 863.
In Homick's case, the evidence of the California homicides, concerning which charges
were pending, was properly allowed by the district court. Evidence of the homicides was
introduced through the testimony of a police officer based upon investigations conducted by
California and Nevada law enforcement authorities. The evidence was neither impalpable nor
highly suspect. There was no error.
THE GUILT PHASE
[Headnote 8]
I. Whether the failure of the police to preserve notes of an interview allegedly indicating
an alibi for Homick constituted reversible error.
interview allegedly indicating an alibi for Homick constituted reversible error. Homick
insists that because a police detective failed to preserve his notes regarding an informal
interview with Homick's ex-girlfriend concerning an alibi, his conviction must be reversed.
The claim is meritless.
In Sparks v. State, 104 Nev. 316, 759 P.2d 180 (1988), we determined that lost evidence
attributable to the State may constitute a basis for overturning a conviction when (1) the
defendant is prejudiced by the loss or, (2) the evidence was lost' in bad faith by the
government. Id. at 319, 759 P.2d at 182. It is clear from the record that any prospect of
advantage from having access to the lost notes was basically nullified when the interviewee
formally recanted her earlier statements concerning an alibi for Homick. Moreover, the
interviewee also testified at trial, making it clear that a luncheon involving Homick, and
concerning which some alibi potential may have existed, did not occur.
Finally, Homick has not alleged bad faith on the part of the State in the failure to preserve
the notes of the informal interview, and has not shown that the notes, even if they existed,
would have been exculpatory and material to his defense. See Boggs v. State, 95 Nev. 911,
604 P.2d 107 (1979). Homick's assignment of error must fail.
[Headnotes 9-11]
II. Whether prejudicial error occurred in the admission of evidence of prior bad acts.
Homick contends that he was prejudiced by error resulting from the admission of evidence
concerning prior bad acts. We disagree. In no instance was such evidence admitted in
violation of NRS 48.045(2), which prohibits the introduction of evidence of prior bad acts for
purposes of showing character consistency. Evidence of the Maraldo and McDowell
shootings was properly admitted to connect the Tipton murder weapon to Homick. The same
weapon had been used in each instance, and the testimony of Dominguez concerning the
Maraldo and McDowell incidents was essential to understanding why the same weapon used
in those shootings was also used in the Tipton murders. Moreover, the testimony indicating
that Homick provided cocaine to Dominguez was also relevant in showing the motive for
Dominguez accepting the weapon from Homick to use in the attempted murder of Maraldo.
See Bails v. State, 92 Nev. 95, 545 P.2d 1155 (1976) (where motive otherwise not
established, evidence of defendant's drug use was permissible to show motive and identity).
We need not consider evidence of the Godfrey murder because it was introduced by defense
counsel in an attempt to shift blame for the Tipton murders to Michael Dominguez. Finally, it
is apparent why there was no error in admitting evidence of Homick's threats against Catt and
his girlfriend concerning the Tipton jewelry shown to Catt by Homick.
Homick. The evidence tied Homick to the Tipton crimes and explained why Catt delayed
disclosing to the police his knowledge of Homick's involvement in the Tipton murders.
Our review of the record persuades us that evidence of the prior bad acts admitted by the
district court, and now challenged by Homick on appeal, satisfied the criteria set forth by this
court in Berner v. State, 104 Nev. 695, 765 P.2d 1144 (1988). Homick's claim of error is
without merit.
[Headnote 12]
III. Whether an order in limine was violated by testimony elicited by the State. Homick
objects to references at trial to Dominguez' involvement in two California homicides. Homick
suggests that the jury might have inferred from such references that Homick had a criminal
past. The district court had ruled in limine that evidence concerning the double homicide
would be excluded as unduly prejudicial. This court has determined that the test for
determining a reference to criminal history is whether a juror could reasonably infer from the
facts presented that the accused had engaged in prior criminal activity.' Manning v. Warden,
99 Nev. 82, 86, 659 P.2d 847, 850 (1983) (quoting Commonwealth v. Allen, 292 A.2d 373,
375 (Pa. 1972)). The names of victims, the surrounding circumstances of other murders, and
Homick's personal involvement or presence at the scene of another multiple slaying occurring
months before the Tipton murders, were not revealed directly or indirectly to the jury. The
references to the California slayings were limited to testing Dominguez' credibility on the
stand. Therefore, the trial court's ruling on the Motion in Limine was not violated or
undermined by the State.
[Headnote 13]
IV. Whether it was reversible error to disallow alibi testimony attributable to Lawrence
Ettinger. Homick challenges the trial court's ruling disallowing testimony by Detective
Dillard concerning alleged alibi evidence in the form of a hearsay statement attributable to
Homick's cohort, Lawrence Ettinger. The statement, given at a time when Ettinger had a
motive to lie in a manner that would benefit Homick, was unreliable. Moreover, any
semblance of corroboration for the hearsay was eliminated when Susan Hines recanted her
informal statement paralleling Ettinger's. The hearsay statement was properly excluded by the
trial court pursuant to NRS 51.345(1), which makes inadmissible any statement which tends
to expose the declarant to criminal liability and is offered to exculpate the accused without
support in the form of clearly trustworthy corroborating circumstances.
[Headnote 14]
V. Whether the trial court erred in refusing Homick's instruction listing residual doubt
as a mitigating circumstance.
tion listing residual doubt as a mitigating circumstance. Homick contends that he was
entitled to a special jury instruction listing residual doubt as a mitigating circumstance. He is
wrong. We are in accord with the Court's ruling in Franklin v. Lynaugh, 487 U.S. 164 (1988),
that there is no constitutional mandate for a jury instruction in a capital case making residual
doubt a mitigating circumstance. The district court was correct in refusing such an
instruction.
[Headnote 15]
VI. Whether there was sufficient evidence to prove Homick's guilt beyond a reasonable
doubt. We are urged to reverse Homick's judgment of conviction on the ground that there was
insufficient admissible evidence to prove his guilt beyond a reasonable doubt. Our review of
the record persuades us to the contrary. The State's case against Homick was extremely
strong.
Although we have found no basis in this record for doubting the accuracy of the jury's
conclusions, we nevertheless note that our review is based upon the standard that it 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). Based upon our review of the evidence, we must conclude that the jury, acting
reasonably, had more than substantial evidence upon which to determine, with the requisite
degree of certitude, that Homick was guilty of the crimes charged against him.
[Headnote 16]
We have carefully considered Homick's other assignments of error and conclude that they
are without merit. Additionally, we note that the jury found four aggravating circumstances
and no mitigating circumstances. The evidence fully supports the jury's finding, beyond a
reasonable doubt, that Homick's crimes were aggravated by: (1) the murder of the three
victims by a person who knowingly created a great risk of death to more than one person by
means of a weapon, device or course of action which would normally be hazardous to the
lives of more than one person; (2) the three murders were committed while the person was
engaged in the commission of or an attempt to commit any burglary; (3) the three murders
were committed while the person was engaged in the commission of or an attempt to commit
any robbery; and (4) the three murders were committed to avoid or prevent a lawful arrest.
In reviewing the overall record, we conclude that the sentence of death imposed on
Homick by the jury was not the result of passion, prejudice or any arbitrary factor and that the
sentence was not excessive, considering both the extremely serious nature of Homick's
crimes and the individual characteristics and background of the defendant.
was not excessive, considering both the extremely serious nature of Homick's crimes and the
individual characteristics and background of the defendant.
Having determined that Homick was fairly tried, convicted, and sentenced, we affirm in all
respects the judgment of conviction and the sentences imposed thereon, including the
sentence of death.
____________
108 Nev. 142, 142 (1992) Verreaux v. D'Onofrio
VIOLET S. VERREAUX, VALORIE CARLIN VERREAUX, and EDWARD SCOTT
VERREAUX, III, Appellants, v. SUSAN D'ONOFRIO, Respondent.
No. 21472
January 30, 1992 824 P.2d 1021
Appeal from order dismissing complaint for deficiency judgment. Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
Vendors of residential apartment building in Nevada sought to recover principal and
interest due on note received as partial payment after purchaser sold property pursuant to
trustee's sale which destroyed security interest. The district court granted purchaser's motion
to dismiss based on application of California's antideficiency law. Appeal was taken. The
supreme court held that Nevada's interest in applying Nevada law with respect to out-of-state
owners of Nevada real property outweighed California's interest in having its antideficiency
legislation applied.
Graziadei & Cantor, Las Vegas, for Appellants.
Compton & Kemp, Las Vegas, for Respondent.
1. Courts.
Purchaser had sufficient contacts with Nevada concerning both purchase transaction and breach of its terms to render unavailing
any complaints of unfairness in application of Nevada law where purchaser assumed notes secured by Nevada deed of trust in
conjunction with purchase, agreed to make payments under secured note in Nevada or as directed, and operated apartment complex in
Nevada that was subject of controversy. U.S.C.A.Const. art. 4, 1; amends. 5, 14.
2. Mortgages.
Nevada's interest in applying Nevada law with respect to out-of-state owners of Nevada real property outweighed California's
interest in having its antideficiency legislation applied. NRS 40.455, 40.455, subd. 1; Const art. 6, 4.
OPINION
Per Curiam:
Facts
On April 21, 1983, appellants Violet, Valorie, and Edward Verreaux (the Verreauxes) sold
a residential apartment building located in Clark County, Nevada, for a consideration which
included, as partial payment, a note in the amount of $20,000. The note was payable in Las
Vegas, Nevada, and secured by a second deed of trust on the apartment building.
Subsequently, on September 16, 1985, respondent, Susan D'Onofrio, purchased the apartment
building and assumed the note. On the same date, the Verreauxes and D'Onofrio executed an
amendment to the note which expressly provided that the Verreauxes did not waive their
rights to secure redress on the note and deed of trust. Both the Verreauxes and D'Onofrio
were residents of California. The Verreauxes' security interest was destroyed on June 18,
1986, when the property was conveyed pursuant to a trustee's sale.
The Verreauxes filed a complaint in Nevada to recover the principal and interest due on
the note. D'Onofrio filed a motion to dismiss that was granted by the district court on the
theory that California's anti-deficiency law
1
applied, barring Verreauxes' claim. For the
reasons set forth below, we reverse.
Discussion
[Headnote 1]
Choice of law considerations implicate the Due Process Clause (fairness to the litigants)
and the Full Faith and Credit Clause (respect for another sovereign). Allstate Insurance Co. v.
Hague, 449 U.S. 302, 308 (1981). D'Onofrio had sufficient contacts with Nevada concerning
both the transaction and the breach of its terms to render unavailing complaints of unfairness
in the application of Nevada Law. D'Onofrio assumed a note secured by a Nevada deed of
trust in conjunction with the purchase of Nevada real estate. Moreover, D'Onofrio agreed to
make payments under the secured note in Las Vegas, Nevada, or as directed. Finally,
D'Onofrio operated the apartment complex in Nevada that was the subject of the controversy.
These facts reflect sufficient contacts with Nevada, and a sufficient state interest in applying
Nevada's own law, to warrant the conclusion that the choice of Nevada law is constitutional
and not arbitrary or fundamentally unfair. See Hague, 449 U.S. at 312-13.
D'Onofrio's significant aggregation of contacts with Nevada created in Nevada a
substantial interest in upholding its own law and policies. "NRS Chapter 40 'provides a
comprehensive scheme of creditor and debtor protection with respect to the foreclosure
and sale of real property subject to security interests.'" Welburn v.
__________

1
Cal. Civ. Proc. Code 580(b) (West Ann. 1976 and Supp. 1991).
created in Nevada a substantial interest in upholding its own law and policies. NRS Chapter
40 provides a comprehensive scheme of creditor and debtor protection with respect to the
foreclosure and sale of real property subject to security interests.' Welburn v. District Court,
107 Nev. 105, 108, 806 P.2d 1045, 1047 (1991) (quoting Component Systems v. District
Court, 101 Nev. 76, 82, 692 P.2d 1296, 1301 (1980)); see NRS 40.455 (deficiency judgment);
cf. Key Bank v. Donnels, 106 Nev. 49, 51-52, 787 P.2d 382, 384 (1991); Sievers v.
Diversified Mtg. Investors, 95 Nev. 811, 815, 603 P.2d 270, 273 (1979); Kish v. Bay
Counties Title Guaranty Co., 254 Cal.App.2d 725 (Cal.Ct.App. 1967). This court stated in
Welburn that Nevada deficiency actions do not significantly conflict with California's
sovereignty and Nevada has a strong interest in protecting the efficacy of the deficiency
statute with respect to out of state owners of Nevada real property.
2
Welburn, 107 Nev. at
107, 806 P.2d at 1047.
[Headnote 2]
Accordingly, we conclude that Nevada's interest in applying Nevada law outweighs
California's interest in having its antideficiency legislation applied in the instant case.
Following the trustee's sale, the Verreauxes were entitled to apply to the district court for a
deficiency judgment pursuant to NRS 40.455(1). We therefore reverse the district court's
order dismissing appellants' complaint and remand this matter for further proceedings in
accordance with this opinion.
Mowbray, C. J., Rose, Steffen and Young, JJ., and Huffaker, D. J.,
3
concur.
__________

2
California's anti-deficiency statute derogates from the common law. Key Bank v. Donnels, 106 Nev. 49,
787 P.2d 382 (1990) (citing 3 Sutherland, Statutory Construction 61.01 (4th ed. 1986)).

3
The Honorable Stephen L. Huffaker, Judge of the Eighth Judicial District, was designated by the Governor
to sit in the place of The Honorable Charles E. Springer, Justice. Nev. Const. art. 6, 4.
____________
108 Nev. 145, 145 (1992) Davidsohn v. Doyle
LUIS DAVIDSOHN, Appellant/Cross-Respondent, v. HELEN DOYLE,
No. 21481
January 30, 1992 825 P.2d 1227
Appeal and cross-appeal from summary judgment. Eighth Judicial District Court, Clark
County; Thomas A. Foley, Judge.
Landlord filed complaint for declaratory relief to terminate commercial lease. The district
court entered judgment in favor of tenant, and landlord appealed. The supreme court held
that: (1) landlord did not waive his right to terminate commercial lease by accepting rent from
tenant after informing tenant that she had breached lease by failing to keep property in good
repair, and (2) landlord was not required to comply with notice requirements of unlawful
detainer statutes.
Michael R. Mushkin & Associates and Mark C. Hafer, Las Vegas, for
Appellant/Cross-Respondent.
Lionel Sawyer & Collins and David N. Frederick, Las Vegas, for
1. Landlord and Tenant.
Landlord did not waive his right to terminate commercial lease by accepting rent from tenant after informing tenant that she had
breached lease by failing to keep property in good repair; landlord timely pursued his action to terminate lease, and tenant was aware of
landlord's intentions to terminate if repairs were not timely made.
Lessor has right to accept rent after breach by lessee when lessor timely expresses his or her intent to terminate lease and lessee
nevertheless remains in possession.
Landlord who sought to terminate commercial lease based on tenant's alleged violation of lease term requiring tenant to keep
premises in good repair was not required to comply with notice requirements of unlawful detainer statute. NRS 40.2516.
Lessor who seeks termination under lease provision is not obligated to meet notice requirements of unlawful detainer statute. NRS
40.2516.
5. Forcible Entry and Detainer.
In unlawful detainer action, strict compliance with statutory notice provision is jurisdictional prerequisite.
OPINION
Per Curiam:
Facts
Appellant Luis Davidsohn leased land and commercial warehouses to the respondent,
Helen Doyle. Doyle, in turn, subleased space to various parties. The Davidsohn-Doyle lease
requires Doyle, at her own cost to keep the entire demised premises in good condition and
repair.
1
Paragraph 7(h) of the lease permits the lessor to reenter the property and terminate
the lease upon the lessee's breach.
2

In February 1988, Davidsohn hired Ivan Tippetts, a real estate appraiser and licensed
contractor, to inspect the condition of the leased premises. Tippetts' inspection revealed a
complete disregard for the maintenance, health, safety and code requirements. Consequently,
Davidsohn's attorney sent a letter to Doyle and her attorney. The first three paragraphs of the
letter discuss the Tippetts report. The fourth paragraph of the letter states:
THIS LETTER IS NOTICE OF TERMINATION OF THE LEASE TENANCY.
Pursuant to the Lease, you have thirty (30) days within which to institute significant
repair efforts. I am well aware that it is virtually impossible to accomplish what is
needed to bring this property up to the very minimum standard within thirty (30) days.
This notice is sent pursuant to the Lease and the requirements within the State of
Nevada.
The remainder of the letter expresses concern over the condition of the leased property, and
suggests that the parties' attorneys sit down to devise a plan of action.
Tippetts reinspected the property in April after Doyle made some repairs, but found that
the work was not done in a professional manner, and that it failed to cure the major
problems.
__________

1
The lease provision reads:
4. MAINTENANCE: Lessee shall at their own cost and expense keep the entire demised premises,
including any building or buildings constructed by Lessee, in good condition and repair at all times.
Lessor shall be under no obligation whatsoever to make any repairs to any portion of the demised
premises nor shall Lessor at any time be called upon or obligated to remodel, redecorate or perform
pertaining to the demised premises or any building or buildings thereon.

2
Paragraph 7(h), in pertinent part, states:
If any default be made by the Lessee in the observance or performance of any of the terms, conditions
or covenants hereof, the Lessor shall have the right, after first having given the Leessee at least fifteen
days written notice of such default, and the Lessee not having cured the same within such fifteen days, to
enter into possession of the demised premises and to remove all persons and property therefrom and, at
Lessor's option to terminate this lease.
some repairs, but found that the work was not done in a professional manner, and that it failed
to cure the major problems. Thereafter, Davidsohn's attorney sent a second letter to Doyle,
dated April 25, 1988. This letter stated that Doyle's lease was terminated because she failed to
remedy the breach charged in the March 14th letter.
Davidsohn filed a complaint for declaratory relief to terminate the lease on May 3, 1988.
Doyle continued to pay rent through August 1989 by depositing checks in a Los Angeles bank
under an account maintained in the name of Davidsohn's wife. On June 1, 1988, Davidsohn
sought a temporary restraining order, enjoining Doyle from (1) collecting rent from her
sublessees, (2) interfering with Davidsohn's access to the property and tenants, and (3) doing
further work on the property without prior approval. The district court denied this motion, but
ordered Doyle to give Davidsohn reasonable access to the property. Tippetts inspected the
property again on July 21, 1988, and found the repair work still inadequate and
unprofessional. That day Tippetts filed a complaint with the Las Vegas Police Department
stating that his life had been threatened by Doyle's property manager during the inspection.
Davidsohn moved for summary judgment on August 10, 1988. After being granted time
for discovery, Doyle also moved for summary judgment. The court denied Davidsohn's
motion and granted Doyle's on the basis that Davidsohn had waived his right to terminate the
lease by accepting rent from Doyle despite knowledge of the breach. Additionally, the court
determined that the March 14, 1988 letter did not comply with NRS 40.2516, which requires
that written notice in an unlawful detainer action give the tenant the option to comply with
the lease terms or vacate the premises.
Doyle filed a motion to amend the court's findings of fact and conclusions of law and
judgment, seeking attorney's fees and costs of $36,917.36 under the lease. After oral
argument, the court denied Doyle's motion, finding that the lease provision regarding
attorney's fees did not apply under the facts of the case.
Davidsohn appealed from the grant of summary judgment in favor of Doyle, and Doyle
cross-appealed from the denial of her motion requesting attorney's fees and costs. We are
convinced that under the facts of this case, Davidsohn did not waive his right to terminate the
lease by accepting rent from Doyle. We are also persuaded that Davidsohn gave Doyle
adequate notice of his intent to terminate the lease. Therefore, we reverse the summary
judgment and remand the matter to the district court for further proceedings.
Discussion
A party is entitled to summary judgment when there are no material issues of fact to be
resolved, and the moving party is entitled to judgment as a matter of law. NRCP 56(c).
Neither party contends that there are any disputed material factual issues. Therefore, our
analysis centers on whether the district court correctly perceived and applied the law. Mullis
v. Nevada Nat'l Bank, 98 Nev. 510, 512, 654 P.2d 533, 535 (1982).
A. Acceptance of rent as a waiver of breach.
[Headnote 1]
In ruling as it did, the district court relied on the general rule that when a lessor accepts
rent, with full knowledge of a breach by his lessee, the lessor waives his right to terminate the
lease based upon that breach. Reno Realty v. Hornstein, 72 Nev. 219, 301 P.2d 1051 (1956);
Sharp v. Twin Lakes Corp., 71 Nev. 162, 283 P.2d 611 (1955).
Davidsohn urges this court to recognize an exception to the general rule based upon the
protracted pendency of the action between the parties, the commercial nature of the subject
lease, and the March 14, 1988 notice of default communicated to Doyle. The principal
Nevada case holding that a lessor waives his right to terminate a lease by accepting rent from
the lessee is Sharp v. Twin Lakes Corp., 71 Nev. 162, 283 P.2d 611 (1955). In Sharp, a lessee
sued its lessor for the return of deposit money which was held in escrow to ensure
performance of the lease terms. The lessor counterclaimed for forfeiture of the lease based on
numerous breaches by the lessee. We held that the lessor had waived his right to terminate the
lease for breach by accepting rent without giving the lessee any intimation that he regarded
the lease as forfeited. 71 Nev. at 167, 283 P.2d at 613. Until filing the counterclaim, the
lessor's actions affirmed the existence of the lease and recognized the lessee as his tenant.
Id.
In Sharp, we were concerned about the lessor seeking to terminate the lease after lulling
the lessee into believing that its breach of the terms of the lease would be overlooked. In the
present case, Doyle cannot reasonably contend that Davidsohn's actions led her to believe that
any failure to properly maintain the leased premises would be excused. Davidsohn acted
promptly after learning of the deteriorated condition of the buildings. After giving Doyle an
opportunity to repair the property, Davidsohn pressed for termination of the lease. Doyle was
aware of these efforts as she continued to pay rent for well over a year after Davidsohn
brought suit. Thus, Davidsohn did not induce Doyle into believing the breach would be
excused.
Additionally, the lease involves commercial property. Doyle is a businesswoman
subleasing the property for profit, not an unsophisticated residential tenant in need of a
roof over her head.
a businesswoman subleasing the property for profit, not an unsophisticated residential tenant
in need of a roof over her head. Doyle was in need of no special protection from Davidsohn.
Several neighboring jurisdictions permit a lessor in certain instances to accept rent without
waiving the right to terminate the lease. See DMV Co. v. Bricker, 672 P.2d 933, 935 (Ariz.
1983); Riverside Development Co. v. Ritchie, 650 P.2d 657, 662-63 (Idaho 1982); Fogel v.
Hogan, 496 P.2d 322, 324 (Colo.Ct.App. 1972). These states recognize the general rule that a
landlord's acceptance of rent after notice of a breach waives the right to terminate the lease
based on that breach. However, when a lessor takes definite action to terminate a lease, and
the lessee opposes the action and remains in possession, these jurisdictions allow the lessor to
continue accepting rent from the lessee while pursuing termination. But see Woodland
Theatres v. ABC Intermountain Theatres, 560 P.2d 700 (Utah 1977) (finding a waiver even
though lessor initiated two actions to terminate lease).
[Headnote 2]
We agree with the reasoning of those cases that recognize as an exception to the general
rule, a lessor's right to accept rent after a breach by the lessee when the lessor timely
expresses his intent to terminate the lease and the lessee nevertheless remains in possession.
3
Irrespective of who prevails in litigation, the lessee will be liable for rent incurred during the
period of possession of the demised premises. The issue is simply one of timing, not of
entitlement. Requiring a lessor to forego rental payments until resolution of a dispute may be
unduly burdensome, as in the instant case involving a commercial lease with a substantial
monthly rental. To recognize a waiver in the present case would be tantamount to sanctioning
the breach by allowing Doyle to continue collecting rent from her sublessees without paying
Davidsohn or curing the breach. As stated in Riverside Development:
The doctrine of waiver is an equitable doctrine based upon fairness and justice.
However, the lessor, who has mortgages, taxes and other expenses to pay, cannot fairly
be said to be a beneficiary of such fairness and justice as long as he is forced to avoid
the acceptance of any compensation for a tenant's unlawful possession of the property
(which may extend for periods of months or years due to litigation), because of the
threat that as soon as he does the tenant will cry waiver.
650 P.2d at 662.
__________

3
Cf. Wecht v. Anderson, 84 Nev. 500, 506, 444 P.2d 501, 505 (1968) (lessor did not waive breach by
accepting rent during a grace period given to the lessee to either cure the default or purchase the property).
Based upon our adoption of the exception to the general rule, as discussed above, we hold
that Davidsohn did not waive his right to terminate the lease by accepting rental payments
from Doyle after knowledge of the breach. Davidsohn timely pursued his action, and we
cannot seriously doubt that Doyle was aware of Davidsohn's intention to terminate the lease if
repairs were not timely made. Although the first letter sent to Doyle was somewhat equivocal,
the second letter and the initiation of the declaratory judgment action adequately notified
Doyle that Davidsohn was seeking to terminate the lease because of the state of disrepair of
the leased property. Davidsohn's complaint about the condition of the premises appears well
supported in the record. Therefore, Davidsohn may pursue his action for termination despite
his acceptance of the rent tendered by Doyle.
B. Sufficiency of the notice.
[Headnotes 3, 4]
The district court determined that Davidsohn failed to give adequate notice of his intent to
terminate the lease, because the March 14, 1988 letter did not satisfy the statutory notice
requirements for unlawful detainer actions. Davidsohn contends, however, that the unlawful
detainer statute was inapplicable because he sought to terminate Doyle's tenancy under the
terms of the lease. We agree and hold that a lessor who seeks termination under a lease
provision is not obligated to meet the notice requirements of NRS 40.2516.
[Headnote 5]
NRS 40.2516 outlines the procedures for regaining possession of real property from a
tenant in unlawful detainer.
4
In an unlawful detainer action, strict compliance with the
statutory notice provision is a jurisdictional prerequisite. Roberts v. District Court, 43 Nev.
332, 340, 185 P. 1067, 1069 (1920); Paul v. Armstrong, 1 Nev. 70, 76 (1865). Here,
Davidsohn did not institute an unlawful detainer action; he sought a declaratory judgment
terminating the lease pursuant to a provision of the lease.
__________

4
NRS 40.2516, in pertinent part, is set forth below:
A tenant of real property or a mobile home for a term less than life is guilty of an unlawful detainer
when he continues in possession, in person or by subtenant, after a neglect or failure to perform any
condition or covenant of the lease or agreement under which the property or mobile home is held, other
than those mentioned in NRS 40.250 to 40.252, inclusive, and NRS 40.254, and after notice in writing,
requiring in the alternative the performance of the condition or covenant or the surrender of the
property, served upon him, and, if there is a subtenant in actual occupation of the premises, also upon the
subtenant, remains uncomplied with for 5 days after the service thereof.
(Emphasis added.)
judgment terminating the lease pursuant to a provision of the lease. When a lessor seeks
termination under a lease provision, the notice requirements for an unlawful detainer action
are inapplicable.
5
Thus, the district court improperly found that Davidsohn was required to
comply with NRS 40.2516.
6

Because of our disposition of this appeal, it is unnecessary to discuss Doyle's cross-appeal
from the district court's ruling denying her attorney's fees.
For the reasons specified above, we reverse the district court's summary judgment in favor
of Doyle and remand the case for further proceedings consistent with this opinion.
Mowbray, C. J., Rose, Steffen and Young, JJ., and Lehman, D. J.,
7
concur.
____________
108 Nev. 151, 151 (1992) Nevada National Bank v. Snyder
NEVADA NATIONAL BANK, Currently Known as SECURITY PACIFIC BANK
NEVADA, Appellant, v. PAUL SNYDER, Trustee in Bankruptcy for Collins and
Ryder Consulting Engineers, Inc., and ROBERT K. DEPNER dba THE DEPNER
ASSOCIATION, Respondents.
No. 21678
February 20, 1992 826 P.2d 560
Appeal from a judgment granting priority to mechanic's liens of respondents. Second
Judicial District Court, Washoe County; Robert L. Schouweiler, Judge.
Mortgagee nonjudicially foreclosed on its deed of trust. At trial, the district court granted
priority to contractor and subcontractor on mechanic's liens, and mortgagee appealed. The
supreme court held that: (1) contractor, foreign corporation, did not have capacity to commit
suit; (2) trial court abused its discretion in permitting an individual to substitute himself for
the contractor; and (3) mortgagee could not be held personally liable.
Reversed.
__________

5
However, under NRS 40.252, a contractual provision which attempts to shorten the notice period required in
NRS 40.2516 is void.

6
Since we have determined that the notice given was sufficient, Davidsohn may be entitled, under the lease, to
expenses incurred in drafting and serving the notice of termination to Doyle. The district court, determining that
no notice was served, denied such expenses.

7
The Honorable Jack Lehman, Judge of the Eighth Judicial District, was designated by the Governor to sit in
the place of The Honorable Charles E. Springer, Justice. Nev. Const. art. 6, 4.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell and Joan C. Wright, Carson City;
and Tobin & Tobin and Keith Kandarian and Scott Arthur Sommer, San Francisco,
California, for Appellant.
James C. VanWinkle, and Beckley, Singleton, DeLanoy, Jemison & List, Reno; and Heller,
Ehrman, White & McAuliffe, Michael R. Wrenn, and Wendy F. Liebow, Seattle, Washington,
for Respondents.
1. Banks and Banking.
Legal successor in interest to foreign corporation which was authorized to do business in Nevada had no capacity to commence
suit in Nevada, where the successor did not inform the Nevada Secretary of State of its name change and corporate dissolution. NRS
80.030, 80.210.
2. Parties.
Trial court abused its discretion in permitting an individual to substitute himself for a plaintiff foreign corporation; the individual
conducted business in Nevada in corporate name, and the foreign corporation was not qualified to do business in Nevada. NRS 80.010.
3. Mortgages.
Mechanics' liens of contractor and subcontractor, who performed work on premises prior to construction, did not have priority
over bank's mortgage; the contractor and subcontractor failed to establish the something more required for accrual of mechanics'
liens prior to commencement of construction, in that testimony indicated that work performed was preliminary to further planning and
construction, soil and engineering studies by contractor were not sufficient to establish work done, and further work was subject to
many governmental approvals. NRS 108.225.
4. Implied and Constructive Contracts; Mechanics' Liens.
Mortgagee that foreclosed its deed of trust on property was not unjustly enriched by work performed on property by contractor and
subcontractor, and, thus, mortgagee could not be held personally liable for deficiency following forced sale, even if work performed by
contractor and subcontractor increased value of property; mortgagee was not a party to contract between mortgagor and contractor, and
mortgagee, a bank, was not person liable for debt under mechanics' liens statutes. NRS 108.238.
OPINION
Per Curiam:
The question on appeal is whether respondents have capacity to commence or maintain
suit in Nevada courts. We hold they do not.
FACTS
On or about April 2, 1980, George Benny (Benny) entered into an option agreement to
purchase the Double Diamond Ranch, which he intended to develop into a subdivision with
many amenities.
which he intended to develop into a subdivision with many amenities. That same month,
Benny retained Collins, Ryder & Watkins Consulting Engineers, Inc. (CR&W), to plan and
design the development of the ranch. Soon thereafter, CR&W hired Depner Architects &
Planners, Inc., P.S., (Depner) to provide planning and architectural services. Over the next
two years, Depner and CR&W engaged in many planning and surveying activities on the
property. On March 24, 1981, Benny received a $3,000,000 loan from Nevada National Bank
(Bank) in order to acquire the ranch; the loan was secured by a deed of trust against the
property. The Bank recorded the deed of trust on March 24, 1981. Depner recorded a
mechanic's lien of $77,340.25 on February 19, 1982. Collins and Ryder Consulting
Engineers, Inc., (C&R) (corporate successor to CR&W) recorded two mechanic's liens: one
on April 28, 1982, for $620,000 and another on January 31, 1983, for $130,000. Benny
eventually declared bankruptcy, owing C&R money. The Bank nonjudicially foreclosed on its
deed of trust on June 18, 1985. At trial, the court granted priority to the mechanic's liens of
C&R and Depner. The Bank appeals.
The Bank argues that the district court erred in: (1) finding C&R and Depner had capacity
to commence suit, (2) granting priority to the mechanic's liens, and (3) declaring the Bank
personally liable to C&R and Depner.
DISCUSSION
C&R'S CAPACITY TO COMMENCE SUIT
[Headnote 1]
In C&R's complaint and first amended complaint, it describes itself as a legal successor in
interest to CR&W and as being authorized to do business in Nevada. In the amended
complaint, it also describes itself as a Nevada corporation. On June 29, 1981, CR&W filed
articles of amendment in Washington State to change its name to Collins and Ryder
Consulting Engineers, Inc. CR&W was authorized to do business in Nevada on June 6, 1980,
until that authorization was revoked on March 1, 1986, for failure to file its Annual List of
Officers, Directors and Resident Agent. However, C&R (as opposed to CR&W) has never
been a Nevada corporation and was never authorized to do business in this state. On April 19,
1985, C&R was administratively dissolved in Washington State. C&R did not inform the
Nevada Secretary of State of its name change, nor did it inform the Nevada Secretary of State
of its corporate dissolution, as required by NRS 80.030.
1
Because of these violations of
NRS S0.030, the Bank argues that C&R is barred from maintaining suit in Nevada courts
by NRS S0.210.2
__________

1
1. Each foreign corporation admitted to do business in this state shall, within 30 days after the filing
of any document amendatory or
Because of these violations of NRS 80.030, the Bank argues that C&R is barred from
maintaining suit in Nevada courts by NRS 80.210.
2

In Bader Enterprises, Inc. v. Olsen, 98 Nev. 381, 649 P.2d 1369 (1982), we upheld the
dismissal of a suit under NRS 80.210 when the corporate charter of a Delaware corporation
was revoked during trial. In Bader, this court specifically stated that the failure to follow the
provisions of NRS 80.030 bars a foreign corporation from maintaining any proceeding in
Nevada courts. Id. at 384, 649 P.2d at 1370-71.
C&R claims it complied with NRS 80.030, arguing that it informed the Nevada Secretary
of State of its corporate name change when it filed a change of address of resident agent with
the Nevada Secretary of State on May 14, 1982. The filing reflected C&R's new corporate
name. This argument cannot prevail. Clearly, C&R did not meet the requirements for
informing the Nevada Secretary of State as set forth in NRS 80.030(1)(a).
Because C&R did not inform the Nevada Secretary of State of its name change and
corporate dissolution, in violation of NRS 80.030, it is precluded by NRS 80.210 from
maintaining this action in Nevada courts.
DEPNER'S CAPACITY TO COMMENCE SUIT
[Headnote 2]
Depner brought suit on behalf of Depner Architects & Planners, Inc., P.S. After the Bank
had moved to dismiss the case, based on Depner's lack of capacity, Depner moved the district
court to amend his complaint and substitute himself in an individual capacity as plaintiff. The
court allowed the amendment, finding that Depner transacted business in Nevada as a sole
proprietorship call The Depner Association.
Depner argues that the decision to substitute himself as an individual for the corporation
was within the sound discretion of the trial court under NRCP 15{a).3
__________
otherwise relating to the original articles in the place of its creation, file in the office of the secretary of
state:
(a) A copy of the document certified by an authorized officer of the place of its creation, or a
certificate evidencing the filing, issued by the authorized officer of the place of its creation with whom
the document was filed; . . . .

2
1. Every corporation which fails or neglects to comply with provisions of NRS 80.010 to 80.040,
inclusive:

. . . .

(b) [M]ay not commence or maintain any action or proceeding in any court of this state until it has
fully complied with the provisions of NRS 80.010 to 80.040, inclusive. . . .
(Emphasis added.)
individual for the corporation was within the sound discretion of the trial court under NRCP
15(a).
3

The Bank claims the district court erred in finding that Depner worked on the Double
Diamond Ranch project as a sole proprietorship, pointing out the following facts: (1) After
Depner incorporated in Washington on December 8, 1980, all invoices were submitted to
C&R on behalf of the corporation; (2) the construction drawings for the proposed project
were prepared by the corporation; (3) the individuals who worked on the drawings were
employees of the corporation; (4) Depner had a prior appeal in this case, which is in the name
of the corporation (Depner Architects v. Nevada Nat. Bank, 104 Nev. 560, 763 P.2d 1141
(1988)); and (5) this action was brought on behalf of the corporation, purporting that it was
authorized to do business in Nevada. We agree that the district court erred in substituting
Depner in an individual capacity as plaintiff.
In League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 93 Nev. 270, 563 P.2d
582 (1977), this court found that dismissal of suit with prejudice under NRS 80.210 was
proper where the plaintiff foreign corporation was not qualified to do business in Nevada,
even though the plaintiff qualified to do business in Nevada approximately nine months later.
Id. at 273, 563 P.2d at 584-585. The dismissal with prejudice was upheld because the statute
of limitations would have expired upon a re-filing of the suit. Id.
We hold that the district court abused its discretion in allowing Depner to substitute
himself as an individual for the corporate entity in this case. The evidence is clear that Depner
conducted business in Nevada in the corporate name. In order to become authorized to do
business in Nevada, Depner must have complied with NRS 80.010.
4
He did not.
__________

3
NRCP 15(a) provides in relevant part:
(a) Amendments. A party may amend his pleading once as a matter of course at any time before a
responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and
the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after
it is served. Otherwise, a party may amend his pleading only by leave of court or by written consent of
the adverse party; and leave shall be freely given when justice so requires.
. . .

4
1. Before commencing or doing any business in this state, every corporation organized under the
laws of another state, territory, the District of Columbia, a dependency of the United States or a foreign
country, that enters this state to do business must file:
(a) In the office of the secretary of state of Nevada;
(1) A certificate of corporate existence issued not more than 90
As a foreign corporation which is not in compliance with NRS 80.010, Depner Architects
& Planners, Inc., P.S., is barred from commencing or maintaining a suit in Nevada courts by
NRS 80.210.
PRIORITY OF MECHANIC'S LIENS
[Headnote 3]
Assuming, arguendo, that C&R and Depner had capacity to commence suit, the district
court erred in granting priority to their mechanic's liens. We considered the issue of priority to
their mechanic's liens in Aladdin Heating v. Trustees, Cent. States, 93 Nev. 257, 563 P.2d 82
(1977). There, this court held that surveying the land, drafting architectural plans and soil
testing did not constitute work done within the meaning of NRS 108.225. This court stated:
[A]ctual on-site construction had not yet started and the architectural, soil testing, and
survey work appellants rely on for their priority is insufficient to constitute the
commencement of a building or improvement; something more is required. Were we to
hold otherwise and permit mechanics' liens to accrue based on this work done prior to
the commencement of construction, mechanics' liens could relate back to a time long
before there were any visible signs of construction to inform prospective lenders
inspecting the premises that liens had attached. Under such circumstances, no prudent
businessman would be willing to lend construction money.
Id. at 260, 563 P.2d at 84 (citations omitted).
The Bank argues that C&R and Depner never performed the something more required
by Aladdin. We agree. C&R's project coordinator testified that the work performed was
preliminary to actually proceed[ing] with the further planning and construction of the site
improvements. The soil and engineering studies by C&R are insufficient to establish work
done within the holding of Aladdin. Further work on the ranch was subject to many
governmental agency approvals. What little work was visible on the 2,300 acre ranch (wells
and trenching) does not constitute notice that actual development of the property had begun;
indeed, the ranch was a working cattle ranch in 1981 and throughout the 1980's.
__________
days before the date of filing by an authorized officer of the jurisdiction of its incorporation setting forth
the filing of documents and instruments related to the articles of incorporation. . . .
PERSONAL LIABILITY OF THE BANK
[Headnote 4]
The district court judgment stated that C&R and Depner were entitled to a personal
judgment for the residue against the Bank. The Bank asserts that the remedy to enforce a
mechanic's lien is to force a sale of the property and that it is not liable for any deficiency if
the monies from the sale do not cover the amount of Depner's and C&R's liens. We agree.
In Milner Et Al. v. Shuey, 57 Nev. 174, 69 P.2d 771 (1937), this court stated that there
must be a contractual relationship regarding the furnishing of labor and materials between the
party foreclosing the lien and the party against whom personal liability is sought. This court
stated: [S]uch a relation is essential to establish a personal liability against the owner of the
property in addition to a judgment foreclosing a lien . . . . Id. at 179, 69 P.2d at 772. Further,
the statutory language regarding deficiencies and personal actions is illuminating here. NRS
108.238 provides:
Right to maintain personal action for debt not impaired. Nothing contained in NRS
108.221 to 108.246, inclusive, shall be construed to impair or affect the right of any
person to whom any debt may be due for work done or material furnished to maintain a
personal action to recover such debt against the person liable therefor.
(Emphasis added.)
It is unjust to hold the Bank personally liable for a deficiency when it was not a party to
the C&R/Benny contract, and because the Bank is not the person liable for the debt under
NRS 108.238.
C&R and Depner argue that the Bank was unjustly enriched, because the work they
performed increased the value of the property, and the Bank should be held personally liable
for any deficiency. C&R and Depner contend that the Bank relied on their work to increase
the value of the land and therefore the principle of unjust enrichment is applicable.
While there was a benefit conferred on the Bank, it does not rise to unjust enrichment.
California has considered this question in Kossian v. American Nat. Ins. Co., 254 Cal.App.2d
647 (Cal.Ct.App. 1967). There, a building was destroyed by fire. Kossian provided services to
the owner for debris removal and was never compensated for his services. American National
Insurance Company obtained the property when the owner assigned his interest to the
insurance company. Kossian sued the insurance company on a theory of unjust enrichment.
After noting that there was no privity of contract between Kossian and the insurance company
for work performed, the court stated that there was no unjust enrichment even though a
benefit had been conferred on the insurance company. Id. at 64S-49.
there was no unjust enrichment even though a benefit had been conferred on the insurance
company. Id. at 648-49.
Any prudent lender evaluates a loan and hopes that the land will increase in value. There is
simply no basis in this case to find that the Bank was unjustly enriched by the work C&R and
Depner performed on the ranch, pursuant to their contract with Benny.
CONCLUSION
The district court erred in finding that C&R had capacity to maintain suit in Nevada courts
and in substituting Depner as an individual as plaintiff in place of the corporate entity. The
district court further erred in granting priority to C&R's and Depner's mechanic's liens and
again in imposing personal liability upon the Bank. Because C&R and Depner did not have
capacity to commence or maintain suit, it is unnecessary for us to reach the Bank's other
arguments.
We therefore reverse the judgment of the district court.
____________
108 Nev. 158, 158 (1992) Sechrest v. State
RICKY DAVID SECHREST, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21827
February 20, 1992 826 P.2d 564
Appeal from a denial of post-conviction relief from two sentences of death. Second
Following affirmance of murder convictions and death sentence, 101 Nev. 360, 705 P.2d
626, defendant sought post-conviction relief. The district court denied relief, and defendant
appealed. The supreme court held that defendant was not denied effective assistance of
counsel during penalty stage.
Affirmed.
Robert Bruce Lindsay, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Dorothy Nash Holmes, District
Attorney; and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Defendant raising issue of ineffective assistance counsel must establish that counsel's performance was deficient and that
deficiency prejudiced defense. U.S.C.A.Const. amend. 6.
State risks violating Fifth Amendment rights by seeking to enhance its prospects for death verdict through introduction of
statements made by defendant during course of court-ordered psychiatric examination; when such statements are wrongfully used,
State is required to prove beyond reasonable doubt that error was harmless. U.S.C.A.Const. amend. 5.
State did not violate defendant's Fifth Amendment rights by seeking to enhance its prospects for death verdict through introduction
of statements made by defendant during psychiatric examination and psychiatrist's opinion that defendant was an incurable sociopath,
where examination had been ordered at request of defense, and future dangerousness was not an aggravating circumstance upon which
death penalty could be considered. U.S.C.A.Const. amend. 5; NRS 200.033.
4. Criminal Law.
Defendant was not prejudiced by defense counsel's failure to interview psychiatrist before penalty phase in order to evaluate
possibly damaging effect of his testimony, where psychiatrist's testimony regarding defendant's criminal history and dim prospects for
change was unrelated to any of the aggravating circumstances found by the jury for each murder. U.S.C.A.Const. amend. 6.
5. Criminal Law.
When defendant challenges death sentence, question is whether there is reasonable probability that, absent errors, the sentencer,
including an appellate court, to the extent it independently reweighs evidence, would have concluded that balance of aggravating and
mitigating circumstances did not warrant death. U.S.C.A.Const. amend 6.
OPINION
Per Curiam:
Ricky David Sechrest was convicted of the brutal 1983 slayings of two young girls and
sentenced to death. We affirmed Sechrest's judgment of conviction and sentences in Sechrest
v. State, 101 Nev. 360, 705 P.2d 626 (1985). Sechrest now seeks to overturn his death
sentences through post-conviction relief by asserting that he received ineffective assistance of
counsel at the penalty phase of his trial. The district court determined that Sechrest's counsel
had indeed performed deficiently, but denied relief because Sechrest had failed to show any
prejudice resulting from his counsel's performance. After careful consideration, we affirm the
decision of the district court.
Background
The primary witness for the State at the penalty phase of Sechrest's trial was Lynn M.
Gerow, a psychiatrist. Gerow had originally been appointed as an expert by the court at the
request of defense counsel. Gerow had examined Sechrest and submitted a report of his
findings to defense counsel. The defense decided not to call Gerow as a witness in the
penalty phase, but acquiesced to the State's request to call Gerow.
not to call Gerow as a witness in the penalty phase, but acquiesced to the State's request to
call Gerow. Among other things, Gerow's testimony indicated that Sechrest was an incurable
sociopath, who had an extensive history of criminal activity and drug use.
In a hearing before the district court, Sechrest sought to establish that he was denied his
sixth amendment right to effective counsel because of his attorney's failure to prevent Gerow
from testifying for the State. This district court determined that defense counsel's
performance was substandard in that he failed to interview Gerow before the penalty phase in
order to evaluate the possibly damaging effect of Gerow's testimony (defense counsel did
communicate with Gerow several times before the State indicated its desire to use Gerow as a
witness). Despite its determination that defense counsel's representation was deficient, the
district court denied relief because Sechrest had failed to demonstrate that he had been
prejudiced by his attorney's performance. This appeal followed.
Discussion
[Headnote 1]
Sechrest contends that the district court erred by requiring him to show that he was
prejudiced by his counsel's derelictions. Sechrest nevertheless concedes that sixth amendment
ineffective assistance of counsel claims are generally governed by the standard announced in
Strickland v. Washington, 466 U.S. 668 (1984), and adopted by this court in Warden v.
Lyons, 100 Nev. 430, 683 P.2d 504 (1984). Under Strickland standards, a defendant raising a
claim of ineffective assistance of counsel must establish that counsel's performance was
deficient, and that the deficiency prejudiced the defense. 466 U.S. at 687. However, Sechrest
contends that his claim warrants a fifth amendment analysis because defense counsel
facilitated the violation of Sechrest's fifth amendment right against self-incrimination by
permitting Gerow to testify about his psychiatric examination of Sechrest. A fifth amendment
analysis would shift the burden to the State to prove beyond a reasonable doubt that any
constitutional errors were harmless. Satterwhite v. Texas, 486 U.S. 249 (1988); Chapman v.
California, 386 U.S. 18 (1967).
[Headnote 2]
A state risks violating fifth amendment rights by seeking to enhance its prospects for a
death verdict through the introduction of statements made by the defendant during the course
of a court-ordered psychiatric examination. Estelle v. Smith, 451 U.S. 454 (1981). When such
statements are wrongfully used, the state is required to prove beyond a reasonable doubt
that the error was harmless.
required to prove beyond a reasonable doubt that the error was harmless. Satterwhite;
Chapman.
[Headnote 3]
In the instant case, however, the defendant's statements were not improperly obtained or
used. Dr. Gerow's psychiatric examination of Sechrest was ordered at the request of the
defense. The State later sought and obtained permission to use Gerow's testimony during the
penalty hearing. In contrast, Satterwhite and Estelle involved situations where defense
counsel was not the moving force behind the psychiatric examination that was introduced
over the objection of counsel. Additionally, the trial courts in Satterwhite and Estelle were
required by Texas law to impose the death penalty if the jury answered certain questions
affirmatively, including the question of whether the defendant posed a continuing threat to
society. The psychiatric testimony in those cases addressed the latter question, and thus
impacted a crucial issue. In contrast here, although Gerow opined that Sechrest would not
change, Nevada has not designated future dangerousness as an aggravating circumstance
upon which the death penalty may be considered. NRS 200.033.
Gerow's testimony did not implicate any of the aggravating circumstances which were
found by the jury as a basis for the imposition of the death penalty. Sechrest's statements were
properly communicated to Gerow, and introduced with the consent of defense counsel.
Neither federal nor state law supports an assertion that Sechrest's fifth amendment rights were
violated. Thus, the issue is one of ineffective assistance of counsel to which the Strickland
test applies.
[Headnote 4]
As noted above, the Strickland standard involves a two-pronged inquiry: was defense
counsel's performance deficient, and, if so, was the defendant prejudiced as a result. We need
not determine whether the district court was correct in finding counsel's performance
deficient because Sechrest has clearly failed to show prejudice. See Strickland, 466 U.S. at
697; Bejarano v. State, 106 Nev. 840, 801 P.2d 1388 (1990).
[Headnote 5]
When a defendant challenges a death sentence . . . the question is whether there is a
reasonable probability that, absent the errors, the sentencerincluding an appellate court, to
the extent it independently reweighs the evidencewould have concluded that the balance of
aggravating and mitigating circumstances did not warrant death. Strickland at 695. See also
Howard v. State, 106 Nev. 713, 800 P.2d 175 (1990).
In the penalty phase, the jury found four aggravating circumstances for each murder.
Specifically, the jury found that the murders were committed: (1) during the course of a
kidnapping;
1
(2) during the commission or attempted commission of sexual assault; (3) for
the purpose of avoiding or preventing a lawful arrest; and (4) in a manner involving torture,
depravity of mind or the mutilation of the victim. No mitigating circumstances were found.
Gerow's testimony regarding Sechrest's criminal history and dim prospects for change was
unrelated to any of the above aggravating factors. Therefore, Sechrest can only show
prejudice by establishing that Gerow's testimony negated mitigating circumstances that would
have been sufficiently strong to overcome the aggravating circumstances.
The only mitigating factor argued by the defense which may have been affected by
Gerow's testimony concerned the jurors' failure to find that Sechrest lacked a significant
history of prior criminal activity. NRS 200.035(1). Dr. Gerow testified that Sechrest had
admitted to an extensive history of criminal involvement. However, other witnesses also
testified about Sechrest's prior involvement with the law. During closing argument, defense
counsel recounted Sechrest's previous crimes,
2
but emphasized Sechrest's lack of previous
involvement in crimes of violence. Thus, the jury heard testimony other than Gerow's from
which to reject this mitigating factor. In any event, even if Gerow's testimony were viewed as
having the potential to dissuade the jurors from finding this one mitigating factor, it is clear
beyond a reasonable doubt that no error occurred that would have caused the jury to conclude
that the four aggravating circumstances were outweighed by the arguably mitigating factor no
matter how strongly it may have been established.
The evidence at trial exposed the heinous nature of Sechrest's brutal crimes. Nothing short
of the most compelling mitigating circumstances would have offered the potential of a
sentence other than death. None were shown to exist. Although Gerow's testimony was not
flattering to Sechrest, it revealed little that the jurors would not have surmised from the
brutality and lack of humanity associated with Sechrest's destruction of two innocent young
lives. As the district court observed, Gerow's testimony was little more than cumulative. We
agree, and are unable to conclude or remotely perceive that absent Gerow's testimony, there is
a reasonable probability that the result would have been different.
__________

1
The jury had already found Sechrest guilty of two counts of first-degree kidnapping in connection with the
murders.

2
These included burglary, possession of stolen property, possession of controlled substances and curfew
violation.
Accordingly, we conclude that Sechrest was not denied the effective assistance of counsel
during the penalty stage of his trial, and affirm as being fully justified the district court's
denial of post-conviction relief from Sechrest's sentences of death.
____________
108 Nev. 163, 163 (1992) Town of Eureka v. State Engineer
TOWN OF EUREKA, an Unincorporated Town, Appellant, v. THE OFFICE OF THE
STATE ENGINEER OF THE STATE OF NEVADA, DIVISION OF WATER
RESOURCES, PETER G. MORROS, State Engineer, Respondent.
No. 21908
February 20, 1992 826 P.2d 948
Appeal from a district court order affirming the State Engineer's decision to forfeit a
portion of the water rights held by appellant. Seventh Judicial District Court, Eureka County;
Merlyn H. Hoyt, Judge.
Town sought review of state engineer's decision to forfeit portion of its water rights. The
district court affirmed, and town appealed. The supreme court held that: (1) statute working
forfeiture of water rights for five consecutive years of nonuse is constitutional insofar as it
applies retroactively, but (2) substantial use of water rights after statutory period of nonuse
cures claims to forfeiture, so long as no claim or proceeding of forfeiture has begun.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell and Dan Saxon and Karen
Peterson, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, and Margaret A. Twedt, Deputy Attorney
General, Carson City, for Respondent.
Woodburn, Wedge & Jeppson and Gordon H. DePaoli, Reno, for Amicus Curiae Sierra
Pacific Power Company.
1. Administrative Law and Procedure; Waters and Water Courses.
In reviewing state engineer's decision on question of fact, court must limit itself to determining whether substantial evidence
supports state engineer's decision.
District court is free to decide purely legal questions without deference to agency's decision.
3. Statutes.
While state engineer's interpretation of statute is persuasive, it is not controlling.
4. Constitutional Law; Waters and Water Courses.
Water rights are subject to regulation under police power as is necessary for general welfare.
5. Waters and Water Courses.
As owner of all water in state, state has right to prescribe how water will be used.
Due process clause prevents retrospective laws from divesting vested rights. U.S.C.A.Const. amend. 14.
Vested water rights are those already established through diversion and beneficial use or through state permit.
8. Constitutional Law; Water and Water Courses.
Statute enacted after statute governing forfeiture of water rights cannot be applied retroactively to impair vested water rights when,
prior to enactment of forfeiture statute, those rights could have been lost only through abandonment. NRS 534.090.
9. Constitutional Law; Waters and Water Courses.
Retroactive application of statute working forfeiture of water rights after five consecutive years of nonuse was constitutional. NRS
534.090, subd. 1; U.S.C.A.Const. amend 14.
Substantial use of water rights after statutory period of nonuse cures claims to forfeiture, so long as no claim or proceeding of
forfeiture has begun. NRS 534.090.
When state alleges that water rights have been forfeited because of nonuse, state has burden of proving statutory period of nonuse
by clear and convincing evidence. NRS 534.090.
OPINION
Per Curiam:
During the past few years, the town of Eureka (the Town) has undergone a decline in the
yield of water from its springs and wells. In January, 1988, because the Town's need for
municipal water had increased, Eureka County purchased water rights from the Farmers
Home Administration and drilled test wells. One of the test wells indicated enough water was
available to satisfy the Town's needs. In July, 1989, Eureka County transferred the water
rights to the Town.
In January, 1989,
1
the Town filed an Application for Permission to Change the Point of
Diversion, Place of Use and Manner of Use, requesting approval to use another well which
was less degraded to minimize the impact on the groundwater table in Diamond Valley.
__________

1
The record reflects that the Town made its application for diversion prior to its ownership of those same
rights. The question naturally arises as to how the Town could make an application with respect to rights it did
not have.
degraded to minimize the impact on the groundwater table in Diamond Valley. Two residents
of Eureka County protested the application, claiming that the purchased water rights had been
forfeited by a failure to use for five consecutive years, 1983-1988. In July, 1989, the State
Engineer held a public hearing regarding the application and concluded that only 200.0
acre-feet of water had beneficial use in 1984, and no use had occurred during the other four
years. He approved the application as to 200.0 acre-feet annually, but ruled that the Town's
predecessor had forfeited the remaining 440.0 acre-feet of water because of non-use for a
period of five consecutive years.
Later in July, 1989, the Town requested that the State Engineer grant a diversion rate of at
least 1.78 c.f.s because of the design of the Town's pumping system. In August, 1989, the
State Engineer ruled that the protests to the granting of the application were upheld in part
and overruled in part. The State Engineer declared 440.0 acre-feet of water rights forfeited
and also overruled the protests to the granting of the application to the extent that the
application was approved in the amount of a diversion rate of 1.78 c.f.s., not to exceed an
annual duty of 200.0 acre-feet. The State Engineer also held that the approval would not
impair existing rights or be detrimental to the public interest.
In August, 1989, the Town filed a petition for judicial review pursuant to NRS 533.450,
arguing that the State Engineer erred in forfeiting that portion of the Town's water rights. In
January, 1991, the district court affirmed the State Engineer's decision, finding that Nevada's
forfeiture and abandonment statute, NRS 534.090, was constitutional and could be applied
retroactively to forfeit the Town's water rights. We conclude that the statute is constitutional,
but we reverse on the grounds that the Town's resumption of substantial use cures the
forfeiture.
[Headnotes 1-3]
NRS 533.450(1) provides that a party aggrieved by any order or decision of the State
Engineer may have the order reviewed on appeal. The decision of the State Engineer shall be
presumed correct, and the party challenging the decision will have the burden of proving
error. NRS 533.450(9). With questions of fact, the reviewing court must limit itself to a
determination of whether substantial evidence in the record supports the State Engineer's
decision. Revert v. Ray, 95 Nev. 782, 786, 603 P.2d 262, 264 (1979). The district court is free
to decide purely legal questions, however, without deference to the agency's decision. Jones
v. Rosner, 102 Nev. 215, 217, 719 P.2d 805, 806 (1986). Accordingly, the reviewing court
may undertake independent review of the construction of a statute. Nevada Emp. Sec. Dep't v.
Capri Resorts, 104 Nev. 527, 528, 763 P.2d 50, 51 (1988). While the State Engineer's
interpretation of a statute is persuasive, it is not controlling.
controlling. State v. State Engineer, 104 Nev. 709, 713, 766 P.2d 263, 266 (1988).
The Town argues that the State Engineer erred as a matter of law in retroactive application
of NRS 534.090, asserting that at the time its water rights vested, the sole means by which a
party could lose such rights was by abandonment. The Town also argues that because it has
put these water rights to beneficial use since the time of purchase, it has not abandoned them
and the district court's decision to uphold the forfeiture was in error. The State responds that
because NRS 534.090(1) mandates the forfeiture of any portion of water rights not used
during five consecutive years, the district court's decision should be affirmed.
Nevada enacted its first comprehensive water law in 1913. N.C.L. 7890-8254. Section
7891 provided that, subject to existing rights, all water may be appropriated for beneficial
use. Section 7897 declared that if an owner of water rights ever failed to use his or her water
for beneficial purposes during five successive years, the State would consider the rights
abandoned, and the owner would forfeit the rights. In 1939, the legislature enacted the
Conservation and Distribution of Underground Waters Act. N.C.L. 7987-7993. Section
7993.13 allowed appropriation of underground water systems constructed subsequent to the
1913 Water Act.
In 1947 the legislature amended the prior two acts. N.C.L. 7993.18a, entitled
Forfeiture-Abandonment, provided in part:
Failure for five successive years on the part of the holder of any right, whether it be
an adjudicated right, an unadjudicated right, or permitted right, and further whether
such right be initiated after or before the passage of this act, to use beneficially all or
any part of the underground water for the purpose for which such right shall be acquired
or claimed, shall work a forfeiture of undetermined rights and an abandonment of
determined rights of the right to the use of such water to the extent of such nonuse.
Upon forfeiture of a right to the use of ground water, such water shall revert to the
public and shall be available for further appropriation, subject to existing rights.
(Emphasis added.) Section 7993.18a was renamed NRS 534.090(1). In 1967, NRS
534.090(1) was amended to provide:
Failure for 5 successive years on the part of the holder of any right, whether it be an
adjudicated right, an unadjudicated right, or permitted right, and further whether such
right be initiated after or before March 25, 1939, to use beneficially all or any part of
the underground water for the purpose for which such right shall be acquired or
claimed, shall work a forfeiture of both undetermined rights and determined rights
of the right to the use of such water to the extent of such nonuse.
shall work a forfeiture of both undetermined rights and determined rights of the right to
the use of such water to the extent of such nonuse.
(Emphasis added.) In 1981, NRS 534.090 was further amended to provide that in order to
effect a forfeiture, the require five years of non-use had to begin after April 15, 1967. The
language of NRS 534.090(1) expresses the legislature's intent that the statute apply
retroactively to water rights present on April 15, 1967.
2
When the State proves five
successive years of non-use after April 15, 1967, the water reverts to the public.
[Headnotes 4-6]
The constitutionality of NRS 534.090(1) depends on a balance between vested property
rights and the police power of the State. Water rights are subject to regulation under the
police power as is necessary for the general welfare. See V. L. & S. Co. v. District Court, 42
Nev. 1, 171 P. 166 (1918). As the owner of all water in Nevada, the State has the right to
prescribe how water may be used. In Re Waters of Manse Spring, 60 Nev. 280, 287, 108 P.2d
311, 315 (1940). However, the protection afforded by the due process clause of the
Fourteenth Amendment to the United States Constitution extends to prevent retrospective
laws from divesting vested rights. Ettor v. Tacoma, 228 U.S. 148, 155-56 (1913); Public
Emp. Ret. v. Washoe Co., 96 Nev. 718, 721-23, 615 P.2d 972, 974 (1980). Therefore, absent
clear legislative intent to make a statute retroactive, this court will interpret it as having only a
prospective effect. Nevada Power Co. v. Metropolitan Dev. Co., 104 Nev. 684, 686, 765 P.2d
1162, 1163 (1988).
[Headnote 7]
Vested water rights are those already established either through diversion and beneficial
use or through a state permit. Application of Filippini, 66 Nev. 17, 22, 202 P.2d 535, 541
(1949). A water right is regarded and protected as real property. Carson City v. Estate of
Lompa, 88 Nev. 541, 542, 501 P.2d 662 (1972). This court has, however, upheld retroactive
statutes under due process analysis when the legislative action is a permissible exercise of
police power. SIIS v. Surman, 103 Nev. 366, 741 P.2d 1357 (1987); Koscot Interplanetary,
Inc. v. Draney, 90 Nev. 450, 457-58, 530 P.2d 108, 112 (1974).
Sixteen out of nineteen western states have forfeiture statutes applicable to the
appropriation of water rights. 1 W. Hutchins, Water Rights in the Nineteen Western States
290-98 (1974).
3
Courts considering this issue have upheld the retroactive application of
their forfeiture statutes. See, e.g., In re Birdwood Irrigation Dist.,
__________

2
The exceptions in NRS 534.090(2) and (3) do not apply to these facts.

3
Although Colorado, Hawaii, and Montana have no statutory forfeiture provisions, under the abandonment
statutes in Colorado and Montana, a ten-
Courts considering this issue have upheld the retroactive application of their forfeiture
statutes. See, e.g., In re Birdwood Irrigation Dist., Water Division No. 1-A, 46 N.W.2d 884,
888 (Neb. 1951) (court upheld retroactive law as an implied condition subsequent to the
limited water rights originally granted by the state); Texas Water Rights Commission v.
Wright, 464 S.W.2d 642, 648-50 (Tex. 1971) (retroactive application of forfeiture statute
held constitutional because water permits are limited rights).
[Headnotes 8, 9]
A statute enacted after a forfeiture statute cannot be applied retroactively to impair vested
water rights when, prior to the enactment of the forfeiture statute, those rights could have
been lost only through abandonment. In Re Waters of Manse Spring, 60 Nev. 280, 289, 108
P.2d 311, 315 (1940). The district court distinguished Manse Spring from the case at bar
because Manse Spring concerned the non-use of pre-statutory surface water rights, while this
case involves permitted groundwater rights. Also, under the 1913 water law discussed in
Manse Spring, the legislature specifically included a provision that the act would not impair
vested rights created prior to 1913, while current Nevada water law lacks a similar provision.
4
Finally, contrary to the 1913 water law, the legislature has affirmatively stated that the
forfeiture provision enacted in 1967 applies to all groundwater rights, even those in existence
at the time of enactment. We agree with the district court that the legislature's affirmative
statement that the law shall be retroactive is constitutional. We conclude that forfeiture
applies when the State proves non-use over the statutory period, unless resumed use has
cured or resuscitated the defect in the water rights.
Jurisdictions are divided on whether, after the statutory period of non-use, the resumed use
of water cures the forfeiture and revitalizes the right. Oregon and South Dakota strictly apply
the forfeiture laws. See Bausch v. Myers, 541 P.2d 817, 819 (Or. 1975) (en banc) (five years
of non-use conclusively works an abandonment and loss of water rights where the statute
provides for a conclusive presumption of abandonment). See also Rencken v. Young, 711
P.2d 954, 958-59 (Or. 1985) (although Bausch court used the term abandonment, Rencken
court clarified relevant statute as a forfeiture statute); In re Cancel. of Stabio Ditch Water
Right, 417 N.W.2d 391, 395 (S.D. 1987) (three-year forfeiture statutes did not allow revival
of water rights).
__________
year period of non-use creates a rebuttable presumption of abandonment. Colo. Rev. Stat. 37-92-402(11)
(1990); Mont. Code Ann. 85-2-404(2) (1989).

4
See NRS Chapter 534.
Idaho and Wyoming, however, provide for amelioration of the harsh effects of a forfeiture
where the holder of water rights resumes use after the statutory period of non-use. See
Carrington v. Crandall, 147 P.2d 1009, 1011 (Idaho 1944) (forfeiture is not effective if, after
the statutory period of non-use, the original owner or appropriator resumes use of water prior
to a third party's claim of right). Under forfeiture statutes similar to those of Nevada, the
Idaho and Wyoming courts have held that reuse of water rights prior to a formal declaration
of forfeiture constitutes a cure to the forfeiture. See e.g., Application of Boyer, 248 P.2d
540, 544 (Idaho 1952) (an appropriator may resume use any time prior to a third party's claim
of right); Sturgeon v. Brooks, 281 P.2d 675, 683 (Wyo. 1955) (forfeiture did not apply where
user had recommenced use and claimant brought forfeiture action sixteen years after period of
non-use).
[Headnote 10]
The Town argues that this court should interpret NRS 534.090 in accord with the Idaho
and Wyoming decisions that interpret similar statutes. We agree. This approach protects
vested rights and follows the general rule that statutes should not be construed to work a
forfeiture where a forfeiture is not clearly required, NRS 533.085; Humphrey v. Sagouspe, 50
Nev. 157, 171, 254 P. 1074, 1079 (1927). Under the rule we adopt, substantial use of water
rights after the statutory period of non-use cures claims to forfeiture so long as no claim or
proceeding of forfeiture has begun.
Due to the need to protect against the waste of water when it is used solely to protect water
rights, permitting a procedure of filing for non-use with the State Engineer may be an
alternative procedure the legislature may wish to consider. Also, the status of water rights
should be readily determinable from the public record. The legislature, with its fact-finding
capabilities, is better qualified than this court to specify the details of such procedures. The
legislature may also need to consider whether a partial forfeiture is suitable when the owner's
motivation for filing or resumption of use is to protect rights to water that is not otherwise
used beneficially.
[Headnote 11]
Because the law disfavors a forfeiture, the State bears the burden of proving, by clear and
convincing evidence, a statutory period of non-use. Since the State Engineer did not
determine how much use the Town or its predecessors made of the water rights after the
period of non-use, and the record contains little evidence on this point, we reverse and
remand to the district court for referral to the State Engineer to conduct further proceedings
consistent with this opinion to determine whether the Town "cured" the forfeiture by
substantial use of the water after the non-use period.
ceedings consistent with this opinion to determine whether the Town cured the forfeiture
by substantial use of the water after the non-use period.
____________
108 Nev. 170, 170 (1992) Board of Co. Comm'rs v. Del Papa
BOARD OF COUNTY COMMISSIONERS OF NYE COUNTY, BARBARA RAPER, in
Her Official Capacity, and RICHARD CARVER, in His Official Capacity,
Appellants, v. FRANKIE SUE DEL PAPA, Attorney General of the State of Nevada,
Respondent.
No. 22336
February 20, 1992 825 P.2d 1231
Appeal from an order of the district court denying appellants' motion for a change of
venue. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Attorney General filed complaint for declaratory relief against board of county
commissioners and two commissioners, alleging that commissioners held special closed-door
meeting in violation of open meeting law. The district court denied commissioners' motion
for change of venue, and board and commissioners appealed. The supreme court held that
venue statute, rather than jurisdictional provision of open meeting law, controlled in
determining proper venue in case.
Arthur F. Wehrmeister, District Attorney and Les W. Bradshaw, Deputy District Attorney,
Nye County, for Appellants.
Frankie Sue Del Papa, Attorney General, and Robert Auer, Deputy Attorney General,
Carson City, for Respondent.
Declaratory Judgment.
Venue statute, requiring that actions against public officers for acts done by virtue of their office shall be tried in county where
cause or some part thereof arose, rather than open meeting law, setting forth jurisdictions in which county attorney may bring suit for
violations of open meeting law, controlled in determining proper venue of declaratory relief complaint brought by Attorney General
against board of county commissioners and two commissioners, alleging that commissioners held special closed-door meeting in
violation of open meeting law. NRS 13.020, subd. 2, 13.050, subd. 1, 241.037, subd. 1.
OPINION
Per Curiam:
On March 28, 1991, the attorney general filed in the First Judicial District Court
1
a
complaint for declaratory relief against the Board of County Commissioners of Nye County
and two of the commissioners in particular (commissioners). The complaint alleged that on
January 24, 1991, the commissioners held a special closed-door meeting in Las Vegas in
violation of Nevada's open meeting laws.
On April 12, 1991, the commissioners filed a motion seeking a change of venue to the
Fifth Judicial District Court.
2
The attorney general opposed the motion. On April 22, 1991,
the district court denied the motion. This timely appeal followed.
Appellants contend that the district court erred in denying their motion for a change of
venue because the venue statute, NRS 13.020, rather than the open meeting law, NRS
241.037, controls in determining proper venue in this case. We agree.
Pursuant to NRS 13.020(2), actions against public officers for acts done by virtue of their
office shall be tried in the county where the cause, or some part thereof, arose . . . . By
contrast, NRS 241.037(1) simply sets forth the jurisdictions in which the attorney general
may bring suit for violations of the open meeting laws. Unlike NRS 13.020, NRS 241.037(1)
does not specify where the suit must be brought. Thus, the attorney general can maintain suit
in Carson City only if the commissioners do not challenge that choice of venue. See NRS
13.050(1).
3

In this case, the commissioners are public officers alleged to have engaged in improper
acts done by virtue of their office. In addition, the cause arguably arose in Nye County,
because that is where the commissioners ordinarily sit and where the allegedly illegal
meeting, though actually held in Clark County, was publicized. Under such circumstances,
NRS 13.020 mandates that the action be brought in Nye County, or, at the very least, in Clark
County. Nowhere does the complaint allege any connection whatsoever between the
commissioners' actions and Carson City.
__________

1
The First Judicial District Court encompasses Carson City, which is where the attorney general's principal
office is located.

2
The Fifth Judicial District Court encompasses Nye County, which is the county in which the commissioners
ordinarily sit.

3
NRS 13.050(1) provides: 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 . . . demand in writing that the
trial be had in the proper county . . . . See also NRS 13.050(2)(a) (court may, on motion, change the place of
trial . . . [w]hen the county designated in the complaint is not the proper county).
soever between the commissioners' actions and Carson City. Thus, Carson City appears to be
a patently improper venue. Consequently, the commissioners were justified in seeking a
change of venue pursuant to NRS 13.050. Because NRS 13.020 clearly governs, we hold that
the district court erred in denying the commissioners' motion for a change of venue. Cf. Lyon
County v. Washoe Medical Center, 104 Nev. 765, 766 P.2d 902 (1988).
Accordingly, we reverse the order of the district court denying appellants' motion for a
change of venue, and we remand this case to the district court for further proceedings
consistent with this opinion.
____________
108 Nev. 172, 172 (1992) State, Dep't of Mtr. Vehicles v. Blair
STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC SAFETY,
Appellant, v. ELLEN BLAIR aka CLAYTON, Respondent.
No. 22158
February 20, 1992 825 P.2d 1232
Appeal from an order of the district court reinstating respondent's driving privileges.
Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Motorist sought judicial review of revocation of her driving privileges based on blood test
results. Driving privileges were reinstated by the district court and Department of Motor
Vehicles and Public Safety appealed. The supreme court held that finding that nurse who
drew blood sample was an authorized person was supported by substantial evidence even
though her title appeared on affidavit only after her signature.
Frankie Sue Del Papa, Attorney General, Carson City; Grenville Thomas Pridham,
Deputy Attorney General and Laurie B. Foremaster, Deputy Attorney General, Las Vegas,
for Appellant.
Alan B. Andrews, Las Vegas, for Respondent.
Automobiles.
Substantial evidence, in proceeding to revoke driving privileges based on blood test results, supported finding that blood sample
was drawn by authorized person, regardless of whether nurse who drew the blood swore that she was a licensed practical nurse when
her title appeared on affidavit only after her signature, where nurse swore in her affidavit that she was a nurse and was authorized to
draw blood by the State Board of Nursing. NRS 233B.121, subd. 8, 484.393, 484.393, subd. 1.
OPINION
Per Curiam:
On May 18, 1990, respondent Ellen Blair was arrested for driving under the influence of
alcohol and taken to the city jail, where she was given the implied consent admonition.
Respondent consented to a blood test, and her blood was drawn by Marian Berg, the nurse on
duty at the jail.
The test result revealed a blood alcohol level of .25 percent by weight, and appellant, the
Department of Motor Vehicles and Public Safety (DMV), revoked respondent's driving
privileges. Respondent requested an administrative hearing, at which the hearing examiner
accepted into evidence the affidavit of Nurse Berg attesting that she was a nurse, that she had
drawn respondent's blood, and that she was certified to do so by the NSB-N. In the
affidavit, Nurse Berg did not identify herself as a licensed practical nurse until the title line
below her signature at the bottom of the page, where she wrote the letters LPN. The hearing
examiner understood LPN to mean licensed practical nurse, and NSB-N to mean
Nevada State Board of Nursing. Based on the police officer's testimony, the affidavit of
Nurse Berg, and the affidavit of the chemist who performed the blood test, the examiner
admitted the blood test result and affirmed the order of revocation.
Respondent then instituted proceedings in the district court for judicial review. The district
court reversed the DMV's revocation order, finding that Nurse Berg's affidavit was deficient
and should not have been admitted. The district court reasoned that because NRS
484.393(1)(a) allows blood to be drawn only by specifically authorized persons, among others
a registered nurse or a licensed practical nurse, an affidavit stating only that a nurse
drew the blood is insufficient to satisfy the statute. The district court agreed with respondent
that, because the letters LPN do not appear in the body of the affidavit, they do not
establish that the blood was drawn in compliance with the statute. The district court
concluded that the DMV should not have admitted the blood test result, and therefore the
revocation was improper. This appeal by the DMV followed.
DISCUSSION
Respondent does not dispute the hearing examiner's factual finding that the initials LPN
stand for licensed practical nurse. The sole issue before this court, therefore, is whether the
fact that Nurse Berg's title follows, rather than precedes, her signature invalidated her
affidavit for the purpose of proving at the DMV hearing that a person authorized under NRS
4S4.393 drew respondent's blood.1
the DMV hearing that a person authorized under NRS 484.393 drew respondent's blood.
1

The DMV argues that the district court erred in finding Nurse Berg's affidavit insufficient
to prove that she was statutorily authorized to draw respondent's blood. Respondent argues,
on the other hand, that because of its position in the affidavit, Nurse Berg's status as a
licensed practical nurse is not a fact sworn to in the body of the affidavit and cannot establish
Nurse Berg's credentials for evidentiary purposes. We conclude, however, that the location of
Nurse Berg's title does not invalidate the factual finding of the hearing examiner that a
statutorily authorized person drew respondent's blood, and we reverse the decision of the
district court.
Findings of fact at administrative hearings must be based on substantial evidence. NRS
233B.121(8). Nurse Berg swears in her affidavit that she is a nurse and is authorized to draw
blood by the Nevada State Board of Nursing. The title line below the signature clearly
indicated to the hearing examiner that Nurse Berg is a licensed practical nurse. Accordingly,
the hearing examiner found, based on Nurse Berg's affidavit, that a statutorily authorized
person drew respondent's blood. Respondent did not challenge or otherwise present any
evidence to contradict the hearing examiner's factual finding.
The obvious purpose of NRS 484.393(1) is to assure that a medically trained and
competent individual will withdraw blood in a acceptable manner. State v. Webster, 102
Nev. 450, 454, 726 P.2d 831, 833 (1986). This court has held that NRS 484.393 should be
liberally construed to avoid an absurd result. Id. at 455, 726 P.2d at 834. Without deciding
whether Nurse Berg swore she was a licensed practical nurse, we conclude that the affidavit
presents substantial and uncontroverted evidence that a licensed practical nurse, certified by
the Nevada State Board of Nursing, drew respondent's blood. Therefore, the hearing examiner
properly revoked respondent's driving privileges. See NRS 4S4.393{1).
__________

1
NRS 484.393 provides, in pertinent part:
1. The results of any blood test administered under the provisions of NRS 484.383 or 484.391 are not
admissible in any hearing or criminal action arising out of the acts alleged to have been committed while
a person was under the influence of intoxicating liquor or a controlled substance unless:
(a) The blood tested was withdrawn by a physician, physician's assistant, registered nurse, licensed
practical nurse, emergency medical technician or a technician, technologist or assistant employed in a
medical laboratory;
. . . .

(c) The person who withdrew the blood was authorized to do so by the appropriate medical licensing
or certifying agency.
(Emphasis added.)
484.393(1). Any other conclusion would lead to an absurd result. Accordingly, we reverse the
decision of the district court and remand for further proceedings consistent with this opinion.
____________
108 Nev. 175, 175 (1992) State, Emp. Sec. Dep't v. Harich Tahoe
STATE OF NEVADA, DEPARTMENT OF EMPLOYMENT SECURITY, and STANLEY
P. JONES, Executive Director of Employment Security Department, Appellants, v.
HARICH TAHOE DEVELOPMENTS, Respondent.
No. 21764
February 20, 1992 825 P.2d 1234
Appeal from district court order reversing, in part, an administrative determination
regarding the status of time-share representatives. Second Judicial District Court, Washoe
County; William N. Forman, Judge.
Developer and owner of time share resort sought review of Employment Security
Department referee's decision that time-share representatives were employees reportable for
unemployment tax purposes. The Board of Review declined to review case. Employer
petitioned for judicial review. The district court, reversed ruling with respect to time-share
representatives paid solely by commission. State appealed. The supreme court held that
time-share representatives were not sales agents or licensed real estate salespersons within
meaning of unemployment compensation statute, and thus, time-share representatives were
employees reportable for unemployment compensation tax purposes.
Reversed and remanded with instructions.
Crowell, Susich, Owen & Tackes, Carson City, for Appellants.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell and Karen A. Peterson, Carson
City, for Respondent.
1. Administrative Law and Procedure; Social Security and Public Welfare.
In reviewing decision of Employment Security Department's Board of Review, supreme court's prerogatives are same as those of
district court, i.e., to determine from agency record whether Board's decision was supported by substantial evidence.
2. Administrative Law and Procedure; Social Security and Public Welfare.
On review, neither supreme court nor district court may substitute its judgment or evaluation of record developed at agency level
for that of Employment Security Department's Board of Review; judicial review of Board's decision is limited
to issues of law.
Employment Security Department's Board of Review; judicial review of Board's decision is limited to issues of law.
3. Taxation.
Time-share representatives were not sales agents or licensed real estate salespersons, within meaning of unemployment
compensation statute, and thus, time-share representatives were employees reportable for purpose of unemployment compensation
taxes. NRS 119A.120, 119A.240, 612.085, 612.133.
4. Social Security and Public Welfare.
For purposes of unemployment compensation law, licensed real estate salespersons includes licensed time-share agents. NRS
119A.120, 119A.240, 612.085, 612.133.
OPINION
Per Curiam:
Facts
Respondent, Harich Tahoe Developments (Harich), is a developer and owner of a
time-share resort in Nevada known as The Ridge Tahoe. Harich's time-share representatives
attempt to induce potential buyers to visit The Ridge Tahoe where licensed real estate
salespeople attempt to sell time shares in the resort. The time-share representatives work in
booths leased by Harich and located in various casinos in the Tahoe area.
During the first two weeks of work, time-share representatives are paid $7.50 per hour or
the commissions they earn, whichever is the greater amount. After the first two weeks,
time-share representatives are paid on a commission basis only. The time-share
representatives receive a $100.00 commission from Harich for each solicited contact who
visits the resort and purchases a time share. Moreover, Harich authorizes the time-share
representative to solicit and retain, from the prospective purchaser, a $5.00 reservation fee.
In November, 1987, appellant Nevada Employment Security Department (NESD) advised
Harich of NESD's determination that Harich's time-share representatives were Harich's
employees and therefore reportable for unemployment purposes. Harich unsuccessfully
appealed NESD's determination to the NESD referee who sustained the agency's position
concerning the status of the time-share representatives and the fact that taxes were owed by
Harich. Thereafter Harich sought review of the referee's decision by the NESD Board of
Review. The Board of Review left the referee's decision intact by declining to review the
case. Harich then filed a petition for judicial review in the district court and succeeded in
obtaining a reversal of the Board's decision with respect to time-share representatives paid
solely by commission.
Discussion
[Headnotes 1, 2]
In reviewing the decision of NESD's Board of Review, this court's prerogatives are the
same as those of the district court, i.e., to determine from the agency record whether the
Board's decision was supported by substantial evidence. Lellis v. Archie, 89 Nev. 550, 516
P.2d 469 (1973). On review, neither this court nor the district court may substitute its
judgment or evaluation of the record developed at the agency level for that of the Board;
judicial review of the Board's decision is limited to issues of law. State, Emp. Sec. Dep't v.
Weber, 100 Nev. 121, 676 P.2d 1318 (1984).
[Headnote 3]
In resolving the issue of the status of time-share representatives it is necessary to refer to
Nevada statutory law concerning the meaning of employment as it relates to entitlements
and exemptions under our unemployment compensation scheme. The pertinent statute, NRS
612.085, adopts a general presumption of covered employment subject to three areas of
exception:
Employment: Services deemed employment unless specific facts shown. Services
performed by an individual for wages shall be deemed to be employment subject to this
chapter unless and until it is shown to the satisfaction of the executive director that:
1. Such individual has been and will continue to be free from control or direction
over the performance of such services, both under this contract of service and in fact;
2. Such service is either outside the usual course of business for which such service
is performed or that such service is performed outside of all the places of business of
the enterprises for which such service is performed; and
3. Such service is performed in the course of an independently established trade,
occupation, profession or business in which the individual is customarily engaged, of
the same nature as that involved in the contract of service.
The evidence of record before the Board supports the Board's decision concluding, by its
denial of review of the referee's findings, that the time-share representatives are employees
covered by NRS chapter 612. The time-share representatives perform their services on
premises owned or leased by Harich, and are subject to termination for failure to produce.
Moreover, Harich tells the representatives, where, when and how to work, even to the extent
of requiring them to follow a written script prepared by Harich as a means of inducing
contacts to tour Harich's time-share resort property.
Harich's time-share resort property. Finally, the time-share representatives perform their
services in the usual course of Harich's business, without benefit of an independently
established trade, occupation, business, profession or other attributes or typifications of
independence.
[Headnote 4]
Harich nevertheless contends, and the district court agreed, that time-share representatives
are exempt under the provisions of NRS 612.133. We disagree. The statutory definition of
employment in NRS 612.133 excludes services performed by licensed real estate
salesman. For purposes of the unemployment compensation law licensed real estate
salespersons includes licensed time-share sales agents. Nevada Emp. Sec. Dep't v. Capri
Resorts, 104 Nev. 527, 528, 763 P.2d 50, 51-52 (1988). Sales agents who sell time shares in
real property are treated the same as other licensed real estate salespersons. Capri, 104 Nev.
at 529, 763 P.2d at 52. However, a time-share representative is not a sales agent or a
licensed real estate salesperson. NRS 119A.120. A representative does not sell time shares
in real estate, and may not sell any real estate. NRS 119A.120. A representative merely
induces others to attend sales presentations. NRS 119A.120. Although time-share
representatives must register and pay a registration fee, they are not licensed and specially
educated as a prerequisite to the performance of their services. NRS 119A.240. The fact that
time-share representatives may earn their remuneration by commission only is of no
relevance.
Because a time-share representative is not a time-share sales agent or a licensed real estate
salesperson, time-share representatives' services constitute employment and are not exempt
under NRS 612.133. It follows, therefore, that time-share representatives are employees for
purposes of the unemployment compensation law, and are not exempt from employment
status under either NRS 612.085 or NRS 612.133.
Unlike such professionals as doctors, lawyers, accountants, and real estate specialists,
time-share representatives are not members of an established profession. Time-share
representatives are part of a class of non-professional Nevada citizens who are entitled to the
protection of the unemployment compensation laws. The legislature enacted these laws to
provide temporary assistance and a measure of economic security for individuals who become
involuntarily unemployed. Airport Casino v. Jones, 103 Nev. 387, 390, 741 P.2d 814, 816
(1987). The public policy underlying Nevada's unemployment compensation laws coupled
with the language of NRS Chapters 119A and 612 reflect a legislative intent to include the
activities of time-share representatives within the definition of "employment" for purposes
of unemployment compensation law.
sentatives within the definition of employment for purposes of unemployment
compensation law.
Conclusion
For reasons specified above, we reverse the district court order holding that time-share
representatives fall within the exception to the definition of employment set forth in NRS
612.133, and remand with instructions to reinstate NESD's administrative decision.
____________
108 Nev. 179, 179 (1992) McAnulty v. State
KENNETH RAY McANULTY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22315
February 26, 1992 826 P.2d 567
Proper person appeal from an order of the district court denying appellant's petition for
post-conviction relief. Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Defendant who had been sentenced as an habitual criminal filed post-conviction petition.
Petition was denied by the district court and defendant appealed. The supreme court held that
habitual criminal determination could not be based on defendant's stipulation that he had two
prior felony convictions.
Vacated and Remanded.
Steffen, J., dissented.
Kenneth Ray McAnulty, in Proper Person, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, Clark
County, for Respondent.
1. Criminal Law.
Defendant could be adjudicated an habitual criminal on the basis of stipulation that he had two prior felony convictions;
constitutional validity of the prior convictions was a legal status to which defendant could not stipulate. NRS 207.010, subds. 1, 8.
2. Criminal Law.
In order to use prior convictions for enhancement purposes, it is essential that those convictions be constitutionally valid, but once
State produces certified copies of prior judgments of conviction which do not, on their face, raise presumption of constitutional
infirmity, district court is entitled to rely on those prior convictions for enhancement purposes unless defendant is able to prove by
preponderance of the evidence that the prior convictions are constitutionally infirm. NRS. 207.010, subd. 8.
OPINION
Per Curiam:
On April 3, 1990, the district court convicted appellant, pursuant to a negotiated guilty
plea, of one count of grand larceny. The plea negotiations called for appellant to stipulate that
he was a habitual criminal under the little habitual criminal statute. NRS 207.010(1).
At sentencing, the state noted that this court had recently held that it was impermissible for
a district court to rely solely on a defendant's stipulation in determining whether a defendant
was a habitual criminal. Staley v. State, 106 Nev. 75, 787 P.2d 396 (1990). The state
suggested that instead of stipulating that he was a habitual criminal, appellant could stipulate
that he had two prior felony convictions. Appellant stipulated that he had two prior felony
convictions, and appellant's counsel agreed. No inquiry into the nature or validity of those
convictions was made. It does not appear that any record of the prior convictions was
submitted to the district court. Based solely on the stipulation of appellant that he had two
prior felony convictions, the district court found that appellant had the status of a habitual
criminal. In spite of this finding, appellant argued that he felt that he should not be treated as
a habitual criminal, and argued for leniency in sentencing. The district court rebuffed
appellant's argument for leniency and sentenced appellant to a term of eighteen years in the
Nevada State Prison, as called for in the plea agreement. No direct appeal was taken.
On March 23, 1991, appellant filed in the district court, in proper person, a petition for
post-conviction relief. In that petition, appellant alleged that his adjudication as a habitual
criminal was improper, and that his attorney was ineffective for failing to point out problems
with his prior convictions. Specifically, appellant contended that two of his prior convictions
should have merged for purposes of determining habitual criminality. See Rezin v. State, 95
Nev. 461, 596 P.2d 226 (1979); Halbower v. State, 96 Nev. 210, 606 P.2d 536 (1980).
Appellant also contended that it was an abuse of discretion for the district court to consider a
1972 conviction in Ohio for larceny by trick because that conviction was remote in time and
for a nonviolent offense. See Sessions v. State, 106 Nev. 186, 789 P.2d 1242 (1990). No
counsel was appointed for appellant, and no evidentiary hearing was held on his claims. On
May 13, 1991, the district court entered its order denying appellant's petition. This appeal
followed.
In Staley v. State, 106 Nev. 75, 78, 787 P.2d 396, 397 (1990), this court held that [a]
person cannot stipulate to a status. The question of the validity of the prior convictions must
be determined by the district court as a matter of law; the punishment which follows is
dependent on the number of valid prior convictions."
question of the validity of the prior convictions must be determined by the district court as a
matter of law; the punishment which follows is dependent on the number of valid prior
convictions.
[Headnotes 1, 2]
The procedure used by the district court in sentencing appellant was clearly in violation of
our express holding in Staley. The district court made no inquiry whatever concerning
appellant's prior convictions, despite appellant's assertion that he did not feel that he should
be adjudicated a habitual criminal. On the mere, naked admission by appellant and his
attorney that appellant had two prior felony convictions, the district court determined that
appellant was a habitual criminal. While the existence of a prior conviction may be a factual
matter within the knowledge of a defendant, this is not the end of the inquiry. In order to use
prior convictions for enhancement purposes, it is essential that those convictions be
constitutionally valid. See Baldasar v. Illinois, 446 U.S. 222 (1980); Burgett v. Texas, 389
U.S. 109 (1967); Koenig v. State, 99 Nev. 780, 672 P.2d 37 (1983); Anglin v. State, 86 Nev.
70, 464 P.2d 504 (1970).
The constitutional validity of prior convictions is a legal status to which a defendant may
not stipulate. No matter what the plea bargain, the district court must make its own
determination as to the constitutional validity of a prior conviction. NRS 207.010(8) provides
that [a] certified copy of a felony conviction is prima facie evidence of conviction of a prior
felony. Accordingly, once the state produces certified copies of prior judgments of
conviction which do not, on their face, raise a presumption of constitutional infirmity, the
district court is entitled to rely on those prior convictions for enhancement purposes unless
the defendant is able to prove by a preponderance of the evidence that the prior convictions
are constitutionally infirm. See Dressler v. State, 107 Nev. 686, 819 P.2d 1288 (1991).
Accordingly, we vacate the order of the district court denying appellant's petition for
post-conviction relief. Further, we vacate appellant's sentence. We remand this matter to the
district court for resentencing. On remand, the district court shall independently determine the
validity of appellant's prior judgments of conviction.
Steffen, J., dissenting:
For reasons expressed in my dissent in Staley v. State, 106 Nev. 75, 787 P.2d 396 (1990), I
respectfully dissent.
____________
108 Nev. 182, 182 (1992) State, Dep't of Mtr. Vehicles v. McGuire
STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES, Appellant, v. MICHAEL
McGUIRE, Respondent.
No. 21878
March 5, 1992 827 P.2d 821
Appeal from district court order denying petition for judicial review, and reinstating
driving privileges. Eighth Judicial District Court, Clark County; John S. McGroarty, Judge.
Department of Motor Vehicles sought judicial review of decision by administrative
hearing officer granting temporary license to driver whose driving privileges were revoked as
a result of his driving under the influence where driver had only out-of-state license at time of
arrest. The district court denied petition and reinstated driving privileges. Appeal was taken.
The supreme court held that: (1) agency had right to seek judicial review of administrative
decision, and (2) because driver had no driving privileges in state at time of his arrest, district
court lacked authority to order reinstatement of non-existent driving privileges.
Deputy Attorney General, and Laurie B. Foremaster, Deputy Attorney General, Las Vegas,
for Appellant.
John Watkins, Las Vegas, for Respondent.
Amendment to statute which allowed only person and not agency to seek judicial review of administrative decision to reinstate
party or person thereby allowing agency to appeal, applied retroactively. NRS 233B.130.
2. Statutes.
If language of statute is plain, intention must be deduced from its language and court has no right to go beyond that language.
Right of appeal should not be taken away unless clearly intended by statute; any doubt about construction of statutes regulating
right of appeal is to be resolved in favor of allowing appeal.
4. Automobiles.
Because driver arrested for driving while intoxicated lacked in-state driving privileges where he had not obtained Nevada license
within 45 days of moving into state, driver was not entitled to seven-day temporary license after his arrest; Nevada did not revoke
driver's privilege to drive under old Kansas license. NRS 482.103, subd. 1(c), 483.245, 483.245, subds. 1, 2; U.S.C.A.Const. amends.
5, 14.
5. Automobiles.
Driver who did not apply for state driver's license within required time of moving into state did not have driving privileges at time
of his arrest and thus had no driving privileges to revoke, so that driver, who had no right to drive at time of
his arrest, could not by virtue of unlawful driving while intoxicated become entitled to temporary
seven-day license issued to licensed drivers who licenses are revoked.
arrest and thus had no driving privileges to revoke, so that driver, who had no right to drive at time of his arrest, could not by virtue of
unlawful driving while intoxicated become entitled to temporary seven-day license issued to licensed drivers whose licenses are
revoked. NRS 482.103, subd. 1(c), 483.245, 483.245, subds. 1, 2; U.S.C.A.Const. amends. 5, 14.
OPINION
Per Curiam:
Facts
On November 1, 1988, respondent Michael M. McGuire caused a four-car accident while
driving under the influence of intoxicating liquor (DUI). McGuire was arrested and told by
the arresting officer that his driving privileges were revoked pursuant to NRS 484.385. The
officer declined to issue a seven-day temporary license to McGuire because the officer's
review of the official records indicated that the Nevada Highway Patrol had previously
revoked McGuire's driving privileges for a DUI occurring in July, 1988.
McGuire requested an administrative hearing, and the officer affirmed the revocation of
McGuire's driving privileges by the Department of Motor Vehicles (DMV). However, upon a
petition of judicial review to the district court, the matter was remanded back to the
administrative hearing officer to reconsider whether NRS 484.385 entitled McGuire to a
temporary license at the time of his arrest.
On remand, the hearing officer reasoned that because McGuire had a valid Kansas license
and his driving privileges had not been revoked prior to his November 1, 1988 arrest, he was
entitled to a temporary seven-day license pursuant to NRS 484.385. The hearing officer
therefore rescinded the revocation of McGuire's driving privileges. The hearing officer also
found that McGuire had an obligation to obtain a Nevada driver's license. Although McGuire
was a ten-month resident of Nevada, he failed to obtain a Nevada driver's license as required
by NRS 483.245.
On May 7, 1990, the DMV petitioned the district court for judicial review. The district
court denied the DMV's petition on November 8, 1990, and reinstated McGuire's driving
privileges. This appeal followed.
Discussion
[Headnote 1]
McGuire claims this appeal is barred by NRS 233B.130 (1989) which allows only a
person, not an agency, to seek judicial review of an administrative decision. From 1981
to 1989, NRS allowed a "party" to seek review.
233B.130 allowed a party to seek review. In 1989, NRS 233B.130 was amended to allow
only a person to seek review. NRS 233B.037 excludes an agency from the definition of
person.
However, Assembly Bill 422 17.7 (1991) rectified the wording in NRS 233B.130(1) by
reinstating the word party for person, thereby causing NRS 233B.130 to read as it had
prior to 1989. Although statutes generally apply prospectively unless the legislature expresses
an intention of retroactive application, Allstate Ins. Co. v. Furgerson, 104 Nev. 772, 776, 766
P.2d 904, 907 (1988), the legislature declared in AB 422 73(2) (1991) that the referenced
change constituted a clarification of existing law and that AB 422 17.7 applied
retroactively. Additionally, the legislature specified that it did not intend to limit the right of
a state agency to appeal an adverse decision in an administrative proceeding. AB 422 73(2)
(1991).
[Headnote 2]
When presented with a question of statutory interpretation, the intent of the legislature is
the controlling factor. . . . Robert E. v. Justice Court, 99 Nev. 443, 445, 664 P.2d 957, 959
(1983). Moreover, [w]hen the language of a statute is plain, its intention must be deduced
from such language, and the court has no right to go beyond it. Cirac v. Lander County, 95
Nev. 723, 729, 602 P.2d 1012, 1015 (1979) (quoting State ex rel. Hess v. Washoe County, 6
Nev. 104, 107 (1870)). The clear language of AB 422 indicates that the legislature intended
that an agency has the right to appeal an adverse decision.
[Headnote 3]
Finally, [t]he right of appeal . . . should not be taken away unless clearly intended by the
statute. Thompson v. District Court, 100 Nev. 352, 355, 683 P.2d 17, 19 (1984). Any doubt
about the construction of statutes regulating the right of appeal should be resolved in favor of
allowing an appeal. Id.
For all of the above reasons, the DMV's appeal is not barred.
Turning to the merits of this appeal, the DMV argues that when McGuire was arrested he
did not have Nevada driving privileges because he failed to comply with NRS 483.245.
1
DMV reasons that because McGuire had no driving privileges in Nevada, he was not
entitled to a seven-day temporary license.
__________

1
NRS 483.245(1) and (2) provide as follows:
1. When a person becomes a resident of Nevada as defined in this chapter and chapter 482 of NRS he
must, within 45 days, obtain a Nevada driver's license as a prerequisite to driving any motor vehicle in
the State of Nevada.
2. Where a person who applies for a license has a valid driver's license from a state which has
requirements for issuance of drivers' licenses comparable to those of the State of Nevada, the department
may issue a Nevada license under the same terms and conditions applicable to a renewal of a license in
this state.
reasons that because McGuire had no driving privileges in Nevada, he was not entitled to a
seven-day temporary license.
McGuire contends that his constitutional due process rights were violated when the officer
failed to issue him a seven-day license. He further asserts that this failure was a government
trespass upon his right to a pre-termination hearing. McGuire finally argues that the United
States Supreme Court has recognized a universal obligation of due process that no person be
deprived of his constitutionally protected property interest in his or her driver's licence
without an opportunity to defend his or her rights. Bell v. Burson, 402 U.S. 535, 539 (1971).
McGuire's arguments lack merit. Nevada did not revoke McGuire's privilege to drive in
Kansas. Moreover, McGuire did not having driving privileges in Nevada because he failed to
comply with Nevada law requisite to obtaining that privilege.
[Headnotes 4, 5]
When a person becomes a resident of Nevada, he or she must obtain a Nevada driver's
license within 45 days. NRS 483.245(1). A resident includes a person who physically resides
and works in Nevada. NRS 482.103(1)(c). McGuire lived and worked in Nevada beginning in
January of 1988 and was therefore a Nevada resident for a period of over 45 days when he
was arrested for DUI on November 1, 1988. Because McGuire never did apply for a Nevada
driver's license within or without the time period specified in NRS 483.245, he did not enjoy
driving privileges in Nevada at the time of his arrest; ergo, McGuire had no Nevada driving
privilege to revoke. It would be absurd, therefor, to conclude that McGuire, who had no right
to drive in Nevada at the time of his arrest, was, by virtue of his unlawful driving while
intoxicated, and causing an accident, entitled to be issued a temporary, seven-day license.
We also note that because McGuire had no driving privileges in Nevada at the time of his
arrest and subsequent thereto, the district court could hardly order that McGuire's
non-existent driving privileges be reinstated. It is clear, however, that McGuire did have a
colorable claim to driving privileges at the time of his arrest because of the unexpired,
facially valid Kansas driver's license in his possession. In effect, McGuire sought to validate
his Nevada driving privileges through use of a Kansas permit that had ceased to provide a
basis for lawful driving in Nevada 45 days after McGuire become a Nevada resident. Since
McGuire's colorable privilege to drive by virtue of the Kansas license was in effect revoked
by the DMV, McGuire is required to surrender his Kansas driver's permit to the DMV. NRS
483.500.
Accordingly, the order reinstating McGuire's Nevada driving privileges is reversed, and
this matter is remanded to the district court with instructions to direct the DMV to take such
measures as are necessary to assure that McGuire's Kansas license is surrendered.2
court with instructions to direct the DMV to take such measures as are necessary to assure
that McGuire's Kansas license is surrendered.
2

Mowbray, C. J., Rose, Steffen and Young, JJ., and Christensen, D. J.,
3
concur.
____________
108 Nev. 186, 186 (1992) Walters v. State
WAYNE EDWARD WALTERS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20028
March 5, 1992 825 P.2d 1237
Appeal from denial of petition for post-conviction relief. Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
Petitioner sought post-conviction relief from conviction for second degree murder. The
district court denied relief, and appeal was taken. The supreme court held that exclusionary
rule did not apply to defendant's statements made outside his home following warrantless
arrest in home.
Vacated in part and affirmed in part.
Beury & Schubel, Carlsbad, California; Frank J. Cremen, Las Vegas, for Appellant.
James Tufteland, Chief Deputy and Vicki Monroe, Deputy, Clark County, for Respondent.
__________

2
We are not here concerned with the issue of whether the Kansas driver's permit is subject to surrender to
Kansas authorities. Until such time as the State of Kansas evinces an interest in McGuire's license, we are
confident that Nevada has the power to require that the license be surrendered to Nevada authorities since
McGuire has elected to become a Nevada resident, and has also seen fit to disregard Nevada law in failing to
obtain a Nevada license as required by law, and in driving on Nevada highways under the influence of
intoxicants thus jeopardizing the lives and property of persons within this state.
In the event McGuire has obtained a Nevada license as a result of the district court's erroneous ruling, the
DMV may, if it so elects, revoke any current Nevada license issued to McGuire because of the erroneous ruling,
and impose a period of revocation consistent with that which McGuire would have suffered if the original
revocation or denial of driving privileges had been enforced.

3
The Honorable Carl J. Christensen, Judge of the Eighth Judicial District, was designated by the Governor
to sit in the place of The Honorable Charles E. Springer, Justice. Nev. Const. art. 6, 4.
1. Criminal Law.
Exclusionary rule did not apply to defendant's statements made outside his home following warrantless arrest in home.
2. Criminal Law.
Sentence for second degree murder could not be enhanced for use of deadly weapon, where nothing indicated that defendant could
have exercised control over knife used to kill victim and that he had actual or constructive possession of it.
OPINION ON REHEARING
Per Curiam:
This is an appeal from an order of the district court denying appellant's petition for
post-conviction relief.
Appellant Wayne Edward Walters was convicted following a jury trial of one count of
second degree murder with use of a deadly weapon. Walters was sentenced to serve a prison
term of life with the possibility of parole, enhanced by a consecutive term of life with the
possibility of parole for use of a deadly weapon.
Following the dismissal by this court of Walters' direct appeal, Walters petitioned the
district court for post-conviction relief. Following an evidentiary hearing, the district court
denied the petition. This appeal followed.
On February 20, 1990, this court issued an opinion in this matter reversing the decision of
the district court. Walters v. State, 106 Nev. 45, 786 P.2d 1202 (1990). On May 9, 1990, the
state filed in this court a motion to recall the remittitur and a petition for rehearing. Walters
opposed the motion and petition. On June 21, 1990, this court issued an order staying the
proceedings against appellant in the district court. On October 25, 1990, we recalled our
remittitur in this matter, and granted the state's petition for rehearing. We now issue this
opinion in the place of our prior opinion.
FACTS
The evidence at trial showed that on the night of May 12, 1985, Walters and his
companion, Gregory Samson, had a heated argument with the victim, Douglas Ueckert, at the
Tumbleweed Inn, a bar in Sandy Valley, Nevada. The three men and several companions left
the bar to settle the dispute outside, at which time Samson displayed a knife. Eventually, the
men returned to the bar, after apparently settling their differences. Soon, however, the
argument flared up again. This time only Walters, Samson and Ueckert left the bar. A short
time later, the victim's wife, Diane Ueckert, found her husband in the parking lot bleeding
from several stab wounds.
wife, Diane Ueckert, found her husband in the parking lot bleeding from several stab wounds.
Just prior to seeing her mortally wounded husband, Mrs. Ueckert encountered Samson on his
motorcycle. Samson indicated that Ueckert had hit him in the head and hurt him. At the same
time, Walters pulled up in a car and yelled to Samson, let's go.
The next morning, without first obtaining a warrant, police officers from both Nevada and
California converged on Walters' ranch, located on the California side of Sandy Valley, and
arrested him. In accomplishing the arrest, the officers used a helicopter and, while circling
Walters' home, used a bullhorn to order Walters and Samson to leave the house and walk to
where other officers were waiting. Walters and his companion complied with the police
directives, were given their Miranda warnings and were placed under arrest. Thereafter,
Walters was transported to Barstow, California, by a police officer. During the course of that
ride, which was approximately 100 miles, Walters made a statement to the effect, How many
times did I have to let him hit me in the back?
Following a jury trial, Walters was found guilty of second degree murder and sentenced to
life with the possibility of parole. He also received an identical consecutive sentence as an
enhancement for using a deadly weapon. Walters challenges the district court's denial of his
petition for post-conviction relief.
DISCUSSION
[Headnote 1]
In our previous opinion we concluded that two of the issues Walters raised in his petition
for post-conviction relief had merit. First, we concluded that because Walters emerged from
his home under circumstances of coercion, Walters was in effect arrested within his home.
See United States v. Maez, 872 F.2d 1444, 1449-51 (10th Cir. 1989). Consequently, we
concluded that Walters' inculpatory statement made in the police car as he was being
transported to Barstow was the product of an arrest in his home without a warrant or exigent
circumstances and should have been excluded from evidence under the holding of the United
States Supreme Court in Payton v. New York, 445 U.S. 573 (1980). See Maez, 872 F.2d at
1456-57.
In Payton the Supreme Court held that the Fourth Amendment prohibits the police from
effecting a warrantless and nonconsensual entry into a suspect's home in order to make a
routine felony arrest. Payton, 445 U.S. at 602-03. On April 18, 1990, however, the Supreme
Court issued a decision declining to apply the exclusionary rule to statements made outside a
suspect's home following a warrantless arrest in the home. New York v. Harris, 495 U.S. 14,
110 S.Ct. 1640 (1990). The Supreme Court explained that the rule in Payton was designed
to protect the physical integrity of the home and not to grant criminal suspects protection
from statements made outside their premises where the police have probable cause of
arresting the suspect for committing a crime. Id. at______, 110 S.Ct. at 1643.
explained that the rule in Payton was designed to protect the physical integrity of the home
and not to grant criminal suspects protection from statements made outside their premises
where the police have probable cause for arresting the suspect for committing a crime. Id. at
------
, 110 S.Ct. at 1643.
The Supreme Court's decision in Harris prompted us to withdraw our earlier opinion in
this matter. Because the facts of Harris are legally indistinguishable from the facts in this
case, we now hold that the district court did not err in denying Walters' claim for
post-conviction relief based on admission of the inculpatory statement.
[Headnote 2]
Our second previous determination, that Walters' sentence was improperly enhanced,
remains unchanged. The controlling case law is found in Anderson v. State, 95 Nev. 625, 600
P.2d 241 (1979), in which we determined that the participation of a defendant not actually in
possession of the weapon by aiding and abetting the actual user in the unlawful use of the
weapon, makes the former equally subject to the added penalty inflicted upon defendants who
actually commit crimes through the use of deadly weapons. Id. at 629, 600 P.2d at 243.
In Anderson, we defined the requirements necessary to subject a defendant who aids and
abets to the enhanced penalty resulting from use of a deadly weapon as follows:
[T]he possession necessary to justify statutory enhancement may be actual or
constructive; it may be exclusive or joint. Constructive or joint possession may occur
only where the unarmed participant has knowledge of the other offender's being armed,
and where the unarmed offender has . . . the ability to exercise control over the
[weapon].
Id. at 630, 600 P.2d at 244.
The evidence strongly indicates that Walters did not have the possession necessary to
justify the enhancement of his sentence. There was no evidence suggesting that Walters had
any kind of constructive possession of the knife used to kill Ueckert. Moreover, the record
does not supply a basis for inferring that Walters could have exercised control over the
weapon. Therefore, it was clear error to statutorily enhance Walters' sentence. Walters'
remaining contentions lack merit.
Accordingly, we vacate appellant's consecutive life sentence for use of a deadly weapon.
We affirm in all other respects the decision of the district court denying appellant's petition
for post-conviction relief.
1

__________

1
We lift the stay of proceedings in the district court imposed by our order of June 21, 1990.
____________
108 Nev. 190, 190 (1992) Schryver v. Schryver
VIRGINIA A. SCHRYVER, Appellant, v. JAMES B. SCHRYVER, Respondent.
No. 21888
March 5, 1992 826 P.2d 569
Appeal from an order of the district court dismissing a motion for modification of spousal
support. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Former wife moved for modification of spousal support. The district court dismissed
motion, and former wife appealed. The supreme court held that motion to modify alimony
was timely filed on thirteenth day of last month of payment of alimony, even though former
husband had already made final payment.
Silverman & DeCaria and Jarold Young, Reno, for Appellant.
Dyer & McDonald, and Valerie J. Cooney, Carson City, for Respondent.
Divorce.
Motion to modify alimony was timely filed on thirteenth day of last month for payment of alimony, even though former husband
had already made final payment; holding otherwise would allow former husband to deprive court of jurisdiction simply by making
advance payment.
OPINION
Per Curiam:
This is an appeal from an order of the district court dismissing a motion for modification
of spousal support. On May 3, 1983, Virginia and James Schryver were divorced. The district
court approved a written settlement agreement between Virginia and James, and incorporated
the agreement into the decree of divorce. The agreement provided that James was to pay
Virginia $1,200 a month in alimony beginning on October 1, 1982, and continuing for a
period of eight years.
September of 1990 was to be the last month that James was required to make payments
under the decree. At the beginning of the month, James sent Virginia a check in the amount
of $1,000. A few days later he sent her a check in the amount of $200. Subsequently, on
September 13, 1990, Virginia filed a motion pursuant to NRS 125.150(7)
1
to modify the
alimony payments.
__________

1
NRS 125.150(7) provides that:
If a decree of divorce, or an agreement between the parties which was ratified, adopted or approved in
a decree of divorce, provides for
108 Nev. 190, 191 (1992) Schryver v. Schryver
She requested that the payments be increased and extended for the remainder of her life.
On December 12, 1990, the district court entered an order dismissing Virginia's motion for
modification. Although the district court did not specify its reasons for the dismissal, both
parties to this appeal assume that the district court concluded that it lacked jurisdiction to
consider Virginia's motion.
Virginia contends in this appeal that although James may have made his final alimony
payment at the beginning of the month, the actual term of support did not end until September
30, 1990. Therefore, because she filed her motion on September 13, 1990, she asserts that the
district court had jurisdiction to consider it.
The issue presented is one of first impression in Nevada. We have considered the
conflicting authorities from other jurisdictions and have concluded that Virginia's argument
has merit. Because Virginia's motion was filed within the period of support as contemplated
by the divorce decree, it was timely. See Pujals v. Pujals, 414 So.2d 228 (Fla.Dist.Ct.App.
1982) (motion to extend alimony was timely even though it was filed on the last day of the
period of support, after the final payment had been made). To hold otherwise would allow a
payor spouse to deprive the court of jurisdiction simply by making advance payments.
Accordingly, we reverse the order of the district court dismissing the motion for
modification, and we remand for further proceedings.
____________
108 Nev. 191, 191 (1992) Lickey v. State
AUSTIN E. LICKEY, aka AUSTIN ORR, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 20308
March 5, 1992 827 P.2d 824
Appeal from judgment of conviction of four counts of sexual assault on child under the
age of fourteen years. Seventh Judicial District Court, White Pine County; Merlyn H. Hoyt,
Judge.
Defendant was convicted in the district court of sexual assault on child under age of
fourteen years, and he appealed. The supreme court held that defendant was denied fair trial
as result of failure to provide him with assistance of expert psychiatric witness to interview
child victim, where state was provided with that resource and evidence consisted almost
entirely of child victim's testimony.
__________
specified periodic payments of alimony, the decree or agreement is not subject to modification by the
court as to accrued payments. Payments pursuant to a decree entered on or after July 1, 1975, which have
not accrued at the time a motion for modification is filed may be modified upon a showing of changed
circumstances, whether or not the court has expressly retained jurisdiction for the modification.
witness to interview child victim, where state was provided with that resource and evidence
consisted almost entirely of child victim's testimony.
James J. Jackson, State Public Defender, Janet S. Bessemer, Deputy Public Defender,
Patrick Gilbert, Deputy Public Defender, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Mariah Sugden, District Attorney,
Dan L. Papez, Deputy District Attorney, White Pine County, for Respondent.
1. Criminal Law.
In prosecution for sexual abuse, defense is entitled to same opportunity to present expert testimony concerning victim's
psychological state as is prosecution, unless competent evidence presents compelling reason to protect child victim from repeated
examination.
2. Criminal Law.
Where police officers and state's experts were permitted to conduct over a dozen interviews with victim of child sexual abuse,
defendant was entitled to conduct at least one such interview; determination that multiple psychiatric examinations might intimidate
child was not supported by evidence.
3. Criminal Law.
State is not entitled to have psychologist testify as to veracity of victim of child sexual abuse, although treating health professional
may testify that victim's behavior is consistent with that of assault victim.
4. Criminal Law.
Expert witness may not comment on veracity of another witness.
5. Costs.
Failure to accord defendant assistance of expert psychiatric witness in prosecution for child sexual abuse, while state was provided
with expert witness, resulted in lack of fair trial where evidence consisted almost entirely of child victim's testimony which defendant
disputed.
OPINION
Per Curiam:
Appellant Austin Lickey (Lickey) was tried by a jury and convicted for sexually assaulting
his granddaughter, who was seven years old at the time of the assaults. Lickey was sentenced
to four consecutive life terms in the Nevada State Prison.
Prior to trial, Lickey filed a motion to have the victim and her mother examined by a
defense psychiatrist. The purpose of the proposed examination was to refute the testimony of
the State's witness, a doctor of clinical psychology who, after interviewing the child six
times, opined that the victim had "Post Traumatic Stress Disorder-Secondary to Child
Sexual Abuse."
the child six times, opined that the victim had Post Traumatic Stress Disorder-Secondary to
Child Sexual Abuse. The defense also wished to show that the victim's mother, Barbara, had
a long-standing enmity toward her father, Austin Lickey. In the motion to allow the defense a
psychiatric examination and testimony, Lickey asserted that it was unfair to allow the State to
rely on an examination conducted by its own expert and then deny the defense the
opportunity to have the same benefit. On April 28, 1989, a hearing was held and the district
court denied the motion. Relying on Townsend v. State, 103 Nev. 113, 734 P.2d 705 (1987),
the court concluded that the veracity of the victim and her mother should be decided by the
jury because multiple psychiatric examinations might intimidate the child. No evidence was
introduced to show that another psychiatric interview would affect the child in any way. The
court also found that other evidence supported the victim's testimony.
At trial, the court admitted testimony regarding a prior bad act committed by Lickey. The
court ruled that this evidence was admissible to show intent under McMichael v. State, 94
Nev. 184, 577 P.2d 398 (1978). Barbara testified that in 1983 or 1984, when she was living
with her parents in Ruth, Nevada, she was sleeping on the couch when her father put his
hand underneath the blanket and went towards my bottom half and told me that's how I could
pay him back the twenty dollars.
The primary evidence presented against Lickey at trial was the testimony of the victim,
who was then eight years old. At the time of the alleged assaults, she was living with her
grandparents in Ruth. She testified that the first incident occurred while she was playing with
her Barbie doll in the living room of Lickey's home. Lickey put his finger up her private
part and started wiggling his finger, which hurt. A second incident occurred while she was
standing on a chair in the kitchen stirring a pot of spaghetti on the stove. Lickey approached
her, stuck his finger in her vagina, and began wiggling his finger. The third incident occurred
one night wile the victim was in bed. Lickey came into her bedroom and stuck some kind of
silverware in her private part.
The final incident occurred in a car while traveling from Ely to Ruth. The victim testified
that her grandmother was driving, and she was seated on the front seat between her
grandmother and Lickey. Lickey was drunk and he struck his finger in her vagina and wiggled
his finger. She told her grandmother, who became angry, pulled the car to the side of the road,
and began slugging Lickey. A police car then pulled in front of the vehicle, and both the
victim's grandmother and the police officer exited their vehicles and had a conversation in
front of Lickey's vehicle. At trial, through the use of an anatomically correct doll, the
victim identified the vagina as the place Lickey touched her in each incident.
through the use of an anatomically correct doll, the victim identified the vagina as the place
Lickey touched her in each incident.
Lickey claims the trial court erred in denying his motion to have a defense psychiatrist
examine the victim and testify at trial. Lickey argues that because the prosecution raised the
issue of the effect of the victim's mental well-being on her veracity, he should have been
permitted to have a psychiatrist testify to support the defense's theory that the victim lied
about the cause of her injuries. We are convinced by this argument.
The district court permitted the prosecution to call a clinical psychologist specializing in
child sexual abuse, who reiterated what the minor victim had told her during their interviews.
The psychologist stated her expert conclusion that the victim had been sexually molested, and
she opined that the victim was truthful. The prosecution had two evidentiary advantages over
the defense. First, it was able to provide expert testimony that the victim was assaulted
sexually and had post traumatic stress disorder as a result of these assaults, a conclusion the
defense was not given the opportunity to controvert with its own expert. Second, the
prosecution's expert was permitted to testify as to the veracity of the victim-witness.
Numerous jurisdictions, as well as general notions of fairness, dictate that failure to provide
equal access to expert psychiatric witnesses prejudices the defense.
In determining that Lickey had no right to have a psychiatrist examine the victim and
testify at trial, the district court relied upon Washington v. State, 96 Nev. 305, 608 P.2d 1101
(1980). In Washington, the defendant requested a psychiatric examination of the victim after
trial, to support his motion for a new trial based on his contention that the victim was lying.
This court concluded that the prosecution's case was not so void of corroboration that an
exam was warranted, and that in any event the decision to appoint a psychiatrist for the
defense post-trial was within the discretion of the trial court. Id. at 307-308, 608 P.2d at
1102-03. In Washington, however, the prosecution had no expert of its own. Moreover, we
did not address the issue presented in this case: to wit, whether the same standard applies if
the trial court permits the prosecution's expert to testify at trial but denies the defendant the
same opportunity. The dissent opines that we misunderstand the issue. We suggest that the
contrary is true and that the dissenting justice refuses to acknowledge the obvious differences
between the Washington case and the one at issue here.
[Headnotes 1, 2]
The assistance a psychologist offers a defendant is very important in sexual assault cases.
See Warner v. State, 102 Nev. 635, 729 P.2d 1359 (1986). In Warner, we reversed a
conviction for sexual assault because of ineffective counsel.
sexual assault because of ineffective counsel. We held that defense counsel was ineffective in
part because he failed to interview the complaining minor or request a court order requiring
her to undergo a physical or psychological examination. If failure to request a psychological
examination constitutes grounds for a finding of ineffective counsel, it logically follows that a
defendant facing charges of sexual assault of a minor should be afforded an expert psychiatric
witness.
The few jurisdictions which have examined this issue have agreed that in sexual abuse
cases, the defense should have the same opportunity to present expert testimony as the
prosecution. Cox v. State, 805 P.2d 374 (Alaska App. 1991) (court abused its discretion by
denying defense opportunity to present expert to testify that children lie about sexual abuse);
State v. Zeh, 509 N.E.2d 414 (Ohio 1987) (evidence from prosecutor's interview is
inadmissible unless witness consents to court-appointed, independent examination by the
defense). In Zeh, the court focused on the concept of judicial courtesy to both sides and
decided that since the victim's veracity was at issue, it could only have been fair to have
either permitted defendant to develop such evidence for his defense, or to have denied the
prosecution any use of that expert testimony applicable to the contested and essential element
of the crime. Zeh, 509 N.E.2d at 418. In Cox, the trial court excluded the defense expert's
testimony on the grounds that the defendant had ample opportunity to cross-examine the
prosecution's expert. Concluding that cross-examination was an inadequate substitute for
surrebuttal, the appellate court stated that the trial court was under a duty to give [defense]
counsel every opportunity to combat the improper testimony. Cox, 805 P.2d at 379. We
conclude that unless competent evidence presents a compelling reason to protect the victim, it
is error to deny a defendant the assistance of a defense psychologist or psychiatrist to examine
the child-victim and testify at trial when the State is provided such assistance. Because police
officers and the State's experts were permitted to conduct over a dozen interviews with the
child-victim, the defendant should have been afforded at least one.
The dissent cites Colley v. State, 98 Nev. 14, 639 P.2d 530 (1982), in support of the
contention that the denial of a defense motion for a psychiatric examination of the victim was
not an abuse of discretion. We conclude that Colley is not controlling. In Colley, the State did
not call a psychiatric witness at trial, nor was the issue here presented argued in that appeal.
Moreover, unlike the case at bar, the victim's testimony was amply corroborated, and her
emotional state was not subject to serious attack. Id. at 17, 639 P.2d at 532.
[Headnote 3]
We also conclude that it is error to permit the State to have a psychologist testify as to the
veracity of a victim. The testimony the Cox court called improper was testimony of the
prosecution's expert psychiatrist verifying a child's detailed reports of sexual abuse. In the
case at bar, the State's psychologist testified positively about both (1) the veracity of the
victim, and (2) her opinion that the victim's mental condition was consistent with someone
who had been sexually abused. In child sexual assault cases, NRS 50.345 permits a treating
health professional to testify that the victim's behavior or condition is consistent with that of a
sexual assault victim. In the case at bar, however, the State's psychologist went beyond that
which is allowed by the statute.
[Headnote 4]
An expert may not comment on the veracity of a witness. See Townsend v. State, 103 Nev.
113, 734 P.2d 705 (1987). In Townsend, we allowed expert testimony concerning post
traumatic stress disorder, because the testimony was highly probative. We unequivocally
stated that it was improper for an expert to comment directly on whether the victim's
testimony was truthful, because that would invade the prerogative of the jury.
Other jurisdictions are in accordance with our Townsend holding. See, e.g., State v.
Bressman, 689 P.2d 901 (Kan. 1984) (expert opinion becomes inadmissible as soon as it
passes on credibility of the witness); State v. Logue, 372 N.W.2d 151 (S.D. 1985) (social
worker's testimony that victim probably gained his sexual knowledge from sex with
defendant was reversible error); Gale v. State 792 P.2d 570 (Wyo. 1990) (expert commentary
on child's veracity is plain error). In Logue, the court reversed the conviction based on expert
testimony similar to that proffered in the instant case because it lent a stamp of undue
legitimacy to [the victim's] testimony. Logue, 372. N.W.2d at 157. We find it persuasive that
even in South Dakota, a state so tough on crime that it has the most severe recidivism
penalties in the nation, this evidence was too prejudicial to permit a conviction to stand.
1

[Headnote 5]
Finally, the evidence used to establish that Lickey committed the four acts of sexual
assault consisted almost entirely of the child-victim's testimony, which Lickey disputed.
There was no direct evidence corroborating the allegations of sexual assault.
__________

1
See Solem v. Helm, 463 U.S. 277 (1983) (Supreme Court held that indeterminate life sentence imposed by
South Dakota Supreme Court was excessive punishment for habitual criminal convicted of uttering $100 no
account check).
Contrary to the dissent's contention, the evidence supporting each of the four charges was not
overwhelming. For example, other than the victim's testimony, all of the evidence regarding
the allegations of the fourth count concerning an assault in the vehicle supported Lickey's
version of the facts. Lickey's wife testified that the event never occurred, and that she did not
scold or hit Lickey or have a conversation with a police officer. Moreover, no law
enforcement officer was called to testify about the incident. Given the character of the
evidence, the assistance and testimony of a psychiatrist for Lickey could have had a
significant effect on the outcome of the trial. Such expert testimony could have created a
reasonable doubt as to the validity of some, if not all, of the counts charged against Lickey.
The dissent notes that the minor victim has endured a preliminary hearing and jury trial.
We fully share our dissenting colleague's sympathy and concern for the minor victim in this
case, and agree that she has done everything asked of her. We are also cognizant of the
additional work and trauma often caused by a retrial, and are most reluctant to compel any
victim, especially a child, to endure future anguish unless truly necessary. However, our
constitutional responsibility demands far more than an inquiry into the impact of the crime on
the victim. We are under a sworn duty to consider forthrightly and unemotionally whether the
trial, resulting in a conviction, was fundamentally fair under standards of due process.
It is hardly necessary to emphasize that this court exercises substantial caution in
overturning jury verdicts in any criminal case. Fewer than four percent of the convictions
appealed from are sent back to the trial court for retrial, and the vast majority of these
reversed cases are successfully retried by the State upon remand. We reverse for retrial only
when a majority of the court considers it necessary to do so because of prejudicial error
revealed by the record.
After considering the claims made in the dissent, we again re-examined the record, the
briefs, and our conclusions. We were again left with the abiding conviction that justice,
fairness, and the law of this jurisdiction require that appellant Lickey be given another trial.
Under the circumstances of this case, because Lickey was denied the assistance of an
expert psychiatric witness, when the State was provided such a resource, we conclude that
Lickey did not receive a fair trial. And, because the case must be reversed on this ground, we
need not reach the issue of whether the prior bad act was wrongly admitted. Accordingly, we
reverse and remand this case for a new trial.
The decision whether to order a psychiatric examination of a sexual assault victim is a
matter left to the sound discretion of the trial court. Washington v. State, 96 Nev. 305, 307,
608 P.2d 1101, 1102, (1980) (citations omitted). I see no reason to depart from this policy,
especially when the victim is a child of tender years. Here, after determining that multiple
psychiatric examinations might adversely affect the young victim, the trial judge wisely
refused to permit an additional psychiatric examination. The majority wrongly disagrees with
the learned judge's decision.
The issue presented, pursuant to our decision in Washington, is whether Mr. Lickey
demonstrated a compelling reason for an additional psychiatric examination. He did not.
Compelling reasons do not exist unless there is little or no corroboration of the victim's
allegations and the defense has questioned the effect of the victim's emotional or mental
condition upon her veracity. Washington, 96 Nev. at 307, 608 P.2d at 1102. In Washington,
the victim's testimony was corroborated and the defendant engaged in extensive
cross-examination. As a result, we held that the defendant failed to demonstrate a compelling
reason for a psychiatric examination and that, therefore, the trial court did not abuse its
discretion by refusing to order such an examination.
In the case before us, the young victim's testimony was corroborated by several witnesses:
1. Dr. Kathie Coopersmith, an Ely pediatrician, examined the victim on October 5,
1988. Dr. Coopersmith testified that the victim had sustained trauma to her vagina
consistent with penetration by a finger and/or a foreign object. Moreover, Dr.
Coopersmith determined that the injuries had occurred within the previous two weeks.
2. The victim was also examined by Kathleen Peele, a pediatric nurse and clinic
director for the Washoe County Child Sexual Abuse Investigative Team, on October
26, 1988. In conjunction with her testimony, Ms. Peele presented photographs of the
victim's vaginal area which illustrated injuries consistent with those found by Dr.
Coopersmith. Ms. Peele also testified that the injuries sustained by the victim were
consistent with vaginal penetration by a finger and/or foreign object.
3. Detective Martin Sorenson of the White Pine County Sheriff's Office testified
that he had videotaped an interview with the victim on October 5, 1988, approximately
six months before the trial, during which she recalled the four incidents of abuse giving
rise to this prosecution. The victim's statements at that time were consistent with
her subsequent testimony at trial.
tim's statements at that time were consistent with her subsequent testimony at trial. The
videotaped interview was played for the jury.
4. Dr. Joann Behrman-Lippert, Ph.D., an expert in child abuse, interviewed the
victim six times. Videotapes were made of the interviews on October 12 and 13, 1988,
which were also played for the jury. Dr. Behrman-Lippert opined that the victim had in
fact been sexually abused.
Finally, the victim's testimony was corroborated by Mr. Lickey's neighbor, who testified that
the victim told her that Mr. Lickey had penetrated her vagina with silverware.
The record also shows that Mr. Lickey's counsel extensively cross-examined the victim.
Yet, despite being subjected to cross-examination during both the preliminary hearing and the
trial, the young victim's testimony was remarkably consistent. Because of this substantial
corroborating evidence and extensive cross-examination, I cannot agree that the decision in
this case should differ from the one reached in Washington.
In Colley v. State, 98 Nev. 14, 639 P.2d 530 (1982), cert. denied, 479 U.S. 839 (1986), we
again held that the denial of a defense motion for a psychiatric examination of a victim was
not an abuse of discretion, reasoning that the victim's testimony was amply corroborated and
her emotional state was not subject to serious attack. Id. at 17, 639 P.2d at 532 (citing
Washington v. State, 96 Nev. 305, 608 P.2d 1101 (1980)). The majority states that Colley is
not controlling. I disagree.
In Colley, we held that even where the testimony of a prosecution witness was not
substantially corroborated, the trial court could properly refuse to subject the witness to a
psychiatric examination where the jury was able to observe and evaluate [the victim's]
emotional condition during her testimony on cross-examination. Colley, 98 Nev. at 17, 639
P.2d at 532. In the case at bar, the victim's testimony was substantially corroborated, and the
jury was likewise able to observe and evaluate her testimony on cross-examination.
Therefore, I see no reason to depart from our general policy of leaving this issue in the able
hands of the trial judge.
The majority relies upon State v. Zeh, 509 N.E.2d 414 (Ohio 1987), and Cox v. State, 805
P.2d 374 (Alaska App. 1991). Both cases, however, are readily distinguished from the matter
before us today, and neither case provides the defense with the right to a second psychiatric
examination of a minor child performed by an expert of the defendant's choosing.
The decision in Zeh, which required an independent psychiatric examination of a
victim-witness, was expressly limited to those circumstances where the victim's mental
impairment is an essential issue.1 It did not involve submitting a child-victim to a
psychiatric examination.
essential issue.
1
It did not involve submitting a child-victim to a psychiatric examination. In
Cox, a child abuse conviction was reversed solely because a clinical psychologist testified as
to the child-victim's veracity in rebuttal for the state and the defense was denied surrebuttal.
The corroborating evidence in Cox did not approach the magnitude of that before us today.
Moreover, the majority incorrectly states that Dr. Behrman-Lippert testified as to the victim's
veracity. The fact that such testimony did not occur further distinguishes this case from Cox.
This young victim has bravely endured an investigation, a preliminary hearing and a jury
trial. After carefully considering the due process issue addressed by the majority, I am
convinced that common sense and reasonableness should prevail. Mr. Lickey received a fair
trial and was convicted because of the overwhelming evidence presented against him, not
because he was denied a second psychiatric evaluation. I cannot endorse sending this case
back to the trial court when the evidence speaks so loudly to the guilt of the accused.
____________
108 Nev. 200, 200 (1992) Sheriff v. Schwarz
JOHN MORAN, Sheriff of Clark County, Nevada and STATE OF NEVADA, Appellant, v.
CHARLES ROBERT SCHWARTZ, Respondent.
No. 22886
March 5, 1992 826 P.2d 952
Appeal from an order of the district court granting respondent's pretrial petition for a writ
of habeas corpus. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Pretrial petition for writ of habeas corpus was filed seeking to have indictment charging
solicitation to commit murder dismissed. The district court granted petition. Appeal was
taken. The supreme court held that: (1) subsequent renunciation or withdrawal is not defense
to crime of solicitation, and (2) district attorney was under no obligation to present to grand
jury taped conversation in which petitioner renounced his intention to have murder
committed.
__________

1
In Zeh, a defendant was on trial for violating an Ohio statute prohibiting an unmarried person from
engaging in sexual conduct with a partner whose ability to appraise the nature of or control his or her own
conduct is substantially impaired. Zeh, 509 N.E.2d at 417 (quoting Ohio Rev. Code Ann. 2907.03 (Anderson
1987)). The victim was a male adult afflicted with slight mental retardation. The Ohio Court of Appeals has
since held that Zeh does not apply to juvenile rape situations unless a defendant is charged with substantially
impairing his victim's judgment or control through drugs or narcotics. In re Johnson, 573 N.E.2d 184 (Ohio Ct.
App. 1989) (emphasis added).
conversation in which petitioner renounced his intention to have murder committed.
County, for Appellant.
John Manzonie, Las Vegas, for Respondent.
Sufficient evidence was presented to grand jury to establish probable cause to support two counts of solicitation as charged in
indictment; two witnesses testified before grand jury that target of grand jury investigation offered them remuneration to commit
murder. NRS 199.500, subd. 2.
2. Grand Jury.
In grand jury proceeding on indictment charging solicitation, district attorney was under no obligation to present to grand jury
taped conversation in which target of proceedings renounced his intention to have murder committed; this conversation was held
several days after original solicitation, and evidence that target subsequently changed his mind did not alter testimony that target had
earlier solicited two men to commit murder. NRS 172.145, subd. 2, 199.500, subd. 2.
3. Criminal Law.
Subsequent renunciation or withdrawal is not defense to crime of solicitation. NRS 199.500.
OPINION
Per Curiam:
[Headnote 1]
On April 19, 1990, a grand jury convened to consider whether to charge respondent
Charles Robert Schwarz with solicitation to commit murder and attempted murder.
Respondent was accused of having solicited two men to kill Thomas Susman in exchange for
money and jewelry, and of having provided them with information about Susman so that they
could carry out the murder. Both men testified before the grand jury that on April 6, 1990,
respondent offered them remuneration to murder Susman. No criminal act was committed as
a result of that solicitation. This was sufficient evidence to establish probable cause that
respondent committed two counts of solicitation in violation of NRS 199.500(2).
1
Respondent filed a petition for a writ of habeas corpus seeking to have the indictment
dismissed.
__________

1
Of course, we draw no conclusions regarding respondent's guilt or innocence. We simply conclude that
sufficient evidence was presented to the grand jury to establish probable cause to support two counts of
solicitation against respondent as charged in the indictment.
Respondent filed a petition for a writ of habeas corpus seeking to have the indictment
dismissed. He contended, inter alia, that in a subsequent conversation with one of the
solicitees, he renounced his intention to have Susman killed; that the conversation had been
tape recorded by the police; and that the district attorney violated NRS 172.145(2) by failing
to play the tape for the grand jury because the tape would explain away the charge. The
district court agreed and granted the petition without prejudice. This appeal followed.
[Headnote 2]
NRS 172.145 requires the grand jury to hear, and the district attorney to submit, known
evidence which will explain away the charge. Specifically, NRS 172.145(2) states: If the
district attorney is aware of any evidence which will explain away the charge, he shall submit
it to the grand jury. In Sheriff v. Frank, 103 Nev. 160, 165, 734 P.2d 1241, 1245 (1987), we
held that a district attorney's refusal to fulfill this duty, combined with the presentation of
inadmissible hearsay, irreparably impaired the proper performance of the grand jury's
mission to pursue its investigation independently, and thus justified granting a pretrial
petition for a writ of habeas corpus. Accordingly, we will reverse in this case only if the
evidence at issue does not tend to explain away the charge. Preliminarily, we note that, by
presenting evidence that respondent recanted, the district attorney fulfilled the duty imposed
by NRS 172.145(2). The district attorney was not under a further duty to reveal all of the
investigatory steps taken by the police in developing the case. Moreover, as explained below,
we hold that in this case the tape does not explain away the solicitation charges; accordingly,
the district attorney was under no obligation to present the tape to the grand jury.
[Headnote 3]
Although we have never before reached this issue, we now expressly hold that a
subsequent renunciation or withdrawal is not a defense to the crime of solicitation. Other
jurisdictions have so held. See, e.g., State v. Boehm, 379 N.W.2d 874 (Wis.Ct.App. 1985);
People v. Miley, 158 Cal. App. 3d 25 (Ct.App. 1984). One of the purposes of the statute
making solicitation a crime is to avoid citizen exposure to inducements to commit crime.
Miley, 158 Cal. App. 3d at 34 (emphasis omitted). Unlike other criminal offenses, in the
crime of solicitation, the harm is the askingnothing more need be proven. Id. (emphasis
in original). Because renunciation or withdrawal cannot undo that which has already been
done, it has no effect on the elements of solicitation. Boehm, 379 N.W.2d at 876.
NRS 199.500 does not make renunciation or withdrawal a defense to the crime of
solicitation. The crime is complete once the request is made. In this case, the taped
conversation in which respondent renounced his intention to have Susman killed was held
several days after the original solicitation. Thus, evidence that respondent subsequently
changed his mind does not alter the testimony that on April 6, 1990, respondent solicited two
men to commit murder. Therefore, the taped conversation did not tend to explain away the
charge of solicitation of murder and the district attorney was under no obligation to present
it to the grand jury.
Accordingly, we reverse the order of the district court granting respondent's pretrial
petition for a writ of habeas corpus. We remand this matter to the district court with
instructions to reinstate the indictment, and for further proceedings consistent with this
opinion.
2

____________
108 Nev. 203, 203 (1992) Rutar v. Rutar
CVETKA RUTAR, Appellant, v. MARJAN RUTAR, Respondent.
No. 21993
March 5, 1992 827 P.2d 829
Appeal from an award of spousal support. Eighth Judicial District Court, Clark County;
Donald M. Mosley, Judge.
Divorce was granted by district court. Wife appealed. The supreme court held that: (1)
rehabilitative alimony award of $1,000 per month was inadequate, and wife was entitled to
$1,700 per month for eight years, and (2) need for award of attorney fees to wife was obviated
by increase in alimony awarded.
Dickerson, Dickerson, Lieberman & Consul, Las Vegas, for Appellant.
Darrel Lincoln Clark, Las Vegas, for Respondent.
1. Divorce.
Award of $1,000 per month in rehabilitative alimony for period of three and one-half years was inadequate given respective
circumstances in which parties had been left by divorce, and award of $1,700 per month for eight years was
proper.
__________

2
The state has conceded that insufficient evidence was presented to the grand jury to establish probable
cause that respondent committed attempted murder. Accordingly, the indictment should be amended to omit
count III, attempted murder.
108 Nev. 203, 204 (1992) Rutar v. Rutar
in which parties had been left by divorce, and award of $1,700 per month for eight years was proper.
2. Divorce.
Need for award of attorney fees to wife was obviated by increase in alimony award which would provide adequate available
resources upon which wife could draw to pay fees.
OPINION
Per Curiam:
Mrs. Rutar (Cvetka) and Mr. Rutar (Marjan) met in Ravne, Yugoslavia, in 1965. At the
time, Cvetka was nineteen years old and Marjan was twenty-seven. Both had completed
dental technician school, which is the Yugoslavian equivalent of a four-year technical high
school in the United States. Marjan worked for eight years as a dental technician in
Yugoslavia and then went to Switzerland to receive specialized training. After Cvetka
graduated, she worked in Yugoslavia for two years in the same laboratory that employed
Marjan before he left for Switzerland.
In 1969, while Marjan was in Switzerland, Cvetka answered an advertisement for a dental
technician in Yonkers, New York, and moved to the United States. In 1970, she arranged a
position for Marjan with her employer, and he joined her in Yonkers. They married in 1971.
They worked together in several laboratories before moving to Las Vegas, Nevada, where
they started their own dental laboratory, Emona Dental Studios (EDS Corporation).
Cvetka worked full-time in the laboratory for approximately five years, from the time it
opened until after their second child, Michelle, was born in 1976. She then became a full-time
homemaker, caring for her and Marjan's two children and the two children from Marjan's
previous marriage. The couple put both of Marjan's children through college and graduate
school.
After quitting her full-time work to be a homemaker, Cvetka continued to do some of the
routine bookkeeping work for the laboratory. For the most part, however, Cvetka had not
worked outside the home for approximately fifteen years prior to the divorce. Furthermore,
she testified that even when she was working as a technician, she was never able to work
without supervision, because she lacked Marjan's specialized skill. She is currently forty-five
years old and is pursuing an undergraduate degree in accounting, with the hope of someday
attending law school.
Marjan, on the other hand, has worked long hours in his dental laboratory since its
commencement. EDS Corporation currently grosses over $300,000 per year, and in 1988,
Marjan's personal income amounted to $154,700.
108 Nev. 203, 205 (1992) Rutar v. Rutar
income amounted to $154,700. The corporation also pays Marjan's automobile expenses,
automobile insurance, and medical insurance. Marjan is fifty-three years old and, in the
future, would like to reduce the number of hours he works each day.
Marjan filed for divorce in February of 1988. The district court granted the divorce in
January of 1990 and awarded Cvetka $1,000 per month in rehabilitative alimony for a period
of three and one-half years. In addition, Cvetka received child support for both children
totaling $1,000 per month. The court ordered an equal division of the couple's property,
which consisted primarily of a house valued at $550,000 less an $80,000 mortgage, a
condominium valued at $225,000 less an $80,000 mortgage, the dental laboratory valued at
approximately $140,000, a retirement fund valued at approximately $700,000, and several
automobiles. The district court also ruled that Cvetka and the children may continue to live in
the house until it is sold. Marjan was ordered to continue paying the upkeep expenses on the
house and condominium, amounting to approximately $3,500 per month, with Cvetka
reimbursing him for her half of these expenses upon sale of the properties.
Cvetka appeals the award of spousal support, requesting an increase in the $1,000 awarded
to $3,500 per month, out of which she would pay her half of the property upkeep expenses as
they are incurred. She also requests that spousal support continue for longer than three and
one-half years, and that the district court retain jurisdiction to modify the spousal support
award following sale of the house and condominium. Finally, she requests that the court
award her attorney's fees for this appeal.
[Headnote 1]
The primary issue is the reasonableness of the rehabilitative alimony award. The amount
of alimony awarded is within the sound discretion of the district court. See, e.g., Winn v.
Winn, 86 Nev. 18, 467 P.2d 601 (1970). However, this discretion is limited by the dictates of
NRS 125.150.
1
In Heim v. Heim, 104 Nev. 605, 60S, 763 P.2d 67S, 679-S0 {19SS), this
court referred to NRS 125.150, which requires that in awarding alimony the court must
award an amount that is "just and equitable," having regard to the "respective merits of
the parties and to the condition in which they will be left [after] divorce."2
This case presents a situation in which both parties contributed substantially to the
marriage but are left with vastly disparate earning capacities after the divorce.
__________

1
NRS 125.150(1) states:
1. In granting a divorce, the court:
(a) May award such alimony to the wife or to the husband, in a specified principal sum or as specified
periodic payments; and
(b) Shall make such disposition of:
(1) The community property of the parties; and
(2) Any property placed in joint tenancy by the parties on or after July 1, 1979,
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 to
the burdens, if any, imposed upon it, for the benefit of the children.
108 Nev. 203, 206 (1992) Rutar v. Rutar
Nev. 605, 608, 763 P.2d 678, 679-80 (1988), this court referred to NRS 125.150, which
requires that in awarding alimony the court must award an amount that is just and
equitable, having regard to the respective merits of the parties and to the condition in which
they will be left [after] divorce.
2

This case presents a situation in which both parties contributed substantially to the
marriage but are left with vastly disparate earning capacities after the divorce. Similar
circumstances were considered in Johnson v. Steel Incorporated, 94 Nev. 483, 489-90, 581
P.2d 860, 864 (1978). In Johnson, this court held that the district court had abused its
discretion in limiting the wife's alimony award to $1,200 per month for a period of two years.
3
In that case, the parties had been married for twenty years, and the wife retained custody of
their two children. Id. at 484, 581 P.2d at 861. She had never worked outside the home and
had developed no marketable skills, while her husband had built up a profitable business by
practicing a trade throughout their twenty-year marriage. His personal gross income was
$83,000 per year. Id. at 487, 581 P.2d at 863. In the property division, both parties received
assets valued at approximately $350,000. Id. at 486, 581 P.2d at 862.
This court classified the two year alimony award in Johnson as rehabilitative alimony.
Id. As such, the court held that the alimony award was unjust. Applying the guidelines
established in Buchanan v. Buchanan, 90 Nev. 209, 215, 523 P.2d 1, 5 (1974),
4
the court
held that, given Mrs. Johnson's educational background and lack of work experience, there
was no evidence in the record to suggest that she actually would be able to earn enough to
meet her expenses after only two years of training. Johnson, 94 Nev. at 489, 581 P.2d at 864.
Furthermore, this court noted the injustice inherent in denying a wife reasonable alimony
where she has
__________

2
We have not, and do not now express any opinion as to the meaning of the term respective merits of the
parties, which by the express language of the statute must be considered in all cases involving judicial awards
of alimony and marital property distribution.

3
The court also awarded child support totalling $500 per month. Johnson v. Steel Incorporated, 94 Nev.
483, 484, 581 P.2d 860, 861 (1978).

4
The guidelines for determining the amount of alimony to be awarded have been set forth as follows:
[T]he financial condition of the parties; the nature and value of their respective property; the contribution
of each to any property held by them as tenants by the entirety; the duration of the marriage; the
husband's income, his earning capacity, his age, health and ability to labor; and the wife's age, health,
station and ability to earn a living.
Johnson, 94 Nev. at 486-87, 581 P.2d at 862 (quoting Buchanan v. Buchanan, 90 Nev. 209, 215, 523 P.2d 1, 5
(1974)).
108 Nev. 203, 207 (1992) Rutar v. Rutar
been a full-time homemaker and caretaker of the children with her husband's agreement and
to the parties' mutual benefit. See Johnson at 487-89, 581 P.2d at 862-64.
Similarly, in Heim v. Heim, 104 Nev. 605, 606-08, 763 P.2d 678-81 (1988), this court
held that an alimony award in the amount of $500 per month was unjust and inequitable as a
matter of law where the parties had been married thirty-five years, the wife had raised the
couple's six children, and the husband, who had earned his doctorate degree during the
marriage, had a gross income of $6,500 per month. The court noted that even if the wife were
able to earn the highest salary she had ever earned$600 per monththis amount combined
with alimony awarded would equal only one-fifth of her husband's income. Id. at 609, 763
P.2d at 681. In reversing the district court's alimony award, this court stated that the
Buchanan guidelines provide a useful but inexhaustive list, and that the judge's primary
focus must be upon the justness and equity of the situation with regard to the condition in
which the parties will be left after the divorce. Id. at 608, 763 P.2d at 680.
The instant case approximates Johnson and Heim with respect to the relative condition in
which the parties will be left following the divorce. Cvetka and Marjan were married for
eighteen years prior to their divorce. She was the primary caretaker of their two children and
his two children from his previous marriage. In addition, Cvetka had been out of the work
force for twelve years, and none of the property she received as a result of the divorce was
income-producing. Although she worked full-time to help build the family business until
1976, the records suggests that she was unable to earn what Marjan earns as a dental
technician. Although both parties graduated from dental technician school in Yugoslavia,
their educational backgrounds are distinguishable because Marjan apprenticed with a skilled
technician in Switzerland. Consequently, he was able to do highly-skilled porcelain work.
Cvetka, on the other hand, was less skilled as a dental technician, as evidenced by the
disparity in their salaries when they both were working for the same laboratory. Cvetka
testified that she is capable of doing only one phase of the tooth and that she has never
worked independently. Furthermore, Cvetka's testimony that her bookkeeping work was
limited to sending bills and recording receipts contradicts Marjan's claim that she is a skilled
financial manager.
Finally, Cvetka's current educational pursuits will not necessarily enable her to support
herself in the manner to which she had been accustomed. Cvetka is forty-five years old and
has significant difficulties with the English language. Moreover, she still is raising the parties'
two minor children. Therefore, it will be difficult for her to complete an undergraduate
degree before her three and one-half year alimony award terminates.
108 Nev. 203, 208 (1992) Rutar v. Rutar
difficult for her to complete an undergraduate degree before her three and one-half year
alimony award terminates. She estimates she will be about fifty years old when she receives
her undergraduate degree.
Under the district court's ruling, Marjan must pay Cvetka only $2,000 per month in
alimony and child support out of the over $12,800 per month he receives in gross income. Of
this amount, the alimony is tax deductible. Heim v. Heim, 104 Nev. 605, 609, 763 P.2d 678,
681 (1988).
Cvetka, on the other hand, still must pay half of the upkeep on the house and
condominium when the properties are sold, and in the meantime, she receives no tax break
for these payments. Furthermore, her $1,000 per month in alimony is taxed. Id. at 609, 763
P.2d at 681. Thus, Cvetka and the children will be living on less than $24,000 per year during
the duration of the alimony award, a standard of living far below that to which they have been
accustomed. Meanwhile, Marjan will have a gross income of approximately $150,000 per
year which, subtracting alimony and child support, would leave him with approximately
$130,000 per year.
[Headnote 2]
Given the respective circumstances in which the parties have been left by the divorce, we
conclude that the district court's award of alimony was inadequate. Cvetka requests an
increase in the alimony award to $3,500 per month, out of which she would pay her half of
the maintenance expenses on the house and condominium as they are incurred, with the court
retaining jurisdiction to modify this award after the sale of these properties. In the interest of
simplicity, we hold that the alimony award should be increased by $700 per month to a total
of $1,700 per month, which is approximately what Cvetka would have been left with after
property upkeep payments under the plan she proposed. Marjan is still required to pay the
upkeep on the house and condominium, with Cvetka reimbursing him one-half of the
expenses upon sale of these properties. Furthermore, we extend the duration of the alimony
award to eight years, and we direct the district court to retain jurisdiction over the alimony
award and the property division. Finally, we hold the need for an award of attorney's fees to
be obviated by the increase in the alimony awarded, which should provide adequate available
resources upon which Cvetka may draw.
Accordingly, we reverse the alimony award made by the district court, increase it as
indicated, and remand this case to the district court for any further proceedings consistent
with this opinion.
____________
108 Nev. 209, 209 (1992) Stapp v. Hilton Hotels Corp.
TRISH STAPP, as Special Administratrix of the Estate of HELEN CAUDILL, Deceased, and
DONNIE CAUDILL, Appellants, v. HILTON HOTELS CORPORATION; and LAS
VEGAS HILTON CORPORATION, Respondents.
No. 22174
March 5, 1992 826 P.2d 954
Appeal from judgment for personal injuries and subsequent order amending and
decreasing judgment as a result of an offset. Eighth Judicial District Court, Clark County;
Thomas A. Foley, Judge.
Personal injury action was brought against hotel in whose parking lot plaintiffs' decedent
was struck by car. Following verdict for plaintiffs, the district court granted motion to amend
judgment by offsetting amount of prior settlements, and plaintiffs appealed. The supreme
court held that grant of motion to stay execution did not suspend time for filing motion to
amend judgment, and absent timely motion to amend, amended judgment was void.
Brent E. Leavitt, Las Vegas, for Appellants.
Rawlings, Olson & Cannon, and Melissa R. Crenshaw, Las Vegas, for Respondents.
1. Judgment.
Grant of motion for stay of execution does not provide basis for district court to suspend the time for filing motion to alter or
amend judgment. NRCP 59(e), 62(b).
2. Judgment.
District court was without jurisdiction to consider untimely motion to amend judgment, and thus amended judgment entered
pursuant thereto was void. NRCP 59(e).
OPINION
Per Curiam:
Helen Caudill was hit by a car and seriously injured as she and her husband, Donnie
Caudill, walked in the parking lot of the Las Vegas Hilton Hotel. Approximately eighteen
months later, Helen died from cancer unrelated to her injuries.
Appellants, Trish Stapp as special administratrix of the estate of Helen Caudill, deceased,
and Donnie Caudill (the Caudills), filed a complaint seeking damages against respondents,
Hilton Hotels Corporation and Las Vegas Hilton Corporation {Hilton).
Hotels Corporation and Las Vegas Hilton Corporation (Hilton). Prior to trial, Constance
Urban, the driver of the vehicle which hit Helen Caudill, settled with the Helen Caudill estate
for $115,000, and with Donnie Caudill for $50,000. After a jury trial, the Caudills received an
award of damages that the trial court subsequently reduced by an offset in the total sum of
$165,000, the amount of the settlements with Urban. The offset resulted from the granting of
a motion filed pursuant to NRCP 59(e). The Caudills contend on appeal that the motion was
untimely, and the offset improper. We agree and reverse.
FACTS
A Hilton valet assisted the Caudills in parking their car while they were in the hotel. When
the Caudills left the hotel on August 24, 1988, Donnie handed the parking ticket to the Hilton
attendant in the valet parking cage next to the front door. The Hilton employee told the
Caudills to take the ticket to a uniformed valet who was directing traffic and standing in the
second of several lanes of traffic in Hilton's driveway. Donnie and Helen walked, hand in
hand, out to the second lane of traffic and handed the valet the ticket. The valet ran ahead
between the cars, and the Caudills followed. Helen walked in front of Donnie.
Unfortunately, Helen was seriously injured when she was hit by a car driven by Urban and
crushed between the moving car and a parked vehicle.
1
Donnie was also brushed by the
Urban vehicle but was not seriously injured. No crosswalks or traffic control devices existed
for the protection of pedestrians attempting to cross the roadway to the valet parking area.
The Caudills proceeded to trial against Hilton to recover damages for personal injuries,
loss of consortium, and emotional distress. The jury returned a verdict in favor of the estate of
Helen Caudill for $225,000, and awarded Donnie Caudill $32,000 for loss of consortium, and
$20,000 for emotional distress. Judgment on the jury verdict was entered December 17, 1990,
and notice of entry of judgment was filed and served by mail to Hilton's counsel on December
21, 1990. On the latter date, Hilton filed a motion to stay execution of the judgment.
On January 9, 1991, the district court heard and granted Hilton's motion to stay execution
of the judgment. The court also ordered Hilton's counsel to prepare a motion to alter or amend
the judgment. On the same day, January 9, 1991, Hilton filed an NRCP 59(e) motion to
amend the judgment.
2
The district court granted the motion on March 1S, 1991, and an
amended judgment was filed on March 27, 1991, offsetting the jury's verdict of $277,000
by $165,000, the amount of the Urban settlements.
__________

1
Helen suffered a shattered pelvis, vascular, neurological, and muscular injuries that required several
surgeries and a lengthy hospitalization.

2
NRCP 59(e) provides: Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment
shall be served not later than 10 days after service of written notice of entry of judgment.
granted the motion on March 18, 1991, and an amended judgment was filed on March 27,
1991, offsetting the jury's verdict of $277,000 by $165,000, the amount of the Urban
settlements. The Caudills thereafter appealed.
DISCUSSION
[Headnote 1]
The Caudills insist that the trial court erred in offsetting their judgments by the amount of
the out-of-court Urban settlements because the NRCP 59(e) motion was untimely and
therefore ineffectual as a means of jurisdictional support for the court's amendment of the
judgment. Hilton counters with the proposition that the NRCP 62(b) motion to stay execution
of judgment filed on December 21, 1990, excused Hilton from filing a timely 59(e) motion to
amend the judgment.
3

In its December 21, 1990, motion for a stay of execution, Hilton acknowledged that it
believed service of the notice of entry of judgment was imminent. Nevertheless, Hilton's
attorneys went on vacation after filing the NRCP 62(b) motion to stay execution of judgment.
4
NRCP 62(b) allows the district court to stay the execution of a judgment pending the
disposition of a motion to alter or amend a judgment pursuant to NRCP 59. However, NRCP
62 does not provide a basis for the district court to suspend the time for filing an NRCP 59(e)
motion.
__________

3
Hilton's January 9, 1991 motion to alter the judgment also cited NRS 41.141 as a source of relief. NRS
41.141(3) directs the trial court to deduct the amount recovered from a settling co-defendant from the net sum
otherwise recoverable by the plaintiff against a remaining defendant found liable pursuant to general and special
verdicts in cases where comparative negligence is asserted as a defense. However, Hilton now acknowledges that
NRS 41.141 does not apply to the instant case because the comparative negligence of the Caudills was not an
issue. See Buck v. Greyhound Lines, Inc., 105 Nev. 756, 764, 783 P.2d 437, 442 (1989) (NRS 41.141 applies
only to situations where the plaintiff's contributory negligence may be properly asserted as a bona fide issue in
the case).

4
NRCP 62(a) and (b) provide as follows:
(a) Stay Upon Entry of Judgment. Execution or other proceedings to enforce a judgment may issue
immediately upon the entry of the judgment, unless the court in its discretion and on such conditions for
the security of the adverse party as are proper, otherwise directs.
(b) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the
security of the adverse party as are proper, the court may stay the execution of or any proceedings to
enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment
made pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60,
or of a motion for judgment in accordance with a motion for a directed verdict made pursuant to Rule 50,
or of a motion for amendment to the findings or for additional findings made pursuant to Rule 52(b).
[Headnote 2]
An NRCP 59(e) motion to amend a judgment shall be served not later than 10 days after
service of written notice of entry of the judgment. Hilton filed its motion on January 9, 1991,
nineteen days after the Caudills served notice of entry of judgment. It is well established that
a district court is without jurisdiction to consider an untimely NRCP 59(e) motion. Oelsner v.
Charles C. Meek Lumber Co., 92 Nev. 576, 577, 555 P.2d 217, 217 (1976). Because the
motion to amend was not filed within the statutorily prescribed ten-day period, the amended
judgment was entered without a jurisdictional foundation and is therefore void. Id. Therefore,
the district court's order amending and offsetting the judgment must be reversed.
Having concluded that the district court lacked jurisdiction to entertain respondents'
untimely motion to amend the judgment entered pursuant to jury verdict and that the jury's
award of damages is sufficiently supported without the necessity of a new trial on the issue of
damages, it is unnecessary to consider the Caudills' remaining contentions.
The amended judgment entered below is reversed, and the matter remanded with
instructions to reinstate the judgment entered pursuant to jury verdict.
____________
108 Nev. 212, 212 (1992) Fyssakis v. Knight Equipment Corp.
PAUL FYSSAKIS, Appellant/Cross-Respondent, v. KNIGHT EQUIPMENT
CORPORATION, Respondent/Cross-Appellant, U.N.X. CHEMICALS, INC., a North
Carolina Corporation, Respondent.
No. 22215
March 5, 1992 826 P.2d 570
Appeal from a district court order granting partial summary judgment. Eighth Judicial
District Court, Clark County; Donald M. Mosley, Judge.
Dishwasher blinded by dishwashing soap brought products liability action against
manufacturer of soap and manufacturer of soap dispenser. The district court entered summary
judgment for manufacturers, and dishwasher appealed. The supreme court held that: (1)
genuine issue of material fact existed as to whether soap's warning adequately communicated
that soap could cause blindness, and (2) genuine issue of material fact existed as to whether
soap dispenser was defective.
Reversed.
Jonathan C. Reed, Xavier Gonzales, Las Vegas, for Appellant/Cross-Respondent.
Rawlings, Olson & Cannon and Yvette Robichaud, Las Vegas, for
Respondent/Cross-Appellant Knight Equipment.
Thorndal, Backus, Maupin & Armstrong and William R. Killip, Jr., Las Vegas, for
Respondent U.N.X. Chemicals.
1. Products Liability.
To successfully bring strict products liability claim, plaintiff must show that: product had defect which rendered it unreasonably
dangerous, defect existed at time product left manufacturer, and defect caused plaintiff's injury.
2. Judgment.
Genuine issue of material fact as to whether soap's warning adequately communicated that soap could cause blindness precluded
summary judgment against products liability plaintiff; neither soap nor dispenser warned that protective eyewear should be worn or
that soap could cause blindness but, instead, soap carried universal symbol for corrosiveness.
Product must include warning that adequately communicates dangers that may result from its use or foreseeable misuse, or if
product is defective.
4. Judgment.
Genuine issue of material fact as to whether soap dispenser was defective precluded summary judgment against products liability
plaintiff blinded by soap; expert stated that safety switch on dispenser could be bypassed by tilting dispenser at certain angle and that
dispenser could have been designed with safer shrouding mechanism.
Evidence that product lacked adequate safety features or that safer alternative design was feasible at time of manufacture will
support strict liability claim.
OPINION
Per Curiam:
Appellant, Paul Fyssakis, a dishwasher at the Sahara Hotel and Casino in Las Vegas, got
dishwashing soap in his eye and, as a result, was blinded. Consequently, Fyssakis brought
strict products liability and negligence claims against respondent U.N.X. Chemicals, Inc.
(UNX), the manufacturer of the soap, and respondent Knight Equipment Corporation
(Knight), the manufacturer of the soap dispenser. Both UNX and Knight moved for summary
judgment, and the district court granted their motions with respect to the strict liability
claims.
On appeal, Fyssakis contends that the district court erred when it granted summary
judgment. We agree. 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. In determining
whether summary judgment is proper, a court must view the evidence in the light most
favorable to the party against whom summary judgment is sought. Wiltsie v. Baby Grand
Corp., 105 Nev. 291, 774 P.2d 432 (1989). Thus, all disputed factual allegations must be
construed in favor of Fyssakis.
[Headnote 1]
To bring successfully a strict products liability claim, a plaintiff must show that: (1) the
product had a defect which rendered it unreasonably dangerous, (2) the defect existed at the
time the product left the manufacturer, and (3) the defect caused the plaintiff's injury. Ginnis
v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970). Respondents contend that Fyssakis
has failed to set forth facts that tend to show that either the soap or the dispenser was
defective.
[Headnotes 2, 3]
First, we note that it is undisputed that the commercial dishwashing soap caused Fyssakis'
blindness. Neither the soap nor the dispenser, however, carried a warning that protective
eyewear should be worn or that the soap could cause blindness. Instead, the soap carried the
universal symbol for corrosiveness. Under Nevada law, a product must include a warning that
adequately communicates the dangers that may result from its use or foreseeable misuse;
otherwise, the product is defective. Oak Grove Inv. v. Bell & Gossett Co., 99 Nev. 616, 668
P.2d 1075 (1983). Since it is not clear that the soap's warning adequately communicated that
the soap could cause blindness, we conclude that Fyssakis has raised a genuine issue of fact
as to whether the soap was defective.
[Headnotes 4, 5]
Second, we conclude that Fyssakis has raised a genuine issue of fact regarding an alleged
defect in the dispenser. Specifically, Fyssakis presented a safety expert's affidavit stating that
the safety switch on the dispenser could be bypassed by tilting the dispenser at a certain angle.
Additionally, the expert stated that the dispenser could have been designed with a safer
shrouding mechanism. Under Nevada law, evidence that a product lacked adequate safety
features or that a safer alternative design was feasible at the time of manufacture will support
a strict liabilities claim. Robinson v. G.G.C. Inc., 107 Nev. 135, 808 P.2d 522 (1991);
McCourt v. J.C. Penney Co., 103 Nev. 101, 734 P.2d 696 (1987). The affidavit of Fyssakis'
safety expert has thus raised a genuine issue of fact regarding a defect in the dispenser.
raised a genuine issue of fact regarding a defect in the dispenser. Hence, we conclude that the
district court erred when it granted summary judgment to UNX and Knight on Fyssakis' strict
liability claims.
We therefore reverse the judgement of the district court.
____________
108 Nev. 215, 215 (1992) Campbell v. State, Dep't of Taxation
GEORGE R. CAMPBELL and ELEANOR L. CAMPBELL, Appellants, v. THE STATE OF
NEVADA, DEPARTMENT OF TAXATION and NEVADA TAX COMMISSION,
Respondents.
No. 22495
March 5, 1992 827 P.2d 833
An appeal from a summary judgment granted on the grounds of administrative res judicata
in an action involving taxes due on a new automobile purchased in Nevada. First Judicial
District Court, Carson City; Michael E. Fondi, Judge.
Taxpayers sued Tax Department for refund of penalty and interest portion of sales taxes
paid under protest. The district court granted summary judgment in favor of Tax Department
on ground that administrative res judicata barred action due to taxpayers' prior administrative
appeal of deficiency judgment. Taxpayers appealed. The supreme court held that: (1)
administrative res judicata doctrine did not apply inasmuch as Tax Department failed to
apprise taxpayers of their right to pay taxes under protest pending an appeal of assessment
and then demand refund, and (2) on remand, as matter of equity, if district court determined
that taxpayers were entitled to any refund of taxes paid under protest, district court could
enter judgment to that effect notwithstanding any failure of taxpayers to comply with statute
governing refunds of taxes paid under protest.
D. G. Menchetti, Tudor Chirila, Incline Village, for Appellants.
Frankie Sue Del Papa, Attorney General, John Bartlett, Deputy Attorney General, Carson
City, for Respondents.
1. Administrative Law and Procedure; Taxation.
Doctrine of administrative res judicata did not apply to bar judicial review of taxpayers' demand for refund of penalty and interest
portion of sales tax paid under protest, even though taxpayers had already had administrative appeal of deficiency assessment,
however, taxpayers were not entitled to second evidentiary hearing; Tax Department's letter apprising taxpayers of their right
to
apprising taxpayers of their right to administrative appeal of deficiency assessment failed to notify taxpayers of their right to pay tax
under protest and file claim for overpayment, and subsequently, taxpayers paid tax in reliance on Attorney General's letter giving such
advice leaving taxpayers without means, under Administrative Procedure Act, to reclaim taxes they believed to be improperly
collected. NRS 233B.130, subd. 2(c), 372.420, 372.630-372.720, 372.635, subd. 1, 372.680.
2. Taxation.
On remand, as matter of equity, if district court should determine that taxpayers were entitled to any refund of sales taxes they paid
under protest, district court could enter judgment to that effect notwithstanding any failure of taxpayers to comply with statute
governing claims for refunds of taxes paid under protest. NRS 233B.135, 372.630-372.720.
OPINION
Per Curiam:
This is a case of first impression. The appellants were charged with attempting to evade
the payment of Nevada sales tax on the purchase of a 1990 Mercedes Benz in Reno, Nevada.
Following unsuccessful appeals before an administrative hearing officer and the Nevada Tax
Commission, the appellants paid the tax deficiency and brought a separate action against the
State of Nevada in district court. The district court held that the appellants were barred from a
second hearing on the merits, pursuant to the doctrine of administrative res judicata. For
reasons stated herein, we reverse and remand to the district court for judicial review of the
administrative proceedings pursuant to NRS 233B.135.
1

THE FACTS
On or about January 21, 1990, George and Eleanor Campbell purchased a 1990 Mercedes
Benz from Reno Imports. The Campbells obtained a special drive-away permit by signing an
affidavit stating that the vehicle would not be used or stored in Nevada beyond fifteen days of
the purchase. The Campbells were clearly Nevada residents at the time of the purchase;
however, the affidavit reveals that the Campbells misrepresented themselves as residents
of Oregon.
__________

1
NRS 233B.135(3) provides:
3. The court shall not substitute its judgment for that of the agency as to the weight of evidence on a
question of fact. The court may remand or affirm the final decision or set it aside in whole or in part if
substantial rights of the petitioner have been prejudiced because the final decision of the agency is:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
or
clearly Nevada residents at the time of the purchase; however, the affidavit reveals that the
Campbells misrepresented themselves as residents of Oregon.
The Nevada Department of Taxation (Tax Department) sent a letter to the Campbells,
dated May 31, 1990, stating that the Campbells owed $13,505.71 in taxes, if paid by
6/30/90,
2
which included a penalty of $9,704.70 for acting with intent to evade taxes.
3
In
addition, the letter advised the Campbells of their right to an administrative appeal. The letter
did not, however, inform the Campbells of their right to pay the tax under protest and file an
action in district court, pursuant to NRS 372.630-720.
4
The Campbells notified the Tax
Department of their intention to appeal the tax assessment through the administrative process.
Following an administrative hearing on June 22, 1990, a hearing officer determined that
the Campbells were liable to pay the tax assessment. The Campbells appealed to the Nevada
Tax Commission (Tax Commission). Shortly thereafter, the Attorney General's Office sent
a letter to the Campbells' attorney suggesting that the deficiency judgment of $13,602.76 be
paid in order to cut off the accrual of additional penalties and interest on the tax liability
while [the Campbells] pursue their administrative and judicial appeals. The Campbells then
paid the assessment.
__________

2
The total tax assessment of $13,505.71 was broken down as follows:
Tax (six percent x $53,915.00) $ 3,234.90
Penalty (ten percent failure to file) $ 323.49
Penalty (300 percent intent to evade) $ 9,704.70
Interest (1.5 percent per month) $ 242.62

3
Penalty for deficiency resulting from fraud or intent to evade. If any part of the deficiency for which a
deficiency determination is made is due to fraud or intent to evade this chapter or authorized regulations,
a penalty of:
1. Three times the amount of the determination must be added to it if the determination was made
with respect to the tax imposed by this chapter on the sale, storage, use or other consumption of any
vehicle, vessel or aircraft.
2. Twenty-five percent of the amount of the determination must be added to it in all other cases.

4
NRS 372.635(1) allows a party to file a claim for overpayment of taxes within three years of the
overpayment. If a party fails to file within the prescribed time period, the party effectively waives the right to
make a claim for overpayment. NRS 372.650. Pursuant to NRS 372.675, as a condition precedent to maintaining
an action for a refund, a party must file a formal written demand for repayment with the Tax Department. Once
the demand has been served upon the Tax Department, the claimant has 90 days to bring an action for recovery
in district court. NRS 372.680. Thereafter, if judgment is in favor of the plaintiff, the Tax Department must
refund the excess taxes paid. NRS 372.690.
ment. Subsequently, in a letter dated August 9, 1990, the Campbells demanded a refund of
the penalty and interest portion of the tax, pursuant to NRS 372.630 et seq. and all other
pertinent tax refund statutes . . . . The refund was denied.
The Campbells' administrative appeal to the Tax Commission was denied on October 3,
1990. On November 2, 1990, the Campbells filed a separate action against the Tax
Department, Tax Commission, and State of Nevada (collectively State) in district court
pursuant to NRS 372.680.
5
The district court held that administrative res judicata barred the
Campbells from a judicial evidentiary hearing on the propriety of the tax assessment.
DISCUSSION
This court adopted the doctrine of administrative res judicata in Britton v. City of North
Las Vegas, 106 Nev. 690, 799 P.2d 568 (1990), recognizing it as a well-settled rule of law . .
. . Id. at 692, 799 P.2d at 569 (citing U.S. v. Utah Construction and Mining Co., 384 U.S.
394, 422 (1966); University of Tennessee v. Elliot, 478 U.S. 788, 797 (1986)). In the case
before us, the district court granted the State's motion for summary judgment against the
Campbells because all of the elements necessary to apply the doctrine of res judicata to the
decision of the administrative tribunal . . . exist in this case.
[Headnote 1]
It appears on the surface that the Campbells previously litigated the same issues, involving
the same parties, after which a final written decision was reached by a hearing officer. See
Britton, 106 Nev. at 693, 799 P.2d 570 (three elements of res judicata, citing Horvath v.
Gladstone, 97 Nev. 595, 596, 637 P.2d 531, 533 (1981)). However, while reaffirming the
doctrine of administrative res judicata as pronounced in Britton, we conclude that the unique
circumstances involved here justify a result different from that in Britton.
The initial letter sent by the Tax Department apprising the Campbells of their assessment
is troublesome. While the letter notified the Campbells of their right to an administrative
appeal, it completely failed to inform them of their alternative remedy.
__________

5
Action for refund: Time to sue; venue of action; waiver.
1. Within 90 days after the mailing of the notice of the department's action upon a claim filed
pursuant to this chapter, the claimant may bring an action against the department on the grounds set forth
in the claim in a court of competent jurisdiction in Carson City for the recovery of the whole or any part
of the amount with respect to which the claim has been disallowed.
2. Failure to bring action within the time specified constitutes a waiver of any demand against the
state on account of alleged overpayments.
notified the Campbells of their right to an administrative appeal, it completely failed to
inform them of their alternative remedy. Not surprisingly, the Campbells took the
administrative avenue to relief. The subsequent letter from the Attorney General's Office
advising the Campbells to pay the tax is likewise disturbing. In reliance on the letter, the
Campbells paid the tax assessment. Once paid, however, the only statutory means provided
for demanding and obtaining a refund of any excess taxes paid are set forth in NRS
372.630-720. Therefore, the Campbells were left without means, under the Administrative
Procedure Act, to reclaim the taxes they believed to be improperly collected.
[Headnote 2]
The Campbells filed their claim in district court within the time period provided in NRS
233B.130(2)(c).
6
We agree that, pursuant to Britton, the Campbells do not have a right to a
second evidentiary hearing. However, this case does merit judicial review. Accordingly, we
reverse the district court and remand this case for judicial review pursuant to NRS 233B.135.
In addition, as a matter of equity, if the district court should determine that the Campbells are
entitled to any refund of the taxes they paid under protest, the district court may enter
judgment to that effect notwithstanding any failure of the Campbells to comply with NRS
372.630-720.
We have carefully considered all remaining issues on appeal and conclude that they lack
merit.
____________
108 Nev. 219, 219 (1992) Beury v. District Court
DONALD BEURY, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Clark, and THE HONORABLE
CARL J. CHRISTENSEN, District Judge, Respondents.
No. 22292
March 5, 1992 826 P.2d 956
Petition for a writ of mandamus compelling the district court to authorized payment of
excess attorney's fees. Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Attorney filed motion seeking fees in excess of statutory maximum for representing
prisoner on appeal of denial of petition for post-conviction relief.
__________

6
NRS 233B.130(2)(c) provides:
2. Petitions for judicial review must:
. . .
(c) Be filed within 30 days after service of the final decision of the agency.
post-conviction relief. The district court denied motion and awarded $2,500 in fees, and
appeal was taken. The supreme court, 107 Nev. 363, 812 P.2d 774 dismissed the appeal.
Attorney petitioned for mandamus. The supreme court held that the attorney's request for
excess fees was both reasonable and necessary.
Writ granted.
Donald Beury, in Proper Person, Vista, California, for Petitioner.
Rex Bell, District Attorney, Charles A. Paine, Chief Deputy District Attorney, Clark
County, for Respondents.
1. Attorney and Client.
Attorney's application for fees in excess of statutory maximum for representing prisoner on appeal of denial of petition for
post-conviction relief did not comply with statutory requirements, where attorney represented defendant before the supreme court and
his entitlement to the excess fees was not certified to by the supreme court. NRS 7.125, subd.4.
Ultimate decision on whether to grant, deny or modify an attorney's excess fee request rested with court who appointed the
attorney and the chief judge in the appointing court's district or his or her statutory alternative, even if the attorney's entitlement to
excess fees was certified to by a different court. NRS 7.125, subd. 4.
Even though district court had evaluated and certified an attorney's entitlement to excess fees, the appointing and presiding judges
could also evaluate the statutory factors in process of determining whether to approve the amount or any amount of excess fees
certified by the supreme court. NRS 7.125, subds. 4, 4(a)-(d).
Appointed attorneys who consider themselves entitled to excess fees after careful analysis of character of their work on appeal, as
assessed in part by statutory factors, should apply for certification from supreme court in conjunction with appeal or petition being
pursued in supreme court. NRS 7.125, subds. 4, 4(a)-(d).
OPINION
Per Curiam:
On March 2, 1989, the district court appointed petitioner Donald Beury to represent
Wayne Walters on his appeal from the district court's denial of Walters' post-conviction relief
petition. Beury successfully prosecuted the appeal and this court reversed Walters' conviction.
See Walters v. State, 106 Nev. 45, 786 P.2d 1202 (1990). Thereafter, Beury moved the
district court, pursuant to NRS 7.125, for $4,230 in attorney's fees for the work performed
on Walters' appeal.
ant to NRS 7.125, for $4,230 in attorney's fees for the work performed on Walters' appeal.
Beury expended 105.5 hours of unquestioned effort in handling the appeal.
After hearing arguments on Beury's motion for fees in excess of the statutory maximums,
the district court denied the motion and awarded Beury $2,500. Beury appealed to this court
for the $1,730 difference. We dismissed Beury's appeal for lack of jurisdiction. Beury v.
State, 107 Nev. 363, 812 P.2d 774 (1991). Beury thereafter filed the instant petition for a writ
of mandamus directing the district court to award him the excess fees in the amount of
$1,730.
Discussion
Beury contends that the district court erroneously applied NRS 7.125 in denying his
motion for attorney's fees in excess of the applicable statutory maximum. Specifically, Beury
argues that the district court failed to properly consider NRS 7.125(4) in denying his motion
for excess fees. We note, however, that Beury's application for excess attorney's fees did not
comply with NRS 7.125(4) because no statutory certification had been obtained from this
court. NRS 7.125(4) provides in part that a district court judge may award excess fees only if
the court in which the representation was rendered certifies that the amount of the excess
payment is both reasonable and necessary.
Both parties agree that since Beury's representation occurred in the Nevada Supreme
Court, NRS 7.125(4) allows only this court to certify whether Beury is entitled to fees in
excess of those mandated by statute.
1
Thus, because Beury represented Walters before this
court, his entitlement to excess fees, if any, must be certified by this court.
2
The factors
considered in determining the propriety of such fees are provided in NRS 7.125{4){a)-{d)
and include, "the amount, character and complexity of the work required; the
responsibilities involved; the manner in which the necessary duties were performed, the
amount of knowledge, skill, and judgment displayed by counsel; and the professional
standing of counsel."
__________

1
4. If the appointing court because of:
(a) The complexity of a case or the number of its factual or legal issues;
(b) The severity of the offense;
(c) The time necessary to provide an adequate defense; or
(d) Other special circumstances, deems it appropriate to grant a fee in excess of the applicable
maximum, the payment must be made, but only if the court in which the representation was rendered
certifies that the amount of the excess payments is both reasonable and necessary and the payment is
approved by the presiding judge of the judicial district in which the attorney was appointed, or if there is
no such presiding judge or if he presided over the court in which the representation was rendered, then by
the district judge who holds seniority in years of service in office.

2
As in all cases where excess attorney fees are awarded, the trial judge, who hears the defense presented
and can assess the difficulty of the case, is in the best position to gauge the reasonableness of the fees claimed.
County of
propriety of such fees are provided in NRS 7.125(4)(a)-(d) and include, the amount,
character and complexity of the work required; the responsibilities involved; the manner in
which the necessary duties were performed, the amount of knowledge, skill, and judgment
displayed by counsel; and the professional standing of counsel. Lueck v. State, 99 Nev. 717,
720, 669 P.2d 719, 721 (1983).
[Headnote 1]
Because we had not received and certified Beury's application for excess fees on appeal,
his request for such fees in the court below did not comply with the requirements of NRS
7.125(4). However, having now received and reviewed his petition, we now certify to the
district court that, in our view, Beury's request for excess fees is both reasonable and
necessary. Fees in excess of those statutorily mandated encourage competent counsel to
provide representation to indigent defendants in complex cases.
[Headnotes 2, 3]
Although we have provided the necessary NRS 7.125(4) certification, we nevertheless
recognize that under the statutory scheme, the ultimate decision on whether to grant, deny or
modify Beury's excess fee request rests with the court who appointed him and the chief judge
in the appointing court's district or his or her statutory alternate. See NRS 7.125(4) (If the
appointing court . . . deems it appropriate to grant a fee in excess of the applicable maximum,
the payment must be made, but only if . . . the payment is approved by the presiding judge of
the judicial district in which the attorney was appointed, or if there is no such presiding judge
. . . then by the district judge who holds seniority in years of service in office). Despite this
court's evaluation and certification of an attorney's entitlement to excess fees under the four
factors specified under NRS 7.125(4)(a)-(d), we conclude that the appointing and presiding
judges may also evaluate the referenced factors in the process of determining whether to
approve the amount or any amount of excess fees certified by this court.
[Headnote 4]
Finally, for the future benefit of the bar, we have determined that appointed attorneys
who consider themselves entitled to excess fees after careful analysis of the character of
their work on appeal, as assessed in part by the four statutory factors enumerated above,
should apply for a certification from this court in conjunction with the appeal or petition
being pursued in this court.
__________
Clark v. Smith, 96 Nev. 854, 856, 619 P.2d 1217 (1980). By a parity of reasoning, when excess fees are
requested for appellate representation, the appellate court is in the best position to gauge the reasonableness of
such fees in accordance with the factors identified in NRS 7.125(4)(a)-(d). We nevertheless leave to the district
court authorities who must make the ultimate decision under the statute the extent to which they will extend
deference to this court's certification. It is clear, however, that the district court has no authority to award excess
fees for representation in this court without first having received the required certification.
that appointed attorneys who consider themselves entitled to excess fees after careful analysis
of the character of their work on appeal, as assessed in part by the four statutory factors
enumerated above, should apply for a certification from this court in conjunction with the
appeal or petition being pursued in this court.
For the reasons specified above, we grant Beury's petition for an original writ of
mandamus for the limited purpose of providing a vehicle for this court's certification of his
excess fees, and directing the district court to exercise its discretion in accordance with the
mandate of the statute.
____________
108 Nev. 223, 223 (1992) State Engineer v. Sustacha
THE STATE OF NEVADA, STATE ENGINEER, and WATER COMMISSIONERS OF
THE HUMBOLDT WATER DISTRIBUTION DISTRICT, Appellants, v. JOHN
SUSTACHA and JOAN SUSTACHA, Respondents.
No. 22361
March 5, 1992 826 P.2d 959
Appeal from that portion of an order voiding two previous orders of the Sixth Judicial
District Court. Fourth Judicial District Court, Elko County; Jack B. Ames, Judge.
Order determining that orders of the Sixth Judicial District Court terminating water rights
in contempt proceeding were void was entered by the Fourth Judicial District Court and the
State appealed. The supreme court held that Fourth Judicial District Court lacked authority to
review the orders of the Sixth Judicial District Court, in that the latter court had personal and
subject matter jurisdiction, so that its orders were not void even though they allegedly
exceeded the statutory limits on contempt penalties.
Vacated.
Frankie Sue Del Papa, Attorney General, Margaret A. Twedt, Deputy Attorney General,
Carson City, for Appellants.
Marvel & Hansen, Elko, for Respondents.
1. Courts; Judgment.
Fourth Judicial District Court lacked authority to review orders of Sixth Judicial District Court terminating water rights in
contempt proceeding, despite theory that orders were void because they exceeded statutory limits on contempt penalties; orders were
not subject to collateral attack as void since the Sixth Judicial District Court had personal and subject matter jurisdiction. NRS 3.220.
2. Courts.
District courts have equal and coextensive jurisdiction, and thus various district courts lack jurisdiction to review the acts of other
district courts. NRS 3.220.
3. Judgment.
Only a void judgment is subject to collateral attack, and judgment is void only if issuing court lacked personal jurisdiction or
subject matter jurisdiction.
4. Courts.
Only the supreme court is given general appellate jurisdiction. Const. art. 6, 4, 6.
OPINION
Per Curiam:
In 1930 and 1935, the Sixth Judicial District Court entered two decrees that adjudicated
rights to the water in the Humboldt River and its tributaries (the Humboldt Stream System).
These decrees are collectively referred to as the Humboldt Decree. The respondents, Joan
and John Sustacha (Sustachas) own water rights adjudicated by this decree.
In 1956, the Fourth Judicial District Court entered a judgment requiring the Humboldt
Water Distribution District Supervising Water Commissioner to measure the total water flow
into a section of the Humboldt Stream System and the particular flow assigned to each user of
this section during the irrigation season. This particular section of the Humboldt Stream
System crosses the Sustachas' property. In addition, the Sustachas' adjudicated water rights
involve this section of the Humboldt Stream System.
In 1988, the Sixth Judicial District Court entered an order holding the Sustachas in
indirect civil contempt of the Humboldt Decree.
1
The court gave the Sustachas the choice
of complying with one of three remedial alternatives; otherwise, the Sustachas' water rights
would be terminated forever. The Sustachas chose an alternative that required them to submit
a preliminary plan for repairs and construction on their water delivery system so that it would
be sufficiently tamper-proof. The Sustachas then submitted this preliminary plan.
In 1989, the Sixth Judicial District Court issued an order clarifying its 1988 order; in this
1989 order, the court described the specific repairs and changes that the Sustachas needed to
make in order to improve their water delivery system. This order gave the Sustachas
forty-five days to complete their changes, otherwise "the officers of [the court] . . .
[would] shut off any and all water adjudicated for the benefit of the [Sustachas]."
__________

1
Specifically, the district court found that the Sustachas had done the following: (1) used water from the
Humboldt Stream System in a manner and time not prescribed; (2) used more than their appropriated amount of
water; and/or (3) diverted water in excess of their allotment; and (4) interfered with the water delivery system.
gave the Sustachas forty-five days to complete their changes, otherwise the officers of [the
court] . . . [would] shut off any and all water adjudicated for the benefit of the [Sustachas].
The Sustachas did not complete these required changes within the forty-five day period.
In 1991, the appellants, Humboldt Water Distribution District Commissioners and the
State Engineer (State), filed a complaint against the Sustachas in the Fourth Judicial
District Court. The State alleged that the Sustachas had wrongly interfered with its water
distribution duties under the 1956 Fourth Judicial District Court judgment (to measure the
total water flow into a section of the Humboldt Stream System and the particular flow
assigned to each user during the irrigation season) and under the 1988 and 1989 Sixth Judicial
District Court orders.
2
The State also filed a motion for a preliminary injunction.
Subsequently, the Fourth Judicial District Court entered an order; in this order, the Fourth
Judicial District Court concluded that the water commissioners should have reasonable
ingress and egrees (including vehicular access) over the Sustachas' property to carry out their
duties under the 1956 Fourth Judicial District Court judgment. In addition, the Fourth Judicial
District Court determined that the Sixth Judicial District Court's 1988 and 1989 orders are
void because they exceed the statutory limits on contempt penalties.
[Headnotes 1, 2]
On appeal, the State asserts that the Fourth Judicial District Court erred in voiding the
Sixth Judicial District Court's orders because it lacked authority to review these orders. We
agree. In Rohlfing v. District Court, 106 Nev. 902, 906, 803 P.2d 659, 662 (1990), we
recognized that [t]he district courts of this state have equal and coextensive jurisdiction;
therefore, the various district courts lack jurisdiction to review the acts of other district
courts. See NRS 3.220 (district judges possess equal coextensive and concurrent
jurisdiction and power). We thus concluded in Rohlfing that a district judge had exceed his
jurisdiction when he, sua sponte, entered an order declaring another judge's order void.
Similarly, in Warden v. Owens, 93 Nev. 255, 563 P.2d 81 (1977), we reversed a district
court order granting relief from another district court's order.
__________

2
Specifically, the State asserted that the Sustachas had refused to allow the water commissioners to drive
across their land to access the relevant section of the Humboldt Stream System, and that the water
commissioners were thus forced to walk one mile across the Sustachas' property. In addition, the State asserted
that the Sustachas had interfered with the water commissioners' duty to shut off the Sustachas' water supply
pursuant to the 1988 and 1989 Sixth Judicial District Court orders.
another district court's order. The respondent had been convicted by a jury and sentenced by
the Eighth Judicial District Court. Thereafter, the respondent did not pursue a direct appeal,
but filed a petition for writ of habeas corpus in the First Judicial District Court; the First
Judicial District Court granted habeas corpus relief. In reversing the First Judicial District
Court, we stated that [t]he First Judicial District Court had no jurisdiction to vacate the other
court's valid judgment of conviction and sentence. Id. at 256, 563 P.2d at 82.
[Headnotes 3, 4]
Thus, under the above cases, one district court generally cannot set aside another district
court's order.
3
In addition, the Nevada Constitution provides that the district courts have
appellate jurisdiction only in cases arising in justices' courts and other inferior tribunals.
Nev. Const. art. 6, 6. Only this court is given general appellate jurisdiction: The supreme
court shall have appellate jurisdiction in all civil cases arising in district courts, and also on
questions of law alone in . . . criminal cases . . . . Nev. Const. art. 6, 4. Thus, only this
court has jurisdiction to review the Sixth Judicial District Court's orders.
Because the Humboldt Decree adjudicates Humboldt Stream System water rights and was
issued by the Sixth Judicial District Court, we conclude that litigation concerning Humboldt
Stream System water rights should be carried out and resolved only in the Sixth Judicial
District Court. For the reasons stated above, we hereby vacate the portion of the Fourth
Judicial District Court's order that voids the Sixth Judicial District Court's 1988 and 1989
orders.
4

__________

3
The Sustachas contend that the Fourth Judicial District Court had authority to review the Sixth Judicial
District Court's orders under the doctrine of collateral attack because the Sixth Judicial District Court's orders
are void.
In Smith v. District Court, 63 Nev. 249, 256-57, 167 P.2d 648, 651 (1946), we explained that a judgment is
generally not subject to collateral attack if the court which rendered it had jurisdiction of the subject matter and
of the parties. Thus, only a void judgment is subject to collateral attack; a judgment is void only if the issuing
court lacked personal jurisdiction or subject matter jurisdiction; otherwise the judgment is, at most, voidable and
not subject to a collateral attack. See 49 C.J.S. Judgments 401, at 792 (1947 & supp. 1991); 46 Am.Jur.2d
Judgments 621-56 (1969 & supp. 1991). In the present case, the Sixth Judicial District Court had both
personal and subject matter jurisdiction when it entered its 1988 and 1989 orders. Therefore, the orders are not
void and the doctrine of collateral attack does not apply.

4
The Honorable Cliff Young, Justice, voluntarily recused himself from participation in the decision of this
appeal.
____________
108 Nev. 227, 227 (1992) Redmen v. State
TIMOTHY LEE REDMEN, Appellant, v. THE STATE OF NEVADA
No. 21729
March 13, 1992 828 P.2d 395
Appeal from a judgment of conviction for robbery with the use of a deadly weapon and
first degree murder with the use of a deadly weapon and a sentence of death imposed by a
three-judge panel. Eighth Judicial District Court, Clark County; Jack Lehman, Judge; Second
Judicial District Court, Washoe County; Robin Anne Wright, Judge; Fifth Judicial District
Court, Esmeralda, Mineral and Nye Counties; Paul C. Parraguirre, Judge.
The supreme court Mowbray, C. J., held that: (1) good cause existed for continuing trial
and resetting trial date, and thus, defendant was not denied his right to speedy trial; (2)
photographs of victim's mutilated body were admissible at penalty phase to prove aggravating
circumstance of mutilation; (3) psychiatric evidence purporting to predict future
dangerousness of defendant was highly unreliable and inadmissible at death penalty
sentencing hearing; (4) error in admitting psychiatric evidence purporting to predict future
dangerousness of defendant was harmless; (5) prosecutors are allowed to argue future
dangerousness of defendant in capital murder case, even when there was no evidence of
violence independent of murder in questions; and (6) use of three-judge panel during
sentencing phase of capital case when jury is unable to reach unanimous verdict upon
sentence does not violate equal protection or due process clauses.
Affirmed.
Young, J., dissented in part.
Morgan Harris, Public Defender, and Mark S. Blaskey and Stephen J. Dahl, Deputy Public
Defenders, Clark County, for Appellant.
James Tufteland, Chief Deputy District Attorney, and Daniel M. Seaton, Deputy District
Attorney, for Respondent.
1. Criminal Law.
Good cause existed to continue trial and reset trial date, and thus, defendant was not denied right to speedy trial as result of
postponement of trial date, where neither prosecution nor defense was prepared to go to trial. NRS 178.556.
2. Homicide.
Photographs of victim's mutilated body were admissible at penalty phase of capital murder trial to prove aggravating
circumstances of mutilation.
phase of capital murder trial to prove aggravating circumstances of mutilation.
3. Homicide.
Prejudicial effect of photographs of victim's mutilated body did not substantially outweigh their probative value so as to be
inadmissible at sentencing phase of capital murder trial. NRS 48.035.
4. Homicide.
To obtain conviction for felony murder, indictment did not have to allege that killing was perpetrated in commission of felony.
5. Homicide.
Instruction that murder committed in perpetration of felony carries conclusive presumption of malice aforethought was proper in
capital murder trial; instruction did not foreclose independent jury consideration of whether predicate facts established all elements of
offense.
6. Homicide.
State was not required to endorse witness on information in order to call witness at penalty phase of capital murder trial, where
witness was called to rebut testimony of defendant's psychiatrist and state was not made aware of defense's intention to present
psychiatrist until day before penalty hearing began. NRS 173.045, subd. 2.
7. Criminal Law.
Unendorsed witness is presumed to have been unknown to district attorney at time of filing of information, absent evidence to
contrary. NRS 173.045, subd. 2.
8. Homicide.
Defendant failed to establish lack of due diligence on part of state in discovering unendorsed witnesses prior to trial so as to
preclude state's use of unendorsed witnesses during penalty phase of capital murder trial. NRS 173.045, subd. 2.
9. Criminal Law.
Three week continuance granted by trial court cured any prejudice to defendant that would have accrued as a result of state's
calling of unendorsed witnesses during penalty phase of capital murder trial. NRS 173.045, subd. 2.
10. Homicide.
Psychiatric evidence purporting to predict future dangerousness of defendant was highly unreliable and was inadmissible at death
penalty sentencing hearing.
11. Homicide.
Error in admitting psychiatrist's testimony purporting to predict future dangerousness of defendant at death penalty sentencing
hearing was harmless beyond reasonable doubt, where record contained plentiful other evidence from which three-judge panel deciding
on sentence could reasonably infer defendant's future dangerousness.
12. Criminal Law.
Prosecutors are allowed to argue future dangerousness of defendant in capital murder trial, even when there is no evidence of
violence independent of murder in question.
13. Constitutional Law; Homicide.
Sentencing scheme whereby three-judge panel is used in cases where jury is unable to reach unanimous verdict upon sentence did
not violate equal protection and due process clauses on ground that jury should be responsible for deciding whether death penalty
should be imposed. NRS 175.556; U.S.C.A.Const. amends. 6, 14.
14. Homicide.
Use of three-judge panel during sentencing phase of capital murder trial in case where jury is unable to reach unanimous verdict
upon sentence was not arbitrary and capricious on ground that three-judge panel invariably returned sentence of death, absent any
empirical evidence supporting argument. NRS 175.556.
15. Constitutional Law; Criminal Law; Homicide.
Distinction between capital murder case and case of sexual assault was constitutionally proper for purposes of justifying use of
three-judge panel to determine sentence in capital murder case in event of hung jury, but not in sexual assault case, and thus,
three-judge panel sentencing scheme did not violate equal protection clause. NRS 175.556, 200.366, 200.366, subd. 3; U.S.C.A.Const.
amend. 14.
Distinctions between classes are constitutionally improper under equal protection clause if basic distinction between classes is
insupportable. U.S.C.A.Const. amend. 14.
OPINION
On February 8, 1990, while traveling to San Diego, appellant and his girlfriend, Melissa
Rial, entered Las Vegas. That night, while waiting at a stoplight, they met Max Biederman.
The three of them arranged to meet for dinner at a place call Tramps. Appellant and Ms. Rial
met Mr. Biederman for dinner and, afterwards, they all went to the Rio Hotel. Later that
evening, Ms. Rial and appellant left Mr. Biederman to find a hotel and get some sleep.
The next day, while Ms. Rial remained at the hotel, appellant took Ms. Rial's car and met
Mr. Biederman at Tramps. Mr. Biederman offered to introduce appellant to a friend who
might offer him a job. Appellant and Mr. Biederman went to the King 8 Motel where the
friend was staying. The friend never showed up, so appellant and Mr. Biederman left for the
Rio Hotel to see a show.
At the Rio, while Mr. Biederman was inside the hotel, appellant went back to the van to
get Mr. Biederman's gun. Appellant testified that, I think somewhere in the back of my mind
I was planning to do what I did. Appellant stated that he thought the scenario about the job
was a scam.
Appellant and Mr. Biederman returned back to the King 8 Motel. Appellant struck
Biederman one to four times with the revolver and then shot him in the jaw. Appellant then
moved Ms. Rial's car to a truck stop. Appellant returned to the motel, because his fingerprints
were all over Biederman's van. When he returned, Mr. Biederman was on the sidewalk about
to knock on someone's door.
someone's door. Appellant told him to get behind the van and Biederman complied.
Appellant then shot Mr. Biederman two more times.
Appellant took Mr. Biederman's van and returned to his motel with blood on his clothes.
He told Ms. Rial that he and Mr. Biederman had gotten into a fight. Ms. Rial helped him
clean up, and the two got in the van and returned to pick up Ms. Rial's car. Appellant told Ms.
Rial to wait in the car. Appellant walked back to the King 8 Motel. Appellant mutilated Mr.
Biederman's face with a wrought iron railing. Appellant also cut Mr. Biederman's hands off
and wrapped them in a brown paper bag.
Appellant drove back to his motel in the van. Ms. Rial followed him in her car. She left the
car there, and got into the van. Appellant and Ms. Rial drove out to the desert to dump the
hands and clothing. The two returned to the motel, got Ms. Rial's car, and left for Idaho.
Mr. Biederman's body was discovered on February 10, 1990, behind a Dipsy Dumpster
at the King 8 Motel. Las Vegas Metropolitan Police Officer Joe Schmitt and identification
specialist Nancy Kingsbury responded to the scene. Pictures were taken and the victim's
wallet was retrieved from his pants.
1

On February 11, 1990, appellant was apprehended by Corporal Ron Pumphrey of the
Idaho State Police Department.
2
On February 13, 1990, Detective Tom Dillard of the Las
Vegas Metropolitan Police Department met with appellant in the Bannock County jail in
Pocatello, Idaho. Detective Dillard took a statement from appellant. Appellant was then
transferred to Clark County, Nevada, where he stood trial for robbery with the use of a deadly
weapon and murder in the first degree with the use of a deadly weapon. At the conclusion of
the guilt phase, the jury returned a verdict of guilty on both counts.
The jury was unable to reach a determination during the penalty phase. Pursuant to NRS
175.556, a three-judge panel was convened to determine the sentence. The three-judge panel
found four aggravating circumstances and one mitigating circumstance.
3
In weighing the
mitigating circumstance against the aggravating circumstances, the panel found that the
mitigating circumstances did not outweigh the aggravating circumstances.
__________

1
The body was found wrapped in a blanket under a piece of carpet. Found on the ground was a live .22
caliber cartridge. Three metal fragments were recovered from inside the body.

2
Appellant had been traveling in excess of 100 miles per hour. The police determined that the driving status
of appellant had been revoked, and that the vehicle was registered to Max Biederman. A search of appellant's
vehicle revealed two pairs of handcuffs, a stun gun with dried blood on it, a survival sheath knife, and a .22
caliber Ruger revolver with the cylinder pin missing. A search of appellant revealed a money clip with $588 and
four fired .22 caliber shells.

3
The three-judge panel found the following aggravating circumstances beyond a reasonable doubt:
1. The murder was committed by a person who was previously convicted
In weighing the mitigating circumstance against the aggravating circumstances, the panel
found that the mitigating circumstances did not outweigh the aggravating circumstances. It
was the unanimous judgment of the court that appellant be sentenced to death.
[Headnote 1]
Appellant raises several issues by way of appeal. Appellant's first contention is that he was
denied his right to a speedy trial.
NRS 178.556 states in part: If a defendant whose trial has not been postponed upon his
application is not brought to trial within 60 days after the finding of the indictment or filing of
the information, the court may dismiss the indictment or information. Dismissal is
mandatory only absent good cause for the delay. Huebner v. State, 103 Nev. 29, 731 P.2d
1330 (1987); Anderson v. State, 86 Nev. 829, 477 P.2d 595 (1970).
In the present case, appellant invoked his right to a speedy trial, and the trial was set for
May 14, 1990. On May 2, 1990, the prosecutor requested that the district court reset the trial
date, since he was scheduled to try another death penalty case beginning on May 7th. Defense
counsel formally opposed the motion, but informed the court that they could not be prepared
to go to trial on May 14th.
The trial court found good cause to continue and reset the trial date for June 18, 1990. We
conclude that the court was correct in finding good cause. Neither the prosecution nor the
defense was prepared to go to trial. Appellant cannot force the court to begin a trial when
neither party is prepared to litigate.
[Headnote 2]
Appellant next contends that the court erred in admitting photographs of the victim's
mutilated body at the penalty phase of the trial. During the sentencing phase of the trial, the
court admitted five photographs of the victim's mutilated body for the purpose of establishing
the aggravating circumstance of mutilation. Defense counsel objected to the admission of the
photographs on the grounds that they were more prejudicial than probative.
[Headnote 3]
Admissibility of photographs lies within the sound discretion of the district court and,
absent an abuse of that discretion, the decision will not be overturned.
__________
of a felony involving the use of violence to another, to-wit: felonious jailbreaking and assault during the
commission of a felony;
2. The murder was committed by a person under sentence of imprisonment for breaking and entering and for
assault during the commission of a felony;
3. The murder was committed while the person was engaged in the commission of a robbery with use of a
deadly weapon; and
4. The murder involved the torture and mutilation of the victim.
The three-judge panel also found the following mitigating circumstance: The defendant was severely abused
at an early age.
decision will not be overturned. Ybarra v. State, 100 Nev. 167, 172, 679 P.2d 797, 800
(1984), cert. denied, 470 U.S. 1009 (1984); Turpen v. State, 94 Nev. 576, 577, 583 P.2d
1083, 1084 (1978), cert. denied, 439 U.S. 968 (1978). Having examined the photographs, we
conclude that they were admissible to prove the aggravating circumstances of mutilation. See
Robins v. State, 106 Nev. 611, 798 P.2d 558 (1990), cert. denied, 111 S.Ct. 1608 (1991). We
further conclude that the prejudicial effect of the photographs did not substantially outweigh
their probative value. See NRS 48.035. Accordingly, we conclude that the trial court properly
exercised its discretion.
[Headnote 4]
Appellant alleges that it was error to instruct jury regarding the felony murder rule.
4
Appellant alleges that a conviction of felony murder cannot stand since the indictment failed
to allege that the killing was perpetrated in the commission of a felony. We have previously
held that the indictment in a felony murder case need not allege that the killing was
perpetrated in the commission of a felony. Theriault v. State, 92 Nev. 185, 191, 547 P.2d
668, 672 (1976) (citing Rogers v. State, 83 Nev. 376, 432 P.2d 331 (1967)).
[Headnote 5]
Appellant also alleges that the court erred in instructing the jury that murder committed in
the perpetration of a felony carries a conclusive presumption of malice aforethought.
5
Appellant relies on Carella v. California, 491 U.S. 263 (1989) (due process requires
prosecution to prove every element of offense beyond a reasonable doubt), reh'g denied, 492
U.S. 937 (1989).
The present instruction does not violate Carella. In Carella, two instructions were given
mandating conclusive presumptions as to fraud and embezzlement based upon failure to
return a rental vehicle within an arbitrary time limit.
6
Id. at 264. The instructions foreclosed
independent jury consideration of whether the facts established all the elements of the
offenses. Id. This is to be distinguished from an instruction which informs a jury as to the
findings of fact required to establish a particular elementin this case malice.
__________

4
Jury Instruction No. 11 stated the following: Murder of the First Degree is murder which is (a) perpetrated
by any kind of willful, deliberate and premeditated killing, or (b) committed in the perpetration or attempted
perpetration of a robbery.

5
Jury Instruction No. 13 stated the following:
There is a kind of murder which carries with it conclusive evidence of premeditation and malice
aforethought. This class of murder is murder committed in the perpetration or attempted perpetration of
robbery. Therefore, a killing which is committed in the perpetration of the felony of robbery is deemed to
be murder in the first degree, whether the killing was intentional, unintentional or accidental. This is
called the felony murder rule.

6
The two instructions appear below:
(1) Presumption Respecting Theft by Fraud:
Intent to commit theft by fraud is presumed if one who has leased or
tions foreclosed independent jury consideration of whether the facts established all the
elements of the offenses. Id. This is to be distinguished from an instruction which informs a
jury as to the findings of fact required to establish a particular elementin this case malice.
See Carella, 491 U.S. at 266 (when a jury is instructed to presume malice from predicate
facts, it still must find the existence of those facts beyond a reasonable doubt).
[Headnote 6]
Appellant next contends that the trial court erred by allowing the State to call three
witnesses during the penalty phase who were not endorsed as witnesses on the information.
Appellant contends that he was prejudiced by this error.
[Headnote 7]
NRS 173.045(2) requires the district attorney to endorse such witnesses as are known to
him at the time of the filing of the information.
7
Absent evidence to the contrary, an
unendorsed witness is presumed to have been unknown to the district attorney. Dalby v.
State, 81 Nev. 517, 519, 406 P.2d 916, 917 (1965).
In the present case, three unendorsed witnesses were called at the penalty hearing. One of
these witnesses, Dr. Clay Griffith, was called to rebut the testimony of Dr. Masters, a
psychiatrist testifying for the defense. The State was only made aware of the defense's
intention to present Dr. Masters on the day before the penalty hearing began. Therefore,
pursuant to NRS 173.045(2), the State was not required to endorse Dr. Griffith on the
information.
__________
rented the personal property of another pursuant to a written contract fails to return the personal property
to its owner within 20 days after the owner has made written demand by certified or registered mail
following the expiration of the lease or rental agreement for return of the property so leased or rented.
(2) Presumption Respecting Embezzlement of a Leased or Rented Vehicle:
Whenever any person who has leased or rented a vehicle wilfully and intentionally fails to return the
vehicle to its owner within five days after the lease or rental agreement has expired, that person shall be
presumed to have embezzled the vehicle.
Carella, 491 U.S. at 264.

7
The district attorney or the attorney general shall endorse thereon the names of such witnesses as are
known to him at the time of filing the information, and shall also endorse upon the information the names
of such other witnesses as may become known to him before the trial at such time as the court may, by
rule or otherwise, prescribe; but this does not preclude the calling of witnesses whose names, or the
materiality of whose testimony, are first learned by the district attorney or the attorney general upon the
trial. He shall include with each name the address of the witness if known to him. He shall not endorse
the name of any witness whom he does not reasonably expect to call.
[Headnote 8]
Paul Clark and Kelly Neff were also called as unendorsed witnesses during the penalty
hearing. Paul Clark was a correctional officer who testified regarding a fight he had with
appellant while appellant was serving a sentence of imprisonment. Kelly Neff testified
regarding a fight which appellant had with a Mr. Coiner in which appellant pulled a gun.
8
Neither witness was known to the State prior to trial.
[Headnote 9]
Appellant contends that he was prejudiced by the State's failure to use due diligence in
discovering Paul Clark and Kelly Neff before trial. We agree that due diligence is a
requirement of NRS 173.045(2). We do not agree, however, that the record establishes a lack
of due diligence in the present case. We also cannot agree that appellant suffered prejudice;
the three week continuance granted by the trial court cured any prejudice that would have
accrued.
[Headnotes 10, 11]
Appellant next contends that the trial court improperly allowed testimony from Dr.
Griffith, a psychiatrist retained by the prosecution, regarding the future dangerousness of
appellant.
9
We agree with appellant. In our view, psychiatric evidence purporting to predict
the future dangerousness of a defendant is highly unreliable and, therefore, inadmissible at
death penalty sentencing hearings. Thus, the trial court erred in allowing Dr. Griffith's
testimony. But because the record contains plentiful other evidence from which the
three-judge panel could reasonably infer appellant's future dangerousness, we conclude that
this error was harmless beyond a reasonable doubt. See Manning v. Warden, 99 Nev. 82, 659
P.2d 847 (1983) (citing Chapman v. California, 386 U.S. 18 (1967)).
[Headnote 12]
We also take this opportunity to re-examine our previous decisions concerning whether a
prosecutor may argue the future dangerousness of a defendant and the need to impose the
death penalty to protect against future violence. In Riley v. State, 107 Nev. 205, 808 P.2d 551
(1991), we held that [w]hen there is evidence . . . 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.'"
Id. at 209, S0S P.2d at 560 {quoting Haberstroh v.
__________

8
During the course of this fight, appellant placed a gun between Ms. Neff's eyes and stated, I ought to blow
your brains out slut.

9
Dr. Masters, a psychiatrist for the defense, testified that appellant had a basic sense of decency and the
potential to do good for society. In response to this conclusion, Dr. Griffith gave his own opinion that
appellant was dangerous and would be a danger in any society that he is in.
defendant from endangering others' lives, a prosecutor is entitled to ask the jury to draw that
inference.' Id. at 209, 808 P.2d at 560 (quoting Haberstroh v. State, 105 Nev. 739, 741, 782
P.2d 1343, 1344 (1989)). Today, we expand our holding in Riley to allow prosecutors to
argue the future dangerousness of a defendant even when there is no evidence of violence
independent of the murder in question. In doing so, we align our jurisdiction with the
majority of other jurisdictions which have considered this issue. Unlike psychiatric testimony,
which jurors often readily accept as reliable expert medical evidence, the predictions of a
prosecutor are understood by a jury to be nothing more than the argument of counsel.
[Headnote 13]
Appellant next challenges the constitutionality of NRS 175.556 which authorizes the use
of a three-judge panel during the sentencing phase of a capital case in cases where the jury is
unable to reach a unanimous verdict upon the sentence.
10
Appellant contends that Nevada's
default sentencing scheme violates the equal protection and due process clauses of the United
States Constitution.
The United States Supreme Court has previously held that there is no constitutional
imperative that a jury have the responsibility of deciding whether the death penalty should be
imposed. Spaziano v. Florida, 468 U.S. 447 (1984) (holding that neither the Sixth
Amendment nor the due process clause of the Fourteenth Amendment creates a constitutional
right to sentencing by a jury in a capital case). In Spaziano, a Florida judge disregarded a
jury's recommendation of life and imposed a sentence of death. The Supreme Court found
that Florida's procedure of allowing a trial court to override a jury recommendation was
proper as it was neither arbitrary nor capricious. Id. at 466.
[Headnote 14]
Appellant contends that the sentencing scheme provided by NRS 175.556 is arbitrary and
capricious. See Godfrey v. Georgia, 446 U.S. 420, 427 (1980) (capital sentencing scheme
must provide meaningful basis for distinguishing cases where the death penalty is
imposed from cases where it is not).
__________

10
Procedure when jury unable to reach unanimous verdict. If a jury is unable to reach a unanimous
verdict upon the sentence to be imposed, the supreme court shall appoint two district judges from judicial
district other than the district in which the plea is made, who shall with the district judge who conducted
the trial, or his successor in office, conduct the required penalty hearing to determine the presence of
aggravating and mitigating circumstances, and give sentence accordingly. A sentence of death may be
given only by unanimous vote of the three judges, but any other sentence may be given by the vote of a
majority.
provide meaningful basis for distinguishing cases where the death penalty is imposed from
cases where it is not). Appellant's contention is based primarily on his assertion, unsupported
by any evidence in the record, that a three-judge panel invariably returns a sentence of death.
This court has previously addressed this exact issue. In Baal v. State, 106 Nev. 69, 787
P.2d 391 (1990), the appellant claimed that sentencing by a three-judge panel resulted in
arbitrary and capricious imposition of death sentences. Id. at 74, 787 P.2d at 395. In support
of that contention, appellant Baal argued that three-judge panels invariably return a sentence
of death. This court noted that appellant Baal cited no empirical evidence for his argument
and concluded that the use of a three-judge panel could withstand constitutional scrutiny. Id.;
see also Hill v. State, 102 Nev. 377, 724 P.2d 734 (1986), cert. denied, 479 U.S. 1101 (1987).
[Headnote 15]
Appellant also contends that application of NRS 175.556 denied him equal protection
under the law. Appellant contrasts NRS 175.556 with NRS 200.366. NRS 200.366(3) states:
The trier of fact in a trial for sexual assault shall determine whether substantial bodily harm
has been inflicted on the victim and if so, the sentence to be imposed upon the perpetrator.
NRS 200.366 does not provide for a three-judge panel to determine the sentence in the event
of a hung jury.
[Headnote 16]
Distinctions between classes are constitutionally improper if the basic distinction between
the classes is insupportable. Goldstein v. Pavlikowski, 87 Nev. 512, 516, 489 P.2d 1159,
1162 (1971).
11
Appellant argues that there is no supportable distinction between a capital
homicide case and a case of sexual assault. We conclude otherwise.
A capital homicide is a unique kind of case. The gravity of a capital case may render a jury
unable to reach a unanimous determination as to sentence. Because juries may frequently be
unable to agree upon a sentence, a default sentencing scheme is required.
__________

11
In Goldstein, appellant wanted to have his capital murder trial judged by the trial judge rather than a jury.
Capital murders require a jury, so appellant Goldstein's request was denied by the district court. Goldstein
appealed, stating that it was an impermissible class distinction to have different procedures at capital murder
trials than at non-capital trials. Goldstein, 87 Nev. at 516, 489 P.2d at 1162.
On appeal, we determined that appellant Goldstein was not denied equal protection. Id. at 516, 489 P.2d at
1162. We concluded that the distinction between capital and non-capital offenses was supportable because of the
heavy burden borne by the judge in a capital case. Id.
The same problems do not arise in the case of a sexual assault. The jury must choose
between two possible penalties, neither one of which is morally troublesome. See NRS
200.366.
12
A unanimous determination as to sentence will therefore be possible in most
cases. We therefore conclude that a three-judge panel default sentencing scheme is necessary
only in the case of a capital homicide.
In accordance with NRS 177.055, we have considered the remaining errors alleged by
appellant. We conclude that appellant's contentions are meritless. Also pursuant to NRS
177.055, we have examined the record and determined that the evidence supports the findings
of aggravating circumstances, that appellant's sentence was not imposed under the influence
of passion, prejudice or any arbitrary factor and that appellant's sentence of death is not
excessive, considering both the crime and the appellant. We therefore affirm appellant's
conviction and sentence of death.
Steffen, J., and Breen, D. J.,
13
concur.
Rose, J., concurring:
Although I wholeheartedly concur with the majority's opinion, I want to elaborate on why
psychiatric predictions of a defendant's future dangerousness are unreliable, and thus should
be inadmissible as trial evidence. The testimony of the State's psychiatrist in this case is
illustrative of the problem presented by such testimony.
At trial, the court permitted the testimony of Dr. Clay Griffith, a Texas physician
specializing in forensic psychiatry.
1
Dr. Griffith testified to his impressive medical
credentials in court. He also stated that over the past twenty-five years, he has examined over
8,000 people charged with offenses and has testified in approximately half of those cases.
__________

12
Under NRS 200.366(2)(a)(1)-(2), the jury may sentence a defendant convicted of sexual assault with
substantial bodily harm, as follows:
(1) By imprisonment in the state prison for life, without possibility of parole; or
(2) By imprisonment in the state prison for life with possibility of parole, eligibility for which begins
when a minimum of 10 years has been served.

13
The Honorable Peter I. Breen, Judge of the Second Judicial District Court, was designated by the

1
Griffith's testimony was undoubtedly influenced by his Texas practice. Death penalty sentencing in Texas is
a two-step process. Eligibility for the death penalty is determined by the jurors during the guilt-innocence phase
of a capital murder trial. Note, A Reasoned Moral Response: Rethinking Texas's Capital Sentencing Statute
After Penry v. Lynaugh, 69 Tex.L.Rev. 407, 436 (1990). If a unanimous jury responds affirmatively to three
questions, the
mately half of those cases. Of the over one hundred and fifty death penalty-eligible
defendants Dr. Griffith has examined, he has testified ninety-seven times for the prosecution
and two times for the defense. Based upon his experience, Dr. Griffith informed the jury that
he is one hundred percent accurate on death penalty cases.
2

Dr. Griffith did not examine Timothy Redmen in person. Rather, he based his opinion on
tapes of Redmen's confession, Redmen's testimony at trial,
3
and approximately one hundred
photographs not admitted into evidence.
4
Based upon this evidence, Dr. Griffith concluded
that Redmen is a sociopath within the upper limits of this personality disorder, and that he has
no feelings and no conscience. He also stated that sociopaths are untreatable and are in
continuous conflict with society, and that Redmen will continue to be a danger to society.
__________
trial judge has no discretion in sentencing the defendant to death. Id. at 438. The second of these questions is:
(2) whether there is a probability that the defendant would commit criminal acts of violence that
would constitute a continuing threat to society . . . .
Tex. Crim. Proc. Code Ann. 37.071(b) (Vernon Supp. 1991) (emphasis added).
Because Texas cannot obtain a death penalty conviction without convincing jurors that the element of
probable future dangerousness has been satisfied, and industry has developed supporting psychiatrists who
specialize at this task. Dr. James Grigson, also of Texas, claims to have examined more than 12,000 prisoners
during his career and earns approximately $200,000 a year from court-ordered examinations. See 20/20: Dr.
Death (ABC television broadcast, November 25, 1988) (transcript on file at Journal Graphics) (hereinafter Dr.
Death).

2
Griffith was less certain as to whether he is always accurate in non-death penalty cases.

3
On cross-examination, Dr. Griffith stated that his opinions were formed when he watched [Redmen]
testify, the manner in which he testified, and the manner in which he answered questions, he was very
controlled. In particular, he stated that his conclusion that Redmen had neither a conscience nor feelings
derived from Redmen's failure to use the word anger or the term excitement when he testified. Dr. Griffith
subsequently admitted that nothing Redmen said or did on the stand could have swayed his opinion of him, given
all the material he had.

4
I also am troubled by the fact that an expert witness offering opinion testimony was given access to
photographs considered too prejudicial to be seen by the jury. As Dr. Griffith has denied relying upon Redmen's
trial testimony in forming his opinion, and as no psychological examination was conducted by him, it appears
that Dr. Griffith's conclusions were based primarily upon this inadmissible evidence and Redmen's confession.
Furthermore, Dr. Griffith told the three-judge panel that his opinion was based in part upon these one hundred
photographs that they were not allowed to see. If this had been a jury, its logical conclusion would have been
that Dr. Griffith possessed not only superior scientific knowledge but also better factual knowledge of the case
than was presented to the jury.
untreatable and are in continuous conflict with society, and that Redmen will continue to be a
danger to society.
The seminal case addressing expert testimony by psychiatrists in death penalty cases is
Barefoot v. Estelle, 463 U.S. 880 (1983). Barefoot was a Texas case involving the murder of
a police officer by a man with prior possession offenses but no history of violent crimes. Id. at
883-84, 917. The trial court heard testimony from two psychiatrists, neither of whom had
examined or requested to examine the defendant. Both recited their impressive credentials to
the jury. Id. at 917 (Blackmun, J., dissenting). In addition, as in the instant case, one of the
psychiatrists, Dr. James Grigson, stated that Barefoot ranked above 10 on a scale of one to
ten for sociopaths. Id. at 919. The defense in Barefoot argued that admission of the
psychiatrists' testimonies was unconstitutional because psychiatrists are not competent to
predict the future and because their error rate is extremely high. Id. at 884-85. The majority
concluded that the effect of such testimony could be adequately assuaged through
impeachment of the witness and through the introduction of opposing witnesses.
5
Id. at
899-901.
I find the dissent of Justice Blackmun instructive. He argues that psychiatric predictions of
future dangerousness are unreliable, that it is extremely difficult to attack the credibility of a
psychiatrist's opinion on this subject, and that the need for reliable evidence in a death penalty
case mandates the exclusion of expert evidence of questionable reliability. Concerning the
accuracy of psychiatric predictions, he states:
The American Psychiatric Association (APA), participating in this case as amicus
curiae, informs us that [t]he unreliability of psychiatric predictions of long-term future
dangerousness is by now an established fact within the profession. Brief for American
Psychiatric Association as Amicus Curiae 12 (APA Brief). The APA's best estimate is
that two out of three predictions of long-term future violence made by psychiatrists are
wrong. Id., at 9, 13. The Court does not dispute this proposition, see ante, at 899-901,
n. 7, and indeed it could not do so; the evidence is overwhelming. For example, the
APA's Draft Report of the Task Force on the Role of Psychiatry in the Sentencing
Process (1983) (Draft Report) states that [c]onsiderable evidence has been
accumulated by now to demonstrate that long-term prediction by psychiatrists of
future violence is an extremely inaccurate process." Id., at 29.
__________

5
The majority in Barefoot v. Estelle, 463 U.S. 880, 901 (1983), went so far as to say that [n]either the
petitioner nor the [American Psychiatric Association] suggests that psychiatrists are always wrong with respect
to future dangerousness, only most of the time. (Emphasis added.)

tion by psychiatrists of future violence is an extremely inaccurate process. Id., at 29.
John Monahan, recognized as the leading thinker on this issue even by the State's
expert witness at Barefoot's federal habeas corpus hearing, Hearing Tr. 195, conclude
that the best' clinical research currently in existence indicates that psychiatrists and
psychologists are accurate in no more than one out of three predictions of violent
behavior, even among populations of individuals who are mentally ill and have
committed violence in the past. J. Monahan, The Clinical Prediction of Violent
Behavior 47-49 (1981) (emphasis deleted) (J. Monahan, Clinical Prediction); see also
id., at 6-7, 44-50. Another study has found it impossible to identify any sub-class of
offenders whose members have a greater-than-even chance of engaging again in an
assaultive act. Wenk, Robison, & Smith, Can Violence be Predicted?, 18 Crime &
Delinquency 393, 394 (1972). Yet another commentator observes: In general, mental
health professionals . . . are more likely to be wrong than right when they predict legally
relevant behavior. When predicting violence, dangerousness, and suicide, they are far
more likely to be wrong than right. Morse, Crazy Behavior, Morals and Science: An
Analysis of Mental Health Law, 51 S. Cal. L. Rev. 527, 600 (1978) (Morse, Analysis of
Mental Health Law). Neither the Court nor the State of Texas has cited a single
reputable scientific source contradicting the unanimous conclusion of professionals in
this field that psychiatric predictions of long-term future violence are wrong more often
than they are right.
Id. at 920-921 (Blackmun, J., dissenting) (emphasis in original; footnote omitted).
Evidence is only admissible if it is relevant. NRS 48.025(2). To be relevant, the evidence
must have a tendency to make the existence of a material fact more or less probable than it
would be without the evidence. NRS 48.015. If the American Psychiatric Association and
other scholarly studies are correct, expert psychiatric testimony concerning an individual's
future dangerousness does not make the existence of that dangerousness more or less
probable. Thus, such evidence should be disallowed because it is not relevant.
Furthermore, Justice Blackmun notes that the insidious nature of the psychiatrists' mostly
inaccurate testimony is compounded by the fact the jurors readily accept as factual opinion
testimony by qualified experts in scientific fields.
6
Id. at 926. Where highly credentialed
scientific experts swear to their one hundred percent accuracy, impeachment provides an
ineffectual remedy. Id. at 929-30.
__________

6
For example, Blackmun notes that polygraph evidence is generally excluded because of concerns that the
jury will be unduly influenced by it,
credentialed scientific experts swear to their one hundred percent accuracy, impeachment
provides an ineffectual remedy. Id. at 929-30.
The practical effect of permitting psychiatric testimony on a defendant's future
dangerousness in the trial of death penalty cases would be more expert testimony and
additional costs. If the State is permitted to present such evidence, the defense will want, and
indeed should be entitled to, a psychiatrist to testify and rebut the State's expert. Both
psychiatrists will be paid by the State. The end result would be that in death penalty cases we
would extend the time of trials, have additional expert witnesses giving their speculation on a
defendant's future dangerousness, and increase costs, all without any clear benefit to our
understanding of the case.
The answer is simple and it is the one we announce today. Prohibit the admission of this
unreliable expert testimony and let the juries in Nevada make decisions on the death penalty
as they have for yearsbased upon the facts of the case and the arguments of counsel.
Young, J., concurring in part and dissenting in part:
Appellant challenges the constitutionality of NRS 175.556 which provides for the
appointment of a three-judge panel to sentence a defendant convicted of first degree murder
when the jury is unable to reach a unanimous verdict. For the reasons I set forth in my dissent
in Beets v. State, 107 Nev. 957, 821 P.2d 1044 (1991), I am unable to conclude that the
sentencing procedure is constitutional under Godfrey v. Georgia, 446 U.S. 420 (1980).
I therefore dissent from the portion of the majority opinion which concludes that NRS
175.556 is constitutional. I concur with the remainder of the majority opinion.
__________
even though the reliability of polygraph tests (eighty to ninety percent accuracy) greatly exceeds that of
psychiatric testimony. Barefoot v. Estelle, 463 U.S. 880, 930 (1983) (Blackmun, J., dissenting).
____________
108 Nev. 242, 242 (1992) First Interstate Bank v. H.C.T., Inc.
FIRST INTERSTATE BANK OF CALIFORNIA, a California Banking Corporation,
Appellant/Cross-Respondent, v. H.C.T., INC., a California Corporation, aka H.C.T.,
INCORPORATED, a California Corporation, Respondent/Cross-Appellant, and
INDEPENDENCE BANK, a California State Banking Corporation, Respondent.
No. 22165
March 13, 1992 828 P.2d 405
Appeal from a grant of summary judgment entitling Independence Bank to interpleader
funds and cross-appeal from an order denying motion to dismiss or, in the alternative, motion
for summary judgment. Eighth Judicial District Court, Clark County; Joseph T. Bonaventure,
Judge.
Judgment creditor sued to enforce foreign judgment against judgment debtor and applied
for writ of garnishment on certificate of deposit (CD). Holder of cretificate of deposit filed
complaint for interpleader to determine ownership of CD. On consolidation, the district court
denied judgment debtor's motion to dismiss suit to enforce foreign judgment and directed CD
funds to be delivered to bank to which judgment debtor had assigned CD prior to application
for writ of garnishment. Judgment creditor and judgment debtor appealed. The supreme court
held that: (1) judgment debtor acquired its interest in CD when it was awarded funds in
arbitration, and not upon judicial confirmation of award; (2) assignee bank had priority in CD
to extent of antecedent debt owed by judgment debtor to bank; (3) marshaling of assets was
not appropriate against debtor's guarantor; and (4) judgment debtor could not challenge order
denying motion to dismiss enforcement action brought by judgment creditor inasmuch as
summary judgment which was certified for appeal did not resolve issue.
Affirmed; cross-appeal dismissed.
Gordon & Silver and Candi Carlyon, Las Vegas, for Appellant/Cross-Respondent.
Lefebvre, Barron & Oakes, Las Vegas, for Respondent/Cross-Appellant H.C.T.
Miles & Tierney, Las Vegas, for Respondent Independence Bank.
1. Arbitration.
Party's rights in certificate of deposit (CD) vested upon declaration of arbitration award, not upon judicial
confirmation of award, NRS 3S.135.
of arbitration award, not upon judicial confirmation of award, NRS 38.135.
2. Garnishment.
Bank's interest in certificate of deposit (CD) by assignment from judgment debtor was prior in time to judgment creditor's interest
which vested when judgment creditor served writ of garnishment against CD, and thus, CD was not subject to garnishment by
judgment creditor, where interest in CD was assigned for antecedent debt owed by judgment debtor to bank, and bank gave
consideration for assignment. NRS 112.170; NRS 112.040 (Repealed).
3. Garnishment.
Priority between garnishment and assignment depends on which interest is first in time; however, assignment takes priority over
writ of garnishment only to extent that consideration given for assignment represents antecedent debt or present advance. NRS
112.170; NRS 112.040 (Repealed).
4. Garnishment.
Assignor's actions in pursuing litigation to determine priority between garnishment and assignment of certificate of deposit (CD)
were not inconsistent with its assertion that it made valid assignment of CD to bank, even though assignor was not real party in interest
after it assigned its interest in CD to bank; assignor needed to prove its initial interest in CD in order to enable bank to prevail in
lawsuit. NRS 112.170; NRS 112.040 (Repealed).
5. Debtor and Creditor.
Marshaling of assets was not appropriate in garnishment action to require creditor with priority interest in certificate of deposit to
satisfy its debt from guarantors of debtor before resorting to certificate of deposit; marshaling was barred since one fund was in hands
of surety of debtor; rather than in hands of debtor, himself. NRS 100.040.
Surety is not fund or security in sense which those terms are used in connection with principles of marshaling of assets; creditor
cannot be compelled to satisfy its debt from sureties of his debtor before resorting to fund or collateral security on which he has lien.
NRS 100.040.
Where fund is held by surety or guarantor, marshaling of assets is barred because debtor does not hold funds which are in hands
of surety or guarantor. NRS 100.040.
For marshaling of assets doctrine to apply, both funds must be within jurisdiction and control of court. NRS 100.040.
Marshaling of assets with respect to guarantors of debtor was improper, where guarantors were not party to suit and had no notice
of marshaling proceedings against their assets. NRS 100.040.
Marshaling of assets cannot be invoked if it will compel senior creditor to proceed with independent action to obtain judgment.
NRS 100.040.
Where appeal is not granted by statutory authority, no right to appeal exists.
Order denying judgment debtor's motion to dismiss judgment creditor's action seeking to enforce foreign judgment,
or in alternative, for summary judgment, was not appealable, where order was not listed as appealable
order in NRAP.
tor's action seeking to enforce foreign judgment, or in alternative, for summary judgment, was not appealable, where order was not
listed as appealable order in NRAP. NRAP 3A(b).
Because summary judgment which was certified for appeal did not resolve issue of whether judgment creditor could enforce its
foreign judgment, judgment debtor could not challenge order on appeal; in consolidated case, only claim which was certified for appeal
was final and appealable. NRCP 54(b).
OPINION
Per Curiam:
Facts
First Interstate Bank of California (FICAL) and Independence Bank both assert a claim to
a Certificate of Deposit (CD) in the approximate amount of $322,000. The district court
awarded the CD to Independence Bank on summary judgment. FICAL appealed.
In 1988, H.C.T., Inc., (HCT) borrowed $350,000 from Independence Bank; the loan was
guaranteed by two of HCT's principals.
Shortly thereafter, HCT purchased a CD from First Interstate Bank of Nevada (FINEV) for
$321,444.32 in the name of Sunrise Development Co. (Sunrise) and Clark County Public
Works.
1
The CD was in lieu of an off-site improvement bond by HCT. In May 1990, HCT
assigned its entire interest, rights and title in the CD to Independence Bank.
Also in May of 1990, FICAL obtained a judgment against HCT for $314,059.65 in a
California superior court. HCT appealed the California judgment and FICAL cross-appealed.
Meanwhile, HCT and Sunrise entered into arbitration proceedings to determine ownership
of the CD. On July 24, 1990, HCT was awarded the funds by the American Arbitration
Association. On August 21, 1990, the arbitrator's award was judicially confirmed.
In August of 1990, FICAL filed suit in Nevada district court to enforce the California
foreign judgment against HCT and applied for, inter alia, a writ of garnishment on the CD.
The district court issued the writ. On August 20, 1990, FICAL served the writ of garnishment
on the CD to FINEV, which held the CD. HCT moved to dismiss FICAL's action seeking to
enforce the California judgment, or in the alternative for summary judgment, alleging the
California judgment was not final because both HCT and FICAL had appealed the
judgment.
__________

1
Neither Sunrise nor Clark County are involved in this appeal.
and FICAL had appealed the judgment. The district court denied the motion and ordered
FICAL to comply with the requirements for commencing action pursuant to the Nevada
Uniform Enforcement of Foreign Judgments Act (NRS 17.330 et seq.). FICAL complied.
Meanwhile, FINEV filed a complaint for interpleader, requesting that the court make a
determination as to the ownership of the CD. HCT filed a motion for summary judgment in
the interpleader case, claiming it had assigned its interest in the CD to Independence Bank
prior to the time of FICAL's writ of garnishment on the CD and therefore Independence
Bank's interest took priority. Independence Bank later joined in HCT's motion. FICAL's
action to enforce its foreign judgment was then consolidated with the interpleader case.
The district court granted the HCT/Independence Bank motion for summary judgment,
directing the CD funds to be delivered to Independence Bank. The summary judgment was
certified as final pursuant to NRCP 54(b). FICAL appealed the summary judgment. HCT
cross-appealed from the order denying HCT's motion to dismiss FICAL's suit to enforce its
foreign judgment.
On appeal, FICAL argues: (1) the district court erred in determining that Independence
Bank was entitled to the CD under the first in time rule; (2) HCT's actions belie its
contention that it assigned its interest to Independence Bank; and (3) Independence Bank
should have been compelled to satisfy its claim from other assets of HCT under the
marshaling of assets doctrine.
Priority
[Headnote 1]
FICAL argues that its interest in the CD attached on August 20, 1990, when its writ of
garnishment was served on FINEV and that HCT's/Independence Bank's interest attached on
August 21, 1990, when the district court confirmed HCT's arbitration award. FICAL's
argument is illogical. If HCT did not have an interest in the CD until August 21, 1990, then
FICAL could not have levied a writ of garnishment against it on August 20, 1990. In order to
determine priority, the threshold question in this case is: at what point in time did HCT
acquire its interest in the CDwhen it was awarded the funds in arbitration, or when the
district court confirmed the arbitration award?
The Legislature intended for an arbitration award to be final and binding. City of Boulder
v. General Sales Drivers, 101 Nev. 117, 119, 694 P.2d 498, 500 (1985). Upon application to a
district court, the award shall be confirmed unless grounds are urged for modifying, vacating
or correcting the award. NRS 3S.135.2 In deciding whether a party's rights vest upon the
declaration of the arbitration award or upon judicial confirmation, one court states:
38.135.
2
In deciding whether a party's rights vest upon the declaration of the arbitration
award or upon judicial confirmation, one court states:
An arbitration award conclusively determines the rights of the parties unless it is
invalidated by a reviewing court. Thus, if the award is upheld in a reviewing court, the
rights of the parties are determined from the date of the award and not the date of the
court's judgment confirming the award. Any other result would defeat the purpose of
arbitration which is to finally decide the issues between the arbitrating parties without
judicial intervention.
Marion Mfg. Co. v. Long, 588 F.2d 538, 541 (6th Cir. 1978) (citations omitted) (emphasis
added). We agree with the Sixth Circuit and hold that HCT acquired its interest in the CD
when it was awarded the funds in arbitration.
[Headnote 2]
HCT assigned its interest in the CD to Independence Bank on May 4, 1990. HCT was
awarded the CD in arbitration on July 24, 1990. The interest which HCT assigned to
Independence Bank on May 4, 1990, became valuable when HCT was awarded the CD.
HCT's interest in the CD, as well as Independence Bank's interest by assignment, was prior in
time to FICAL's interest which vested on August 20, 1990, when FICAL served the writ of
garnishment against the CD.
[Headnote 3]
Priority between a garnishment and an assignment depends on which interest is first in
time. Board of Trustees v. Durable Developers, 102 Nev. 401, 415, 724 P.2d 736, 746 (1986).
However, an assignment takes priority over a writ of garnishment only to the extent that the
consideration given for the assignment represents an antecedent debt or present advance. Id.
(citing NRS 112.040 (repealed by Statutes of Nevada 1987 ch. 9); cf. NRS 112.170).
3

In the case at hand, HCT assigned Independence Bank its interest in the CD for the
antecedent debt of $350,000 owed by HCT to Independence Bank.
__________

2
Confirmation of award. Upon application of a party within 1 year, the court shall confirm an award,
unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or
correcting the award. . . .

3
1. Value is given for a transfer or an obligation if, in exchange for the transfer or obligation, property
is transferred or an antecedent debt is secured or satisfied . . . .
HCT to Independence Bank. The CD was purchased in July of 1988 for $321,444.32.
Independence Bank gave at least $350,000 consideration for the assignment. Therefore,
Independence Bank has priority in the CD to the extent of $350,000 plus whatever interest
HCT owed Independence Bank on the antecedent debt.
The Assignment
[Headnote 4]
FICAL contends that HCT's actions in pursuing this litigation are inconsistent with its
assertion that it made a valid assignment to Independence Bank. We disagree.
HCT's actions in pursuing this case are consistent with its assignment to Independence
Bank. It is true that HCT was not the real party in interest after it assigned its interest in the
CD to Independence Bank. See Thelin v. Intermountain Lumber, 80 Nev. 285, 392 P.2d 626
(1964). However, HCT needed to prove its initial interest in the CD in order to enable
Independence Bank to prevail in this lawsuit. HCT had an interest in Independence Bank
taking priority in order to pay off its debt to Independence Bank.
FICAL also argues that HCT did not have standing to pursue the litigation. This argument
is moot; the issue of standing was resolved when Independence Bank, as the real party in
interest, joined HCT in its motion for summary judgment.
Marshaling of Assets
FICAL asserts that the only asset of HCT's it can look to for satisfaction of its judgment is
the CD and that Independence Bank may resort to two funds: the CD and the personal
guarantees of HCT's stockholders/principals. Therefore, FICAL argues that the district court
erred in not ordering marshaling of assets, contending that if the assets are marshaled, both
FICAL and Independence Bank will receive full payment. This is an issue of first impression
in Nevada.
Marshaling of assets is provided for by NRS 100.040, which reads:
Requiring resort to different funds. Where a creditor is entitled to resort to each of
several funds for the satisfaction of his claim, and another person has an interest in, or
is entitled as a creditor to resort to some, but not all, of them, the latter may require the
former to seek satisfaction from those funds to which the latter has no such claim, so
far as it can be done without impairing the right of the former to complete satisfaction,
and without doing injustice to third persons.
Both Funds Must be in the Hands of the Debtor
[Headnotes 5, 6]
Whether both creditors can be satisfied in full if marshaling is compelled is of no
consequence. It is a well-settled rule that marshaling of assets is only appropriate where both
funds are in the hands of a common debtor of both the senior and junior creditors. DuPage
Lumber & Home Imp. v. Georgia-Pacific Corp., 34 B.R. 737 (Bankr. N.D. Ill. 1983); In re
United Medical Research, Inc., 12 B.R. 941 (Bankr. C.D. Cal. 1981). Marshaling is barred
when one of the funds is in the hands of a surety of the debtor. DuPage Lumber, 34 B.R. at
740 (citing 53 Am.Jur.2d Marshaling Assets 10 at 17 (1970)). The rule regarding
marshaling where one of the funds is in the hands of a surety of the debtor is summed up as
follows:
A surety is not a fund or security in a sense which those terms are used in
connection with the principle of marshaling. A creditor cannot be compelled to satisfy
his debt from the sureties of his debtor before resorting to a fund or collateral security
on which he has a lien. Again, in the absence of some special equity, the principle of
marshaling assets is not applicable to a case where one of the funds is property of a
surety of the common debtor.
53 Am.Jur.2d Marshaling Assets 23 at 24 (1970) (footnotes omitted). The view that a junior
creditor may not compel marshaling where one fund is in the hands of a surety is consistent
with virtually all courts which have specifically addressed this issue. Matter of Willson Dairy
Co., 30 B.R. 67, 71 (Bankr. S.D. Ohio 1981) (citing Annot., 135 A.L.R. 740). The roots of
the rule regarding sureties date back to 1817. Willson Dairy, 30 B.R. at 71 (citing Union Bank
v. Laird, 15 U.S. (2 Wheat.) 390 (1817)).
[Headnotes 7, 8]
Where a fund is held by a surety or guarantor, marshaling is barred because the debtor
does not hold the funds which are in the hands of the surety or guarantor. DuPage Lumber, 34
B.R. at 740; Willson Dairy, 30 B.R. at 71; United Medical Research, 12 B.R. at 942.
Additionally, both funds must be within the jurisdiction and control of the court. Lewis v.
United States, 92 U.S. 618, 623 (1875).
Very few courts have found an exception to the settled rule and have compelled
marshaling where both funds are not in the hands of the debtor. See In re Jack Green's
Fashions for MenBig & Tall, 597 F.2d 130 (8th Circ. 1979). In Jack Green's, a clothing
corporation borrowed money from the senior creditor and secured the loan by both a lien on
the business assets and on personal residences owned by the principals of the
corporation. Id. at 131-32.
secured the loan by both a lien on the business assets and on personal residences owned by
the principals of the corporation. Id. at 131-32. The court ordered the senior creditor to resort
first to the real estate for satisfaction of its debt, stating that if the senior creditor were
allowed to exhaust the business assets, the general creditors would receive nothing. Id. at 133;
see also Matter of Multiple Services Industries, Inc. 18 B.R. 635 (Bankr. E.D. Wis. 1982);
Farmers & Merchants Bank v. Gibson, 7 B.R. 437 (Bankr. N.D. Fla. 1980), vacated sub nom,
Peacock v. Gibson, 81 B.R. 79 (Bankr. N.D. Fla. 1981). In Multiple Services and Farmers,
the courts allowed marshaling because they were particularly concerned that the
working-capital loans [to corporations], secured by guaranties and privately-owned real
estate, could deceive trade creditors by giving the illusion of adequate capitalization.
DuPage Lumber & Home Imp. v. Georgia-Pacific Corp., 34 B.R. 737, 742 (Bankr. N.D. Ill.
1983).
The Jack Green's and Farmers decisions have been severely criticized. Id. at 742. As one
court stated:
It is poor policy for courts to upset legitimate business transactions because of some
vague concept of equity. We tend to forget that these decisions affect future commercial
transactions. Advantageous and proper loans to corporations may be frustrated because
shareholders [or guarantors] would be fearful of having their personal assets marshaled
for corporate creditors should they guarantee a corporate debt.
In re United Medical Research, Inc., 12 B.R. 941, 943 (Bankr. C.D. Cal. 1981). We decline to
follow Jack Green's. To compel marshaling against a guarantor in situations similar to the
case at bar would result in a chilling effect on guarantees.
Marshaling Cannot Force the Senior Creditor Into Independent Litigation
[Headnotes 9, 10]
Additionally, if marshaling were ordered in this case, Independence Bank would be forced
to obtain a judgment against the guarantors and then execute on the judgment. Marshaling
cannot be invoked if it will compel the senior creditor to proceed with an independent action
to obtain a judgment. Dixieland Realty Co. v. Wysor, 158 S.E.2d 7, 14-15 (N.C. 1967) (citing
55 C.J.S. Marshaling Assets and Securities 4, at 962).
FICAL argues that the guarantors are already a party to an action by Independence Bank
against HCT and the guarantors in California. However, FICAL provides no proof that this is
true.
Even if FICAL's assertions are accurate, marshaling is still barred because the guarantors are
not a party to this suit. Some courts consider this an absolute denial of due process for the
guarantors. In re Mesa Intercontinental, Inc. 79 B.R. 669, 673 (Bankr. S.D. Tex. 1987); In re
Coors of North Mississippi, Inc., 66 B.R. 845, 869 (Bankr. N.D. Miss. 1986). We agree. We
will not compel marshaling against guarantors who are not a party to this suit and who have
no notice of marshaling proceedings against their assets.
Marshaling in this case is improper on the grounds that the two funds are not within the
hands of the debtor and the guarantors are not a party to this suit.
The Cross-Appeal
HCT moved to dismiss FICAL's actions seeking to enforce the California judgment
against HCT, or in the alternative for summary judgment, alleging the California judgment
was not final because both HCT and FICAL had appealed. The district court denied the
motion and ordered FICAL to comply with the requirements for commencing action pursuant
to the Nevada Uniform Enforcement of Foreign Judgments Act (NRS 17.330 et. seq.). HCT
appeals from the denial of its motion to dismiss.
[Headnotes 11, 12]
NRAP 3A(b), designates orders and judgments from which an appeal may lie. Where
appeal is not granted by statutory authority, no right to appeal exists. Taylor Constr. Co. v.
Hilton Hotels, 100 Nev. 207, 678 P.2d 1152 (1984). The order denying HCT's motion is not
appealable because it is not listed as an appealable order in NRAP 3A(b).
[Headnote 13]
Additionally, HCT is pursuing an appeal which involves the issues of whether FICAL can
enforce its foreign judgment against HCT's assets in Nevada. While FICAL's enforcement
action against HCT was consolidated with the FINEV interpleader case, only summary
judgment regarding the CD was rendered and certified pursuant to NRCP 54(b).
The only issue which the summary judgment resolved was which party was entitled to the
CD. In the summary judgment, the district court did not include a disposition regarding the
issue of whether FICAL's enforcement action against HCT was allowable by Nevada law.
Because the summary judgment which was certified did not resolve the issue of whether
FICAL can enforce its foreign judgment, HCT cannot challenge the order in this appeal. This
court has made it clear that in a consolidated case, only the claim which is certified pursuant
to NRCP 54(b) is final and appealable.
and appealable. See Mallin v. Farmers Insurance Exchange, 106 Nev. 606, 609, 797 P.2d 978,
980 (1990).
The cross-appeal is not properly before this court. We therefore dismiss the cross-appeal
for lack of jurisdiction.
Conclusion
The district court properly entered summary judgment in favor of Independence Bank.
Independence Bank's interest in the CD was first in time to FICAL's and therefore has
priority. FICAL may not compel the marshaling of assets under the circumstances of this
case. Further, this court lacks jurisdiction to consider the cross-appeal.
Accordingly, we affirm the judgment entered below and dismiss the cross-appeal.
Mowbray, C. J., Springer, Rose and Young, JJ., and Ames, D. J.,
4
concur.
___________
108 Nev. 251, 251 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
THE HONORABLE PAUL S. GOLDMAN, District Judge, Eighth Judicial District Court, In
and for the County of Clark, State of Nevada, by and Through JULIE
GOLDMAN-WILSON, as Personal Representative of the Estate of PAUL S.
GOLDMAN, Appellant, v. THE NEVADA COMMISSION ON JUDICIAL
DISCIPLINE, Respondent.
No. 18326
April 1, 1992 830 P.2d 107
Appeal from final report of proceedings, findings of fact, conclusions of law and judgment
of the Nevada Commission on Judicial Discipline.
Former district judge sought review of final report, findings of fact, conclusions of law,
and judgment of Nevada Commission on Judicial Discipline. The supreme court held that
evidence supported commission's finding that judge had committed willful misconduct in
office unexcused by any claimed physical or mental disability.
Affirmed as modified.
__________

4
The Honorable Jack B. Ames, Judge of the Fourth Judicial District Court, was designated by the Governor
to sit in place of The Honorable Thomas L. Steffen, Justice. Nev. Const. art. 6 4.
Beckley, Singleton, DeLanoy, Jemison and List, and J. Mitchell Cobeaga and Alan J.
Lefebvre, Las Vegas; Frank J. Cremen, Las Vegas, for Appellant.
Eugene J. Wait, Jr., Wayne A. Shaffer, and Jeffrey Dickerson, Reno, for Respondent.
1. Judges.
Responsible administration of judicial disability retirement system warrants definitive, final appellate review of determinations by
Commission on Judicial Discipline respecting judge's claim for early, enhanced disability pension.
2. Judges.
Factual findings of Commission on Judicial Discipline constituting grounds for censure, removal, or retirement of judicial officer
must be premised on clear and convincing evidence. Const. art. 7, 4; Commission on Judicial Discipline Rule 15.
3. Judges.
Although judge who is subject of formal allegations of misconduct is not required to present evidence in his own defense, judge
must assume burden of proof with respect to affirmative defenses; mere preponderance of evidence is sufficient to establish affirmative
defense. Commission on Judicial Discipline Rule 27.
4. Judges.
If required probable cause is found with regard to judge who is subject of formal allegations of misconduct, and misconduct or
disability is thereafter alleged in formal statement of charges, prosecuting officer for state Commission on Judicial Discipline always
retains burden of establishing elements essential to finding of misconduct or permanent physical or mental disability by way of clear
and convincing proof. Commission on Judicial Discipline Rule 27.
5. Judges.
Any finding by Commission on Judicial Discipline entitling judge to early retirement on enhanced disability pension must be
premised on clear and convincing evidence showing mental or physical disability preventing proper performance of judge's judicial
duties and which is likely to be permanent in nature. Const. art. 6, 21, subd. 6(b); Commission on Judicial Discipline Rule 33.
6. Judges.
Decision by Commission on Judicial Discipline to censure, remove, or retire judicial officer is not merely advisory or
recommendatory in nature; decision is of independent force and effect absent perfection of appeal. Const. art. 6, 21, subd. 1.
7. Judges.
Appellate review of factual findings by Commission on Judicial Discipline is confined to determination of whether evidence in
record as whole provides clear and convincing support for commission's findings; commission's factual findings may not be
disregarded on appeal merely because circumstances might also reasonably be reconciled with contrary findings of fact. Const. art. 6,
21, 21, subds. 2, 4.
8. Judges.
On appeal from Commission on Judicial Discipline's order of censure, removal, or retirement, court is specifically enjoined by
constitution to exercise independent judgment regarding appropriate sanction warranted by factual findings
properly founded by commission.
tion to exercise independent judgment regarding appropriate sanction warranted by factual findings properly found by commission.
Const. art. 6, 21, subd. 1.
9. Judges.
Although evidence indicated that judge suffered from intermittent bouts of depression and stress related ailments, expert testimony
and other evidence supported finding of Commission on Judicial Discipline that judge was not permanently disabled from performing
duties of office for purposes of determining whether judge had defense from disciplinary charges and whether judge was entitled to
immediate enhanced disability pension. Const. art. 6, 21.
10. Judges.
Early judicial disability pension may be awarded only if clear and convincing evidence establishes that judge is truly in extremis
and that, even with medical treatment, judge will not be likely to recover health and capacity to perform duties of his office; no
procedures allow for periodic or future review of disability status once early, enhanced judicial disability pension is awarded. Const.
art. 6, 21; NRS 3.092.
11. Judges.
Commission on Judicial Discipline's constitutional jurisdiction to resolve claim to early enhanced disability pension prevails over
authority conferred on governor, although commission's expressed assertion of its jurisdiction is not sole, determinative factor
precluding action by governor; judge may not automatically defeat commission's jurisdiction to commence proceedings relating to
alleged misconduct or disability by going to governor with notice of intention to seek early, enhanced disability retirement. Const. art.
6, 21.
12. Judges.
If allegation of judicial misconduct before Commission on Judicial Discipline provides incipient basis for commission action
under state constitution, overriding concerns of public and social policy foreclose any attempt by judge to compel governor to act on
question of entitlement to early, enhanced disability retirement. Const. art. 6, 21; NRS 3.092, subd. 3.
13. Judges.
Long-standing pattern of willful misconduct and abuse of power of contempt, unexcused by any claimed physical or mental
disability, warranted removal from office. Const. art. 6, 4, 21, subd. 6(a); SCR 10.
14. Judges.
Standing alone, show cause order was insufficient to establish that judge abused his power of contempt on particular occasions.
15. Judges.
Orders entered by judge and district court documents relating to judge's contempt decisions were properly admitted and considered
by Commission on Judicial Discipline. NRS 47.130, subds. 1, 2.
16. Judges.
Judge was provided reasonable opportunity to defend against findings of Commission on Judicial Discipline relating to show
cause orders concerning a district court clerk.
17. Judges.
Bad faith is essential element to finding of willful misconduct arising out of issuance of judicial decision. Commission on Judicial
Discipline Rule 9.
18. Judges.
Experienced trial judge's ignorance of proper contempt procedures, without more, may constitute bad faith necessary to finding
of willful misconduct. NRS 22.010, 199.340.
19. Judges.
Finding of bad faith justifying finding by Commission on Judicial Discipline of willful misconduct by judge is warranted if
evidence shows commission of acts which judge knows or should have known were beyond his power, for purpose other than faithful
discharge of judicial duties.
20. Judges.
Findings and conclusions by Commission on Judicial Discipline respecting comments judge made to media, allegedly concerning
pending and impending litigation, did not show willful misconduct as remarks and questions were made and reported in media after
commission conducted probable cause hearing and after commission entered order of formal complaint. Code of Judicial Conduct,
Canon 3, subd. A(1), (6).
21. Judges.
Absent any evidence in record to support even inference that judge abused alcohol, finding of habitual intemperance must be
reversed; finding of habitual intemperance is not justified if conduct of judge demonstrates pattern of conduct and temperament totally
unbecoming member of judiciary but no obvious use of alcohol is shown. Commission on Judicial Discipline Rule 2, subd. 6.
22. Judges.
Conflicting testimony by physicians in connection with hearing on judicial misconduct provided sufficient evidence to support
finding of Commission on Judicial Discipline that misconduct was neither mitigated nor excused by disabling mental or physical
condition.
23. Judges.
Even if Commission on Judicial Discipline exceeded its authority by declaring judicial office vacant, judge was not prejudiced in
light of statements and action showing judge's clear intention never to resume judicial functions under any circumstances. Const. art. 6,
21, subd. 6(a), (b).
24. Judges.
Power of Commission on Judicial Discipline to adjudicate an order of removal or retirement of judge necessarily implied power to
declare office vacant. Const. art. 6, 21, subd. 6(a), (b).
25. Judges.
Judge waived his right to challenge justice's participation in Commission on Judicial Discipline where counsel knew facts
concerning tentative investigation into judge's competence and expressly waived any objection to justice's participation.
OPINION
Per Curiam:
Former District Judge Paul S. Goldman appeals from the final report, findings of fact,
conclusions of law and judgment of the Nevada Commission on Judicial Discipline (the
commission).
Following formal proceedings, the commission found that appellant: (1) had voluntarily
abandoned and relinquished his office; (2) had engaged in willful misconduct and habitual
intemperance, unexcused by any claimed physical or mental disability; and (3) was not and
had not been permanently disabled physically or mentally to perform the duties of his office
in the sense contemplated by the Nevada Constitution and statutes. See Nev. Const. art. 6,
21; NRS 3.092. Accordingly, the commission declared appellant's office vacant, ordered his
removal from office, and rejected appellant's claim for an early, enhanced disability pension.
Further, the commission directed that, at such time as appellant became eligible to receive
retirement benefits, he would be entitled to only such standard, ordinary retirement benefits as
he had earned during the course of his actual and active judicial service. For the reasons and
with the modifications specified below, we affirm the commission's determination.
I. PRELIMINARY COMMENTS
On September 14, 1991, after this appeal was submitted for decision, appellant died in a
tragic traffic accident. The special prosecutor for the commission, attorney Eugene Wait, Jr.,
subsequently filed a formal suggestion of death on the record. Thereafter, on October 24,
1991, appellant's counsel moved this court to substitute Julie Goldman-Wilson, the special
administratrix of appellant's estate, as appellant's personal representative on appeal. See
NRAP 43(a) (where a party dies during pendency of an appeal, any party may suggest the
death on the record and the personal representative of the deceased party may be substituted
as a party).
Although the right of this court to proceed to determination of the appeal under these
circumstances is not in question, see Walker v. Burkham, 68 Nev. 250, 252, 229 P.2d 158,
159 (1951), we have nevertheless carefully considered whether appellant's death has rendered
the issues presented moot. For the reasons stated below, we have concluded that the issues of
first impression revealed on this record are of such importance to the citizens of this State
that an appellate resolution is virtually compelled. See McKay v. Bergstedt, 106 Nev. 808,
811-12, 801 P.2d 617, 620 (1990).
[Headnote 1]
First, in our view, the responsible administration of the judicial disability retirement
system warrants definitive, final appellate review of the commission's determinations
respecting appellant's claim for an early, enhanced disability pension. See, e.g., Judicial
Inquiry and Review Bd. v. Snyder, 523 A.2d 294, 300 n.2 (Pa.) (Nix, C. J., concurring), cert.
denied, 484 U.S. 829 (1987).
In addition, we perceive a need to clarify the circumstances under which the statutory
authority relating to disability retirement conferred upon the governor is preempted by the
commission's constitutional authority to resolve questions of judicial misconduct and
disability.
A second and equally compelling concern is the lack of direct precedent addressing
matters of judicial misconduct to which members of this state's judiciary may turn for
guidance. See In re Weeks, 658 P.2d 174, 176 (Ariz. 1983) (court reached merits of judicial
discipline matter where resolution of issues would provide future guidance to judiciary).
Notably, Nevadans have historically manifested a pronounced sensitivity to potential abuses
of judicial power. Scholars of this state's constitutional process have suggested, for example,
that this sensitivityoriginating from early public dissatisfaction and criticism of the Nevada
Territorial benchexplains the presence of no less than four separate provisions in our
constitution allowing for the removal of state justices and judges during their terms of office.
1
Little or no instructive and guiding local precedent, however, defines, or interprets the
procedures and grounds upon which removal from judicial office is warranted under these
provisions.
For these reasons, we have concluded that the responsible course is to proceed with a
definitive and comprehensive resolution of the issues presented on this record. We
emphasize, however, that our decision is premised not upon a desire to append an ignoble
epitaph to a life and legal career that included many marks of excellence and distinction.
2
Rather, we proceed upon the premise that our comprehensive and conclusive review of this
appeal will establish needed precedent, enhancing the efficacy of Nevada's judicial disability
retirement system, the competence of its judicial officers and public confidence in the
commission to promote and maintain the integrity of the judiciary. See Snyder, 523 A.2d at
298-99 (judge's defeat in election during pendency of disciplinary matter before supreme
court did not end court's responsibility to maintain integrity of judicial administration and to
uphold public respect for the rule of law; court's jurisdiction
__________

1
See Eleanor Bushnell and Don W. Driggs, The Nevada Constitution: Origin and Growth, 21, 136-39 (6th
ed. 1984). See also Nev. Const. art. 7, 2 (removal by impeachment and trial); Nev. Const. art. 7, 3
(legislative removal upon grounds which may or may not be sufficient for impeachment); Nev. Const. art. 2, 9
(removal by recall election); Nev. Const. art. 6, 21 (removal by commission on judicial discipline).

2
We also wish to emphasize that no suggestion is made on this record of judicial corruption, fraudulent
conduct, personal dishonesty, or alcoholic intemperance. As will be seen, the allegations of misconduct against
appellant entailed willful misconduct encompassing the abuse of his power of contempt and improper public
commentary on pending litigation.
over disciplinary matters is only at an end when it issues a final order). See also Matter of
Yaccarino, 502 A.2d 3, 30-31 (N.J. 1985) (predominant interest is preservation of public
confidence in judiciary). In light of the above, we grant the motion to substitute Ms.
Goldman-Wilson as appellant's personal representative.
II. PROCEEDINGS BEFORE THE COMMISSION
In early October 1986, a series of disturbing events focused widespread attention on
appellant's courtroom. Specifically, during the week of October 8, 1986, appellant held three
individuals in contempt of court and ordered them jailed. The individuals included an 87-year
old woman who refused to testify against her son in a criminal matter; a courthouse
maintenance supervisor who appellant determined was responsible for noisy repairs on the
roof of appellant's courtroom; and a Las Vegas Police Commander who appellant unlawfully
held in direct contempt of court under circumstances wherein appellant lacked both subject
matter and personal jurisdiction to take such action. See Goldman v. Bryan, 106 Nev. 30, 787
P.2d 372 (1990); Cunningham v. District Court, 102 Nev. 551, 729 P.2d 1328 (1986).
Concerned that appellant's behavior might constitute an emergency requiring tentative
administrative reapportionment of the public's judicial business, Supreme Court Justice
Thomas L. Steffen travelled to Las Vegas on behalf of this court to inquire further into these
preliminary indications of appellant's unusual judicial conduct. Subsequently, on October 16,
1986, appellant directed a letter to the chief justice of this court, requesting the court to
relieve him temporarily of his responsibility to act on any matters pending before him. In
view of appellant's apparent acknowledgment that he was at least temporarily unfit for
judicial service, the full court entered an Administrative Order on October 19, 1986,
temporarily reapportioning the public's judicial business in the interest of the efficient and
effective administration of justice. See Goldman v. Bryan, 106 Nev. at 32-33, 787 P.2d at
374; Goldman v. Bryan, 104 Nev. 644, 647 n.3, 764 P.2d 1296, 1297-98 (1988). The order
temporarily precluded appellant from attempting to exercise judicial functions without the
prior approval of the court and directed the Chief Judge of the Eighth Judicial District Court
to reassign to other judges of that district any cases then assigned to appellant for trial or
hearing as [was] necessary to accommodate the interests of justice.
3
Id., 104 Nev. at 647
n.3, 764 P.2d at 1297-98.
__________

3
Appellant never thereafter requested this court to rescind the administrative order and continued to collect
his full salary, without performing any judicial functions, from October 19, 1986, until June 16, 1987, when the
commission entered the decision that is the subject of this appeal.
Thereafter, the Nevada Commission on Judicial Discipline commenced an investigation
into appellant's fitness for office. Following an initial investigation, the special prosecutor
filed with the commission an informal complaint against appellant setting forth numerous
allegations of misconduct in office. The commission then scheduled and conducted a hearing
to determine if probable cause existed to believe that appellant had engaged in willful
misconduct or habitual intemperance. See Interim Rule 1.2.
4
Appellant attended the hearing
with counsel.
The special prosecutor presented evidence in the form of documentary exhibits, as well as
the testimony of numerous witnesses. Although appellant's counsel cross-examined
witnesses, the only evidence introduced on appellant's behalf was a letter that he had
previously written to then Governor Richard Bryan. The letter notified the governor of
appellant's intention to seek an early, enhanced disability pension and requested the governor
to appoint three physicians to examine him in accordance with NRS 3.092(3) to determine if
he was permanently incapacitated for medical reasons to perform the duties of his office.
5
The governor, however, subsequently declined to act in accordance with NRS 3.092(3) upon
advice from the attorney general that proceedings were pending or impending against
appellant before the commission. Appellant's unsuccessful attempt to compel the governor to
act was the subject of this court's opinion in Goldman v. Bryan, 106 Nev. 30, 787 P.2d 372
(1990).
Following the hearing, the commission issued written findings, conclusions, and an order
of formal complaint. The order advised appellant that the commission had found probable
cause to believe that appellant had "perpetrated inappropriate and unacceptable judicial
conduct in at least three areas," and that such conduct violated the Nevada Code of
Judicial Conduct, as well as Nev. Const. art.
__________

4
On January 10, 1978, this court adopted the Revised Interim Procedural Rules of the Nevada Commission
on Judicial Discipline (hereinafter cited as Interim Rule
------
). Interim Rule 1.2 was formally included in
those rules upon entry of an Order Adopting Rule For Public Hearings By The Nevada Commission On
Judicial Discipline, filed March 18, 1985. The Interim Rules governed the commission proceedings involving
appellant. They were superseded and replaced, however, on April 29, 1988, when the current and more
comprehensive administrative and procedural rules became effective. See Supreme Court Rules, Part VII,
Administrative and Procedural Rules for the Nevada Commission on Judicial Discipline (hereinafter cited as
Comm. Rule
------
). Although the current rules were not in effect at the time of the proceedings against
appellant and did not govern those proceedings, we refer to them from time to time when the policies they reflect
are relevant to the issues under consideration.

5
NRS 3.092(3) provides in material part:
Any judge . . . who desires to retire voluntarily must give notice in writing to the governor. The
governor shall appoint three physicians licensed to practice medicine in the State of Nevada to examine
the judge and report the results to the governor in writing. If a majority of the physicians is of the opinion
that the judge is permanently incapacitated, physically or mentally, the governor shall approve the
retirement . . .
appellant that the commission had found probable cause to believe that appellant had
perpetrated inappropriate and unacceptable judicial conduct in at least three areas, and that
such conduct violated the Nevada Code of Judicial Conduct, as well as Nev. Const. art. 6,
21, proscribing willful misconduct and habitual intemperance.
First the commission found:
It appears [Judge] Goldman has abused his contempt power by holding or
threatening to hold individuals in contempt of court under circumstances clearly not
warranted by law. See, e.g., Clark County District Attorney v. Dist. Ct., 101 Nev. 843,
710 P.2d 1384 (1985); Bowman v. District Court, 102 Nev. 474, 728 P.2d 443 (1986);
Cunningham v. District Court, 102 Nev. 551, & 555 n.1, 729 P.2d 1328, & 1330 n.1
(1986); and numerous other contempt orders issued by [Judge] Goldman against
Loretta Bowman, Clerk of the District Court, and Mr. Kennard, Supervisor, Clark
County Department of Maintenance. The foregoing represents examples of a course of
conduct brought before the commission.
Second, the commission found that it appeared that appellant had improperly initiated
direct contacts with an individual, whom appellant knew to be represented by counsel, and
had engaged in judicial misconduct in subsequent dealings with that counsel.
6

Third, the commission found:
It appears that [Judge] Goldman made prohibited public commentary to news media
concerning pending or impending litigation. Specifically, [Judge Goldman] made
improper public comments to news media during a television interview and to
newspaper reporters concerning the contempt citation and jailing of Commander
Cunningham. The Supreme Court of Nevada has held that these public comments
violated Canon 3(A)(6) [of the Nevada Code of Judicial Conduct]. See Cunningham [v.
District Court, 102 Nev. 551, 729 P.2d 1328 (1986)].
The commission observed that, although appellant's counsel cross-examined some
witnesses at the probable cause hearing, he presented nothing to controvert the evidence of
inappropriate conduct adduced against him, and instead, seem[ed] to tender the issue that
his inappropriate and unacceptable conduct was the product of his physical or mental
disability."
__________

6
In its final decision of June 16, 1987, the commission specifically found that the evidence relating to this
charge was inconclusive and declined to return a finding of misconduct. Consequently, we are not concerned
with this allegation of misconduct on appeal. See, e.g., Wenger v. Commission on Judicial Performance, 630
P.2d 954, 956 (Cal. 1981).
product of his physical or mental disability. Thus, the commission stated that appellant
evidently contends that he is entitled to immediate enhanced disability retirement benefits,
rather than the standard retirement benefits provided by NRS 3.090. The commission
therefore concluded:
Judge Goldman has conceded that he is not fit for judicial office, and the evidence
demonstrates this. The issue remains as to whether he should receive standard
retirement benefits pursuant to NRS 3.090, or increased benefits based on permanent
physical or mental disability pursuant to NRS 3.092.
Unless [Judge] Goldman can establish to the satisfaction of the Commission that his
actions are the product of mental or physical disabilities which render him so
incompetent and incapacitated that his inappropriate conduct should be excused, he
should be removed from office on constitutional grounds and should receive the
standard pension for past services already earned pursuant to NRS 3.090(2) and (3).
The commission authorized the special prosecutor to arrange for independent experts to
evaluate appellant's mental and physical condition and advised appellant that evidence
pertaining to the extent of the alleged physical or mental disabilities would be received at a
subsequent formal hearing wherein the commission would resolve:
[W]hether Judge Paul S. Goldman's termination of office shall be based on removal for
willful misconduct and/or habitual intemperance with allowance of a standard earned
pension, or whether [Judge] Goldman should be retired as permanently disabled with an
enhanced disability pension immediately payable notwithstanding that he has not yet
reached the standard retirement age of sixty years.
Appellant thereafter filed a verified answer, generally denying the allegations of judicial
misconduct stated in the formal complaint. The answer also contained the following
admissions:
[Appellant] admits he has declared himself permanently incapacitated to perform the
duties of his office; admits that he is in fact incapacitated to perform the duties of his
office for medical reasons; and admits further that because of this incapacitation he
should be retired from his office as District Judge, Eighth Judicial District Court,
Department Ten . . . .
Additionally, the answer set forth affirmative defenses. Appellant asserted that the
commission neither possessed jurisdiction to determine the extent of his disability, nor to
adjudicate his entitlement to an early, enhanced, permanent disability pension.
sion. By exercising jurisdiction over those issues, appellant argued, the commission had
usurped the authority and power vested by the Legislature in the office of the Governor . . .
under NRS 3.092. Appellant's answer thus urged dismissal of all charges of misconduct
contained in the commission's order of formal complaint and specifically requested that
appellant be permitted to retire from judicial office due to permanent incapacity and
granted the retirement benefits due him . . . as set forth in NRS 3.092.
Prior to the formal hearing, appellant filed a motion to amend findings, conclusions and
order of formal complaint and further written answer. Appellant's motion challenged the
factual bases of certain of the commission's findings of probable cause and moved to strike or
amend portions of the commission's order of formal complaint. In response, the commission
issued an order denying appellant's motion in all respects but nonetheless clarifying certain
issues for appellant's benefit. Specifically, the commission clarified that three distinct
issues were pending in the proceedings.
First, the commission noted that appellant had tendered his resignation and request for
early retirement, had acknowledged that he was unable to perform the duties of his office and
had formally submitted to the commission his offer to retire. Although the commission
indicated that, under these circumstances, it would be justified in issuing at the formal
hearing an order declaring appellant's office vacant, it also expressly noted that appellant
would remain subject to a subsequent order of the Commission declaring that he is removed
from office, either pursuant to his request for early retirement, with the appropriate pension,
or for willful misconduct or habitual intemperance . . . .
7
(Original emphasis.)
Second, the commission indicated that, because it had jurisdiction over the original
disciplinary matter, it would also determine at the formal hearing the related questions of
whether [appellant] became permanently disabled in office, whether any alleged misconduct
on his part is excused by such disability, and whether [appellant] is entitled to special,
enhanced disability retirement benefits. The commission ruled that, because appellant had
tendered a claim for a special retirement benefit, it was incumbent on him to prove that he is
entitled to such a benefit.
Third, the commission stated that charges of willful misconduct and habitual intemperance
were also pending before the commission, and the mere fact that appellant had tendered his
resignation on grounds of mental or physical disability did not preclude the commission
from adjudicating those charges.
__________

7
The commission eventually found it appropriate to resolve in a single final decision all the matters at issue.
preclude the commission from adjudicating those charges. The order stressed, however, that
the burden of proving by clear and convincing evidence any facts justifying removal
remained with the special prosecutor and not with Judge Goldman. Finally, the commission
stated that, contrary to the assertions contained in appellant's motion, the prior order of formal
complaint was not a final adjudication of any issue pending before this Commission.
At the subsequent formal hearing, the special prosecutor offered and the commission
ultimately admitted documentary evidence, including exhibits that were previously offered
and admitted at the probable cause hearing.
8
Additionally, the special prosecutor presented
the testimony of two psychiatrists who had been retained on behalf of the commission to
examine appellant prior to the formal hearing. Appellant was also called to testify as an
adverse witness.
In his defense, appellant testified on his own behalf and presented the testimony of
witnesses including a physician of internal medicine, a psychiatrist, and a clinical
psychologist. The commission admitted into evidence extensive medical records and other
exhibits submitted by appellant.
Following the hearing, the commission entered its final report, findings of fact,
conclusions of law and judgment, resolving the three distinct issues that it had previously
defined as pending before the commission adversely to appellant. This appeal followed.
III. STANDARDS OF PROOF AND REVIEW
This is an appeal of first impression in Nevada. Consequently, we deem it appropriate to
set forth the standards of proof and appellate review that have guided our assessment of the
facts and issues disclosed in this record. See generally Matter of Samford, 352 So.2d 1126,
1128-29 (Ala. 1977); Geiler v. Commission on Judicial Qualifications, 515 P.2d 1, 4 (Cal.
1973), cert. denied, 417 U.S. 932 (1974).
__________

8
At the formal hearing the commission deferred ruling on appellant's objections to the admission of the
transcript of the probable cause hearing and the exhibits that had been admitted at the prior hearing. In its final
judgment, the commission declined to admit or consider the transcript of the probable cause hearing because
Commissioner Shipler had not been present to observe the demeanor of the witnesses. As we hereafter discuss,
however, the commission did admit and consider exhibits offered into evidence by the special prosecutor
relating to appellant's issuance of show cause orders, official court transcripts relevant thereto and Nevada
Supreme Court decisions reversing appellant's contempt citations. Further, the commission admitted and
considered exhibits offered by the special prosecutor relating to appellant's public comments concerning pending
and impending litigation.
Quantum of Proof
[Headnote 2]
The rules promulgated by this court for the conduct of commission investigations and
hearings expressly provide that a finding of probable cause to proceed with a formal hearing
must be premised upon a determination that, in reasonable probability, the evidence
apparently available for introduction at a later formal hearing could clearly and convincingly
establish grounds for disciplinary action within the commission's jurisdiction. See Interim
Rule 1.2 (emphasis added); see also Comm. Rule 15. The clear and convincing standard
governs judicial disciplinary proceedings in a majority of jurisdictions.
9
By requiring a lesser
degree of proof than the reasonable doubt standard, the standard acknowledges the
non-criminal and non-punitive nature of judicial disciplinary proceedings. At the same time,
however, it is deferential to the severity of the sanctions that the commission may impose by
requiring a higher degree of proof than the mere preponderance of the evidence standard
that governs most civil proceedings. See In re Diener, 304 A.2d 587 (Md. 1973), cert. denied,
415 U.S. 989 (1974).
10
Therefore, pursuant to the applicable Nevada rules and in light of the
persuasive authorities from other jurisdictions, we conclude that factual findings of the
commission constituting grounds for censure, removal or retirement of a judicial officer must
be premised upon clear and convincing evidence.
11
We note that in the instant case,
__________

9
See ABA Joint Comm. on Professional Discipline of the Appellate Judges' Conference and the Standing
Comm. on Professional Discipline, Standards Relating to Judicial Discipline and Disability Retirement 5.13,
5.17, and Official Commentary at 39, 41 (1978). See also In Re Hanson, 532 P.2d 303, 308 (Alaska 1975);
Geiler, 515 P.2d at 4; In Re Jones, 728 P.2d 311 (Colo. 1986); In Re Rome, 542 P.2d 676 (Kan. 1975); Judicial
Performance Com'n v. Walker, 565 So.2d 1117 (Miss. 1990); In Re Jordan, 622 P.2d 297 (Or. 1981).

10
As the court noted in Diener, judicial discipline proceedings are neither civil nor criminal in nature; they
are merely an inquiry into the conduct of a judicial officer the aim of which is the maintenance of the honor and
dignity of the judiciary and the proper administration of justice rather than the punishment of the individual. Id.
at 594.

11
Notably, this court has previously stated that proof of accusations against a county official, in statutory
proceedings concerning that official's removal from office, should attain the dignity of exceeding a reasonable
doubt. Jones v. District Court, 67 Nev., 404, 418, 219 P.2d 1055, 1062 (1950) (quoting Ex Parte Jones and
Gregory, 41 Nev. 523, 173 P. 885, 888 (1918) (McCarran, C. J., concurring)). Jones, however, is clearly
distinguishable from the instant case. For example, judicial discipline commission proceedings differ
substantially from the summary statutory proceedings at issue in Jones. In fulfilling its constitutional duty to
promulgate rules for the conduct of commission proceedings, see Nev. Const. art. 7, 4, the supreme court
the commission correctly discerned that the clear and convincing evidence standard governed
its proceedings.
Burden of Proof
[Headnotes 3, 4]
The commission rules now in effect specifically provide that the prosecuting officer has
the burden of proving, by clear and convincing legal evidence, the facts justifying discipline
in conformity with averments of the formal statement of charges. See Comm. Rule 27.
12
A
judge who is the subject of formal allegations of misconduct is therefore not required to
present evidence in the judge's own defense. Nonetheless, persuasive authority suggests that a
judge who is the subject of formal allegations of misconduct must assume the burden of proof
with respect to affirmative defenses.
13

As a general proposition, we agree that the burden is properly assigned to a respondent
judge to come forward with evidence supporting asserted affirmative defenses. Further, a
mere preponderance of evidence is sufficient to establish an affirmative defense. We note,
however, that where the requisite probable cause has been found and misconduct or disability
is thereafter alleged in a formal statement of charges, the commission's prosecuting officer
must always retain the burden of establishing the elements essential to a finding of
misconduct or permanent physical or mental disability by way of clear and convincing proof.
See generally Kelso v. State, 95 Nev. 37, 588 P.2d 1035 (states may require a defendant to
prove by a preponderance of evidence a defense that does not negate any element of the crime
charged, but if the defense, by its nature, disproves a fact essential to the offense, the burden
may not be shifted from the prosecution), cert. denied, 442 U.S. 921 (1979).
__________
has afforded respondent judges far greater procedural protections and safeguards than were provided to the
accused official involved in the Jones case. Thus, in commission proceedings, the clear and convincing evidence
standard poses none of the concerns which influenced the court's reasoning in Jones.

12
Although this specific rule was not in effect during the course of the proceedings involving appellant, it
codifies the proper and applicable standard and burden of proof.

13
See ABA Joint Comm. on Professional Discipline of the Appellate Judges' Conference and the Standing
Comm. on Professional Discipline, Standards Relating to Judicial Discipline and Disability Retirement 5.13;
Official Commentary at 39 (1978) (respondent judge has the burden of proof with respect to affirmative
defenses). See also John J. Todd and M. L. Proctor, Burden of Proof, Sanctions, and Confidentiality, 54
Chi.Kent L. Rev. 177, 179 n. 13 (1977) ([t]he respondent judge still has the responsibility to introduce
evidence supporting affirmative defenses, such as misconduct due to mental or physical disability at the time the
act was committed).
[Headnote 5]
Moreover, any commission finding entitling a judge to early retirement on an enhanced
disability pension must be premised upon clear and convincing evidence demonstrating a
mental or physical disability which prevents the proper performance of [the respondent
judge's] judicial duties and which is likely to be permanent in nature. Nev. Const. art. 6,
21(6)(b). Entitlement to an early, enhanced, permanent disability retirement is a special
benefit potentially obligating the State of Nevada to extended payments of substantially
greater cost to the state than a standard unenhanced pension. As the commission rules now
reflect, where a respondent judge's entitlement to such a special benefit is in issue, regardless
of whether the issue is raised in a formal statement of charges or, as here, by the respondent
judge as an affirmative defense, the commission may not commit the state to such an
enhanced expenditure unless clear and convincing evidence demonstrates a disabling mental
or physical condition that will likely be permanent in nature.
14
See generally Ex Parte
McFaddin, 175 S.E.2d 218 (S.C. 1970) (rejecting judge's petition seeking permanent
disability retirement for failure to meet statutory requirement which the court interpreted to
mandate presentation of clear and convincing evidence that alleged disability would continue
throughout judge's lifetime regardless of medical and other treatment). In our view, the
public's right to the fiscally responsible administration of the judicial retirement system
demands no less. It should be clear, however, that where a respondent judge is seeking to
avoid involuntary retirement, an affirmative defense raised by that judge concerning the
judge's disabled status need be proved only by a preponderance of evidence.
Standards of Review
[Headnote 6]
The relevant constitutional provision defining this court's jurisdictional role in an appeal
challenging commission action specifies as follows:
A justice of the supreme court or a district judge may, in addition to the provision of
article 7 for impeachment, be censured, retired or removed by the commission on
judicial discipline.
__________

14
Comm. Rule 33 now provides in pertinent part:
[C]onduct or omissions allegedly showing disability must be such as to demonstrate clearly and
convincingly to the mind of any reasonable person that the respondent has been performing official duties
in a manner substantially inconsistent with any reasonable view of judicial process. All conduct or
omissions relied upon must be alleged with particularity, and must show a substantial disability which is
likely to be permanent.
censured, retired or removed by the commission on judicial discipline. A justice or
judge may appeal from the action of the commission to the supreme court, which may
reverse such action or take any alternative action provided in this subsection.
Nev. Const. art. 6, 21(1). Absent the prosecution of an appeal to this court by an aggrieved
judge, this provision unambiguously vests the commission with final authority to order the
censure, removal or retirement of a judicial officer. A commission decision to censure,
remove or retire is not merely advisory or recommendatory in nature; it is of independent
force and effect absent perfection of an appeal to this court.
This broad constitutional authority distinguishes Nevada's commission from similar
commissions in other jurisdictions. The California Commission on Judicial Performance, for
example, is constitutionally empowered only to make recommendations concerning the
imposition of disciplinary sanctions. See Cal. Const. art. 6, 18(c). Formal approval or
further action by the California Supreme Court is necessary before any disciplinary sanctions
may be imposed. Id.
In declaring the standard of review to be applied under this recommendation system, the
California Supreme Court has observed:
Were a recommendation of independent force and effect absent further action by this
court, our review of the evidentiary basis for that recommendation might properly be
limited to a determination whether the Commission's findings of fact were supported by
substantial evidence. Under such a standard of review we would not be free to disregard
the Commission's findings merely because the circumstances involved might also be
reasonably reconciled with contrary findings of fact.
Geiler, 515 P.2d at 4. In Geiler, however, the court further noted that the California
Constitution expressly entrusts that state's high court with the sole responsibility and authority
to render the ultimate, dispositive decision to censure or remove . . . . Id. In exercising that
authority, the California court independently evaluates the record evidence and renders its
own findings of fact and conclusions of law. Judicial disciplinary procedures in many other
jurisdictions are patterned after California's pioneering judicial disciplinary procedures and
similarly require review and final approval of commission recommendations by a higher
tribunal.
15
Thus, the express authority vested in this court under article 6, section 21 of
the Nevada Constitution contrasts sharply with the ultimate and dispositive constitutional
authority conferred upon courts of review in these "recommendation" jurisdictions. It is
readily apparent that by deviating from the California model, the drafters of article 6,
section 21 of the Nevada Constitution rejected California's "recommendation" system in
favor of procedures intended to vest a far greater degree of authority in Nevada's
commission.16 See, e.g., Matter of Samford, 352 So.2d 1126, 1129 {Ala.
__________

15
See In re Inquiry Concerning a Judge, 762 P.2d 1292, 1294 (Alaska 1988); In re Kelly, 238 So.2d 565,
571 (Fla. 1970), cert. denied, 401 U.S.
Thus, the express authority vested in this court under article 6, section 21 of the Nevada
Constitution contrasts sharply with the ultimate and dispositive constitutional authority
conferred upon courts of review in these recommendation jurisdictions. It is readily
apparent that by deviating from the California model, the drafters of article 6, section 21 of
the Nevada Constitution rejected California's recommendation system in favor of
procedures intended to vest a far greater degree of authority in Nevada's commission.
16
See,
e.g., Matter of Samford, 352 So.2d 1126, 1129 (Ala. 1978) (where adoption of constitutional
amendment replaced old recommendation system of judicial discipline with new system
merely authorizing appeal, Alabama court's scope of review was restricted by such
amendment to a determination of whether the record shows clear and convincing evidence to
support the order of the Court of the Judiciary).
[Headnote 7]
We conclude, therefore, that the Nevada Constitution does not contemplate this court's de
novo or independent review of factual determinations of the commission on appeal. To the
contrary, the constitution confines the scope of appellate review of the commission's factual
findings to a determination of whether the evidence in the record as a whole provides clear
and convincing support for the commission's findings. The commission's factual findings may
not be disregarded on appeal merely because the circumstances involved might also be
reasonably reconciled with contrary findings of fact. See Samford, 352 So.2d at 1129; cf.
Geiler, 515 P.2d at 4.
[Headnote 8]
This court, of course, is not bound by the commission's conclusions of law. Cf. In re Jones,
728 P.2d 311, 313 (Colo. 1986). Moreover, where an appeal from the commission's order of
censure, removal or retirement is taken, this court is expressly empowered to reverse such
action or take any alternative action provided in this subsection. Nev. Const. art. 6, 21(1).
Thus, on appeal, we are specifically
__________
962 (1971); Matter of Del Rio, 256 N.W.2d 727, 735 (Mich. 1977), appeal dismissed, 434 U.S. 1029 (1978);
Matter of Field, 576 P.2d 348 (Or. 1978). See also American Judicature Society, Judicial Conduct
Organizations, Governing Provisions (Kathleen Sampson and Joseph A. Cahill 1984) (detailing constitutional
and statutory provisions of various jurisdictions); Shaman, Lubet and Alfini, Judicial Conduct and Ethics,
13.01 at 381 (1990).

16
Notably, such an intent is also evidenced by the care taken by the drafters to insure fairness, competence,
non-partisanship and geographic diversity in the commission's makeup. The commission, for example, must be
composed of two justices or judges appointed by the supreme court, two attorneys appointed by the state bar,
and three lay members appointed by the Governor. See Nev. Const. art. 6, 21(2). Moreover, an appointing
authority may not appoint more than one resident of any county, nor more than two members of the same
political party. See Nev. Const. art. 6, 21(4).
on appeal, we are specifically enjoined by the constitution to exercise our independent
judgment regarding the appropriate sanction warranted by factual findings properly adduced
by the commission. As the Alaska Supreme Court has observed, albeit under a
recommendatory system:
It would be tantamount to an abdication of our constitutional and statutory obligations
if we were to automatically adopt the commission's sanction recommendation. In every
case of this character we must insure that procedural due process has been accorded the
judicial officer proceeded against and that requisite findings of fact have been made and
are supported by substantial evidence. We are further obligated to decide whether the
recommended sanction is justified by the record and is in accord with the objectives of
the commission as reflected in the relevant constitutional and statutory provisions.
See In re Inquiry Concerning a Judge, 762 P.2d 1292, 1294 (Alaska 1988). With these
standards in mind, we turn to a review of the commission's specific findings and conclusions.
IV. THE CLAIM OF PERMANENT DISABILITY
17

During the formal hearing, the special prosecutor presented the expert testimony of Dr.
William Thornton and Dr. Lynn B. Gerow, both licensed psychiatric physicians retained on
behalf of the commission to examine appellant. Dr. Thornton testified that, in his opinion,
appellant was suffering from a disability that is a direct result of his being depressed. Dr.
Thornton, however, did not consider that disability to be by any means permanent.
Assuming appropriate treatment with anti-depressant medications and some psychotherapy,
Dr. Thornton's prognosis for appellant's chances of functioning in a law-related capacity was
excellent. Dr. Gerow similarly testified that appellant was not permanently mentally
incapacitated. Rather, Dr. Gerow stated, appellant was suffering from a type of depression
that was a "temporary impairment."
__________

17
We note that appellant has not raised in this appeal any specific assignments of error contesting the
commission's determinations rejecting his claim to an early, enhanced disability pension. The general, prevailing
rule in appellate proceedings is that prejudicial error is never presumed and must be made to affirmatively
appear. See Holland Livestock v. B & C Enterprises, 92 Nev. 473, 553 P.2d 950 (1976). Generally, appellate
affirmance of a lower tribunal's judgement is warranted where such error is neither alleged, demonstrated, nor is
plainly apparent on the face of the record. See Sievers v. County Treas., Douglas Co., 96 Nev. 819, 618 P.2d
1221 (1980). Although this court's summary affirmance of the commission's determinations respecting
appellant's claim to an early disability retirement might well be warranted on this basis alone, we have
nonetheless thoroughly reviewed the commission's determinations respecting appellant's claim of permanent
disability and, as discussed below, our detailed review of the record reveals no prejudicial error whatsoever.
appellant was suffering from a type of depression that was a temporary impairment. With a
leave of absence and systematic therapy, Dr. Gerow opined, appellant could return to
whatever legal pursuits he wished.
Appellant presented the testimony of Dr. Lance Mayor (a physician of internal medicine),
Dr. Juan Carlos Laborati (a physician and psychiatrist), and Dr. Joan Owen (a clinical
psychologist). Dr. Mayor had previously treated appellant for high blood pressure. He
conceded that he would have to defer to a psychiatric physician respecting appellant's mental
fitness for the bench. Because of the stress associated with being a judge, however, he had
encouraged appellant to consider leaving the bench. Moreover, Dr. Mayor stated that in his
view appellant was to a reasonable medical certainty permanently disabled from being a
judge.
Based on visits with appellant between December 1985 and May 1986, Dr. Laborati
diagnosed appellant as afflicted with major reactive depression aggravated by pre-existing
back problems and hypertension that complicated the presence of the depression. In his
opinion, appellant was permanently incapacitated from performing the functions of a judge.
Dr. Laborati testified that it was possible, but not probable, that appellant could return to
the bench. If appellant was still his patient, the doctor stated, he would advise against
appellant's return to judicial duties because exposure to continuous stress could have a
deleterious effect on appellant's depression. Dr. Laborati further indicated, however, that
appellant was not mentally incapacitated from any kind of productive work. In Dr. Laborati's
view, appellant could do anything but be a judge.
Dr. Owen, a clinical psychologist, testified that she had seen appellant professionally
approximately twenty-five or thirty times since April of 1987. Her treatment focused on
issues of stress, career options, family issues. Over the special prosecutor's objection that
Dr. Owen was not qualified to render an expert medical diagnosis of appellant's mental or
physical condition, the commission permitted her to state her opinion as a therapeutic
counselor that appellant was afflicted with major depression and that he was permanently
incapacitated from returning to the bench.
Additional evidence before the commission relating to the alleged permanent nature of
appellant's claimed disability consisted of exhibits submitted by appellant detailing his
medical history. The medical records indicated that appellant had been hospitalized numerous
times since 1982 with various complaints, including lower back pain, giant hives, ulcers,
hypertension, headaches, fainting spells and episodes of visual blurring and weakness in his
limbs. On one such occasion in December of 19S5, appellant was admitted to a hospital
emergency room after his secretary found him on the floor of his chambers in an "altered
state of consciousness."
1985, appellant was admitted to a hospital emergency room after his secretary found him on
the floor of his chambers in an altered state of consciousness. He was subsequently
diagnosed as suffering from depression, placed on medication and discharged in stable health.
He was again admitted briefly to the hospital in February 1986 after a fainting spell and was
discharged with instructions to relax and get some rest. On another occasion in April 1986,
appellant was hospitalized and diagnosed as suffering from probable depression and anxiety.
Following treatment with medication, he improved rapidly and was discharged feeling much
better. On October 17, 1986, appellant again sought treatment in a medical facility in
Orange, California. The records indicate that appellant was diagnosed as suffering from a
very real bipolar disorder which would require longstanding psychiatric support. The
records further indicate that, although appellant was discharged in fair condition, his mental
status at the time of discharge was still one of a person given to rapid cycling mood swings
but he was cooperative and comfortable.
The commission returned the following findings respecting the permanency of appellant's
alleged disability:
1. Although [Judge Goldman] claims to be permanently disabled to perform the
duties of his office, this claim is contradicted by responsible medical testimony
indicating that, at most, [Judge Goldman] is suffering from a condition of depression
and stress which with proper treatment should only be temporary. The Commission
credits and accepts this testimony. The Commission further rejects as unpersuasive any
ostensibly contrary testimony of [Judge Goldman's] expert witnesses.
2. In light of the foregoing, the Commission finds that [Judge Goldman] has failed
to establish any claim for a disability pension, because even assuming, arguendo, he is
or has been disabled, [Judge Goldman] has failed to establish that such disability is
likely to be permanent in nature.
3. To the contrary, the Commission affirmatively finds that [Judge Goldman] is not,
and has not been, physically or mentally disabled to perform the duties of his office, in
the sense contemplated by the Nevada Constitution and statutes.
18
4.
__________

18
See Nev. Const. art. 6, 21(6)(b) (commission may retire a judge only where advanced age interferes with
the proper performance of the judge's duties or where a mental or physical disability prevents the proper
performance of judicial duties and is likely to be permanent in nature); NRS 3.092 (a judge is entitled to early
enhanced disability pension only when he is permanently incapacitated, physically or mentally . . .).
4. The Commission concludes, as a matter of law, that even if [Judge Goldman] had
been suffering from a disability at the time of some of the aforementioned misconduct,
any such disability would not justify the Commission in awarding him an enhanced
pension for such disability, because it does not appear that any such disability was, or is
likely to be, permanent in nature. Nev. Const. art. 6, 21(6)(b).
[Headnote 9]
Our review of the record reveals clear and convincing evidentiary support for the
commission's findings. As noted, Drs. Thornton and Gerow both testified that appellant's
depression was in the nature of a temporary impairment which was by no means permanent.
Dr. Gerow's testimony specifically refuted the evidence contained in the medical records
indicating that appellant may have suffered from a long-term bipolar disorder.
19
The
testimony of Dr. Gerow and Dr. Thornton provided a clear and convincing factual basis for
finding that, with medication and systematic treatment, appellant could function as a judge
and that, therefore, appellant's alleged disability was not likely to be permanent in nature.
Even discounting that expert testimony, however, the record provides substantial support
for the commission's finding that appellant failed in his burden to demonstrate that he was
permanently disabled from performing the duties of his office in the sense contemplated by
the Nevada Constitution and statutes. Although evidence in the record indicates that appellant
suffered from intermittent bouts of depression and stress-related ailments, other testimony
and evidence was adduced at the hearing establishing that appellant's condition stabilized or
rapidly improved on the occasions when he received a systematic course of prescribed and
supervised treatment. Such treatment enabled him to remain quite functional. It was also
established during the hearing, for example, that in the early 1980's appellant was able to
preside over some of the most complex litigation ever to come before the Eighth Judicial
District Court. Moreover, the only testimony presented by appellant from an expert qualified
to render a medical and psychiatric opinion was at best ambiguous. In our view, the record as
a whole provides a sound basis to discount Dr. Laborati's testimony that appellant could do
anything but be a judge.
__________

19
Specifically, Dr. Gerow observed that the doctor responsible for that diagnosis of bipolar disorder
provided no basis for the diagnosis, described no manic behavior, mentioned no previous manic episodes in his
discharge summary or his history and, thus, laid no foundation for that diagnosis. Further, in rejecting the
diagnosis of bipolar disorder, Dr. Gerow noted that Judge Goldman said he had not had any previous manic
episode when I examined him.
thing but be a judge. See Ex Parte McFaddin, 175 S.E.2d 218 (S.C. 1970).
[Headnote 10]
Additionally, we note that the applicable constitutional and statutory provisions do not
establish procedures allowing for periodic or future review of a claimant's disability status
once an early, enhanced judicial disability pension has been awarded. The absence of any
such provisions persuades us that an early judicial disability pension may be awarded only
where clear and convincing evidence establishes that a judge is truly in extremis and that,
even with medical treatment, the judge will not be likely to recover his health and capacity to
perform the duties of his office.
20
Compare Ex Parte McFaddin, 175 S.E.2d 218, 219-20
(S.C. 1970) (judge's petition for permanent disability retirement denied where medical reports
failed to show that medical treatment was not available to provide relief from emotional
discomforts and other conditions) with State Ex Rel. Simms v. Simmons, 711 P.2d 949, 952
(Okl.Jud.App.Div. 1985) (retirement compensation awarded where seventy-year old judge
demonstrated erratic, bizarre behavior and erosion of judicial ability and temperament
following surgery and radiation therapy for progressive and worsening cancer and other
physical maladies). In our view, on the basis of the evidence disclosed in this record, any
contrary findings by the commission authorizing appellant's retirement on an early, enhanced
disability pension would have manifestly expanded the constitutional and statutory
intendment of the disability provisions far beyond that which was envisioned by the
legislature or the electorate.
__________

20
We further note that on October 1, 1990, shortly before the oral argument in this appeal, the special
prosecutor moved this court to dismiss as moot any issues pertaining to appellant's alleged entitlement to
permanent disability status. The special prosecutor requested this court to take judicial notice of official records
demonstrating that appellant had in fact eventually returned to work as an assistant district attorney in Nye
County, Nevada, and that, in a subsequent election bid for the Office of Nye County District Attorney, appellant
held himself out as fully qualified and capable of serving in that position. We have concluded, however, that our
review is properly confined to the record made and considered by the commission. Thus, in reviewing the
propriety of the commission's factual and legal determinations respecting appellant's physical and mental status,
we have not considered appellant's subsequent return to work as an assistant prosecutor or his bid for election to
demanding public office. Accordingly, we deny the special prosecutor's motions of October 1, 1990.
Nonetheless, we note that the matters raised in the motions support our conclusion that the constitutional and
statutory provisions relating to judicial disability retirement should be strictly construed to apply only where
clear and convincing evidence demonstrates that a judge, who is truly in extremis, is unable to function in office
and is unlikely to recover the capacity to function.
We note, as did the commission, that the record does contain ostensibly conflicting
evidence. The commission, however, was entitled to rely on the expert testimony of Dr.
Thornton and Dr. Gerow, and it was for the commission to determine the weight and
credibility to give to any conflicting testimony or evidence. See, e.g., Ogden v. State, 96 Nev.
697, 615 P.2d 251 (1980) (when there is conflicting psychiatric testimony at a competency
hearing, the trier of fact resolves the conflicting testimony of the witnesses). As noted above,
we are not free to disregard the factual determinations of the commission simply because the
circumstances involved might also be reconciled with contrary findings of fact. Even
assuming, without suggesting, that some evidence may have legitimately supported such
contrary findings, we are obligated to uphold the factual findings of the commission unless
they are unsupported by clear and convincing evidence in the records as a whole. The
commission's findings are adequately supported by the evidence. Therefore, we affirm the
commission's determinations that appellant was not entitled to an early, enhanced permanent
disability pension, and that, instead, he was entitled only to such standard and ordinary
retirement benefits as he had earned during the course of his actual and active judicial service.
See Powers v. Bd. of Control of Jud. Ret. Fund, 434 So.2d 745 (Ala. 1983).
Appellant asserted the affirmative defense in the proceedings below that the commission
lacked jurisdiction to resolve his alleged entitlement to an early, enhanced permanent
disability retirement and that, therefore, the commission had usurped the authority and
power vested by the Legislature in the office of the Governor of the State of Nevada pursuant
to NRS 3.092. In Goldman v. Bryan, 106 Nev. 30, 787 P.2d 372 (1990), we previously
addressed the commission's jurisdiction in a somewhat different context.
[Headnote 11]
Bryan entailed a challenge to an order of the district court denying appellant's petition for a
writ of mandamus. The petition sought to compel the governor to act on appellant's request to
retire under NRS 3.092(3). We held in Bryan that the commission derived its authority to
determine appellant's entitlement to disability retirement directly from the constitution. See
Nev. Const. art. 6, 21(1), (6) and (7). Additionally, we affirmed the district court's
conclusion that the applicable provisions of the constitution constitute the supreme law of the
state and control over any conflicting statutory provisions. See Robison v. District Court, 73
Nev. 169, 313 P.2d 436 (1957) (provision in constitution respecting impeachment of state
officer controls over conflicting legislative enactment providing statutory scheme for
removal). Thus, we held that the commission's constitutional jurisdiction to resolve
appellant's claim to an early, enhanced disability pension prevailed over the authority
conferred upon the governor under the provisions of NRS 3.092{3).
we held that the commission's constitutional jurisdiction to resolve appellant's claim to an
early, enhanced disability pension prevailed over the authority conferred upon the governor
under the provisions of NRS 3.092(3). Bryan, 106 Nev. at 37, 787 P.2d at 377.
Nevertheless, we also emphasized in Bryan that the commission had in fact expressly
assumed jurisdiction over the issue of appellant's entitlement to an early, enhanced disability
retirement prior to the time appellant filed his petition in the district court seeking to compel
the governor to act in accordance with NRS 3.092(3). We concluded under those
circumstances that the commission's express assertion of its primary constitutional
jurisdiction, prior to the date appellant petitioned the district court for a writ of mandamus
was completely dispositive of the issues presented by appellant's petition for extraordinary
relief. Id. at 43, 787 P.2d at 381. Additionally, we stated that although mandamus may have
been available to compel the Governor to act in the absence of any pending Commission
proceedings, once the Commission exercised its constitutional authority and jurisdiction, the
remedy of mandamus was foreclosed and appellant could not utilize NRS 3.092(3) as a
means of escaping the Commission's disciplinary authority. Id. at 38, 787 P.2d at 378
(emphasis added). We take this opportunity to clarify our precise holding in Bryan to stress
that the commission's express assertion of its jurisdiction is not the sole, determinative
factor precluding action by the governor pursuant to NRS 3.092(3).
Our holding in Bryan was never intended to imply that a judge may automatically defeat
the commission's jurisdiction to commence proceedings relating to the alleged misconduct or
disability of that judge by racing to the governor with a notice of intention to seek early,
enhanced disability retirement in accordance with NRS 3.092(3). As we noted in Bryan, the
commission's jurisdiction derives directly from the constitution. That constitutional authority
can neither be precluded nor ousted by a judge's notice to the governor stating an intention to
retire pursuant to NRS 3.092(3). See generally Quinn v. State Com'n on Judicial Conduct,
430 N.E.2d 879, 885 (N.Y. 1981) (judge charged with misconduct may not generally avoid
consequences of removal for cause by racing to resign); Matter of Probert, 308 N.W.2d 773,
775-77 (Mich. 1981) (judge should not have the power, simply by leaving office, to
short-circuit investigation of allegations against him); see also Powers v. Bd. of Control of
Jud. Ret. Fund, 434 So.2d 745 (Ala. 1983); In re Peoples, 250 S.E.2d 890 (N.C. 1978), cert.
denied, 442 U.S. 929 (1979).
Overriding considerations of public policy, as well as the underlying policy and purpose of
discipline commission proceedings, demand a thorough and comprehensive investigation and
adjudication where mixed questions of misconduct and disability are potentially at issue.
adjudication where mixed questions of misconduct and disability are potentially at issue. The
commission, rather than the Office of the Governor, is the proper entity exclusively
empowered to act in the first instance, whenever issues of possible misconduct are presented
along with issues of disability in a given case . . . . Bryan, 106 at 41, 787 P.2d at 379.
An untenable and intolerable situation would arise, for example, if a judge who had
committed misconduct in office could foreclose the commission's jurisdiction by invoking the
provisions of NRS 3.092(3) and simply tendering to the governor a notice of intention to seek
an early, enhanced disability retirement. The statute contemplates that the governor's
authority to retire a judge may be invoked only where the matters in controversy are limited
to the permanency and the extent of the judge's disability.
[Headnote 12]
The commission, on the other hand, must and does have the constitutional authority to
consider and balance the competing and conflicting social and public policy interests at issue
where the matters in controversy include mixed questions of misconduct and disability. In
evaluating whether to retire or remove, the commission, unlike the governor, may consider
the policy concerns underlying NRS 3.092(3), i.e., to encourage and permit a seriously
disabled judge to step down from office with dignity and some protection from the specter of
financial ruin. Further, the commission may take into account the equally compelling social
and public policy against permitting an undeserving judge to retire with an early, enhanced
pension and thus benefit from or avoid the consequences of misconduct. The commission
possesses the authority to weigh and balance all the equities as well as the rights of the judge
and the public's interest in the competence and ethical integrity of the bench. Thus, where, as
here, allegations of judicial misconduct provide an incipient basis for commission action
under the state constitution, overriding concerns of public and social policy, as well as the
commission's preeminent constitutional authority to resolve all potential questions of
misconduct and entitlement to early, enhanced disability retirement, must foreclose any
attempt by a judge to compel the governor to act in accordance with NRS 3.092(3). The
proceedings before the commission must be permitted to run their full constitutional course
from their inception to their conclusion.
V. WILLFUL MISCONDUCT: ABUSES OF POWER OF CONTEMPT
The commission found that appellant abused his power of contempt on eight separate
occasions, thereby demonstrating a long-standing pattern of willful misconduct warranting
appellant's removal from office.
long-standing pattern of willful misconduct warranting appellant's removal from office. The
evidence admitted by the commission at the formal hearing relating to these incidents is
summarized as follows:
The Clark County District Attorney Incident
On February 27, 1985, appellant held the Office of the Clark County District Attorney in
direct contempt of court because a deputy district attorney was unable to announce at a
calendar call whether or not the state would be ready to try a criminal case on a date
previously set for trial. The complete facts regarding this episode are detailed in a prior
opinion of this court reversing the contempt citation issued by appellant. See Clark Cty. Dist.
Atty. v. District Court, 101 Nev. 843, 710 P.2d 1384 (1985).
21
The commission admitted
into evidence a certified copy of the opinion at the formal hearing. Other evidence admitted
and considered by the commission included exemplified copies of appellant's order to show
cause and his order of contempt. Additionally, appellant testified extensively regarding this
incident at the formal hearing.
The evidence established that this court reversed appellant's contempt order because the
actions of the deputy district attorney did not constitute a contemptuous act under either NRS
22.010 or NRS 199.340, and because [t]here was no showing that anyone connected with the
Clark County District Attorney's Office deliberately or recklessly disregarded their duties
with respect to [Judge Goldman's] court. An oversight occurred, but it did not disrupt the
court or prejudice the defendant. Clark Cty. Dist. Atty., 101 Nev. at 845-46, 710 P.2d at
1386. Notwithstanding this court's holding, however, appellant insisted in his testimony
before the commission that his order of contempt was entirely appropriate and that his
various actions entailing issuance of show cause orders and contempt citations in general
had all been "quite correct."
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21
The facts as stated in that opinion reveal that at a calendar call in a criminal case, appellant inquired
whether the parties would be ready to go to trial the following week, as previously scheduled. After the deputy
district attorney in attendance indicated that he could not say whether the state was ready to proceed because he
did not have the case file, appellant held the district attorney in direct contempt of court and assessed a fine
against the district attorney of $250. Appellant issued the contempt citation notwithstanding defense counsel's
request for a continuance. Additionally, appellant ordered the district attorney to appear before him to show
cause why the case should not be dismissed. At the show cause hearing, a deputy district attorney attempted to
explain that a clerk in the district attorney's office had inadvertently failed to send the case file over to the court
at the previous calendar call, and consequently, the team deputy who appeared before the court at the prior
calendar call was unable to answer the judge's questions. At the conclusion of the hearing, appellant quashed the
order to show cause, but amended his contempt order, sua sponte, to indicate that the Office of the Clark County
District Attorney, was being fined rather than the district attorney personally. Id. at 844-45, 710 P.2d at 1385.
appropriate and that his various actions entailing issuance of show cause orders and contempt
citations in general had all been quite correct. A portion of appellant's testimony respecting
this specific incident is set forth in the margin.
22
Based upon this evidence and testimony,
the commission found that appellant abused the contempt power vested in him as a judge.
The Gordon Yach Incident
The evidence adduced at the formal hearing in this respect consists entirely of exemplified
copies of an order to show cause issued by Judge Goldman, an affidavit of an attorney
attached to that order and an acknowledgement of receipt of service of the order to show
cause. These documents merely establish that, on June 20, 1986, appellant issued an order
directing Gordon Yach, the Director of the Clark County Detention Center, to show cause
why he should not be adjudged guilty of contempt of court and punished for his failure to
immediately transport a prisoner to appellant's courtroom when requested to do so on June
18, 1986 at 4:45 p.m. The order further provided that Mr. Yach's failure to appear at the
scheduled show cause hearing would result in the issuance of a bench warrant for the arrest
and confinement of Mr. Yach. An attorney's affidavit attached to the order indicates that a
jury returned a verdict against a criminal defendant at 4:45 p.m. on June 18, 1986, and the
Clark County Detention Center was immediately notified to bring the prisoner to appellant's
courtroom. Repeated calls were thereafter placed to the Detention Center to ascertain the
delay in the prisoner's presence, and the Detention Center did not deliver the prisoner
until 5:20 p.m., a mere thirty-five minutes after the initial call.
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22
The transcript reflects that the following exchange occurred between the special prosecutor and appellant:
Q. [The Special Prosecutor] Okay. All right. Then the Supreme Court found that there was no
contemptuous act as defined by the statute?
A. [Appellant] Are you asking me a question, sir?
Q. Question: Is it true that NRS Chapter 22 and NRS Chapter 199 list the acts or omissions which
constitute contempt?
A. I'll have to take your word for it. I'm sure they do.
Q. So you can find things in contempt without knowing what the statute says about that?
A. Oh, yes, I think so.
Q. That's pretty easy to do?
A. Oh, yes, I think so.
Q. Okay. Which subsection of which chapter of NRS were you relying on when you found the District
Attorney
A. I don't know what section it's in sir. I know it was interfering with the orderly process of the Court.
Q. Well, could you tell us why the Supreme Court couldn't find the subsection that you were using to
find the office in contempt?
[Appellant's Counsel]: Objection.
[Appellant]: I challenge anybody to explain the rationale of the Supreme Court to me.
Center to ascertain the delay in the prisoner's presence, and the Detention Center did not
deliver the prisoner until 5:20 p.m., a mere thirty-five minutes after the initial call. Although
no further evidence respecting this incident was adduced at the formal hearing, the
commission found that appellant abused the contempt power vested in him and that
threatening to hold Mr. Yach in contempt was inappropriate, and tended to degrade the
judicial process.
The First Loretta Bowman Incident
The order of contempt issued by appellant in this instance was reversed by this court in
Bowman v. District Court, 102 Nev. 474, 728 P.2d 433 (1986). As that opinion relates, on
September 17, 1985, appellant held Loretta Bowman, the Clerk of the Eighth Judicial District
Court, in contempt of court, sentenced her to serve twenty days in the county jail, and
imposed sanctions of $500. Appellant entered his order because a deputy court clerk had
accepted and filed a motion to dismiss in a civil action on the day after a default had been
entered in the same case. Id. at 476, 728 P.2d at 434.
In Bowman, this court concluded that neither the actions of the court clerk nor the actions
of her deputy constituted a contemptuous act under NRS 22.010 or NRS 199.340. Rather,
because the clerk and her deputies had a ministerial duty to accept and file documents and no
authority to pass upon the validity of instruments presented for filing, this court concluded
that appellant held Ms. Bowman in contempt for conscientiously fulfilling her
responsibilities as court clerk. Id. at 478, 728 P.2d at 435.
A certified copy of this court's opinion and exemplified copies of appellant's order to show
cause and order of contempt were admitted by the commission into evidence at the formal
hearing. Appellant also testified at the formal hearing respecting this incident.
23
Based upon
this evidence and testimony, the commission found that appellant abused the contempt
power vested in him as a judge.
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23
Specifically, appellant testified in part as follows:
Q. [The Special Prosecutor:] [T]ell us about what contemptuous act you were relying on to find [Ms.]
Bowman entitled to $500 fine and 20 days in jail? What was it that she did that required you to put her in
jail for 20 days?
A. [Appellant:] [Ms.] Bowman's incompetence was evident to me for the past 13 years. Therefore, this
was but one act in a long course of conduct of incompetence.
Q. Was it your understanding, then, that Loretta Bowman stamped this inin this motion?
A. No.
Q. Well, then, what conduct on her part was contemptuous?
A. I have been raised to believe that those who are in charge are responsible.
Q. So the failure of Loretta Bowman to watch her deputy clerk
sion found that appellant abused the contempt power vested in him as a judge.
The Southern Nevada Memorial Hospital Incident
At the formal hearing, an exemplified copy of an order issued by appellant on December 2,
1985, in a criminal case was introduced into evidence. The order directed the City of North
Las Vegas to transport a criminal defendant to Southern Nevada Memorial Hospital for a
psychiatric examination. Additionally, the commission admitted into evidence and
considered orders entered by appellant on December 6, 19S5, and December 13, 19S5,
directing a psychiatric charge nurse and the administrator of the Southern Nevada
Memorial Hospital to show cause why they "refused a court order to admit a person in the
custody of the North Las Vegas Police Department into the Psychiatric Ward of Southern
Nevada Memorial Hospital."
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stamp in this motion and prevent it was the act of contempt that you found justified 20 days in jail?
A. Yes. The judges of our district passed a generic rule addressed to [Ms.] Bowman. She has
violated
Q. No, Judge, we're talking about your conduct, not the other judges.
A. That's what I'm talking about. She didn't obey the Court's rule. When I say the Court, I'm talking
about the Eighth District.
Q. Yeah. You found her deserving of 20 days in jail?
A. Absolutely.
Q. Okay. And that was because her clerk stamped in something that you didn't want in the Court?
A. In part.
Q. And that's contemptuous?
A. In part.
Q. So you would just do that again the next time somebody stamped in a piece of paper and you
didn't agree with it?
A. I don't know what I would do.
Mr. Cobeaga [appellant's counsel]: Objection, argumentative.
Mr. O'Brien: Overruled.
[Appellant:] I don't know what I would do. Each case is taken on its own merits.
Q. I see. So you thought it was meritorious to award 20 days in jail because the deputy stamped in a
motion to dismiss?
A. In part.
Q. There was another part?
A. Yes.
Q. What other part?
A. I said she had been grossly incompetent for 13 years. This was one of hundreds of times that she
has been so incompetent.
Q. So you think that you should incarcerate people because they're partly incompetent or in part
because of incompetence?
A. In part, yes.
Q. Okay. So if you're incompetent and there's another excuse, you put them in jail?
A. Another excuse?
Q. Yes, if they're incompetent for 13 years and you catch their clerk, you put her in jail, is that how
you do it?
A. I did in that case.
Q. Perfectly all right?
A. In that case, yes.
Q. Judicial temperance?
A. In that case, yes.
Q. You were polite and dignified and judicious in your demeanor?
A. To the letter.
the commission admitted into evidence and considered orders entered by appellant on
December 6, 1985, and December 13, 1985, directing a psychiatric charge nurse and the
administrator of the Southern Nevada Memorial Hospital to show cause why they refused a
court order to admit a person in the custody of the North Las Vegas Police Department into
the Psychiatric Ward of Southern Nevada Memorial Hospital. Although the hospital was not
a party to and had no knowledge of the underlying criminal proceeding, appellant's orders
further provided that if these two individuals failed to appear at the scheduled show cause
hearing, a bench warrant would issue for their arrest and confinement.
An exemplified copy of the docket or minute entries of the court was also admitted as
evidence at the formal hearing. The entries suggest that hospital policy would not permit the
criminal defendant to be admitted unless a police officer was assigned to guard the defendant
during his stay. No further testimony or evidence was adduced at the commission's formal
hearing respecting this incident. Based upon this evidence, the commission found that
appellant abused the contempt power vested in him by issuing orders directing the
administrator of the Southern Nevada Memorial Hospital and a psychiatric charge nurse to
show cause why they refused a court order to admit a person in the custody of the North Las
Vegas Police Department into the Psychiatric Ward of Southern Nevada Memorial Hospital.'
The Second Loretta Bowman Incident

An exemplified copy of an order issued by appellant on July 24, 1986, in a civil matter
entitled, Hortsmann v. Oswald was introduced into evidence in the formal proceedings. The
order directed Loretta Bowman, the Clerk of the Eighth Judicial District Court, to appear
before appellant and show cause why she should not be held in contempt of court for
providing appellant with a calendar that improperly designated the parties and created a
confusion to the Court. An exemplified copy of the court's minutes was also admitted into
evidence. Additionally, appellant testified at the formal hearing at some length concerning
this matter.
24
The evidence established that a deputy clerk in Ms.
__________

24
Specifically, appellant testified:
Q. [The Special Prosecutor:] Exhibit 7 from the prior hearing relates to a matter which occurredor
an order which you issued July 24th, 1986, in a case called Hortsmann v. Oswald, where you entered an
order against Loretta Bowman, directing her to show cause why she should not be held in contempt of
court because one of her clerks transposed the first and the last names of a plaintiff in typing the daily
calendar. Do you remember that one?
A. [Appellant:] Basically, yes.
Q. Now, would you tell us what the contempt was that you perceived when you issued that order?
The evidence established that a deputy clerk in Ms. Bowman's office had mistakenly
transposed the first and last names of the plaintiff when typing the daily court calendar.
Although appellant threatened to hold the clerk in contempt of court and punish her for the
inadvertent error of her deputy, appellant subsequently quashed the show cause order. Based
upon this evidence, the commission found that appellant abused his contempt power.
__________
A. Failing to obey the Court's rules, Eighth District Court rules.
Q. Okay. Which rule is it that says that a deputy clerk shall not mistakenly transpose names?
A. There is no such rule.
Q. Well, then, you saidI don't understand, then.
A. The calendar, by rule, Mr. Wait, has to be proper. It was improper because of her continuing
negligence.
Q. So any mistake that's made on the daily calendar would be a contemptuous mistake?
A. It could be, yes.
Q. Okay. So if you don't type the words in the correct order, that's contemptuous conduct?
A. It could be.
Q. Well, was that what this was?
A. I guess so. I don't recall specifically. That's true.
Q. Do I understand then, that if any deputy clerk on any particular day would instead of John Jones, it
was Jones John, they go to jail?
A. They could.
Q. In your court they do?
A. I said they could.
Q. And that's how you would conduct your courtroom?
A. I could.
Q. And that's the way you did?
A. I could, and I did in that case, sure.
Q. Okay. So on this particular instance, were you suffering from a depression that day? Was that why
you found Loretta Bowman in contempt that day?
A. I wouldn't have any idea. I'm not a psychiatrist.
Q. Well, do you excuse this conduct because of depression?
A. I don't excuse any conduct because of depression. I excuse my conduct because it was right.
[Appellant's counsel:] Could we have a point of clarification, Mr. Wait? If this is the same Exhibit 7 I
have, it indicates that the order to show cause was quashed.
[The Special Prosecutor:] At a later time, you mean?
[Appellant's counsel:] Yes.
[The Special Prosecutor:] Well, so.
[Appellant's counsel:] Was there ayou're speaking as if there was an actual contempt citation
issued. I don't think the minute order reflects that.
[The Special Prosecutor:] Let's clarify.
Q. [The Special Prosecutor:] You issued an order for Loretta Bowman to show cause why she
should not be held in contempt, right?
A. [Appellant:] I'm taking your word for it, sure.
Q. Okay. Well, that's the exhibit. And you at that point assumed there was some reason to find her in
contempt?
A. From what you've told me, yes.
Q. Okay. And that was because one of her clerks had moved a first name into the position of a last
name?
The Third Loretta Bowman Incident
The evidence adduced at the formal hearing in this respect included exemplified copies of
an order to show cause issued by appellant in a civil action on August 27, 1986, an affidavit
in support of the order executed by plaintiff's counsel in the matter, and a certified copy of a
transcript of pertinent proceedings in appellant's courtroom conducted on August 26, 1986.
25
Appellant's order directed Loretta Bowman, the Clerk of the Eighth Judicial District Court,
to appear before appellant to show cause "why she should not be held in contempt of
Court and a jail term imposed for her prior failure to take the Plaintiff's Motion For
Judgment Against Defaulting Garnishee . . . off calendar for August 25, 19S6 by reason of
the Stipulation For Judgment and Order so filed and entered in said action on August 21,
19S6."
__________
A. In part.
Q. And that was a contemptthat was contemptuous of you, right?
A. I'm sorry?
Q. Did you feel that was contemptuous of you?
A. Do you think I was guilty of contempt?
Q. Did you take that personally?
A. Do you think I was guilty of contempt? No, I don't think I was.
Q. Okay. But did you take it personally?
A. No.
Q. That she was doing this against you?
A. No.
Q. Okay. But let's go back to your answer. You said you're not excusing any of your conduct on the
basis of depression; is that right?
A. That's correct.
Q. Okay. So if your conduct is a violation of the judicial ethics, you don't have an excuse for that; is
that right?
A. I said my actions have all been correct. I don't need an excuse of any kind.
Q. Okay. So we don't, then, have to be concerned here about you attributing what your conduct is,
right or wrong, to depression or some emotional problem?
A. I don't know what your concerns are, sir.

25
Specifically, the transcript of the proceedings conducted in appellant's court on August 26, 1986, reads as
follows:
THE COURT: Madam Reporter, this is the case that is to be reported by my request. A245307,
Associates Financial Service versus Grainger. There are no appearancesthere was a brief appearance
by counsel, who had filed a stipulation. May I have it, please?
THE CLERK: Yes.
THE COURT: The record will reflect a stipulation was filed August 21, 11:17 a.m., 1986. Today's
date is August 26, 1986, which is Tuesday, at 9:19 a.m. This stipulation that I now hold in my left hand,
which was filed August 21 and stamped with the name of one Loretta Bowman, was handed to the Court
just at the outset of this Court's calendar. Accordingly, this Court orderscounsel has just reentered the
roomcounsel for either the plaintiff or the defendants in this case to prepare an Order to Show Cause
[to] be served on [Ms.] Bowman to have her appear in this Court on this Thursday, which is the day after
tomorrowtoday being August 26th, that will be August 28nine o'clock, to show cause why she
should not be held in contempt for not allowing this Court adequate time to consider this stipulation in
the Court. Counsel?
MR. SLOANE: Forgive me, your Honor, I'm not entirely sure. When I walked in, I guess
THE COURT: I just called the case. For the record, will you state your name, please?
lant's order directed Loretta Bowman, the Clerk of the Eighth Judicial District Court, to
appear before appellant to show cause why she should not be held in contempt of Court and
a jail term imposed for her prior failure to take the Plaintiff's Motion For Judgment Against
Defaulting Garnishee . . . off calendar for August 25, 1986 by reason of the Stipulation For
Judgment and Order so filed and entered in said action on August 21, 1986. Based upon this
evidence, the commission found that appellant abused the contempt power vested in him by
again issuing an order directing Loretta Bowman, Clerk of the Court, to appear and show
cause why she should not be held in contempt of court for her prior failure to remove a matter
from the court's calendar.
The Kennard Incident
At the formal hearing, the commission admitted into evidence a certified copy of a
transcript of criminal proceedings conducted in appellant's court on October 8, 1986. That
transcript discloses the following:
THE COURT: Ladies and gentlemen, that noise you hear is someone on the roof.
Bailiff, you will telephone immediately and have the head of maintenance in my office
awaiting my pleasure. Proceed, counsel.
MR. HARMON: Thank you, your Honor.
. . . .

THE COURT: Mr. Roger, you will get the head of maintenance and bring him in
here now. He is on the bench outside. Will you state your name, please?
MR. KENNARD: Gary Kennard, K-E-N-N-A-R-D
THE COURT: What is your position with the County of Clark? MR.
__________
MR. SLOANE: Jeffrey J. Sloane, on behalf of the plaintiff, Associates. I would state, your Honor,
that we submitted this matter by way of stipulation after it had been set for calendar and had asked that it
be taken off calendar on Friday, after we had the stipulation signed, and apparently my secretary
informed me that you wanted it to be heard today anyway. I did not understand why.
THE COURT: Well, [Ms.] Bowman decided I wanted to hear it today. I don't want to hear it today.
That was [Ms.] Bowman's decision. And so I am ordering counsel for the plaintiff or counsel for the
defendants, or both, doesn't really matter, to do a little drafting for the Court and service for the Court to
have [Ms.] Bowman served with an Order [to] Show Cause why she should not be held in contempt for
not bringing this stipulation and order to my attention and having this placed on my calendar contrary to
my wishes, Counsel.
MR. SLOANE: I see, your Honor.
THE COURT: Will you pass the word, please?
MR. SLOANE: Yes, your Honor, I guess I will draft something up for you.
MR. KENNARD: Maintenance superintendent.
THE COURT: All right. Do you hear a noise up on the roof?
MR. KENNARD: Yes, I do.
THE COURT: All right. Mr. Kennard, that is unforgivable. This is a murder case.
Indeed it could be any kind of case. There is no such thing as a small case. I find the
department of maintenance to be in direct contempt of the Court and you as the
superintendent [sic] to be in direct contempt of the Court. You are, therefore, in
custody, sirhave a seat up therefor 20 days in the Clark County jail. Have a seat in
the box right there. Mr. Roger, you will be in charge of this individual.
MR. ROGER: Yes, sir.
Appellant testified at the formal commission hearing that, although Mr. Kennard was
initially taken to jail and incarcerated, appellant later ordered his release after appellant
ascertained that his (appellant's) actions had gotten [the] attention of county officials.
Moreover, appellant insisted in his commission testimony that he had accorded Mr. Kennard
his full right to be heard according to law. See Nev. Code of Judicial Conduct Canon 3(A)(4).
26
Specifically, in response to questioning from the special prosecutor as to whether
appellant's conduct conformed to Canon 3(A)(4), appellant testified that he gave Mr. Kennard
the hearing accorded by law for direct contempt.
27
Based upon this testimony and
evidence, the commission found that appellant "abused the contempt power vested in him
by holding the Clark County Department of Maintenance and the Superintendent of that
department in direct contempt of court because of construction noise on the roof of the
courthouse."
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26
At the time of the proceedings against appellant, Nev. Code of Judicial Conduct Canon 3(A)(4) provided
in pertinent part that [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 . . . . This court adopted a new code of judicial conduct effective
December 5, 1991. Canon 3(B)(7) of the new code provides in part that [a] judge shall accord to every person
who has a legal interest in a proceeding . . . the right to be heard according to law.

27
Moreover, after reading the transcript of the Kennard contempt proceedings to appellant, the special
prosecutor inquired further of appellant:
Q. That was due process of law for Mr. Kennard?
A. Yes.
Q. That's all he was entitled to?
A. Yes.
Q. Did you ask him whether he knew anything about the noise?
A. Didn't have to.
. . . .
Q. Okay. Now, then, did you give Mr. Kennard an opportunity to say he didn't know who was up there?
A. I don't know if I gave him an opportunity or not.
Q. Do you think it made any difference whether he knew anything about it beforehand?
A. Sure.
Q. In other words, if he knew about it and he didn't do something about it, he might be contemptuous in
his conduct; correct?
Based upon this testimony and evidence, the commission found that appellant abused the
contempt power vested in him by holding the Clark County Department of Maintenance and
the Superintendent of that department in direct contempt of court because of construction
noise on the roof of the courthouse.
The Cunningham Incident
The facts relevant to this incident are set forth in detail in Cunningham v. District Court,
102 Nev. 551, 729 P.2d 1328 (1986). A certified copy of that decision was admitted into
evidence at the formal commission hearing, along with an exemplified copy of appellant's
written order holding Commander Cunningham of the Las Vegas Metropolitan Police
Department in contempt of court. Additionally, appellant testified at length respecting this
incident at the formal hearing and submitted as evidence a transcript of the pertinent
proceedings conducted in appellant's court on October 10, 1986.
__________
A. Quite true.
Q. But if he was innocent of any knowledge of what the sound was, he couldn't possibly be in
contempt
A. Quite true.
Q. Could he?
A. Well, he could be, yes.
Q. Could you tell us how?
A. Well, it could be if it were the regular course of conduct, which is exactly what occurred.
Q. So, what is it, a kind of character defect that he had that he wasn't keeping the sound away from
your court?
A. That had happened on numerous occasions to the extent that every judge complained.
Q. So you're sending Mr. Kennard to jail because the other judges had been complaining about
sound?
A. Yes, and myself, yes.
Q. Okay. So he wasn't contemptuous this time, you caught him for the last time, right?
A. A total [ac]cumulation, yes.
Q. Many times before and this time you got him?
A. Yes.
Q. Okay. And that was judicious and temperate?
A. Yes.
Q. Patient and courteous?
A. Yes.
Q. That was not a violation of the canon that says you're supposed to give everybody an opportunity
to be heard if they have a legal interest in the proceeding?
A. An opportunity to be heard according to the law, I believe the canons say.
Q. You gave him all of his rights of law by saying did you hear that sound, and he said, yes, and he
went to jail?
A. I said that's direct contempt.
Q. Okay. So that's what the law allows in the way of an opportunity to be heard?
A. Yes.
In Cunningham, this court vacated as void appellant's order holding Commander
Cunningham in direct contempt of court and confining Commander Cunningham in the Clark
County Jail. As that opinion relates, certain video tapes were seized by the police during an
investigation of a bizarre set of circumstances involving an individual who had jumped to his
death from an airplane. A television reporter subsequently contacted Commander
Cunningham to request the release of the video tapes to the media. Because he considered
them as evidence in a death investigation, Commander Cunningham declined the request. The
reporter than contacted appellant to discuss the release of the tapes, and appellant
subsequently telephoned the police department late in the afternoon of October 8, 1986,
demanding to speak to Commander Cunningham. Upon being informed that Cunningham
was not in his office, appellant told Cunningham's secretary that if Cunningham did not
appear at the courthouse in ten minutes, he would have Cunningham arrested. Thereafter, the
secretary was able to contact Cunningham before he left the police station for the day, and
informed him of this telephone call. As the Cunningham opinion explains, according to the
secretary, appellant did not properly identify himself
28
or the purpose of his call, did not
state that the call was in relation to any specific case pending before the district court, was
rude and belligerent on the telephone, and hung up abruptly without allowing the secretary to
verify his name and without leaving a number at which Cunningham could return the call.
Consequently, Cunningham did not attempt to respond to the telephone call at the time. Id. at
554, 729 P.2d at 1330.
[A]though no civil action whatever involving the video tapes was presently pending
before his department, appellant issued an order the following day directing Commander
Cunningham to appear in appellant's courtroom and show cause why he should not be
adjudged guilty of civil contempt for failure to obey [appellant's] order of October 8, 1986,
to appear in chambers.' Id. at 557, 729 P.2d at 1332. Appellant's order further indicated that
appellant had ordered Cunningham to appear in the Chambers of Department X . . . to
respond to inquiries concerning a videotape in the possession of the Las Vegas Metropolitan
Police Department,' and that the Commander had failed to appear as ordered.' Id.
The transcript of the subsequent show cause hearing before appellant reads in material part
as follows: THE COURT: I believe this is Detective Cunningham, is that right?
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28
The secretary believed that the caller identified himself as George or possibly Judge Goldman.
THE COURT: I believe this is Detective Cunningham, is that right? Commander
Cunningham. All right. Appearance of counsel for
MR. HAUSER: Chuck Hauser on behalf of the police department.
THE COURT: Thank you, sir. On behalf of Channel 8, who is that, please?
MR. BYRD: Christopher Byrd on behalf of Channel 8 with Mark Fierro. He is here
as well, your Honor.
THE COURT: For purposes of the record, this Court ordered Mr. Byrd to prepare
an Order to Show Cause to be served on Commander Cunningham for his failure to
appear to this Court's order of the other day, and, Mr. Cunningham, is there anything
you wish to say, sir?
COMMANDER CUNNINGHAM: I did not fail to appear to any lawful Court order
would be my position.
THE COURT: Your position is my order was not lawful; is that correct, sir?
COMMANDER CUNNINGHAM: My position is I did not recognize your phone
call which was relayed to me as one who was irrational, rude and would not wait for
feedback as to phone numbers and as to really who you were. That is not something that
I recognize as a lawful order of any Court.
THE COURT: All right, sir. Sheriff, you are here as a courtesy only; is that correct?
SHERIFF MORAN: Yes, sir.
THE COURT: I find you in direct contempt and put you in jail right now for 48
hours or until further order of the Court, whichever occurs last.
COMMANDER CUNNINGHAM: Do I have a
MR. HAUSER: For the record, could we ask that this be transferred to a neutral
judge to have a hearing on the matter?
THE COURT: That objection is not timely, Counsel. He is remanded to custody
forthwith.
MR. HAUSER: For the record also, your Honor, we believe there was no direct
order because there was no case in front of the Court. So, there is no contempt. Thank
you, your Honor.
THE COURT: You may make your observations clear for the record. Ma'am, you
will transcribe these remarks immediately.
Thereupon, Commander Cunningham was arrested, handcuffed and led to the jury box
where he was required to sit with other prisoners for approximately thirty minutes while
appellant completed his calendar.
other prisoners for approximately thirty minutes while appellant completed his calendar. He
was then transported to the Clark County Detention Facility where he was photographed,
fingerprinted and booked. The booking slip delivered to the jail conveyed appellant's
directive: No bail, no writs. Cunningham was held in custody for approximately five hours
until his release was secured pursuant to an order of this court staying appellant's order. Id. at
558, 729 P.2d at 1332.
In vacating appellant's order as void, this court held that Cunningham's actions did not fall
within any of the acts or omissions which constitute contempt pursuant to NRS 22.010 and
NRS 199.340. Further, this court ruled:
Cunningham was not disorderly, contemptuous or insolent. No breach of the peace,
boisterous conduct or violent disturbance took place. Cunningham did not abuse the
processes or proceedings of the court, nor was there a showing that he deliberately or
recklessly disregarded his duties with respect to the court. Further, Cunningham did not
disobey or resist any lawful writ, order, rule or process issued by the court. As
Cunningham noted in his comments at the show cause hearing, the district court did not
issue any lawful order to Cunningham to appear at the courthouse on October 8, 1986.
Id. at 559, 729 P.2d at 1333.
This court further observed:
More importantly, it is apparent that Judge Goldman acted in excess of his
jurisdiction not only when he ordered Commander Cunningham to appear in his
chamber within ten minutes, but later when he issued the show cause order, and when
he held Commander Cunningham in contempt of court. No civil or criminal action was
pending before Judge Goldman during this time upon which such orders might lawfully
issue. A district judge has no authority, inherent or otherwise, to issue an order to
anyone to appear before him except as expressly provided by law. Because no criminal
or civil action involving the right to possess the video tapes was pending before Judge
Goldman, he lacked subject matter jurisdiction over the underlying dispute.
Furthermore, because nothing remotely resembling a proper order had been issued and
served upon Cunningham, in regard to any proper proceeding, Judge Goldman had no
personal jurisdiction whatever over Cunningham. Even if the necessary action had been
properly before Judge Goldman, a district judge lacks jurisdiction to order anyone to
appear without cause and without reasonable notice, or outside the ordinary process of
the court.
process of the court. Such orders, entered without jurisdiction, constitute an abuse of
judicial power.
Id. at 560, 729 P.2d at 1334.
Notwithstanding this court's holding in Cunningham, in his testimony at the formal
hearing, appellant continued to insist that his actions with regard to Commander Cunningham
were quite proper under the circumstances. In particular, appellant testified that a telephone
call from a judge to a police officer, under those circumstances, constitutes an order, and that
Cunningham's failure to recognize appellant's telephone call as a lawful court order was
erroneous.
29
Based upon this evidence, the commission found that appellant abused his
power of contempt.
[Headnote 13]
Our review of the record as a whole reveals clear and convincing evidentiary support for
the commission's finding of a long-standing pattern of abuse of the power of contempt. We
are not persuaded, however, that sufficient evidence was adduced at the formal hearing to
support the commission's specific findings respecting the Gordon Yach and the Southern
Nevada Memorial Hospital incidents.
__________

29
More specifically, appellant testified:
COMMISSIONER SPRINGER: But it's your current opinion that anyone who doesn't return a
judge's phone call can be sent to jail?
APPELLANT: No. I said a phone call under those circumstances constitutes an order.
MR. O'BRIEN: Even with no case pending?
APPELLANT: Yes, sir.
COMMISSIONER PUCCINELLI: That bothers me, above all of what you said, that bothers me
more than anything else. Now, what circumstances? Here is a TV station that's come in and said we want
to see this film or get a copy of it or something or other. Is that the circumstance you're referring to?
APPELLANT: Yes, sir. A judge would act under those circumstances as the shield in the
combination of a shield and a sword. And that is shielding the public, in this case it was media, they are a
part of the public, from the acts of the police department without judicial process, yes.
COMMISSIONER PUCCINELLI: Now, tell me this. If it hadn't been the media, had it been Joe
Blow off of the street who said, hey, I had a film over here that was taken, I would like to get it back or
get a copy of it, at least, would you have had the same attitude with that?
APPELLANT: I presume so, yes.
COMMISSIONER PUCCINELLI: In other words, anyone who comes into your office and says I
loaned my car to somebody and they haven't brought it back and I want it back right now, and you call up
a policeman and say, hey, let's find out about why this car hasn't been returned, if you're not here in ten
minutes you're in contempt?
APPELLANT: All I said, an order to show cause would be served.
Appellant also specifically testified:
THE SPECIAL PROSECUTOR: So the last thing [Cunningham] said was: That is not something
that I recognize as a lawful order of any court. Is that an unreasonable position?
APPELLANT: Erroneous.
formal hearing to support the commission's specific findings respecting the Gordon Yach and
the Southern Nevada Memorial Hospital incidents.
[Headnote 14]
More specifically, without the testimony contained in the transcript of the probable cause
hearing, which the commission expressly declined to consider at the formal hearing, the
evidence of record regarding Mr. Yach and the hospital established little more than the fact of
appellant's entry of show cause orders. Moreover, the record reflects that appellant was not
questioned and did not testify at the formal hearing about either of these matters. We
conclude that, as a matter of law, the show cause orders standing alone are insufficient to
establish that appellant abused his power of contempt on these specific occasions. Sufficient
clear and convincing evidence, however, does support the findings of abuse relating to the
remaining incidents.
Appellant nonetheless contends that the documentary evidence supporting the
commission's findings was improperly admitted and considered at the formal hearing and,
therefore, the evidence should be deemed insufficient. Specifically, appellant argues that the
transcripts of the hearings that appellant conducted, the show cause orders and orders of
contempt that he entered and the opinions of this court that reversed his orders of contempt
were all erroneously admitted and considered because absolutely no evidentiary foundation
[was] laid for the introduction of these exhibits or for the hearsay contained therein upon
which the Commission apparently placed heavy reliance. Appellant also asserts without
further explanation that the admission of this documentary evidence was intensely
prejudicial. We disagree.
At the time of the formal hearing, Interim Rule 14(a) provided:
The commission is not bound by technical rules of procedure, and may conduct its
inquiries and hearings according to such rules as it may determine expeditious and fair.
In doing so, the commission shall endeavor to confine the receipt of evidence to that
which is admissible under the Nevada Evidence Code; provided, that no error in the
admission of evidence will be considered grounds for appeal unless made to appear
prejudicial to the fundamental fairness of the proceedings.
As the special prosecutor persuasively argues, in conducting its proceedings fairly and
expeditiously, the commission appropriately took judicial notice of the opinions of this court
and the other certified and exemplified public court documents in issue. See NRS 47.130(1)
(court may take judicial notice of facts in issue or facts from which facts in issue may be
inferred); NRS 47.130{2) {a judicially noticed fact must be generally known within the
jurisdiction or capable of accurate and ready determination by resort to sources whose
accuracy cannot be reasonably questioned).
47.130(2) (a judicially noticed fact must be generally known within the jurisdiction or
capable of accurate and ready determination by resort to sources whose accuracy cannot be
reasonably questioned). Additionally, at the time of the proceedings, Interim Rule 34
provided:
The commission may examine a decision or opinion of a judge to the extent that such a
decision or opinion is incident to a charge of misconduct or disability. Such
examination shall not constitute appellate review.
[Headnote 15]
Thus, appellant's orders and the other district court documents relating to appellant's
contempt decisions were properly admitted and considered by the commission. Moreover, in
its final judgment, the commission noted that appellant was given an opportunity to and did
explain to the Commission the circumstances and reasoning underlying his issuance of the
show cause orders and contempt citations. We therefore perceive no error that could be
considered prejudicial to the fundamental fairness of the proceedings.
Next, appellant contends that because he was not given prehearing notice as required by
Interim Rule 11(a), the commission improperly admitted and considered a transcript of
proceedings during which appellant ordered Ms. Bowman to appear and show cause why her
deputy did not remove an item from the court's calendar. Pursuant to Interim Rule 11(a)(2),
the special prosecutor was required to disclose to appellant any written or recorded statements
in the special prosecutor's possession or control within twenty days after service of notice of
the formal hearing. Although such notice of the transcript in question was not provided, our
review of the record reveals that the transcript merely supplemented appellant's testimony at
the formal hearing and the other, properly admitted documentary evidence relating to this
incident. Accordingly, we conclude that appellant has failed to demonstrate prejudice to the
fundamental fairness of the proceedings. See Interim Rule 14(a).
[Headnote 16]
Appellant also contends that the commission's order of formal complaint provided him
with inadequate notice to defend against the charges relating to the show cause orders
appellant issued in the Gordon Yach incident, the Southern Nevada Memorial Hospital
incident, and the second and third Loretta Bowman incidents.
30
See Interim Rule 15{a)
{"[a] respondent shall have the right and reasonable opportunity to defend against the
charges . . .");
__________

30
As noted above, we have concluded as a matter of law that insufficient evidence supports the commission's
findings with respect to the Gordon Yach and the Southern Nevada Memorial Hospital incidents. Accordingly,
we need not consider this contention as it relates to those matters.
See Interim Rule 15(a) ([a] respondent shall have the right and reasonable opportunity to
defend against the charges . . .); Interim Rule 9(b) (notice of the hearing shall specify in
ordinary and concise language the charges against the respondent and the alleged facts
underlying the charges . . .); Interim Rule 1.3 (where probable cause for disciplinary action is
found, the special prosecutor has the duty to sign and file with the commission a formal
statement of charges).
As the special prosecutor observes, however, appellant had reasonable notice that his
orders to show cause would be at issue in the proceedings before the commission. The order
of formal complaint advised appellant that it appeared that he had abused his contempt
power by holding or threatening to hold individuals in contempt of court under circumstances
clearly not warranted by law. (Emphasis added). Further, the order of formal complaint
specifically cited numerous contempt orders issued by appellant against Loretta Bowman.
Therefore, we agree with the special prosecutor that, under the totality of circumstances,
appellant was provided a reasonable opportunity to defend against the commission's findings
relating to the show cause orders concerning Loretta Bowman.
Appellant further contends that the evidence in the record does not support the
commission's findings that he abused his contempt power with respect to the incidents
involving Commander Cunningham, Mr. Kennard, the District Attorney, and Ms. Bowman.
Specifically, appellant asserts that Commander Cunningham's allegedly insolent behavior
and Kennard's alleged responsibility for the disturbance on the roof of the courtroom
constituted valid predicates for his orders of contempt. See NRS 22.010(1) (disorderly,
contemptuous or insolent behavior toward a judge while the judge is holding court shall be
deemed a contempt). Similarly, appellant continues to maintain in this appeal that his orders
adjudging Ms. Bowman and the Clark County District Attorney in contempt constituted a
valid and proper exercise of his power to issue contempt citations where there have been
violations of court rules. See NRS 22.010(3).
As noted above, however, we have concluded that the commission properly admitted and
considered as evidence this court's prior opinions in Cunningham v. District Court, 102 Nev.
551, 729 P.2d 1328 (1986); Bowman v. District Court, 102 Nev. 474, 728 P.2d 433 (1986);
and Clark Cty. Dist. Atty. v. District Court, 101 Nev. 843, 710 P.2d 1384 (1985). The
contentions appellant here advances were emphatically rejected in those decisions. Further,
although the Kennard incident was not the subject of any prior opinion of this court, the
documentary and testimonial evidence pertaining to that matter clearly establishes that
appellant's conduct deprived Mr.
lant's conduct deprived Mr. Kennard of any opportunity whatsoever to explain his position or
respond to appellant's concerns prior to appellant's issuance of the order jailing Mr. Kennard.
See Ryan v. Com'n on Judicial Performance, 754 P.2d 724, 732 (Cal. 1988) (court found
judge abused contempt power and committed willful misconduct when, in contempt
proceedings, judge completely ignored proper procedures and never gave the individual a
chance to respond prior to ordering her incarceration); see also Nev. Code of Judicial
Conduct Canon 3(A)(4) (a judge should accord every person who is legally interested in a
proceeding full right to be heard according to law). Thus, contrary to appellant's contentions,
documentary and testimonial evidence properly adduced at the commission's formal
proceedings demonstrated conclusively that appellant abused his power of contempt on these
occasions.
Appellant also contests the commission's conclusion that his show cause orders and
contempt rulings constituted willful misconduct warranting his removal from office.
Appellant observes that, even assuming that his contempt rulings were erroneous, absent a
finding of bad faith, his erroneous legal rulings cannot form the basis for discipline in the
form of removal for willful misconduct.' See, e.g., Matter of Sheffield, 465 So.2d 350, 358
(Ala. 1985) (judge could not be disciplined for contempt ruling which he later rescinded
absent a showing of bad faith or a state of mind affirmatively operating with furtive design or
ill will); Matter of Johnson, 395 A.2d 1319, 1326 (Pa. 1978) (judges acting in pressure-laden
situations should not be required to fear automatic discipline because a contempt ruling might
later be reversed on appeal). See also Comm. Rule 9.
31
Thus, appellant maintains, because
there is no clear and convincing evidence to show [appellant] to have been motivated by
malice, ill will, or bad faith, the commission's conclusion that he committed willful
misconduct warranting removal from office must be reversed.
[Headnote 17]
It is true, of course, as Comm. Rule 9 currently reflects, that the commission may not
function as an appellate body and is a singularly inappropriate forum in which to correct
erroneous judicial decisions made in good faith."
__________

31
Comm. Rule 9, which became effective April 1988, currently provides in part:
In the absence of fraud or like bad faith occurring in the commission of an act constituting a ground for
discipline . . . the commission must take no action against [a] judge for making findings of fact, reaching
a legal conclusion, expressing views of law or policy in a judicial opinion, or otherwise declaring or
applying the law in the course of official duties. The commission has no jurisdiction to review or to base
charges upon differences of opinion between judges as to matters of law or policy, or as to other issues
committed to judicial or administrative discretion. Claims of error must be left to the appellate process.
singularly inappropriate forum in which to correct erroneous judicial decisions made in good
faith. See Matter of Hague, 315 N.W.2d 524, 531 (Mich. 1982). Indeed, bad faith is an
element essential to a finding of willful misconduct arising out of the issuance of a judicial
decision. Contrary to appellant's contention, however, in this instance the commission neither
undertook to function as an appellate body, nor was its finding of willful misconduct
unsupported by clear and convincing evidence of appellant's bad faith. Rather, the
commission correctly concluded that erroneous contempt rulings, which also demonstrate a
long-standing abuse of contempt power, may be properly considered as willful misconduct.
See, e.g., Cannon v. Commission on Judicial Qualifications, 537 P.2d 898 (Cal. 1975); Matter
of Del Rio, 256 N.W.2d 727 (Mich. 1977), appeal dismissed, 434 U.S. 1029 (1978); Matter
of Yengo, 371 A.2d 41 (N.J. 1977). See also, Hague, 315 N.W.2d at 533 (abuses of the
awesome power of contempt, including unjustified threats to hold persons in contempt,
constitute misconduct warranting discipline).
[Headnote 18]
As the evidence detailed above illustrates, Judge Goldman was an experienced judge who
continued to ignore binding precedent reversing his contempt rulings and emphasizing the
importance of a district court's strict adherence to the provisions of NRS 22.010 and NRS
199.340. An experienced trial judge's ignorance of proper contempt procedures, without
more, has been held to constitute the bad faith necessary to a finding of willful misconduct.
See Cannon, 537 P.2d at 909. See also Furey v. Com'n on Judicial Performance, 743 P.2d
919, 929 (Cal. 1987) (willful misconduct found where judge seemed to have learned nothing
from fact that several prior contempt orders had been set aside and continued to engage in a
pervasive course of conduct of overreaching his authority). Additionally, by ordering
Commander Cunningham to appear in his court when no matter requiring Cunningham's
attendance was pending in appellant's department, appellant committed a serious misuse of
his judicial office warranting a finding of bad faith and willful misconduct. See Canon, 537
P.2d at 913-15 n.19. See also Kloepfer v. Com'n on Judicial Performance, 782 P.2d 239, 257
(Cal. 1989).
[Headnote 19]
The California Supreme Court has also held that a finding of bad faith is warranted where,
as here, the evidence discloses the commission of acts which the judge knew or should have
known were beyond the judge's power for a purpose other than the faithful discharge of
judicial duties. See Wenger v. Commission on Judicial Performance, 630 P.2d 954 (Cal.
1981). The commission specifically found that appellant's behavior resulted from his
"inaccurate perception of this role as a judge, and from his unwillingness to tolerate
actions by others which are not in harmony with his apparent belief that those who do not
meet or respond to his demands and expectations are subject to imprisonment and
punishment under the court's contempt power."
sion specifically found that appellant's behavior resulted from his inaccurate perception of
his role as a judge, and from his unwillingness to tolerate actions by others which are not in
harmony with his apparent belief that those who do not meet or respond to his demands and
expectations are subject to imprisonment and punishment under the court's contempt power.
Appellant's testimony with respect to the incidents in issueparticularly the Loretta Bowman
incidents and the Kennard incidentsclearly and convincingly supports this finding and
demonstrates that appellant acted for a purpose other than the faithful discharge of his duties.
Such behavior constitutes precisely the bad faith contemplated by Comm. Rule 9. As one
court has observed:
By bad faith, we do not mean to imply that petitioner sought to harm the interests
of the defendants involved. Rather, we mean that in indulging his petty animosity
toward deputy public defenders, and in culmination of a pervasive course of conduct of
overreaching his authority over subordinates, petitioner intentionally committed acts
which he knew or should have known were beyond his lawful power. The resulting
misconduct entailed the most insidious kind of official lawlessnessdisregard for the
statutory and constitutional rules by which a society of millions and a heritage of
centuries have sought to preserve fundamental fairness with a legal system which
cannot escape the inherent imperfections of mankind.
Geiler, 515 P.2d at 11. See also Ryan, 754 P.2d at 732 (failure to know of or research proper
contempt procedures constituted bad faith under two-prong Wenger test).
We are constrained to add that appellant's continued failure to acknowledge either the
impropriety of his actions or the binding authority previously enunciated by this court reveals,
in our view, a disturbing predilection toward a personal brand of justice in which the judge
becomes a law unto himself . . . . See Matter of Ross, 428 A.2d 858, 861 (Me. 1981). A
judge who may disagree with the appellate authority must, nevertheless, lay aside his own
opinion of the validity of the law and dispose of the cases before him in accordance with the
precedent. Whatever his contrary personal view of appellate authority, a judge is not free to
disregard it. Hague, 315 N.W.2d at 532; see also Nev. Code of Judicial Conduct Canon
3(A)(1) (a judge should be faithful to the law and maintain professional competence). In our
view, the widespread publicity that attached to appellant's repeated and defiant abuse of his
contempt power, even in the face of settled and binding case precedent, seriously endangered
public esteem for the judiciary. "[U]nable to see that he was the servant of law and not its
embodiment," the evidence indicates that appellant sought to "set himself above it."
for the judiciary. [U]nable to see that he was the servant of law and not its embodiment, the
evidence indicates that appellant sought to set himself above it. Hague, 315 N.W.2d at 536.
VI. WILLFUL MISCONDUCT: IMPROPER PUBLIC COMMENT
[Headnote 20]
The commission found that appellant violated Canon 3(A)(6) of the Nevada Code of
Judicial Conduct by making public comments concerning pending and impending litigation.
32
The commission found that such violations of the code occurred in October 1986, and in
April and May of 1987. Accordingly, the commission concluded that appellant had engaged
in a pattern of making improper comments to news media concerning pending and
impending litigation. Further, in light of their persistent and improper nature, the
commission concluded that appellant's improper public remarks must be deemed willful
misconduct constituting an independent basis for removal.
Appellant contends that the commission's findings and conclusions respecting the
comments appellant made in April and May of 1987 cannot be sustained and must be
reversed.
33
We agree.
All the remarks in question were made by appellant and reported in the media after the
commission conducted its probable cause hearing and after the commission entered its
order of formal complaint.
__________

32
Nev. Code of Judicial Conduct Canon 3(A)(6) provides:
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.

33
Specifically, the commission found:
The Commission also finds that [Judge Goldman] made the following public comments concerning
proceedings pending before this Commission and the litigation initiated by him in the First Judicial
District Court, and also concerning other proceedings he allegedly contemplates filing. Regarding the
mandamus proceedings pending before the First Judicial District court, [Judge Goldman] is quoted by the
Las Vegas Review Journal on May 6, 1987, as stating that he would appeal the court's adverse decision,
but my prospects of success are remote, and that various state officials were wasting money trying to
crucify me, and that various state officials had spent far more on investigations, court cases and
assigning judges temporarily to fill his vacancy than they would spend on his retirement, and that all he
wants is retirement, adding I'm angry. I want to leave with dignity. [Judge Goldman] is also quoted
by this same newspaper on May 7, 1987, as stating: There was no way I could win. Events tell me the
whole thing was rigged. Further, [Judge] Goldman is also quoted by the Las Vegas Review Journal on
three more occasions: (1) On April 22, 1987, I'm like a pupfish. Maybe you can swallow me. But boy,
it's going to hurt; (2) On April 21, 1987, These people have always thought, and will continue to think,
that I'm bluffing. I never bluff. But
reported in the media after the commission conducted its probable cause hearing and after the
commission entered its order of formal complaint. The special prosecutor did not thereafter
attempt to amend the formal complaint to allege that these remarks constituted misconduct,
nor did he provide notice to appellant that the exhibits (newspaper articles) pertaining to the
comments in questions would be submitted as evidence at the formal hearing. See Interim
Rule 9(b) (notice must be provided to judge of charges against him and the alleged facts
underlying the charges); Interim Rule 11(e) (the special prosecutor shall promptly provide
discovery of any additional materials or information subject to disclosure). Consequently, no
evidence of these remarks was admitted at the probable cause hearing, nor did the
commission's order of formal complaint impart notice sufficient to provide appellant with a
reasonable opportunity to defend against the charges. See Interim Rule 15(a). See also
Kennick v. Com'n on Judicial Performance, 787 P.2d 591, 598 (Cal. 1990) (court refused to
adopt commission determinations based upon findings outside scope of a notice of formal
proceedings). Under these circumstances, and despite appellant's failure to request a
continuance, we conclude that it was fundamentally unfair to require appellant to defend
against these charges at the formal hearing. We therefore vacate the commission's findings
respecting these remarks. In so doing, we necessarily reject the commission's determination
that appellant engaged in a pattern of making improper comments.
As noted above, however, the commission also found that appellant improperly
commented on pending litigation, the Cunningham matter, in October of 1986. We have
considered appellant's contentions respecting this finding, and we conclude that they are
without merit. Further, we conclude that, when coupled with appellant's willful misconduct
relating to his long-standing abuse of the judicial contempt power, sufficient willful
misconduct was established on this record to warrant the sanction of removal.
VII. HABITUAL INTEMPERANCE
In each instance in which the commission determined that appellant's conduct constituted
willful misconduct, the commission further determined that appellant had engaged in
"habitual intemperance."
__________
they think I'm bluffing. . . . The governor won't act. The law says the governor must appoint doctors. He
won't let me retire, and I want to retire. I've wanted to retire since 1980. I want him to obey the law. They
can come by and examine me or my records. I'm obviously disabled.; and (3) On April 23, 1987, [Judge
Goldman] is quoted as communicating his intentions to file a federal civil rights action to punish those
who have tried to harm him since last fall.
sion further determined that appellant had engaged in habitual intemperance. Prior to the
formal hearing, appellant moved the commission to strike the reference to habitual
intemperance contained in the order of formal complaint because, appellant maintained, the
term generally connotes alcohol abuse. Appellant noted that no evidence had been presented
to the commission implicating appellant's indulgence or overindulgence in alcohol.
In rejecting appellant's contention, the commission ruled:
As used in our order, however, habitual intemperance is extreme or excessive
behavior, marked by a lack of moderation, conduct that is not temperate. See Webster's
Ninth New Collegiate Dictionary, p. 1214 (1983) (definition of temperate); see also
Matter of Del Rio, 256 N.W.2d 727 (Mich. 1977) (a judge should be temperate, patient,
courteous, and considerate to counsel and others appearing before him; proper judicial
temperament is displayed when a judge discharges his duties in a professional manner
with patience, courtesy and dignity).
[Headnote 21]
On appeal, appellant renews his contention and asserts that, as a ground for judicial
discipline, the term habitual intemperance should be limited in its scope to the abuse of
alcohol. See Matter of Mikesell, 243 N.W.2d 86, 94-95 (Mich. 1976) (a charge of habitual
intemperance cannot be sustained without a finding of abuse of alcohol). Consequently,
appellant argues, because there is no evidence in the record to support even an inference of
his abuse of alcohol, the commission's finding of habitual intemperance must be reversed. We
agree.
Although the Interim Rules governing the commission proceedings against appellant did
not define the term habitual intemperance, this court has since defined the term in
procedural rules which became effective on April 29, 1988. Specifically, Comm. Rule 2(6)
now provides: Habitual intemperance' means habitual, excessive use of alcohol, or chronic
abuse of any other substance which affects mental processes, awareness, or judgment. In our
view, this definition more closely comports with the widely accepted meaning of the term.
We therefore reject the special prosecutor's contention that a finding of habitual intemperance
is justified when a judge's conduct demonstrates a pattern of conduct and temperament totally
unbecoming a member of the judiciary. Conceptually and under our constitution and rules,
conduct demonstrating a pattern of judicial temperament wholly unbecoming a member of the
judiciary more appropriately falls within the term willful misconduct. See Comm. Rule
2(7); Comm. Rule 11. Thus, although a finding of habitual intemperance," as the term was
defined by the commission, is supported by the evidence in the record, such a finding
appears to focus on the same conduct that underlies the commission's additional findings
of "willful misconduct."
intemperance, as the term was defined by the commission, is supported by the evidence in
the record, such a finding appears to focus on the same conduct that underlies the
commission's additional findings of willful misconduct. See Furey, 743 P.2d at 923 (court
declined to consider overlapping charges). Accordingly, we vacate the commission's
determination that appellant engaged in habitual intemperance.
VIII. MEDICAL CONDITION AS MITIGATION OR EXCUSE FOR MISCONDUCT
The commission found and concluded as follows:
1. [Judge Goldman's] own physician, Dr. Mayor, testified that he can determine no
organic basis for claimed disability.
2. [Judge Goldman's] own physicians do not identify, to the satisfaction of this
Commission, any mental or physical condition which would explain his persistent
abuse of contempt power or the other events of misconduct described above. While Dr.
Thornton, one physician who examined [Judge Goldman] on behalf of the special
prosecutor, agreed [Judge Goldman] was suffering from depression and stress, which
Dr. Thornton thought contributed to [Judge Goldman's] inappropriate acts, there is no
suggestion in the testimony of either [Judge Goldman's] expert witnesses or in the
testimony of Dr. Thornton that [Judge Goldman] at any time did not know the
difference between right and wrong or that he failed to understand the nature and
quality of his actions.
3. The Commission is persuaded by the testimony of Dr. Gerow that [Judge
Goldman's] actions are not adequately explained or justified by the fact that he may be
temporarily depressed, and the Commission determines as a matter of fact that Dr.
Gerow has accurately testified to the facts concerning [Judge] Goldman's behavior.
4. In weighing the testimony of various experts and in according credit to the
testimony of Dr. Gerow, the Commission has noted and finds as a fact that numerous
incidents of abuse of power and improper public statements reflect conscious
deliberation and planning inconsistent with any claim that [Judge Goldman] was either
acting pursuant to an irresistible impulse or that he did not know the difference between
right and wrong or know the nature and quality of his actions.
5. Furthermore, the commission finds as a fact, that [Judge Goldman's] various
abuses of power and other misconduct have extended over a long period of time during
which [Judge Goldman] has been quite functional in other areas of his life and
judicial activities, which fortifies the Commission in its determination that [Judge
Goldman] has the capacity to tell the difference between right and wrong.
which [Judge Goldman] has been quite functional in other areas of his life and judicial
activities, which fortifies the Commission in its determination that [Judge Goldman]
has the capacity to tell the difference between right and wrong. The Commission
believes [Judge Goldman] understood the nature and quality of his actions, and that he
could control his conduct were he so disposed.
6. Based on [Judge Goldman's] testimony and behavior on the witness stand as
perceived by the Commission, and based on the testimony of Dr. Gerow, the
Commission finds, as a fact, that [Judge Goldman] has failed in his burden of proving
that his various inappropriate actions, as referred to in the above findings, resulted from
disability. The Commission also finds affirmatively that the Commission's counsel has
demonstrated clearly and convincingly such inappropriate conduct did not result from
any disability which can be deemed to excuse his conduct.
7. To the extent that the Commission can discern reasons for [Judge Goldman's]
misbehavior, the Commission finds, as a fact, that [Judge Goldman's] behavior has
resulted from [his] inaccurate perception of his role as a judge, and from his
unwillingness to tolerate actions by others which are not in harmony with his apparent
belief that those who do not meet or respond to his demands and expectations are
subject to imprisonment and punishment under the court's contempt power.
8. Based on the foregoing findings, the Commission further finds that [Judge
Goldman's] misconduct, as described above, is not excused, and must, therefore, be
deemed willful misconduct . . . .
[Headnote 22]
commission's findings. In particular we note that, when questioned whether specific instances
of alleged misconduct may have been due to depression, appellant insisted, I don't excuse
any conduct because of depression. I excuse my conduct because it was right. Additionally,
in his motion to amend and strike certain portions of the commission's order of formal
complaint, appellant maintained that he had not tendered the issue that my allegedly
improper conduct was the product of any disability, either directly or indirectly.
34
These
statements, when coupled with the failure of appellant's counsel and experts to establish
any correlation between appellant's condition and his willful misconduct, provide more
than adequate support for the commission's finding that appellant failed in his burden to
show that any misconduct resulted from or was excused by disability.
__________

34
We note, however, that in closing remarks before the commission at the formal hearing, appellant's
counsel, Mr. Cobeaga, stated: I agree with Mr. Wait with the way this matter is now at issue, three categories,
the allegation of misconduct, then whether that is excused by any condition of the Judge's and, finally, the issue
of whether the Judge draws compensation now at age 53 rather than at age 60.
when coupled with the failure of appellant's counsel and experts to establish any correlation
between appellant's condition and his willful misconduct, provide more than adequate support
for the commission's finding that appellant failed in his burden to show that any misconduct
resulted from or was excused by disability.
Even discounting appellant's statements, however, our review of the record reveals that,
although Dr. Thornton indicated that some of appellant's misconduct could have been a
manifestation of his depression, Dr. Gerow emphatically testified that it was absurd to raise
[the] possibility that depression was the cause of any of the allegations of misconduct in
question. Assuming without deciding that serious physical or mental disability could have
even constituted a defense with respect to appellant's removal,
35
Dr. Thornton's equivocal
statement was insufficient to establish a direct relationship between the misconduct in issue
and appellant's physical or mental condition. See Matter of Yaccarino, 502 A.2d 3, 30 (N.J.
1985) (court rejected judge's contention that medical condition constituted mitigating
circumstance sufficient to excuse unethical conduct where medical evidence did not directly
relate to judge's motive or intent). Accordingly, we conclude that appellant not only failed to
fulfill his burden of proof but also that the evidence affirmatively established that appellant's
misconduct was neither mitigated nor excused by a disabling condition.
IX. ABANDONMENT AND RELINQUISHMENT OF OFFICE
The commission specifically found and concluded:
1. [Judge Goldman] has not performed the duties of his office since October 19,
1986. He is not presently performing any of his judicial duties. He has not offered to
perform those duties, and has not requested the Supreme Court to vacate the order
relieving him of judicial authority, which he solicited. Indeed, he stated at the hearing
on June 12, 1987, that he has no desire to return to work, he claims he is unable to work
as a judge, and he asserts that he has no intention of ever returning to the bench.
2. By written declaration to the Governor, [Judge Goldman] first asserted his
intention to relinquish his office on October 30, 1986, and has performed no further
judicial service since that time.[
36
]
__________

35
See Kennick v. Com'n on Judicial Discipline, 787 P.2d 591, 616-17 (Cal. 1990) (protection of the public
and integrity of the judiciary preclude allowing judge's physical or emotional difficulties to bar a determination
of conduct warranting discipline).

36
The text of appellant's letter to the governor is set forth in Goldman v. Bryan, 106 Nev. 30, 33, 787 P.2d
372, 374 (1990).
3. By written declaration to the Governor, subsequently placed in evidence with this
Commission, by public declarations to the news media, by written pleadings to the
Commission, and by testimony to this Commission, [Judge Goldman] has announced
his irrevocable intention to abandon his judicial office and his clear intention not to
resume performance of his judicial duties.
4. The Commission concludes, therefore, that [Judge Goldman] has voluntarily
abandoned and relinquished his judicial office, and that, therefore, it must declare the
office vacant.
[Headnote 23]
commission's findings. Appellant's unequivocal testimony before the commission that he had
no desire whatever to return to being a judge and the additional statements and declarations
in appellant's letter to the governor and in appellant's formal answer dispel any question as to
the sufficiency of the evidence supporting the commission's findings.
Moreover, based upon these findings, the commission properly concluded that a formal
declaration of vacancy was warranted. For all practical purposes, appellant's office had
remained without an active, full-time presiding judge for approximately nine months. There
was an evident need for the full complement of judges in the Eighth Judicial District, a
judicial district which has experienced a steady and extraordinary increase in population in
the last decade. Confronted with such an imperative, together with appellant's insistence that
he believed himself incapable of performing any of the functions of his office and that he had
no intention whatever of returning to the bench, we conclude that the commission's action
was necessary and proper. Indeed, declaring appellant's office vacant on this ground
minimized the prospect that an appeal challenging the commission's remaining findings
respecting disability retirement or removal for misconduct might needlessly delay or confuse
the process of selecting a successor judge, notwithstanding appellant's stated intention never
to return to the bench.
Appellant has asserted on appeal, however, that pursuant to NRS 3.080(1), only the
governor may declare a vacancy in the office of district judge and, therefore, the commission
lacked jurisdiction to take such action.
37
We disagree. The commission did nothing more
than acknowledge a de facto vacancy of long duration which appellant's own testimony and
actions unequivocally confirmed. We recognize, of course, that appellant never sought to
retire unconditionally.
__________

37
NRS 3.080(1) provides: The governor shall declare vacant the office of district judge.
sought to retire unconditionally. Quite to the contrary, appellant sought an early, enhanced
disability retirement that was vastly more advantageous financially than the normal retirement
he had earned and which the commission ultimately found to be his only entitlement.
Nonetheless, appellant never indicated that, in the absence of a finding that he was entitled to
a disability pension, he would attempt to remain on the bench. Nor did he offer or request
permission to resume his duties in a limited capacity with a reduced workload designed to
accommodate his circumstances. Rather, appellant's statements and actions evidenced a clear
intention never to resume any judicial functions under any circumstances. Consequently and
in light of the commission's remaining findings, we fail to discern how appellant was
prejudiced, even assuming that the commission exceeded its authority by declaring appellant's
office vacant.
[Headnote 24]
In any event, the Nevada Constitution specifically empowers the commission to remove a
judge from office for willful misconduct, willful or persistent failure to perform the duties of
his office or habitual intemperance . . . . See Nev. Const. art. 6, 21(6)(a). Further, the
commission is authorized to retire a judge for advanced age or for a disabling mental or
physical condition that is likely to be permanent in nature. See Nev. Const. art. 6, 21(6)(b).
The power to adjudicate and order the removal or retirement of a judge must necessarily
imply the power to declare the office vacant. See generally Galloway v. Truesdell, 83 Nev.
13, 422 P.2d 237 (1967). To the extent that the commission's exercise of this implied
authority may have conflicted with any express ministerial duty imposed upon the governor
by the legislature, the commission's power was clearly preeminent. See Goldman v. Bryan,
106 Nev. 30, 37, 787 P.2d 372, 377 (1990) (citing Robison v. District Court, 73 Nev. 169,
175, 313 P.2d 436, 440 (1957)). To hold otherwise would elevate form over substance.
Accordingly, we conclude that the commission acted entirely within the ambit of its lawful
authority.
Appellant further complains that he was deprived of due process of law because the
commission failed to provide him with fair and sufficient notice of the charge of his
allegedly having voluntarily abandoned and relinquished his judicial office.'
38
See
generally, In re Ruffalo, 390 U.S. 544 {196S).
__________

38
No allegation of willful or persistent failure to perform judicial duties was alleged in the commission's
initial order of formal complaint as a ground for removal. Nor did the commission expressly purport to decide
that removal was warranted by appellant's willful or persistent failure to perform his judicial duties. Nonetheless,
appellant's abandonment and relinquishment of his office was placed in issue by the documentary evidence
appellant presented at the probable cause hearing, by the statements in appellant's
See generally, In re Ruffalo, 390 U.S. 544 (1968). We note, however, that both the
commission's order clarifying issues and its earlier order of formal complaint adequately
apprised appellant that the commission considered appellant as having acknowledged that he
would not continue in judicial office. The order clarifying issues not only indicated that the
facts and circumstances surrounding this issue constituted one of three distinct issues then
pending in the proceedings, but also that, under these circumstances, the commission
considered appellant to have vacated his office. Moreover, as noted, the matter was initially
placed in issue by the only evidence appellant submitted at the probable cause hearing, i.e.,
appellant's letter to the governor declaring that he was unable to perform the duties of his
office. The statements and declarations in appellant's own verified answer further served to
focus the issue, and at no time did appellant register any concrete objection to the
commission's stated intention to declare his office vacant at the formal hearing. Thus,
appellant had adequate notice that this matter was in issue, well in advance of the formal
hearing. Consequently, we perceive no procedural irregularity. See Gruenburg v. Kavanagh,
413 F.Supp. 1132 (E.D. Mich. 1976). Nor do we perceive any actual prejudice that may be
attributed to the purported irregularity. See In re Robson, 500 P.2d 657 (Alaska 1972).
X. THE MOTION TO DISQUALIFY
Nevada Supreme Court Justice Charles E. Springer sat as a member of the commission in
this matter. At the commencement of the probable cause proceedings, Justice Springer made
the following statement on the record:
I would like the record to reflect that I communicated with Mr. Cobeaga and told him
that because I have been [a] political adversary, for lack of a better expression, of Judge
Goldman, that I offered to disqualify myself voluntarily, without cause. And I was
advised by Mr. Cobeaga that I would not be challenged and that Judge Goldman had no
objection to my serving on the Commission in his case. And I just wanted that to be a
matter of record.
__________
answer and other written pleadings and by appellant's testimony. Thus, appellant himself clearly established that
he had not and would not perform his judicial duties. Although the commission may only remove or retire a
judge on one or more of the constitutional grounds specified above and in the manner specified in its rules,
nothing in the constitution or the rules forecloses the commission from acknowledging that, during the course of
removal and retirement proceedings, a vacancy has been established by a judge's own unequivocal declaration of
an intention not to return to the bench.
In response, appellant's counsel Mr. Cobeaga confirmed, That's correct, Your Honor.
Notwithstanding appellant's rejection of Justice Springer's offer to remove himself from
the commission, one week prior to the scheduled formal hearing, appellant moved the
commission to disqualify Justice Springer from further participation in the proceedings.
Appellant asserted that new information had come to his attention, after he initially
assented to Justice Springer's participation, which revealed that in October of 1986, Justice
Steffen had conducted an inquiry on behalf of this court into appellant's behavior on the
bench.
At the formal hearing, the special prosecutor opposed appellant's motion and read a
statement from Justice Springer into the record. The statement explained that Justice Springer
was not biased, that he harbored no ill will nor ill feelings against Judge Goldman, and that
he felt he could sit impartially in this matter. Further, Justice Springer explained that he had
played no role in Justice Steffen's initial tentative inquiry.
The five other members of the commission subsequently denied appellant's motion. More
specifically, the other commission members concluded as follows:
At the outset of the hearing on June 12, 1987, [Judge Goldman] belatedly attempted
to challenge the participation in the proceedings of a Commission member whose
participation [Judge Goldman] had previously accepted and stipulated to. The five other
members of the Commission voted unanimously to deny [Judge Goldman's] motion as
tardy and without merit. However, the five other sitting members of the Commission,
whose participation has not been challenged and who constitute a quorum to take action
herein, have further determined that their deliberations and votes in this matter, as set
forth herein, would be the same, and would have been the same without the
participation and votes of the Commission member whom [Judge Goldman] belatedly
attempted to challenge.
On appeal, appellant contends that the commission's refusal to disqualify Justice Springer
from the proceedings constitutes prejudicial error. Appellant alleges that, at the time he
initially rejected Justice Springer's offer of recusal, he was unaware that Justice Steffen, on
behalf of the supreme court, had conducted an investigation into appellant's fitness to remain
on the bench. Further, appellant asserts that his knowledge of the supreme court's role was
radically altered by new information he received on May 4, 1987, well after he agreed to
Justice Springer's participation, when he first became aware of information contained in a
"Certificate In Lieu of Record," authored by Justice Steffen.
contained in a Certificate In Lieu of Record, authored by Justice Steffen. Appellant
maintains that the certificate revealed to him for the first time that this court had conducted an
administrative inquiry into his behavior. See Goldman v. Bryan, 104 Nev. 644, 764 P.2d 1296
(1988). Thus, appellant maintains, he initially assented to Justice Springer's participation only
because he had no knowledge of the facts detailing the extent of the supreme court's inquiry
into his fitness. Appellant also argues that the facts revealed by the certificate raise an
appearance of partiality in the mind of a reasonable observer sufficient to require Justice
Springer's disqualification from the commission under Nevada Code of Judicial Conduct,
Canon 3C(1)(a).
39
We disagree.
[Headnote 25]
First, as the special prosecutor observes, Justice Steffen's certificate indicates that, as early
as October 16, 1986, two of appellant's counsel knew that Justice Steffen was investigating,
on behalf of the supreme court, events that had become public knowledge bearing on
appellant's fitness to remain on the bench. Further, on March 30, 1987, appellant's counsel
specifically confirmed on the record that appellant had no objection to Justice Springer
serving as a member of the commission in this case. Thus, the record establishes that, in
October of 1986, appellant's counsel knew the facts subsequently asserted in support of the
allegations contained in the motion to disqualify, and thereafter expressly waived any
objections to Justice Springer's participation. Moreover, appellant formally raised the
allegations of impropriety only after learning of the outcome of the probable cause
proceeding. Under these circumstances, we conclude that appellant waived his right to
challenge Justice Springer's participation on the commission. See Ainsworth v. Combined
Ins. Co., 105 Nev. 237, 259-60, 774 P.2d 1003, 1019 (party waived right to raise allegations
of bias where party's counsel knew the subsequently asserted factual basis for allegations and
did not promptly tender an objection but remained silent and gambled on the outcome of the
proceeding), cert. denied, 493 U.S. 958 (1989).
Second, this court has previously rejected a similar challenge by appellant to Justice
Steffen's participation in this very appeal. See Goldman v. Bryan, 104 Nev. 644, 764 P.2d
1296 (1988). Although Justice Springer was not the subject of the specific motion to
disqualify resolved in that opinion, the court's reasoning nonetheless provides persuasive
support for the conclusion that a motion for disqualification which is based upon the facts
detailed in Justice Steffen's certificate does not raise legally cognizable grounds for
Justice Springer's disqualification from the commission.
__________

39
Pursuant to Nev. Code of Judicial Conduct Canon 3C(1)(a), [a] judge should disqualify himself in a
proceeding in which his impartiality might reasonably be questioned, including but not limited to instances
where . . . [h]e has a personal bias or prejudice concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding . . . .
reasoning nonetheless provides persuasive support for the conclusion that a motion for
disqualification which is based upon the facts detailed in Justice Steffen's certificate does not
raise legally cognizable grounds for Justice Springer's disqualification from the commission.
Nor does it constitute a disqualifying appearance of impropriety under the Nevada Code of
Judicial Conduct. If the facts revealed by Justice Steffen's certificate did not require his
disqualification from participation in this appeal, neither can it be said to require Justice
Springer's disqualification from the commission. This is especially true in light of Justice
Springer's statement that he played no role in Justice Steffen's initial tentative inquiry.
Third, it is clear from the commission's order that appellant suffered no prejudice
whatsoever from Justice Springer's participation, even assuming that some cause for
disqualification or recusal existed. A duly constituted quorum of the commission stated
specifically that its deliberations and votes in this matter would be and would have been the
same even without the voting participation of Justice Springer. Accordingly, we reject
appellant's contentions of prejudicial error as wholly without merit.
XI. CONCLUSION
The commission correctly concluded that appellant committed willful misconduct in office
unexcused by any claimed physical or mental disability. Upon the several modifications
specified above, we affirm the commission's determination that willful misconduct warranted
appellant's removal from office. See Nev. Const. art. 6, 21(6)(a). We reverse and vacate the
commission's determination, however, that appellant engaged in habitual intemperance.
We further affirm the commission's determination that appellant voluntarily relinquished
and abandoned his office, and we conclude that the commission acted entirely within the
ambit of its lawful authority by declaring appellant's office vacant on this basis. Finally, we
affirm in all respects the commission's determinations that appellant was not entitled to an
early, enhanced disability pension.
Steffen and Young, JJ., Zenoff, Sr. J.,
40
Robison, D. J.,
41
and Whitehead, D. J.,
42
concur.
__________

40
The Honorable David Zenoff, Senior Justice, was designated by the Chief Justice to sit in place of The
Honorable Robert E. Rose, Justice. SCR 10.

41
The Honorable Norman C. Robison, Judge of the Ninth Judicial District Court, was designated by the
Governor to sit in place of The Honorable John C. Mowbray, Chief Justice. Nev. Const. art. 6, 4.

42
The Honorable Jerry Carr Whitehead, Judge of the Second Judicial District Court, was designated by the
____________
108 Nev. 308, 308 (1992) Sogg v. Nevada State Bank
VICTORIA SOGG, Appellant, v. NEVADA STATE BANK, Executor for the Estate of
PAUL B. SOGG, Deceased, Respondent.
No. 20724
May 13, 1992 832 P.2d 781
Appeal from district court judgments in a consolidated case involving an action for
declaratory relief and an action for divorce. Eighth Judicial District Court, Clark County;
Joseph S. Pavlikowski, Judge.
Husband filed action for divorce. The district court upheld validity of premarital
agreement, and wife appealed. The supreme court held that premarital agreement was invalid.
[Rehearing denied August 5, 1992]
Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas;
Frances-Ann Fine, Las Vegas, for Appellant.
Lionel Sawyer & Collins and Mark A. Solomon, Las Vegas, for Respondent.
Supreme court may review validity of premarital agreement de novo. NRS 123A.080, subd. 3.
2. Husband and Wife.
Where premarital agreement was adopted prior to state's adoption of Uniform Premarital Agreements Act (UPAA), agreement
would be found to be enforceable if it either conformed to requirements of UPAA or if it conformed to common law as interpreted by
courts prior to enactment of UPAA. NRS 123A.010 et seq.
Presumption of fraud may be overcome by showing that party claiming disadvantage under premarital agreement was not in fact
disadvantaged; factors to consider include whether disadvantaged party had ample opportunity to obtain advice of independent
attorney, was not coerced into making rash decision by circumstances under which agreement was signed, had substantial business
experience and business acumen, and was aware of financial resources of other party and understood rights that were being forfeited.
There was presumption that premarital agreement was fraudulent where agreement left wife with no resources or means of support
in event of divorce and wife probably would have received more under community property laws were it not for agreement.
Wife did not have sufficient opportunity to consult attorney of own choosing before signing premarital agreement, so that
presumption of fraud arising from disadvantageous terms of agreement for wife was not overcome, where agreement was drafted by
husband's attorney who had been wife's attorney during previous divorce, husband's attorney arranged
appointment with another attorney for wife without advising wife that she should select her own attorney,
wife did not receive benefit of counsel from brief meeting with other attorney, and wife did not have
opportunity to consult attorney between cancellation of wedding and reconciliation.
been wife's attorney during previous divorce, husband's attorney arranged appointment with another attorney for wife without advising
wife that she should select her own attorney, wife did not receive benefit of counsel from brief meeting with other attorney, and wife
did not have opportunity to consult attorney between cancellation of wedding and reconciliation.
Circumstances surrounding signing of premarital agreement prevented wife from adequately protecting her rights and supported
contention that agreement should not have been enforced where wife was asked to sign agreement day before initial wedding date,
husband interrupted wife while she consulted with attorney and demanded to know reason for delay, husband cancelled wedding when
wife would not sign immediately, and wife was not presented with copy of agreement again until morning of rescheduled wedding.
Premarital agreements which seem unfair on their face will sometimes be upheld when disadvantaged party to agreement has
substantial business experience.
Presumption that premarital agreement was unfair was not overcome by extent of wife's business experience where extent of wife's
management of finances when she was singer was that she cashed checks and deposited them into her bank account, wife's work in
Europe consisted merely of demonstrating wireless telephone models for her brother's company, and international currency arbitrage in
which wife was involved and for which she mortgaged her home was swindle in which wife was prey.
Premarital agreements will be enforced only where party seeking to enforce agreement fully disclosed his or her assets to other
party prior to signing.
Husband failed to make disclosures necessary to permit wife to make informed decision with respect to premarital agreement and,
therefore, agreement was invalid where financial statement describing husband's net worth was not attached to agreement when wife
signed it, and wife's testimony suggested that she underestimated extent of husband's wealth, even though she knew he was wealthy
and had seen his home and some of his other properties.
OPINION
Per Curiam:
Victoria Sogg (Vicky) and Paul Sogg (Paul) met between 1972 and 1974, when both were
married to other people. Paul was a successful general contractor, engaged in the business of
acquiring and developing real estate. Vicky had been a professional country singer following
her graduation from high school. In 1981, she left Las Vegas for Europe, where she was
sporadically employed by her brother's company demonstrating wireless telephones to
potential customers in various countries. While in Europe, Vicky also participated in
DeForest, Inc., a partnership allegedly established to capitalize on differences in
monetary exchange rates.
Europe, Vicky also participated in DeForest, Inc., a partnership allegedly established to
capitalize on differences in monetary exchange rates. Her participation in this partnership
required an investment of $265,000, which she raised by securing a second mortgage on her
house in Sherman Oaks, California, wrapped with a mortgage on her sister's house. Vicky
returned to the United States in 1986, when the bank threatened to foreclose on the houses.
She never received a return on her investment and was eventually unable to locate her
partners. She was told that the partnership went bankrupt in January of 1987, although she
never received any documents to that effect and never consulted an attorney.
Vicky and Paul began dating in early 1987. Vicky was approximately fifty-five years old at
the time, and Paul was approximately eighty-seven. Paul was divorced and Vicky was
separated from her husband, Robert Fletcher (Fletcher). In April of 1987, Paul asked Vicky to
marry him, and she obtained a divorce from Fletcher, which was paid for by Paul.
Prior to their marriage, Vicky was aware that Paul was a wealthy man. However, Vicky
was never specifically informed of Paul's net worth, which was approximately twenty million
dollars. Paul testified that prior to their wedding, he was aware that Vicky did not have
substantial financial resources, but he believed Vicky was expecting to receive five million
dollars from her European business venture.
The day before Paul and Vicky were to be married, Paul took Vicky to the office of his
attorney, Mr. Avila (Avila), to sign a premarital agreement. Vicky testified that she was not
given a copy of the agreement to read at the time. Avila told Vicky that she should review the
agreement with her own attorney, and he took her to see a Mr. Cox (Cox), an attorney whose
office was down the hall from Avila's. Avila had already arranged an appointment for Vicky
with Cox. Cox met with Vicky alone and began reading parts of the agreement to her. He
testified that she immediately had questions concerning certain provisions requiring her to
return various items of jewelry that Paul had given her. After approximately twenty to thirty
minutes, before Vicky and Cox had finished reviewing the agreement and before Cox had had
the opportunity to offer Vicky his advice, Paul entered Cox's office unannounced. Paul
testified that Cox and Vicky had been talking for an hour, and he wanted to know what was
taking so long. Paul and Vicky began to argue and then left Cox's office, with Vicky in tears.
At the time the couple left Cox's office, Paul was aware that Vicky was upset about
provisions in the agreement concerning the jewelry he had given her and the payments he had
made on her house, as well as the lack of a provision for her living expenses in the event of a
divorce.
After the meeting in Cox's office, Paul called off the wedding and he and Vicky stopped
talking to each other. Vicky returned the jewelry and the car that Paul had given to her.
Several weeks later, the parties reconciled, and a new wedding date was set. Because the
parties were in a hurry to get married prior to the date of their prearranged honeymoon, they
did not discuss the premarital agreement again until shortly before the wedding. Vicky
testified that she and Paul went to Avila's office to sign the agreement the day before their
wedding. Avila was not present, but Paul and Vicky both signed the agreement in the
presence of Avila's secretary. Vicky testified that she did not read the agreement at that time
because Paul had told her that he had not had the opportunity to make any changes. In fact,
she testified that she never actually read the document until after the marriage and
honeymoon. Rather, Vicky testified that she signed the agreement because Paul promised her
that he would amend it when they returned from their honeymoon, to provide for her house in
California and to allow her to keep the jewelry, furs, and car he had given her. Although an
addendum to the agreement was eventually drafted, it was never signed by the parties.
Sometime after Vicky and Paul signed the premarital agreement subsequent to the parties'
marriage, Avila requested that Cox sign the attorney's certificate stating that he had counseled
Vicky with respect to the agreement. Cox refused to sign the certificate after the marriage had
taken place because he felt it would be misleading under the circumstances. Furthermore,
Cox testified that he had not even seen the complete agreement prior to the parties' marriage,
because the copy he had received did not contain any of the financial documents referred to as
attachments in the agreement. Later, after Paul had initiated the divorce action, a second
attorney, Mr. Swanson (Swanson), was also asked to review the agreement on Vicky's behalf.
Swanson met once with both Paul and Vicky, but they never had the opportunity to review
the entire agreement. Swanson's copy of the agreement was also missing the financial
attachments, and he also refused to give his approval to the agreement.
Paul filed for divorce approximately eight months after the parties' marriage. The district
court bifurcated the divorce action. During the first phase of the proceedings, the district court
upheld the validity of the premarital agreement, finding that it had been voluntarily and
knowingly entered into by both parties and that it was not unconscionable as a matter of law.
During the second phase of the proceedings, the district court found that the jewelry, furs, and
car given to Vicky by Paul were not gifts but were only for her use during the marriage, and
that the mortgage payments he made on her house were a loan.
[Headnotes 1, 2]
This court may review the validity of a premarital agreement de novo. Buettner v.
Buettner, 89 Nev. 39, 45, 505 P.2d 600, 604 (1973). See also NRS 123A.080(3). Because the
premarital agreement in the instant case was adopted prior to this state's adoption of the
Uniform Premarital Agreements Act (UPAA), this agreement will be found to be enforceable
if it either conforms to the requirements of the UPAA or if it conforms to the common law, as
interpreted by the courts of Nevada prior to enactment of the UPAA. See NRS 123A.010,
Reviser's Note.
[Headnotes 3, 4]
We have previously held premarital agreements to be enforceable unless unconscionable,
obtained through fraud, misrepresentation, material nondisclosure or duress. Buettner, 89
Nev. at 45, 505 P.2d at 604. Other jurisdictions have held such agreements to similar
standards. Because of the presumed fiduciary relationship existing between parties who are
engaged to be married, a presumption of fraud has been found where the agreement entered
into greatly disfavors one of the parties. Bauer v. Bauer, 464 P.2d 710, 711 (Or.App. 1970);
Matter of Marriage of Matson, 730 P.2d 668, 671 (Wash. 1986). This presumption may be
overcome by a showing that the party claiming disadvantage was not in fact disadvantaged.
Factors to consider include whether the disadvantaged party (1) had ample opportunity to
obtain the advice of an independent attorney, (2) was not coerced into making a rash decision
by the circumstances under which the agreement was signed, (3) had substantial business
experience and business acumen, and (4) was aware of the financial resources of the other
party and understood the rights that were being forfeited. See, e.g., Matson, 730 P.2d at 671.
Because, in the instant case, the premarital agreement signed by Vicky left her with no
resources or means of support in the event of a divorce, and because Vicky probably would
have received more under the community property laws of Nevada were it not for the
premarital agreement, there is a presumption that the agreement was fraudulent. Therefore,
the agreement should not be enforced unless this presumption is overcome by the
aforementioned considerations.
The presumption of fraud may be overcome by a finding that the disadvantaged party had
the opportunity to consult with an attorney of his or her own choosing. Muscelli v. Muscelli,
96 Nev. 41, 43, 604 P.2d 1237, 1237-38 (1980) (post-marital agreement). See also Hill v.
Hill, 356 N.W.2d 49, 53 (Minn.App. 1984); Bauer v. Bauer, 464 P.2d 710, 712 (Or.App.
1970); Matson, 730 P.2d at 671. In Knoll v. Knoll, 671 P.2d 718, 719 (Or.App. 1983), the
court upheld the validity of a premarital agreement where the disadvantaged wife did not
obtain the advice of counsel.
agreement where the disadvantaged wife did not obtain the advice of counsel. However, the
court noted that the agreement was drafted by the husband's attorney seven or eight months
before it was signed by the parties, and that the husband's attorney had repeatedly advised the
prospective wife to seek counsel. Id. The wife did not seek the advice of counsel and testified
that she had not even read the agreement. Id. Given these circumstances, the court concluded
that the wife had failed to meet her obligation to protect her own interests. Id. at 720.
[Headnote 5]
In contrast, in the instant case, the premarital agreement was drafted by Avila, Paul's
attorney. Avila had been Vicky's attorney during her previous divorce, so she had reason to
trust him. On the day Vicky was first presented with the agreement, Avila had arranged an
appointment for Vicky to meet with Cox. Vicky was never advised that she should select her
own attorney. Cox spent less than an hour discussing the agreement with Vicky, and they
were unable to discuss it in its entirety because Paul interrupted them. After the parties'
marriage, when Cox was asked to sign the attorney's certificate, he refused because he felt
that he had not been able to independently advise Vicky. Therefore, we conclude that Vicky
did not receive the benefit of counsel from her brief meeting with Cox.
In addition, we reject Paul's contention that Vicky had ample opportunity to seek the
advice of counsel between the time Paul called off the wedding and the time the parties
reconciled. Because Vicky had no reason to know that the agreement would again become
necessary, she had no reason to consult an attorney. Furthermore, she had not been given a
copy of the agreement that she could show to an attorney. Finally, when Vicky was asked to
sign the agreement a second time, shortly before the second wedding date, Paul's attorney was
not present and Vicky was not given time to consult with her own attorney. Thus, we
conclude that Vicky was not accorded an opportunity to obtain the assistance of counsel
sufficient to overcome the presumption of fraud.
The circumstances surrounding the signing of a premarital agreement must also be
considered in determining its enforceability. See, e.g., Matter of Marriage of Matson, 730
P.2d 668, 672 (Wash. 1986). In particular, circumstances which impose time pressure on the
disadvantaged party have been held to invalidate the agreement. For example, in Matson, the
agreement was invalidated because the first meeting to review a sample agreement occurred
only three days prior to the day the agreement was signed, which was the night before the
wedding. Id. In addition, the wife was not given a copy of the document to review during
those three days. Similarly, in Bauer v. Bauer, 464 P.2d 710, 712 {Or.App.
(Or.App. 1970), the court refused to uphold an agreement where the disadvantaged wife
learned about the agreement the day the couple left to get married.
[Headnote 6]
In the instant case, Vicky was taken to Paul's attorney's office to sign the premarital
agreement the day before their initial wedding date. While consulting with the attorney
chosen for her by Paul, Paul interrupted Vicky, demanding to know the reason for the delay.
Because she would not sign immediately, Paul called off the wedding. When Paul contacted
Vicky several weeks later to attempt a reconciliation, he stressed that they had to get married
immediately so that they would not miss the honeymoon cruise they had planned. Vicky was
not presented with a copy of the agreement again until the morning of her wedding, when she
was again under pressure to sign it because her wedding would be called off if she did not.
We conclude that the circumstances surrounding the signing of the agreement prevented
Vicky from adequately protecting her rights. Therefore, these circumstances support Vicky's
contention that the agreement should not have been enforced.
[Headnote 7]
Premarital agreements which seem unfair on their face will sometimes be upheld when the
disadvantaged party to the agreement has substantial business experience. Merrill v. Estate of
Merrill, 552 P.2d 249, 250 (Or. 1976). In Merrill, the wife's substantial business experience
was found to be sufficient to rebut the presumption of unfairness where the wife had a
realtor's license in California and Oregon, had been in business with her former husband, and
had assets totaling $400,000 prior to the marriage. Id. Similarly, in McFerron v. Trask, 472
P.2d 847, 848-50 (Or.App. 1970), the court upheld a premarital agreement where the
disadvantaged wife had formerly operated her own floral business and had supported herself
throughout most of the marriage.
[Headnote 8]
However, in this case, we find Paul's argument that Vicky was a sophisticated
businesswoman tenuous. Paul argues that Vicky had substantial business experience because
she (1) had managed her own finances during her career as a professional country singer, (2)
had worked in Europe for five years, and (3) had been engaged in a business venture
involving international currency arbitrage. In contract, Vicky testified that the extent to which
she managed her finances when she was a singer was that she cashed checks and deposited
them into her bank account. Furthermore, her work in Europe consisted merely of
demonstrating wireless telephone models for her brother's company.
telephone models for her brother's company. Finally, Vicky's involvement in international
currency arbitrage consisted of her mortgaging her home to give money to four people who
claimed to be engaged in this business, in exchange for the promise that she would receive
five million dollars for her investment. Although she attended several meetings with this
foursome while in Europe, she did not know whether a partnership or corporation had been
formed, she was unable to locate her partners upon returning to the United States, and she did
not know what had happened to the business when she left, except that someone had told her
that it went bankrupt. Vicky took no action to protect her investment. We cannot but conclude
that Vicky's business venture was a swindle in which she was the unwary prey, and that Vicky
is in fact extremely unsophisticated with respect to business matters. Therefore, we conclude
that the presumption that the premarital agreement is unfair is not overcome by the extent of
Vicky's business experience.
[Headnote 9]
Finally, premarital agreements will be enforced only where the party seeking to enforce the
agreement fully disclosed his or her assets to the other party prior to signing. See, e.g., Matter
of Estate of Crawford, 730 P.2d 675, 678 (Wash. 1986) (premarital agreement declared void
where the agreement listed the husband's property but not its value).
[Headnote 10]
In this case, the financial statement describing Paul's net worth was not attached to the
agreement when Vicky signed it, although the agreement referred to this attachment. Paul
testified that Vicky was familiar with his home, and that he had driven her around to see some
of his other properties, although he had not told her their value. Although Vicky knew that
Paul was wealthy, her testimony suggests that she underestimated the extent of his wealth.
We conclude that Paul failed to make the disclosures necessary to permit Vicky to make an
informed decision with respect to the premarital agreement, and that therefore, the agreement
is invalid.
Because we conclude that the premarital agreement is invalid, we do not need to reach the
issues arising from the second phase of the proceedings in this case. Accordingly, we reverse
the judgment of the district court and remand this case with the instruction that it be retried
before a different district court judge.
____________
108 Nev. 316, 316 (1992) Cormier v. Manke
RONALD A. CORMIER, Appellant, v. WILLIAM A. MANKE, SR., and LAVONNE
MANKE, dba EMIGRANT STORAGE, Respondents.
No. 21743
May 13, 1992 830 P.2d 1327
Appeal from an order of the district court denying appellant's motion for attorney's fees
pursuant to NRS 18.010(2)(a). Second Judicial District Court, Washoe County; Jerry C.
Whitehead, Judge.
Accident plaintiff's motion for attorney fees was denied by the district court. Plaintiff
appealed. The supreme court held that district court should have considered whether plaintiff
eventually recovered more than rejected offer and whether plaintiff's rejection of nonstatutory
settlement offer unreasonably delayed litigation.
Goedert & Michaels, Reno, for Appellant.
Perry & Spann and Kelly Watson, Reno, for Respondents.
1. Costs.
Statutory award of attorney fees to prevailing party is discretionary with district court. NRS 18.010(2)(a).
2. Costs.
When considering motion for attorney fees in case in which nonstatutory offer of settlement has been rejected, district court must
consider reasonableness of her rejection, including whether offeree eventually recovered more than rejected offer and whether offeree's
rejection unreasonably delayed litigation with no hope of greater recovery. NRS 18.010(2)(a).
3. Costs.
Motion for attorney fees in case in which nonstatutory offer of settlement had been rejected was remanded for a consideration of
whether rejection was reasonable. NRS 18.010(2).
OPINION
Per Curiam:
This case arose out of an accident at a self-storage facility. As a result of the injury he
sustained in the accident, appellant brought an action against respondents on November 20,
1986. On approximately March 23, 1989, respondents made an offer of judgment pursuant to
NRCP 68 and NRS 17.115 of $5,000.00. On approximately May 5, 1989, appellant made an
offer of judgment of $18,000.00. Neither offer of judgment was accepted. On May 7, 1990, a
settlement conference was held at which the settlement master informed counsel that he
thought the value of the case was in the $9,000.00 to $11,000.00 range.
1990, a settlement conference was held at which the settlement master informed counsel that
he thought the value of the case was in the $9,000.00 to $11,000.00 range. At some
subsequent time less than ten days before trial, respondents orally offered appellant
$10,000.00 to settle the case.
1
Appellant refused the offer.
Following a brief trial, the jury returned a verdict in favor of appellant. The jury found
respondent Emigrant Storage liable and assessed damages of $25,000.00. The jury further
found 49 percent contributory negligence on appellant's part, which reduced the damages
award to $12,750.00.
On June 15, 1990, appellant brought a motion for attorney's fees pursuant to NRS
18.010(2)(a).
2
Respondents opposed the motion. The district court denied appellant's motion
for attorney's fees, stating:
The award of attorney fees in [sic] entirely discretionary with this Court. Ecklund v.
Nevada Wholesale, 95 Nev. 430, 596 P.2d 218 (1979). Because the settlement figure
and Master Petty's valuation were close to the final verdict, this case should have
settled.
On appeal, appellant contends that the district court abused its discretion in denying his
motion for attorney's fees pursuant to NRS 18.010(2)(a). Repeatedly characterizing
respondents' $10,000.00 offer as an inferior offer made on the eve of trial, appellant
emphasizes that the offer was not made pursuant to either NRS 17.115 or NRCP 68.
Appellant concludes that [t]he refusal to accept a less favorable settlement on the eve of trial
does not provide a reasonable basis to deny [attorney's] fees.
[Headnotes 1, 2]
An award of attorney's fees to the prevailing party pursuant to NRS 18.010(2)(a) is
discretionary with the district court. Ecklund v. Nevada Wholesale Lumber Co., 95 Nev. 430,
596 P.2d 218 (1979). There is, however, no Nevada authority directly addressing the validity
of a non-statutory offer of judgment and how the rejection of such an offer should affect the
offeree's ability to recover attorney's fees. After reviewing cases from other jurisdictions, we
hold that when considering a motion for attorney's fees pursuant to NRS 18.010(2)(a) in a
case in which a non-statutory offer of settlement has been rejected, the district court
must consider the reasonableness of the rejection.
__________

1
Although the exact date of the offer is not clear from the record, the parties agree that the offer was made in
the week immediately preceding trial.

2
2. In addition to the cases where an allowance is authorized by specific statute, the court may make
an allowance of attorney's fees to a prevailing party:
(a) When he has not recovered more than $20,000. . . .
non-statutory offer of settlement has been rejected, the district court must consider the
reasonableness of the rejection. Factors which go to reasonableness include whether the
offeree eventually recovered more than the rejected offer and whether the offeree's rejection
unreasonably delayed the litigation with no hope of greater recovery. See Zabkowicz v. West
Bend Co., Div. Dart Industries, 789 F.2d 540 (7th Cir. 1986); Vocca v. Playboy Hotel of
Chicago, Inc., 686 F.2d 605 (7th Cir. 1982); Spencer v. General Elec. Co., 706 F.Supp. 1234
(E.D. Va. 1989).
[Headnote 3]
We vacate the order of the district court denying appellant's motion for attorney's fees
pursuant to NRS 18.010(2), and we remand this case to the district court for reconsideration
under the standard explained above.
____________
108 Nev. 318, 318 (1992) Passanisi v. State
STEPHEN MICHAEL PASSANISI, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22168
May 13, 1992 831 P.2d 1371
Appeal from an order denying a post-conviction motion to modify a sentence. Ninth
Judicial District Court, Douglas County; Norman C. Robison, Judge.
Defendant filed post-conviction motion to modify sentence. The district court denied
motion. Defendant appealed. The supreme court held that: (1) district court had authority to
consider motion; (2) supreme court had jurisdiction to entertain appeal; and (3) district court
lacked jurisdiction to modify sentence after defendant began to serve it.
Affirmed.
Nielsen and Walker, Carson City, for Appellant
Frankie Sue Del Papa, Attorney General, Carson City; Scott W. Doyle, District Attorney
and Michael P. Gibbons, Chief Criminal Deputy, Douglas County, for Respondent.
1. Criminal Law.
Trial court has inherent authority to correct sentence at any time if sentence was based on mistake of material fact that worked to
extreme detriment of defendant.
2. Criminal Law.
Trial court had authority to entertain defendant's motion to modify his sentence.
3. Criminal Law.
Defendant's motion to modify sentence was more in nature of motion for new trial, rather than petition for post-conviction relief,
since it was addressed to inherent authority of court to correct its own alleged mistake; accordingly, order denying motion was
appealable. NRS 177.015, subd. 1(b), 177.315, subd. 2.
4. Criminal Law.
District court lacked jurisdiction to modify defendant's sentence after he began to serve it, although defendant claimed that district
court entered judgment against him in mistaken belief that defendant would be placed in honor camp when law in effect when
defendant was sentenced precluded placement of defendant in honor camp; it appeared doubtful from sentencing transcript that
availability of honor camp played any role in sentence and even assuming that availability of honor camp was material consideration,
mistake was not with respect to defendant's record nor was sentence illegal.
5. Criminal Law.
Generally, district court lacks jurisdiction to modify or suspend sentence after defendant has begun to serve it. NRS 176.1853,
subd. 2.
Not every mistake or error which occurs during sentencing gives rise to due process violation. U.S.C.A.Const. amends. 5, 14.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying appellant's post-conviction
motion to modify his sentence.
On March 20, 1986, appellant caused a two car automobile accident that resulted in the
death of the driver of the other car and serious injuries to the passenger of the other car.
Appellant left the scene of the accident.
On August 4, 1986, pursuant to plea negotiations, appellant pleaded guilty to two counts of
DUI causing death or substantial bodily harm and one count of leaving the scene of an
accident. On September 8, 1986, the district court sentenced appellant to two consecutive
fifteen year terms of imprisonment for the DUI offenses, and a concurrent term of six years
for leaving the scene of an accident. The judgment of conviction was entered September 10,
1986.
On February 12, 1991, four and one-half years after his judgment of conviction was
entered, appellant filed in the district court a motion to modify sentence. In the motion,
appellant argued that the district court had imposed sentence based on a materially untrue
assumption of fact regarding the placement of appellant within the prison system. Thus,
appellant argued that the district court should modify the sentence. On February 15, 1991, the
state filed an opposition to appellant's motion. The state argued that the district court lacked
jurisdiction to consider appellant's motion because the only remedy available to appellant
was a petition for post-conviction relief.
appellant's motion because the only remedy available to appellant was a petition for
post-conviction relief. See NRS 177.315. On February 25, 1991, appellant filed his reply to
the state's opposition. On March 21, 1991, the district court denied appellant's motion on the
sole ground that it lacked jurisdiction to modify a sentence after the defendant had begun to
serve it. See NRS 176.1853(2). This timely appeal followed.
The state contends that the district court lacked subject matter jurisdiction to consider
appellant's motion below because the only method for collaterally challenging a judgment of
conviction is through a petition for post-conviction relief. The state relies on NRS
177.315(2), which provides:
The remedy provided in this section [post-conviction relief] is not a substitute for nor
does it affect any remedies which are incident to the proceedings in the trial court, the
remedy of direct review of the sentence or conviction or the writ of habeas corpus. It
comprehends and takes the place of all other common law, statutory or other remedies
which have heretofore been available for challenging the validity of the conviction or
sentence, and must be used exclusively in place of them.
(Emphasis added.)
[Headnotes 1, 2]
Appellant alleged in his motion below that the district court based its sentence on an
untrue assumption about a material fact which worked to appellant's extreme detriment.
Without suggesting that appellant's motion had merit, we note that the trial court has inherent
authority to correct a sentence at any time if such sentence was based on a mistake of material
fact that worked to the extreme detriment of the defendant. See Staley v. State, 106 Nev. 75,
787 P.2d 396 (1990); State v. District Court, 100 Nev. 90, 677 P.2d 1044 (1984); Warden v.
Peters, 83 Nev. 298, 429 P.2d 549 (1967). If the trial court has inherent authority to correct a
sentence, a fortiori, it has authority to entertain a motion requesting it to exercise that
inherent authority. Thus, the district court had authority to consider appellant's motion to
modify his sentence.
[Headnote 3]
Next, the state contends that this court lacks jurisdiction to entertain this appeal because no
statute or court rule authorizes an appeal from an order of the district court denying a motion
to modify a sentence. Appellant answers that this is essentially a petition for post-conviction
relief, and that an order denying such a petition is appealable pursuant to NRS 177.3S5.
a petition is appealable pursuant to NRS 177.385. We disagree with both the state and
appellant.
This action differs from a petition for post-conviction relief. Specifically, because the
motion is addressed to the inherent authority of the court to correct its own alleged mistake, it
does not share the characteristics of the usual petition for post-conviction relief. As noted
above, the district court has inherent authority to correct an illegal sentence at any time. The
same is true of a sentence that, although within the statutory limits, was entered in violation
of the defendant's right to due process. Thus, the time limits and other restrictions with
respect to a petition for post-conviction relief do not apply to a motion to modify a sentence
based on a claim that the sentence was illegal or was based on an untrue assumption of fact
that amounted to a denial of due process.
Similarly, as noted by this court in Peters, 83 Nev. at 301, 429 P.2d at 551, the instant
motion shares some characteristics with a petition for a writ of habeas corpus. Nevertheless,
such an issue could not properly be raised in many cases in the form of a petition for a writ of
habeas corpus, because it is the sentencing court that has the inherent authority to correct its
sentence, and the sentencing court does not have habeas corpus jurisdiction over a prisoner
not incarcerated within its district. See Nev. Const. art. 6, 6.
We believe that a motion to modify a sentence is the functional equivalent of a motion for
a new trial. Rather than seeking a new trial, the defendant seeks only a new sentencing. In
both instances, however, the defendant seeks an entirely new proceeding based on the claim
that the factual underpinnings of the district court's decision are incorrect. Such challenges are
direct attacks on the decision itself, rather than collateral, post-conviction attacks, and the
district court's authority to consider such motions is incident to the proceeding in the trial
court. NRS 177.315(2) (quoted above).
1
Thus, in timing and scope, the two actions are
essentially the same.
__________

1
We do not suggest by this conclusion that a criminal defendant could not, under the appropriate
circumstances, raise a challenge to the factual underpinnings of a sentence entered pursuant to a judgment of
conviction by way of a direct appeal or a petition for post-conviction relief. Nevertheless, the narrow type of
challenge which may be brought pursuant to the inherent authority of the district court recognized in Peters,
State v. District Court and Staley, i.e., the authority to correct a sentence based on a material mistake of fact
about the defendant's record, will usually be in the form of a challenge to factual information relied on by the
district court that is later determined to be false. Such a challenge is similar to a claim of newly discovered
evidence that might justify a new trial, and may be brought by motion for a new sentencing hearing.
An order granting or refusing a new trial is independently appealable by the defendant or
the state. NRS 177.015(1)(b); cf. Hargrove v. State, 100 Nev. 498, 686 P.2d 222 (1984)
(although no statute specifically provides for an appeal from an order of the district court
denying a motion for leave to withdraw a guilty plea, such a motion is the functional
equivalent of a motion for a new trial, and the district court's order denying the motion is
appealable as an order refusing a new trial). Thus, the state's contention lacks merit.
2

[Headnote 4]
Appellant contends that the district court relied on an untrue assumption of fact that
worked to his extreme detriment in violation of his due process rights. Specifically, appellant
argues that the district court entered judgment against him in the mistaken belief that
appellant would be placed in an honor camp, where he could have earned good time and work
credits at a faster rate and would have been segregated from hardened criminals. Statutory
law in effect when appellant was sentenced precluded placement of appellant in an honor
camp.
3
Because the district court was unaware of the statutory preclusion of housing
appellant at an honor camp, appellant argues that the district court should resentence him. We
disagree.
[Headnotes 5, 6]
Generally, a district court lacks jurisdiction to suspend or modify a sentence after the
defendant has begun to serve it. See NRS 176.1853(2); Miller v. Hayes, 95 Nev. 927, 604
P.2d 117 (1979). We have made exceptions to this rule, however, when a court has made a
mistake in rendering a judgment which works to the extreme detriment of the defendant.
State v. District Court, 100 Nev. 90, 95, 677 P.2d 1044, 1047 (1984) (quoting Warden v.
Peters, 83 Nev. 298, 301, 429 P.2d 549, 551 (1967)) {emphasis in original).
__________

2
In this regard, we note that in State v. District Court, this court questioned the propriety of the state's
petition for a writ of mandamus because the state could have appealed from the order of the district court
granting the defendant's motion to modify his sentence. See State v. District Court, 100 Nev. at 102 n.9, 677
P.2d at 1052.

3
At the time appellant was sentenced, NRS 209.481(1) precluded the placement in an honor camp of any
prisoner who was not eligible for parole or release from prison within a reasonable period of time. Prison
regulations defined a reasonable time to be eighteen months. Because of appellant's lengthy sentence, he was not
eligible for placement in an honor camp. The restriction in NRS 209.481(1) appeared to be at least arguably in
conflict with the legislature's stated intention in the DUI statutes that DUI offenders be segregated, as far as
practicable, from more violent prisoners. See, e.g., NRS 484.3795(1). In 1991, the legislature removed the
conflict between the statutes by expressly exempting DUI offenders from the limitations of NRS 209.481(1).
1991 Nev. Stats. ch. 128, 5, at 218.
(emphasis in original). Nevertheless, not every mistake or error which occurs during
sentencing gives rise to a due process violation. The cases implicitly recognize [that] . . . a
due process violation arises only when the errors result in materially untrue' assumptions
about a defendant's record. . . . [T]hese considerations represent an appropriate jurisdictional
limit to the correction or modification of a defective sentence by a district court. State v.
District Court, 100 Nev. at 97, 677 P.2d at 1048-49 (quoting Townsend v. Burke, 334 U.S.
736, 741 (1948)) (emphasis added); see also Staley v. State, 106 Nev. 75, 79, 787 P.2d 396,
398 (1990).
Thus, it is clear that the district court had jurisdiction to modify appellant's sentence in this
case only if (1) the district court actually sentenced appellant based on a materially false
assumption of fact that worked to appellant's extreme detriment, and (2) the particular
mistake at issue was of the type that would rise to the level of a violation of due process.
The district court did not specify whether it would have rendered a different sentence had
it known that appellant would not be placed in an honor camp. Only the district judge who
pronounced the sentence knows what prompted him to enter the sentence he did. See State v.
District Court, 100 Nev. 90, 102-03, 677 P.2d 1044, 1052 (1984) (Brennan, D. J.,
concurring). Nevertheless, based on our review of the sentencing transcript, it appears very
doubtful that the availability of an honor camp played any role whatsoever in appellant's
sentence. The district judge seemed interested only in the seriousness of the crime, and
expressed his opinion that a long sentence would have a deterrent effect on appellant and
others who might drink and drive in his district. The discussion about the availability of an
honor camp appears to have been a secondary consideration for the court.
Even assuming, for the sake of argument, that the availability of an honor camp was a
material consideration in appellant's sentence, the mistake in this case was not with respect to
the appellant's record, nor was appellant's sentence illegal. Thus, the district court had no
authority under State v. District Court or Peters to modify appellant's sentence after he began
to serve it. See State v. Clark, 90 Nev. 144, 520 P.2d 1361 (1974) (district court lacked
jurisdiction to modify a sentence based on its mistaken belief that the defendant would be
paroled after serving one year of a four year sentence).
We conclude, therefore, that the district court properly found that it lacked jurisdiction to
modify appellant's sentence after he began to serve it. Accordingly, we affirm in all respects
the decision of the district court.
____________
108 Nev. 324, 324 (1992) Clark v. State
MARK BRYAN CLARK, Appellant, v. THE STATE OF NEVADA, Respondent
No. 21780
May 13, 1992 831 P.2d 1374
Appeal from a denial of post-conviction relief from a conviction of first-degree murder
with the use of a deadly weapon and two sentences of life in prison with the possibility of
parole. Second Judicial District Court, Washoe County; William N. Forman, Judge.
Defendant sought post-conviction relief from conviction of first-degree murder with use of
deadly weapon. The district court denied relief. Defendant appealed. The supreme court held
that defense counsel was ineffective due to conflict of interest.
Muriel R. Skelly, Reno, for Appellant.
Attorney; and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Under Strickland test, defendant who challenges adequacy of counsel's representation must show first that counsel's performance
was deficient and second, that defendant was prejudiced by deficiency. U.S.C.A.Const. amend. 6.
2. Criminal Law.
Actual conflict of interest which adversely affects lawyer's performance will result in presumption of prejudice to defendant who is
claiming ineffective assistance. U.S.C.A.Const. amend. 6.
3. Criminal Law.
There was significant possibility that defense counsel's performance was adversely affected by conflict of interest or that
appearance of impropriety created by conflict was too great to be judicially excused and, thus, defendant claiming ineffective
assistance was relieved of obligation to show that counsel's performance prejudiced him; defense counsel was also handling personal
injury settlement on behalf of defendant and when medical clinic holding medical lien against defendant filed complaint against
defendant, his wife, and defense counsel's firm, defense counsel filed cross claim against defendant and his wife and obtained default
judgment. U.S.C.A.Const. amend. 6.
4. Criminal Law.
Every defendant has constitutional right to assistance of counsel unhindered by conflicting interests. U.S.C.A.Const. amend. 6.
OPINION
Per Curiam:
Appellant Mark Clark was found guilty of first-degree murder with the use of a deadly
weapon in connection with the death of Allan Kilen, his former associate.
108 Nev. 324, 325 (1992) Clark v. State
Allan Kilen, his former associate. Clark received one sentence of life in prison with the
possibility of parole for the murder, and a second consecutive sentence of life with the
possibility of parole as a deadly weapon enhancement. Clark's direct appeal to this court was
dismissed. (Case No. 17596.) Clark then filed a petition for post-conviction relief, alleging
that his trial counsel's ineffectiveness deprived him of his Sixth Amendment right to counsel.
After a hearing on the petition, relief was denied, thus prompting the instant appeal. We now
reverse.
Clark alleges that the derelictions of his trial counsel, David McElhinney, deprived him of
his constitutionally guaranteed right to the effective assistance of counsel. We have
determined that it is unnecessary to examine McElhinney's legal performance during the trial
because of an egregious conflict of interest inherent in McElhinney's representation of Clark.
The conflict of interest under which trial counsel labored is dispositive of this appeal.
Facts
Clark engaged McElhinney to defend him in his first-degree murder trial for $10,000.00. It
was agreed that this fee would come from the proceeds of a personal injury settlement
handled by McElhinney's firm on behalf of Clark. However, when the settlement proceeds
were disbursed, a $4,785.05 medical lien on Clark's personal injury recovery was overlooked.
The clinic holding the lien filed a complaint against Clark, his wife, and McElhinney's firm.
McElhinney filed a cross-claim against Clark and his wife, and obtained a default judgment
for $5,600.00 against Clark while Clark was in jail awaiting sentencing on his first-degree
murder conviction. McElhinney recalls that his firm eventually had to satisfy the clinic's
claim.
The district court conducted a hearing to evaluate Clark's ineffective assistance of counsel
claim. During the hearing, McElhinney attempted to defend his actions, claiming that he had
discussed the civil suit with Clark (in prison), explained that he was merely following the
orders of a senior partner in filing the civil action, and assured Clark that the pursuit of the
civil suit would not affect his representation. McElhinney indicated that Clark seemed
satisfied with this explanation. McElhinney could not recall with certainty whether he had
discussed the civil suit with Clark before or after filing it. The district court determined that
the actions of McElhinney and his firm created a technical conflict of interest, but denied
relief because it found no resultant prejudice to Clark.
Discussion
[Headnote 1]
The standard governing ineffective assistance of counsel claims was enunciated by the
Supreme Court in Strickland v. Washington, 466 U.S. 66S {19S4), and adopted by this
court in Warden v.
108 Nev. 324, 326 (1992) Clark v. State
was enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and
adopted by this court in Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied,
471 U.S. 1004 (1985). Under this two-prong test, a defendant who challenges the adequacy of
his counsel's representation must show, first, that his counsel's performance was deficient,
and second, that the defendant was prejudiced by this deficiency. The district court based its
denial of relief upon Clark's failure to establish the second elementprejudice.
[Headnotes 2, 3]
However, in certain limited instances, a defendant is relieved of the responsibility of
establishing the prejudicial effect of his counsel's actions. An actual conflict of interest which
adversely affects a lawyer's performance will result in a presumption of prejudice to the
defendant. Strickland; Cuyler v. Sullivan, 446 U.S. 335 (1980); Mannon v. State, 98 Nev.
224, 226, 645 P.2d 433, 434 (1982). This exception is based, in part, on the difficulty in
measuring the effect of representation tainted by conflicting interests. Strickland at 692. We
conclude that an actual conflict of interest may well have had an adverse effect on
McElhinney's performance, and therefore, the district court erred in requiring Clark to show
that he was prejudiced by McElhinney's conflicting loyalties.
[Headnote 4]
Every defendant has a constitutional right to the assistance of counsel unhindered by
conflicting interests. Holloway v. Arkansas, 435 U.S. 475 (1978); Harvey v. State, 96 Nev.
850, 619 P.2d 1214 (1980). Conflict of interest and divided loyalty situations can take many
forms, and whether an actual conflict exists must be evaluated on the specific facts of each
case. In general, a conflict exists when an attorney is placed in a situation conducive to
divided loyalties. Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991).
1
We have no
doubt that a situation conducive to divided loyalties existed here.
2
Moreover, it is
disturbing to this court that an attorney would pursue a civil action against his client, whom
he is representing in a first-degree murder trial, and obtain a default judgment against him
while the incarcerated client is awaiting sentencing on the murder conviction. Such conduct
strikes at the very core of the attorney-client relationship.
__________

1
See also SCR 157(2).

2
Cf. State v. Wiley, 441 N.W.2d 629 (Neb. 1989) (the fact that lawyer had an unsatisfied money judgment
against client while representing him in a criminal matter did not create an actual conflict).
108 Nev. 324, 327 (1992) Clark v. State
McElhinney may earnestly have believed that pursuing the civil action against Clark
would not affect his representation. However, the appearance of impropriety and potential for
adverse consequences were so great here, that the conflict could not be condoned. The case
against Clark was highly circumstantial, and involved substantial medical evidence.
McElhinney and his firm must have realized that if they were required to satisfy the clinic's
claim from the settlement proceeds, only about $5,000.00 would remain to compensate the
firm for handling a first-degree murder defense. Knowing this, McElhinney may have been
conservative in his efforts to interview potential witnesses or hire necessary experts. For
example, McElhinney did not interview Dr. Roger Ritzlin, the State's witness who testified
about the initial autopsy results from Kilen's body. Moreover, under the circumstances of this
case, some attorneys might conclude that there is less incentive to interpose every available
defense, as an incarcerated client would be less apt to vigorously oppose an entry of default
and subsequent enforcement of the civil judgment. Accordingly, we determine that there is a
significant possibility that McElhinney's performance was adversely affected by this conflict,
or, equally compelling, that the appearance of impropriety created by the conflict was too
great to be judicially excused. Under the fact-specific circumstances of this case we conclude
that Clark was relieved of the obligation to show prejudice.
In Jewell v. Maynard, 383 S.E.2d 536 (W.Va. 1989), the court pointed out that economic
pressure must adversely affect the manner in which at least some cases are conducted by
criminal defense lawyers who receive only a nominal sum for their services. Additionally, the
Florida Court of Appeals observed:
[I]t would be foolish to ignore the very real possibility that a lawyer may not be capable
of properly balancing the obligation to expend the proper amount of time in an
appointed criminal matter where the fees involved are nominal, with his personal
concerns to earn a decent living by devoting his time to matters wherein he will be
reasonably compensated.
Okeechobee County v. Jennings, 473 So.2d 1314, 1318 (Fla.Dist.Ct.App. 1985). Although
the above cases dealt with appointed counsel who were limited to statutory fees for recovery,
the same reasoning is applicable to underpaid private defense counsel.
Because we have conclusively presumed prejudice to Clark's defense under the specific
facts of this case, we reverse the decision of the district court and vacate Clark's conviction.
In so ruling, we do not relax the rule announced in Cuyler which would ordinarily require a
defendant to show the existence of a conflict of interest which actually affected the
adequacy of his counsel's performance.
108 Nev. 324, 328 (1992) Clark v. State
of interest which actually affected the adequacy of his counsel's performance. In addition,
because this type of conflict and behavior cannot be countenanced, we order David
McElhinney, and his former firm, who pursued the civil action against Clark, to deposit with
the district court the sum of $5,000.00 to be used on behalf of Clark to defray the costs of
obtaining new counsel on the retrial of this case.
3

____________
108 Nev. 328, 328 (1992) Farmers Ins. Exchange v. Young
FARMERS INSURANCE EXCHANGE, Appellant, v. ANDREA YOUNG, Respondent
No. 22147
May 13, 1992 832 P.2d 376
Appeal from an order of the district court denying appellant's motion for summary
judgment and granting respondent's counter-motion for summary judgment. Eighth Judicial
District Court; Carl J. Christensen, Judge.
Owner brought suit under automobile policy for injuries received while riding as passenger
in vehicle driven by person who was not member of owner's household. The district court
granted summary judgment in favor of owner and appeal was taken. The supreme court,
Springer, J., held that: (1) exclusion clause limiting liability coverage afforded insured driver
for injury to another insured person was unambiguous, and (2) unambiguous permissive user
limitation in policy limited coverage to statutory minimum.
Reversed.
Joseph J. Bongiovi, III, Las Vegas, for Appellant.
Albert D. Massi, Las Vegas, for Respondent.
1. Judgment.
Summary judgment is proper so long as no genuine issue of material fact exists.
Supreme court has plenary power of review over district court's construction or interpretation of an instrument.
3. Insurance.
Any ambiguity in terms of insurance contract shall be resolved in favor of insured and against insurer.
__________

3
The State did not indicate that a reversal would critically prejudice its ability to prosecute Clark in a new
trial.
4. Insurance.
Any attempt to restrict insurance coverage must be done clearly and explicitly.
5. Insurance.
Automobile policy exclusion, attempting to limit liability coverage afforded insured driver to minimum found in state Financial
Responsibility Law when injured party is insured person under policy, was unambiguous and limited liability coverage.
6. Insurance.
Insurance policy, like any other contract, will generally be construed as written absent any ambiguity.
7. Insurance.
Permissive user provision of automobile policy, limiting liability coverage for permissive user other than family member, to
statutory minimum, was unambiguous and enforceable.
8. Insurance.
Insured is assumed to have read policy when determining whether ambiguity is present.
9. Insurance.
Policy will be given its plain meaning unless ambiguity is found.
10. Insurance.
Only when ambiguity exists should court go beyond language of policy and consider intent of parties, subject matter of policy, and
circumstances surrounding issuance.
11. Insurance.
Absent finding of ambiguity in policy, reasonable expectations doctrine does not apply.
OPINION
By the Court, Springer, J.:
This case involves the interpretation of an automobile insurance policy. The respondent,
Andrea Young (Young), was injured while riding as a passenger in her own vehicle. The
driver was David G. Ingram (Ingram), who was not a member of Young's household. The
insurance policy at issue includes a provision under which there is no liability coverage for
bodily injury to an insured person. The policy also attempts to limit liability coverage for
insureds, other than household members, to the statutory minimum.
The minimum coverage required by statute is $15,000.00 per injury and $30,000.00 per
accident. NRS 485.105. The policy at issue had a liability limit of $100,000.00 per person.
A statement of the facts was agreed upon by the parties and both parties filed motions for
summary judgment. Granting summary judgment in favor of Young, the district court
concluded that the policy language is ambiguous and void as against public policy. Under the
district court's order, appellant, Farmers Insurance Exchange (Farmers), is responsible for
coverage of Young's injuries in excess of the $15,000.00 statutory minimum up to the
$100,000.00 liability limit.
injuries in excess of the $15,000.00 statutory minimum up to the $100,000.00 liability limit.
The central issue in this appeal is whether or not Farmers' policy provisions attempting to
limit coverage are ambiguous as a matter of law and should therefore be construed against
Farmers and in favor of Young. Although we have upheld similar provisions in the past, we
have not specifically ruled on the issue of ambiguity. We now conclude that the provisions in
question are clear on their face and should be given their plain meaning. Accordingly, we
reverse the district court order and enter summary judgment in favor of Farmers.
[Headnotes 1, 2]
Generally, summary judgment is proper as long as no genuine issue of material fact exists.
Tschabold v. Orlando, 103 Nev. 224, 737 P.2d 506 (1987). In the instant case, because the
parties stipulated to the facts, there is obviously no issue of material fact presented and
summary judgment is proper. What we must review on this appeal is the district court's
conclusion that the policy language was ambiguous and void as a matter of law. When this
court reviews a district court's construction or interpretation of an instrument, this court has
plenary power of review. See Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261
(1983).
[Headnotes 3, 4]
It is well settled that any ambiguity in the terms of an insurance contract shall be resolved
in favor of the insured and against the insurer. Harvey's Wagon Wheel, Inc. v. MacSween, 96
Nev. 215, 606 P.2d 1095 (1980). We have also held that any attempt to restrict insurance
coverage must be done clearly and explicitly. Sullivan v. Dairyland Insurance Co., 98 Nev.
364, 649 P.2d 1357 (1982). It is apparently this case law upon which the district court relied
in granting Young's summary judgment motion and denying Farmers' motion.
[Headnote 5]
The insurance policy at issue contains an exclusion clause which attempts to limit the
liability coverage afforded an insured driver for injury to another insured person. The
exclusion clause specifically provides that:
This coverage does not apply to:
. . . .
11.a. Liability for bodily injury to an insured person
The policy also provides, under the heading Other Insurance, the following provision: We
will provide insurance for an insured person, other than a family member, up to the limits
of the Nevada Financial Responsibility Law only.
We will provide insurance for an insured person, other than a family member, up to
the limits of the Nevada Financial Responsibility Law only.
The policy defines an insured person as you or any family member or any person using
your insured car.
Based upon the above-quoted provisions, Farmers contends that the exclusion clause
limits liability coverage afforded an insured driver to the minimum found in the Nevada
Financial Responsibility Law ($15,000.00 per injury/$30,000.00 per accident) when the
injured party is an insured person under the policy. Young maintains that these provisions
are ambiguous and that under the general insuring clause,
1
Farmers is obligated to pay all
damages for which an insured person is legally liable.
In Estate of Neal v. Farmers Ins. Exch., 93 Nev. 348, 566 P.2d 81 (1977), we held that a
household exclusion clause in an insurance policy was void to the extent that it did not
provide the minimum coverage required by statute. We concluded, however, that the
exclusion was otherwise valid. In Neal, the appellant did not challenge the exclusion as being
ambiguous, so our conclusion that the exclusion was valid is not dispositive of the instant
issue.
The holding in Neal that an insurance policy cannot exclude the minimum coverage
required by statute was reaffirmed in Farmers Ins. Exchange v. Warney, 103 Nev. 216, 737
P.2d 501 (1987). In Warney, however, no conclusion was made with respect to the ambiguity
of the policy's exclusionary clause.
We again upheld an exclusion clause in an insurance policy without discussing the issue of
ambiguity in Baker v. Criterion Insurance Co., 107 Nev. 25, 805 P.2d 599 (1991). In Baker,
the named insured was injured while riding as a passenger in her own vehicle which was
driven by a permissive user. We concluded that the named insured could not recover from
both bodily injury and uninsured/underinsured motorist coverage found in the same policy.
Id. at 26, 805 P.2d at 600. No findings or conclusions were made, however, with respect to
the clarity or ambiguity of the exclusionary clause at issue.
Young asserts that the exclusionary clause at issue in the present case was not sufficiently
clear to advise her that she would only be compensated up to the statutory minimum for
injuries sustained while riding as a passenger in her car (when driven by a non-household
member).
__________

1
The general insuring clause provides that:
We will pay damages for which any insured person is legally liable because of bodily injury to any
person and property damage arising out of the ownership, maintenance or use of a private passenger car,
a utility car, or a utility car trailer.
driven by a non-household member). The exclusion states that [t]his coverage does not apply
to . . . [l]iability for bodily injury to an insured person. Young maintains that because the
policy refers to different types of coverage, it is not clear what type of coverage is referred to
by this.
Farmers maintains that because the exclusion is found in Part I of the policy which is titled
Liability, it is obvious that this coverage refers to liability coverage. Farmers also points
out that the parties have stipulated that the exclusion refers to liability coverage. Specifically,
in the stipulated facts, immediately prior to laying out the exclusion, the parties agree that:
Young's policy contained the following insured person exclusion to liability coverage.
(Emphasis added.)
We conclude that Farmers is correct under both rationales. Young stipulated that the
exclusion involved liability coverage, and it is also clear under the plain language of the
policy that this coverage refers to liability coverage. We conclude, based upon our reading
of the policy, that the language of the policy is not ambiguous and should be given its plain
meaning. Accordingly, the district court order should be reversed and summary judgment
should be entered in favor of Farmers.
Farmers also argues that Young is only entitled to $15,000.00 in coverage (the statutory
minimum) based upon the permissive user limitation in the policy. The district court failed to
address this provision in its order granting summary judgment. The provision provides:
We will provide insurance for an insured person other than you or a family member, up
to the limits of the Nevada Financial Responsibility Law only.
A permissive user is included in the policy's definition of an insured person.
[Headnote 6]
Generally, an insurance policy, like any other contract, will be construed as written absent
any ambiguity. See Ellison v. C.S.A.A., 106 Nev. 601, 797 P.2d 975 (1990). Young contends
that the permissive user limitation is impermissibly ambiguous because it is on page two of
the policy and is listed under the heading, Other Insurance. Young asserts that it would be
difficult to believe that the consumer would check under the Other Insurance section in
attempting to determine what restrictions applied to the policy.
[Headnote 7]
Farmers maintains that the permissive user provision is clear and consistent with Nevada
public policy. The provision does provide for the minimum coverage required by Nevada
law, but it does not expose the insurer to large liability for a risk it cannot determine.
provide for the minimum coverage required by Nevada law, but it does not expose the insurer
to large liability for a risk it cannot determine. According to Farmers, premiums are based
upon the presumed risk, which is in turn based upon the risk imposed by the named insured
and the other likely users. The risk posed by unknown permissive users, such as Ingram in the
instant case, is necessarily beyond the knowledge of the insurer at the time of contracting. By
limiting the coverage of permissive users to the statutory minimum, the insurer avoids being
excessively exposed for the actions of unknown users. Farmers concludes that [t]he
limitation is a necessary trade-off for having to provide liability coverage to anyone who
initially drives an insured vehicle with the insured's permission.
[Headnotes 8-11]
We conclude that the permissive user provision is not ambiguous. Assuming an insured
reads the policy,
2
it is difficult for us to see how the insured could have doubts or questions
as to the provision's meaning.
3
The provision clearly provides that coverage for a permissive
user, other than a family member, will be limited to the statutory minimum. Further, we
conclude that the rationale for such a limitation is valid. It is impossible for insurers to predict
the risk posed by every potential permissive user. Accordingly, we reverse the order of the
district court and order that summary judgment be entered in favor of Farmers based upon
the clear, unambiguous permissive user limitation.
__________

2
Although we understand that many people may in fact not read their insurance policies, we conclude that
the consumer has at least this responsibility. If we presume that consumers do not read policies, we would then
force insurers to explain verbally every minute detail of a policy. We must assume that the insured party has at
least read the policy and given a plain common-sense meaning to the policy's provisions.

3
In her answering brief, Young contends that, under the reasonable expectations doctrine, she is entitled to
$100,000.00 of coverage. Young cites Arizona law for the proposition that, in some instances, even
unambiguous boilerplate terms in standardized insurance contracts will not be enforced. See Darner Motor Sales
v. Universal Underwriters, 682 P.2d 388 (Ariz. 1984); State Farm Mut. Ins. v. Dimmer, 773 P.2d 1012
(Ariz.App. 1988). Other courts have agreed and have read insurance contracts to be adhesion contracts. See
Estep v. State Farm Mt. Auto. Ins. Co., 703 P.2d 882 (N.M. 1985).
We have not gone that far. We have concluded that a policy will be given its plain meaning unless an
ambiguity is found. Only when an ambiguity exists should the court go beyond the language and consider the
intent of the parties, the subject matter of the policy, [and] the circumstances surrounding issuance. National
Union Fire Ins. v. Caesars Palace, 106 Nev. 330, 332-333, 792 P.2d 1129, 1130 (1990) (citation omitted); see
Ellison v. C.S.A.A., 106 Nev. 601, 797 P.2d 975 (1990). When an ambiguity is found, the policy should be
construed to effectuate the reasonable expectations of the insured. National Union Fire Ins. at 333, 792 P.2d at
1130. Absent the finding of an ambiguity in the policy, the reasonable expectations doctrine does not help
Young.
order that summary judgment be entered in favor of Farmers based upon the clear,
unambiguous permissive user limitation.
Rose, Steffen and Young, JJ., concur.
The majority concludes that the exclusionary terms in the insurance contract are clear on
their face and then proceeds to give the terms their plain meaning. The majority, however,
mistakenly assumes that their conclusion ends the inquiry. Because of the nature of the
contract and the contracting parties, I believe that even the most precise language is
insufficient to eliminate coverage.
The relevant rules of construction are straightforward. First, any contract is construed
against the party who prepared the contract. E.g., Caldwell v. Consolidated Realty, 99 Nev.
635, 668 P.2d 284 (1983). Farmers prepared and printed this contract; thus, every term must
be construed in favor of respondent, the insured. Second, because this is an insurance
contract, the court is under an even more stringent duty to interpret in favor of the insured.
See Harvey's Wagon Wheel v. MacSween, 96 Nev. 215, 606 P.2d 1095 (1980). Finally, the
contract term in dispute is an exclusion from coverage, and exclusions are subjected to the
closest possible scrutiny. See Sullivan v. Dairyland Insurance Co., 98 Nev. 364, 649 P.2d
1357 (1982).
Moreover, in my view, this is not merely an insurance contract but an adhesion contract
for insurance. An adhesion contract is a standardized form contract written entirely by a party
with superior bargaining power. The weaker party confronts a take it or leave it
proposition, under which the only alternative to complete adherence is outright rejection.
Steven v. Fidelity and Casualty Co. of New York, 377 P.2d 284 (Cal. 1962). Here, the
insurance policy was prepared entirely by Farmers, a major insurance company whose
bargaining power is clearly superior to individual members of the general public. Respondent
was not at liberty to sit down with Farmers and bargain individual terms. Farmers dictated the
contract terms to her and, if she wanted Farmers automobile insurance, she had to sign the
contract as is.
1

Because I believe this is an adhesion contract, I submit that this court is obligated to
interpret it consistent with the reasonable expectations of the insured. Gray v. Zurich
Insurance Co., 419 P.2d 16S {Cal.
__________

1
One commentator has observed that most agreements found to be adhesion contracts by California courts
have been insurance policies. In addition, this same observer notes that in most other states the adhesion contract
doctrine has been confined to insurance policies. Richard P. Sybert, Adhesion Theory in California: A Suggested
Redefinition and Its Application to Banking, 11 Loy. L.A. L.Rev. 297 (1978).
P.2d 168 (Cal. 1966). Here, respondent reasonably expected that her policy with Farmers
would cover her personal injuries. Accordingly, I would affirm the order of the district court.
____________
108 Nev. 335, 335 (1992) Motor Cargo v. Public Service Comm'n
MOTOR CARGO, a Utah Corporation, Appellant, v. THE PUBLIC SERVICE
COMMISSION OF NEVADA, an Administrative Agency of the State of Nevada, and
CON-WAY WESTERN EXPRESS, INC., a Delaware Corporation, Respondents.
No. 22061
May 13, 1992 830 P.2d 1328
Appeal from a district court order affirming a Nevada Public Service Commission decision
granting respondent Con-Way Western Express, Inc. a certificate of public convenience and
necessity. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
A competitor filed a petition for judicial review of decision of Public Service Commission
(PSC) to issue a certificate of public convenience and necessity to a common carrier. The
district court affirmed the PSC's decision in all respects. Carrier appealed. The supreme court
held that evidence supported finding that the carrier's proposed new service would benefit the
public.
Affirmed.
Kilpatrick, Johnston & Adler, Carson City, for Appellant.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell and Karen A. Peterson, Carson
City, for Respondent Con-Way Western Express, Inc.
Leslie T. Miller, General Counsel, Carson City, Kenneth G. Freitas, Assistant General
Counsel, Las Vegas, for Respondent Public Service Commission.
1. Automobiles.
For the Public Service Commission (PSC) to issue a carrier a certificate of public convenience and necessity to operate as a
common motor carrier, the PSC does not have to find a public need for the proposed service, but, rather, can issue the certificate if it
finds that the proposed service will benefit the public. NRS 706.391, subd. 2(d).
2. Automobiles.
Evidence supported finding that service proposed by a motor carrier would benefit the public, for purposes of supporting decision
of Public Service Commission {PSC) to grant carrier a certificate of public convenience and necessity; carrier
presented many witnesses and shippers' statements supporting its application, including testimony that a
demographic study supported need for the new operations and that dock congestion would be reduced
because of the new operations.
Service Commission (PSC) to grant carrier a certificate of public convenience and necessity; carrier presented many witnesses and
shippers' statements supporting its application, including testimony that a demographic study supported need for the new operations
and that dock congestion would be reduced because of the new operations. NRS 706.391, subd. 2(d).
3. Carriers.
There is no requirement of showing inadequate service to allow the Public Service Commission (PSC) to issue a common carrier a
certificate of public convenience and necessity. NRS 706.391, subd. 2(d).
4. Administrative Law and Procedure; Carriers.
Even if Public Service Commission (PSC) failed to follow some of its prior decisions when it granted a certificate of public
convenience and necessity, the PSC did not thereby abuse its discretion; administrative agencies are not bound by stare decisis.
OPINION
Per Curiam:
On November 6, 1989, respondent Public Service Commission of Nevada (PSC) issued
Con-Way Western Express, Inc. (Con-Way) a certificate of public convenience and
necessity.
1
The PSC had previously granted appellant, Motor Cargo, leave to intervene in the
proceedings. On June 29, 1990, Motor Cargo filed a petition for judicial review; thereafter,
on February 12, 1991, the First Judicial District Court entered an order affirming the PSC's
decision in all respects.
On appeal, Motor Cargo asserts that Con-Way was required to demonstrate a public need
for its proposed services, that Con-Way did not demonstrate this public need, and that the
PSC therefore erred in granting Con-Way's request for a certificate of public convenience and
necessity. In addition, Motor Cargo contends that the PSC could not issue Con-Way's
certificate based on a finding of operational convenience and that the PSC abused its
discretion in not following prior PSC cases.
We disagree with Motor Cargo's position and affirm the district court order. In Clark Co.
Liquor & Gaming v. Simon & Tucker, 106 Nev. 96, 787 P.2d 782 (1990), we explained that
our review in cases such as this is limited to a determination of whether the commission's
decision is based on substantial evidence. We conclude that substantial evidence supports the
PSC decision to grant Con-Way a certificate of public convenience and necessity.
[Headnotes 1, 2]
First, under NRS 706.391(2)(d), the PSC does not have to find a public need for a
proposed service; instead, the PSC shall issue such certificate if it finds that . . . [t]he
proposed service will benefit the traveling and shipping public and the motor carrier
business in this state."
__________

1
This certificate authorizes Con-Way to operate as a common motor carrier, on call, over irregular routes in
the transportation of individual shipments in truckload and less than truckload quantities, in van-type equipment
. . . between points and places in Nevada.
issue such certificate if it finds that . . . [t]he proposed service will benefit the traveling and
shipping public and the motor carrier business in this state. Therefore, this provision does
not expressly require the PSC to find a public need for the proposed service. In addition,
Con-Way presented nine witnesses and twenty-two shippers' statements supporting its
application; this evidence supports a finding that Con-Way's service will benefit the shipping
public and motor carrier business. Specifically, a witness for Con-Way testified that
Con-Way plans to open new service center operations in Elko, Winnemucca, Ely, and
Tonopah and that a marketing and demographics study supports the need for these new
operations. In addition, Con-Way's witnesses explained that because they use Con-Way for
interstate shipments,
2
they would reduce dock congestion and the need for additional dock
space and would streamline operations if they could use Con-Way for intrastate shipments as
well. One witness also testified that using Con-Way as an intrastate shipper would eliminate
the need to change carriers midstream and that the chance of damaging shipped goods would
therefore decrease.
[Headnote 3]
Although Motor Cargo points out that the witnesses did not testify that present intrastate
service is inadequate, we have previously held that no such showing of inadequate service is
necessary before a certificate is granted. Gray Line Tours v. Public Serv. Comm'n, 97 Nev.
200, 626 P.2d 263 (1981). In addition, although much of the evidence supports a finding of
operational convenience, we conclude that such a finding is proper under NRS 706.391(2)(d).
3

[Headnote 4]
Finally, we conclude that even if the PSC has failed to follow some of its decisions,
4
the
PSC has not thereby abused its discretion. In Nevada, administrative agencies are not bound
by stare decisis. Gray Line Tours, 97 Nev. at 203, 626 P.2d at 265. Accordingly, we affirm
the order of the district court.
__________

2
Con-Way was already authorized to operate as a common carrier in interstate commerce between Arizona,
Nevada, and California.

3
As noted above, the evidence also suggested that rural mining areas are experiencing a growing need for
shipment facilities and that Con-Way plans to address this need by establishing new distribution centers in
several of these areas. In addition, the PSC noted that Motor Cargo had experienced a one million dollar
increase in Nevada intrastate revenues in one year, indicating a growing demand for intrastate shipping.

4
We note that in none of the PSC language cited by Motor Cargo did the PSC unequivocally state that a
showing of public need is necessary for a certificate to be issued.
____________
108 Nev. 338, 338 (1992) Omega Concrete v. Insurance Co. of N. Am.
OMEGA CONCRETE, INC., a Nevada Corporation, Appellant, v. INSURANCE
COMPANY OF NORTH AMERICA, a Pennsylvania Corporation; ALAMO
INSURANCE AGENCY, INC., a Nevada Corporation; and ALICIA MARGARET
SHYDLER, an Individual, Respondents.
No. 22087
May 13, 1992 830 P.2d 1330
Appeal from a district court order granting summary judgment. Eighth Judicial District
Court, Clark County; Addeliar D. Guy, Judge.
Insured brought action against insurer, insurance agent, and company which provided
financing for the insurance seeking declaration that it was covered for automobile accident
involving one of its employees. The district court granted summary judgment for defendants.
Insured appealed. The supreme court held that genuine issue of material fact existed
precluding summary judgment.
David A. Stephens, Las Vegas, for Appellant.
Thorndal, Backus, Maupin & Armstrong and Brian Terry, Las Vegas, for Respondents
Alamo Insurance Agency, Inc. and Alicia Margaret Shydler.
Pearson & Patton and Theodore J. Kurtz, Las Vegas, for Respondent Insurance Company
of North America.
Judgment.
Genuine issue of material fact existed as to whether insured made September 28th premium payment in twice the amount owed
after insured, which missed first payment during middle of month, was informed by agent that if insured made double payment by
September 28th and another double payment by October 5th, coverage would not be interrupted, such that insured would have
purchased coverage until at least October 5th when next payment was due, precluding summary judgment in insured's action for
declaration that it was covered for October 4th automobile accident involving one of its employees.
OPINION
Per Curiam:
In August 1989, appellant, Omega Concrete, Inc. (Omega), purchased an insurance policy
from the Insurance company of North America {INA).
North America (INA). The policy covered Omega's equipment and vehicles. Omega arranged
the purchase through insurance agent Margaret Shydler, an employee of the Alamo Insurance
Agency (Alamo). Ms. Shydler procured financing for Omega through Western Acceptance
Corporation (WACO). INA, Ms. Shydler, Alamo and WACO are all respondents in this
appeal.
Omega's policy required that Omega tender a premium payment of $1,279.86 by the
twelfth day of each month. Accordingly, Omega's first payment came due on September 12,
1989. Omega failed to make this payment. Consequently, on September 13, 1989, WACO
mailed a notice of intent to cancel Omega's policy. The notice indicated that the policy would
be cancelled effective September 24, 1989, unless Omega remitted payment by that date. In
response, Linda Ruiz, an Omega employee, contacted Ms. Shydler to discuss a possible late
payment. According to Ms. Ruiz, Ms. Shydler indicated that if Omega paid $2,500.00 by
September 28, 1989, and $2,584.00 by October 5, 1989, the insurance coverage would not be
interrupted. These amounts were more than twice what Omega would otherwise have paid.
Subsequently, on September 28, Omega delivered a check for $2,500.00 to Ms. Shydler.
On October 4, 1989, Greg Ruiz, Ms. Ruiz' son and an Omega employee, was involved in
an accident while driving an Omega truck. Ms. Ruiz tried to contact Ms. Shydler many times
that day but was unsuccessful. On the following day, October 5, Gaelynn Ribeiro, also an
Omega employee, was finally able to reach Ms. Shydler by telephone. Ms. Ribeiro explained
to Ms. Shydler that an accident had occurred on October 4. Additionally, Ms. Ribeiro offered
to hand deliver to Ms. Shydler the October 5 payment of $2,584.00. Ms. Shydler, however,
refused to accept the payment. Instead, she indicated that Omega would have to take the
balance of $2,584.00 directly to WACO. Additionally, Ms. Shydler stated that Omega should
include a letter with the payment stating that Omega understood that WACO might not
guarantee coverage for the October 4 accident.
Ms. Ribeiro therefore concluded that Ms. Shydler would no longer accept payment from
Omega and that WACO would not provide coverage for the accident. Consequently, Omega
did not tender the second premium payment. Thereafter, INA denied coverage.
Omega filed a complaint for declaratory relief, seeking to compel the respondents to
provide insurance coverage for the accident. Omega contended that Ms. Shydler's conduct
caused Omega to forgo making the October 5 payment. Subsequently, the respondents moved
for dismissal. On July 18, 1990, the court heard the motion to dismiss, which it converted to a
motion for summary judgment;1 on January 15, 1991, the court granted summary
judgment to the respondents based on its finding that Omega had not tendered the
October 5 premium payment.
summary judgment;
1
on January 15, 1991, the court granted summary judgment to the
respondents based on its finding that Omega had not tendered the October 5 premium
payment.
On appeal, Omega contends that the district court erred when it granted summary
judgment and thus denied insurance coverage. We agree. 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. In determining whether summary judgment is proper, a court must view the
evidence in the light most favorable to the party against whom summary judgment is sought.
Wiltsie v. Baby Grand Corp., 105 Nev. 291, 774 P.2d 432 (1989).
Initially, we note that the dispositive issue in this case is not whether Omega tendered the
October 5 payment, but whether Omega tendered the September 28 payment. We conclude
that if Omega tendered the September 28 payment of $2,500.00, twice the amount that was
owed on September 12, then Omega purchased coverage at least until October 5, the time the
next payment was due. Thus, we hold that as a matter of law, Omega was entitled to
continuous insurance coverage through October 4 as long as Omega actually made the
September 28 payment. Accordingly, we instruct the district court to enter summary judgment
for Omega if the district court determines that Omega in fact made the September 28
payment. Conversely, if the district court determines that Omega failed to render the
September 28 payment, the court shall re-enter summary judgment for the respondents.
We therefore reverse the district court's grant of summary judgment and remand this case
for further proceedings consistent with this opinion.
__________

1
Since Omega's opposition to the motion to dismiss contained two affidavits, and the court determined that
Omega had stated a cause of action, the court, pursuant to NRCP 12(b), treated the motion as one for summary
judgment.
____________
108 Nev. 341, 341 (1992) Bazelin Trust v. McCandless Int'l Trucks
MARCELYN BAZELIN TRUST; MARCELYN BAZELIN LAUPPE and MARYLYNN
KELLEY, Appellants, v. McCANDLESS INTERNATIONAL TRUCKS, INC., a
Delaware Corporation, Respondent.
No. 22145
May 13, 1992 830 P.2d 1332
Appeal from a declaratory judgment setting the purchase price for a parcel of real property
pursuant to a purchase option contained in a lease. Eighth Judicial District Court, Clark
County; Nancy A. Becker, Judge.
Action was brought for declaration to set purchase price for parcel of real property
pursuant to exercised lease-purchase option. The district court held that purchase price should
be valuated as if it were encumbered by extension of leasehold term that was not effectuated
by optionee. Optionee appealed. The supreme court held that property should have been
valuated as unencumbered.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks, Las Vegas, for
Appellants.
Lynn R. Shoen, Las Vegas, for Respondent.
When trial court interprets contract by looking solely at written terms, supreme court may apply plenary review of contract.
Real property which was subject of exercised lease-purchase option was to be valuated as if it were unencumbered by extension of
leasehold term that was not effectuated by optionee; purchase option was unambiguous in that optionee had right to either exercise
option to purchase free and clear of all encumbrances or to renew lease for another five years, and optionee could not do both.
OPINION
Per Curiam:
The issue presented on appeal is whether real property which is the subject of an exercised
lease-purchase option should be valuated as if it were encumbered by an extension of the
leasehold term that was not effectuated by the optionee. For the reasons set forth below, we
conclude that the purchase price should be valuated as unencumbered by any lease extension.
Facts
The parties are successors in interest of parties to a lease of real property. Appellants
(Bazlen)
1
succeeded in interest to the owners/lessors of the real property. Respondent
McCandless International Trucks, Inc., (McCandless) was assigned the lessee's interest.
The initial term of the lease was fifteen years with two five-year renewal options.
McCandless exercised the first renewal option. The lease contained a purchase option, which
read in part:
Lessee shall have the option of purchasing the within described premises free and clear
of all encumbrances at the end of the initial term of this lease or during or [sic] the end
of the first extension term thereof but not thereafter at a price of an amount determined
by MAI appraiser [sic]. The MAI appraisal price shall be determined by three MAI
appraisers, appointed 90 days prior to the end of the initial term, or if the option is to be
exercised at the end of the first option term, 90 days prior to the end of said option
term. Lessor and Lessee shall each appoint one appraiser and they shall select the third.
(Emphasis added). Prior to the end of the first renewal period, McCandless gave notice that it
desired to exercise the purchase option.
The parties disputed how the property should be valuated. McCandless contended that the
property should be valuated as if encumbered by the second five-year renewal term; whereas,
Bazlen contended that the property should be valuated free and clear of all encumbrances.
McCandless sued for a declaration of the rights and duties of the parties under the lease.
The parties stipulated that the value of the property is $2,725,000 unencumbered and
$2,200,000 encumbered.
The district court found that the purchase option provision of the lease was ambiguous.
2
The district court therefore applied a presumption that the property should be valuated as
encumbered:
Where a lease contains ambiguous language or is silent on the issue of the inclusion or
exclusion of the value of the leasehold in determining a purchase price for the
property, then a presumption exists in favor of the lessee that a merger of the
estates was not intended and the property should be valu[ated] as encumbered by
the lease.
__________

1
Bazlen points out that there is no such entity as Marcelyn Bazelin Trust and that their names are properly
spelled Marcelynn Bazlyn and Marilynn Kelley.

2
The district court noted that the parties had agreed not to present evidence as to the original intent of the
parties because the persons who drafted the lease were either deceased or otherwise unavailable.
leasehold in determining a purchase price for the property, then a presumption exists in
favor of the lessee that a merger of the estates was not intended and the property should
be valu[ated] as encumbered by the lease. This presumption can be overcome by
extrinsic evidence indicating a different intent by the parties.
Because no extrinsic evidence was presented to rebut the presumption, the court ordered
that the purchase price be determined by appraising the property as encumbered by the
remaining five-year renewal period. Thus the district court declared that the purchase option
price was $2,200,000.
Discussion
[Headnote 1]
When a trial court interprets a contract by looking solely to the written terms, this court
may apply a plenary review of the contract. Great American Airways v. Airport Authority,
103 Nev. 427, 429, 743 P.2d 628, 629 (1987).
[Headnote 2]
The district court found that the purchase option is ambiguous because the phrase free
and clear of all liens and encumbrances is capable of two interpretations. It could mean that
the purchase price is to be based on a fee simple estate, without considering the leasehold
encumbrance. Alternatively, the phrase could mean that the lessor has an obligation to convey
the property to the lessee free and clear of all encumbrances other than the leasehold. In other
words, if the lessor had created any encumbrances other than the leasehold, such as
mortgages, the lessor had to clear those encumbrances prior to conveying the property to the
lessee.
Finding the purchase option ambiguous, the district court applied a presumption that the
leasehold estate did not merge into the fee simple estate upon the exercise of the option to
purchase and that, consequently, the property was to be valuated as encumbered.
We conclude that the district court erred in finding that the purchase option is ambiguous.
In Lassiter v. Kaufman, 581 So.2d 147 (Fla. 1991), the lessee entered a fifty-year lease with
the lessor, and the lessee was given the option to purchase the property at the end of the tenth
year. Id. at 147. The Florida Supreme Court concluded that the option to purchase the fee
title was unambiguous: the lessee had the right to purchase the property as unencumbered by
the lease. Id. at 149. Accordingly, the property was valuated as unencumbered. Id.
Likewise, in Palm Pavilion of Clearwater, Inc. v. Thompson, 45S So.2d S93
{Fla.Dist.Ct.App.
458 So.2d 893 (Fla.Dist.Ct.App. 1984), the lessee's option to purchase the above-mentioned
real property if the lessor died prior to termination of the lease was unambiguous. Id. at 893.
The court noted that the term property was not restricted by qualifying words, such as, the
landlord's interest in the property or the fee as burdened by the lease. Id. Hence, the
property was valued at the fair market value as unencumbered. Id.
Here, the purchase option is clear and unambiguous. McCandless had the right to purchase
the entire fee simple estate free and clear of encumbrances. During the first renewal period,
McCandless had the right to either exercise the option to purchase the within described
premises free and clear and all encumbrances or to renew the lease for another five years;
McCandless could not do both. McCandless exercised its right to purchase the property. The
property should therefore have been valuated as unencumbered.
Because the option is unambiguous, we conclude that it is unnecessary to address the
applicability of the presumption against merger of estate.
Accordingly, we reverse the judgment and remand this matter with directions that the
district court enter a judgment wherein the purchase price is valuated as unencumbered.
____________
108 Nev. 344, 344 (1992) Gunny v. Allstate Ins. Co.
ROBERT RALPH GUNNY and ROBERT GREGORY GUNNY, Appellants, v. ALLSTATE
INSURANCE COMPANY, Respondents
No. 22318
May 13, 1992 830 P.2d 1335
Appeal from a district court order granting summary judgment in favor of respondent
insurance company on the ground that appellant Robert Gregory Gunny had no standing to
file a bad faith claim. Eight Judicial District Court, Clark County; Michael J. Wendell, Judge.
Insured's son brought a bad faith action against insurer. The district court granted insurer's
motion for summary judgment. Insured's son appealed. The supreme court held that insured's
son lacked standing to bring bad faith action.
Affirmed.
Albert D. Massi, Ltd., Las Vegas, for Appellants.
Vargas & Bartlett and Thomas F. Kummer, Las Vegas, for Respondent.
1. Insurance.
Insured's son, as a third-party claimant, lacked standing to sue insurer for bad faith.
2. Insurance.
Insurance statute governing unfair practices in settling claims did not provide insured's son with a private right of action as
third-party claimant against insurer for bad faith. NRS 686A.310.
3. Insurance.
Contractual provisions that stipulated procedures that injured party had to comply with in order to process claim did not confer
standing to sue for bad faith on insured's son, a third-party claimant, who lacked a contractual relationship with insurer.
OPINION
Per Curiam:
Robert Gregory Gunny (Greg) was seriously injured in a water-skiing accident by the
propeller of a boat that belonged to his father, Robert Ralph Gunny (Ralph). Greg filed a
claim against Ralph's insurance company, Allstate Insurance Company (Allstate), requesting
compensation for his injuries. Because Allstate delayed compensating Greg, he filed another
complaint against Allstate in which he alleged bad faith. The district court granted Allstate's
motion for summary judgment, finding that a contractual relationship must exist to support a
bad faith claim. On appeal, Greg asserts that: (1) as a third-party claimant, he has standing to
sue the insurance company, (2) NRS 686A.310 creates a statutory cause of action for a
third-party claimant suing on a bad faith claim, and (3) the insurance policy itself creates a
separate cause of action for a third-party claimant.
[Headnote 1]
We conclude the Greg lacks standing to sue because he had no contractual relationship
with Allstate. See United Fire Insurance Co. v. McClelland, 105 Nev. 504, 780 P.2d 193
(1989) (even though the wife was an insured person and express beneficiary regarding her
own health care benefits, she was merely an incidental beneficiary with regard to her
husband's benefits); State v. District Court, 69 Nev. 196, 245 P.2d 999 (1952) (a third-party
claimant does not have a discoverable interest in the value of a liability policy where Nevada
statutes do not create a contractual relationship between the insurer and such third party).
Greg presented no evidence that he had substantially relied on the insurance company's
representations or that he was a specific intended beneficiary of the insurance policy.
intended beneficiary of the insurance policy. While we may recognize a beneficiary's cause of
action if he or she has relied on actions or representations of the insurance company to his or
her detriment (see contra Santacruz v. United Pacific Ins. Co., 650 F.Supp. 32 (D.Nev.
1986)), we need not address that question since no such evidence was presented.
[Headnote 2]
Secondly, we conclude that Greg has no private right of action as a third-party claimant
under NRS 686A.310. See Crystal Bay General Imp. Dist. v. Aetna Cas. & Sur., 713 F.Supp.
1371, 1377 (D.Nev. 1989) (NRS 686A.310 creates no private right of action in favor of
third-party claimants against insurer); Tweet v. Webster, 610 F.Supp. 104 (D.Nev. 1985) (a
third-party claimant has no contractual relationship with an insurance company).
[Headnote 3]
Finally, we conclude that the contractual provisions that stipulate the procedures that an
injured party must comply with an order to process a claim do not confer standing to sue on
third-party claimants who lack a contractual relationship with the insurer. McClelland, 105
Nev. at 511, 780 P.2d at 197. Thus, the provisions in the contract between Allstate and his
father, to which Greg refers, do not grant Greg standing to sue on a bad faith claim.
Accordingly, we affirm the district court's decision.
____________
108 Nev. 346, 346 (1992) Dobson v. Dobson
THEODORE DOBSON, Appellant, v. CECILE DOBSON, Respondent.
No. 21718
May 13, 1992 830 P.2d 1336
Motion to dismiss appeal. Eighth Judicial District Court, Clark County; John S.
McGroarty, Judge.
Wife moved to quash service of process and void degree of divorce previously entered, on
grounds that order for service by publication had been procured through fraud on part of
husband. The district court granted motion in all respects. Appeal was taken. Wife moved to
dismiss appeal. The supreme court held that order granting motion to quash and declaring
divorce decree void was appealable.
Motion denied.
Smith & Maurer, Las Vegas, for Appellant.
William R. Phillips Associates and Frances-Ann Fine, Las Vegas; Beckley, Singleton,
DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas, for Respondent.
Divorce.
Trial court order quashing service of process in divorce action, on grounds that order for service of publication was procured by
fraud on part of husband, was appealable. NRCP 60(b)(3).
OPINION
Per Curiam:
This is an appeal from an order of the district court granting respondent's motion to quash
service of process and voiding a decree of divorce previously entered by the district court.
Respondent Cecile Dobson has moved to dismiss this appeal on the basis that it challenges
the propriety of an order quashing service of process, which is not an appealable
determination. The motion is opposed.
The parties were married in 1980, in Cairo, Egypt. Prior to April 3, 1989, they both resided
in Frankfurt Am Main, Germany, where appellant Theodore Dobson was employed by the
American Consulate. Theodore began residing in Las Vegas, Nevada, on September 29, 1989.
On November 20, 1989, Theodore filed in the district court a complaint for divorce together
with an affidavit for service by publication. Theodore stated in his affidavit that Cecile no
longer resided at 13/1 Jacob Leisler Strasse, Frankfurt Am Main, Germany, her last known
address, and that he did not know her current address. On November 28, 1989, the district
court entered an order providing for service by publication. A summons was issued on
November 30, 1989. Notice of the action was published in the Henderson Home News, and
an affidavit of publication was filed in the district court on December 28, 1989. Cecile's
default was entered on January 17, 1990. On January 18, 1990, the district court entered a
decree of divorce dissolving the marriage between the parties. The decree did not adjudicate
any division of property or debt or provide for payment of alimony. On January 24, 1990,
Theodore terminated the lease for his Las Vegas apartment, effective January 31, 1990.
On May 3, 1990, a court in Frankfurt Am Main, Germany, entered a decree of divorce
between the parties awarding a substantial lump sum payment and monthly alimony to
Cecile. The German decree appears to be a default judgment.
On July 11, 1990, Cecile, through Nevada counsel, filed in the district court a motion by
special appearance to quash service of process.
process. Cecile based the motion on a claim that the district court's order for service by
publication was void due to fraud by Theodore. Cecile alleged that Theodore had
intentionally listed an incorrect address on the affidavit of publication and had mailed the
summons and complaint to the incorrect address. Cecile further alleged that Theodore had
hired an attorney in Germany and initially appeared in the German divorce proceedings
before filing for divorce in Nevada.
On October 2, 1990, the district court entered an order granting Cecile's motion in all
respects and declaring the divorce decree null and void. This appeal followed.
Cecile contends that this appeal should be dismissed because it challenges the propriety of
an order quashing service of process, which is not an appealable determination. See Orme v.
District Court, 105 Nev. 712, 782 P.2d 1325 (1989); Jarstad v. National Farmers Union, 92
Nev. 380, 552 P.2d 49 (1976). It is true that the district court entered the order appealed from
in response to a motion to quash service of process. By determining to grant the motion to
quash, however, the district court necessarily determined that it had never obtained
jurisdiction over Cecile, and consequently, that the divorce decree was void. See C.H.A.
Venture v. G. C. Wallace Consulting, 106 Nev. 381, 794 P.2d 707 (1990) (judgment reversed
because service was not properly effected, jurisdiction did not attach and the district court had
no power to enter a valid judgment); Foster v. Lewis, 78 Nev. 330, 337, 372 P.2d 679, 682
(1962) (a judgment that is based on a void order of publication is void); Doyle v. Jorgensen,
82 Nev. 196, 201, 414 P.2d 707, 710 (1966) (a judgment that is not supported by proper
service is void); see also, e.g., Combs v. Nick Garin Trucking, 825 F.2d 437, 442 (D.C.Cir.
1987) (it is uniformly held that a judgment is void if the requirements of effective service of
process have not been satisfied, except where the defendant has waived insufficiency of
service).
The Nevada Rules of Civil Procedure provide for relief from a void judgment in Rule
60(b)(3), and Cecile should have sought relief under that rule. See Foster, 78 Nev. at 337, 372
P.2d at 682; see also Combs, 825 F.2d at 442 (Fed.R.Civ.P. Rule 60(b)(4), providing for
relief from void judgments, is properly used to obtain relief from a default judgment that is
void for lack of valid service of process). The proper method for attacking a void judgment is
through a motion or action brought pursuant to NRCP 60(b)(3), and the party attacking the
judgment in such an action need only establish that the judgment is void to obtain relief. See
James W. Moore & Jo Desha Lucas, Moore's Federal Practice 60.25[2] (2d ed. 1991)
(discussing the application of Fed.R.Civ.P. Rule 60(b)(4), which is identical to NRCP
60(b)(3)).
Cecile apparently presented her claims to the district court in a motion to quash service of
process in order to avoid subjecting herself to personal jurisdiction in the divorce proceeding.
Cecile could have achieved the desired result by bringing a motion under NRCP 60(b)(3) that
raised only a challenge to the judgment based on a claim of lack of proper service of process.
In Doyle, this court stated that a defendant may challenge the validity of a default judgment
based on a claim of insufficiency of service of process either by bringing a motion pursuant to
NRCP 60(b)(3) or by bringing a motion pursuant to NRCP 60(c). Doyle, 82 Nev. at 201, 414
P.2d at 710. This court further noted that if a defendant seeks in an NRCP 60(b)(3) motion
any relief other than a declaration of defective service or that the judgment is void for lack of
personal jurisdiction, the defendant makes a general appearance for purposes of personal
jurisdiction. Because the defendant in Doyle had sought relief based on a claim of mistake,
inadvertence, surprise or excusable neglect, this court held that the defendant had made a
general appearance. Id. Therefore, an NRCP 60(b)(3) motion based solely on a claim of lack
of proper service is not a general appearance, and would not have subjected Cecile to the
personal jurisdiction of the district court. Cf. Deros v. Stern, 87 Nev. 148, 151, 483 P.2d 648,
650 (1971) (the consequence of requesting relief in addition to that necessary to protect the
movant's contention that jurisdiction over his person was not obtained is a general
appearance, whether the motion is made before or after judgment is entered).
The district court effectively treated Cecile's motion as one brought under NRCP 60(b)(3)
and granted the appropriate relief. The district court's order granting Cecile's motion and
declaring the divorce decree void is appealable. Holiday Inn v. Barnett, 103 Nev. 60, 732
P.2d 1376 (1987); Smilanich v. Bonanza Air Lines, 72 Nev. 10, 291 P.2d 1053 (1956).
Accordingly, we deny Cecile's motion to dismiss this appeal.
1

In my opinion, the order entered below is not appealable under our ruling in Jarstad v.
National Farmers Union, 92 Nev. 380, 552 P.2d 49 (1976), and a long line of cases following
Jarstad. I therefore respectfully dissent.
The majority concludes that the district court effectively treated Cecile's motion as one
brought under NRCP 60(b)(3) and granted the appropriate relief. Having thus created a
fictional bootstrap, the majority declares that the district court's order declaring the divorce
decree void is appealable. Of course, the district court did no such thing.
__________

1
Appellant shall have thirty (30) days from the date of this opinion within which to file the opening brief.
Thereafter, briefing shall proceed pursuant to NRAP 31(a).
district court did no such thing. It specifically granted Cecile's motion to quash service of
process, and then quite properly recognized in the same order that the judgment entered by
default without effective service of process was null and void and of no force and effect.
Moreover, the majority has cited no authority for novel proposition that this court may, by
judicial fiat, transmute a specific order quashing service of process into a final judgment
entered pursuant to NRCP 60(b)(3) as a method of making a non-appealable order appealable.
In a further attempt to strengthen its bootstrap, the majority concludes that Cecile should
have proceeded under NRCP 60(b)(3) rather than her chosen procedure of moving to quash
service of process. The majority cites Foster v. Lewis, 78 Nev. 330, 337, 372 P.2d 679, 682
(1962), in support of its proposition. Suffice it to say that Foster affords no such support. The
majority has provided no authority indicating that Cecile did not have the right to challenge
the default judgment entered below through a motion to quash service or process.
Moreover, Cecile's method of choice was eminently reasonable under our rules of
procedure. First, NRCP 60(b) is directed only to final judgments. This court, in O'Neill v.
Dunn, 83 Nev. 228, 427 P.2d 647 (1967), determined that [a] final judgment in an action or
proceeding is essentially one that disposes of the issues presented in the case, determines the
cost, and leaves nothing for the future consideration of the court. Id. at 230, 427 P.2d at 648
(quoting Alper v. Posin, 77 Nev. 328, 363 P.2d 502 (1961)). In the instant case, since the
default judgment was null and void and of no legal effect whatever from its inception, no
issues raised by the complaint were disposed of or otherwise determined. Once the district
court recognized that the service of process was legally ineffectual, and granted respondent's
motion to quash, the default judgment, being a nullity, fell of its own weight and the district
court simply and properly declared as a matter of law that the judgment was null and void and
of no force or effect. In every true and legal sense, the default judgment was only a simulation
of a final judgment. As a result, there was no final judgment from which an appeal could be
taken. See e.g., C.H.A. Venture v. G. C. Wallace Consulting, 106 Nev. 381, 794 P.2d 707
(1990) (where service is not effectuated, jurisdiction does not attach and district court is
powerless to enter any form of valid judgment).
Nevada's Rule 60(c), which specifically addresses default judgments, has no discrete
counterpart in the federal rules. Therefore, citing authority to the federal equivalent to our
60(b) is unavailing as support for the proposition asserted by the majority. Rule 60(c)
provides that relief against a default judgment must be sought under Rule 60{b) when a
party has been personally served with summons and complaint.
must be sought under Rule 60(b) when a party has been personally served with summons and
complaint. No such service occurred here. Moreover, according to the lower court's ruling
quashing service, the district court did not obtain personal jurisdiction over Cecile by legally
sufficient substituted service, therefore Cecile had no interest in seeking to set aside the
default judgment under Rule 60(c) in order to file an answer on the merits.
The above analysis leaves me with the abiding conclusion that no law, rule or legal
precedent in this jurisdiction requires a party in Cecile's situation to seek relief under Rule
60(b). Her attorney elected to challenge the legality of service, and the district court found
that Theodore's substituted service of process was legally insufficient as a basis for acquiring
personal jurisdiction over Cecile. Moreover, a reasonable inference to be drawn from Rule
60(c) is that relief against a default judgment must be sought pursuant to Rule 60(b) only if
the party defendant has been personally served with the summons and complaint.
I conclude that we should adhere to our established precedent declaring that orders
quashing service of process are not appealable. Such a result would not leave parties in
Theodore's situation without a remedy. Theodore's sole issue on appeal concerns the validity
of the district court's order granting the motion to quash service. Although Jarstad held that
such an order is not appealable, it also determined that [i]t [an order quashing service] may .
. . be challenged by petition in this court for a writ of mandamus to compel the district court
to accept jurisdiction. Jarstad, 92 Nev. at 384, 552 P.2d at 51.
1

Returning to the lower court's recognition that the paper default judgment was a nullity
undeserving of further colorable status on the official records of the court, logic dictates the
superfluity of vacating that which doesn't exist. Because the default judgment was created
from nothing, i.e., a court procedure without jurisdiction, the resulting paper simulation of
a final judgment was a nullity rather
__________

1
The following cases have all followed the rule announced by this court in Jarstad: Welburn v. District
Court, 107 Nev. 105, 806 P.2d 1045 (1991); MGM GRAND, Inc. v. District Court, 107 Nev. 65, 807 P.2d 201
(1991); Orme v. District Court, 105 Nev. 712, 782 P.2d 1325 (1989); Messner v. District Court, 104 Nev. 759,
766 P.2d 1320 (1988); Cariaga v. District Court, 104 Nev. 544, 762 P.2d 886 (1988); Munley v. District Court,
104 Nev. 492, 761 P.2d 414 (1988); Judas Priest v. District Court, 104 Nev. 424, 760 P.2d 137 (1988);
Levinson v. District Court, 103 Nev. 404, 742 P.2d 1024 (1987); Shapiro v. Pavlikowski, 98 Nev. 548, 654 P.2d
1030 (1982); Sun Valley Ford, Inc. v. District Court, 97 Nev. 467, 634 P.2d 464 (1981); Davis v. District Court,
97 Nev. 332, 629 P.2d 1209 (1981), cert. denied, 454 U.S. 1055 (1981); Burns v. District Court, 97 Nev. 237,
627 P.2d 403 (1981).
final judgment was a nullity rather than a judgment valid until vacated.
If the default judgment originally entered in this action had been voidable, rather than
void, it would be arguable that a subsequent court order voiding the judgment might be
appealable as a special order after final judgment. As the matter now stands, the majority has
cited no basis for transmuting Cecile's motion to quash service of process into a Rule 60(b)
motion to be relieved of a final judgment; nor has it justified a similar transmutation of the
district court's order quashing service into one granting Rule 60(b) relief. Indeed, if it were
true that Cecile could not elect to avoid the potential mischief of the default judgment by a
motion to quash, then this court should not be validating her specific motion by assigning it
another name and legal basis for achieving relief. I therefore submit that the only avenue of
relief properly available to Theodore is through a petition for a writ of mandamus filed with
this court. In every sense, Theodore is before us challenging the district court's order quashing
service of process. We have previously made clear that he cannot do so by appeal. I therefore
respectfully dissent from the majority's denial of respondent's motion to dismiss this appeal.
____________
108 Nev. 352, 352 (1992) Steele v. District Court
CHARLES STEELE, Petitioner, v. THE FIRST JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for Carson City, and THE HONORABLE MICHAEL
R. GRIFFIN, District Judge, Respondent.
No. 22774
May 13, 1992 830 P.2d 1340
Original petition for a writ of certiorari. First Judicial District Court, Carson City; Michael
R. Griffin, Judge.
Petition was filed for writ of certiorari challenging petitioner's conviction of one count of
destruction of personal property in the district court following acquittal of that charge in
municipal court. The supreme court held that conviction on count following acquittal in
municipal court violated double jeopardy.
Petition granted.
Martillaro and Martillaro, Carson City, for Petitioner.
Noel Waters, District Attorney, Carson City, for Respondent.
1. Double Jeopardy.
District court violated federal and state prohibitions of double jeopardy by convicting defendant of destruction of personal
property, a crime for which he had already been acquitted in municipal court.
crime for which he had already been acquitted in municipal court. U.S.C.A.Const. amend. 5.
2. Double Jeopardy.
Defendant did not, by filing an appeal, waive right to raise double jeopardy defense when he was convicted of destruction of
personal property by district court after he had already been acquitted of offense in municipal court; defendant did not appeal from his
acquittal nor could he have appealed therefrom and his appeal only went to judgment of conviction on charge of battery.
OPINION
Per Curiam:
This petition for a writ of certiorari challenges petitioner's conviction of one count of
destruction of personal property (a misdemeanor) in district court, following acquittal of that
charge in municipal court.
1

On November 2, 1989, the state filed in the Carson City Municipal Court a criminal
complaint charging petitioner with one count each of battery and destruction of personal
property. CCMC 8.04.030, 8.04.045. On May 23, 1990, the municipal court conducted a trial
on those charges. The municipal court convicted petitioner of the charge of battery, and
acquitted petitioner of the charge of destruction of personal property.
Petitioner appealed to the district court. The notice of appeal specifies that the appeal is
from a judgment of conviction for violating CCMC 8.04.030, battery. The district court,
following a trial de novo, acquitted petitioner of the charge of battery, but convicted
petitioner of destruction of personal property. This petition followed:
[Headnote 1]
Petitioner contends that the district court violated the federal and state prohibitions of
double jeopardy by convicting him of a crime for which he had already been acquitted in the
municipal court. We agree. It is a well settled, fundamental principle that a verdict of
acquittal may not be reviewed, on error or otherwise, without putting [a defendant] twice in
jeopardy. United States v. Martin Linen Supply Co., 430 U.S. 564, 571, (1977) (quoting
United States v. Ball, 163 U.S. 662, 671 (1896)). The Supreme Court has approved of a
two-tier trial system for minor offenses, like the one in Nevada, only on the express condition
that it not provide for a second trial after an acquittal. Justices of Boston Municipal Court v.
Lydon, 466 U.S. 294, 305-07 (1984); Ludwig v. Massachusetts, 427 U.S. 618, 631 (1976).
__________

1
Destruction of personal property was the language used below. CCMC 8.04.045 refers to injury to
property of another.
[Headnote 2]
The state argues that petitioner waived the right to raise a double jeopardy defense by
filing an appeal. This contention lacks merit. Petitioner did not appeal from his acquittal, nor
could he have appealed therefrom. Petitioner's appeal went only to his judgment of
conviction.
We conclude that the district court exceeded its jurisdiction in convicting petitioner of the
crime of destruction of personal property. Further, there is no direct appeal available, and no
plain, speedy and adequate remedy in the ordinary course of the law. See NRS 34.020(2);
City of Las Vegas v. Carver, 92 Nev. 198, 547 P.2d 688 (1976). Accordingly, we grant this
petition.
The clerk of this court shall forthwith issue a writ of certiorari to the district court,
ordering the district court to vacate its judgment of conviction against petitioner for
destruction of personal property.
____________
108 Nev. 354, 354 (1992) Knox v. District Court
PAUL A. KNOX, SR., Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Clark, and THE HONORABLE
JOSEPH T. BONAVENTURE, District Judge, Respondent.
No. 23028
May 13, 1992 830 P.2d 1342
Original petition for a writ of mandamus. Eighth Judicial District Court, Clark County;
Joseph T. Bonaventure, Judge.
Original petition was filed for writ of mandamus challenging alleged refusal of the district
court to grant petitioner a hearing on petition to seal portions of criminal record. The supreme
court held that procedure whereby petition to seal criminal records is referred to deputy
district attorney for review and deputy district attorney returns petition to petitioner if, in sole
view of deputy, petitioner's record should not be sealed, whether or not petition has been filed
in district court, after which petitioner may move to have petition set for hearing is illegal.
Petition granted.
Paul A. Knox, In Proper Person, Indian Springs, for Petitioner.
Rex Bell, District Attorney, Clark County, for Respondent.
1. Courts; Criminal Law.
Local rule requiring that motions contain notice of motion setting same for hearing did not apply to petition to seal portions of
criminal record where petitioner did not file motion in district court. NRS 179.255; EDCR 2.20, 2.20(a).
2. Criminal Law.
District court had mandatory duty to take official action on petition to seal portions of criminal record, whether or not petitioner
filed any further documents in the district court.
3. Courts; Criminal Law.
Even if local court rule which requires that motions contain notice of motion setting same for hearing applied to petition to seal
portions of criminal record, district court could not use local rule to defeat petitioner's right of access to court. NRS 179.255; EDCR
2.20, 2.20(a).
4. Criminal Law.
Procedure is illegal whereby petition to seal criminal records is referred to deputy district attorney for review and deputy returns
petition to petitioner if, in sole view of deputy, petitioner's record should not be sealed, whether or not petition has been filed in district
court, after which petitioner may move to have petition set for hearing; there is no statutory authority for referring petitions to office of
district attorney, for district attorney to return petition to petitioner, or for district court to avoid its mandatory obligation to act on
petition by deferring its judicial role to deputy district attorney. NRS 179.255(2).
OPINION
Per Curiam:
This original petition for a writ of mandamus challenges the alleged refusal of the district
court to grant petitioner a hearing on his petition to seal portions of his criminal record.
On March 19, 1992, petitioner filed in this court an original petition for a writ of
mandamus. In that petition, petitioner demonstrated that, on January 6, 1992, he filed in the
district court a petition, pursuant to NRS 179.255, to have a portion of his criminal record
sealed. NRS 179.255 provides as follows:
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.
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.
Petitioner alleged that while he was charged, by way of information, with one count each
of coercion, false imprisonment, and battery causing substantial bodily harm, he was
acquitted of the charge of false imprisonment. He further alleged that earlier charges of
kidnapping and assault with a deadly weapon had been dismissed, and that those charges had
not been refiled and that more than one year had passed since the dismissal.
Attached to the petition for a writ of mandamus were photocopies of two letters. The first
letter, dated February 26, 1992, was from Tony F. Sanchez, a law clerk for Judge Joseph T.
Bonaventure, and was addressed to Alexandra C. Chrysanthis, a deputy district attorney with
the Clark County District Attorney's Office. The main text of that letter read as follows:
Please find enclosed the Order along with a copy of the Petition on the above entitled
case that I discussed with you last week. As I indicated to you, I appreciate your offer to
send Mr. Knox a letter indicating why his record cannot be sealed at this time.
If you have any questions of if there is anything I can do, please do not hesitate to call
me on extension 4661. Thanks again for all of your help in this matter.
The second letter, dated February 28, 1992, was from Chrysanthis, and was addressed to
petitioner. The main text of that letter read as follows:
As required by statute, your Petition to Seal Records was referred to our office for
review.
After reviewing your Petition as well as your case history and NRS 179.245 and
179.255, I regret to inform you that your records cannot be sealed. Due to the fact that
your arrests resulted in convictions, none of the records can be sealed at this time. Even
though certain counts or charges may have been dismissed or resulted in acquittals,
those records cannot be sealed so long as the remaining counts or charges resulted in
convictions until the convictions themselves can be sealed.
Consequently, I am returning your original Petition to Seal Records and Order. If you
have any additional questions, please direct them to me.
On March 24, 1992, this court issued an order in which we noted that petitioner had
demonstrated that he might be entitled to relief. Specifically, we noted that after reviewing
petitioner's allegations, as demonstrated by the documents supporting his petition, it appeared
that NRS 179.255 may not have been complied with. Accordingly, we ordered the state to file
an answer to the petition for a writ of mandamus.
On April 20, 1992, the state filed in this court an answer to the petition for a writ of
mandamus. In that answer the state first explains that petitioner's petition to seal his records
was not set for a hearing because it did not comply with Eighth District Court Rule (EDCR)
2.20(a), which requires that motions contain a notice of motion setting the same for
hearing. Because petitioner never requested that his petition be set for a hearing, the state
explains that no action was taken.
[Headnotes 1-3]
The state's explanation demonstrates a serious misunderstanding of civil procedure.
Petitioner did not file a motion in the district court; therefore EDCR 2.20 is inapplicable.
Petitioner commenced an independent civil action by filing a petition. The district court had a
mandatory duty to take official action on that petition, whether or not petitioner filed any
further documents in the district court. Further, even if EDCR 2.20 were applicable, we hold
that a district court may not use its local rules to defeat the right of litigants to access to the
court.
[Headnote 4]
The rest of the state's answer is even more disturbing. The state explains that it is the
regular practice in the Eighth Judicial District to refer petitions under NRS 179.255 to a
deputy district attorney for review, and for the deputy district attorney to return the petition to
the petitioner if, in the sole view of the deputy district attorney, the petitioner's records should
not be sealed. This procedure is followed whether or not the petition has been filed in the
district court. The state explains that the petitioner may thereafter move to have the petition
set for a hearing.
1
The state's explanation of the local procedure for handling petitions under
NRS 179.255, is confirmed by an affidavit from the Judge Joseph T. Bonaventure.
We hold that the above procedure is illegal. NRS 179.255 has no provision for referring
petitions to seal records to the office of the district attorney. Instead, the district attorney is
entitled to be notified of the petition and to "testify and present evidence at the hearing on
the petition."
__________

1
We note, however, that the letter from Chrysanthis to petitioner does not explain this and, in fact,
specifically instructs petitioner to direct any further questions to Chrysanthis.
notified of the petition and to testify and present evidence at the hearing on the petition.
NRS 179.255(2). There is absolutely no authority for referring a petition to the district
attorney or for the district attorney to return a petition to the petitioner. Likewise, there is no
authority for the district court to avoid its mandatory obligation to act on the petition by
deferring its judicial role to a deputy district attorney.
Accordingly, we grant this petition. The clerk of this court shall forthwith issue a writ of
mandamus, directing the district court to schedule a hearing on petitioner's petition to seal his
records, and make an official disposition of that petition.
2

____________
108 Nev. 358, 358 (1992) Carlson v. Carlson
GERTRUDE A. CARLSON, Appellant, v. AUSTIN W. CARLSON, Respondent.
No. 22510
May 14, 1992 832 P.2d 380
Appeal from an order of the district court vacating the domestic relations referee's findings
and recommendations to set aside a divorce decree. Eighth Judicial District Court, Clark
County; Addeliar D. Guy, Judge.
Former wife sought relief from incorporated property settlement after she learned actual
value of former husband's pension. The district court vacated referee's findings and
recommendations to set aside the decree. Former wife appealed. The supreme court held that:
(1) district court was not required to review referee's report as though it were administrative
decision to be affirmed if there was substantial evidence to support it, and (2) representation
by former husband and his attorney that proposed division of property was essentially equal
was result of mistake or fraud and, therefore, entitled former wife to relief from property
settlement.
Marshal S. Willick, Las Vegas, for Appellant.
Robert W. Lueck, Las Vegas, for Respondent.
1. Divorce.
District court was not required to review referee's report on former wife's motion for relief from divorce decree as though report
were administrative decision to be affirmed if there was substantial evidence to support it.
__________

2
We express no opinion on the merits of petitioner's petition to seal his records.
administrative decision to be affirmed if there was substantial evidence to support it. NRCP 60(b).
2. Divorce.
Representation by former husband and his attorney that proposed division of property was essentially equal was result of mistake
or fraud and, therefore, entitled former wife to relief from incorporated property settlement after she learned actual value of former
husband's pension and realized that she had received approximately twenty-nine percent of assets. NRCP 60(b)(1), (2).
3. Divorce.
Former wife was entitled to amendment of divorce decree to make it qualified domestic relations order (QDRO) so that former
wife would not lose pension benefits under former husband's election of surviving spouse annuity. Employee Retirement Income
Security Act of 1974, 206(d)(3)(A), 29 U.S.C.A. 1056(d)(3)(A).
OPINION
Per Curiam:
arties entered into a property settlement which was incorporated into their divorce decree.
Thereafter, appellant Gertrude Carlson (Trudy) moved for relief from the judgment
pursuant to NRCP 60(b). The domestic relations referee recommended that said relief be
granted. Respondent Austin Carlson (Austin) objected to the referee's report, and the
district court vacated the referee's findings and recommendations. For the reasons discussed
herein, we reverse.
FACTS
After twenty-five years of marriage, Trudy and Austin were divorced in August of 1990.
Austin was employed by Kaiser Steel Corporation for approximately twenty of those years.
Trudy had a high school education and was not employed outside the home during the first
twenty years of their marriage. She raised the children and maintained the family home.
When Austin retired from Kaiser Steel Corporation, he elected the Life and Surviving
Spouse pension option. Under this option, if Trudy survived Austin, she would receive the
monthly annuity for thirty-six months and half the monthly annuity for the rest of her life. The
option was irrevocable.
After physically separating, Austin and Trudy met with attorney Robert Lueck to discuss a
joint petition for divorce. Mr. Lueck advised Trudy that she could seek independent counsel
at any time. They again met to sign the divorce papers, but Trudy refused to sign the papers
because they provided that she waived her rights to Austin's pension.
In May of 1990, Trudy retained counsel. Through their attorneys, the parties began
negotiating a property settlement.
neys, the parties began negotiating a property settlement. Trudy's counsel attempted to obtain
information about the value of Austin's pension from New York Life Insurance Company
(New York Life) which administered Austin's pension plan. New York Life responded slowly
to the request for information.
1
In fact, New York Life did not reveal the actual value of
Austin's pension until after the divorce decree had been entered. Because Trudy's counsel did
not have the information from New York Life indicating the actual value of Austin's pension,
she relied on Austin's and his counsel's representation that the proposed division of property
was an essentially equal distribution of assets. Trudy agreed to the settlement. On August 17,
1990, the district court adopted said agreement and incorporated it into the divorce decree.
Thereafter, Trudy learned the actual value of Austin's pension and realized that she had
received approximately twenty-nine percent of the parties' assets. She therefore moved for
relief from the judgment pursuant to NRCP 60(b). The domestic relations referee
recommended that the district court grant Trudy's requested relief. Austin objected to the
referee's report. The district court sustained Austin's objection and vacated the referee's
findings and recommendations.
DISCUSSION
[Headnote 1]
A domestic relations referee must hear all post-trial motions related to divorce in the
Eighth Judicial District Court, EDCR 5.81(1)(a).
2
Trudy argues that the district court erred
in vacating the referee's report because there was substantial evidence to support said report.
In other words, Trudy is arguing that the district court must review the referee's report as
though it was an administrative decision. See SIIS v. Swinney, 103 Nev. 17, 20, 731 P.2d
359, 361 (1987) (the decision of an administrative agency will be affirmed if there is
substantial evidence to support the decision). Trudy relies on Minnear v. Minnear, 107 Nev.
495, 814 P.2d 85 (1991). In Minnear, this court held that the district court did not abuse its
discretion in adopting the referee's report. Id. at 497, S14 P.2d at S6.
__________

1
New York Life informed Trudy's counsel that it would not release any information until it received Austin's
written authorization for such a release. Austin signed the release on June 28, 1990, and Trudy's counsel again
requested information from New York Life.

2
EDCR 5.81(1)(a) provides:
(a) Unless otherwise directed by the court, a domestic relations referee must hear the following
matters:
(1) All pretrial and post-trial motions related to domestic relations matters including, but not
limited to, divorce, separate maintenance and annulment.
district court did not abuse its discretion in adopting the referee's report. Id. at 497, 814 P.2d
at 86. There is no language in Minnear to suggest that the district court is bound by the
referee's report if it is supported by substantial evidence.
Trudy also relies on cases interpreting NRCP 53.
3
The present case, however, does not
involve the appointment of a master pursuant to NRCP 53.
4
This case involves a normal
abuse of discretion standard of review. Motions under NRCP 60(b) are within the sound
discretion of the district court, and this court will not disturb the district court's decision
absent an abuse of discretion. Heard v. Fisher's & Cobb Sales & Distrib., Inc., 88 Nev. 566,
568, 502 P.2d 104, 105 (1972).
[Headnote 2]
Trudy argues that Austin improperly received the bulk of the community property because
he misrepresented the value of his pension. Trudy contends that she demonstrated that the
divorce decree should be set aside based on either mutual mistake or fraud. We agree. During
the parties' negotiations, both Austin and his attorney informed Trudy's counsel that the
proposed, and later agreed-to, division of assets was essentially equal. Trudy received
approximately twenty-nine percent of the parties' assets. Obviously, Trudy did not receive an
essentially equal division of the community assets.
Austin never expressly addresses whether he or his counsel made the misrepresentations.
Instead, Austin argues that because Trudy was represented by counsel and because Trudy did
not opt to continue discovery, her arguments are without merit. Arguably, Trudy's counsel
should have more diligently pursued information about the pension or, at least, moved for a
continuance until she determined the actual value of the pension.
5
Nonetheless, [t]he
salutary purpose of Rule 60(b) is to redress any injustices that may have resulted because of
excusable neglect or
__________

3
Pursuant to NRCP 53, the district court may appoint a master in any pending action. NRCP 53(a). A
reference to a master shall be the exception and not the rule . . . [I]n actions to be tried without a jury, save in
matters of account and of difficult computation of damages, a reference shall be made only upon a showing that
some exceptional condition requires it. NRCP 53(b). In non-jury trials, the district court shall accept the
master's findings of fact unless clearly erroneous. NRCP 53(e)(2).

4
Our conclusion is further supported by the fact that EDCR 1.40 provides that Uniform Reciprocal Support
Act masters must be in accordance with the provisions of N.R.C.P. 53, 1.40(b); however, EDCR 5.81 does not
provide that the domestic relations referees must be in accordance with NRCP 53.

5
Appellant's present counsel did not represent appellant at the time of the divorce.
the wrongs of an opposing party. Rule 60 should therefore be liberally construed to effectuate
that purpose. Nevada Indus. Devel., Inc. v. Benedetti, 103 Nev. 360, 364, 741 P.2d 802, 805
(1987) (citations omitted).
Moreover, the record clearly demonstrates that the representations were the result of either
mistake or fraud. If both Austin and Trudy were mistaken about the pension's value, the
parties entered the property settlement based upon a mutual mistake, namely, that they had
essentially split their property equally. A mutual mistake entitles a party to relief from a
judgment. NRCP 60(b)(1). If, however, Austin or his counsel knew the value of the pension,
they fraudulently misrepresented the value of Austin's pension. Such fraud is grounds for
relief from the judgment pursuant to NRCP 60(b)(2).
6
Therefore, we conclude that Trudy
was entitled to relief from the judgment.
[Headnote 3]
Trudy also argues that the divorce decree should be amended so that it constitutes a
qualified domestic relations order formally designating her as Austin's surviving spouse, as
required under federal law, in order for her to receive the pension's survival benefits.
Under the Employee Retirement Income Security Act, a pension plan cannot assign or
alienate benefits. Gavin L. Phillips, Annotation, Domestic Relations Order, 79 A.L.R.4th
1081 (1990). This anti-assignment rule applies to the creation, assignment, or recognition of
a right to any benefit payable with respect to a participant pursuant to a domestic relations
order, except that paragraph (1) shall not apply if the order is determined to be a qualified
domestic relations order. 29 USC 1056(d)(3)(A) (emphasis added).
Upon his retirement, Austin elected the surviving spouse annuity. This option was
irrevocable. Therefore, designating Trudy as Austin's surviving spouse will not affect
Austin's annuity. On the other hand, Trudy will lose the benefits if she is not so designated.
Consequently, we conclude that the divorce decree should be amended so that it constitutes a
qualified domestic relations order.
7
Accordingly, we hereby reverse the district court's
order vacating the domestic relations referee's recommendations and remand for further
proceedings consistent with this opinion.
__________

6
Austin cites several cases which distinguish between extrinsic and intrinsic fraud. See Mazour v. Mazour,
64 Nev. 245, 180 P.2d 103 (1947); Colby v. Colby, 78 Nev. 150, 369 P.2d 1010 (1962); and Norris v. Phillips,
86 Nev. 619, 472 P.2d 347 (1970). In 1981, NRCP 60(b)(2) was amended whereby a party could obtain relief
on the basis of fraud whether denominated intrinsic or extrinsic. In the Matter of the Amendment of NRCP
60(b)(2), ADKT 43 (Order Amending Rule, October 22, 1981). Accordingly, the cases cited by Austin are not
applicable.

7
In order to qualify as a domestic relations order, the divorce decree must recognize the right of the
alternative payee to receive benefits, 29 USC 1056(d)(3)(B)(i)(I). The order must also specify the following:
(1) the name
Accordingly, we hereby reverse the district court's order vacating the domestic relations
referee's recommendations and remand for further proceedings consistent with this opinion.
____________
108 Nev. 363, 363 (1992) Colfer v. Harmon
JAMES D. COLFER and DEANNA COLFER, Husband and Wife, and SOUTHWEST
BUILDERS & DEVELOPMENT, INC., a Nevada Corporation, Appellants, v.
ROBERT G. HARMON and BARBARA A. HARMON, Respondents.
No. 22187
May 14, 1992 832 P.2d 383
Appeal from a judgment, following a bench trial, in a trespass action. Second Judicial
District Court, Washoe County; Robert L. Schouweiler, Judge.
Landowners were sued for trespass by owners of neighboring property for tearing down
neighbors' fence and building new fence. Landowners counterclaimed, alleging that several of
neighbors' structures encroached on their property. The district court entered judgment for
neighbors, and landowners appealed. The supreme court held that: (1) landowners did not
trespass on neighbors' property by removing fence; (2) neighbors' brick wall encroached on
landowners' property; and (3) neighbors acquired no right to encroachment by virtue of
adverse possession or prescriptive easement.
Anderson, Pearl, Hardesty, Lyle, Murphy & Stone, Reno, for Appellants.
Woodburn & Wedge and William E. Peterson, Reno, for Respondents.
1. Fences.
Landowners' destruction of neighbors' fence created rebuttable adverse presumption that fence did not encroach on landowners'
property, for purposes of neighbors' trespass claim.
2. Fences.
Landowners rebutted presumption that neighbors' fence did not encroach on landowners' property, arising from landowners'
destruction of fence, by presenting evidence of engineering firm's discovery that fence encroached on
landowners' property, of other surveys of location of fence, and of size of cement footings of fence posts in
relation to width of disputed property area; thus, district court erroneously found that fence was located
entirely on neighbors' property and that landowners trespassed in taking down fence.
__________
and address of the pension participant and the alternative payee; (2) the amount of the participant's benefits to be paid by the plan to the
alternative payee or the manner in which such amount is to be determined; (3) the number of payments or period to which the order applies;
and (4) the plan under which such order applies. 29 USC 1056(d)(3)(C).
of fence, by presenting evidence of engineering firm's discovery that fence encroached on landowners' property, of other surveys of
location of fence, and of size of cement footings of fence posts in relation to width of disputed property area; thus, district court
erroneously found that fence was located entirely on neighbors' property and that landowners trespassed in taking down fence.
3. Condominium.
Owners of condominium unit had standing to assert counterclaim that neighboring landowners' brick wall encroached on
condominium association's property, though ownership interests of condominium unit owners was limited to air space inside unit.
4. Boundaries.
Uncontroverted testimony of civil engineer and line surveyor and survey map established that neighbors' brick wall encroached on
landowners' property.
5. Adverse Possession; Easements.
Neighbors failed to establish they gained rights to brick wall's encroachment of property by virtue of adverse possession or
prescriptive easement, absent showing that they paid property taxes on disputed property or that there was hostile claim of right for five
years. NRS 11.150, 40.090.
OPINION
Per Curiam:
The parties are adjoining property owners. Appellants James Colfer, Deanna Colfer and
Southwest Builders & Development, Inc.
1
(Colfers) tore down the fence of respondents
Robert and Barbara Harmon (Harmons) and built a new fence. The Harmons sued for
trespass. The Colfers counterclaimed, alleging that several of the Harmons' structures
encroached on their property. The district court found that the Harmons' fence was located
entirely on their own property and that, consequently, the Colfers trespassed when they tore it
down. The district court also found in favor of the Harmons on the Colfers' counterclaim. For
the reasons discussed herein, we reverse the judgment and remand with instructions that the
district court enter judgment in favor of the Colfers on their counterclaim.
FACTS
Mr. Harmon's uncle originally owned the parties' properties, consisting of a north and
south parcel. In 1983, the Harmons became the owners of the north parcel and hired Barry
Hickerson (Hickerson), a licensed surveyor, to establish the boundary between the north
and south parcels. This survey was recorded in the office of the Washoe County Recorder.
Hickerson staked the boundary line.
__________

1
James and Deanna Colfer are the sole owners of this company.
boundary line. Approximately nine months later, the Harmons' fence was built.
In 1985, the Colfers purchased the south parcel. They intended to construct a
condominium project on their property. Neighboring property owners, including the
Harmons, raised objections to the proposed project. The City of Reno therefore conditioned
its approval of the project on the construction of a crash-barrier fence along the property lines
separating the Harmons' and the Colfers' properties.
During the construction of the condominium project, the Colfers hired Osgood
Engineering to locate the corners of their property. Based on Hickerson's recorded survey,
Osgood Engineering located the boundary line between the parties' properties. Osgood
Engineering discovered that the Harmons' fence encroached on the Colfers' property and that
the Harmons had several other structures, two brick corner posts and a brick wall, which
encroached on the Colfers' property.
Scott Learey (Learey) and Daryl Anderson (Anderson), two carpenters who were working
on the condominium project, surveyed the location of the Harmons' fence with respect to the
boundary line. They each shot the line several times. They discovered that the Harmons'
fence encroached on the Colfers' property from two to six inches. They also discovered that
the fence posts had cement footings which were over two feet in diameter. These footings
encroached on the Colfers' property by up to two feet. Learey and Anderson removed the
fence boards, leaving the fence posts in place. They then documented the encroaching fence
posts through a series of pictures, depicting the boundary line, the fence posts and several
measuring devices.
Learey showed Mr. Harmon the encroachments. Mr. Harmon told Learey that he could cut
the encroaching cement footings. Learey and Anderson broke some of the cement footings,
but those posts fell over as a result. Mr. Harmon denied the Colfers' request to remove the
fence. Thereafter, however, the Colfers removed the remaining encroaching fence posts. The
Colfers built the required crash-barrier fence. The new fence was constructed entirely on the
Colfers' property. The Harmons sued the Colfers for trespass.
DISCUSSION
The Harmons' trepass claim
[Headnotes 1, 2]
The Colfers contend that the evidence does not support a finding that they trespassed upon
the Harmons' property. This court will not overturn a trial court's finding of fact if supported
by substantial evidence.
by substantial evidence. Pandelis Constr. Co. v. Jones-Viking Assoc., 103 Nev. 129, 130, 734
P.2d 1236, 1237 (1987). However, if upon all the evidence, it is clear that a wrong
conclusion has been reached, the judgment will be reversed. Ewing v. Bissell, 105 Nev. 488,
491, 777 P.2d 1320, 1323 (1989). We conclude that the district court clearly reached the
wrong conclusion. We therefore reverse the judgment.
The Harmons relied on Hickerson's and Mr. Harmon's testimony to prove their case. Yet
Hickerson never surveyed the Harmons' fence in relation to the boundary; he surveyed and
staked the parties' boundary line. Hickerson admitted that he could not testify as to the
location of the fence because he had not surveyed it in relation to the boundary line.
Consequently, the Harmons' only evidence indicating the location of their fence was Mr.
Harmons' testimony. He testified that his fence was built entirely within Hickerson's survey
stakes. However, the fence was built nine months after Hickerson staked the boundary, and
the stakes were located in an area heavily trafficked by walkers.
The district court did not rely solely on the foregoing evidence. Instead, the district court
found that the Colfers willfully destroyed evidencethe Harmons' fenceand that, as a
result, an adverse presumption should be applied against them to conclude that the Harmons'
fence did not encroach on the Colfers' property. [E]ven where an action has not been
commenced and there is only a potential for litigation, the litigant is under a duty to preserve
evidence which it knows or reasonably should know is relevant to the action. Fire Ins.
Exchange v. Zenith Radio Corp., 103 Nev. 648, 651, 747 P.2d 911, 194 (1987). In Zenith,
this court alluded to the possible remedy available for spoliation of evidence, namely, that
an adverse presumption be applied. Id. at 652, 747 P.2d at 914. Pursuant to NRS 47.250(3),
there is a rebuttable presumption that evidence willfully suppressed would be adverse if
produced. (Emphasis added.)
Although the district court properly applied this presumption, we conclude that the Colfers
presented sufficient evidence to rebut the presumption. First, in locating the corners of the
Colfers' property, Osgood Engineering discovered that the Harmons' fence encroached on the
Colfers' property. Secondly, Learey and Anderson each surveyed the location of the Harmons'
fence and discovered that it encroached on the Colfers' property. Thirdly and most
compelling, the cement footings of the fence posts were at least two feet in diameter. Because
the parties were disputing over two to six inches of property, these footings obviously
encroached on the Colfers' property. In fact, the Harmons never addressed this fact. The
Colfers both rebutted the adverse presumption and demonstrated that the Harmons' fence
encroached on the Colfers' property.
on the Colfers' property. Accordingly, the district court erroneously found that the Harmons'
fence was located entirely on their own property and that the Colfers trespassed in taking
down said fence.
The Colfers' counterclaim
[Headnotes 3-5]
The Colfers also argue that the district court erred in finding that the Harmons' brick wall
did not encroach on their property.
2
The district court found in favor of the Harmons on this
claim because: (1) the Colfers did not own the property and thus lacked standing; (2) the
Colfers failed to prove the encroachments; and (3) even if there was an encroachment, it was
open, notorious, continuous, adverse and under a claim of right for a period of more than
fifteen years. Again, we conclude that the district court's conclusion is clearly erroneous.
After the complaint was filed, the Colfers conveyed their property to Plumas South
Condominiums Homeowners Association, which owns all the common property and building
structures in fee, reserving to the homeowners only the air space within the walls of their
respective units. The Colfers own one unit. We have previously held that only condominium
owners have standing to sue for construction or design defects to the common areas. Deal v.
999 Lakeshore Assoc., 94 Nev. 301, 304, 579 P.2d 775, 777 (1978). The Harmons seek to
distinguish Deal on the fact that the Colfers own only the air space inside one
condominium in the development. They assert air space ownership is distinctly different
from most homeowners associations where the homeowners own their own units and the
underlying ground; here, the homeowners association owns all the ground in fee. In Deal, we
emphasized that the condominium owners had standing to sue because they must eventually
bear the costs of assessments made by the associations. Id. Our holding was not premised on
whether the condominium ownership included the common area. We conclude that the
Colfers had standing to assert their counterclaim.
The Colfers demonstrated that the brick wall encroached on their property. Both Hickerson
and Edward Osgood, a civil engineer and land surveyor, testified that the brick wall so
encroached. Moreover, Hickerson's survey map shows the brick wall encroaching
approximately four inches. This evidence is uncontroverted.
__________

2
The Colfers also alleged as a counterclaim that the Harmons' sewer line encroached on their property. On
appeal, they have only discussed the brick wall. We therefore only address the Colfers' contention as to the brick
wall.
Finally, there is no evidence to support the district court's conclusion that the Harmons
gained rights to the encroachment by virtue of adverse possession or a prescriptive easement.
The Harmons did not show that they had paid property taxes on the subject property. See
NRS 11.150 (adverse possession is not established unless the possessors of the land have paid
all state, county and municipal taxes for the previous five years); see also NRS 40.090; Biasi
v. Leavitt, 101 Nev. 86, 692 P.2d 1301 (1985). The Harmons also failed to show any
evidence of a hostile claim of right for the requisite five years. See Wilfon v. Hampel 1985
Trust, 105 Nev. 607, 608, 781 P.2d 769, 770 (1989).
Accordingly, we reverse the judgment in favor of the Harmons and remand with
instructions to enter judgment in favor of the Colfers on their counterclaim.
____________
108 Nev. 368, 368 (1992) Paul Andre B., A Minor v. State
PAUL ANDRE B., A Minor, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22449
May 15, 1992 830 P.2d 1344
Appeal from an order of the district court declaring appellant a delinquent and ward of the
court. Juvenile Division, First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Juvenile was declared delinquent and ward of court by the district court based on finding
that juvenile sold controlled substance. Juvenile appealed. The supreme court held that: (1)
juvenile was not entitled to entrapment defense, and (2) rejecting juvenile's procuring agent
defense was error.
Reversed.
Erik R. Johnson, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, and Noel S. Waters, District Attorney, Anne M.
Langer, Deputy District Attorney, Carson City, for Respondent.
1. Infants.
State acting through informant furnished juvenile with opportunity to sell controlled substance, as needed to establish entrapment
defense, by sending informant out to set up controlled buy that resulted in arrest of juvenile, who was above informant in chain of
distribution.
2. Infants.
No entrapment defense existed in narcotics prosecution in light of undisputed evidence that juvenile was involved in selling
marijuana and offered to sell methamphetamine, which established juvenile's predisposition to sell controlled
substances.
offered to sell methamphetamine, which established juvenile's predisposition to sell controlled substances.
3. Infants.
Procuring agent defense applied in narcotics prosecution since juvenile acted on behalf of informant in obtaining
methamphetamine, received neither money nor share of methamphetamine in return for obtaining drugs for informant, informant
initiated contact and requested sale of drugs, and there was no evidence that juvenile acted for benefit of supplier in delivering drugs to
informant or had previously associated with supplier in selling controlled substances.
OPINION
Per Curiam:
Elmer Pruit (Pruit) was arrested and charged by the State with several narcotics offenses.
Pursuant to the terms of a plea agreement, the State agreed to allow Pruit to plead to a lessor
offense if he could provide information or assistance resulting in the arrest of one person who
was above him in the chain of distribution of controlled substances. Pruit suspected appellant,
a juvenile who worked with him, of dealing controlled substances, and, as a result, targeted
him for an undercover operation.
Subsequently, Pruit set up a controlled buy of methamphetamine involving the appellant.
On the afternoon of May 16, 1990, appellant and Pruit met at Pruit's automobile in their
employer's parking lot. Pruit handed appellant $25.00 in prerecorded money, and appellant
then walked across the parking lot to an automobile occupied by Jay Puddington
(Puddington). Appellant handed the money to Puddington, and, in return, Puddington handed
him a packet containing approximately a quarter gram of methamphetamine. Appellant
returned to Pruit's automobile and gave Pruit the packet of methamphetamine. The State later
arrested appellant and charged him with, inter alia, sale of a controlled substance.
At a hearing before a special master, appellant argued that he had been entrapped by the
State and that he had been a procuring agent for Pruit rather than a seller of a controlled
substance. The special master rejected these defenses and recommended a finding of
delinquent on the sale charge. The district court also rejected these defenses in approving the
special master's delinquency finding. On appeal, appellant argues that the district court erred
in rejecting his entrapment and procuring agent defenses.
DISCUSSION
I. Entrapment
Appellant first contends that, as a matter of law, the State entrapped him into selling
methamphetamine to Pruit. Appellant asserts that the State furnished the opportunity for
his criminal conduct and that he did not have a predisposition to commit the crime.
asserts that the State furnished the opportunity for his criminal conduct and that he did not
have a predisposition to commit the crime.
In Shrader v. State, 101 Nev. 499, 706 P.2d 834 (1985), we held that entrapment as a
matter of law exists where the uncontroverted evidence shows that the State furnished an
opportunity for criminal conduct to a person lacking the requisite predisposition. Id. at 501,
706 P.2d at 835. With respect to the burden of proof applicable to a defense of entrapment,
we stated:
[T]he affirmative' nature of the defense merely requires the defendant to put forth
evidence of governmental instigation. Thereafter it is incumbent upon the state to
demonstrate the defendant's predisposition. Essentially, the defendant bears the burden
of production of the first element, while the prosecution subsequently bears the burden
of proof on the second element. (Citation omitted.)
Id. at 504, 706 P.2d at 837-838.
[Headnote 1]
Here, the State itself put forth evidence of governmental instigation. The testimony of the
State's witnesses established that Pruit set out, at the behest of the State, to set up a controlled
buy that would result in the arrest of one person who was above Pruit in the chain of
distribution. Thus, the State, acting through Pruit, furnished appellant the opportunity to sell a
controlled substance.
Under Shrader, our next inquiry is whether the State proved that appellant harbored the
predisposition to sell the methamphetamine before being targeted by Pruit.
[Headnote 2]
The State's evidence of appellant's predisposition consisted solely of Pruit's testimony
regarding events prior to the May 16, 1990 methamphetamine transaction. Pruit testified that
he targeted appellant because of a co-worker's statement that appellant was selling marijuana
and that when he asked appellant about having marijuana for sale, appellant responded that it
was a possibility. Pruit also testified that appellant had indicated having a half-pound of
marijuana for sale. Finally, Pruit testified that appellant had agreed to sell him a sixteenth
ounce of methamphetamine but that the purchase fell through because appellant was unable
to get the narcotics from his supplier.
Pruit is a disreputable man who had a motive to lie about appellant's predisposition;
nevertheless, his testimony stands uncontroverted. Appellant alleges that Pruit intimidated,
frightened and coerced him; yet appellant offers no evidence or testimony supporting these
allegations. Appellant did not testify at the fact-finding hearing, and his counsel did not call
any witnesses on his behalf.
fact-finding hearing, and his counsel did not call any witnesses on his behalf.
Pruit's uncontradicted testimony indicated that appellant was predisposed to sell controlled
substances before Pruit targeted him for the controlled buy. The weight and credibility of a
witness' testimony is within the province of the trier of fact. Washington v. State, 96 Nev.
305, 608 P.2d 1101 (1980). The district court, sitting as the trier of fact, found Pruit to be
credible. Thus, we conclude that the district court correctly found that the State's evidence
sufficiently established appellant's predisposition to sell controlled substances.
II. Procuring Agent
Appellant next contends that he could not be found delinquent on the sale of a controlled
substance charge because he acted solely for the benefit of Pruit in obtaining the
methamphetamine.
We have previously considered the procuring agent issue. In Roy v. State, 87 Nev. 517,
489 P.2d 1158 (1971), we considered whether a twenty-two-year-old mentally retarded man
who purchased marijuana for an undercover police officer who had feigned to be his friend
could be convicted of the offense of selling marijuana. In reversing the conviction, we
concluded that the district court erred by refusing to give the following jury instruction:
If you believe that [the officer] asked the defendant to get some marijuana for him and
that the defendant thereupon undertook to act in [sic] behalf of [the officer] rather than
on defendant's own behalf, and in so doing, purchased the marijuana from a third
person with whom the defendant was not associated in selling marijuana, and that
defendant thereafter delivered the marijuana to [the officer], the defendant is not a
seller and cannot be convicted of the offense of selling marijuana.
Id. at 518, 489 P.2d at 1158. In explaining our decision, we stated that [i]t seems rather
fundamental that one cannot be found guilty of being a seller,' when he has not acted for the
supplier but solely for the recipient. Id. at 519, 489 P.2d at 1159; see Hillis v. State, 103
Nev. 531, 536, 746 P.2d 1092, 1095 (1987).
[Headnote 3]
Applying these precedents here, we conclude that the district court erred in rejecting
appellant's procuring agent defense. First, the evidence shows that appellant, in obtaining
the methamphetamine, acted not on his own behalf but on behalf of Pruit.
Appellant received neither money nor a share of the methamphetamine in return for obtaining
the drugs for Pruit. In addition, Pruit's testimony shows that he initiated contact with
appellant and that the sale of methamphetamine came about at the request of Pruit.
Second, there is simply no evidence that appellant acted for the benefit of
Puddingtonthe supplierin delivering methamphetamine to Pruit. Moreover, there is no
evidence indicating that appellant had previously associated with Puddington in selling
controlled substances.
In our view, the evidence adduced below supports appellant's contention that he was a
procuring agent of Pruit and not a seller of a controlled substance.
CONCLUSION
For the reasons given above, we conclude that the district court correctly rejected
appellant's entrapment defense. We also conclude, however, that the lower tribunal erred in
rejecting appellant's procuring agent defense. Accordingly, we reverse the district court's
order of adjudication.
____________
108 Nev. 372, 372 (1992) Miller v. Evans
ROBERT MILLER, Chairman of Nevada Board of Prison Commissioners; FRANKIE SUE
DEL PAPA, Nevada Attorney General; RON ANGELONE, Director of Nevada
Department of Prisons; SALVADOR GODINEZ, Warden, Ely State Prison;
CHARLES WOLFF, Associate Warden of Programs, Ely State Prison; JERRY
DeFOREST, Business Manager, Ely State Prison, and MARY LONG, Nevada
Department of Prisons Compliance Monitor, Appellants, v. MICHAEL R. EVANS,
Respondent.
No. 22150
May 18, 1992 832 P.2d 786
Appeal from summary judgment. Seventh Judicial District Court, White Pine County;
Merlyn H. Hoyt, Judge.
Inmate at state prison filed civil rights complaint alleging that prison failed to maintain
constitutionally adequate law library. The district court granted summary judgment for
inmate, and prison appealed. The supreme court held that present law library system provided
inmates of state prison with constitutionally adequate basis for obtaining meaningful access to
courts.
Frankie Sue Del Papa, Attorney General, and Paul G. Yohey, Deputy Attorney General,
Carson City, for Appellants.
Gary D. Fairman, Ely, for Respondent.
1. Constitutional Law; Prisons.
Inmates have fundamental constitutional right of access to courts through reasonably adequate law libraries or assistance from
persons trained in law; prison law library will be considered adequate if it provides indigent inmates with sufficient basic foundation
for preparation of legal actions.
Nevada's system of satellite law libraries and inmate law clerks provides inmates with constitutional basis for meaningful access to
the courts.
3. Prisons.
Prison law library must only meet minimal constitutional standards, and such minimal standards do not require prison officials to
maintain set of Pacific Reporters. U.S.C.A.Const. amend. 14.
Neither federal nor Nevada constitution is offended by less than ideal prison law libraries except in those specific instances where
inmate has demonstrated that library deficiencies were substantial, that equivalent information could not be obtained through
alternative sources, or that omissions obstructed his access to courts. U.S.C.A.Const. amend. 14.
5. Prisons.
Inmate's entitlement to prison law library inventories must be subject to rule of reason; there are limits on extent to which public
fisc must be utilized to satisfy incessant demands of incarcerated population.
Requirements of due process are sufficiently flexible to accommodate public need to make efficient use of its limited resources in
satisfying right of inmates to have access to legal volumes and materials that they may deem necessary or desirable in exploring
avenues of access to courts. U.S.C.A.Const. amend. 14.
OPINION
Per Curiam:
Respondent Michael R. Evans, an inmate at Ely State Prison, filed a civil rights complaint
pursuant to 42 U.S.C. 1983. Evans' complaint alleged that appellants failed to provide him
with meaningful access to the courts by not maintaining a constitutionally adequate law
library at Ely State Prison. Both Evans and appellants filed motions for summary judgment.
The district court, relying on Craig v. Hocker, 405 F.Supp. 656 (D.Nev. 1975), ruled that
the Ely prison law library is constitutionally inadequate, and granted Evans' motion for
summary judgment. The facts are not in dispute.
The inventory of the Ely State Prison law library is set forth in the appendix to this
opinion. In addition to the volumes itemized in the appendix, the library contains directories
and various books and articles on federal and state criminal law, criminal procedure, and civil
procedure. Inmates are also offered the assistance of inmate law clerks and law librarians.
Moreover, law books and legal materials that are unavailable to inmates at the Ely prison law
library may be borrowed or copied from the Nevada Supreme Court law library.
DISCUSSION
Appellants contend that the Ely prison law library's law book inventory is constitutionally
adequate and that the filing of the instant suit and petition for a writ of mandamus cogently
demonstrate that Evans was not denied access to the courts. Appellants therefore insist that
the district court erred in granting Evans' motion for summary judgment.
Evans contends that Craig was rightly viewed as dispositive by the district court since it is
undisputed that the Ely prison law library does not contain all of the books specified in Craig.
Evans takes the position that Craig identifies the legal volumes constitutionally required in a
Nevada prison law library. There is no allegation by Evans, however, that he needed a
particular volume he was unable to obtain, or that the perceived deficiency in the prison
library prevented him from researching a particular area of law.
[Headnote 1]
Inmates have a fundamental constitutional right of access to the courts through reasonably
adequate law libraries or assistance from persons trained in the law. Bounds v. Smith, 430
U.S. 817, 828 (1977) (main concern is protecting ability of an inmate to prepare a petition or
complaint). A prison law library will be considered adequate if it provides indigent inmates
with a sufficient basic foundation for the preparation of legal actions. Id. at 829.
[Headnotes 2, 3]
Nevada's system of satellite law libraries and inmate law clerks provides inmates with a
constitutional basis for meaningful access to the courts. See Wood v. Housewright, 900 F.2d
1332, 1335 (9th Cir. 1991). In addition, the Ninth Circuit Court of Appeals has stated that the
Pacific Reporter 2d, Shepard's Citations, a number of additional reference books, and earlier
editions of the Federal Supplement . . . would be found in an ideal law library. However, the
Prison need not provide its inmates with a library that results in the best possible access to
the courts."
the courts. Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 856 (9th Cir. 1985). A
prison law library must only meet minimal constitutional standards, and such minimal
standards do not require prison officials to maintain a set of the Pacific Reporters. See id.;
Johnson v. Moore, 948 F.2d 517, 521 (9th Cir. 1990). Finally, [i]n determining whether this
constitutional minimum has been breached we focus on whether the individual plaintiff
before [us] has been denied meaningful access [to the courts].' Wood, 900 F.2d at 1335
(quoting King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987)).
[Headnote 4]
Neither the federal nor the Nevada constitution is offended by less than ideal prison law
libraries except in those specific instances where an inmate has demonstrated that library
deficiencies were substantial, that the equivalent information could not be obtained through
alternative sources, or that the omissions obstructed his access to the courts. Johnson, 948
F.2d at 521.
[Headnotes 5, 6]
An inmates' entitlement to prison law library inventories must be subject to a rule of
reason. There are limits on the extent to which the public fisc must be utilized to satisfy the
incessant demands of our incarcerated population. The requirements of due process are
sufficiently flexible to accommodate the public need to make efficient use of its limited
resources in satisfying the right of inmates to have access to legal volumes and materials that
they may deem necessary or desirable in exploring their avenues of access to the courts.
Evans has failed to demonstrate that he was unable to obtain from the Nevada Supreme
Court law library or other state or county resources, any law books or other legal materials
that were unavailable at the Ely prison law library. Moreover, Evans has not shown that he
was prevented from achieving meaningful access to the courts by reason of any alleged
deficiency in the prison library.
Based upon the foregoing analysis of the facts and relevant legal precedents, we conclude
that the combination of the presently constituted prison law library, inmate law clerks and
librarians, and inmate access to law books from the Supreme Court law library, provides
inmates of the state prison at Ely a constitutionally adequate basis for obtaining meaningful
access to the courts. Accordingly, we reverse the district court's order granting summary
judgment in favor of Evans, and remand this matter to the district court with instructions to
enter summary judgment in favor of appellants.
APPENDIX
Book Name Volume Number
Supreme Court Reporter
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
10, 81, 84-109, 110
Federal Reporter, 2d Edition- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 334-902
Federal Supplement
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
232-736
Pacific Reporter, 2d Edition
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
395-791
Federal Digest
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Complete set
California & Pacific Digest, 1850-1931, 1-300 Pacific Reporter- - - - - - - - - - - - - - - - - - 1-40
California & Pacific Digest, 1931-1941, 1-100, Pacific Reporter 2d
- - - - - - - - - - - - - - -
1-15
Pacific Digest, Annuals, 1951-1960
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
1-10
Pacific Digest, Pacific Reporter 2d Edition
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
1-60
Federal Practice and Procedure
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Complete set
Corpus Juris Secundum
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Complete set
United States Code Service
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Complete set
United States Code Annotated
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Partial set
Nevada Revised Statutes
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Complete set
Shepard's Citations:
United States Citations
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Complete set
Federal Citations
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Complete set
Pacific Citations
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Complete set
Nevada Citations
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Complete set
Federal Rules of Civil Procedure
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Three each
Federal Rules of Criminal Procedure- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Three each
Federal Local Rules of Procedure- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Four each
Federal Jury and Practice Instructions- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1-3
Black's Law Dictionary- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Three each
Webster's Dictionary- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - One each
Wharton's Criminal Procedure- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - One
American Correctional Association, Committee on Standards- - - - - - - - - - - - - - - - - One each
Nevada Department of Prisons Administration Regulations Manual- - - - - - - - - - - - - - - - - 1-2
Federal Rules of Appellate Procedure, Ninth Circuit Court of Appeals- - - - - - - - - - - One each
Handling Narcotic and Drug Cases, Cumulative Supplement- - - - - - - - - - - - - - - - - One each
1990 Federal Sentencing Manual- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - One each
Martindale Hubbell Law Directory- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - I-VII
Federal Rules Digest 2nd Edition
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
1-4
American Jurisprudence, Pleading and Practice Forms- - - - - - - - - - - - - - - - - - - - - - 1-3, 9-15
1983 Criminal Law and Its Processes- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - One each
1986 Criminal Law Cases and Materials- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - One each
1989 How to Find the Law- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - One each
____________
108 Nev. 376, 376 (1992) Ramirez-Garza v. State
JUAN RAMIREZ-GARZA, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22172
May 18, 1992 832 P.2d 392
Appeal from a judgment of conviction, following a jury verdict, of six controlled
substance offenses. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
Defendant was convicted in the district court of drug offenses and he appealed. The
supreme court held that: (1) woman who faced juvenile proceedings arising out of the
offenses was an accomplice whose testimony had to be corroborated, and (2) evidence was
sufficient to corroborate the accomplice's testimony.
Affirmed.
John C. Morrow, Acting Public Defender, and Janet Cobb Schmuck, Deputy Public
Defender, Washoe County, for Appellant.
Attorney, and Scott W. Edwards, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Even though witness had been certified as juvenile, she was liable to prosecution in juvenile forum on identical charges against
defendant and she thus was an accomplice whose testimony had to be corroborated in order to support a conviction. NRS 175.291.
2. Criminal Law.
Evidence required to corroborate accomplice testimony need not, in itself, be sufficient to establish guilt; if evidence, independent
of accomplice testimony, tends to connect accused with commission of the offense, the corroboration requirement is satisfied. NRS
175.291.
3. Criminal Law.
Testimony of accomplice was adequately corroborated by informant's testimony that he sought cocaine from a person who led him
to the accomplice, that the accomplice telephoned defendant in her efforts to obtain cocaine, that defendant and his cohort arrived at
hotel and entered the room occupied by the accomplice, and that the accomplice was in possession of cocaine after defendant and his
cohort left the room, and by police officer's testimony that defendant and his cohort were apprehended with $640 of prerecorded money
a short time later. NRS 175.291.
OPINION
Per Curiam:
A narcotics sting operation, set up by an informant, netted appellant and three others,
including a young woman who was eighteen years old. In the information it filed, the State
charged the four with several drug-related offenses. Subsequently, the young woman was
certified as a juvenile for purposes of these charges, and she testified against appellant at his
trial. Before she testified, appellant filed a motion in limine seeking to exclude her testimony
on the ground that she was an accomplice whose testimony was uncorroborated. In denying
the motion, the district court found, as a matter of law, that the young woman was not an
accomplice.
court found, as a matter of law, that the young woman was not an accomplice. A jury
convicted appellant on six controlled substance charges.
[Headnote 1]
On appeal, appellant contends, among other things, that the young woman was an
accomplice whose uncorroborated testimony led to his conviction in contravention of NRS
175.291.
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.
Interpreting this statute, we have held that an accomplice is one who is liable to prosecution
for the identical offense charged against the defendant . . . or who is culpably implicated in,
or unlawfully cooperates, aids or abets in the commission of the crime charged. Orfield v.
State, 105 Nev. 107, 109, 771 P.2d 148, 149 (1989) (emphasis added).
Although the young woman was certified as a juvenile, she is still liable to
prosecutionin the juvenile forumon the identical offenses charged against appellant.
Indeed, the initial information filed by the State named the young woman as a co-defendant
and co-conspirator with appellant and the others. Later, after the young woman had been
certified as a juvenile, the State filed an amended information which deleted her name.
Furthermore, the evidence in this case demonstrates that the young woman culpably
cooperated, aided, and abetted in the commission of the crimes charged against appellant.
Under the definition of accomplice set forth in Orfield, then, the young woman was an
accomplice.
Finally, exempting the testimony of juvenile accomplices from the requirements of NRS
175.291 would contravene the policy embodied in the statute. In enacting NRS 175.291, the
legislature intended that one who has participated criminally in a given criminal venture
shall be deemed to have such character, and such motives, that his testimony alone shall not
rise to the dignity of proof beyond a reasonable doubt. Austin v. State, 87 Nev. 578, 588,
491 P.2d 724, 731 (1971). The testimony of a juvenile accomplice is as suspect as that of an
adult accomplice.
Thus, we conclude that the district court erred in finding that the young woman was not an
accomplice. We also conclude, however, that this error is harmless beyond a reasonable doubt
because the young woman's testimony was sufficiently corroborated by other evidence.
[Headnotes 2, 3]
The evidence required to corroborate accomplice testimony need not, in itself, be sufficient
to establish guilt. If the evidence, independent of the accomplice testimony, tends to connect
the accused with the commission of the offense, then the corroboration requirement contained
in NRS 175.291 is satisfied. State v. Hilbish, Et Al., 59 Nev. 469, 479, 97 P.2d 435, 438
(1959). We conclude that the following evidence sufficiently corroborates the young woman's
testimony: (1) the informant's testimony that he sought cocaine from a Valton Tiner, that
Tiner led him to the young woman, who was staying at a nearby hotel, that the young woman
telephoned a person later identified as appellant in her efforts to obtain cocaine, and that the
informant gave the young woman $640.00 in prerecorded money to buy cocaine; (2) the
police officers' testimony that they observed appellant and his cohort arrive at the hotel and
enter the room occupied by the young woman; (3) the informant's testimony that after
appellant and his cohort left the room, he and Tiner returned and found the young woman in
possession of cocaine; and (4) the police officers' testimony that appellant and his cohort were
apprehended with $640.00 of prerecorded money in their possession a short time after they
left the hotel.
We have considered appellant's remaining contentions and find them lacking in merit.
Accordingly, we affirm appellant's convictions and the sentences imposed thereon.
1

____________
108 Nev. 379, 379 (1992) State, Gaming Comm'n v. Southwest Sec.
THE STATE OF NEVADA, NEVADA GAMING COMMISSION, Appellant, v.
SOUTHWEST SECURITIES, a Nevada Limited Partnership, Respondent.
No. 22264
May 18, 1992 832 P.2d 387
Appeal from summary judgment reversing the decision of the Nevada Gaming
Commission. Eighth Judicial District Court, Clark County; Gerard Bongiovanni, Judge.
__________

1
The Honorable Cliff Young, Justice, voluntarily recused himself from participation in the decision of this
appeal.
Owner of casino filed claim with Nevada Gaming Commission for refund of slot machine
tax. Nevada Gaming Commission rejected claim, and owner sought relief. The district court
granted summary judgment for owner, and commission appealed. The supreme court held
that: (1) slot machine tax is excise tax rather than property tax and not subject to
constitutional prohibition against double taxation, and (2) commission properly collected
prorated tax in advance from licensee who began operation during fiscal year.
Frankie Sue Del Papa, Attorney General, Carson City, and Neil H. Friedman, Deputy
Attorney General, Las Vegas, for Appellant.
Jones, Jones, Close & Brown and Mark Lerner, Las Vegas, for Respondent.
1. Taxation.
Excise tax is not subject to constitutional prohibition against double taxation; however, property tax can be imposed only once
during tax period and is subject to constitutional prohibition against double taxation.
2. Taxation.
Annual slot machine tax assessed only on slot machines operated in Nevada is excise tax because tax is based upon privilege of
using property, rather than value and ownership of property, so that slot machine tax is not subject to constitutional prohibition against
double taxation. NRS 463.385.
3. Taxation.
Nevada Gaming Commission properly collected prorated slot machine tax in advance from licensee who began operation during
fiscal year. NRS 463.385, 463.385, subd. 2(b).
OPINION
Per Curiam:
FACTS
Respondent Southwest Securities (Southwest) owned real property consisting of the
Marina Hotel & Casino (Marina) in Las Vegas, Nevada. On December 31, 1980, Southwest
leased the Marina to Airport Casino, Inc., and thereafter Airport Casino operated the hotel
and casino. In February 1984, Airport Casino filed for protection under Chapter 11 of the
Bankruptcy Code. On April 2, 1987, the bankruptcy court converted the proceeding from
Chapter 11 to Chapter 7 and appointed trustees to continue operating the hotel and casino.
Appellant Nevada Gaming Commission {"Commission") licensed the bankruptcy trustees
to conduct gaming at the property.
mission (Commission) licensed the bankruptcy trustees to conduct gaming at the property.
On June 20, 1988, the trustees paid annual slot machine taxes for the operation of 568 slot
machines for the period of July 1, 1988, through June 30, 1989.
In September 1988, the Commission licensed Southwest to take over the Marina's gaming
operations from the bankruptcy trustees. Southwest commenced operating the Marina on the
first day of the following month. The Commission required Southwest to pay a prorated
annual slot machine tax for the operation of the same 568 slot machines for the period of
October 1, 1988 through June 30, 1989. The taxes were paid by the trustees and Southwest
pursuant to NRS 463.385 which in 1988 provided in pertinent part as follows:
Annual tax upon slot machines: Imposition; collection; deposit and use of receipts.
1. In addition to any other license fees and taxes imposed by this chapter, there is
hereby imposed upon each slot machine operated in this state an annual tax of $250. If
a slot machine is replaced by another, the replacement is not considered a different slot
machine for the purpose of imposing this tax.
2. The commission shall:
(a) Collect the tax annually on or before June 20, as a condition precedent to the
issuance of a state gaming license to operate any slot machine for the ensuing fiscal
year beginning July 1, from a licensee whose operation is continuing.
(b) Collect the tax in advance from a licensee who begins operation or puts
additional slot machines into play during the fiscal year, prorated monthly after July 31.
In May 1989, pursuant to NRS 463.387, Southwest filed a claim with the Commission for
a refund, alleging that an overpayment resulted from Southwest's payment of taxes for the
operation of its 568 slot machines from October 1, 1988, through June 30, 1989, because the
tax had already been paid on the same machines for the same time period by the bankruptcy
trustees. Southwest's claim alleged that the annual slot machine tax imposed by NRS 463.385
is a personal property tax which can be imposed and collected on the same slot machines only
once in any tax period, regardless of a change in the ownership of the machines.
The Commission heard and thereafter rejected Southwest's claim in a decision filed on
October 19, 1989. The Commission's decision and order held, in part, that the tax imposed by
NRS 463.385 is a privilege tax incident to the operation of slot machines.
machines. Southwest sought relief from the Commission's decision by filing a complaint in
district court pursuant to NRS 463.387 (claimant denied refund by Commission may bring
court action for recovery of amount disallowed).
[Headnote 1]
Southwest moved for summary judgment and the Commission filed a cross-motion for
summary judgment. The Commission argued that the annual slot machine tax imposed by
NRS 463.385 is an excise tax and therefore is not subject to the prohibition against double
taxation.
1
The district court rejected the Commission's position and entered summary
judgment in favor of Southwest.
During the 1991 session of the legislature, NRS 463.385(1) was amended to include the
word excise. In relevant part, the statute now provides:
463.385 Annual excise tax upon slot machines: Imposition; collection; deposit and use
of receipts.
1. In addition to any other license fees and taxes imposed by this chapter, there is
hereby imposed upon each slot machine operated in this state an annual excise tax of
$250. If a slot machine is replaced by another, the replacement is not considered a
different slot machine for the purpose of imposing this tax.
DISCUSSION
Southwest contends that the annual slot machine tax is a tax on personal property intended
by the legislature to be collected only once during each tax year. Because the annual slot tax
was called a tax instead of a license fee or excise tax, Southwest concludes that this
language demonstrates that the legislature did not intend NRS 463.385 to be a license fee.
Furthermore, Southwest argues that because NRS 463.385 is called an annual tax, the
legislature intended the tax to be imposed only once a year. Finally, Southwest contends that
because the tax is imposed on slot machines rather than persons, it is a property tax. The
distillate of the foregoing facts and legal premises, according to Southwest, is that the annual
slot machine tax, NRS 463.385, is a
__________

1
An excise tax is not subject to the constitutional prohibition against double taxation. See Fox Bakersfield
Theater Corp. v. City of Bakersfield, 222 P.2d 879, 882 (Cal. 1950) (assessment of excise taxes more than once
in the same time period is unconstitutional). However, a property tax can be imposed only once during a tax
period and is subject to the constitutional prohibition against double taxation. State v. Carson & Colo. Ry. Co.,
29 Nev. 487, 500, 91 P. 932, 934 (1907); State v. Carson City Sav. Bank, 17 Nev. 146, 155, 30 P. 703, 705
(1882) (there can be no double taxation of property).
personal property tax. See State v. Pioneer Citizens Bank, 85 Nev. 395, 398, 456 P.2d 422,
423 (1969) (statutes imposing taxes are to be construed in favor of the taxpayer).
The Commission raises three basic reasons in support of its position that the slot machine
tax imposed by NRS 463.385 is an excise tax for the privilege of placing slot machines into
play. First, the $250.00 tax per slot machine is levied only when the slot machine is put into
play, and no tax is levied against slot machines in storage. Second, the tax is levied without
assessment or regard for the value of the property being taxed. Third, the payment of the tax
is a condition precedent to the exercise of the privilege of operating a slot machine. Cherry
Hills Farms, Inc. v. City of Cherry Hills, 670 P.2d 779, 782 (Colo. 1983) (en banc) (unlike a
property tax, an excise tax is imposed for the right to exercise a privilege and its payment is a
condition precedent to the exercise of the privilege); Walker v. Bedford, 26 P.2d 1051, 1053
(Colo. 1933) (unlike a property tax, an excise tax is measured by the extent a privilege is
exercised by the taxpayer without regard to the value of taxpayer's assets). The Commission
concludes, consonant with the foregoing points and authorities, that the annual slot machine
tax is an excise tax that may be imposed more than once during the same tax period if the
ownership of the slot machines change.
In addition, the Commission insists that the 1991 legislature defined its original intent by
amending NRS 463.385 to include the term excise. The Commission contends that the
amendment is persuasive evidence of the legislature's original intent in enacting NRS
463.385. Sheriff v. Smith, 91 Nev. 729, 734, 542 P.2d 440, 443 (1975) ([w]here 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).
[Headnote 2]
The annual slot machine tax is assessed only on slot machines operated in Nevada, and is
therefore an excise tax because the tax is based upon the privilege of using property, rather
than the value and ownership of the property. See Cutter Flying Service, Inc. v. Property Tax
Dept., 572 P.2d 943, 949 (N.M.Ct.App. 1977) ([e]xcise taxes, such as occupational, license,
privilege and franchise taxes, are charges for the privilege arising from the use of property,
while property taxes are taxes directly on the property itself). A privilege or excise tax is not
subject to the constitutional prohibitions against double taxation. See Fox Bakersfield Theater
Corp. v. City of Bakersfield, 222 P.2d 879, 882 (Cal. 1950). Moreover, we agree with the
Commission that in 1991, the legislature clarified the existing law by amending NRS
463.3S5 and adding the word "excise," thus leaving no room for doubt as to the nature of
the tax.
in 1991, the legislature clarified the existing law by amending NRS 463.385 and adding the
word excise, thus leaving no room for doubt as to the nature of the tax. See Welfare
Division v. Maynard, 84 Nev. 525, 529, 445 P.2d 153, 155 (1968) ([a] statutory enactment
can be simply a legislative pronouncement of already existing law).
[Headnote 3]
Finally, we also conclude that the Commission properly applied NRS 463.385 in
collecting the prorated tax in advance from a licensee who begins operation during the fiscal
year. See NRS 463.385(2)(b).
For the reasons specified above, we reverse the district court's summary judgment in favor
of Southwest and remand with instructions to enter summary judgment in favor of the
Commission.
Mowbray, C. J., Springer, Steffen and Young, JJ., and Sullivan, D. J.,
2
concur.
____________
108 Nev. 384, 384 (1992) Martin v. Martin
JAMES SCOTT MARTIN, Appellant, v. JUDY ANN MARTIN, Respondent.
No. 21798
May 18, 1992 832 P.2d 390
Appeal from a district court order awarding spousal support. Eighth Judicial District
Court, Clark County; John F. Mendoza, Judge.
Appeal was taken from an order of the district court ordering ex-husband to fulfill his
obligations under amended divorce decree despite subsequent discharge in bankruptcy. The
supreme court held that ex-husband's obligation to ex-wife to indemnify her from personal
liability for certain community debts was non-dischargeable in bankruptcy as being tied to
child support obligation.
Affirmed.
George R. Carter, Las Vegas, for Appellant.
George T. Bochanis, Las Vegas, for Respondent.
__________

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 Robert E. Rose, Justice. Nev. Const. art. 6, 4.
1. Bankruptcy.
Debts nondischargeable in bankruptcy include any debts resulting from agreement by debtor to hold debtor's spouse harmless, or
joint debts, to the extent that agreement is in payment of alimony, maintenance, or support of spouse. Bankr. Code, 11 U.S.C.A.
523(a)(5).
2. Bankruptcy.
Critical issue in determining whether debt is nondischargeable in bankruptcy as alimony or support is function award was intended
to serve.
3. Bankruptcy.
If intent of debtor's obligation is to award spousal or child support, then it is nondischargeable in bankruptcy. Bankr. Code, 11
U.S.C.A. 523(a)(5).
4. Bankruptcy.
Husband's agreement in amended divorce decree to indemnify wife from personal liability for certain community debts was in
nature of child support and was nondischargeable in bankruptcy; husband agreed to assume certain debts in exchange for low monthly
child support payments so that his obligation was directly tied to child support obligation. Bankr. Code, 11 U.S.C.A. 523(a)(5).
OPINION
Per Curiam:
This is an appeal from the violation of an amended divorce decree (decree), wherein the
appellant, James Scott Martin (James), agreed to indemnify the respondent, Judy Ann
Martin (Judy), from personal liability for certain community debts. The district court
ordered James to fulfill his obligations under the decree, despite his subsequent discharge in
bankruptcy.
THE FACTS
James filed a complaint for divorce on July 30, 1986, after which Judy filed an answer and
counterclaim. The decree, filed on August 2, 1988, provided, among other things, that James
pay $320.00 in monthly child support and assume sole liability for Visa charge accounts with
PriMerit Bank and Chase Manhattan Bank. On September 15, 1988, James filed for
bankruptcy and included the community debts he had agreed to assume.
1
As a result, Judy
was left solely and personally liable for the PriMerit and Chase Manhattan Visa accounts.
Judy subsequently filed for spousal support.
Following an evidentiary hearing, the district court filed an order granting Judy spousal
support. The district court specifically found that James' promise to hold Judy harmless was
an obligation "characterized as being in the nature of alimony, maintenance and support,"
and that Judy "would have been inadequately supported" absent James' agreement to
accept sole liability for the community debts.
__________

1
James received a full discharge of his debts, including those mentioned in the decree, on April 17, 1989.
obligation characterized as being in the nature of alimony, maintenance and support, and
that Judy would have been inadequately supported absent James' agreement to accept sole
liability for the community debts. Accordingly, James was ordered to pay $150.00 per month
to Judy until the sum of $3,429.00 shall be paid by such payments on the PriMerit Visa
debt,
2
and to remain personally liable to Judy for the Chase Manhattan Visa debt, which
totalled $1,145.00.
DISCUSSION
[Headnote 1]
Federal bankruptcy law determines whether a liability may be discharged. See e.g., In re
Spong, 661 F.2d 6, 9 (2nd Cir. 1981). However, obligations for alimony, maintenance and
support are not dischargeable in bankruptcy. 11 U.S.C. 523(a)(5) (1988).
3
Non-dischargeable debts include any debts resulting from an agreement by the debtor to
hold the debtor's spouse harmless, or joint debts, to the extent that the agreement is in
payment of alimony, maintenance, or support of the spouse [or child]. In re Calhoun, 715
F.2d 1103, 1107 (6th Cir. 1983) (quoting S. Rep. No. 95-989, 95th Cong., 2d Sess. 79 (1978),
reprinted in 1978 U.S.C.C.A.N. 5787, 5865; H.R. Rep. No. 595, 95th Cong., 2d Sess. 364
(1977), Reprinted in 1978 U.S.C.C.A.N. 5963, 6320).
[Headnotes 2, 3]
The critical issue in determining whether a debt is non-dischargeable in bankruptcy is the
function the award was intended to serve. In re Williams 703 F.2d 1055, 1057 (8th Cir.
1983) (citations omitted); see also Calhoun, 715 F.2d at 1107. If the intent of the obligation is
to award spousal or child support, then it is non-dischargeable. Williams, 703 F.2d at 1057.
This intent should be clear from the provisions within the divorce decree or order for support.
See Holt v. Holt, 672 P.2d 738 (Utah 1983). In Holt, the Utah court determined that a hold
harmless provision qualifies as maintenance or support if without the debt assumption, the
spouse would be inadequately supported." Id. at 743 {quoting In re Huggins, 12 B.R. S50,
S54 {Bankr.D.Kan.
__________

2
The sum of $3,429.00 represents $2,700.00 paid by Judy to PriMerit Bank as the result of the bankruptcy
filed by James, together with $729.00 in court costs and attorneys' fees incurred in an action brought by PriMerit
Bank.

3
11 U.S.C. 523(a)(5) provides:
(a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual
debtor from any debt
. . .
(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of
such spouse or child, in connection with a separation agreement, divorce decree, or property settlement
agreement, . . . .
(Emphasis added.)
assumption, the spouse would be inadequately supported. Id. at 743 (quoting In re Huggins,
12 B.R. 850, 854 (Bankr.D.Kan. 1981)).
[Headnote 4]
In the case at bar, James agreed to assume certain debts in exchange for lower monthly
child support payments. Therefore, James' obligation to assume the debts was directly tied to
his child support obligation. When James breached his agreement to indemnify Judy, he
unilaterally altered the amount of child support she received and left her inadequately
supported as a result.
James' obligation to Judy under the decree is clearly non-dischargeable. While James'
personal obligations to PriMerit Bank and Chase Manhattan Bank were appropriately
discharged in bankruptcy, his liability to Judy arises out of the decree. See Mooney v. Van
Vechten, 526 N.Y.S.2d 704 (1988). Accordingly, we hold that the district court acted
properly in ordering James to reimburse Judy and fulfill his obligations under the decree. We
have considered all remaining issues on appeal and conclude that they lack merit.
____________
108 Nev. 387, 387 (1992) Price and Sons v. District Court
PRICE AND SONS, A Corporation, Petitioner, v. THE SECOND JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and for the County of Washoe, and THE
HONORABLE PETER I. BREEN, Judge, Respondents, and MARY T. HARTFORD,
THOMAS M. GOMES, JERRY F. GOMES, TAMMY GOMES and SHERRI F.
GOMES, Real Parties in Interest.
No. 21864
May 26, 1992 831 P.2d 600
Original petition for a writ of prohibition. Second Judicial District Court, Washoe County;
Peter I. Breen, Judge.
California residents brought suit against member department store and tire installer for
injuries and death resulting from car accident when front tire and wheel assembly separated
from car. The district court denied installer's motion to quash service of process for lack of
personal jurisdiction. Installer petitioned for writ of prohibition. The supreme court held that:
(1) no general jurisdiction existed over installer or member department store, and (2) no
personal jurisdiction existed since cause of action did not arise from installer's contacts with
state.
Writ granted.
Laxalt & Nomura and Katherine J. Savage, Reno, for Petitioner.
Lee T. Hotchkin, Reno; Sterns, Walker & Lods, San Francisco, California, for Real Parties
in Interest.
1. Courts.
General personal jurisdiction over defendant for any cause of action is appropriate where defendant's forum activities are so
substantial, continuous, and systematic that it may be deemed present in forum.
2. Courts.
High level of contact with forum state is necessary to establish general jurisdiction.
3. Corporations.
Sales and marketing efforts in state by foreign corporation, without more, are insufficient to establish general jurisdiction.
4. Corporations.
No general jurisdiction existed over out-of-state membership department store chain, even though over 1,000 members resided in
state which were sent advertisements on regular basis, since store had no substantial activities in state.
5. Courts.
Absent general jurisdiction, personal jurisdiction exists only where cause of action arises from defendant's contacts with state.
6. Corporations.
No personal jurisdiction existed over California member department store which sold tires to California residents for injuries
sustained in automobile accident when tire assembly fell off car since cause of action did not arise from store's contacts with state,
plaintiffs were merely passing through state on trip when accident occurred, and state had little interest in adjudicating dispute between
California parties.
7. Prohibition.
Writ of prohibition is appropriate remedy for district court's erroneous refusal to quash service of process.
OPINION
Per Curiam:
1

This original petition for writ of prohibition challenges an order of the respondent district
court denying petitioner's motion to quash service of process. In the action below the real
parties in interest, Mary T. Hartford, Thomas M. Gomes, Jerry F. Gomes, Tammy Gomes,
and Sherri F. Gomes (the Gomes') seek damages from The Price Club and from petitioner for
personal injuries and wrongful death resulting from a motor vehicle accident. Mary T.
Hartford and her daughter Mary M. Gomes were travelling from their home in California to
Colorado on Interstate Highway S0.
__________

1
The Honorable Thomas A. Foley, Judge of the Eighth Judicial District Court, was designated by the
their home in California to Colorado on Interstate Highway 80. In Verdi, Nevada, just inside
the Nevada state line, the left front tire and wheel assembly separated from their vehicle and
the vehicle veered into oncoming traffic. There was a collision in which Mary T. Hartford
was injured and Mary M. Gomes was killed. Thomas Gomes had purchased tires for the
vehicle in May of 1985 at a Price Club store in Hayward, California. The tires were installed
by petitioner Price and Sons.
The Price Club is a membership department store chain incorporated in California. There
are Price Club stores in California and other western states, but not in Nevada. The Price
Club distributed advertising flyers to the customers of a Carson City, Nevada, credit union
and has approximately 1,038 members who reside in Nevada. Price and Sons is a California
corporation in the business of installing tires for customers of Price Club stores.
On September 28, 1988, petitioner moved the district court to quash service of process on
the basis that it lacked sufficient contacts with Nevada for the exercise of personal
jurisdiction. The motion was supported by an affidavit of Larry Price, owner of Price and
Sons, stating that petitioner has no contacts with Nevada and is not connected with The Price
Club except by a business contractual relationship concerning installation of tires at Price
Club retail outlets. The Gomes opposed the motion to quash. On January 28, 1990, the
district court entered an order denying the motion to quash based on its finding that The Price
Club was doing business in Nevada. Petitioner requested that the district court clarify its
order of January 28, 1990, because the order appeared not to distinguish between The Price
Club and petitioner. In response, the district court, on February 11, 1990, entered an order
denying the motion to quash as to petitioner. In the second order the district court stated that
because petitioner's name is so similar to that of The Price Club and because petitioner's tire
installation centers are located adjacent to Price Club outlets, there is every indication to
join, rather than separate, these two entities and bring them to trial in Nevada. This petition
followed.
Petitioner contends that the district court erred in determining that it had jurisdiction over
petitioner based on the contacts with Nevada of The Price Club. We agree. Specifically, we
conclude that the contacts with Nevada of The Price Club are insufficient to support the
exercise of jurisdiction over that entity by the Nevada courts. Consequently, there is no
jurisdiction over petitioner, even assuming, without deciding, that the contacts of The Price
Club with Nevada can be imputed to petitioner.
[Headnote 1]
The Price Club is a membership store and has approximately 1,03S members in Nevada.
1,038 members in Nevada. It sends these members advertisements on a regular basis. The
Price Club solicited memberships in Nevada through an advertising flyer distributed by a
Nevada credit union. Also, advertising by The Price Club in California newspapers and on
California radio stations may reach Nevada residents.
[Headnotes 2-4]
General personal jurisdiction over a defendant for any cause of action is appropriate where
the defendant's forum activities are so substantial or continuous and systematic that it
may be deemed present in the forum. See Helicopteros Nacionales De Columbia, S.A. v. Hall,
466 U.S. 408, 414-15 (1984); Perkins v. Benguet Mining Co., 342 U.S. 437 (1952). A high
level of contact with the forum state is necessary to establish general jurisdiction. Sales and
marketing efforts in the forum by a foreign corporation, without more, are insufficient to
establish general jurisdiction. See Congolium Corp. v. DLW Aktiengesellschaft, 729 F.2d
1240, 1242-43 (9th Cir. 1984) (solicitation of orders, promotion of products to potential
customers through the mail and through showroom displays, and attendance at trade shows
and sales meetings in forum do not establish general jurisdiction); Cubbage v. Merchant, 744
F.2d 665, 667-69 (9th Cir. 1984) (no general jurisdiction in California over Arizona doctors
who had significant numbers of patients in California, used the California medical insurance
system and maintained a telephone directory listing that reached California). The Price Club's
activities in Nevada are not sufficiently substantial or continuous and systematic to establish
general jurisdiction.
[Headnotes 5, 6]
Absent general jurisdiction, personal jurisdiction exists only where the cause of action
arises from the defendant's contacts with Nevada. See Munley v. District Court, 104 Nev.
492, 495-96, 761 P.2d 414, 415-16 (1988); See also Hall, 466 U.S. at 414. The Gomes' are
residents of California, and were merely passing through Nevada on a trip to Colorado when
their accident occurred. The Gomes' accident and their claims against petitioner and The Price
Club have no connection with The Price Club's activities in Nevada. Further, Nevada has
little interest in adjudicating this dispute between California parties. See Asahi Metal
Industries v. Superior Court of California, 480 U.S. 102, 113 (1986). Therefore, we conclude
that Nevada lacks personal jurisdiction over The Price Club, and consequently, petitioner, in
the action below.
[Headnote 7]
A writ of prohibition is the appropriate remedy for a district court's erroneous refusal to
quash service of process.
court's erroneous refusal to quash service of process. See Judas Priest v. District Court, 104
Nev. 424, 760 P.2d 137 (1988); Shapiro v. Pavlikowski, 98 Nev. 548, 654 P.2d 1030 (1982).
Accordingly, we grant the petition. The clerk of this court shall forthwith issue a writ of
prohibition restraining the district court from exercising personal jurisdiction over petitioner
in this matter.
Springer, Rose, Steffen and Young, JJ., and Foley, D. J., concur.
____________
108 Nev. 391, 391 (1992) Sterling v. State
DANIEL SCOTT STERLING, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22186
July 2, 1992 834 P.2d 400
Appeal from a judgment of conviction of three counts of lewdness with a minor, one count
of battery with intent to commit a crime, and six counts of sexual assault of a child under the
age of fourteen. Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Defendant was convicted in the district court of sexual abuse and he appealed. The
supreme court held that: (1) evidence sustained the convictions; (2) court did not improperly
limit examination of victim's mother for purposes of impeaching victim's testimony; and (3)
police investigation did not result in loss or destruction of favorable evidence.
Affirmed.
Schieck & Derke, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney, and John P. Lukens, Deputy District Attorney,
1. Criminal Law.
Inadvertent references to other criminal activity not solicited by prosecution, which are blurted out by witness, can be cured by
trial court's immediate admonishment to the jury to disregard the statement.
2. Criminal Law.
Error which occurred when witness blurted out assertion that defendant, charged with sexual offenses and battery, had been
smoking cocaine was cured by court's immediate admonition to disregard the statement.
3. Criminal Law.
Defendant who did not object to numerous references to other bad acts allegedly solicited by prosecution did not preserve the
alleged references for appellate review.
4. Criminal Law.
Failure to object generally precludes review by supreme court, although it may address plain error and constitutional error sua
sponte.
5. Criminal Law.
Admission of sexual abuse victim's prior consistent statements was not plain error where state had presented uncontroverted
physical evidence that child had been sexually active, so that the state's case did not rest entirely on credibility of the victim.
6. Criminal Law.
Whether evidence is relevant lies in the sound discretion of the trial court. NRS 48.025.
7. Witnesses.
Court did not abuse its discretion in precluding cross-examination of victim of alleged sexual misconduct about her daily routine
in regard to doing homework and playing with friends, despite defendant's claim that it would show that he was a disciplinarian and
that the victim was fabricating the allegations to avoid that discipline.
8. Witnesses.
Defendant charged with sexual assault on a child was not entitled to question victim's mother concerning how the victim felt about
the birth of her brother, despite defendant's claim that he was attempting to show that the victim was lashing out by making the
charges against him because attention had been directed to other members of her family.
9. Witnesses.
Questioning of mother of sexual abuse victim as to how well the victim got along with the defendant and to explain her statement
that she got along pretty well as long as she got her way, in attempt to impeach victim's credibility asked for improper character
evidence concerning a trait other than truthfulness of the victim. NRS 50.085, subd. 1(a).
10. Witnesses.
In the absence of any demonstration by sexual abuse victim's mother as to personal knowledge as to why the victim had testified
about the mother's drug use, defendant was not entitled to impeach the victim by asking the victim's mother as to why victim had
testified the way she did.
11. Criminal Law.
Proffered testimony of sexual abuse victim's mother as to the reason why the victim would have made allegations concerning the
mother's drug use was not admissible as lay opinion evidence, as there was no showing that it would have been rationally based on the
perception of the victim's mother.
12. Criminal Law.
Conviction may be reversed when the state loses evidence if the defendant was prejudiced by the loss or the evidence was lost in
bad faith by the government; defendant has burden of showing that the evidence would be exculpatory and material to his defense.
13. Criminal Law.
Fact that police investigator did not take statements from or talk to defendant's family did not preclude defense counsel from so
investigating and did not result in the loss or destruction of any evidence.
14. Assault and Battery; Criminal Law; Infants.
Testimony by twelve-year-old victim, in explicit detail, about the numerous acts of sex between herself and defendant, testimony
by medical doctor that physical evidence indicated that the victim had been sexually active, and circumstantial evidence regarding
sexual activity was sufficient to sustain defendant's convictions for lewdness with a minor, battery with intent to commit crime, and
sexual assault on a child under the age of fourteen. NRS 200.364, 200.366, 200.400, 201.230.
OPINION
Per Curiam:
Appellant Daniel Scott Sterling (Sterling) was charged with three counts of lewdness
with a minor (NRS 201.230), one count of battery with intent to commit a crime (NRS
200.400), and six counts of sexual assault of a child under the age of fourteen (NRS 200.364
and NRS 200.366). Sterling was the boyfriend of the victim's mother and lived with the
victim's family for several years.
The victim was twelve years old on the date of her testimony. In graphic detail, she
testified about sexual activity between Sterling and herself: Sterling subjected her to
extensive sexual abuse over the course of several years. The victim was medically examined,
and the examining doctor opined that she had been sexually active.
1

The defense attempted to suggest that the victim fabricated the allegations. The jury
returned a verdict of guilt on all ten counts. On appeal, Sterling contends that the following
assignments mandate reversing his conviction: (1) the State introduced evidence of prior bad
acts which constituted prejudicial error; (2) the district court improperly admitted prior
consistent statements of the victim; (3) the district court denied Sterling the right to impeach
the credibility of the victim; (4) Sterling was denied a fair trial because the police did not
conduct a sufficient investigation; and (5) there was insufficient evidence for the jury to
convict him. For the following reasons, we affirm his conviction.
Reference to prior bad acts
The victim's grandmother testified that she had once observed Sterling using drugs.
2
Sterling argues that this was improper evidence of a prior bad act, constituting prejudicial
error.
__________

1
The examination revealed: a scar on the victim's urethra; a laceration to her hymen; and the insertion of the
examination instrument into the victim's vagina was easily performed, indicating muscle relaxationa response
learned from multiple penetrations.

2
The reference was made as follows:
Q. Did you observe anything else at that time?
evidence of a prior bad act, constituting prejudicial error. Evidence of other crimes, wrongs or
acts are not admissible to prove a defendant's character and that he acted in conformity
therewith; however, such evidence is admissible to prove motive, intent, knowledge, or
absence of mistake or accident. NRS 48.045(2).
[Headnotes 1-3]
However, inadvertent references to other criminal activity not solicited by the prosecution,
which are blurted out by a witness, can be cured by the trial court's immediate admonishment
to the jury to disregard the statement. Allen v. State, 91 Nev. 78, 83, 530 P.2d 1195, 1198
(1975). The grandmother's statement about observing the drug usage was not solicited by the
prosecution. The trial court cured any error when it immediately admonished the jury to
disregard the witness' statement of smoking rock cocaine.
3

Prior consistent statements
[Headnote 4]
Sterling contends that the district court committed prejudicial error when it admitted the
victim's prior consistent statements into evidence. Sterling did not object to the admission of
these statements at trial. Failure to object below generally precludes review by this court;
however, we may address plain error and constitutional error sua sponte. Emmons v. State,
107 Nev. 53, 61, 807 P.2d 718, 723 (1991).
[Headnote 5]
Sterling argues that the admission of the consistent statements was plain error, citing
Daley v. State, 99 Nev. 565, 665 P.2d 798 (1983) for support. In Daley, a sexual assault case,
the admission of the victim's prior consistent statements which were made at a time when the
victim had a motive to fabricate constituted prejudicial error, even though appellant failed
to object to such statements at trial. Id. at 569, 665 P.2d at S02.
__________
A. Yes. They'd been smoking rock; had their pipes
MS. BRAECKLEIN: Your Honor, I object. She's making speculation on that. Does she know? Has
she ever smoked rock cocaine?
THE WITNESS: I saw it. I have saw it. I saw them smoke it.
THE COURT: Just a minute. Will counsel approach the bench. (A discussion was had off the record
at the bench.)
THE COURT: The objection is sustained. The jury is admonished to disregard the witness' statement
of smoking rock cocaine.

3
Sterling contends that the State solicited numerous references to other prior bad acts. Sterling, however,
failed to object to these numerous references. We therefore conclude that Sterling failed to preserve these
alleged references for appellate review. See Daley v. State, 99 Nev. 564, 567-68, 665 P.2d 798, 801 (1983)
(even though the trial court granted appellant's motion in limine excluding evidence of prior bad acts, appellant
failed to preserve the issue for appellate review when respondent introduced such evidence at trial and appellant
did not object to the evidence).
dicial error, even though appellant failed to object to such statements at trial. Id. at 569, 665
P.2d at 802. In Daley, we emphasized that the admission of the prior consistent statements
constituted plain error because the State's case rested entirely on the credibility of the victim.
Id. The present case differs from Daley in that the State presented uncontroverted physical
evidence that the child had been sexually active. Consequently, we reject Sterling's argument
and conclude that his failure to preserve this issue precludes appellate review. Wilkins v.
State, 96 Nev. 367, 372, 609 P.2d 309, 312 (1980).
The right to impeach the credibility of the victim
Sterling next contends that the district court on four occasions denied him the opportunity
to impeach the credibility of the victim by showing a motive to fabricate the allegations.
Although a defendant has a right to expose facts which enable the jury to reflect on the
credibility of the witness, Crew v. State, 100 Nev. 38, 45, 675 P.2d 986, 990 (1984), this right
is not unlimited.
First, Sterling argues that the district court improperly limited his cross-examination of the
victim. The defense questioned the victim about her daily routine in regard to doing
homework and playing with friends. The State lodged a relevancy objection. Sterling argued
that this line of questioning showed that Sterling was a disciplinarian and that, apparently, the
victim was fabricating the allegations to avoid such discipline. Under such circumstances,
asserts Sterling, the district court's discretion is limited. See Crew, 100 Nev. at 45, 675 P.2d
at 990-91.
[Headnotes 6-7]
Sterling fails to recognize that only relevant evidence is admissible. NRS 48.025. Whether
evidence is relevant lies in the sound discretion of the trial court. Woods v. State, 101 Nev.
128, 136, 969 P.2d 464, 470 (1985). We conclude that the district court was acting within its
discretion and properly sustained the State's objection to this line of questioning. Moreover,
Sterling did not make an offer of proof which would allow this court to review the intended
line of questioning or anticipated responses. Nothing in the record supports Sterling's
assertion that the victim fabricated the allegations because Sterling was a disciplinarian. See
Robins v. State, 106 Nev. 611, 798 P.2d 558 (1990) (district court did not improperly limit
cross-examination which was founded on speculation and sought to elicit testimony that was
unrelated, irrelevant and inadmissible), cert. denied, 111 S.Ct. 1608 (1991).
[Headnote 8]
Second, Sterling contends that the district court improperly limited his examination of the
victim's mother.
limited his examination of the victim's mother. On direct examination, the defense asked
what kind of reaction the victim demonstrated to the birth of her brother. The victim's mother
responded that [s]he didn't like it. The district court sustained the State's relevancy
objection. Sterling argued that this question went to the motive behind the allegationsthat
the victim was lashing out because attention had been directed to other members of her
family. Upon review of the record, we conclude that Sterling's lashing out theory is mere
speculation, and thus the district court did not abuse its discretion in limiting this line of
questioning.
Third, during direct examination, the defense asked Sterling's mother how well the victim
got along with Sterling. She responded the victim got along pretty good as long as she got
her way. Defense counsel asked Sterling's mother to explain as long as she got her way.
The State objected on the grounds that the question asked for improper character evidence
concerning a character trait other than truthfulness.
Opinion evidence as to the character of a witness is admissible to attack the credibility of
the witness, but opinions are limited to truthfulness or untruthfulness. NRS 50.085(1)(a).
Sterling contends that NRS 50.085 is not applicable and that NRS 48.045(1)(b) is controlling.
4
We disagree. Because Sterling was attempting to impeach the credibility of the victim,
NRS 50.085 is controlling. NRS 50.085 and its companion provisions concern the
impeachment of witnesses, while NRS 48.045 and its companion provisions deal with the
admissibility of substantive evidence. Daley, 99 Nev. at 570, 665 P.2d at 803.
[Headnote 10]
Fourth, Sterling argues that his impeachment of the victim was improperly limited during
the direct examination of the victim's mother when she was asked, Do you have an opinion
as to why [the victim] might have made those allegations [about drug use].
5
The district
court sustained the State's objection because, pursuant to NRS 50.025, the witness did not
have personal knowledge of the matter.
__________

4
NRS 48.045(1)(b) provides:
1. Evidence of a person's character or a trait of his character is not admissible for the purpose of
proving that he acted in conformity therewith on a particular occasion, except:
. . . .
(b) Evidence of the character or a trait of character of the victim of the crime offered by an accused,
subject to the procedural requirement of NRS 48.069 where applicable, and similar evidence offered by
the prosecution to rebut such evidence; and
. . . .

5
The victim had testified that her mother would leave home to go buy drugs and that, consequently, she
would be left alone with Sterling.
pursuant to NRS 50.025, the witness did not have personal knowledge of the matter. Sterling
argues, as he did at trial, that the witness should have been allowed to answer, for her
testimony was admissible lay opinion.
We conclude, however, that the district court did not err. The victim's mother did not
demonstrate that she had personal knowledge as to why the victim testified about the mother's
drug use.
[Headnote 11]
Additionally, Sterling cannot show that the mother's opinion was admissible as lay opinion
evidence. A lay witness' opinion is not admissible unless it is (1) rationally based on the
perception of the witness and (2) helpful to a clear understanding of his testimony or the
determination of a fact in issue. NRS 50.265. Sterling has not shown how this testimony
would have been rationally based on the perception of the victim's mother. Sterling
improperly attempted to impeach the victim's veracity as to certain statements. See People v.
Melton, 750 P.2d 741, 758 (Cal. 1988) (Lay opinion about the veracity of particular
statements by another is inadmissible on that issue). We therefore reject this argument.
The sufficiency of the police investigation
The victim reported the assaults to her grandmother. The police were thereafter notified.
Detective David Dunn (Dunn), an officer with the Las Vegas Metropolitan Police
Department's sexual assault department, interviewed the victim. Dunn then set up an
appointment for the victim to be medically examined.
Sterling asserts that the police conducted an insufficient investigation into the victim's
allegations. The core of his assertion is that Dunn did not: (1) take statements from the
victim's mother (although Dunn did talk to her over the phone); (2) take statements from the
victim's grandmother (although Dunn did interview her); and (3) talk with anyone from
Sterling's family. Sterling argues that the investigation violated Brady v. Maryland, 373 U.S.
83, 87 (1965), wherein the United States Supreme Court held that intentional suppression of
material evidence by the prosecution constituted a violation of due process.
[Headnote 12]
A conviction may be reversed when the State loses evidence if the defendant is prejudiced
by the loss, or the evidence was lost in bad faith by the government. Sparks v. State, 104 Nev.
316, 319, 759 P.2d 180, 182 (1988). The defendant has the burden of showing that the
evidence sought would be exculpatory and material to his defense. Id.
[Headnote 13]
Sterling has failed to demonstrate that any evidence has been lost or destroyed. The fact
that Dunn did not take statements or talk with Sterling's family did not preclude defense
counsel from so investigating. In fact, Sterling introduced most of the people whom he claims
Dunn insufficiently investigated as witnesses. We reject this argument.
Sufficiency of the evidence to convict Sterling
Finally, Sterling contends that the evidence is insufficient to sustain his conviction. This
court will not disturb a criminal verdict or set aside the judgment where there is substantial
evidence to support the verdict. Deeds v. State, 97 Nev. 216, 217, 626 P.2d 271, 272 (1981).
[Headnote 14]
We conclude that there was substantial evidence for the jury to convict Sterling. The
twelve-year-old victim testified in explicit detail about numerous acts of sex between herself
and Sterling. A medical doctor testified that physical evidence indicated that the victim had
been sexually active. Several other witnesses added persuasive circumstantial evidence
regarding sexual activity. Furthermore, Sterling's witnesses were severely damaged by
contradictions and inconsistencies.
We have reviewed Sterling's other contentions on appeal and conclude they are without
merit. Accordingly, for the reasons stated above, we hereby affirm the judgment of conviction
on all counts against Sterling.
____________
108 Nev. 398, 398 (1992) Kent v. Kent
ROBERT R. KENT, MURIEL S. KENT, KRISTI KENT and CINDI KENT, Appellants,
v. KENNETH K. KENT, Individually and as Personal Representative of
GLORIA KENT, Deceased, Respondent.
No. 21647
July 2, 1992 835 P.2d 8
Appeal from a judgment of the district court ordering partition of real and personal
property. Third Judicial District Court, Churchill County; William P. Beko, Judge.
Plaintiff brought action against his brothers for partition of various family business
properties. The district court awarded plaintiff tenant property necessary to continue in his
business subject to aware of owelty to cotenants, and one cotenant appealed.
108 Nev. 398, 399 (1992) Kent v. Kent
subject to aware of owelty to cotenants, and one cotenant appealed. The supreme court held
that: (1) district court properly awarded plaintiff entire ranch property; (2) land with
obtainable access could not be valued as if access had already been obtained; and (3)
cotenants were not entitled to attorney fees and costs.
Affirmed in part, reversed in part and remanded.
Beckley, Singleton, DeLanoy, Jemison & List and Stephen S. Kent and Robert F.
Saint-Aubin, Reno, for Appellants.
Bible, Hoy, Trachok, Wadhams & Zive, Reno, for Respondent.
1. Partition.
Though partition process is statutory, partition action is an equitable one in which courts will apply broad principles of equity.
NRS 39.010-39.490.
2. Partition.
Courts will decree partition so as to do the least possible injury to the several owners.
3. Partition.
In partition proceeding, trial court properly awarded entire ranch, subject to payment of owelty to his cotenant, brothers, to
plaintiff tenant who had operated ranch for decades; manner and method of partition was properly animated by concern for interests of
individual parties and the need, so far as is feasible, to continue them, and their property, in useful occupation. NRS 39.010-39.490.
4. Partition.
Although adequate parcels of land existed to partition property according to ownership interest of the parties, district court
properly awarded each tenant sufficient and necessary property to continue his respective business subject to payment of owelty to
compensate cotenants for any inequality of partition. NRS 39.440.
5. Partition.
Fundamental goal of partition is to divide property so as to be fair and equitable and confer no unfair advantage on any cotenant.
NRS. 39.440.
6. Partition.
In action for partition, land-locked parcel of undeveloped ranch property with obtainable access could not be valued as if access
had already been obtained. NRS 39.010-39.490.
7. Partition.
Defendants were not entitled to attorney fees and costs in partition action despite contention that simple calculation of property
values showed that offer was more favorable to plaintiff than the judgment; settlement offer would have divided ranch, but judgment
awarded plaintiff entire ranch, less an owelty, and therefore judgment obtained by plaintiff was more favorable than the offer. NRCP
68.
108 Nev. 398, 400 (1992) Kent v. Kent
OPINION
Per Curiam:
THE FACTS
Thomas Kent (Thomas), Kenneth Kent (Kenneth), and Robert Kent (Robert) are
brothers, the sons of Ira and Margaret Kent.
1
Ira Kent founded the I.H. Kent Co., Inc. (the
corporation), a corporation engaged in a variety of business activities in the Fallon, Nevada,
area, including a grocery real property management. The brothers individually held shares of
stock in the corporation; upon the death of their mother in 1986, they became the sole
shareholders. At the time of trial in this matter, Robert held 45.04 percent of the corporation's
shares, Kenneth held 24.77 percent and Thomas held 30.19 percent.
In addition to the corporation, the brothers owned, as tenants in common, a ranch (the
Dolf Ranch) located near Fallon. They acquired the Dolf Ranch by gift from Thomas Dolf,
their maternal grandfather. The Dolf Ranch has been operated as an informal oral partnership
(the partnership), first by Thomas Dolf and the Kent brothers and then, after Dolf's death in
1952, by the Kent brothers. Since 1952, additional parcels have been added to the original
Dolf Ranch property.
Over the years, each of the Kent brothers has managed a separate part of the family's
businesses: Thomas, the hardware and feed stores; Robert, the grocery store and the
corporation's real property; and Kenneth, the ranch.
The death of the brothers' mother in 1986 triggered a dispute over the family property. The
brothers were unable to reach an agreement for the distribution of the property, and, on April
8, 1988, Kenneth brought a partition action under NRS 39.010 against Robert and Thomas.
The two sides also claimed against each other for breach of fiduciary duties, mismanagement
and fraud in the management of the partnership and the corporation; but, pursuant to a
pre-trial stipulation, the brothers dropped these claims.
The trial lasted five days. All of the parties testified and each side presented competing
expert testimony on the valuation of the properties.
On July 26, 1990, the district court entered findings of fact and a judgment. The court
found that the brothers jointly held thirty-nine parcels of land with a total value of
$4,735,350.00. Of these thirty-nine parcels, the court found twenty-five to be corporation
real property and valued it at $2,1S0,S50.00.
__________

1
The three factions in this case are Kenneth and his late wife Gloria, Thomas and his wife Eleanor, and
Robert, his wife Muriel and their daughters Kristi and Cynthia. For ease of discussion, each faction will be
referred to by the name of the brother.
108 Nev. 398, 401 (1992) Kent v. Kent
thirty-nine parcels, the court found twenty-five to be corporation real property and valued it at
$2,180,850.00. The court categorized the remaining fourteen parcels as partnership real
property and valued it at $2,554,500.00. As for personal property, the court found a total net
equity value of $551,362.00: $162,123.00 of corporation personal property, and $389,239.00
of partnership personal property. The district court then faced the daunting task of dividing
$5,286,712.00 worth of property.
Although the district court could have forced a sale of all jointly held properties and then
distributed the proceeds to the brothers pro rata after payment of expenses, taxes and
creditors, the court expressly declined to use this method of partition because it would force
the brothers to surrender the respective business each had operated for decades. Instead, the
court chose to partition real and personal property separately and in kind, reasoning that only
this method would equalize the partition without unduly burdening or benefitting any one
brother, allow Kenneth to continue his ranching profession, and preserve Thomas' and
Robert's respective businesses and inventories.
With these goals in mind, the district court awarded Kenneth $1,469,070.00 in real
property, including the entire Dolf Ranch. Thomas and Robert received the remainder of the
real property. Under this partition, Kenneth received $77,373.00 more than what his portion
would have been under an exact distribution of the real property. The court corrected for this
discrepancy by ordering Kenneth to pay owelty to Robert and Thomas. With respect to
personal property, the court awarded all corporation personal property to Robert and Thomas,
and all partnership personal property to Kenneth. This partition of personal property also left
Kenneth with more than his share, and, consequently, the court ordered him to equalize the
distribution by paying an additional $332,775.00 in owelty to Robert and Thomas.
Robert's appeal followed.
2

DISCUSSION
I. The Dolf Ranch
Robert first contends that the district court improperly considered the sentimental
attachment and income needs of Kenneth in awarding him the entire Dolf Ranch. According
to Robert, partition does not yield to hardship, inconvenience or difficulty, and the financial
status of the cotenants should not be considered by the court when partitioning property.
[Headnotes 1-3]
Robert's position is not persuasive. Though Nevada has a statutory partition process
{NRS 39.010-.490), a partition action is an equitable one in which the courts will apply
the broad principles of equity.
__________

2
Thomas did not appeal.
108 Nev. 398, 402 (1992) Kent v. Kent
statutory partition process (NRS 39.010-.490), a partition action is an equitable one in which
the courts will apply the broad principles of equity. Dall v. Confidence Mining Co., 3 Nev.
485 (1868). Courts will decree partition so as to do the least possible injury to the several
owners. id. at 489, and the district court's partition judgment here did just that. The court
could have ordered all of the property sold and then distributed the proceeds. Instead, the
court, motivated by a desire to keep each brother in his respective business, divided the
property so as to achieve this result. We endorse the district court's approach. In our view, the
manner and method of partition is properly animated by concern for the interests of the
individual parties and the need, so far as is feasible to continue them, and their property, in
useful occupation.
II. The Owelty Award
When it appears that partition cannot be made equal between the parties, according to
their respective rights, without prejudice to the rights and interest of some of them, . . .
the court may adjudge compensation to be made by one party to another, on account of
the inequality of partition . . . .
Robert contends that because adequate parcels of land existed that easily could have been
divided among the brothers according to their ownership interests, the district court
improperly awarded cash in lieu of real property. According to Robert, owelty can be used
only where property cannot be divided according to the ownership interests of the parties.
[Headnotes 4, 5]
Robert urges too limited a role for owelty in partition actions. Recognizing that the
fundamental goal of partition is to divide the property so as to be fair and equitable and
confer no unfair advantage on any of the cotenants, e.g., Blongquist v. Frondsen, 694 P.2d
595 (Utah 1984), the district court awarded each brother sufficient and necessary property to
continue his respective business. As the district court found, a distribution of property
consistent with Robert's demands would prejudice Kenneth, and this prejudice would
contravene the language of NRS 39.440 providing for owelty when equal partition cannot be
achieved without prejudice to the rights and interests of some of [the parties]. Thus, we
conclude that the district court's owelty award is equitable and consistent with the terms of
NRS 39.440.
III. The Coleman Dam Parcel
[Headnote 6]
The Coleman Dam parcel is a forty-acre parcel of undeveloped ranch real property
through which the Carson River runs.
108 Nev. 398, 403 (1992) Kent v. Kent
ranch real property through which the Carson River runs. Appraisers for both parties testified
that the parcel was landlocked with no access or easement from existing county roads through
the land of adjoining landowners. Kenneth's appraiser testified that the parcel currently had a
value of $20,000.00, and Robert's appraiser assigned a value of $25,000.00. Kenneth's
appraiser further testified that the parcel would be worth $140,000.00 if legal access could be
obtained. After hearing testimony from the parties and their appraisers, the district court
found the parcel's value to be $140,000.00, concluding that legal access had been
obtainable by Robert. In the partition judgment, the court awarded this parcel to Robert and
Thomas. Robert asserts there is insufficient evidence to support the district court's valuation.
We agree.
Though access may be obtainable in the future, it had not been obtained by the time of
trial, and one can only speculate if it will be obtained in the future. In our view, a parcel with
obtainable access cannot be valued as if access had already been obtained. Therefore, we
hold that the district court erred in assigning a value of $140,000.00 to the Coleman Dam
parcel.
To remedy this error, the district court must first devalue the Coleman Dam parcel,
selecting between the $20,000.00 and $25,000.00 valuations provided by the parties'
appraisers. Then, because Robert and Thomas are to retain ownership of the Coleman Dam
parcel, the district court shall order an additional owelty payment from Kenneth to his
brothers. This payment, in addition to reflecting the devaluation of the parcel, is to be
calculated with an eye to the tax consequences faced by Robert and Thomas as a result of
receiving the payment.
IV. Attorney's Fees and Costs
Prior to trial, Robert and Thomas served Kenneth with an offer of judgment pursuant to
NRCP 68. NRCP 68 invests the district court with discretion to allow attorney's fees when the
judgment obtained by the offeree is not more favorable than the offer. Robert argues that the
court should have awarded attorney's fees because the judgment obtained by Kenneth was not
more favorable than the offer made by Robert and Thomas.
[Headnote 7]
An award of attorney's fees and costs pursuant to NRCP 68 is discretionary with the
district court and its discretion will not be disturbed absent a clear abuse. Bidart v. American
Title, 103 Nev. 175, 734 P.2d 732 (1987). Robert attempts to show by simple calculation of
property values that the offer was more favorable to Kenneth than the judgment. In our view,
the district court acted within its discretion when it refused to award attorney's fees and
costs.
108 Nev. 398, 404 (1992) Kent v. Kent
ney's fees and costs. The court, desiring that each brother be allowed to continue in his
respective business, awarded Kenneth the entire Dolf Ranch property. The court concluded,
based on substantial evidence, that this award was necessary to preserve the Dolf Ranch as an
economic farm unit. Under the terms of the settlement offer, the Dolf Ranch property would
have been divided, with Robert and Thomas taking some 160 acres. Had Kenneth accepted
the offer, he would have jeopardized the viability of the Dolf Ranch. Thus, the judgment
obtained by Kenneth was more favorable than the offer made by Robert and Thomas.
Furthermore, in an equitable action such as this, a simple comparison of dollar amounts is
an inappropriate standard for determining which result is more favorable. Cf. Leeming v.
Leeming, 87 Nev. 530, 535, 490 P.2d 342, 345 (1971) (concluding that NRCP 68 is
inapplicable to divorce proceedings because of the many issues that are not susceptible to an
arithmetic calculation and the importance of the parties' personal goals). Accordingly, we
conclude that the district court acted within its discretion when it refused to award attorney's
fees and costs to Robert and Thomas.
CONCLUSION
Robert's remaining contentions lack merit. For the reasons given above, we reverse the
judgment of the district court with respect to the Coleman Dam parcel, and we remand this
case to the lower court for proceedings consistent with this opinion. We affirm in all other
respects the judgment entered below.
____________
108 Nev. 404, 404 (1992) Chwialkowski v. Sachs
ROSEMARIE CHWIALKOWSKI, Appellant/Cross-Respondent, v. PAUL SACHS,
No. 22219
July 2, 1992 834 P.2d 405
Appeal from an order of the district court granting respondent's motion for summary
judgment. Cross-appeal from an order of the district court denying respondent's motion to
dismiss. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Motorist injured in automobile accident brought negligence suit against tort-feasor after
giving full release of all claims to vehicle owner in exchange for settlement. The district court
granted tort-feasor's motion for summary judgment. Plaintiff appealed.
appealed. The supreme court held that release settled all rights motorist had flowing from
accident.
Affirmed.
M. Jerome Wright and Richard F. Cornell, Reno, for Appellant/Cross-Respondent.
McKissick, VanWalraven & Harris, and B. Alan McKissick, for
1. Contracts.
Unambiguous contract is construed from language of document.
2. Release.
Release may be rescinded if obtained by mutual mistake or inadequate consideration.
3. Release.
Unilateral mistake can be basis for rescission of release if other party had reason to know of mistake or his fault caused mistake.
4. Release.
Release given by injured motorist, in exchange for payment by insurer for vehicle's owner, in which motorist agreed to release
and forever discharge vehicle owner and tort-feasor released all claims motorist had against tort-feasor since there was no evidence
that alleged mistake of including tort-feasor in release was mutual or type of unilateral mistake which entitled motorist to relief from
contract and in absence of evidence that consideration supported release only of automobile owner.
OPINION
Per Curiam:
Appellant/cross-respondent Rosemarie Chwialkowski (Chwialkowski) and
respondent/cross-appellant Paul Sachs (Sachs) were involved in an automobile accident.
While driving a rental car which was owned by Dollar Rent-A-Car (DRAC), Sachs
rear-ended Chwialkowski's vehicle. Chwialkowski suffered injuries as a result.
Chwialkowski made a demand on DRAC's insurance carrier, Northland Insurance
Company, for its policy limit. Northland Insurance Company paid Chwialkowski its policy
limit in exchange for a release of all claims. Chwialkowski executed the release in favor of
DRAC and Sachs. The release's caption read: RELEASE IN FULL OF ALL CLAIMS. The
release provided, in part:
That I/We Rose Marie Chialkowski [sic] being of the lawful age of eighteen years, for
and in consideration of the sum of Thirteen thousand eight hundred and no/100
Dollars {$13,S00) receipt of which is hereby acknowledged, do hereby release and
forever discharge and by these presents do for myselfJourselves, myJour heirs,
executors, administrators, successors and assigns, release and forever discharge
[D]RAC, Paul Cachs [sic] and successors, affiliates and assigns, andJor his, her or
their associates, heirs, executors and administrators and all other persons, firms or
corporations of and from any and every claim, demand, right or cause of action
arising out of or in any way connected with that certain accident, including all
injuries, deaths, loss of services and consortium, and property damages, resulting
therefrom, which occurred on or about the 27th day of February, 19S7 at or near
Incline Village, NV. . . .
($13,800) receipt of which is hereby acknowledged, do hereby release and forever
discharge and by these presents do for myself/ourselves, my/our heirs, executors,
administrators, successors and assigns, release and forever discharge [D]RAC, Paul
Cachs [sic] and successors, affiliates and assigns, and/or his, her or their associates,
heirs, executors and administrators and all other persons, firms or corporations of and
from any and every claim, demand, right or cause of action arising out of or in any way
connected with that certain accident, including all injuries, deaths, loss of services and
consortium, and property damages, resulting therefrom, which occurred on or about the
27th day of February, 1987 at or near Incline Village, NV . . . .
(Emphasis added) (the bold-face print indicates blank spaces filled in with the use of a
typewriter).
Thereafter, Chwialkowski sued Sachs for negligence. Sachs moved for summary
judgment, arguing that the release agreement extinguished Chwialkowski's claims against
him. The district court granted Sach's motion for summary judgment.
On appeal, Chwialkowski argues that there are material issues of fact as to whether she
made a mistake of fact when she executed the release and whether there was consideration
to support the release of Sachs. We disagree.
[Headnotes 1-3]
The release is unambiguous. An unambiguous contract is construed from the language of
the document. Renshaw v. Renshaw, 96 Nev. 541, 543, 611 P.2d 1070, 1071 (1980).
Chwialkowski clearly released all of her claims against DRAC, Sachs, and all other persons,
firms and corporations for damages which resulted from the automobile accident involving
Chwialkowski and Sachs. A release may be rescinded if obtained by mutual mistake or
inadequate consideration. Hanson v. Oljar, 752 P.2d 187, 190 (Mont. 1988). Likewise, a
unilateral mistake can be the basis for a rescission if the other party had reason to know of
the mistake or his fault caused the mistake. Home Savers, Inc. v. United Security Co., 103
Nev. 357, 358-59, 741 P.2d 1355, 1356-57 (1987).
[Headnote 4]
Chwialkowski argues that neither she nor her attorney intended to release Sachs' personal
automobile liability insurance carrier. Even if Chwialkowski's subjective intent constituted a
mistake of fact, there is no evidence that the alleged mistake was mutual, Realty Holdings v.
Nevada Equities, 97 Nev. 418, 419, 633 P.2d 1222, 1223 (1981), or was the type of unilateral
mistake which entitles a party to relief from a contract. See, e.g., Home Savers, 103 Nev.
at 35S-59, 741 P.2d at 1356-57.
entitles a party to relief from a contract. See, e.g., Home Savers, 103 Nev. at 358-59, 741 P.2d
at 1356-57.
Moreover, Chwialkowski did not present any evidence to demonstrate that the
consideration supported only the release of DRAC. In fact, there was no limiting language in
the release whereby Chwialkowski restricted the effect of the consideration that she received;
the release settled all rights Chwialkowski had flowing from the accident. See Orr v.
Dairyland Ins. Co., 273 S.E.2d 630, 631 (Ga.Ct.App. 1980).
We conclude that the district court did not err in granting Sachs summary judgment, as
there were no disputed material issues of fact and Sachs was entitled to a judgment as a
matter of law. American Fed. Sav. Bank v. County of Washoe, 106 Nev. 869, 871, 802 P.2d
1270, 1272 (1990).
Our disposition of this appeal makes it unnecessary for us to address the cross-appeal.
1

____________
108 Nev. 407, 407 (1992) Dobbs v. Summa Corporation
ADOLPH DOBBS, Appellant, v. SUMMA CORPORATION, a Delaware Corporation
Authorized to do Business in the State of Nevada, Respondent.
No. 21899
SUMMA CORPORATION, a Delaware Corporation Authorized to do Business in the State
of Nevada, Appellant, v. ADOLPH DOBBS, Respondent.
No. 22090
July 2, 1992 833 P.2d 1130
Appeal from an order granting summary judgment to respondent Summa Corporation (No.
21899) and appeal from a denial of Summa Corporation's motion for attorney's fees and costs
(No. 22090). Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge (No.
21899); James A. Brennan, Senior Judge (for J. Charles Thompson) (No. 22090).
__________

1
On February 27, 1989, Chwialkowski filed suit. On July 26, 1989, she filed an ex parte motion for
extension of time in which to serve summons, alleging that she had made a good faith effort to locate Sachs. On
April 9, 1990, Chwialkowski filed notice of service of process on Sachs by way of service on Nevada's Director
of the Department of Motor Vehicles. Thereafter, Sachs moved to dismiss the complaint for failing to effect
timely service. The district court denied this motion. Sachs cross-appealed from the order denying his motion to
dismiss.
Employee filed wrongful termination suit. The district court granted summary judgment
for employer, and employee appealed. Employer cross-appealed denial of attorney fees. The
supreme court held that the evidence raised a question of material fact as to whether employer
had misrepresented employee's right to grievance procedure.
Appeal No. 21899 reversed and remanded; Appeal No. 22090 dismissed.
[Rehearing denied November 11, 1992]
Stanley W. Pierce, Las Vegas, for Appellant/Respondent Adolph Dobbs.
Lefebvre, Barron & Oakes, Las Vegas, for Respondent/Appellant Summa Corporation.
Language in supplement to employee's opposition to summary judgment preserved for appeal otherwise unargued claim that
employer affirmatively misrepresented that employee had lost right to a grievance proceeding.
2. Judgment.
There was fact question whether employer told employee he did not have right to grievance proceeding, as would estop employer
from asserting defense of failure to exhaust administrative remedies, precluding summary judgment on employee's wrongful
termination claim.
OPINION
Per Curiam:
Appellant Adolph Dobbs (Dobbs) was the head porter at the Castaways Hotel and Casino
in Las Vegas from September 1981 until May 1985. Castaways was owned by Summa
Corporation (Summa). At the start of his job, Dobbs was a member of the Culinary Union.
During the term of Dobbs' employment, the union went on strike. At the urging of his
superior, Cubby Knight (Knight), Dobbs resigned from the union in order to keep working
during the strike. Knight promised Dobbs that the company would protect his job if he
resigned from the union. Castaways typed a letter of resignation and Dobbs was told he
should sign it. Dobbs reads at a fourth grade level and only recognizes some written words.
No one read the resignation letter to Dobbs.
As a result of continuing to work during the strike and crossing the picket line, Dobbs was
very concerned about his rights and benefits. He spoke to the president of Castaways, Mr.
Friedman (Friedman), about his concerns on several occasions. Friedman and Dobbs had a
close relationship. Friedman liked Dobbs very much and they spent a great deal of time
talking about Dobbs' job rights and also about general topics such as sports and personal
matters such as Mrs.
rights and also about general topics such as sports and personal matters such as Mrs. Dobbs'
serious medical problems. Friedman assured Dobbs that he had done the right thing in
resigning from the union. Friedman also told Dobbs that the company would protect him and
that he would always have a job.
On at least two occasions, Dobbs transported T-shirts between the casino's warehouse and
the casino. On August 8, 1985, an unnamed person wrote an anonymous letter to Friedman
accusing Dobbs of stealing T-shirts from the company warehouse. Friedman believed Dobbs
was either giving away the T-shirts or selling them for $2.00 each. Dobbs vehemently denied
stealing and told company officials that he had been given some T-shirts and that he found
discarded T-shirts occasionally when he was cleaning the casino. He said he never sold any of
the T-shirts, but that he did give some away. Dobbs was fired for stealing the T-shirts.
Dobbs brought suit for wrongful termination. Summa moved for summary judgment,
arguing that Dobbs was bound by the union grievance process and contended that because
Dobbs did not exhaust his administrative remedies through the union, he was barred from
bringing suit in district court. In opposition, Dobbs argued that Summa was estopped from
arguing exhaustion of administrative remedies, because it had not informed Dobbs that he
had a right to a grievance procedure and that Summa should not be able to take advantage of
its own misconduct. The district court granted summary judgment in favor of Summa on the
basis of Dobbs' failure to exhaust his administrative remedies. Summa then moved from an
award of attorney's fees and costs. The district court denied the motion. Dobbs appeals the
grant of summary judgment in favor of Summa (No. 21899), and Summa appeals the denial
of attorney's fees and costs (No. 22090).
DISCUSSION
[Headnote 1]
Dobbs argues on appeal that Summa was estopped from asserting the defense of failure to
exhaust administrative remedies because Summa told Dobbs that he lost the right to a
grievance proceeding when he resigned from the union. Summa argues that Dobbs' theory
before the district court was that its president, Friedman, simply failed to inform Dobbs that
he had a right to a grievance proceeding and may not now assert the theory of affirmative
misrepresentation on appeal.
It is true that Dobbs consistently argued to the district court that Summa remained silent
and failed to inform Dobbs that the had a right to file a grievance with the union. However,
Dobbs also included the following language in his supplement to plaintiff's opposition to
summary judgment: These same facts if accepted by the jury estopps [sic] Summa from
asserting its defense of failure to exhaust administrative remedies where it is the one
who prevented Dobbs from proceeding with the grievance procedure by its representation
to Dobbs that he had lost any rights to that procedure.
These same facts if accepted by the jury estopps [sic] Summa from asserting its defense
of failure to exhaust administrative remedies where it is the one who prevented Dobbs
from proceeding with the grievance procedure by its representation to Dobbs that he
had lost any rights to that procedure.
(Emphasis added.) Dobbs' theory that Summa prevented him from availing himself of the
union grievance procedures was therefore before the district court and is not newly asserted
on appeal.
Summa also contends that there is no evidence in the record that it affirmatively
misrepresented Dobbs' rights to him and that the record is devoid of any evidence necessary
to invoke the doctrine of estoppel. We disagree. The elements of estoppel are set forth in
Cheqer, Inc. v. Painters & Decorators, 98 Nev. 609, 655 P.2d 996 (1982). Whether the
elements of estoppel are met depends on the facts and circumstances of the case. Id.
[Headnote 2]
There is evidence that Friedman told Dobbs that he lost the right to a grievance proceeding
when he resigned from the union. In his deposition, Friedman stated:
[Dobbs] was one of the first people to cross the picket line in a strike, and he had a
great deal of concern about what it did to his legal rights, and I spent several occasions
describing to him the impact on his legal rights, and what it would do to his standing
with the union and his right to this pension fund, his right to his health insurance, the
right to the hiring hall, and the right to the grievance procedure . . . .
(Emphasis added.) In determining whether summary judgment is proper, the nonmoving
party is entitled to have the evidence and all reasonable inferences accepted as true. Wiltsie
v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989). The reasonable inference
derived from Friedman's deposition testimony is that he advised Dobbs that if he resigned
from the union, he would lose, inter alia, the right to a union grievance procedure.
There is a material question of fact regarding whether Summa told Dobbs he did not have
a right to a grievance proceeding or whether Summa merely remained silent. The resolution
of this factual dispute will determine whether Summa should be estopped from asserting its
defense of failure to exhaust administrative remedies. Summary judgment was inappropriate
in light of the dispute over this material issue of fact.
We hereby reverse the district court's order granting summary judgment to Summa. It is
therefore not necessary for this court to reach Dobbs' other assertion of error nor the issue on
appeal in No. 22090.
Accordingly, we remand this matter to the district court for a full trial on the merits of the
case.
____________
108 Nev. 411, 411 (1992) State v. Cavaricci
THE STATE OF NEVADA, Appellant, v. DAVID CHARLES CAVARICCI, Respondent
No. 22534
July 2, 1992 834 P.2d 406
Appeal from an order of the district court granting respondent's petition to seal portions of
his criminal record and ordering the requested portions sealed. Eighth Judicial District Court,
Clark County; Joseph T. Bonaventure, Judge.
Petitioner sought to seal portions of his criminal record. The district court ordered
requested portions of criminal record sealed. The State appealed. The supreme court held that
the trial court did not have the discretion to order the sealing of petitioner's criminal record
with respect to prior convictions and abused its discretion by ordering the sealing of
petitioner's record regarding charges that had been dismissed, never filed, or not prosecuted
where petitioner had been arrested for serious crimes during the five years since his last
misdemeanor conviction.
James Tufteland, Deputy District Attorney, Clark County, for Appellant.
Vincent Savarese, III, Las Vegas, for Respondent.
1. Criminal Law.
Trial court did not have discretion to order sealing of petitioner's criminal record with respect to prior convictions where petitioner
had been arrested for serious offenses in five years following petitioner's last misdemeanor conviction, including arrests for drunk
driving, resisting arrest, resisting police officer, battery with use of deadly weapon, and possession of controlled substance. NRS
179.245, subds. 1(d), 3.
2. Criminal Law.
Trial court abused its discretion by sealing petitioner's criminal record with respect to charges that had been dismissed, never filed
or not prosecuted, where criminal record contained multiple arrests including drug crimes and crimes of violence. NRS 179.225, subds.
1, 3.
OPINION
1

Per Curiam:
This appeal is from an order of the district court granting respondent's petition to seal
portions of his criminal record and ordering the requested portions sealed. Pursuant to NRAP
34(f)(1), we have determined that oral argument is not warranted in this appeal.
On February 12, 1991, respondent David Charles Cavaricci filed in the district court a
petition to seal his criminal record with respect to three 1984 convictions and several
subsequent arrests during 1987-90 which did not result in convictions. The state opposed the
petition. Following a hearing, on July 8, 1991, the district court issued an order granting the
petition and ordering the requested portions of respondent's criminal record sealed. This
appeal followed.
[Headnote 1]
The state first contends that the district court improperly sealed respondent's criminal
record with regard to his convictions. We agree. The district court did not have the discretion
to grant respondent's petition with regard to respondent's convictions. Pursuant to NRS
179.245(3), the district court has discretion to grant or deny a petition filed pursuant to NRS
179.245(1)(d) only if the petitioner has been arrested for nothing greater than minor traffic
violations during the five years succeeding the petitioner's most recent misdemeanor
conviction. In this case, a review of respondent's criminal record reveals at least seven
incidents since 1984 resulting in numerous charges, including multiple DUI arrests, resisting
arrest, resisting a police officer, battery with use of a deadly weapon and possession of a
controlled substance. These do not qualify as minor traffic violations under the statute.
Consequently, respondent failed to invoke the district court's discretionary power under NRS
179.245(3).
[Headnote 2]
The state next contends that the district court abused its discretion in sealing the portions
of respondent's record in which the charges were dismissed, never filed or not prosecuted. We
agree. Although respondent was entitled to file a petition pursuant to NRS 179.255(1), we
have determined that the district court abused its discretion in sealing those portions of
respondent's criminal record pursuant to NRS 179.255{3).
__________

1
In an unpublished Order of Remand, this court previously vacated the district court's order and remanded
this matter for entry of an order denying respondent's petition to seal portions of his criminal record. Pursuant to
a request, we have determined that our decision should be issued in a published opinion. Accordingly, we issue
this opinion in place of our Order of Remand filed May 13, 1992.
criminal record pursuant to NRS 179.255(3). Respondent has an arrest record dating back to
1984 and since then has been arrested on average once or twice a year. Although many of
respondent's arrests appear to be related to drunk driving, he has also been arrested for more
serious crimes including drug crimes and crimes involving violence. He has convictions dated
1984, 1987, 1988, 1989 and 1990. As revealed by his record of arrests and convictions,
respondent is simply not the type of person upon whom the judiciary will confer such a
substantial benefit as the sealing of his criminal records. Consequently, the district court
abused its discretion in sealing the requested portions of respondent's record which did not
result in convictions.
Accordingly, we vacate the district court's order granting respondent's petition to seal
portions of his criminal record and ordering those portions sealed, and we remand this matter
for entry of an order denying respondent's petition.
____________
108 Nev. 413, 413 (1992) Stringer v. State
MICHAEL STRINGER and MATTHEW DAVID FAESSEL,Appellants, v. THE STATE OF
NEVADA, Respondent.
No. 22008
July 2, 1992 836 P.2d 609
Appeal from jury convictions of one count of first degree murder with the use of a deadly
weapon, conspiracy to commit murder, two counts of discharging a firearm into a dwelling,
and accessory to murder. Second Judicial District Court, Washoe County; Robert L.
Schouweiler, Judge.
Defendants appealed. The supreme court held that: (1) evidence supported finding that one
defendant made a full and voluntary waiver of his fully explained rights and was not tricked
or cajoled into confessing by officer's statement that defendant would not be charged with
murder if found to be merely a witness; (2) evidence supported determination that the other
defendant was not threatened into confessing by police during two hour interrogation; and (3)
the probative value of evidence of political views in showing motivation and state of mind
was not substantially outweighed by danger of unfair prejudice.
Affirmed.
John Ohlson, Reno, for Appellant Michael Stringer.
Karp & Company, Ltd., Reno, for Appellant Matthew David Faessel.
Attorney and Scott Edwards, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Evidence supported finding that defendant's rights were carefully and thoroughly explained to him and that defendant made full
and voluntary waiver of his rights before confessing, despite defendant's uncertainty about consequences of invoking his rights, and
despite defendant's claim that police tricked him by promising his release if he were found to be merely a witness. U.S.C.A.Const.
amend. 5.
2. Criminal Law.
Evidence supported finding that defendant was not coerced by police into giving his confession, despite defendant's claim that
officers brandished their guns and scared him into confessing; interrogation lasted less than two hours prior to confession, officers
testified that they secured their weapons in closet before interrogation, and nothing suggested that officers threatened defendant.
3. Criminal Law.
Error in admitting white supremacist literature against defendant without sufficient evidence linking defendant to literature was
harmless in light of overwhelming evidence of guilty of murder.
4. Criminal Law.
Probative value of evidence of philosophical views of defendant in helping jury to understand his motivation and state of mind at
time of murder was not substantially outweighed by danger of unfair prejudice to defendant. NRS 48.035, subd. 1.
OPINION
Per Curiam:
Appellants were convicted by a jury of first degree murder. Both appellants claim on
appeal that their respective police confessions were improperly obtained and that these
confessions should not have been admitted at trial. One appellant also claims that he was
unfairly prejudiced by the trial court's admission of certain pictures and literature dealing with
white supremacist philosophy. We conclude that the trial court did not abuse its discretion
and affirm the convictions.
THE FACTS
Matthew David Faessel (Faessel) and Michael Stringer (Stringer) associated
themselves with a group of white supremacists known as skinheads.
On December 9, 1988, Stringer invited a female acquaintance, Angela Stanley (Stanley),
to a skinhead party held at an apartment in Sparks, Nevada. Stanley came to the party with
Justine Figurski (Figurski) and Katrina Tunno (Tunno).
Upon their arrival, the young women began drinking with the approximately ten to fifteen
other people at the party. Figurski knew little about skinheads, although she understood that
they didn't like blacks. Soon, Figurski was drawn into a discussion about skinhead
philosophy. Taking issue with the racial philosophy of the skinheads, and in an effort to prove
that black people aren't bad, Figurski boldly announced that she had black friends. Figurski
then stated that she had been raped by a black guy and a white guy and that either could do
bad. This statement sent several members of the group into a rage. One of the enraged
skinheads became so infuriated at Figurski's comment that he made a violent attempt to
strangle her before he was subdued by others at the party.
At this point Stanley and Stringer left the party for a short time in Figurski's car. When
they returned, they saw Faessel screaming in the middle of the street. Apparently still upset at
hearing that Figurski had once been raped by a black man, Faessel told Stringer and Stanley
that he was on his way to a nearby store to stab anybody. Stringer and Stanley convinced
Faessel to abandon his plan and join them. Faessel then entered the back seat of Figurski's
car, and the group drove away.
While riding in Figurski's car, Faessel and Stringer decided that they would vent their
anger by shooting a black person. Stanley drove to the house of a fellow skinhead, where
Faessel had been keeping a gun and ammunition.
1
Faessel ran into the garage and returned
with bullets about fifteen minutes later. Stanley testified that she first became aware that
Faessel had a gun when he began loading it in the back seat of Figurski's car as she drove
away from the house.
As they drove away, Stringer rolled down his window to allow Faessel to shoot from the
back seat, and Faessel began shooting at inanimate objects. The group then drove to a
predominately black neighborhood in Reno, referred to by skinheads as brown town, for the
sole purpose of shooting a nigger. Stringer helped Faessel locate a human target. After
passing up one possible victim, the group spotted a second person walking alone along the
street. Faessel apparently had already taken aim when Stringer stopped him, saying, Don't
shoot him, he's white.
Tony Lydell Montgomery (Montgomery) was the unfortunate third person spotted by
Stringer. At approximately 1:30 a.m., on December 10, 1988, Montgomery was walking
toward the group's vehicle on the left hand side of the street in Reno.
__________

1
Before the party, Stringer had gone to the same house to retrieve Faessel's .22 caliber semi-automatic rifle.
Faessel apparently had the gun with him, under his coat, when he got in the car with Stringer and Stanley.
Once Stringer was sure Montgomery was black, he told Stanley to turn the car around and
follow him. As the car approached Montgomery, Stringer rolled his window down and
Faessel fired seven shots, one of which fatally wounded Montgomery. The other six shots
struck two homes located immediately behind Montgomery. After being shot, Montgomery
grabbed his chest and ran across the street collapsing on the doorstep of his home. Faessel
screamed: I think I got him. I must have got him. Look at him run. Stringer was laughing
and exclaimed: Yes, we got him. In celebration of their act, Stringer and Faessel exchanged
a high five and a Sieg Heil. Stanley then drove them back to the party.
When the group returned to the party, Faessel lifted up his jacket and pulled out the gun.
Although they had warned Stanley to remain silent about the incident, Faessel and Stringer
bragged to others about the shooting. The murder weapon was given to Peggy Morris
(Morris) for safekeeping.
A few days later, Donna Pool (Pool), mother of one of the other skinheads, learned what
happened from Cora Wade, who lived at the Sparks address where the party was held. As a
result, Pool called Secret Witness to report the incident. Upon learning that they were being
investigated by the police, Faessel and Stringer told Morris to get rid of the gun. Morris
disposed of the gun in the Truckee River. After Morris disposed of the gun, Stringer
confessed to her that he and Faessel had in fact shot a black person.
A few days after the shooting, Faessel was picked up by Reno police and taken in for
questioning. Faessel denied any involvement in the shooting. Once released, he left
immediately for his mother's home in Bakersfield, California. Faessel later admitted that his
departure resulted from his fear of eventually being arrested for murder.
On December 28, 1988, Stringer was brought in for questioning. After agreeing to talk to
police, Stringer attempted to convince his interrogators that he was simply a non-participating
witness. However, Stringer was arrested after the interview as an accessory after the fact.
Based on Stringer's testimony, police sought to apprehend Faessel and Stanley.
A few hours after interrogating Stringer, Reno police officers apprehended Stanley. During
questioning, Stanley gave police a detailed account of the events surrounding the shooting.
Reno police learned of Faessel's whereabouts through Pool, whose son received a package
from Faessel with a Bakersfield return address. The Bakersfield police were contacted, and
Faessel was apprehended on December 31, 1988. Upon being informed of Faessel's arrest, the
Reno police dispatched two officers to Bakersfield to question him.
After waiving his Miranda rights, Faessel spoke with the Reno officers for about two
hours before confessing to his participation in the shooting. Faessel's confession included an
admission that he and Stringer had given the murder weapon to Morris and asked her to get
rid of it. After Reno police subsequently searched her bedroom, Morris voluntarily retrieved
the rifle from the Truckee River and gave it to police.
Both Faessel and Stringer filed separate motions to suppress their respective confessions
on the grounds that they were not given voluntarily. Following separate suppression hearings,
the district court ruled the confessions admissible. Stanley ultimately pled guilty to second
degree murder in exchange for her testimony.
A jury convicted Stringer and Faessel of murder with the use of a deadly weapon,
conspiracy to commit murder, and two counts of discharging a firearm into a dwelling. In
addition, Stringer was convicted of being an accessory to murder. The district court sentenced
both Stringer and Faessel to two consecutive life sentences with the possibility of parole for
the murder charge plus an additional eighteen years for the other counts.
DISCUSSION
I. THE CONFESSIONS
Faessel and Stringer both claim they were directly and indirectly coerced into providing
the police with statements confessing their involvement in Montgomery's death.
The law in this area is well settled. Police officers have an obligation to inform suspects of
their right to remain silent and their right to an attorney before custodial interrogation may
begin. Miranda v. Arizona, 384 U.S. 436, 479 (1966). Once a suspect has been apprised of
these rights, the suspect must affirmatively waive them prior to the interrogation. Id. Where a
suspect is indecisive about waiving these rights, or makes an equivocal request for counsel,
the scope of such questions must be limited to the clarification of the request. Nash v. Estelle,
597 F.2d 513, 517 (5th Cir. 1979) (en banc), cert. denied, 444 U.S. 981 (1979) (it is sound
and fully constitutional police practice to clarify the course the suspect elects to choose). If
the suspect then chooses to voluntarily waive these rights, the interrogation may proceed. Id.
at 518. See also United States v. Fouche, 833 F.2d 1284 (9th Circ. 1987), cert. denied, 486
U.S. 1017 (1988). In McRoy v. State, 92 Nev. 758, 759, 557 P.2d 1151, 1152 (1976), we
held: The voluntariness of a confession depends upon the facts that surround it, and the
judge's decision regarding voluntariness is final unless such finding is plainly untenable . . .
(citing Moser v. United States, 381 F.2d 363 (9th Cir.
1967), cert. denied, 389 U.S. 1054 (1968)). In Passama v. State, 103 Nev. 212, 214, 735 P.2d
321, 323 (1987), this court held that the test for voluntariness of a confession is whether the
defendant's will was overborne when he confessed. Finally, pursuant to Sanchez v. State,
103 Nev. 166, 170, 734 P.2d 726, 728 (1987), the State must prove the voluntariness of a
confession by a preponderance of the evidence.
A. STRINGER'S CONFESSION
[Headnote 1]
On December 28, 1988, three police officers approached Stringer at his place of
employment, handcuffed him and transported him to the police station for questioning. At
this time, the extent of Stringer's involvement in Montgomery's murder was unknown. At the
police station, Stringer was advised by officers that they would be taping the interview.
Stringer then stated: I don't know if I could even object to it. The officers then assured him
that they would turn it off if Stringer desired, but they also explained that the tape was for the
protection of everyone involved.
Stringer then presented the officers with a variety of questions about his legal rights. The
officers did not offer any legal advice to Stringer. Instead, the officers told Stringer that they
would read him his rights in full and, upon receiving them, he would be free to invoke his
right to remain silent or to have an attorney or parent present during questioning. Although
Stringer exclaimed, I already know my rights, the officers patiently continued to explain
them to him. After reading Stringer his rights, the following exchange transpired:
STRINGER: Okay, I'll talk to you.
OFFICER: No first, do you understand your rights?
STRINGER: Yeah.
OFFICER: Okay. After you heard your rights, do you want to talk to us?
STRINGER: Yeah.
. . .
OFFICER: Okay. Now since you've decided to talk with us, you can invoke your
rights; that is, stop talking, or refuse to talk at any time you so desire. Do you
understand that?
STRINGER: Yeah.
OFFICER: Or refuse to answer any question you want, or demand an attorney or your
parent be present at any time you want, okay?
STRINGER: But if I can't answer a question because I was drunk . . . ? OFFICER: Then
you don't know.
OFFICER: Then you don't know. We don't want you to make things up, we just want
you to tell us what you saw. Not what you think but what you saw.
STRINGER: All right.
OFFICER: Okay? Is that fair enough?
STRINGER: Yeah.
Stringer's claim that he was tricked and cajoled into waiving his rights and confessing is
based largely on a representation made by the interrogating officers that Stringer would be
released if he was found to be a witness. This allegation lacks merit. Stringer was the first of
the three suspects to be interviewed. Certainly, if Stringer had been found to be merely a
witness he would not have been charged with the murder. There was no misrepresentation, no
trickery and no deceit. On the contrary, the officers went to great lengths to be truthful with
Stringer. Thus, the district court correctly concluded: The detectives carefully and fairly
made certain defendant knew his rights and answered his questions as best they could.
Defendant expressly and clearly stated he knew his rights, and he unequivocally chose to
waive them.
Although the exchange between Stringer and the officers prior to the interrogation reveals
that Stringer was uncertain about the consequences of invoking his rights, the record
demonstrates that the officers thoroughly explained his rights to him. Stringer was clearly
advised of his right to terminate the interrogation at any time. Therefore, the officers did not
impinge[] on the exercise of [Stringer's] continuing option to cut off the interview. Fouche,
833 F.2d at 1287 (quoting Nash v. Estelle, 597 F.2d 513, 518 (5th Cir. 1979) (en banc), cert.
denied, 444 U.S. 981 (1979)). Further, no incriminating statements were obtained until
Stringer had made a full and voluntary waiver of his rights. Accordingly, we agree with the
district court that [a]t no time was [Stringer] tricked, cajoled, threatened, or intimidated into
waiving any rights, and [Stringer's] allegations of such conduct are not supported by the
transcript. Accordingly, we hold that Stringer's confession was properly admitted by the
district court.
B. FAESSEL'S CONFESSION
[Headnote 2]
Faessel claims that he was denied an attorney prior to his interrogation, that he was
intimidated by the interrogating officers and that he was coerced into making a statement
because he feared for his life. Faessel asserts that the interrogating officers brandished their
guns and pointed them at him in an effort to scare him into confessing.
Prior to the interrogation, Faessel signed a waiver of his rights. Faessel later admitted that
he signed the waiver with full knowledge of the implications. The interrogation transcript is
void of any invocation by Faessel of his rights to remain silent or to counsel. The
interrogating officers both testified that Faessel never asked for an attorney before or after he
was Mirandized. Therefore, we can come to no other conclusion but that Faessel waived his
rights voluntarily.
Faessel's allegation that he suddenly decided to provide the officers with the truth because
he feared for his life is completely unsupported in the record. The atmosphere during the
interrogation was obviously tense. The officers knew of Faessel's involvement from the
statements of Stringer and Stanley and, thus, the officers surmised that he was lying. The
officers' frustration with Faessel was quite apparent during certain stretches of the
interrogation, but there is no evidence that the officers threatened him. The officers testified
that they secured their weapons in a closet in the interrogation room prior to retrieving
Faessel from his cell, as required by the Kern County Sheriff's Office in Bakersfield. Both
officers denied that the guns were taken from the closet in the presence of Faessel. The
officers also denied threatening Faessel with any physical harm. According to the officers,
Faessel appeared to be well rested and never requested to leave the room during the
interrogation.
After approximately one hour and forty-five minutes of questioning, the officers concluded
their interrogation of Faessel. The officers testified that after the recorder was shut off, they
were preparing to have Faessel escorted back to his cell. One officer then made a telephone
call to Reno to report their progress and check on another murder investigation. According to
the officers' testimony, while the officer was speaking on the telephone, Faessel motioned to
the other officer that he had something to tell him. As the officer approached him, Faessel
said, I have something to say, turn the recorder back on. The officers turned the recorder
back on and Faessel gave his statement. The transcript provides the following:
Q: Matt, did you want to add something to your statement?
Q: Keep in mind the same things we talked about . . . I know we just ended the
statement but I want to make sure you understand the same rights we advised you of
your right to remain silent and everything still apply. Do you know that and understand
that?
A: Yeah.
Q: Now you told Joe you wanted to tell him something? Fire away.
A: I remember.
Faessel than proceeded to confess, in detail, his participation in the killing of Montgomery.
The period of time between terminating and resuming the interrogation was approximately
twenty minutes.
Our review of the record reveals nothing coercive or deceptive about the conduct of the
officers. The interrogation process was by no means unreasonable. Faessel was interrogated
in the early afternoon, and the interrogation lasted less than two hours prior to his confession.
Faessel's allegations of abuse are not corroborated from the transcript or the tapes.
Accordingly, we conclude that Faessel's claim of coercion has no basis and his confession
was properly admitted by the trial court.
II. EXHIBITS
[Headnote 3]
Faessel next claims that he was unfairly prejudiced by the trial court's admission of white
supremacist literature confiscated from the apartment where he was residing at the time of the
murder. Faessel further argues that other exhibits, which included personal letters and
photographs of him displaying his tattoos, subjected him to undue prejudice. Having
concluded that the confessions were properly admitted into evidence, these remaining issues
are of little consequence.
Faessel had resided at Wade's apartment for several weeks prior to the murder. The
skinhead literature was found in a dresser drawer in Wade's bedroom and in a footlocker
which Wade claimed belonged to her. The literature was admitted into evidence largely on
the basis that a card personally addressed to Faessel was found in the footlocker from which
some of the literature was obtained. We agree that there was insufficient evidence linking
Faessel to the literature. Nevertheless, we conclude that the overwhelming evidence of guilt
renders such error harmless. Hendee v. State, 92 Nev. 669, 670, 557 P.2d 275, 276 (1976)
(citations omitted); see also Riley v. State, 107 Nev. 220, 808 P.2d 560 (1991); Chapman v.
California, 386 U.S. 18, 24 (1967).
[Headnote 4]
We reject Faessel's claim that he was unduly prejudiced from the admission of certain
other evidence illustrative of his philosophical views. Pursuant to NRS 48.035(1), a trial court
may exclude evidence if its probative value is substantially outweighed by the danger of
unfair prejudice, of confusion of the issues or of misleading the jury. This determination
rests within the sound discretion of the trial court. Larson v. State, 102 Nev. 448, 449, 725
P.2d 1214, 1215 (1986). Faessel shot Montgomery solely because he was black. Accordingly,
we conclude that the evidence at issue was germane to the jury's understanding of
Faessel's motivation and state of mind at the time of the crime.
evidence at issue was germane to the jury's understanding of Faessel's motivation and state of
mind at the time of the crime.
CONCLUSION
For the reasons expressed above, we affirm the judgment entered below.
____________
108 Nev. 422, 422 (1992) Pickett v. Comanche Construction, Inc.
J. NORTON PICKETT and VIVIAN J. PICKETT, Husband and Wife; JOHN C. BROOK
and ALICE M. BROOK, Husband and Wife; OLD STONE MORTGAGE
CORPORATION, a Washington Corporation; TIMOTHY P. REGAN and
KATHLEEN M. REGAN, Husband and Wife; PRIMERIT FEDERAL SAVINGS
BANK; ROBERT TRICARICO and FRANCES TRICARICO, Husband and Wife;
MOHAMMAD A. MIAN and CRISTINA G. MIAN, Husband and Wife; CHARLES
E. BIRBA and DONNA L. BIRBA, Husband and Wife; RAYMOND B. COX and
DOLORES E. COX, Husband and Wife; SALVADOR D. RIVERA; IMCO REALTY
SERVICES, INC., a Delaware Corporation; THOMAS L. LANEY and DONNA J.
LANEY, Husband and Wife; MERABANK; MYRON E. CARPENTER and
PATRICIA C. CARPENTER, Husband and Wife; and INTERWEST MORTGAGE, a
Nevada Corporation, Appellants, v. COMANCHE CONSTRUCTION, INC., a
Nevada Corporation, Respondent.
No. 22246
July 2, 1992 836 P.2d 42
Appeal from an order allocating a judgment award and dissolving a preliminary injunction.
First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Homeowners brought independent action to set aside default judgment foreclosing on
mechanics' liens in proceedings in which homeowners had not been parties. The district court
determined that default judgment was res judicata, but that default judgment to claimant
should be allocated among homeowners. The supreme court held that: (1) homeowners were
not barred by res judicata from bringing independent action to set aside prior foreclosure
judgment; (2) trial judge's failure to allocate original mechanics' lien foreclosure judgment to
twelve liens involved in original judgment which merely foreclosed twelve liens was not
"clerical error," and thus, subsequent judgment modifying original judgment to allocate
sums due, entered more than six months after original judgment, was void; and {3)
owners were necessary parties, and failure to name them left their property interests
unaffected by foreclosure.
clerical error, and thus, subsequent judgment modifying original judgment to allocate sums
due, entered more than six months after original judgment, was void; and (3) owners were
necessary parties, and failure to name them left their property interests unaffected by
foreclosure.
Bible, Hoy, Miller, Trachok & Wadhams; Terrill R. Dory; and Michael Hoy, Reno, for
Appellants.
George R. Carter, Las Vegas, for Respondent.
1. Injunction.
Preliminary injunction may be issued to preserve status quo if party seeking it shows that party enjoys reasonable likelihood of
success on merits and that party would be subjected to irreparable harm.
2. Mechanics' Liens.
Homeowners, who were not parties to prior mechanics' lien foreclosure proceeding brought by claimant against developer, were
not barred by res judicata from bringing independent action to set aside prior foreclosure judgment. NRCP 60(a), (b).
3. Judgment.
There are two methods for obtaining relief from final judgment, either by motion or by independent action, and when statutory
period to obtain relief from judgment by motion has expired, independent action may be brought to modify prior judgment. NRCP
60(b).
4. Judgment.
While equitable relief from judgment is generally given only to parties to action or those in privity, relief may be granted to one
who is not party to judgment if he demonstrates that he is directly injured or jeopardized by judgment. NRCP 60(a), (b).
5. Judgment.
Relief from judgment in independent action is not limited to cases of mutual mistake, and if any of grounds set forth in Rule on
relief from judgment are shown, purposes of res judicata can be outweighed by policies for granting relief. NRCP 60(a), (b).
Trial judge's failure to allocate original mechanics' lien foreclosure judgment to twelve liens involved in original judgment, which
merely foreclosed the twelve liens, was not clerical error, and thus, subsequent judgment modifying original judgment to allocate
sums due claimant, entered more than six months after original judgment, was void; omission of allocation in original judgment was
attributable to judicial consideration or discretion. NRCP 60(a), (b).
Owner of interest in real property subject to mechanic's lien when judicial foreclosure proceeding is commenced is necessary
party, and failure to name such necessary party leaves that property owner's interest unaffected by foreclosure.
Judgment foreclosing on mechanic's lien improperly apportioned foreclosure judgment, and apportionment was required to be
adjudicated on merits to determine appropriate charge attributable to each individual property; twelve liens
were foreclosed, and property owners claimed that contractor worked on forty-nine parcels and that only
small portion of foreclosure judgment was attributable to twelve parcels that were liened.
on merits to determine appropriate charge attributable to each individual property; twelve liens were foreclosed, and property owners
claimed that contractor worked on forty-nine parcels and that only small portion of foreclosure judgment was attributable to twelve
parcels that were liened.
In apportionment, property subject to mechanic's lien should not be responsible for improvement costs of another party.
OPINION
Per Curiam:
Appellants (homeowners) brought this independent action to set aside a default
judgment (Comanche Judgment) in favor of respondent Comanche Construction, Inc.
(Comanche). The Comanche Judgment foreclosed mechanic's liens against homeowners'
properties notwithstanding the fact that homeowners had not been parties to the proceedings.
In this independent action to set aside the Comanche Judgment, the trial court concluded: (1)
that the default judgment was res judicata on issues raised by the homeowners; (2) that sums
awarded under the default judgment to Comanche should be allocated among the
homeowners; and (3) that the preliminary injunction against the sale of the homeowners'
properties to satisfy the liens should be lifted. For the reasons discussed below, we reverse the
district court's order.
Facts
In October, 1986, Comanche filed twelve mechanic's liens on homeowners' lots in the
Shenandoah Heights subdivision, a 101-lot project, for labor and materials. Each lien was
originally for $12,763. W.R. Tipple (Tipple)
1
sued Comanche for a declaration that the
liens were invalid, and Comanche counterclaimed, requesting foreclosure of its liens and
seeking punitive damages for fraud. (This is the action that eventually resulted in the
Comanche Judgment.)
Before the Comanche Judgment was entered, Tipple filed for bankruptcy. Although duly
noticed, neither Tipple nor the bankruptcy trustee appeared at trial. The homeowners were not
named as parties in the action between Tipple and Comanche. In May 1990, the court entered
the Comanche Judgment, wherein it (1) dismissed Tipple's complaint, (2) awarded Comanche
damages, (3) declared the mechanic's liens foreclosed, and (4) ordered that all of said lands
and premises be sold.
__________

1
Tipple is the owner of W. Russell Tipple & Associates, the developer of the Shenandoah Heights
subdivision.
The homeowners state that they first learned of the Comanche Judgment in late June 1990,
when Comanche's counsel advised several of the homeowners of Comanche's intention to
begin foreclosure of their properties.
Thereafter, the homeowners filed the present action (Homeowners' Action) to set aside
the Comanche Judgment and moved for a preliminary injunction enjoining any foreclosure
proceedings. The homeowners alleged: (1) that they did not have actual notice of the action
involving Tipple and Comanche until after judgment was entered; (2) that the validity of the
liens was never litigated (because of Tipple's default); and (3) that the homeowners were
necessary parties who had not been joined.
Judge Griffin issued an injunction (a foreclosure sale was pending) subject to the
homeowners posting a $631,525.30 bond. The homeowners posted the bond, and Comanche
moved to allocate the sums due under the Comanche Judgment.
At the hearing on allocation, Comanche argued that because Tipple absconded with the
relevant records, a precise allocation according to the actual work done was impossible and
that, consequently, the judgment should be allocated on a per square footage basis of the
eleven properties.
2
The homeowners argued that the Comanche Judgment was inflated in
that it included work performed on lots other than the twelve that were liened. They argued
that the specific properties liened could only be subjected to a charge that was specifically
tied to work actually performed on each property. Following the hearing, Judge Griffin
continued the matter and advised Comanche to file a motion in Judge Fondi's department to
clarify the Comanche Judgment.
Thereafter, Comanche filed a motion for nunc pro tunc clarification of judgment pursuant
to NRCP 60(a) in the Comanche Judgment with Judge Fondi. The homeowners were not
parties to this proceeding. Comanche raised two questions for clarification: (1) whether the
court intended Comanche's lien to be against the entire project or only against the twelve
properties listed in Comanche's counterclaim, and (2) whether the judgment should be
apportioned equally against the twelve properties.
Pursuant to the motion, Judge Fondi ordered that the Comanche Judgment be apportioned
equally among the properties subject to the mechanic's liens. Adopting Judge Fondi's
allocation, Judge Griffin reduced the Comanche Judgment by 1/12 leaving the remaining
11/12 of the Comanche Judgment as a claim against the eleven remaining lots.
__________

2
Originally, Comanche had liens on twelve properties, but one of the lots was foreclosed by a secured lender
after commencement of the action between Tipple and Comanche, but before pronouncement of the Comanche
Judgment.
Judge Griffin also found that the Comanche Judgment signed by Judge Fondi was res
judicata on the same issues in the Homeowners' Action. The court ordered that each of the
eleven lots be charged with $40,474.60 and dissolved the preliminary injunction.
We now address the homeowners' contention on appeal that the district court erred
because: (1) the Homeowners' Action was not barred by the doctrine of res judicata; (2) the
Comanche Judgment was void, because the trial court substantially changed the judgment
more than six months after it was originally entered; (3) Comanche failed to join necessary
parties in the foreclosure proceedings; and (4) the Comanche Judgment was improperly
allocated.
Discussion
[Headnote 1]
A preliminary injunction may be issued to preserve the status quo if the party seeking it
shows: (1) that the party enjoys a reasonable likelihood of success on the merits; and (2) the
party will be subjected to irreparable harm. Dixon v. Thatcher, 103 Nev. 414, 415, 742 P.2d
1029, 1029 (1987). We conclude that if Comanche were allowed to sell the liened properties,
the homeowners would be subjected to irreparable harm and that compensatory damages
would be inadequate. Whether the homeowners enjoy a reasonable likelihood of success in
setting aside the Comanche Judgment requires a determination of the issues discussed below.
Res judicata's applicability to the Homeowners' Action
[Headnote 2]
Whether a party's claim is barred by res judicata presents a legal question. Lake at Las
Vegas Investors Group, Inc. v. Pacific Malibu Dev. Corp., 933 F.2d 724, 725 (9th Cir. 1991);
Cole v. Kunzler, 768 P.2d 815, 818 (Idaho Ct.App. 1989); Smith v. Smith, 793 P.2d 407, 409
(Utah App. 1990).
Although the district court ruled that the Comanche Judgment was res judicata as to the
same issues in the Homeowners' Action, the homeowners correctly argue that because they
had not been parties, res judicata does not preclude an independent action to set aside a prior
judgment.
[Headnote 3]
NRCP 60(b) provides two methods for obtaining relief from a final judgment: either by
motion or by independent action. Nevada Indus. Dev. v. Benedetti, 103 Nev. 360, 364, 741
P.2d 802, 805 (1987). When the statutory period to obtain relief from a judgment by motion
has expired, an independent action may be brought to modify a prior judgment. Id. at
363; see also Amie v. Amie, 106 Nev. 541, 542
a judgment by motion has expired, an independent action may be brought to modify a prior
judgment. Id. at 363; see also Amie v. Amie, 106 Nev. 541, 542, 796 P.2d 233, 234 (1990)
(The right to bring an independent action for equitable relief is not necessarily barred by res
judicata.).
[Headnote 4]
Comanche argues that Benedetti is distinguishable from the instant case because the
homeowners were never parties to the first action and because this is not a case of mutual
mistake.
3
First, while equitable relief from a judgment is generally given only to the parties
to the action or those in privity, relief may be granted to one who is not a party to the
judgment if he demonstrates that he is directly injured or jeopardized by the judgment. 49
C.J.S. Judgments 344 (1947); Lieberman v. Aetna Ins. Co., 57 Cal.Rptr. 453, 458 (Ct.App.
1967). Because the Comanche Judgment subjected the homeowners (who were not parties) to
liability, we conclude that they properly brought this equitable independent action.
[Headnote 5]
Second, Benedetti is not limited to cases of mutual mistake. If any of the grounds set
forth in Rule 60(b) are shown, the purposes of res judicata can be outweighed by the policies
for granting relief. See, e.g., Carr v. District of Columbia, 543 F.2d 917 (D.C.Cir. 1976)
(independent action was properly based on newly discovered evidence); see also Filler v.
Richland County, 806 P.2d 537 (Mont. 1991) (pursuant to Rule 60(b), trial court may
entertain independent action to set aside a judgment for extrinsic fraud). Moreover, in Amie,
although appellant arguably sought relief for mutual mistake, our emphasis was on whether
the equitable action violated the policies and purposes of the doctrine of res judicata. Amie,
106 Nev. at 541, 796 P.2d at 234-35.
We conclude that the Comanche Judgment is not res judicata to the Homeowners' Action.
Alteration to the Comanche Judgment
[Headnote 6]
The homeowners argue that Judge Fondi made substantive changes to the Comanche
Judgment more than six months after it was entered and that the judgment is therefore void.
Comanche argues that Judge Fondi only corrected a clerical error pursuant to NRCP 60{a).
__________

3
Comanche also argues that the Homeowners' Action is barred by the applicable statute of limitations.
Because this issue was not raised below, we will not address it for the first time on appeal. See Young Elec. Sign
Co. v. Erwin Elect. Co., 86 Nev. 822, 477 P.2d 864 (1970).
argues that Judge Fondi only corrected a clerical error pursuant to NRCP 60(a).
Clerical mistakes in judgments may be corrected by the district court at any time, NRCP
60(a); whereas, the district court can substantively alter a judgment only within six months
after the judgment was entered.
4
NRCP 60(b). We have previously defined the type of
alterations contemplated by NRCP 60(a), as stated:
[A] clerical error is a mistake in writing or copying. As more specifically applied to
judgments and decrees a clerical error is a mistake or omission by a clerk, counsel, or
judge, or printer which is not the result of the exercise of a judicial function. In other
words, a clerical error is one which cannot reasonably be attributed to the exercise of
judicial consideration or discretion.
Channel 13 of Las Vegas v. Ettlinger, 94 Nev. 578, 580, 583 P.2d 1085, 1086 (1978) (quoting
Marble v. Wright, 77 Nev. 244, 248, 362 P.2d 265, 267 (1961)) (emphasis in original).
While the original Comanche Judgment merely foreclosed the twelve liens, the altered
Comanche Judgment set forth the allocation of the sums due Comanche. The allocation
identified the sum necessary to satisfy each lot liened. Judge Fondi's failure to allocate the
original Comanche Judgment did not involve a clerical error, for the omission was
attributable to judicial consideration or discretion. Id. Because the substantive change was
made more than six months after the original judgment was entered, the Comanche Judgment
as corrected was void. See Dredge Corp. v. Peccole, 89 Nev. 26, 27, 505 P.2d 290, 291
(1973) ([T]he lower court was without jurisdiction to alter the judgment dismissing
appellant's action without prejudice,' and its later order purporting to do so was void.).
Failure to join necessary parties
[Headnote 7]
The homeowners next contend that Comanche erred when it failed to join them as
necessary parties. We agree. In Mendenhall v. Douglas L. Cooper, Inc., 387 S.E.2d 468 (Va.
1990), the contractors recorded mechanic's liens after the developer had sold several
condominiums. Id. at 469. The contractors did not name the purchasers of the liened
properties as parties within the requisite time to foreclose the mechanic's liens. Id. at 469-70.
The Virginia Supreme Court held that the purchasers were necessary parties to the foreclosure
action because they had an interest in the subject matter which could be diminished or
defeated by the action. Id. at 470.
__________

4
The Comanche Judgment was entered on May 15, 1990. The Comanche Judgment as altered by Judge
Fondi was entered on May 16, 1991.
in the subject matter which could be diminished or defeated by the action. Id. at 470.
Comanche seeks to distinguish Mendenhall in that the unnamed property owners there
obtained title before the mechanic's liens were recorded. Comanche, however, does not draw
our attention to anything which undermines the holding in Mendenhall.
Comanche also argues that in some of the jurisdictions that are in accord with Mendenhall,
the lien statutes require joinder of all parties with an interest in the liened land at the time of
the foreclosure action. See Martirano Constr. Corp. v. Briar Contracting Corp., 481 N.Y.S.2d
105 (N.Y.App.Div. 1984); Vaughn v. State, 304 So.2d 12 (Ala. 1974).
Idaho, like Nevada, does not have a mechanic's lien statute which expressly requires
joinder of all parties with an interest at the time of foreclosure. The Idaho Court of Appeals
nevertheless held that a judgment of foreclosure that fails to name all parties with an interest
results in loss of the lien against that interest, noting that this holding encourages judicial
efficiency and finality of litigation. Bonner Bldg. Supply, Inc. v. Standard Forest Prods. Inc.,
682 P.2d 635, 639 (Idaho Ct.App. 1984). The court discussed the implications of holding
otherwise:
If I.C. 45-1302 [the lien statute] were applied so as to terminate the rights of other
parties having an interest in the property, where they were not named in a lien
foreclosure action simply at the election of the foreclosing claimant, issues of a
constitutional dimension could arise. In such a case, holders of other recorded interests
in the property could be deprived without notice and opportunity to be hearda
deprivation of due process.
Id.
In Packard Bell Elecs. Corp. v. Theseus, Inc., 53 Cal.Rptr. 300 (Ct.App. 1966), the lien
claimant failed to name the owners of six lots who took their title after recordation of the
mechanic's lien but before commencement of the action to foreclose the lien. Id. at 302. The
court held that because the owners of the six lots were not named in the foreclosure
proceeding, giving them an opportunity to contest the amount, validity and priority of the
claimed lien, the mechanic's lien as to those owners was not valid. Id. at 303. See also
Monterey S.P. Part. v. W.L. Bangham, 777 P.2d 623, 626 (Cal. 1989) (all persons with an
interest in the subject real property at the time suit is brought to enforce a mechanic's lien on
that property are necessary parties); Eng v. Stein, 599 P.2d 796, 799 (Ariz. 1979).
We conclude that the cases supporting the homeowners' position are persuasive. Therefore,
we hold that an owner of an interest in real property subject to a mechanic's lien when a
judicial foreclosure proceeding is commenced is a necessary party. Failure to name a
necessary party leaves that property owner's interest unaffected by the foreclosure.
Apportionment of the Comanche Judgment
[Headnotes 8, 9]
Finally, the homeowners argue that the Comanche Judgment was improperly allocated.
They contend that Comanche worked on forty-nine parcels and that only $41,559.38 of the
$391,006.52 Comanche Judgment was attributable to the twelve parcels it liened.
5
In
apportionment, a property subject to a mechanic's lien should not be responsible for the
improvement costs of another property. Brunzell v. Lawyers Title, 101 Nev. 395, 397, 705
P.2d 642, 644 (1985). Thus the apportionment must be adjudicated on the merits to determine
the appropriate charge attributable to each individual property.
Conclusion
In sum, the district court abused its discretion in dissolving the preliminary injunction. The
homeowners demonstrated a probability of irreparable harm and a reasonable likelihood of
success on the merits in that the Homeowners' Action was not precluded by the doctrine of
res judicata in seeking relief, that the Comanche Judgment as corrected was void, and that the
Comanche Judgment was improperly apportioned.
Accordingly, we reverse the district court's order granting Comanche allocation of the
sums due under the Comanche Judgment and dissolving the preliminary injunction, vacate
the Comanche Judgment and remand this matter for further proceedings consistent with this
opinion.
__________

5
The homeowners rely on Comanche's unpaid work vouchers, arguing that these demonstrate that Tipple did
not pay Comanche for work performed on over forty units and that only $41,559.38 is attributable to the twelve
lots liened. In addition, one of the lots Comanche liened is vacant, and it appears that there are no outstanding
vouchers for this lot.
____________
108 Nev. 431, 431 (1992) State Envtl. Comm'n v. John Lawrence Nev.
STATE OF NEVADA, STATE ENVIRONMENTAL COMMISSION, DEPARTMENT OF
CONSERVATION AND NATURAL RESOURCES, DIVISION OF
ENVIRONMENTAL PROTECTION, Appellants, v. JOHN LAWRENCE NEVADA,
a Nevada Corporation, Respondent.
No. 22121
July 6, 1992 834 P.2d 408
Appeal from an order of the district court granting respondent's petition for judicial
review, and reversing orders of appellant State Environmental Commission. First Judicial
District Court, Carson City; Michael E. Fondi, Judge.
Developer that had been issued air quality permit for construction of housing subdivision
and golf course sought judicial review of decision of State Environmental Commission
upholding seven notices of alleged violations for dust disturbances. The district court
reversed Commission's orders, and state, Commission, and Department of Conservation and
Natural Resources, Division of Environmental Protection, appealed. The supreme court held
that: (1) environmental regulation requiring notice of violation to be issued to owner or
operator who failed to construct and operate source in accordance with conditions of permit
was not unconstitutionally vague as applied, and (2) developer was not exempt from fugitive
dust prohibition of air quality regulation by reason of permit.
Frankie Sue Del Papa, Attorney General, Brian Chally, Senior Deputy Attorney General,
Carson City, for Appellant Department of Conservation and Natural Resources, Division of
Environmental Protection.
Debra Winne Jeppson, Deputy Attorney General, Carson City, for Appellant State
Environmental Commission.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell, and Karen A. Peterson, Carson
1. Health and Environment.
Air quality regulation requiring that notice of violation be issued to any owner or operator that failed to construct and operate
source in accordance with conditions of air quality permit was not unconstitutionally vague as applied to require that developer control
dust it disturbed; though not a precise standard, requirement to control dust was sufficiently clear to give developer notice that its
activities were in violation of its permit, and there was no indication that regulation was arbitrarily enforced.
Court should uphold facial vagueness challenge to regulation that circumscribes no constitutionally protected conduct only if
regulation is impermissibly vague in all of its applications.
Whether regulation is unconstitutionally vague as applied is mixed question of law and fact, and administrative findings are
entitled to deference; role of reviewing court is to determine whether agency decision was arbitrary or capricious, thus constituting
abuse of its discretion. NRS 233B.135, subd. 3.
4. Health and Environment.
Personnel of Division of Environmental Protection, of the Department of Conservation and Natural Resources, properly interpreted
air quality regulation so as not to exempt developer who has received air quality permit from fugitive dust prohibition; Division's
interpretation was consistent with plain meaning of regulation.
OPINION
Per Curiam:
Appellant, the State of Nevada Department of Conservation & Natural Resources,
Division of Environmental Protection (DEP), issued an air quality permit to respondent John
Lawrence Nevada, Inc. in January of 1989. This permit allowed John Lawrence to construct a
housing subdivision and golf course in Dayton, Nevada. The permit also required John
Lawrence to control fugitive dust from disturbed areas using best practical methods.
Construction of the project began on March 27, 1989. John Lawrence attempted to control
the dust raised by its activities with water trucks, sprinklers, and chemical palliatives.
Weather reports were taken twice a day, and the project was occasionally shut down when
extremely windy conditions arose. John Lawrence spent over $250,000 on dust suppression
measures.
Despite the attempts by John Lawrence to control dust emissions, several instances of dust
disturbance were observed by DEP personnel and residents living near the project. During the
period of construction, DEP issued twelve Notices of Alleged Violation (Notices) to John
Lawrence for dust disturbances.
1
John Lawrence contested eleven of the Notices in three
hearings before the appellant State Environmental Commission (Commission).
2
The
Commission affirmed seven and vacated four of the Notices, and fined John Lawrence
$20,750.00.
__________

1
Two additional Notices were given to John Lawrence for dust disturbances on the second day of the
project. These Notices were later reduced to warnings.

2
John Lawrence paid the fine for one Notice issued on June 15, 1989.
John Lawrence filed a petition seeking judicial review of the Commission's decision. The
district court reversed the decision of the Commission and vacated the Notices and fines. The
three Notices that were based upon violations of NAC 445.696 and the air quality permit
issued to John Lawrence, were vacated on grounds that both the regulation and the permit
were unconstitutionally vague. The three Notices that were based upon violations of NAC
445.734(1) and (2) were also vacated as a result of the court's determination that NAC
445.724(3) exempted John Lawrence's activities from those regulations. DEP and the
Commission now challenge the district court's rulings on appeal.
3

Constitutionality of NAC 445.696
[Headnote 1]
NAC 445.696, in relevant part, provides that a Notice shall be issued to any owner or
operator who [f]ails to construct and operate a source in accordance with the conditions
imposed by the director which appear on the permit to construct or operating permit.
Therefore, the validity of the NAC 445.696 violations depends in large measure on the
underlying validity of the language of the air quality permit. The provision of the air quality
permit which the district court found to be impermissibly vague requires that fugitive dust
from all disturbed areas must be controlled by an ongoing program using best practical
methods such as watering, chemical stabilization or other controls approved by the Air
Quality Officer.
[Headnote 2]
The Supreme Court announced the standard applicable to a challenge to a non-criminal
regulation on vagueness grounds in Village of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489 (1982). Where, as here, a regulation circumscribes no constitutionally
protected conduct, a court should uphold a facial vagueness challenge only if the regulation is
impermissibly vague in all of its applications. Id. at 494-95. Accord Westinghouse Beverage
Group v. Department of Taxation, 101 Nev. 184, 698 P.2d 866 (1985). Therefore, John
Lawrence may not challenge the regulation for vagueness if its conduct clearly falls within
the proscribed activity. Hoffman, 455 U.S. at 495.
[Headnote 3]
Whether NAC 445.696 is unconstitutionally vague as applied to John Lawrence is a mixed
question of law and fact; thus, the findings of the Commission were entitled to deference by
the district court. See NRS 233B.135(3). Our role is to determine whether the agency
decision was arbitrary or capricious, thus constituting an abuse of its discretion.
__________

3
Appellants are not contesting the district court's reversal of one Notice issued under NAC 445.664.
whether the agency decision was arbitrary or capricious, thus constituting an abuse of its
discretion. Titanium Metals Corp. v. Clark County, 99 Nev. 397, 399, 663 P.2d 255, 257
(1983).
We have concluded that the requirement that a permittee control the dust it disturbs is not
unconstitutionally vague as applied to John Lawrence's activities. Though not a precise
standard, the requirement to control dust was sufficiently clear to give John Lawrence notice
that its activities were in violation of its permit, and thus in violation of NAC 445.696.
4
Just
as regulations that do not implicate constitutional rights need not be as precise as those that
do, greater tolerance for inexactitude exists for regulations which carry a civil rather than a
criminal penalty for their violation because the consequences of imprecision are qualitatively
less severe. 455 U.S. at 499. Also, a regulated enterprise may seek clarification of a
regulation by inquiry or by resort to an administrative process. Id. at 498. NAC 445.696 is not
unconstitutionally vague.
In addition, it appears that the regulations were not arbitrarily enforced. The Notices were
only issued when the dust was clearly out of control. John Lawrence was given ample
opportunity to explain its actions and contest the Notices before the Commission. Notices that
were issued for occasions of dust emissions later determined by the Commission to be
uncontrollable or not traceable to John Lawrence were vacated. Accordingly, we also
conclude that the language of the air quality permit was not unconstitutionally vague nor
arbitrarily enforced, and therefore the permit did not invalidate the Notices issued under NAC
445.696.
Applicability of NAC 445.734.
[Headnote 4]
The version of NAC 445.734 in effect at the time in issue provided:
1. No person may cause or permit the handling, transporting or storing of any
material in a manner which allows or may allow controllable particulate matter to
become airborne.
2. In any area designated by the director, no person may cause or permit the
construction, repair, demolition or use of unpaved or untreated areas without first
applying any measures required by the director to prevent particulate matter from
becoming airborne.
__________

4
John Lawrence admitted that it had been unable to control the dust. The project manager stated:
[W]e have always had the proper amount of equipment out there to control the dust in controllable
situations. The problem was on the days that it had gotten away, again it was human error. We had made
a bad decision as to whether to continue or whether to stop and immediately run the water trucks.
of unpaved or untreated areas without first applying any measures required by the
director to prevent particulate matter from becoming airborne.
3. No person may disturb or cover 20 acres (8 hectares) or more of land or its
topsoil, other than agricultural land, until he has obtained a permit to construct or
operating permit for the purpose of clearing, excavating or leveling the land or an
operating permit for the deposit of any foreign material to fill or cover the land.
The district court determined that subsections one and two above are inapplicable to
subsection three permittees. Since John Lawrence obtained a permit to disturb more than
twenty acres, the court held that John Lawrence was not bound by NAC 445.734(1) or (2),
and dismissed the Notices that were based upon the latter regulatory provisions.
The district court's conclusion was contrary to the position of DEP personnel, who testified
that subsection three permittees are not exempted from the fugitive dust prohibition of the
regulation. John Lawrence admits that [a]n administrative construction that is within the
language of the statute will not be readily disturbed by the courts (citing Department of
Human Resources v. UHS of the Colony, Inc., 103 Nev. 208, 211, 735 P.2d 319, 321 (1987)).
We are convinced that the district court erred in rejecting the DEP's interpretation of the
regulation, which we perceive to be consistent with its plain meaning. We therefore reverse
the district court's ruling that NAC 445.734(1) and (2) were inapplicable to John Lawrence.
For the reasons specified above, the order of the district court is reversed and the matter
remanded with instructions to reinstate the six Notices and the fines imposed in connection
therewith.
5

____________
108 Nev. 435, 435 (1992) Thompson v. City of North Las Vegas
BONNIE J. THOMPSON and KENNETH D. THOMPSON, Appellants, v. THE CITY
OF NORTH LAS VEGAS, a Municipal Corporation, Respondent.
No. 22780
July 6, 1992 833 P.2d 1132
Appeal from an order of the district court dismissing a complaint to quiet title. Eighth
Judicial District Court, Clark County; Carl J. Christensen, Judge.
__________

5
We reject as meritless John Lawrence's claim that it was subjected to double jeopardy because it received
two Notices for each dust disturbanceone for violation of NAC 445.734, and one for violation of NAC
445.696.
Purported property owners brought action to quiet title. The district court dismissed
complaint, and appeal was taken. The supreme court held that: (1) substantial issues of
material fact existed precluding summary judgment, and (2) action was not barred by
collateral estoppel.
John M. Sacco, Las Vegas, for Appellant.
Richard Maurer, City Attorney, Mark L. Zaloras, Deputy City Attorney, North Las Vegas,
for Respondent.
1. Estoppel.
To be effective, waiver must occur with full knowledge of all material facts.
2. Judgment.
Substantial issues of material fact existed regarding purported property owner's knowledge at time they executed stipulations in
connection with correction of plat and at point at which purported owners learned of township's ownership of parcel, precluding
summary judgment in quiet title action.
3. Judgment.
Doctrine of collateral estoppel is based upon sound public policy of limiting litigation by preventing party who had one full and
fair opportunity to litigate issue from again drawing it into controversy.
4. Judgment.
Collateral estoppel did not bar purported property owner's action to quiet title, where purported property owners did not have full
and fair opportunity to litigate ownership of parcel in realignment adjudication, but rather, in reliance upon misrepresentation of
engineering firm that created proposed plat, signed stipulations, foregoing litigation altogether.
OPINION
Per Curiam:
THE FACTS
Appellants Bonnie and Kenneth Thompson own and reside on real property located at
3737 Verde Way in North Las Vegas, Nevada. A piece of this real property (the parcel),
approximately one-fifth of an acre in size, is the subject of this dispute. For over fifteen years
the appellants have stored equipment and vehicles on the parcel, and they have paid taxes on
it since 1973.
In the fall of 1988, the City of Las Vegas, in accordance with a city council resolution,
commenced an action (the Decatur Realignment) under NRS Chapter 270 to correct the
plat representing four sections of land in Clark County, Nevada. Appellants' Verde Way real
property lies within one of these sections; consequently, appellants were among the five
hundred defendants named in the complaint filed by Las Vegas.
consequently, appellants were among the five hundred defendants named in the complaint
filed by Las Vegas. The City of North Las Vegas, respondent here, was not a party to the
Decatur Realignment.
NRS Chapter 270 sets forth a detailed procedure for correcting faulty maps or plats. In
accordance with this procedure, Las Vegas placed on public display its proposed plat for the
four sections of land, published notice of the proposed plat in the Las Vegas Review-Journal,
and held a public hearing for the purpose of receiving objections to the proposed plat. In
addition, VTN-Nevada, an engineering firm retained by Las Vegas to create the proposed
plat, contacted all affected property owners and invited them to meet to discuss the accuracy
of the proposed plat. At the conclusion of each of these meetings, each property owner who
found the proposed plat to be accurate signed a stipulation memorializing her agreement with
the proposed plat. Each of these stipulations provided in relevant part that this Defendant
joins in the prayer of said Complaint that the Court issue an order adopting, fixing and
establishing the correct map and boundary line of the area in dispute in accordance with [the
proposed plat]. Each of the appellants signed a stipulation.
Appellants acknowledge having been served with photocopies of the Decatur Realignment
complaint and proposed plat in May of 1989. According to appellants, however, the poor
quality of the photocopies impelled them to contact VTN-Nevada and inquire about the
proposed plat and its effect on the boundary line of appellants' Verde Way real property.
Appellants also aver that after they provided the VTN-Nevada representative with their lot
number, they were informed that the boundary line change would be slight: approximately six
inches to one foot. Finally, appellants contend that in reliance on these statements, they
signed their stipulations.
By the time set for trial in the Decatur Realignment matter, all but seventeen defendants
had either stipulated to the accuracy of the proposed plat or defaulted. The case was tried
before the district court from September 5, 1989, through September 8, 1989. After hearing
testimony and viewing exhibits, the district court issued findings of fact, conclusions of law,
and order for entry of judgment and decree (the Decatur Realignment Judgment). Pursuant
to the Decatur Realignment Judgment, respondent was awarded title to the parcel. Appellants
did not appeal from the Decatur Realignment Judgment.
At some point after they signed their stipulations in the Decatur Realignment matter,
appellants applied to respondent for a building permit to construct a fence around the parcel
but were refused. Appellants assert that they telephoned respondent, inquired about
ownership of the parcel, and received assurances from one of the respondent's employees
that they still owned the parcel.
inquired about ownership of the parcel, and received assurances from one of the respondent's
employees that they still owned the parcel. Appellants further contend that only later did they
learn that respondent had been awarded title to the parcel, and that by then, the time in which
to appeal or move to set aside the Decatur Realignment Judgment had expired.
On June 5, 1991, appellants filed a complaint against respondent. In this complaint,
appellants sought, among other things, to quiet title to the parcel in their favor. On September
13, 1991, respondent filed a motion to dismiss pursuant to NRCP 12(b)(5). Respondent
sought dismissal of appellants' complaint based on res judicata and the doctrines of stare
decisis and unclean hands. Following oral argument, the district court granted respondent's
motion and entered an order of dismissal pursuant to NRCP 12(b)(5).
DISCUSSION
At the outset, appellants contend that the district court committed reversible error by
failing to treat respondent's motion to dismiss as a NRCP 56 motion for summary judgment.
While we believe that the court did commit error, we also conclude that this error does not
warrant a reversal.
Where materials outside of the pleadings are presented to and considered by the district
court, it can be said that the district court, in effect, treated and disposed of a motion to
dismiss as a Rule 56 motion for summary judgment. MacDonald v. Kassel, 97 Nev. 305, 629
P.2d 1200 (1981). Here, in conjunction with their pleadings, the parties submitted affidavits
and other materials, including a copy of the Decatur Realignment Judgment and copies of
each appellant's stipulation in that case. And while the dismissal order is devoid of the
rationale for granting respondent's motion to dismiss, it does contain language showing that
the district court considered these materials:
Upon hearing oral argument, and after consideration of the Memoranda of Points
and Authorities filed both in support of and in opposition to the Motion [to dismiss],
and based on the pleadings, papers and all of the records on file in this action, . . . .
Thus, though the district court titled his decision an order of dismissal, the district court, in
effect, rendered summary judgment.
Apparently, then, the district court erred in failing to expressly consider respondent's
motion as one for summary judgment. Even if so, however, we are not obliged to reverse;
rather, we shall simply review the dismissal order as if it were a summary judgment.
judgment. See Paso Builders, Inc. v. Hebard, 83 Nev. 165, 169, 426 P.2d 731, 734 (1967).
Accordingly, in reviewing the dismissal order, we accept appellants' allegations as true,
and should affirm the dismissal order only if, as a matter of law, respondent has established
that there is no genuine issue of material fact. See NRCP 56(c); Tahoe Village Homeowners
v. Douglas Co., 106 Nev. 660, 661, 799 P.2d 556, 557 (1990).
Respondent first argues that summary judgment is warranted because appellants waived
any errors in the Decatur Realignment by (1) executing their respective stipulations; (2)
neglecting to participate in the Decatur Realignment trial; (3) failing to move, under NRCP
59, either for a new trial or to alter or amend the Decatur Realignment Judgment; (4) failing
to seek relief from the Decatur Realignment Judgment under NRCP 60; and (5) failing to
appeal the Decatur Realignment Judgment. In our view, this argument plainly lacks merit.
[Headnotes 1, 2]
A waiver is the intentional relinquishment of a known right. In order to be effective, a
waiver must occur with full knowledge of all material facts. Friendly Irishman v. Ronnow, 74
Nev. 316, 319, 330 P.2d 497, 499 (1958). As appellants correctly assert, a party cannot waive
something unknown to her. Santino v. Glens Falls Ins. Co., 54 Nev. 127, 139, 9 P.2d 1000,
1004 (1932). Here, appellants, in their affidavits, aver that prior to executing their
stipulations, they were told by a representative of VTN-Nevada that the boundary line change
for their property would be minimal and only six inches to one foot. Appellants further
avow that they would not have executed the stipulations had they known that they would lose
title to the parcel, and that only later, after the time in which to appeal or move to set aside the
Decatur Realignment Judgment had expired, did they learn that respondent had been awarded
the parcel. Because we believe there exist genuine issues of material fact regarding appellants'
knowledge at the time they executed the stipulations and the point at which appellants learned
of respondent's ownership of the parcel, we cannot conclude as a matter of law that appellants
waived any errors in the Decatur Realignment Judgment. Accordingly, summary judgment
cannot be granted to respondent on the basis of waiver.
Respondent next argues that summary judgment is warranted because, under the doctrine
of collateral estoppel, the Decatur Realignment Judgment precludes this action. We disagree.
[Headnotes 3, 4]
The doctrine of collateral estoppel is based upon the sound public policy of limiting
litigation by preventing a party who had one full and fair opportunity to litigate an issue
from again drawing it into controversy.
one full and fair opportunity to litigate an issue from again drawing it into controversy.
Bernhard v. Bank of America Nat. Trust & Sav. Ass'n, 122 P.2d 892, 894 (Cal. 1942). Again
accepting as true the allegations contained in appellants' affidavits, appellants, as a matter of
law, simply did not have a full and fair opportunity to litigate the ownership of the parcel in
the Decatur Realignment adjudication. In fact, in reliance upon the misrepresentations of the
VTN-Nevada employee, appellants signed their stipulations, thereby foregoing litigation
altogether. Thus, we conclude that collateral estoppel does not bar appellants' action, and
therefore summary judgment cannot be sustained on the basis of this doctrine.
For the reasons set forth above, we reverse the order of the district court dismissing
appellant's complaint and remand this case to the district court for further proceedings not
inconsistent with this opinion.
1

____________
108 Nev. 440, 440 (1992) Tighe v. Von Goerken
KATHY TIGHE, Clerk of the City of Las Vegas; CITY OF LAS VEGAS, NEVADA; RON
LURIE, BOB NOLEN, STEVE MILLER, ARNIE ADAMSEN, and SCOTT
HIGGINSON, All in Their Capacity as Members of the CITY COUNCIL OF LAS
VEGAS, NEVADA, and Not Individually, Appellants, v. CHARLES ERIC VON
GOERKEN, dba BIERNUTZ, Respondent.
No. 21826
July 6, 1992 833 P.2d 1135
Appeal from order of the district court granting application for writ of mandamus and
ordering issuance of liquor license. Eighth Judicial District Court, Clark County; Thomas A.
Foley, Judge.
After city council denied application for approval of twelve-month preliminary liquor
license for tavern surrounded by single and multiple family residences, applicant applied for
writ of mandamus. The district court granted application. City council appealed. The supreme
court, Steffen, J., held that: (1) record did not evince clearly arbitrary and capricious decision
by council, and (2) evidentiary basis for council's action was inadequate.
__________

1
The Honorable Thomas L. Steffen, Justice, voluntarily recused himself from participation in the decision of
this appeal.
[Rehearing denied September 3, 1992]
Roy A. Woofter, Las Vegas City Attorney, and Larry G. Bettis, Deputy City Attorney, Las
Vegas, for Appellants.
Thompson & Harper, Las Vegas, for Respondent.
1. Intoxicating Liquors.
Municipality's discretionary regulation of dispensation of alcoholic beverages within its corporate limits should be respected by
courts absent clear evidence that act of regulation is arbitrary, capricious, or abuse of discretion. NRS 268.090, subd. 1.
Compatible zoning does not, ipso facto, divest municipal government of right to deny certain uses based upon considerations of
public interest.
Although record did not support trial court's finding that city council manifestly abused its discretion in denying twelve-month
preliminary liquor license for taverns surrounded by single and multiple family residences, evidentiary basis for council's action was
inadequate, therefore requiring new public hearing before council to fully consider factual information pertaining to impact or effect of
application for tavern liquor license. NRS 268.090, subd. 1.
OPINION
By the Court, Steffen, J.:
Appellants, as members of the City Council of Las Vegas, Nevada (Council), challenge the
propriety of the ruling by the district court granting respondent Charles Eric Von Goerken's
application for a writ of mandamus ordering the Council to issue Von Goerken a tavern liquor
license. The district court found that the Council's denial of Von Goerken's application for
preliminary approval of a tavern liquor license was arbitrary and capricious and a clear abuse
of the Council's discretion. We disagree and reverse.
FACTS
In April, 1990, Von Goerken filed a request with the Council for approval of a
twelve-month preliminary liquor license for a tavern surrounded by single and multiple
family residences. The property on which the proposed tavern was to be situated was zoned
C-1 (commercial use). Zoning regulations in effect at the time of Von Goerken's application
were compatible with the placement of a tavern on the applicant's property. Prior to Von
Goerken's purchase of the subject property, the Council had approved the proposed
construction of a commercial structure on the property submitted by the former owner.
Moreover, a background investigation by the Las Vegas Metropolitan Police Department
revealed no basis for concluding that Von Goerken was unsuitable to hold a liquor license.
ground investigation by the Las Vegas Metropolitan Police Department revealed no basis for
concluding that Von Goerken was unsuitable to hold a liquor license.
Although Von Goerken's application included his current address and telephone number,
the Council sent written notice of the meeting concerning the application to a former address,
thus effectively providing Von Goerken only with telephonic notice the day prior to the
morning of the meeting. At the scheduled meeting, no members of the public spoke either for
or against the application, and Von Goerken appeared without legal counsel because of his
late awareness of the meeting date and time. The Council unanimously denied Von Goerken's
application.
Von Goerken sought relief from the Council's denial by filing a petition for writ of
mandamus with the district court. The lower court found that the Council's action was
unsupported by substantial evidence, and that the action was therefore arbitrary, capricious,
and a manifest abuse of discretion. In granting the writ, the district court ordered that the
Council issue the permits necessary to the operation of Von Goerken's tavern. The Council
thereafter elected to challenge the order entered below by appealing to this court.
DISCUSSION
[Headnote 1]
Incorporated cities are empowered to license and regulate the sale of alcoholic beverages.
NRS 268.090(1). A municipality's discretionary regulation of the dispensation of alcoholic
beverages within its corporate limits should be respected by the courts absent clear evidence
that an act of regulation is arbitrary, capricious, or an abuse of discretion. See Gragson v.
Toco, 90 Nev. 131, 134, 520 P.2d 616, 617 (1974). We have settled the deferential standard
of review accorded to the actions of municipalities in prior decisions of this court. Thus, in
Urban Renewal Agency v. Iacometti, 79 Nev.113, 118, 379 P.2d 466, 468 (1963), we held
that a trial court should sustain discretionary action of a governmental body, absent an abuse
thereof, to the same extent that an appellate court upholds the discretionary action of a trial
court. We also held in Clark County Liquor & Gaming v. Simon & Tucker, 106 Nev. 96, 97,
787 P.2d 782, 783 (1990), that the court may interfere with an agency's decision only when
there is a manifest abuse of discretion. In Simon & Tucker, we determined that in balancing
private and public interests, a governmental agency must consider the public interest
paramount. Id. Finally, in characterizing the type of discretionary abuse inviting judicial
intervention, we observed that the essence of the abuse of discretion, of the arbitrariness or
capriciousness of governmental action in denying a license application, is most often found
in an apparent absence of any grounds or reasons for the decision. 'We did it just because
we did it.'" City Council v.
mental action in denying a license application, is most often found in an apparent absence of
any grounds or reasons for the decision. We did it just because we did it.' City Council v.
Irvine, 102 Nev. 277, 280, 721 P.2d 37, 372-73 (1986).
[Headnote 2]
Although the land upon which Von Goerken intended to construct a tavern was zoned to
accommodate such a commercial enterprise, it is clear that compatible zoning does not, ipso
facto, divest a municipal government of the right to deny certain uses based upon
considerations of public interest. See Nevada Contractors v. Washoe County, 106 Nev. 310,
792 P.2d 31 (1990).
[Headnote 3]
We are thus left with the single issue that faced the court below, namely, whether the
Council's rejection of Von Goerken's application for a liquor permit constituted an abuse of
the Council's broad discretionary powers.
The district court found that the Council had manifestly abused its discretion by basing its
decision entirely on opinions of Council members which, the court determined, did not
constitute substantial evidence. We do not entirely agree. Although it is true that the only
form of evidence supplied to the Council was the statement of Councilman Higginson, it is
clear that a critical aspect of the statement was not in the form of an opinion. Specifically, the
councilman reminded the Council of the fact of the residential nature of the entire area
surrounding the proposed tavern. Moreover, Councilman Higginson noted that the location
was in the heart of a residential area to an even greater extent than another specified location
(Michael Way at Vegas) where a tavern license had been denied because of the residential
nature of the neighborhood.
Von Goerken at no time controverted the fact that the intended location fell in the midst of
a residential area. Members of the Council were elected by their constituents in the City of
Las Vegas to represent them in protecting and promoting the public good. In this instance, the
Council exercised the equivalent of judicial notice in recognizing the actual environment
surrounding the proposed tavern site. The Council thereafter exercised its discretion on behalf
of the City's best interests, as the members of the Council unanimously perceived them to be.
Under these circumstances, we are unable to conclude, despite the abbreviated proceedings
and testimony, that the Council abused its discretion. The record does not reflect
discrimination against Von Goerken in favor of some other applicant, or mere speculation
concerning the compatibility of the proposed tavern with its surrounding environment. The
Council had before it irrefutable evidence of the nature of the neighborhood into which Von
Goerken wished to introduce a tavern.
the nature of the neighborhood into which Von Goerken wished to introduce a tavern.
Councilman Higginson also had the benefit of specific knowledge attributable to the fact that
the proposed tavern site was situated within his district.
Despite our conclusion that the record does not evince a clearly arbitrary and capricious
decision by the Council, it is nevertheless apparent that the Council acted without the benefit
of a reasonably developed evidentiary or factual presentation. We are convinced that when
private property is denied the uses for which it is zoned, any such denial must be based upon
meaningful, reasonably complete factual information.
Although we are unable to conclude that the Council's decision represents a basis for
judicial intervention in the form of mandamus, we do conclude that the evidentiary basis for
the Council's action was inadequate. Therefore, a new public hearing will be necessary in
order for the Council to fully consider factual information pertaining to the impact or effect of
Von Goerken's application for a tavern liquor license. Von Goerken is to be given lawful
notice of the meeting to allow him sufficient opportunity to gather evidence in support of his
application.
CONCLUSION
For the reasons specified above, we conclude that the district court erred in finding that the
Council had manifestly abused its discretion in denying Von Goerken's request for a liquor
permit. Accordingly, the orders issued below are vacated. Nevertheless, we remand this
matter to the district court with instructions to order the Council to schedule a new public
hearing, as stated above, in the event Von Goerken elects to again present his application to
the Council for consideration.
Mowbray, C. J., Springer and Rose, JJ., concur.
Respectfully, I dissent. The majority admits that the testimony before the Council was
insufficient but refuses to take the next stepwhich would seem to followand hold that the
Council abused its discretion in denying the license. Specifically, my colleagues acknowledge
that the Council acted without the benefit of a reasonably developed evidentiary or factual
presentation. Their opinion then concludes that the Council's decision calls for a new public
hearing in order for the Council to fully consider factual information pertaining to the impact
or effect of Von Goerken's application for a liquor license.
I submit the foregoing rationale is a somewhat euphemistic way of reluctantly recognizing
that the action of the Council was, in fact, wrong because it was arbitrary and capricious. If
they recognize that the decision was not supported by substantial evidence, it must
inexorably follow then that there was an abuse of discretion.
recognize that the decision was not supported by substantial evidence, it must inexorably
follow then that there was an abuse of discretion.
This court has clearly said that there must be substantial evidence in the record for us to
uphold the decision of a licensing body. City Council, Reno v. Travelers Hotel, 100 Nev. 436,
439, 683 P.2d 960, 962 (1984); Henderson v. Henderson Auto, 77 Nev. 118, 123, 359 P.2d
743, 745 (1961). Here, the only evidence before the Council was Councilman Higginson's
opinion that he would never support a bar in this commercially-zoned location because it was
in the heart of a residential area.
A board member's opinion may be considered as one factor in the licensing body's
determination. McKenzie v. Shelly, 77 Nev. 237, 240-41, 362 P.2d 268, 269-70 (1961).
However, statements by interested parties or their counsel and opinions of council members
alone do not justify the denial of a special use permit. Travelers Hotel, 100 Nev. at 439, 683
P.2d at 961.
Clearly, in this case, there was not substantial evidence upon which to base the denial of a
license to Von Goerken. I respectfully submit that the City Council should not be given
another bite at the apple. There is no precedent for such preferential treatment and we should
not create one in this case.
If substantial evidence does not exist to support the determination, we have repeatedly
upheld the issuance of a writ of mandamus, compelling the licensing body to issue the
license. Id. at 436, 683 P.2d at 960; County of Clark v. Atlantic Seafoods, 96 Nev. 608, 615
P.2d 233 (1980); State ex rel. Johns v. Gragson, 89 Nev. 478, 515 P.2d 65 (1973);
Henderson, 77 Nev. at 118, 359 P.2d at 743 (1961). In Atlantic Seafoods, we stated:
Mandamus is an appropriate remedy when discretion is exercised arbitrarily or
capriciously. Atlantic Seafoods, 96 Nev. 611, 615 P.2d at 235 (citations omitted). In
Gragson, we ordered the district court to issue a writ of mandamus to the Las Vegas Zoning
Board of Adjustment compelling it to reinstate a home occupation permit. Gragson, 89 Nev.
483, 515 P.2d at 68.
It has been well said, Of all the words of tongue or pen, the saddest are, it might have
been. Opponents of issuing a license to Von Goerken might have offered more evidence to
support denialbut they did not. Sending the case back for more testimony would probably,
in baseball parlance, be a soft pitchwith a very predictable result.
I cannot agree with my colleagues that it is appropriate to afford the City Council in this
case a second opportunity to justify its action. When we reverse a criminal conviction for
insufficient evidence, we do not send the case back so the State can regroup and charge again.
In a workmen's compensation case, we do not send an arbitrary denial of benefits back so
that SIIS may have a still further opportunity to buttress its denial.
send an arbitrary denial of benefits back so that SIIS may have a still further opportunity to
buttress its denial.
In the case before us, the Council's action was arbitrary and capricious because,
admittedly, it was not based on substantial evidence. Our proper course is not to send it back
but to uphold the district court's writ of mandamus, which compels the Council to issue the
license.
Justice Cardozo stated, One of the most fundamental social interests is that the law shall
be uniform and impartial. There must be nothing in its action that savors of prejudice or favor
or even arbitrary whim or fitfulness. Therefore in the main there shall be adherence to
precedent. The Nature of the Judicial Process 112 (1922).
I respectfully submit that by sending the case back for additional testimony, we depart
from sound precedent and create bad precedent. Therefore, I cannot join my colleagues in
holding that: (1) the district court erred; and (2) the Council should have another chance to
undergird the denial.
____________
108 Nev. 446, 446 (1992) Kogan v. Silver King Mines, Inc.
MARY ELLEN KOGAN, as Administratrix of the Estate of CLAUDE A. GARDNER, aka
C.A. GARDNER and CLAUDIUS ALONZO GARDNER, Deceased,
Appellant/Cross-Respondent, v. SILVER KING MINES, INC., a Nevada Corporation;
NERCO MINERALS COMPANY, an Oregon Corporation; and ZANDER MINING,
INC., a Washington Corporation, Doing Business in Nevada as AGNEW
ENTERPRISES, Respondents/Cross-Appellants.
No. 21164
July 10, 1992 833 P.2d 1141
Appeal and cross-appeal from final judgment of the district court in a civil action. Seventh
Judicial District Court, White Pine County; Llewellyn A. Young, Judge.
Appeal and cross-appeal were taken from final judgment of the district court in trespass
action. The supreme court held that: (1) claimant failed to establish prima facie case showing
that lode mining claim constituted valid mining claim senior to mining companies' mill site
located on claim, and (2) instructions on adverse possession were insufficient to address
permissive use, warranting new trial.
Affirmed in part; reversed in part and remanded for a new trial.
Matthews & Wines, Elko, and Jack M. Merritts, Englewood, Colorado, for
Appellant/Cross-Respondent.
Nathan M. Jenkins, Reno, for Silver King Mines, Inc. and Zander Mining, Inc.
Hill, Cassas & deLipkau, Reno, for Nerco Minerals Company.
1. Mines and Minerals.
Claimant failed to establish prima facie case showing that lode mining claim, on which mill site was situated, constituted valid
mining claim senior to mill site, notwithstanding recorded certificate of location for mining claim, where claimant failed to present
evidence sufficient to show discovery of valuable minerals on claim site. NRS 517.360.
2. Mines and Minerals.
Instructions requiring continuous, open, and notorious use and requiring exclusion of all others were insufficient to address
issue of permissive use, warranting new trial.
OPINION
Per Curiam:
In 1959, Claude A. Gardner located a group of lode mining claims in the Taylor Mining
District, White Pine County, Nevada, known as Mineral Farm 5, Star 3, Silver King 1, Silver
King 2, Silver King 3, and Silver King 4 (the Gardner Claims). On January 6, 1961,
Gardner executed a five-year lease-sale agreement (1961 Agreement) with Durham Peanut
Company covering the Gardner Claims. Gardner died intestate on September 6, 1961, and his
eldest daughter, Dorcas Richards, was appointed administratrix of his estate.
In 1964 Durham Peanut assigned its interest in the 1961 Agreement and the Gardner
claims to Silver King Mines, Inc. (Silver King). Dorcas Richards, acting on behalf of the
Claude Gardner Estate (the Estate), executed a document in January, 1964, entitled
Extension of Lease and Sublease which purportedly extended the 1961 Agreement to July
15, 1969.
On May 29, 1969, Silver King executed an agreement (1969 Agreement) which
stipulated that Dorcas Richards would receive no more lease or royalty payments from Silver
King until all rights to the Gardner Claims were properly conveyed and delivered, with the
approval of the probate court, to Silver King. No transfer of deeds or probate court approval
of the transfer of the rights to Silver King was ever effectuated by the Estate.
In 1973, Silver King drilled exploration holes on the Gardner claims. From 1973 until
1977, the property was explored fairly continuously during the summer months.
continuously during the summer months. In September of 1979, Silver King, in conjunction
with Agnew Enterprises, began construction of a mill partially on the Taylor Millsite. The
five-acre Taylor Millsite is contained within the boundaries of the twenty-acre Mineral Farm
No. 5. Silver King completed construction of the mill and began mining the surrounding
property in 1980. Sometime before 1985, parts of the Gardner Claims were also mined.
From May 29, 1969, until at least 1984, all parties treated the 1969 Agreement as a valid
contract. Dan Bushnell, counsel for Silver King, testified that the first instance in which
Silver King had any indication that it did not have a right to treat the mining claims as its own
was December 12, 1984, when it received a letter from attorney Gary Fairman, representing
the Gardner estate.
Dorcas Richards, in her capacity as Administratrix of the Estate of Claude A. Gardner,
commenced the instant action against respondents Silver King, Nerco Minerals Company,
and Zander Mining, Inc. dba Agnew Enterprises (Mining Companies) alleging that the
Mining Companies were trespassing on mining claims belonging to the Estate. In March of
1986, appellant Mary Ellen Kogan succeeded Dorcas Richards as Administratrix of the
Estate.
In answering the Estate's complaint, the Mining Companies alleged that they lawfully
occupied the mining claims pursuant to the 1969 purchase agreement or, in the alternative,
that they acquired title to the mining claims through adverse possession or equitable estoppel.
Before trial, the district court declared the 1969 Agreement invalid.
In addition to the complaint, the Estate, through Kogan, also filed a motion seeking to
have the district court declare the Taylor Millsite void and to eject the Mining Companies
from that site. The district court denied Kogan's motion and granted the Mining Companies'
NRCP 41(b) motion for involuntary dismissal of Kogan's ejectment claim. The lower court
also determined that the Taylor Millsite was a valid claim built on non-mineral land.
Following the close of evidence at trial, the jury found, by special verdict, that the Mining
Companies had met their burden of establishing adverse possession. The court awarded the
Mining Companies their costs and attorney's fees in the amount of $250.00. In addition, the
district court held that the Taylor Millsite was a valid mill site and that Mineral Farm No. 5,
on which the mill site was situated, was null and void, for lack of discovery of a deposit of
valuable minerals within its boundaries.
Discussion
[Headnote 1]
Kogan contends that she presented a prima facie case upon which the jury could grant
relief and that the district court erred in granting the Mining Companies' 41(b) motion
dismissing Kogan's claim for ejectment. Kogan argues that NRS 517.360 provides that a
recorded certificate of location is prima facie evidence of the discovery of minerals in place.
1
The certificate of location for Mineral Farm No. 5 provides that Claude A. Gardner located a
mining claim in Taylor Mining District, County of White Pine, State of Nevada, on a vein or
lode known as the Mineral Farm #5. Kogan argues that the admitted certificate of location
established a prima facie case that Mineral Farm No. 5 was properly located with a valuable
discovery of minerals and was senior to the Taylor Millsite.
The Mining Companies respond that the Mineral Farm No. 5 lode claim and the Taylor
Millsite could not both be valid. A mill site can only be located on non-mineral land, and a
lode claim is only valid if a discovery of ore deposits is located on the land addressed by the
lode claim. The Mining Companies contend that the recorded certificate of location does not
establish discovery. Finally, the Mining Companies argue that Kogan failed to establish an
actual mineral discovery on the land, by direct evidence, as required by Cole v. Ralph, 252
U.S. 286, 303-07 (1920).
In granting the 41(b) motion filed by the Mining Companies, the trial court found that the
irrefuted testimony of record showed that in all five holes drilled on Mineral Farm No. 5, no
minerals were found in any more than trace amounts. Because Kogan failed to present
evidence sufficient to show a discovery of valuable minerals, Kogan failed to establish a
prima facie case showing that Mineral Farm No. 5 constituted a valid mining claim. The
district court did not err in granting the Mining Companies' 41(b) motion.
[Headnote 2]
Next, Kogan contends that the district court failed to adequately instruct the jury on the
law of adverse possession.
__________

1
Records of mining claims, mill sites or tunnel rights made by mining district recorder or county recorder
before March 16, 1897, declared valid; evidentiary effect of record.
1. All records of lode or placer mining claims, mill sites or tunnel rights made by any mining district
recorder or any county recorder prior to March 16, 1897, are hereby declared to be valid and to have the
same force and effect as records made in pursuance of the provisions of NRS 517.010 to 517.280,
inclusive.
2. Any such record, or a copy thereof duly verified by a mining district recorder or duly certified by a
county recorder, shall be prima facie evidence of the facts therein stated.
quately instruct the jury on the law of adverse possession. We agree and conclude that a new
trial is warranted as a result. Kogan's position is that under the peculiar facts of the instant
case, instructions 23, 23A, and 24 did not fully instruct the jury on the essential elements of
adverse possession.
2
Kogan therefore sought the trial court's approval to add the following
instruction, which the court below rejected:
Adverse PossessionElement of Repudiation
Possession that is initially by the permission of the Gardner Estate or under some
right or authority derived from the Estate may not become hostile and adverse until that
permission or authority has been clearly rejected or repudiated by the Defendants. The
necessary repudiation or rejection of the Plaintiff's title must be made directly to the
Plaintiff [citation omitted].
Kogan contends that the Mining Companies' possession was the permissive result of the
purchase contract between the Estate and the Mining Companies. There can be no adverse
possession if that possession is with the permission of the owner of the property. 25
Corporation, Inc. v. Eisenman Chemical, 101 Nev. 664, 674, 709 P.2d 164, 171 (1985).
Kogan further argues that because the Mining Companies took possession permissively under
the contract, it was necessary to instruct the jury that an essential element of the adverse
possession claim required a finding, based upon the evidence, that the Mining Companies
gave notice to the owner of record that the Mining Companies were rejecting and repudiating
the contract, and intended to continue in possession of the property under conditions that
were open, hostile and without permission, See Walter v. Jones, 154 N.E.2d 250, 252 {Ill.
195S) {Permissive possession does not become hostile possession until the permission or
authority has been clearly repudiated); Lovejoy v. School Dist. No. 46 Sedgwick County,
269 P.2d 1067, 1069 {Colo.
__________

2
The instructions given by the trial court provide:
23. Continuous, open and notorious adverse possession of a mining claim for two years or more
causes title of the claim to vest in the adverse possessor. When one acquires title to an unpatented mining
claim through adverse possession it is deemed that he had legal title to the claim from the beginning of
his possession.
23A. Possession to be adverse must be inconsistent with the title of the record owner who is out of
possession and of such character as to operate as notice what possession is held under either a claim of
right or color of title.
Claim of right and color of title are not synonymous. Claim of right means nothing more than the
intention of the adverse claimant to appropriate and use the lands in exclusion of all others. Color of title
on the other hand is that which gives semblance or appearance of title but which is not title in fact.
24. To meet their burden of proof to establish their claim of adverse possession, defendants must
prove the adverse possession by clear and convincing evidence. Title by adverse possession cannot be
made out by inference.
open, hostile and without permission. See Walter v. Jones, 154 N.E.2d 250, 252 (Ill. 1958)
(Permissive possession does not become hostile possession until the permission or authority
has been clearly repudiated); Lovejoy v. School Dist. No. 46 Sedgwick County, 269 P.2d
1067, 1069 (Colo. 1954).
The Mining Companies counter with the proposition that to accomplish a change in status
from a permissive user to an adverse user, only constructive notice is required, and that open,
continuous and notorious acts to the exclusion of the true owner establish constructive notice.
The Mining Companies also contend that the jury instructions clearly and sufficiently set
forth the law of adverse possession. Specifically, they argue that Instruction 23, requiring
continuous, open, and notorious use and 23A requiring the exclusion of all others,
sufficiently address the change in status from a permissive user to an adverse user. At least in
the context of the instant case, we cannot agree. It is not apparent from the record that the jury
had any basis for finding, or even focusing upon, a repudiation or rejection of the purchase
contract by the Mining Companies as a necessary predicate to an award based upon the theory
of adverse possession.
Instructions on every aspect of the case must be given clearly, simply and concisely, in
order to avoid misleading the jury or in any way overemphasizing either party's case. Roland
v. State, 96 Nev. 300, 302, 608 P.2d 500, 501 (1980). Because the district court did not give
jury instructions that clearly address permissive use, the trial court erred in not adequately
instructing the jury.
We have reviewed and considered the other issues raised on appeal and cross-appeal and
conclude that they are without merit.
For the reasons stated above, we affirm the district court's dismissal of Kogan's ejectment
claim and reverse the judgment of the district court quieting title in favor of the Mining
Companies based on the jury's finding of adverse possession, and we remand this matter for a
new trial consistent with this opinion. In addition, because the Mining Companies are no
longer the prevailing parties, we reverse the district court's award of attorney fees.
Mowbray, C. J., Springer, Rose and Steffen, JJ., and Agosti, D. J.,
3
concur.
__________

3
The Honorable Deborah A. Agosti, Judge of the Second Judicial District Court, was designated by the
Governor to sit in the place of The Honorable Cliff Young, Justice. Nev. Const., art. 6, 4.
____________
108 Nev. 452, 452 (1992) Lublin v. Weber
SETH LUBLIN, Appellant/Cross-Respondent, v. MICHAEL WEBER,
No. 21906
July 10, 1992 833 P.2d 1139
Appeal from an order denying the appellant additur or, in the alternative, a new trial on the
issue of damages. Cross-appeal from the district court's denial of attorney's fees to
respondent. Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
Personal injury action was filed arising out of automobile accident. The district court
denied plaintiff's motion for additur or, an alternative, new trial on issue of damages. Plaintiff
appealed. The supreme court held that: (1) evidence did not support submitting issue of
failure to mitigate damages to jury, and (2) mitigation of damages instruction was erroneous
as matter of law.
Vacated in part, reversed in part and remanded.
Peter L. Flangas, Las Vegas, for Appellant/Cross-Respondent.
Beckley, Singleton, DeLanoy, Jemison & List, Elizabeth Goff Gonzalez and Daniel F.
Polsenberg, Las Vegas, for Respondent/Cross-Appellant.
1. Damages.
Evidence that plaintiff stopped taking anti-inflammatory muscle relaxants prescribed by physician because they aggravated his
ulcer did not justify submitting issue of failure to mitigate damages to jury in personal injury action.
2. Damages.
Instruction on mitigation of damages in personal injury action was erroneous as matter of law, where instruction did not clearly
inform jury that defendant was required to prove that plaintiff failed to use reasonable diligence in mitigating its damages.
OPINION
Per Curiam:
Facts
On March 18, 1986, Seth Lublin (Lublin) and Michael Weber (Weber) were involved in
an automobile accident. Lublin brought suit against Weber alleging negligence. At trial,
Lublin testified that he saw his physician, Dr. Rojas, three times in the first month after the
accident and that his doctor recommended physical therapy. He went to therapy 170 times
from April or May 19S6 to September 19S7.
1986 to September 1987. The jury returned a verdict in favor of Lublin for $8,000 which was
reduced by ten percentthe percentage which Lublin was at fault in causing the accident.
Judgment on the verdict was entered for $7,200. Lublin moved for additur or, in the
alternative, a new trial on the issue of damages, arguing that the jury was instructed on the
issue of mitigation of damages in error. The district court denied Lublin's motion. Weber
moved for an award of attorney's fees and cost. The court awarded Weber costs, but denied
him attorney's fees. Lublin appeals the denial of his motion for additur or a new trial on
damages. Weber appeals the denial of attorney's fees.
Mitigation of Damages
[Headnote 1]
Dr. Rojas testified that in August 1986, he prescribed anti-inflammatory muscle relaxants
for Lublin. Lublin tried the pills, but they made his heart speed up and aggravated his ulcer.
Lublin informed Dr. Rojas that he did not want to take the pills and told him of the side
effects he was experiencing. Several different types of medication were prescribed for Lublin,
but none of them agreed with him.
Over Lublin's objection, the district court allowed a jury instruction on mitigation of
damages. The district court accepted Weber's argument that there was an issue regarding
whether Lublin failed to mitigate his pain and suffering damages by refusing to take the
muscle relaxants.
This court has considered mitigation of damages in Automatic Merchandisers, Inc. v.
Ward, 98 Nev. 282, 646 P.2d 553 (1982). There, we stated:
It is unquestioned that an injured person cannot recover for damages which could have
been avoided by the exercise of reasonable care. . . . When there is evidence that a
plaintiff may have failed to exercise the reasonable care required to promote recovery,
it also has been held that the defendant is entitled to an instruction to that effect, upon
request.
Id. at 284, 646 P.2d at 554 (emphasis added). In Automatic Merchandisers, the respondent's
physician recommended surgery, which she declined. Id. at 283, 646 P.2d at 554. By the time
of trial, three years after she was injured, her condition improved to the point where surgery
was no longer indicated. Id. We held that an instruction on mitigation of damages was not
warranted because the appellant had failed to present evidence that the respondent's
disinclination to undergo surgery was unreasonable. Id. at 284, 646 P.2d at 555.
In support of his argument that Lublin failed to mitigate his pain and suffering damages,
Weber argues that Dr.
pain and suffering damages, Weber argues that Dr. Rojas testified that Lublin would have had
less pain if he took his medication. We disagree with Weber's characterization of the
evidence. Dr. Rojas testified that muscle relaxants are prescribed to speed the process of
healing and to help a patient feel better. However, Dr. Rojas stated that a patient would get
better on his own if the medication was not taken. Further, Dr. Rojas testified that he did not
insist that Lublin take the medication because of the irritation to Lublin's ulcer. Weber did not
call his own witness to testify that Lublin's pain and suffering would have been less severe if
he took the medication. Weber also did not elicit any such testimony from Dr. Rojas.
There was no evidence admitted at trial which supported submitting the issue of failure to
mitigate damages to the jury. Weber did not present any evidence which called the
reasonableness of Lublin's actions into question. Therefore, the district court erred in giving
the instruction on mitigation of damages.
[Headnote 2]
Even if evidence had been adduced at trial which would have supported giving the
instruction, we conclude that the instruction did not accurately inform the jury of the law. The
instruction did not allocate the burden of proof to the defendant.
The controlling case regarding an instruction on mitigation of damages is Silver State
Disposal v. Shelley, 105 Nev. 309, 774 P.2d 1044 (1989). There, this court considered the
following jury instruction:
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.
Id. at 310 n.1, 774 P.2d at 1045 n.1. This court held that the instruction was a misstatement of
the law, because it did not allocate the burden of proof to the defendant and suggested that the
plaintiff was duty bound to prove that she had mitigated her damages. Id. at 312, 774 P.2d at
1046.
In the case at hand, the following instruction on mitigation of damages was given:
It is the duty of a person who has been injured to use reasonable diligence in caring
for his injuries and reasonable means to prevent their aggravation to accomplish
healing.
When one does not use reasonable diligence to care for his injuries, and they are
aggravated as a result of such failure, the liability, if any, of another whose act or
omission was a proximate cause of the original injury, must be limited to the
amount of damage that would have been suffered if the injured person himself had
exercised the diligence required of him.
the liability, if any, of another whose act or omission was a proximate cause of the
original injury, must be limited to the amount of damage that would have been suffered
if the injured person himself had exercised the diligence required of him.
According to the standard set in Silver State Disposal, the instruction was erroneous as a
matter of law. The instruction did not clearly inform the jury that the defendant was required
to prove that the plaintiff failed to use reasonable diligence in mitigating his damages.
1

Conclusion
The instruction was not supported by the evidence and misstated the law. Additur or, in
the alternative, a new trial on the issue of damages is therefore warranted. Consequently, it is
not necessary to reach the remaining issues on appeal nor the issue presented on cross-appeal.
We vacate the award of damages to Lublin, reverse the award of costs to Weber, and
hereby remand this case for additur or, alternatively, a new trial on the issue of damages only.
Springer, A. C. J., Rose, Steffen and Young, JJ., and Sullivan, D. J.,
2
concur.
__________

1
Weber argues that because Lublin did not proffer a more detailed instruction, he waived an objection to the
content of the instruction. Weber cites to City of Reno v. Silver State Flying Service, Inc., 84 Nev. 170, 438
P.2d 257 (1968). The situation in Silver State Flying Service, Inc. is inapposite. There, this court stated that
because the plaintiff had not requested an instruction on the question of present cash value, it could not complain
on appeal that the district court failed to give the instruction. Id. at 180, 438 P.2d at 264. Whether Lublin did or
did not waive his objection to the instruction is immaterial, as the instruction was erroneous as a matter of law
and constitutes reversible error in this case.

2
The Honorable Jerry V. Sullivan, Judge of the Sixth Judicial District Court, was designated by the
Governor to sit in place of The Honorable John C. Mowbray, Chief Justice. Nev. Const., art. 6, 4.
____________
108 Nev. 456, 456 (1992) State, Gaming Comm'n v. GNLV Corp.
THE STATE OF NEVADA and NEVADA GAMING COMMISSION, Appellants, v. GNLV
CORPORATION, dba GOLDEN NUGGET HOTEL AND CASINO, Respondent.
No. 22230
July 10, 1992 834 P.2d 411
Appeal from district court decision and order reversing the State Gaming Commission's
decision to assess gross revenue fees against respondent. Eighth Judicial District Court, Clark
County; John S. McGroarty, Judge.
Licensee sought review of Gaming Commission decision disallowing deductions for
payouts upon redemption of certificates purchased with tickets awarded for each $75.00
placed in slot machine. The district court reversed. State and Commission appealed. The
supreme court held that payouts were not result of legitimate wager and, therefore, could not
be deducted as loss.
Reversed.
Frankie Sue Del Papa, Attorney General, Carson City, Lisa S. Miller, Deputy Attorney
General, Las Vegas, for Appellants.
Schreck, Jones, Bernhard, Woloson & Godfrey, and Joanne Beckett, Las Vegas, for
Respondent.
1. Gaming.
Licensee's payouts upon redemption of certificates purchased with tickets awarded for each $75.00 placed in slot machines were
not result of legitimate wager and, therefore, could not be deducted as loss in calculating gross revenue from slot machines. NRS
463.3715, subd. 2.
2. Gaming.
Prize differs from wager in that person offering prize must permanently relinquish prize upon performance of specified act; in
wager, each party has chance of gain and takes risk of loss.
Administrative agency is not required to promulgate regulation where regulatory action is taken to enforce or implement necessary
requirements of existing statute.
4. Administrative Law and Procedure; Gaming.
Gaming Commission did not engage in ad hoc rule making when it enforced plain dictates of statute by not allowing licensee to
deduct payouts upon redemption of certificates purchased with tickets awarded for each $75.00 placed in slot machines. NRS
463.3715, subd. 2.
OPINION
Per Curiam:
Respondent, GNLV Corp. dba The Golden Nugget Hotel and Casino {"Golden Nugget"),
devised and operates a program known as the "24 Karat Club."
Casino (Golden Nugget), devised and operates a program known as the 24 Karat Club.
The 24 Karat Club is a program in which enrolled patrons (club members) automatically
receive a fifty-cent ticket each time the last dollar of a total of $75.00 is placed in certain
designated slot machines. After the patron wagers the 75th dollar, the slot machine dispenses
a ticket worth fifty cents toward the purchase of a gold certificate. Gold certificates may be
redeemed for gaming tokens, cash, room rental, food, beverages or merchandise. The slot
machines dispense the fifty-cent tickets irrespective of gains or losses resulting from the play
involved in each $75.00 increment.
Appellant Nevada Gaming Commission (Commission) disallowed deductions claimed
by the Golden Nugget for payouts resulting from the redemption of Gold Certificates for
tokens and cash. On judicial review, the district court reversed the Commission's decision.
The lower court reasoned that under the terms of NRS 463.3715(2),
1
The Golden Nugget's
24 Karat Club losses were the result of a legitimate wager. The district court also concluded
that the Commission's decision constituted unauthorized ad hoc rule-making.
DISCUSSION
[Headnote 1]
The Commission argues that any losses by the Golden Nugget associated with the
redemption of Gold Certificates are not the result of a legitimate wager as required by the
plain language of NRS 463.3715(2). Instead, the Commission contends that the Golden
Nugget's distribution of fifty-cent tickets to its patrons is a prize resulting from a patron's
agreement to wager $75.00. See Las Vegas Hacienda v. Gibson, 77 Nev. 25, 28, 359 P.2d 85,
86 (1961) (a wager offers each party a chance of gain or loss, whereas the party offering a
prize must lose what is offered upon performance of a specified act).
The Golden Nugget insists that Gold Certificate redemptions for tokens or cash may be
deducted as a loss pursuant to NRS 463.3715(2), or in the alternative, that the Commission's
ruling constituted impermissible ad hoc rule-making because the Commission extended the
meaning of NRS 463.3715(2) without formally promulgating a regulation.
[Headnote 2]
A wager exists when two or more contracting parties hav[e] mutual rights in respect
to the money [wagered] . . . and each of the parties necessarily risks something, and has
a chance to make something upon the happening or not happening of an uncertain
event."
__________

1
In calculating gross revenue from slot machines, the actual cost to the licensee of any personal
property distributed to a patron as the result of a legitimate wager may be deducted as a loss, but not
travel expenses, food, refreshments, lodging or services.
hav[e] mutual rights in respect to the money [wagered] . . . and each of the parties necessarily
risks something, and has a chance to make something upon the happening or not happening of
an uncertain event. Las Vegas Hacienda, 77 Nev. at 28, 359 P.2d at 86. A prize differs from
a wager in that the person offering the prize must permanently relinquish the prize upon
performance of a specified act. Id. In a wager, each party has a chance of gain and takes a
risk of loss. Id. Golden Nugget's distribution of fifty-cent tickets is mandated by a contract
between the Golden Nugget and its 24 Karat Club members, and is not in any sense
dependent upon the result of a legitimate wager.
[Headnotes 3, 4]
Moreover, an administrative agency is not required to promulgate a regulation where
regulatory action is taken to enforce or implement the necessary requirements of an existing
statute. K-Mart Corp. v. SIIS, 101 Nev. 12, 17, 693 P.2d 562, 565 (1985). An administrative
construction that is within the language of the statute will not readily be disturbed by the
courts. Dep't of Human Res. v. UHS of The Colony, Inc., 103 Nev. 208, 211, 735 P.2d 319,
321 (1987). The Commission did not engage in ad hoc rule-making because the Commission
did not expand the scope of the statute, but merely enforced the requirements of NRS
463.3715(2) in accordance with the plain dictates of the statute.
For the reasons specified above, we reverse the decision and order entered in the court
below, and direct the district court to reinstate the Commission's decision.
Mowbray, C. J., Springer, Steffen and Young, JJ., and Lane, D. J.,
2
concur.
__________

2
The Honorable Mills Lane, Judge of the Second Judicial District Court, was designated by the Governor to
sit in the place of The Honorable Robert E. Rose, Justice. Nev. Const., art. 6, 4.
____________
108 Nev. 459, 459 (1992) Marshall v. District Court
EDWARD G. MARSHALL, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, in and for the County of Clark; and THE
HONORABLE J. CHARLES THOMPSON, District Judge, Respondents, and CITY
OF HENDERSON and HENDERSON POLICE DEPARTMENT, Real Parties in
Interest.
No. 21912
MARY MAZIAR, Appellant, v. THE CITY OF HENDERSON and HENDERSON POLICE
DEPARTMENT; CHARTER HOSPITAL OF LAS VEGAS, INC., a Corporation,
MERCY AMBULANCE, INC., a Corporation, Respondents.
No. 22196
EDWARD G. MARSHALL, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, in and for the County of Clark; and THE
HONORABLE J. CHARLES THOMPSON, District Judge, Respondents, and
MERCY AMBULANCE, INC., Real Party in Interest.
No. 22242
July 10, 1992 836 P.2d 47
Petitions for writs of certiorari and appeal from orders, certified as final pursuant to NRCP
54(b), granting summary judgment in favor of respondents.
1
Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
Woman who was admitted on emergency basis to hospital on suspicion that she was
mentally ill and posed a danger brought action against hospital, ambulance service, city, and
police officers alleging that they forcibly entered her home and caused her to be hospitalized
against her will. The district court granted summary judgment to hospital, ambulance service,
and police officers and imposed Rule 11 sanctions against woman's attorney. Petitions for
writs of certiorari challenging those orders were filed. The supreme court held that: (1)
hospital had statutory authority to admit woman on emergency basis; {2) ambulance
service had authority to participate in emergency admission; {3) city and police
department enjoyed qualified immunity from liability; and {4) Rule 11 sanctions would
not be imposed on woman's attorney.
__________

1
This matter was originally docketed in this court to reflect that Paul Maziar, also known as Jack London,
was a respondent in docket number 22196. The orders granting summary judgment at issue in docket number
22196, however, were entered in favor of the City of Henderson, the Henderson Police Department, Charter
Hospital of Las Vegas, Inc., and Mercy Ambulance, Inc., and did not resolve appellant Mary Maziar's claims
against Paul Maziar. Accordingly, we have modified the caption in docket number 22196 by deleting Paul
Maziar as a respondent.
authority to admit woman on emergency basis; (2) ambulance service had authority to
participate in emergency admission; (3) city and police department enjoyed qualified
immunity from liability; and (4) Rule 11 sanctions would not be imposed on woman's
attorney.
Affirmed in part; reversed in part; petitions granted.
Edward G. Marshall, Las Vegas, for Petitioner Marshall and Appellant Maziar.
Rex Bell, District Attorney, Clark County, for Respondent County of Clark.
Shauna Hughes, Henderson City Attorney, and Ronald Sailon, Deputy City Attorney,
Henderson, for Real Parties in Interest and Respondent City of Henderson and Henderson
Police Department.
Hafen & Mayor, Las Vegas, for Respondent Charter Hospital of Las Vegas, Inc.
Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas, for
Respondent and Real Party in Interest Mercy Ambulance, Inc.
1. Mental Health.
Hospital's emergency admission of woman for period not in excess of seventy-two hours was appropriate; hospital was summoned
to residence by husband who was presumably an owner of residence, police were already present, woman had abrasions on her body
and house was in disarray, her children were outside because they feared confrontation with her, woman admitted she was shocked and
angry at time of arrival of hospital personnel, she was periodically taking approximately nineteen medications designed to relieve and
control emotion and psychiatrist stated in his emergency admission certificate application that he felt woman presented danger to
others. NRS 433A.115, 433A.150.
2. Mental Health.
Ambulance service was authorized under statute to transport woman suspected of having mental health problems to hospital and it
had no discretion to conduct its own evaluation and could not be held liable to woman for its conduct; nurse took woman into custody,
applied for her admission to hospital and arranged for ambulance service to transport her to hospital, and psychiatrist at hospital
evaluated her and approved emergency admission because of the likelihood that she would harm others. NRS 433A.160, 433A.160,
subd. 5, 433A.170.
Statute providing immunity to public officers and employees who transport or deliver, assist in transporting or delivering, detain or
assist in detaining any mentally ill person provided city and police officers with qualified immunity from liability in action brought by
woman alleging false imprisonment; officers responded to call for assistance and acted under belief that woman was
mentally ill and in need of confinement; woman did not allege any negligence causing bodily harm, bad
faith or malice which would have defeated immunity.
under belief that woman was mentally ill and in need of confinement; woman did not allege any negligence causing bodily harm, bad
faith or malice which would have defeated immunity. NRS 433A.470.
District court abused its discretion in issuing Rule 11 sanctions against plaintiff's attorney; attorney was attempting in good faith
to have district court recognize new cause of action for invasion of right to privacy. NRCP 11.
Rule 11 sanctions are not intended to chill attorney's enthusiasm or creativity in reasonably pursuing factual or legal theories and
court should avoid employing wisdom of hindsight and analyzing attorney's action at time of pleading. NRCP 11.
6. Mandamus.
Writ of mandamus will issue to control court's arbitrary or capricious exercise of discretion.
OPINION
Per Curiam:
Facts
These consolidated matters involve two petitions for writs of certiorari challenging district
court orders imposing sanctions against petitioner Edward G. Marshall and an appeal from
orders of the district court, certified as final pursuant to NRCP 54(b), granting summary
judgment in favor of respondents.
On June 21, 1988, Mary Maziar (Maziar) was served at home with divorce papers initiated
by her husband, Paul. When Maziar threatened to shoot Paul, he called Charter Hospital
(Charter) and asked for a clinical evaluation team to come to their residence. Henderson
police stood by while the Charter personnel performed the evaluation. Registered Nurse Jean
Richardson filled out an application for the emergency hospitalization of a mentally ill
person, in which she wrote that she had reason to believe that Maziar was mentally ill. Nurse
Richardson also stated that Maziar was likely to injure someone if she was not immediately
detained. Her report further stated that plants had been thrown around the house, that doors in
the home had been torn off of their hinges, and that Maziar had left her children unattended
outside.
After the evaluation and the decision to commit Maziar, the Charter personnel summoned
Mercy Ambulance (Mercy) to the home and instructed Mercy to take Maziar to the Charter
Hospital Psychiatric Unit. One of the Mercy attendants told Maziar that if she did not
voluntarily go with them, she would have to be physically restrained. Maziar went with
Mercy and was admitted to Charter that morning. That same afternoon Dr. Brewer, a
psychiatrist, examined Maziar and noted that she presented a danger to others and had a
history of mental illness.
psychiatrist, examined Maziar and noted that she presented a danger to others and had a
history of mental illness. Charter's records indicate that Maziar was placed on a forty-eight
hour hold and was discharged at her request only one day later against medical advice.
On June 20, 1990, Maziar filed a complaint against her husband, Charter, the City of
Henderson and Henderson Police Department (the City), the Las Vegas Metropolitan Police
Department, the City of Las Vegas, Clark County, and Mercy. She alleged, inter alia, that
respondents entered forcibly into her home and caused her be hospitalized against her will.
On August 29, 1990, Charter filed a timely answer to the complaint, and on October 30,
1990, Charter filed a motion for summary judgment in which the hospital argued that it was
empowered to detain Maziar, pursuant to NRS 433A.150,
2
for a period not in excess of
seventy-two hours, if she presented a clear and present danger to herself or others. On
February 25, 1991, the district court granted Charter's motion for summary judgment, and the
case was dismissed with prejudice with respect to Charter.
On September 24, 1990, Paul Maziar filed bankruptcy. On November 19, 1990, the district
court dismissed the lawsuit as to the City of Las Vegas and Clark County and gave Maziar an
opportunity to file an amended complaint within twenty days. On December 10, 1990, Maziar
filed an amended complaint against the City in which she alleged two causes of action: (1)
false imprisonment,
3
and (2) invasion of right of privacy. On January 18, 1991, the district
court granted the City's motion to dismiss, holding that the amended complaint failed to state
a claim for relief against the City.
__________

2
NRS 433A.150, Detention for evaluation, observation and treatment; limitation on time, provides in part:
1. Any mentally ill person may be detained in a public or private mental health facility or hospital
under an emergency admission for evaluation, observation and treatment subject to subsection 2.
2. Except as otherwise provided in subsection 3, a person admitted to a mental health facility or
hospital under subsection 1 must not be detained in excess of 72 hours, including Saturdays and Sundays,
from the time of his admission unless within that period a written petition for an involuntary
court-ordered admission has been filed with the clerk of the district court pursuant to NRS 433A.200.

3
The amended complaint stated, under the first cause of action, that:
By reason of the foregoing . . . acts . . . MAZIAR suffered great injury to her peace, happiness and
personal feelings. She suffered further injury by reason of her illegal confinement, actual deprivation of
bodily freedom, mental anguish, aggravated concerns of anguish for her children including a newly born
baby, emotional distress, physical torment, shame, humiliation, embarrassment, fees of legal counsel, and
other injuries, all to her great loss and damage in a sum exceeding $10,000.
relief against the City. The district court also held that, inasmuch as Maziar had not alleged
malicious conduct or bad faith on the part of respondents, they were entitled to immunity
under NRS 433A.740,
4
and that Maziar's amended complaint failed to state a claim for
which relief may be granted.
On February 25, 1991, the district court imposed Rule 11 sanctions of $2,500.00 in
attorney's fees against Maziar's attorney, Edward Marshall, to be paid to the City. On March
7, 1991, the court treated Mercy's NRCP 12(b)(5) motion to dismiss as one for summary
judgment and granted it under Rule 56. The court again found Marshall in violation of Rule
11 and awarded sanctions of $2,500.00 against Marshall payable to Mercy. The district court
certified its order as a final judgment pursuant to NRCP 54(b). On March 26, 1991, Maziar
filed her notice of appeal. On March 4 and June 10, 1991, Marshall filed petitions for writs of
certiorari and other extraordinary relief with this court. By order of this court of July 30,
1991, Maziar's appeal was consolidated with Marshall's petitions for certiorari.
NRCP 56 authorizes summary judgment only where the moving party is entitled to
judgment as a matter of law and no genuine issue remains for trial. In deciding the propriety
of summary judgment, all evidence favorable to the non-moving party is accepted as true.
Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d 258, 260 (1981). We will discuss the propriety
of summary judgment in favor of Charter and Mercy separately.
Charter Hospital.
[Headnote 1]
Charter argues that there is no genuine issue of material fact involving the hospital and that
summary judgment was appropriate. Charter notes that:
(a) It was summoned to the Maziar residence by Mr. Maziar, who was presumably one of
the owners of the residence;
(b) Upon arrival of Charter personnel, the police were already present;
(c) Maziar, who was inside the house, had abrasions on her body and the house was in
disarray;
(d) The Maziar children were outside in the backyard because they feared a confrontation
with their mother; {e) Maziar admitted that she was shocked and angry at the time of the
arrival of the Charter personnel;
__________

4
NRS 433A.740, Liability of public officer or employee, provides:
Any public officer or employee who transports or delivers or assists in transporting or delivering or
detains or assists in detaining any person pursuant to the provisions of this chapter shall not be rendered
civilly or criminally liable thereby unless it is shown that such officer or employee acted maliciously or in
bad faith or that his negligence resulted in bodily harm to such person.
(e) Maziar admitted that she was shocked and angry at the time of the arrival of the
Charter personnel;
(f) Nurse Richardson found that, in good faith, she could not walk away from the situation,
and that Maziar was not taking her psychiatric medications;
(g) Maziar was periodically taking approximately nineteen medications, many of which
were designed to relieve pain and control emotion;
(h) Dr. Brewer, a psychiatrist, stated in his emergency admission certificate application
that he felt she presents [a] danger to others at this time.
(i) In her own affidavit, Maziar suggests that it was unfortunate that Charter was
suckered into coming into the Maziar residence by her husband.
NRS 433A.115 defines a mentally ill person in part to mean a person who presents a
clear and present danger of harm to himself or others. In this case, both a certified nurse and
psychiatrist have indicated that Maziar presented a danger to others. We conclude that such
certification was reasonable, especially considering the fact that Maziar was a psychiatric
patient at the time and was not taking her prescribed medications. We conclude that the
application for emergency admission was appropriate and that summary judgment was
proper.
Mercy Ambulance.
[Headnote 2]
Mercy argues that the actions of its personnel were authorized by NRS 433A.160 as an
emergency admission.
5
Nurse Richardson took Maziar into custody, applied for her
admission to Charter, and arranged for Mercy to transport her to Charter. At Charter, a
psychiatrist evaluated her and approved the emergency admission because of the likelihood
that she would harm others. See NRS 433A.160(5) and NRS 433A.170. We conclude that
Mercy was authorized under the statute to transport Maziar to the hospital, that it had no
discretion to conduct its own evaluation, and that Maziar's appeal of the order of summary
judgment in favor of Mercy is therefore meritless.
__________

5
NRS 433A.160(1), Procedure for admission, provides:
Application for an emergency admission of an allegedly mentally ill person for evaluation and
observation may only be made by an accredited agent of the department, an officer authorized to make
arrests in the State of Nevada or a physician, psychologist, social worker or registered nurse. The agent,
officer, physician, psychologist, social worker or registered nurse may take an allegedly mentally ill
person into custody without a warrant to apply for emergency admission for evaluation, observation and
treatment under NRS 433A.150 and may transport the person or arrange the transportation for him with a
local law enforcement agency to a public or private mental health facility for that purpose.
and that Maziar's appeal of the order of summary judgment in favor of Mercy is therefore
meritless.
The City of Henderson and the Henderson Police Department.
[Headnote 3]
Maziar claimed that the City's police officers falsely imprisoned her. The district court
dismissed the complaint against the City with prejudice, holding that the respondents were
entitled to immunity under NRS 433A.470 and that the amended complaint failed to state a
claim for which relief could be granted.
The police officers responded to a call for assistance and acted under the belief that Maziar
was mentally ill and in need of confinement. NRS 433A.740 provides immunity unless it is
shown that such officer or employee acted maliciously or in bad faith or that his negligence
resulted in bodily harm to such person. Maziar did not allege negligence causing bodily
harm, bad faith, or malice in her amended complaint, even though the district court gave her
the opportunity to address the issue of legal cause or justification. See Garton v. City of Reno,
102 Nev. 313, 720 P.2d 1227 (1986) (evidence focusing on procedural irregularities with
respect to plaintiff's arrest did not make out prima facie case of false arrest or false
imprisonment, in light of lack of evidence addressing issue of legal cause or justification).
We conclude that NRS 433A.740 provides qualified immunity which protects these
respondents, and that Maziar's failure to allege negligence, bad faith, or malice is fatal to her
complaint.
Sanctions.
[Headnotes 4, 5]
The district court imposed Rule 11 sanctions against Marshall to be paid to the City as
well as Mercy. While Rule 11 sanctions should be imposed for frivolous actions, to do so in
this case would have a chilling effect, since Marshall attempted in good faith to have the
district court recognize a new cause of action for invasion of the right to privacy. While we
do not agree that such a cause of action arises under these facts, we do not wish to discourage
attorneys from exercising imagination and perseverance on behalf of their clients, particularly
where a client has appeared to have been victimized. In fact, Maziar had what appears to be a
viable cause of action against her ex-husband until he went bankrupt, and it may well be that
Marshall believed in good faith that other parties were also responsible for the treatment
Maziar received. Rule 11 sanctions are not intended to chill an attorney's enthusiasm or
creativity in reasonably pursuing factual or legal theories, and a court should avoid employing
the wisdom of hindsight in analyzing an attorney's action at the time of the pleading.
of the pleading. See Marco Holding Co. v. Lear Siegler, Inc., 606 F.Supp. 204, 211 (N.D.Ill.
1985). Accordingly, we conclude that the district court abused its discretion in issuing
sanctions against attorney Marshall.
Conclusion
Qualified statutory immunity for certain officials was created for a situation such as this,
where police, hospital, and ambulance personnel respond to a call in a potentially
life-threatening situation which involves a mentally ill person. Because the complaint
contained no allegations of bad faith, malice, or negligence causing bodily harm, we conclude
that summary judgment as to all of the respondents was proper, and we affirm the decision of
the district court on Docket Number 22196.
[Headnote 6]
We treat Marshall's petitions for writs of certiorari, Docket Numbers 21912 and 22242, as
petitions for writs of mandamus. A writ of mandamus will issue to control a court's arbitrary
or capricious exercise of discretion. See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601,
637 P.2d 534 (1981). We grant the petitions and direct the clerk of this court forthwith to
issue writs of mandamus in Docket Numbers 21912 and 22242 commanding the district court
to vacate its orders sanctioning attorney Marshall.
Springer, Rose, Steffen and Young, JJ., and Blake, D. J.,
6
concur.
____________
108 Nev. 466, 466 (1992) Williams v. Waldman
SHARRON WILLIAMS, Appellant, v. HERBERT WALDMAN, Respondent.
No. 20799
July 13, 1992 836 P.2d 614
Appeal from a post-divorce judgment. Eighth Judicial District Court, Clark County; John
F. Mendoza, Judge.
Former wife brought proceeding alleging that division of former husband's law practice
was not provided for in parties' property settlement agreement. The district court found that
ex-wife had failed to prove by preponderance of evidence that law practice was not divided
upon divorce, and ex-wife appealed.
__________

6
The Honorable Archie E. Blake, Judge of the Third Judicial District Court, was designated by the Governor
to sit in place of The Honorable John C. Mowbray, Chief Justice. Nev. Const., art. 6, 4.
The supreme court held that attorney-client relationship had existed between the parties, and
therefore ex-wife was entitled to show that division of law practice was not provided for in
parties' divorce agreement.
John Peter Lee, Ltd., and Daniel Marks, Las Vegas, for Appellant.
Oshins & Gibbons, Las Vegas, for Respondent.
1. Divorce; Husband and Wife.
To extent that professional practice is developed over course of marriage, practice may properly be considered community
property; the goodwill developed in a professional practice during marriage is also included in the community property estate and the
value thereof is subject to division at divorce.
2. Divorce.
If district court rulings in divorce proceedings are supported by substantial evidence, are free of plainly appearing abuse of
discretion, and apply correct legal standard, they will generally be upheld on appeal.
Attorney-client relationship was created between husband and his wife, where husband drafted divorce papers which were signed
by wife without consulting independent counsel and where husband appeared in court alone at divorce proceeding.
Creation of an attorney-client relationship is not precluded by mere fact of a legally close or blood relationship.
Formality is not necessary element in creation of attorney-client relationship.
Attorney-client relationship may exist even though attorney renders her services gratuitously.
Attorney-client relationship necessarily gives rise to fiduciary relationship between attorney and client, and all transactions
growing out of such relationship are subject to the close scrutiny by courts.
When advice is given by attorney, attorney-client relationship may be established through proof of detrimental reliance.
Fiduciary relationship arises from existence of marriage itself, thus precipitating duty to disclose pertinent assets and factors
relating to those assets.
Whether confidential relationship survives announcement of intention to seek a divorce necessarily depends upon circumstances of
each case.
When attorney deals with client for former's benefit, attorney must demonstrate by a high standard of clear and
satisfactory evidence that transaction was fundamentally fair and free of professional overreaching; this
relationship imposes duty of full as well as fair disclosure.
demonstrate by a higher standard of clear and satisfactory evidence that transaction was fundamentally fair and free of professional
overreaching; this relationship imposes duty of full as well as fair disclosure.
As general proposition, lawyer-client agreements are necessarily subject to greater scrutiny and stricter rules than transactions
occurring between parties on equal footing.
Attorney ex-husband must bear ultimate responsibility for any deficiencies or ambiguities in divorce agreement which he prepared
for himself and his former wife.
Ex-wife was entitled to show that division of former husband's law practice was not provided for in parties' divorce agreement,
which had been executed several years earlier, in view of evidence indicating that husband had served as parties' attorney in divorce
action, drafted property settlement agreement which failed to mention his law practice, and failed to fully inform her of all material
facts relating to value and character of his stock ownership in law practice; testimony that ex-wife disclaimed any interest in law
practice was unavailing, where evidence showed that ex-wife's alleged statement was made in informational vacuum, without full
understanding of rights she was relinquishing.
Unadjudicated property may be subject to partition in an independent action in equity following divorce.
16. Divorce.
Property not disposed of in divorce action is held by the parties as tenants in common.
Where, in light of attorney-client relationship existing between ex-wife and ex-husband, ex-wife was permitted to show that
ex-husband's law practice was not disposed of in divorce agreement drafted by ex-husband, ex-wife was not required to prove that law
practice was fraudulently omitted from property settlement, but simply that community property at issue was left unadjudicated and
was not disposed in the divorce.
OPINION
Per Curiam:
The Facts
Sharron Williams, appellant, and Herbert Waldman, respondent, were originally married
on March 17, 1962. The couple divorced in 1965 during the time Herbert attended law
school, then remarried in 1967. Sharron states that she dropped out of college in order to
maintain the couple's finances during Herbert's law school enrollment. Herbert formally
entered the practice of law in September 1967, and became an associate in a private law firm.
In 1974, Herbert became a partner and shareholder in his firm. A decree of divorce was
entered on October 19, 1980.
At the time of the divorce, Herbert owned one-third of the stock of the professional
corporation, which he maintained until he left the law firm in 1989. No mention is made in
the final decree of the partition of Herbert's law practice, a primary asset of the marriage.
During the course of the marriage, Sharron worked periodically at a variety of part-time
jobs. At the time of the divorce, she and her husband were involved in building and selling
houses. Herbert testified, however, that Sharron was generally at home during the course of
their marriage.
Sharron and Herbert discussed divorce periodically in the year preceding the final decree.
When they entered into a final decision to end their marriage, Sharron testified that she
discussed finding her own lawyer. She also stated that Herbert suggested that they save
themselves the expense, and that he offered to draft the agreement. Further, Sharron testified
that she relied on Herbert because he was an attorney and that he had stated he would be fair
to her and their three children.
1

Herbert drafted all of the divorce papers and showed them to Sharron, who signed them
without consulting an attorney. Herbert concedes that he did not propose to her that the
agreement be reviewed by independent counsel. Herbert told her that the agreement was fair
and structured in a way which would save her considerable taxes. Sharron signed the property
settlement agreement, as well as an answer in proper person. Herbert appeared alone in court.
A decree of divorce was entered one week after the parties' final decision to end the marriage.
The property settlement agreement was merged into the divorce decree.
In 1987, Sharron contacted a lawyer for the purpose of seeking an increase in child
support. Sharron's attorney reviewed the property settlement for legal background and
subsequently asked Sharron about the division of her former husband's law practice.
According to Sharron's testimony, this was the first time that she became aware that Herbert's
law practice was community property, divisible upon divorce, with a monetary value which
inured to her individual benefit. Herbert argued strenuously below that Sharron had
specifically stated during various discussions that she was not interested in her community
share of Herbert's law firm stock.
__________

1
Sharron testified that her lawyer-husband responded to her suggestion that she obtain her own attorney by
saying: It doesn't make sense to waste the money. We want a civilized divorce, we don't want to fight. You
know I will be fair to you and the children. You know you can trust me. I've always taken care of you, and I
will. There is no basis in the record for concluding that Herbert's statement was less than sincere. However, it
did place him in a situation which could make it difficult to view both sides with professional detachment and
objectivity in the long term.
firm stock. Herbert maintained that Sharron received her community interest in the law firm
pension plan in lieu of her community interest in the value of Herbert's share of his firm's
stock. Herbert further contended that it was inevitably apparent to Sharron that Herbert had a
stock ownership interest in the firm since Herbert's name appeared on the firm's letterhead,
office facilities and in the phone book. Herbert testified that the omission of the law firm
stock interest from the property settlement was an oversight. Moreover, Herbert insisted
that Sharron contractually agreed to release her equitable interest in the stock pursuant to
paragraph 3 of the property settlement agreement. Paragraph 3 states:
It is further agreed that all of the property now owned or held by the respective
parties hereto, or that may be hereafter acquired by purchase, descent, or otherwise, and
all accumulations or profits therefrom, and all earnings of either party hereto, are and
shall be the separate property of that party and not the community property of the
parties hereto and that neither of the parties hereto has, or at any time shall have, any
right, title, interest, or claim, or has or will assert any claim of any nature whatsoever in
or to the property of the other.
2

Herbert conceded below that he had a greater and a more sophisticated knowledge of
community property legal principles than his former wife. He also indicated that he failed to
apprise Sharron that his interest in the law firm was a community asset with a potential
monetary value judicially divisible upon divorce.
The district court found Sharron to be an intelligent and articulate woman with business
experience. The judge stated: It was clear from listening to Mr. Waldman that she stated to
him that she wanted nothing to do with the practice. The practice was his. The court
compared Sharron's position to Monday-morning quarterbacking . . . divorce parties'
remorse that she didn't get more, and found that Sharron had failed to prove by a
preponderance of the evidence that the law practice was not divided upon divorce.
Discussion
[Headnote 1]
To the extent that a professional practice is developed over the course of a marriage, the
practice may properly be considered community property.
__________

2
Herbert testified that he did not personally sit and discuss with her each and every word or paragraph . . .
. The legal effect of paragraph 3 was not explained. Herbert testified that if she had any questions, she would
have asked me. She had no questions. She read the document. She read it a number of times.
course of a marriage, the practice may properly be considered community property. See Ford
v. Ford, 105 Nev. 672, 674-75, 782 P.2d 1304, 1306 (1989). The goodwill developed in a
professional practice during marriage is also included in the community property estate and
the value thereof is subject to division at divorce. Id. at 679, 782 P.2d at 1309.
[Headnotes 2, 3]
In reviewing divorce proceedings on appeal, this court has generally upheld district courts'
rulings that were supported by substantial evidence and were otherwise free of a plainly
appearing abuse of discretion. See Buchanan v. Buchanan, 90 Nev. 209, 216, 523 P.2d 1, 5
(1974). Where a trial court, sitting without a jury, has made a determination upon the basis
of conflicting evidence, that determination should not be disturbed on appeal if it is supported
by substantial evidence. Lubbe v. Barba, 91 Nev. 596, 600, 540 P.2d 115, 118 (1975);
Fletcher v. Fletcher, 89 Nev. 540, 542, 516 P.2d 103, 104 (1973). However, in reaching a
determination, the district court must apply the correct legal standard. Lubbe, 91 Nev. at 600,
540 P.2d at 118. We conclude that the district court failed to recognize the parties' agreement
as the product of an attorney-client relationship.
[Headnotes 4-6]
The creation of an attorney-client relationship is not precluded by the mere fact of a legally
close or blood relationship. See Nicholson v. Shockey, 64 S.E.2d 813, 817 (Va.Ct.App.
1951). Formality is not a necessary element in the creation of such a relationship, and the
relationship may exist even though the attorney renders his or her services gratuitously. See
7A C.J.S. Attorney & Client 169 (1980 & Supp. 1991) (citing cases).
[Headnotes 7-10]
An attorney-client relationship necessarily gives rise to a fiduciary relationship between an
attorney and client, and all transactions growing out of such a relationship or subject to the
closest scrutiny by the courts.
3
Durr v. Beatty, 491 N.E.2d 902, 906 (Ill.App.Ct. 1986). We
have also held that when an attorney enters into a business relationship with a client which is,
by its terms, potentially advantageous to the lawyer, this court will closely scrutinize such a
transaction on appeal. See Davidson v. Streeter, 68 Nev. 427, 440-41, 234 P.2d 793, 799
(1951); Moore v. Rochester W. M. Co., 42 Nev. 164, 176
__________

3
Herbert argues that the legal relationship at issue was more akin to persons who utilize a divorce kit in
order to familiarize themselves with court procedure. We note, however, that when advice is given by an
attorney, the attorney-client relationship may be established through proof of detrimental reliance. 7A C.J.S.
Attorney & Client 169 n.18(2) (1980 & Supp. 1991).
v. Rochester W. M. Co., 42 Nev. 164, 176, 174 P. 1017, 1020-21 (1918). A fiduciary
relationship also arises from the existence of the marriage itself, thus precipitating a duty to
disclose pertinent assets and factors relating to those assets.
4
See In re Marriage of Coffin, 63
Cal.App.3d 139, 151-52 (Cal.Ct.App. 1976).
[Headnote 11]
Under our case law, when a attorney deals with a client for the former's benefit, the
attorney must demonstrate by a higher standard of clear and satisfactory evidence that the
transaction was fundamentally fair and free of professional overreaching. Davidson, 68 Nev.
at 440, 234 P.2d at 799; Moore, 42 Nev. at 176, 174 P. at 1021. Moreover, this relationship
imposes a duty of full as well as fair disclosure. See Durr, 491 N.E.2d at 907; Goldman v.
Kane, 329 N.E.2d 770, 773 (Mass.Ct.App. 1975).
[Headnote 12]
As a general proposition, lawyer-client agreements are necessarily subject to greater
scrutiny and stricter rules than transactions occurring between parties on an equal footing. See
Briggs v. Clinton County Bank & Trust Co. of Frankfort, Ind., 452 N.E.2d 989, 1004
(Ind.Ct.App. 1983). Public policy dictates that:
When an attorney bargains with his client in a business transaction in a manner
which is advantageous to himself, and if that transaction is later called into question,
the court will subject it to close scrutiny. In such a case, the attorney has the burden of
showing that the transaction was in all respects fairly and equitably conducted; that he
fully and faithfully discharged all his duties to his client, not only by refraining from
any misrepresentation or concealment of any material fact, but by active diligence to
see that his client was fully informed of the nature and effect of the transaction
proposed and of his own rights and interests in the subject matter involved, and by
seeing to it that his client either has independent advice in the matter or else receives
from the attorney such advice as the latter would have been expected to give had
the transaction been one between his client and a stranger."
__________

4
In Applebaum v. Applebaum, 93 Nev. 382, 566 P.2d 85 (1977), we stated in dictum that once a spouse
announces an intention to seek a divorce, the other spouse is on notice that their interests are adverse. Id. at
384-85, 566 P.2d at 87. The issue of whether a confidential relationship survives an announcement of an
intention to seek a divorce necessarily depends on the circumstances of each case. In Applebaum, the marriage
was of brief duration and without children. Id. at 383, 566 P.2d at 86. The wife was advised by her husband to
retain her own lawyer and told that he would pay the expense. Id. at 385, 566 P.2d at 87. In the instant case, the
drafter and spouse was an attorney. Moreover, the law practice was an asset peculiarly within his management
and control. We also note that Herbert and Sharron had a longstanding marital partnership with three young
children at the time of the divorce.
attorney such advice as the latter would have been expected to give had the transaction
been one between his client and a stranger.
Goldman, 329 N.E.2d at 773 (citations omitted).
[Headnote 13]
Furthermore, it is a well settled rule that [i]n cases of doubt or ambiguity, a contract must
be construed most strongly against the party who prepared it, and favorably to a party who
had no voice in the selection of its language. Jacobson v. Sassower, 489 N.E.2d 1283, 1284
(N.Y. 1985). Since the divorce agreement was prepared by Herbert, he must ultimately bear
the responsibility for deficiencies or ambiguities. See E.F. Hutton Group, Inc. v. U.S. Postal
Service, 723 F.Supp. 951, 960 (S.D.N.Y. 1989).
[Headnote 14]
We note from Herbert's sworn admissions of record that Sharron was not fully informed of
all material facts relating to the value and character of Herbert's stock ownership in his law
practice. Herbert has failed to demonstrate that Sharron completely understood her property
rights when she executed the agreement. Through his own testimony, Herbert has not
established, for example, that Sharron entered into the agreement drafted by her
attorney-husband with such a full understanding of the nature and extent of . . . [her] rights
as to enable [her] to thoroughly comprehend the scope and effect of it.
5
Tidball v. Hetrick,
363 N.W.2d 414, 417 (S.D. 1985).
Nowhere in the property settlement agreement at issue here is Herbert's law practice and
stock interest specifically mentioned or divided. We therefore conclude that the agreement
must be construed against the attorney who drafted it and who was responsible for providing
clarity in all of its terms. Matter of Kerlinsky, 546 N.E.2d 150, 153 (Mass. 1989).
Accordingly, we determine that Sharron is entitled to show that the division of Herbert's law
practice was not provided for in the parties' settlement agreement.
__________

5
Although Herbert testified that Sharron disclaimed any interest in his law practice, such testimony is
unavailing where, from Herbert's record testimony, it clearly appears that Sharron's alleged statement was made
in an informational vacuum, without a full understanding of the rights she was relinquishing. We are also
unpersuaded from the record that Sharron's awareness of Herbert's profit sharing plan, his interest in the
partnership, and his leadership role in the law firm, necessarily translates into a more sophisticated
understanding of Herbert's stock ownership in the firm, the potential division of its value, and other ramifications
under community property principles.
[Headnotes 15-17]
Unadjudicated property may be subject to partition in an independent action in equity.
Amie v. Amie, 106 Nev. 541, 543, 796 P.2d 233, 235 (1990). Property not disposed of in a
divorce action is held by the parties as tenants in common. Id.; Bank v. Wolff, 66 Nev. 51,
55, 202 P.2d 878, 880 (1949). We have determined, after a careful review of the record, that
under the circumstances of this case, where Sharron did not have independent representation,
she did not have a fair opportunity to present this issue to the original divorce court. See
McCarroll v. McCarroll, 96 Nev. 455, 456, 611 P.2d 205, 205 (1980). Upon remand, Sharron
is not required to prove that Herbert's law practice was fraudulently omitted from the property
settlement, but simply that the community property at issue was left unadjudicated and was
not disposed of in the divorce. Amie, 106 Nev. at 542, 796 P.2d at 234.
For the reasons specified above, the judgment entered below is reversed and the matter is
remanded to the district court for further proceedings consistent with this opinion.
6

Mowbray, C. J., Rose, Steffen and Young, JJ., and Breen, D. J.,
7
concur.
____________
108 Nev. 474, 474 (1992) Kellogg v. Journal Communications
WILLIAM A. KELLOGG, Appellant, v. JOURNALCOMMUNICATIONS, dba
KTNV-TV-13, A DIVISION OFWTMJ, INC., Respondent.
No. 22561
CHRISTOPHER JOSEPH GOLINI, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22890
July 14, 1992 835 P.2d 12
Proper person petitions for rehearing from orders of this court dismissing as untimely
proper person appeals. Eighth Judicial District Court, Clark County; Donald M.
__________

6
Sharron's and Herbert's positions differ markedly as to the value of the law practice. We provide no
inferences concerning the subject and leave for the district court's determination, upon the taking of additional
evidence, whether the value of Sharron's community interest in Herbert's stock ownership in the law firm was
fairly considered and included in the property settlement agreement, in light of the attorney-client relationship
which existed between the parties.

7
The Honorable Peter I. Breen, Judge of the Second Judicial District Court, was designated by the Governor
to sit in the place of The Honorable Charles E. Springer, Justice. Nev. Const., art. 6, 4.
District Court, Clark County; Donald M. Mosley, Judge (22561); Jack Lehman, Judge
(22890).
In first action, the district court, Donald M. Mosley, J., granted summary judgment against
inmate in civil action. In second action, the district court, Jack Lehman, J., denied inmate's
motion for amended judgment of conviction to include jail time credit. Defendants appealed
in proper person. After appeals were dismissed as untimely, inmates petitioned for rehearing.
The supreme court held that proper person notice of appeal is filed on date of delivery to
prison official.
Petitions granted; appeals reinstated.
William A. Kellogg, In Proper Person, for appellant William A. Kellogg.
Kamer & Ricciardi, Las Vegas, for Respondent Journal Communications.
Christopher J. Golini, In Proper Person, for Appellant Christopher J. Golini.
County, for Respondent State of Nevada.
Appeal and Error.
Proper person notice of appeal is filed on date of delivery to prison official. NRAP 4.
OPINION
Per Curiam:
Docket No. 22561 is a proper person appeal from an order of the district court granting
respondent summary judgment in a civil action. The record reveals that the district court
entered its order granting summary judgment on May 7, 1991, and that notice of entry of
judgment was served by mail on appellant on May 8, 1991. Appellant did not file his notice
of appeal, however, until June 12, 1991, after the expiration of the thirty-day appeal period
prescribed by NRAP 4(a). Accordingly, on December 26, 1991, we dismissed this appeal for
lack of a timely notice of appeal. See Rust v. Clark Cty. School District, 103 Nev. 686, 688,
747 P.2d 1380, 1381 (1987) (an untimely notice of appeal fails to vest jurisdiction in this
court). Appellant has submitted in proper person a petition for rehearing.
1
Docket No.
__________

1
Although appellants have not been granted permission to file documents in these matters in proper person,
see NRAP 46(b), we have received and
Docket No. 22890 is a proper person appeal from an order of the district court denying a
motion for an amended judgment of conviction to include jail time credit. The record reveals
that the district court entered its order denying appellant's motion on October 4, 1991.
Appellant did not file his notice of appeal, however, until November 5, 1991, after the
expiration of the thirty-day appeal period prescribed by NRAP 4(b). Accordingly, on
February 20, 1992, we dismissed this appeal for lack of a timely notice of appeal. See Jordon
v. Director, Dep't of Prisons, 101 Nev. 146, 148, 696 P.2d 998, 999 (1985) (an untimely
notice of appeal fails to vest jurisdiction in this court). Appellant has submitted in proper
person a petition for rehearing.
2

On rehearing, appellants have provided this court with documents establishing that they
delivered their notices of appeal to prison officials before the appeal periods expired.
Appellants contend that, for purposes of determining the timeliness of a notice of appeal
pursuant to NRAP 4, the notice of appeal should be considered filed on the date it is delivered
to a prison official.
Appellants argue persuasively that prisoners have no control over when their notices of
appeal are actually filed. After they deliver their notices of appeal to prison officials, they
must rely on the prison officials and the mail service to get their notices to the clerks of the
district courts in a timely fashion. Because substantial rights depend on the date of filing of a
notice of appeal, appellants argue that they should be deemed to have complied with the rule
when they have done all in their power to comply.
Appellants further contend in this case that they relied on an administrative prison
directive, A.D. #47-91, to their detriment. Appellants argue that the prison regulation states
that notices of appeal will be considered filed on the date they are given to a prison official,
and requires prison officials to keep a log of when notices of appeal are received from
prisoners. Appellants claim that they believed their notices of appeal would be timely if given
to a prison official before the appeal period expired. Because they were misled by the state,
appellants argue that the state should be estopped from asserting that their notices of appeal
were untimely.
A.D. #47-91, promulgated in January of 1991 and prominently displayed in all prison
libraries, provides in relevant part: The Supreme Court has held that under Federal Rules of
Appellate Procedure 4{a){1), a pro se inmate's Notice of Appeal is "filed" at the moment
of delivery to prison authorities for forwarding to the district court.
__________
considered appellants' proper person documents. Cause appearing, we direct the clerk of this court to file
appellants' proper person petitions for rehearing, and respondent's answer to the petition for rehearing in Docket
No. 22561.

2
Because the issues in these two petitions for rehearing are identical, we have consolidated these appeals for
purposes of resolving these proper person petitions only.
The Supreme Court has held that under Federal Rules of Appellate Procedure 4(a)(1), a
pro se inmate's Notice of Appeal is filed at the moment of delivery to prison
authorities for forwarding to the district court.
Therefore, the following procedure will be strictly adhered to regarding Notice of
Appeals [sic] only. . . .
The Supreme Court referred to in the regulation is the United States Supreme Court, but
the regulation does not so state. Thus, the notice is clearly misleading to prisoners. More
importantly, a prisoner acting in proper person cannot personally deliver his notice of appeal
to the clerk of the district court, nor can he monitor the process by which the notice is
transmitted to the clerk of the district court. After he delivers the notice of appeal to prison
officials, as he is constrained to do, he must rely on the vagaries of the prison mail system to
deliver his notice in a timely fashion. Further, if his notice of appeal is not filed stamped by
the clerk of the district court, he has no means of determining who is to blame for delay, or of
proving when the notice was actually received by the court clerk. The proper person litigant
who is incarcerated stands in a position very different from all other litigants, whether
represented by counsel or acting in proper person.
The United States Supreme Court, construing federal rules identical in all relevant respects
to NRAP 4, held that a notice of appeal submitted by a prisoner acting in proper person must
be deemed filed for purposes of determining timeliness on the date it is delivered into the
hand of a prison official. Houston v. Lack, 487 U.S. 266 (1988). Although this ruling is not
binding on this court in our interpretation of the requirements of our rules of appellate
procedure, we find the reasoning of the United States Supreme Court to be sound, and the
arguments of appellants in this and similar cases to be compelling. Further, because the
prisons already keep logs of when notices of appeal are received from prisoners, it would not
create any additional burden on the prisons, nor would it create any significant burden on the
courts, to conclude, as did the United States Supreme Court, that a proper person notice of
appeal is filed on the date of delivery to a prison official. We therefore adopt the holding and
reasoning of the United States Supreme Court.
Accordingly, we conclude that appellants' notices of appeal were timely under NRAP 4.
We grant appellants' petitions for rehearing, and we reinstate these appeals.
3

__________

3
These appeals shall stand submitted for decision on the records on file herein, without further briefing or
oral argument.
____________
108 Nev. 478, 478 (1992) DuBois v. Grant
ERIKA DuBOIS, as Guardian Ad Litem of KORIN DuBOIS, a Minor, Appellant, v.
RICHARD GRANT, Respondent.
No. 21158
July 21, 1992 835 P.2d 14
Appeal from a judgment of the district court pursuant to a jury verdict in favor of
respondent in a personal injury action. Eighth Judicial District Court, Clark County; Thomas
A. Foley, Judge.
Parent sued homeowner for injuries child sustained on homeowner's property. The district
court found homeowner not negligent. Parent appealed. The supreme court held that: (1)
statements by homeowner's counsel to jury were harmless error; (2) refusal to permit
questioning of jurors regarding connection with insurance company was within district court's
discretion; (3) sustaining objections calling for legal conclusions was proper; and (4)
homeowner made no impermissible golden rule argument.
Affirmed.
Rose and Springer, JJ., dissented.
Edward M. Bernstein & Associates and Robert R. Jensen, Las Vegas, for Appellant.
Thorndal, Backus, Maupin & Armstrong and Craig R. Delk, Las Vegas, for Respondent.
Statements by homeowner's counsel to jury that homeowner paid injured child's medical bills were harmless error, although most
bills were actually paid by homeowner's insurer, where child's counsel emphasized payments as an admission of fault by homeowner.
2. Jury.
District court acted within its discretion in refusing to permit questioning of jurors regarding interest in connection with casualty
insurer when request was not timely submitted and may have prejudiced defense in negligence action.
3. Jury.
Inquiry into jurors' potential connection to casualty insurer is not mandated in personal injury actions, although district court may,
in its discretion, properly permit such questioning.
4. Evidence.
District court did not err in sustaining objections to questions which called for homeowner to give legal conclusion about cause of
accident on his property.
5. Trial.
Homeowner made no impermissible golden rule argument in negligence action; suggestion by homeowner that homeowners,
including the jurors, are entitled to make their homes convenient did not impermissibly suggest that jurors trade places with
homeowner.
OPINION
Per Curiam:
Korin DuBois (Korin), the daughter of appellant Erika DuBois (DuBois), suffered facial
injuries when she was kicked by a horse owned by respondent Richard Grant. The injury
occurred while Grant was hosting a barbecue for several friends, including the DuBois
family. DuBois gave Korin permission to feed Grant's horse, which was in a corral behind the
house. Although there were no witnesses, it is likely that Korin was kicked when she entered
the horse's corral through an opening in the fence.
1

Initially, Korin's parents were unable to get her admitted to the hospital for treatment
because they lacked sufficient funds. When Grant learned of the situation, he gave his son
about $300 and instructed him to get Korin admitted to the hospital. Korin subsequently
incurred $7,684.47 in medical bills which were paid by Grant's insurance carrier under his
homeowner's policy.
DuBois filed a complaint alleging that Grant knowingly kept a dangerous horse and
seeking compensation for Korin's pain and suffering and the anticipated costs of future
medical expenses. Grant denied the allegations of the complaint and claimed contributory
negligence and negligent supervision by Korin's parents as affirmative defenses. Later, Grant
filed a third-party complaint against Korin's parents seeking contribution or indemnity.
Before trial, Grant moved in limine to preclude anyone from mentioning to the jury that
Grant's insurance company had paid the DuBois for Korin's injuries.
2
DuBois agreed that
any mention of insurance was improper, but insisted that it would be misleading to inform the
jury that Grant himself had paid Korin's medical bills. The district court, in granting the
motion, ruled that the jury could be advised that Grant had paid Korin's medical bills because
Grant had paid premiums for homeowner's liability insurance to protect him in the event of
just such an accident.
As a result of the court's ruling in limine, defendant's opening statement informed the jury
that Grant had paid $300 to get Korin admitted to the hospital, and $7,684.47 in medical bills.
In closing argument, Grant's counsel stated that Grant had paid all of Korin's past medical
bills. DuBois' objections to these statements were overruled. The jury's verdict found Grant
free of negligence in connection with the accident.
[Headnote 1]
DuBois contends that it was erroneous for the district court to allow the jury to be
informed that Grant had paid $7,6S4.47 for Korin's medical bills when in fact, Grant's
homeowners insurance had covered these expenses.
__________

1
Korin was only four years old when the accident occurred, and was unable to recall the details of the event
with any consistency.

2
See NRS 48.135 and NRS 687B.250(1), which limit the introduction of evidence of insurance coverage at
trial.
allow the jury to be informed that Grant had paid $7,684.47 for Korin's medical bills when in
fact, Grant's homeowners insurance had covered these expenses. Without determining
whether it was error to permit this information to be presented to the jury, we conclude that
any error which may have occurred below was harmless.
Although DuBois contends that Grant received an unfair advantage by informing the jury
that he had paid Korin's medical bills, DuBois offset any inferences that were favorable to
Grant by ascribing an alternative motive to him. DuBois was a third-party defendant in this
action in addition to being the plaintiff. As a third-party defendant, DuBois told the jury that
Grant's payment of Korin's medical bills was an acknowledgment of responsibility, and an
admission that he knows he did wrong.
3

On appeal, DuBois claims that despite her counsel's statement that Grant [went] into his
pocket to the tune of $7,000, and attempting to use this payment as an admission of
wrongdoing, she is entitled to a new trial because the jury was told that Korin's medical bills
were paid by Grant instead of on Grant's behalf.
4

Any benefit inuring to Grant because the jury may have thought that Grant had paid the
bills out of his own pocket was most probably minimized, if not eliminated, by DuBois'
counsel's emphasis on the payments as an admission of fault.
5
DuBois' ready willingness
during trial to emphasize and capitalize on the fact that Grant paid for Korin's medical
bills, creates little more than a hollow sound on appeal in complaining that this
information should have been withheld from the jury.
__________

3
Although this argument may have violated NRS 48.115, which states that [e]vidence of furnishing or
offering or promising to pay medical, hospital or similar expenses occasioned by an injury is not admissible to
prove liability for the injury, Grant's counsel failed to object when this occurred.

4
Had the jury been told, as DuBois requested, that Korin's medical bills had been paid on Grant's behalf,
the inference would likely have been either that Grant's insurance company paid the bills (which would
improperly suggest that Grant had insurance) or that Grant himself had paid, or arranged for the payment of, the
bills. It is arguable that DuBois' counsel eliminated ambiguity resulting from the statement by Grant's counsel
that Grant had paid the bills (which to a knowledgeable juror or jury could have meant either personally or
through his insurance carrier) by declaring that Grant [went] into his pocket to the tune of $7,000.

5
We do not share the dissenting justice's concern with the possibility that the jury returned a sympathy
verdict for Grant. Although DuBois has complained that her case was prejudiced by the portrayal of Grant as a
nice guy because he paid for Korin's medical bills, DuBois' own lawyers were the strongest proponents of this
idea, as they repeatedly praised Grant's character. For example, in opening argument DuBois' counsel stated that
Mr. Grant is a very nice person and I like him personally and Mr. Grant is a good person. He's a nice person.
DuBois' other attorney chimed in that everyone agreed what a good guy Mr. Grant is and I applaud him for
[paying Korin's medical bills]. Therefore, DuBois was the first to bring Grant's character to the attention of the
jury. There is an equal possibility that any sympathy in this case weighed in favor of the eight-year-old cute
little
ready willingness during trial to emphasize and capitalize on the fact that Grant paid for
Korin's medical bills, creates little more than a hollow sound on appeal in complaining that
this information should have been withheld from the jury.
Although the dissent urges that a new trial is warranted because the jurors were told that
Grant paid for Korin's medical bills, we are convinced that if there was error in the trial
court's ruling, it was harmless, especially in light of DuBois' escalation of the subject into a
clear admission of liability by Grant. See NRCP 61.
[Headnotes 2, 3]
We also determine that the district court acted within its discretion in refusing to permit
questioning of the jurors regarding an interest in or connection with a casualty insurance
company when the request was not timely submitted and may have prejudiced the defense.
EDCR 7.70. Inquiry into jurors' potential connection to a casualty insurance company is not
mandated in personal injury actions, although a district court may, in its discretion, properly
permit such questioning. See Silver State Disposal Co. v. Shelley, 105 Nev. 309, 774 P.2d
1044 (1989).
[Headnote 4]
We similarly conclude that the district court did not err in sustaining objections to
questions which called for Grant to give a legal conclusion about the cause of the accident.
See Owen v. Kerr-McGee Corp., 698 F.2d 236 (5th Cir. 1983).
Finally, we determined that no impermissible golden rule argument was made by Grant.
The suggestion by Grant that homeowners, including the jurors, are entitled to make their
homes convenient did not impermissibly suggest that the jurors trade places with Grant.
For the reasons expressed above, we affirm the district court's order denying DuBois'
motion for judgment notwithstanding the verdict or a new trial.
Rose, J., with whom Springer, J., joins, dissenting:
When Korin DuBois (Korin) was taken to the hospital, Richard Grant {Grant) paid the
$300.00 fee for her emergency treatment, and his homeowner's insurance subsequently
paid an additional $7,6S4.47 toward her medical bills.
__________
girl (as Korin was referred to by counsel). However, the jurors were questioned on voir dire about their ability
to remain impartial and were instructed before retiring not to let sympathy enter into their decision. We perceive
nothing in their verdict to suggest that they did not heed the court's instructions.
In any event, the jury never reached the issue of damages because they quickly determined that Grant was not
negligent. The jury was presented with sufficient evidence to determine that Grant's negligence was not the cause
of the unfortunate accident. Accordingly, the question of who had paid what bills became of little or no
consequence.
Grant (Grant) paid the $300.00 fee for her emergency treatment, and his homeowner's
insurance subsequently paid an additional $7,684.47 toward her medical bills. The jury either
should have been told the truththat the medical expenses above $300.00 were paid on
behalf of Grantor should have been denied any information concerning who paid the
medical bills and instructed not to speculate on the subject. The district court chose neither
alternative, but rather permitted the jury to receive testimony that Grant himself had paid the
bills. By doing this, the jury was informed of a fact that was untrue.
Grant was a reluctant defendant and the suit against him can be termed a friendly one. He
was obviously very sorry that the accident happened and even admitted that he should have
kept an eye on Korin when she was in the backyard near the horses. By incorrectly informing
the jury that he paid all of the medical bills, he was made even more sympathetic in the eyes
of the jury. Grant's counsel took full advantage of the admission of the erroneous fact in
closing argument:
Now, I have been doing this for over ten years and I've got to tell you that I would
like to see a lot more people like Mr. Grant in these proceedings.
Mr. Grant got up on the stand and he told you, yes, he felt responsibility for Korin
while she was out in his backyard. He genuinely felt and feels terrible about this
accident. I don't think there is any disputing that.
Mr. Grant paid all of Korin's past medical bills[objectionobjection
overruled]to the tune of about $8,000. Mr. Grant takes this incident very seriously.
Although there is no way to ascertain the degree to which the jurors were influenced by the
misinformation that Grant paid all medical bills, consideration of this factor probably added
significantly to their feeling that Grant really did all that can be expected of a person on
whose property an unfortunate accident occurs.
Once the evidentiary ruling was made permitting Grant to claim the insurance company's
payment of medical bills as his own, DuBois attempted to use the improper ruling to her
advantage. Specifically, in defending Erika DuBois against Grant's third-party claim, DuBois'
attorney stated that Grant's payment of the medical bills was an acknowledgement of his
responsibility.
1
I see nothing wrong with a party adjusting his or her case in accordance
with an adverse evidentiary ruling made by the court.
__________

1
This argument would have been susceptible to an objection based on NRS 48.115, that the offer to pay or
payment of medical bills is not admissible to prove liability for an injury, but it appears all parties waived the
applicability of this statute.
accordance with an adverse evidentiary ruling made by the court. Furthermore, Erika's
argument was factually correct because Grant had paid $300.00 toward the medical bills.
Because the jury should have been told the truth about the payment of Korin's medical
bills or told nothing at all, and because the incorrect information probably contributed to the
defense verdict rendered in favor of Grant, I would reverse this case and remand it for a new
trial.
____________
108 Nev. 483, 483 (1992) Budget Rent-A-Car v. District Court
BUDGET RENT-A-CAR, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Clark, and The Honorable
JACK LEHMAN, District Judge, Respondents, and RICHARD E. HUNTOON, Real
Party in Interest.
No. 22733
July 21, 1992 835 P.2d 17
Original petition for a writ of mandamus. Eighth Judicial District Court, Clark County;
Jack Lehman, Judge.
Car rental agency sought writ of mandamus challenging district court's order denying
agency's motion to quash service of process. Treating petition as one requesting writ of
prohibition, the supreme court held that district court lacked personal jurisdiction over car
rental agency for claim arising from presence of leased vehicle in forum state.
Writ of prohibition granted.
Richard McKnight, Las Vegas, for Petitioner.
Rex Bell, District Attorney, Clark County, for Respondents.
Ted A. Embry, Las Vegas, for Real Party in Interest.
1. Prohibition.
Writ of prohibition is appropriate remedy for district court's erroneous refusal to quash service of process.
2. Prohibition.
In the interest of judicial economy, supreme court would treat petition erroneously seeking writ of mandamus for district court's
refusal to quash service of process as petition requesting writ of prohibition, where petitioner's contentions had merit and there was no
plain, speedy, or adequate remedy available in ordinary course of law.
3. Courts.
General personal jurisdiction over a defendant is appropriate where defendant's forum activities are so substantial or continuous
and systematic that it may be deemed present in the forum.
4. Courts.
Under general jurisdiction, defendant can be held to answer in forum for causes of action unrelated to its forum activities.
5. Courts.
California car rental company was not doing business, and therefore not subject to general personal jurisdiction, in Nevada where
accident occurred, where cars used on Nevada's highways constituted no more than a minor, incidental part of company's business.
6. Courts.
California car rental company was not subject to specific personal jurisdiction in Nevada in action arising out of accident in
Nevada, where company did not derive substantial portion of its business from automobiles driven to Nevada, and in fact prohibited
lessee from taking car out of California without written permission, which was not obtained in the case. U.S.C.A.Const. amend 14.
7. Courts.
Foreseeability that product might make its way into forum, without more, is insufficient to establish personal jurisdiction.
8. Courts.
State may exercise specific personal jurisdiction only where defendant purposefully avails itself of privilege of serving in market in
forum or of enjoying protection of the laws of the forum, and cause of action arises from that purposeful contact with the forum.
9. Courts.
Unilateral activity of another person cannot satisfy requirement, for assertion of specific personal jurisdiction, of contact between
an out-of-state defendant and the forum.
OPINION
Per Curiam:
[Headnotes 1, 2]
This original petition for a writ of mandamus challenges an order of the respondent district
court denying petitioner's motion to quash service of process. A writ of prohibition is the
appropriate remedy for a district court's erroneous refusal to quash service of process. See
Judas Priest v. District Court, 104 Nev. 424, 425, 760 P.2d 137, 138 (1988). Nevertheless,
because we conclude that petitioner's contentions have merit and that there is no plain, speedy
or adequate remedy available in the ordinary course of law, we have determined in the
interest of judicial economy to treat this petition as one requesting a writ of prohibition. See
Koza v. District Court, 99 Nev. 535, 665 P.2d 244 (1983).
In the action below, the real party in interest, Richard E.
Huntoon, seeks damages for injuries resulting from a collision with an automobile owned by
petitioner. Petitioner is in the business of renting automobiles. Petitioner has several business
locations in southern California, and does not have offices in any other state. Petitioner's
rental agreements, including the agreement covering the vehicle at issue, provide that a lessee
may not take a rental car out of the state of California without petitioner's written permission.
Petitioner grants such permission only if the lessee provides proof of independent insurance
coverage. Petitioner demands independent insurance to reduce its risk of being sued in a
foreign jurisdiction and to reduce its liability.
On September 7, 1990, Richard E. Williams rented an automobile at petitioner's Long
Beach, California, leasing office. At the time of rental Williams proffered a California driver's
license. Williams did not obtain permission to take the car outside of California.
Nevertheless, Williams drove the rental car to Las Vegas, Nevada. On September 8, 1990,
while driving the rental car in Las Vegas, Williams was involved in an accident with Richard
E. Huntoon, the real party in interest in this petition.
On June 26, 1991, Huntoon filed a complaint in the district court against Williams and
petitioner. Huntoon alleged that petitioner violated Nevada's short-term lessor statute, NRS
482.305, and that petitioner negligently entrusted the rental car to Williams because Williams'
driver's license had been revoked on or before the date Williams had rented the car.
On September 30, 1991, petitioner moved the district court to quash service of process on
the basis that petitioner lacked sufficient contacts with Nevada to support personal
jurisdiction. On November 15, 1991, the district court entered an order denying the motion to
quash. This petition followed.
[Headnotes 3, 4]
General personal jurisdiction over a defendant is appropriate where the defendant's forum
activities are so substantial or continuous and systematic that it may be deemed present in
the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 (1984);
Perkins v. Benguet Mining Co., 342 U.S. 437, 448 (1952); Munley v. District Court, 104
Nev. 492, 496, 761 P.2d 414, 416 (1988). Under general jurisdiction, a defendant can be held
to answer in the forum for causes of action unrelated to its forum activities. Perkins, 342 U.S.
at 446-47; see also Hall, 466 U.S. at 414.
The level of contact with the forum state necessary to establish general jurisdiction is high.
We recently held that Nevada lacked general jurisdiction over a membership-type department
store located in California that had about one thousand members in Nevada and distributed
advertising flyers in Nevada. Price and Sons v. District Court, 10S Nev. 3S7
Sons v. District Court, 108 Nev. 387, 831 P.2d 600 (1992). Similarly, promotional activities
in Nevada by a California ski resort, including outdoor advertising, advertisements in the
Reno telephone directory and in print media, distribution of brochures to Reno ski shops, and
membership in the Reno-Sparks Chamber of Commerce, did not establish general jurisdiction
in Nevada. Munley, 104 Nev. at 494-96, 761 P.2d at 415-16. See also Hall, 466 U.S. at 416
(1984) (no jurisdiction in Texas over foreign corporation that sent officers to Texas for a
negotiation session, accepted checks drawn on a Texas bank, and sent personnel to Texas to
be trained); Congoleum Corp. v. DLW Aktiengesellschaft, 729 F.2d 1240, 1242-43 (9th Cir.
1984) (a foreign corporation's sales and marketing efforts in California, including solicitation
of orders, promotion of products to potential customers through the mail and through
showroom displays, and attendance at trade shows and sales meetings, were insufficient to
establish general jurisdiction in California); Cubbage v. Merchent, 744 F.2d 665, 667-69 (9th
Cir. 1984) (California lacked general jurisdiction over Arizona doctors who had a significant
number of patients in California, used a California medical insurance system, and had a
telephone directory listing that reached California), cert. denied, 470 U.S. 1005 (1985).
[Headnote 5]
Huntoon argues that petitioner is doing business in Nevada and is therefore subject to
general jurisdiction in Nevada, because cars leased from petitioner are frequently taken to
Nevada, both with and without petitioner's permission. The Las Vegas Budget Rent A Car
office accepts cars leased from petitioner, and returns them to petitioner, on a regular basis.
Huntoon has not shown, however, that cars used on Nevada highways constitute anything but
a minor, incidental portion of petitioner's business. Under the standard discussed above, this
is insufficient to establish general jurisdiction in Nevada. The fact that the Las Vegas Budget
office returns rental cars to California does not change this conclusion. See Green v. Luxury
Auto Rentals, Ltd., 422 So.2d 1365, 1368 (La.Ct.App. 1982) (retrieval of leased automobile
from Louisiana is not transacting business there).
[Headnote 6]
Absent general jurisdiction, specific personal jurisdiction over a defendant may be
established only where the cause of action arises from the defendant's contacts with Nevada.
See Price and Sons, 108 Nev. at 390, 831 P.2d at 602 (1992); Munley v. District Court, 104
Nev. 492, 494-96, 761 P.2d 414, 415-16 (1988).
[Headnotes 7, 8]
Petitioner contends that jurisdiction exists over Budget because it was foreseeable that the
car would be driven to Nevada. Petitioner points out that numerous cars leased by petitioner
are driven to Nevada, with and without petitioner's permission. The foreseeability that a
product might make its way into the forum, without more, is insufficient to establish personal
jurisdiction. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 296-97
(1980). A state may exercise specific personal jurisdiction only where the defendant
purposefully avails itself of the privilege of serving the market in the forum or of enjoying the
protection of the laws of the forum, and the cause of action arises from that purposeful
contact with the forum. Woodson, 444 U.S. at 291, 297 (1980); see also Munley, 104 Nev. at
494-95, 761 P.2d at 415.
[Headnote 9]
As discussed earlier, Huntoon has not shown that a substantial portion of petitioner's
business derives from automobiles that are driven to Nevada. Petitioner never gave Williams
consent to take the car to Nevada. Rather, the lease agreement specifically prohibited taking
the car out of the state of California without petitioner's written permission. Such permission
was neither sought nor given. That distinguishes this case from a case where we held that
there was jurisdiction over a California automobile lessor that accepted payments from
Nevada and agreed with the lessee to insure the car in Nevada. Burns v. District Court, 97
Nev. 237, 627 P.2d 403 (1981). The unilateral activity of another person cannot satisfy the
requirement of contact between an out of state defendant and the forum. See Woodson, 444
U.S. at 298; MGM Grand, Inc. v. District Court, 107 Nev. 65, 69, 807 P.2d 201, 203 (1991);
see also Western Heritage Thrift & Loan v. Cloutier, 107 Nev. 471, 813 P.2d 999 (1991).
Therefore, we conclude that Nevada lacks personal jurisdiction over petitioner. Accordingly,
the clerk of this court shall forthwith issue a writ of prohibition restraining the district court
from exercising personal jurisdiction over petitioner in this matter.
____________
108 Nev. 488, 488 (1992) Lovie v. State
ROBERT VERNON LOVIE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22887
July 21, 1992 835 P.2d 20
Appeal from a judgment of conviction. Fourth Judicial District Court, Elko County; Jack
B. Ames, Judge.
Defendant pleaded guilty in the district court to third offense driving while intoxicated.
Defendant appealed from denial of motion to withdraw guilty plea. The supreme court held
that district court erred in denying defendant's motion to withdraw guilty plea.
Frederick B. Lee, Jr., Public Defender and Peter F. Carroll, Deputy Public Defender, Elko
Frankie Sue Del Papa, Attorney General, Carson City; Marshall Smith, District Attorney
and Cheryl Phillips, Deputy District Attorney, Elko County, for Respondent.
Criminal Law.
Defendant's motion to withdraw guilty plea because sentence imposed was greater than state's recommendation was filed within a
reasonable time when it was filed one day after sentencing hearing, and district court failed to afford defendant a meaningful
opportunity to withdraw his plea when it denied motion on ground that it was not filed at time of sentencing. NRS 174.065, subd. 3.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction pursuant to a guilty plea of one count of
third offense driving while intoxicated.
1
Pursuant to NRAP 34(f)(1), we have determined
that oral argument is not warranted in this appeal.
Appellant was stopped for speeding on August 2, 1991, in Elko County, Nevada. He
smelled of alcohol and failed several field sobriety tests. A subsequent breath test revealed a
blood alcohol level of between 0.16 and 0.14 percent. Appellant agreed to plead guilty to
third offense driving while intoxicated, NRS 4S4.3792{1){c), in return for the state's
promise to recommend a sentence of one year.
__________

1
The judgment of conviction recites that appellant is guilty of one count of driving under the influence and
one count of third offense driving under the influence. The judgment is duplicative and therefore erroneous. The
district court, however, imposed sentence only for the count of third offense driving under the influence. Thus,
appellant has not been prejudiced by the error.
108 Nev. 488, 489 (1992) Lovie v. State
guilty to third offense driving while intoxicated, NRS 484.3792(1)(c), in return for the state's
promise to recommend a sentence of one year. At the October 16, 1991, sentencing hearing
the state requested a sentence of one year. The district court imposed a sentence of three
years. The day after the sentencing hearing, appellant filed a motion to withdraw his guilty
plea pursuant to NRS 174.065(3). The district court denied the motion on the ground that the
motion should have been made at the time of sentencing and was therefore untimely.
Appellant argues that under the plain language of NRS 174.065(3), the district court erred
by not affording him an opportunity to withdraw his plea.
2
We agree.
NRS 174.065(3) (emphasis added) reads in pertinent part:
On a plea of guilty . . . the defendant and the district attorney may agree to
recommend an appropriate punishment. The court may defer its decision upon the
recommendation until it has considered the presentence report. If the court accepts the
recommendation, it shall impose the specified punishment or a lesser punishment. If the
court rejects the recommendation, the defendant may withdraw the plea.
The above subpart took effect October 1, 1991. See 1991 Nev. Stats. ch. 265 1, 4, at
651-52. Appellant was sentenced on October 16, 1991. Thus, the newly enacted statute was in
effect at the time of appellant's sentencing hearing.
The right established by the final sentence of NRS 174.065(3) is designed to facilitate the
withdrawal of a guilty plea when the district court imposes a punishment greater than that
contemplated by the plea agreement. For this right to be meaningful, the district court must
afford the defendant an opportunity to exercise it. Other jurisdictions have held that under this
type of statute, a defendant must be afforded the opportunity to withdraw his guilty plea if the
motion to withdraw is made within a reasonable time. See, e.g., State v. De Nistor, 694 P.2d
237 (Ariz. 1985); State v. Huttinger, 595 P.2d 363 (Mont. 1979). Appellant moved to
withdraw his guilty plea one day after the sentencing hearing. We conclude that appellant's
motion to withdraw his plea was filed within a reasonable time, and that the district court
failed to afford appellant a meaningful opportunity to withdraw his plea. We hold, therefore,
that the district court erred in denying appellant's motion to withdraw his guilty plea.
For the reasons set forth above, we reverse the order of the district court denying
appellant's motion to withdraw his plea, and remand this case to the district court for
further proceedings consistent with this opinion.3
__________

2
Appellant's argument is unopposed by the state, which concedes error and argues that the district court
should have granted appellant's motion.
108 Nev. 488, 490 (1992) Lovie v. State
district court denying appellant's motion to withdraw his plea, and remand this case to the
district court for further proceedings consistent with this opinion.
3

____________
108 Nev. 490, 490 (1992) Nye County v. Washoe Medical Center
NYE COUNTY, a Political Subdivision of the State of Nevada, Appellant, v. WASHOE
MEDICAL CENTER, a Non-Profit Nevada Corporation, Respondent.
No. 22501
July 22, 1992 835 P.2d 780
Appeal from partial summary judgment in favor of respondent. Fifth Judicial District
Court, Nye County; Archie E. Blake, Judge.
Hospital filed an action against defendant county to recover the cost of health care
provided to a person who fell ill in defendant county. The district court granted judgment in
favor the plaintiff. The supreme court held that: (1) county is responsible only for the medical
care of its resident indigents and nonresident indigents who fall sick within that county, and
(2) material issue of fact existed as to the indigency of the person who received health care
from the hospital seeking reimbursement and thus summary judgment was inappropriate.
Art Wehrmeister, District Attorney, and Les W. Bradshaw, Deputy District Attorney, Nye
Terrance E. Shea, Reno, for Respondent.
A county is responsible only for the medical care of its resident indigents and nonresident indigents who fall sick or are injured
within that county. NRS 428.010 et seq., 450.005 et seq., 450.400.
2. Judgment.
In dispute over whether county in which alleged indigent's illness occurred or outside hospital in which treatment was received
would bear health care costs, material issue of fact as to indigency precluded summary judgment in favor of the outside hospital.
In action to recover health care costs, county could not raise on appeal issue of sufficient notice of alleged indigent's
hospitalization, where it failed to raise the issue in the trial court.
__________

3
Because we find this issue dispositive, we decline to address appellant's other arguments.
OPINION
Per Curiam:
Nye County resident Dathan Delapeza was admitted to Nye County General Hospital with
an illness. He was subsequently transferred to Washoe Medical Center (WMC) in Washoe
County for additional treatment over a period of days prior to his discharge. WMC ultimately
sought payment for Delapeza's hospital care from Nye County, contending that indigency or
financial status is irrelevant when a person becomes ill in one county and is thereafter
transported to another county for treatment. The district court agreed and granted partial
summary judgment in favor of WMC concerning the issue of liability. We conclude that the
district court erred and reverse.
Facts
When Delapeza became ill in Nye County, he was first taken to Nye County General
Hospital, and thereafter transported to WMC for further treatment. Delapeza was treated at
WMC from October 7, 1987 to October 10, 1987, and from November 3, 1987 to November
5, 1987.
Having concluded that Delapeza was indigent, WMC sent letters dated October 8, 1987
and November 3, 1987 to the Nye County Clerk, advising Nye County that Delapeza was a
patient at WMC, and requesting Nye County to accept responsibility for the charges incurred
on Delapeza's behalf. Nye County, contending that Delapeza was not eligible for county aid,
rejected WMC's request.
WMC filed a complaint against Nye County to recover the cost of Delapeza's treatment.
WMC sought and was granted summary relief on the issue of Nye County's liability to WMC
for the cost of medical services rendered to Delapeza, though Delapeza's financial status
remained at issue. A trial followed on the remaining question of the reasonableness of
WMC's charges. Thereafter, judgment was entered against Nye County for $9,039.43 plus
$3,000 in attorney's fees, thus prompting this appeal.
1

Discussion
Nye County argues that it is not liable for the medical bills of individuals who are
residents of Nye County or who fall ill in Nye County and are treated in another county unless
they are indigent. Nye County also insists that WMC failed to establish Delapeza's
indigency.
__________

1
Although WMC also obtained a default judgment against Delapeza, Delapeza has left the area and WMC
has been unable to satisfy the judgment through its former patient.
Delapeza's indigency. WMC urges a contrary position, contending that summary judgment
was proper despite the unresolved factual issue of Delapeza's indigency because when a
patient fails or is unable to pay for his or her medical care, liability for treatment attaches to
the county in which the patient falls ill irrespective of the patient's financial status. We
determine that under Nevada's statutory scheme, indigency is a prerequisite to a county's
obligation to provide charitable medical aid, and therefore reverse the summary judgment
establishing Nye County's liability.
The controversy in this appeal centers on the interpretation of NRS 450.400, which gives a
county hospital (such as WMC) a legal claim to recover the costs of medical services
rendered to a resident of another county who is entitled under the laws of this state to relief,
support, care, nursing, medicine, medical or surgical aid from the other county, or to one who
is injured, maimed or falls sick in the other county (emphasis added). WMC contends that
this statute was enacted to allow a treating county hospital to recover the costs of medical
services rendered to someone who became ill in another county, irrespective of the patient's
indigency. Nye County insists that the statute is intended to apply only to indigents, and must
be read in conjunction with NRS 428.010, which places a duty upon every county to provide
care, support and relief to the poor, indigent, incompetent and those incapacitated by age,
disease or accident, who reside in the county and are not supported by any other person or
organization.
[Headnote 1]
We reject WMC's interpretation of the statute. It is difficult to imagine that the legislature
intended to make county taxpayers liable for the medical treatment of everyone, regardless of
financial status, who becomes sick in the county and receives treatment elsewhere. NRS
chapters 450 and 428 deal extensively with a county's obligation to provide no-cost aid to
indigent, disabled, elderly, or otherwise needy individuals. It would be inconsistent with the
surrounding statutes to interpret NRS 450.400 to require a county to assume the cost of
medical care for everyone falling ill within its borders irrespective of financial status.
Accordingly, we determine that a reasonable interpretation of NRS 450.400 is that a county is
responsible only for the medical care of its resident indigents and nonresident indigents who
fall sick or are injured within the responsible county. See Roberts v. State, 104 Nev. 33, 37,
752 P.2d 221, 223 (1988) (legislative intent behind an ambiguous statute can be derived from
reason and public policy).
The result we have reached is consistent with the 1991 amendment to NRS 450.400,
which specifies that a hospital is entitled to recover the costs of medical treatment for a
resident of another county who is reasonably believed to be indigent, as defined in NRS
439B.310 . . . . Moreover, a 1989 amendment to NRS 428.030 specifies that a board of
county commissioners is to pay hospitals for the medical treatment of resident indigents and
any nonresident indigent inpatients who fall sick in the county (emphasis added), suggesting
that indigency is a prerequisite to county charitable medical aid.
[Headnote 2]
Delapeza's indigency was disputed.
2
The record contains insufficient evidence upon
which to determine whether Delapeza's financial status qualifies him for charitable medical
aid. Therefore, the district court erred in granting summary judgment to WMC on the issue of
Nye County's liability for Delapeza's medical bills, as Nye County is only responsible for
those bills if Delapeza was indeed indigent. The matter must therefore be remanded to the
district court for a determination of Delapeza's indigency. See Shepard v. Harrison, 100 Nev.
178, 678 P.2d 670 (1984) (summary judgment must be denied when there is the slightest
doubt as to the facts); Mullis v. Nevada Nat'l Bank, 98 Nev. 510, 654 P.2d 533 (1982)
(opposing party is entitled to all favorable inferences).
Finally, Nye County urges us to accept the proposition that in any event it is relieved of
responsibility for the costs of Delapeza's medical treatment because WMC failed to give it
sufficient notice of Delapeza's hospitalization. The letters sent by WMC to Nye County
advising it of Delapeza's hospitalization were addressed to the Nye County Clerk rather than
the board of county commissioners, contrary to NRS 450.400(2).
[Headnote 3]
Nye County has raised this issue for the first time on appeal. Generally, an issue which is
not raised in the district court is waived on appeal. Old Aztec Mine, Inc. v. Brown, 97 Nev.
49, 52, 623 P.2d 981, 983 (1981). We therefore determine that Nye County has waived its
opportunity to present this issue on appeal. We note, however, that we previously have held
that actual notice satisfies the notice requirements of NRS 450.400(2). Washoe Med.
__________

2
Nye County submitted documents indicating that at the time of his illness, Delapeza was employed as a
dishwasher at a casino in Tonopah. WMC submitted evidence suggesting that Delapeza had only been employed
for three weeks when he fell ill and had no insurance or assets with which to pay his medical bills.
Med. Center v. Lyon County, 107 Nev. 493, 813 P.2d 1008 (1991).
For the reasons specified above, we reverse the grant of partial summary judgment entered
below, and remand this matter for further proceedings consistent with this opinion.
____________
108 Nev. 494, 494 (1992) State v. Tapia
THE STATE OF NEVADA, Appellant, v. PETER ALEXANDER TAPIA, Respondent.
No. 22471
July 22, 1992 835 P.2d 22
Appeal from an order of dismissal from a criminal prosecution for embezzlement. Second
Judicial District Court, Washoe County; Steven R. Kosach, Judge.
Defendant moved to dismiss charges because state had not provided him with a precursor
document. The district court granted motion. State appealed. The supreme court held that: (1)
precursor document was admissible under casino records exception to hearsay rule; (2)
custodian's handwritten notations were not admissible; (3) state failed to comply with
discovery order with due diligence; but (4) failure did not warrant dismissal.
Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Appellant.
John C. Morrow, Acting Public Defender and Jane McKenna, Deputy Public Defender,
Washoe County, for Respondent.
1. Criminal Law.
Precursor document which listed hotel-casino employees to whom defendant had attributed authorization for complimentary room
(comp) was admissible under casino records exception to hearsay rule in prosecution for embezzlement based on defendant's
accepting money from hotel guests, keeping it for himself, and then reflecting transaction as a complimentary room on hotel-casino's
records; document was kept in regular course of casino business. NRS 52.405, subd. 2, 52.415.
2. Criminal Law.
Custodian's handwritten notations on document listing hotel-casino employees to whom defendant hotel clerk had attributed
authorization for complimentary rooms as part of his embezzlement scheme were not admissible under casino records exception to
hearsay rule; the notations were added in preparation for trial. NRS 51.135, 52.405, subd. 2, 52.415.
108 Nev. 494, 495 (1992) State v. Tapia
3. Criminal Law.
Prosecutor did not exercise due diligence in obtaining from hotel-casino documentation in support of its embezzlement charge
against hotel clerk and trial court acted within its discretion in determining that discovery order had been violated; State did not have
precursor document during first day of trial and prosecutor admitted that he had not made any affirmative attempt to obtain the
document.
4. Criminal Law.
Where State's noncompliance with discovery order is inadvertent and court takes appropriate action to protect defendant against
prejudice, there is no error justifying dismissal of case.
5. Criminal Law.
Prosecutor's violation of discovery order resulting from lack of due diligence in obtaining documentation for defendant did not
warrant dismissal of embezzlement prosecution; State was unaware of missing document until first day of trial, and State immediately
retrieved information and forwarded it to defendant when State realized its error.
6. Criminal Law.
Relative strength or weakness of State's embezzlement case should not have been a critical factor in trial court's determination to
dismiss case based on State's failure to comply with discovery with due diligence.
OPINION
Per Curiam:
Peter Tapia (Tapia) was arrested for embezzling $950.00 from the Peppermill
Hotel-Casino (Peppermill) in Reno between March 17, 1990, and May 13, 1990.
1
The State
charged that Tapia, a hotel clerk, would accept money from a hotel guest, keep it for himself,
and then reflect the transaction as a comp (a complimentary room) on the Peppermill's
records.
On June 24, 1991, the first day of trial, Tapia made an oral motion in limine to dismiss the
charges because the State had not provided him with a precursor document. This document
listed the Peppermill employees to whom Tapia had attributed authorization for the comps.
Tapia argued that without the precursor document, the State could not connect the subsequent
documents, which were computer spreadsheets showing patrons who had been comped, with
the precursor document showing to whom Tapia had allegedly attributed authorization for the
comps.
Tapia had, however, received a document with similar information, and it is undisputed
that the State did not have the precursor document during the first day of trial.
__________

1
The original information charged that the embezzlement occurred from June 3, 1990, to July 2, 1990.
However, after the Peppermill and the State reduced the list of alleged embezzlements to ten, the dates of the
alleged embezzlements were changed to coincide with these ten instances. These changes, to which the defense
agreed, were reflected on the amended information.
108 Nev. 494, 496 (1992) State v. Tapia
mation, and it is undisputed that the State did not have the precursor document during the
first day of trial. Furthermore, Tapia's counsel and the trial court both acknowledged that the
absence of the precursor document was not the fault of the State. However, the prosecutor
admitted that he had not made an affirmative attempt to obtain any additional documents.
After hearing Tapia's motion in limine, the trial court ruled in favor of the State and allowed
the case to continue, but reserved to Tapia the right to renew the motion. On the morning of
the second day of trial, the Peppermill delivered the precursor document to the prosecutor,
who immediately delivered it to Tapia. Tapia renewed his motion to dismiss based upon a
violation of the discovery order which allowed Tapia to discover, inspect and copy
everything in the State's file.
The Peppermill's custodian of records was prepared to testify for the State that certain
handwritten names of the Peppermill employees who allegedly authorized the comps on the
subsequent documents were identical to the names in the precursor document. This, the State
argued, made the subsequent document, which the State had previously given to Tapia,
admissible with the handwritten notations intact. The State also argued that it was prepared to
go to trial with or without the precursor document. However, it is unclear whether the State
was prepared to go to trial without the handwritten information included on the subsequent
documents. Although the admissibility of the handwritten notations was a principal issue at
trial, neither side addressed the question on appeal.
The trial court ruled in favor of Tapia's motion in limine, and dismissed the case. The
court held that the document was a precursor document with respect to the computer
spreadsheets and excluded it under NRS 174.295, which places parties under a continuing
duty to disclose additional material. The court reasoned that the State had violated the
discovery order. Also, the district court ordered a dismissal because it believed that without
the precursor document the State's case was weak.
On appeal, the State argues that the trial court should have admitted the precursor
document. The alleged person authorizing the comp could then testify as to whether he
actually authorized the transaction. Because many people are authorized to approve comps at
the Peppermill, such testimony would be difficult to elicit without reliance upon the precursor
document.
[Headnote 1]
A casino record is admissible if kept in the course of an activity which is regularly
conducted by a gaming licensee or hotel. NRS 52.405(2); see also NRS 52.415 and NRS
51.135. Because the precursor document itself was kept in the regular course of the casino
business, we conclude that it is admissible under the casino records exception to the
hearsay rule.
108 Nev. 494, 497 (1992) State v. Tapia
course of the casino business, we conclude that it is admissible under the casino records
exception to the hearsay rule.
[Headnote 2]
The custodian's handwritten notations, however, were added in preparation for trial. The
State attempted to justify the admission of the handwritten notations on the grounds that the
custodian of records would verify them under NRS 52.415. However, this statute speaks to
the authentication of a copy [which] is a true and complete reproduction of the original
record of a hotel or casino. NRS 52.415 (emphasis added). Because the handwritten
notations do not fall under the casino records exception to the hearsay rule, we conclude that
they are inadmissible.
[Headnote 3]
The State also asserts that the trial court erred in dismissing the case on the basis of a
violation of the discovery order. The State contends that because the delayed production of
the document was not its fault, it did not breach the order. However, the prosecutor admitted
that he failed to request any additional documents. We conclude that the district court could
properly determine that the prosecutor had not exercised due diligence in obtaining the
documentation from the Peppermill and that the court acted within its discretion in
determining that the discovery order had been violated.
[Headnotes 4, 5]
The State further contends that even if it breached the discovery order, the proper remedy
was either a short continuance or a trial without the precursor document. When a discovery
order has been violated, NRS 174.295 allows the trial court to permit the discovery or
inspection of materials not previously disclosed, grant a continuance, or prohibit the party
from introducing in evidence the material not disclosed, or it may enter such order as it deems
just under the circumstances. However, where the State's non-compliance with a discovery
order is inadvertent and the court takes appropriate action to protect the defendant against
prejudice, there is no error justifying dismissal of the case. Maginnis v. State, 93 Nev. 173,
176, 561 P.2d 922, 923 (1977); see also Lopez v. State, 105 Nev. 68, 77-79, 769 P.2d 1276
(1989) (defendant's late receipt of reports did not warrant mistrial where defense received
documents at same time as prosecution and there was no showing of intentional withholding
of the evidence from defendant); Langford v. State, 95 Nev. 631, 635-36, 600 P.2d 231,
234-35 (1979) (absent showing of bad faith by State or unalleviated prejudice to the
defendant, trial court properly denied motion for mistrial).
In State v. Stiglitz, 94 Nev. 158, 576 P.2d 746 (1978), this court overturned a trial court's
decision to dismiss charges after a showing that the State had violated a discovery order.
108 Nev. 494, 498 (1992) State v. Tapia
court overturned a trial court's decision to dismiss charges after a showing that the State had
violated a discovery order. This court stated that the State having in good faith attempted to
comply, we deem it an abuse of discretion to dismiss the charges. Id. at 161-62, 576 P.2d at
748 (emphasis added).
[Headnote 6]
In the instant case, the State was unaware of the missing precursor document until the first
day of trial. Furthermore, when the State realized its error, it immediately retrieved the
information and forwarded it to Tapia. We conclude that the district court's dismissal was an
extreme remedy unwarranted under the circumstances. Also, the relative strength or weakness
of one party's case should not have been a critical factor in determining this motion to
dismiss. Therefore, we conclude that it was an abuse of discretion for the court to exclude the
precursor document and to dismiss the case based upon a violation of the discovery order and
the court's determination that the State's case was weak. The State acted in good faith and
Tapia would not have been unfairly prejudiced by the admission of the document. However,
we conclude that the custodian's handwritten notations were inadmissible as hearsay. Thus,
we reverse and remand for further proceedings in accordance with this opinion.
____________
108 Nev. 498, 498 (1992) Sheriff v. Bright
SHERIFF, Clark County, Nevada, Appellant, v. NOEL BRIGHT and JOHN HARVEY,
Respondents.
No. 22193
July 22, 1992 835 P.2d 782
Appeal from a district court order granting respondents' petitions for writs of habeas
corpus. Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Defendants sought writs of habeas corpus on grounds that they had been denied their right
to counsel before the grand jury. The district court granted the petitions and the State
appealed. The supreme court held that: (1) persons subject to grand jury investigation do not
have the right to counsel, and (2) persons under investigation by a grand jury have no rights to
discovery.
Frankie Sue Del Papa, Attorney General, Carson City; Rex A. Bell, District Attorney,
James Tufteland, Chief Deputy District Attorney, and Robert Lucherini, Deputy District
Attorney, Clark County, for Appellant.
Cherry & Bailus, Las Vegas, for Respondent John Harvey.
Schieck & Derke, Las Vegas, for Respondent Noel Bright.
1. Criminal Law.
The right to counsel attaches only at critical stages of the prosecutorial process when a defendant's rights might be prejudiced in
the absence of counsel, and has been recognized as applicable to certain pretrial procedures, including preliminary hearings,
arraignments, certain identification procedures, and efforts to elicit inculpatory statements. U.S.C.A.Const. amend. 6.
2. Grand Jury.
A person whose indictment is sought has the right to receive reasonable notice of grand jury proceedings in order to exercise the
right to appear and testify before the grand jury. NRS 172.241.
3. Grand Jury.
Persons targeted by grand jury proceedings do not have the right to be represented by counsel at those proceedings.
4. Grand Jury.
Person under the investigation of the grand jury did not have discovery rights enabling him to obtain copies of evidence to be
presented to the grand jury, on theory that lack of discovery rendered retained counsel ineffective. U.S.C.A.Const. amend. 6.
OPINION
Per Curiam:
Respondents, Noel Bright and John Harvey, were indicted by a grand jury on racketeering
charges. The district court granted respondents' petitions for writs of habeas corpus on
grounds that the respondents had been denied their right to counsel before the grand jury.
Appellant, the Sheriff of Clark County (State), contends that the grand jury is an
investigative rather than an adversarial vehicle, and therefore, the right to counsel does not
attach at this early stage. Alternatively, the State asserts that even if Bright and Harvey were
entitled to counsel, their rights were not violated because they had each retained counsel.
Bright and Harvey argue that grand jury proceedings are adversarial in nature and have
become a critical stage of the prosecution in Nevada, necessitating the assistance of counsel.
Bright argues that the State's failure to provide him with counsel deprived him of his right to
appear and testify before the grand jury. Harvey admits that he was represented by counsel
but nevertheless argues that he was deprived of the effective assistance of counsel because he
was denied access to discovery prior to the grand jury proceedings.
We determine that neither the Sixth Amendment nor our state constitutional or statutory
law requires the State to extend the right to counsel to indigent grand jury targets.
constitutional or statutory law requires the State to extend the right to counsel to indigent
grand jury targets.
Facts
The State sought to indict Bright and Harvey on racketeering charges stemming from their
involvement in a street gang whose members committed numerous serious crimes involving
violence, threats, illicit drugs and stolen property.
1

Bright and Harvey received notice of the State's intent to seek an indictment against them.
Harvey retained an attorney, who wrote to the district attorney and requested copies of all
charges, allegations and evidence that would be put before the grand jury in order to assist
Harvey in deciding whether to testify. The district attorney responded that Harvey's
statements could be obtained upon a formal request. No such request was made, and Harvey
elected not to appear and testify before the grand jury.
The grand jury convened on December 13, 1990 to consider charges of racketeering and
racketeering conspiracy against the respondents. That morning, Bright appeared at the Clark
County courthouse to testify before the grand jury. After being directed to the seventh floor of
the courthouse, Bright asked a police officer whether his attorney was present. When he was
told that the district attorney was the only lawyer present, Bright indicated that he would not
testify and left the courthouse.
2

The grand jury returned a true bill on December 14, 1990, and an indictment was filed
charging each respondent with four counts of racketeering and conspiracy. Bench warrants
were issued and the respondents were arrested. Bright informed the court that he could not
afford an attorney, and the court thereupon appointed counsel for him.
Bright and Harvey filed petitions for writs of habeas corpus, averring numerous
deficiencies with the grand jury proceedings. Among other complaints, respondents claimed
that they suffered a denial of their right to testify before the grand jury because they had been
deprived of the assistance of counsel. Following oral arguments, the district court determined
that there was sufficient evidence to sustain the indictment but nevertheless issued the writs
and discharged the respondents on the basis that they had been denied their right to counsel at
a critical stage of the proceedings. The State appealed, and we now reverse.
__________

1
The State also targeted and obtained an indictment against Terrell Daugherty. Daugherty, however, entered
into a negotiated agreement with the State and is not a participant in this appeal.

2
When Bright arrived at the courthouse, the grand jury was advised that he was present and would be the
next witness. After Bright left, the grand jury was told that he had chosen not to testify at that time.
Discussion
The Sixth Amendment to the federal Constitution provides that [i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his
defense. U.S.Const. amend. VI. Although the Sixth Amendment right to counsel is an
integral part of our criminal justice system, the Supreme Court has not established a bright
line test for determining when it becomes necessary to provide indigent criminal defendants
with legal representation.
Originally, the Sixth Amendment was interpreted as guaranteeing only the opportunity for
a defendant to engage the assistance of counsel on his own, contravening the English practice
which prohibited counsel in felony cases. See Powell v. Alabama, 287 U.S. 45, 60 (1932). In
time, the right was viewed as a mandatory requirement that counsel be provided to indigent
defendants in serious federal cases, and eventually, under Johnson v. Zerbst, 304 U.S. 458
(1938), in all federal criminal cases. The right to be represented by counsel in state
prosecutions was secured in 1963 under Gideon v. Wainwright, 372 U.S. 335 (1963).
[Headnote 1]
Gideon, however, left unresolved issues regarding the scope of the right. The Court later
declared that the right attaches only to critical stages of the prosecutorial process when a
defendant's rights might be prejudiced in the absence of counsel. United States v. Wade, 388
U.S. 218 (1967). Although no all-inclusive definition of critical stage has been provided,
the criminal prosecution is said to begin with the initiation of adversary judicial
proceedings. Kirby v. Illinois, 406 U.S. 682, 688 (1972). Thus, the right to counsel has been
recognized as applicable to certain pre-trial procedures, including preliminary hearings,
arraignments, certain identification procedures, and efforts to elicit inculpatory statements.
See 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 11.2(b) at 20 (1984).
However, the right has not been extended to grand jury proceedings because they are
generally viewed to be investigatory in nature, and occurring prior to the initiation of
adversarial proceedings. Grand jury targets have not been formally charged with a crime
until indicted.
Nevada has liberally modified the traditionally secretive nature of grand jury proceedings
through NRS 172.241, which extends to grand jury targets the right to testify before the grand
jury.
3
A target who chooses to testify is required to sign a valid waiver of his right
against self-incrimination.
__________

3
NRS 172.241 as it read at the time of the indictment provided:
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
target who chooses to testify is required to sign a valid waiver of his right against
self-incrimination. In addition, a person whose indictment is sought in Nevada may retain
counsel to accompany him or her during an appearance before the grand jury. NRS 172.239.
The district court determined that these additional provisions which apply to grand jury
targets in Nevada translate into a signal that the grand jury is a critical stage of the
prosecution, thereby triggering the right to counsel. We decline to read more into the laws
governing the rights of persons targeted by grand juries than is apparent.
[Headnotes 2, 3]
Our decision in Sheriff v. Marcum, 105 Nev. 824, 783 P.2d 1389 (1989), clarified that
NRS 172.241 gives a person whose indictment is sought the right to receive reasonable notice
of the proceedings in order to exercise the right to appear and testify before the grand jury.
But nowhere in Marcum or in subsequent opinions have we suggested that the full panoply of
rights enjoyed by criminal defendants attaches to persons targeted by grand juries. The
procedural and fiscal complications resulting from such an extension of the right to counsel
would severely hamper the State's ability to prosecute those who offend its laws, and virtually
transform the grand jury process into a mini-trial. An individual who is exposed to the
criminal justice system can be sufficiently safeguarded against governmental excesses
without further extending the right to counsel.
4

The Supreme Court has noted:
[W]hile members of the Court have differed as to existence of the right to counsel in
the contexts of some . . . cases, all of those cases have involved points of time at or
after the initiation of adversary judicial criminal proceedingswhether by way of
formal charge, preliminary hearing, indictment, information, or arraignment.
Kirby, 406 U.S. at 689 (emphasis in original). Prior to the grand jury proceedings, Bright and
Harvey had not been arrested in connection with the crimes for which they were ultimately
indicted. They were not faced with the prosecutorial forces of organized society," Kirby,
406 U.S. at 6S9, and thus were not entitled to the protections afforded to those whom the
state has committed to prosecute.5
__________
jury if he requests to do so and executes a valid waiver in writing of his constitutional privilege against
self-incrimination.
A 1991 amendment to NRS 172.241 now requires the district attorney to give reasonable notice to the person
whose indictment is sought unless adequate reason exists to withhold notice.

4
We note that NRS 172.145(2) protects the rights of targeted persons to some extent by placing an
obligation upon the prosecutor to present to the grand jury known exculpatory evidence.
organized society, Kirby, 406 U.S. at 689, and thus were not entitled to the protections
afforded to those whom the state has committed to prosecute.
5

[Headnote 4]
Even if we were to accept respondents' position, we note that Harvey's writ of habeas
corpus nonetheless lacks merit because Harvey was represented by counsel.
6
Inability to
obtain copies of the evidence to be presented to the grand jury did not render Harvey's
counsel ineffective. Nevada statutes permit a defendant to obtain copies of his statements or
confessions which are in the possession or control of the state, but make no such provisions
for persons targeted by grand juries.
7
[I]t may well be true that in some cases preindictment
investigation could help a defendant prepare a better defense. But, as we have noted, our
cases have never suggested that the purpose of the right to counsel is to provide a defendant
with a preindictment private investigator . . . . United States v. Gouveia, 467 U.S. 180, 191
(1984).
We do not now consider it practical or prudent to extend discovery rights to persons under
investigation by grand juries. Although the semi-secret nature of grand jury proceedings has
been criticized as being prejudicial to targeted persons,
8
the procedure's privacy also fulfills
a vital role in society. See, e.g., Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395,
399-400 (1959). In the instant case, cause existed to believe that potential witnesses, if
revealed, might be subjected to intimidation to dissuade them from testifying or harmed in
retaliation for their testimony. While no system is flawless, the grand jury continues to
perform a valuable function in the criminal justice process. Moreover, at this point in our
nation's history, reality demands greater prosecutorial armamentaria for coping with the
menace of lawless gangs, rather than less.
__________

5
We are similarly unpersuaded by Harvey's argument that NRS 172.239(4) confers upon a target the right to
counsel. The passage relied on provides that along with a subpoena to appear before the grand jury, a person
entitled to legal counsel shall receive notice of the opportunity to appear with an attorney. A reading of the
entire statute indicates that the phrase a person entitled to legal counsel is used to distinguish between grand
jury targets, who may be accompanied by counsel, and other witnesses, who may not.

6
It is unclear from the record whether Bright also obtained counsel prior to the grand jury proceedings.

7
Additionally, Harvey's discovery request did not comply with EDCR 3.20 and 3.24 procedures for
discovery motions.

8
See, e.g., Samuel Dash, The Indicting Grand Jury: A Critical Stage?, 10 Am.Crim.L.Rev. 807 (1972).
For the reasons enunciated above, we reverse the order of the district court granting the
writs of habeas corpus and remand this matter to the district court for further proceedings.
____________
108 Nev. 504, 504 (1992) Jackson v. State Farm Fire & Casualty
DONALD JACKSON AND NANCY JACKSON, Appellants, v. STATE FARM FIRE AND
CASUALTY COMPANY, Respondent.
No. 22026
July 31, 1992 835 P.2d 786
Appeal from a grant of summary judgment in favor of respondent. Second Judicial District
Court, Washoe County; Brent T. Adams, Judge.
Homeowners brought action on insurance policy after insurer denied their claim. The
district court granted summary judgment in favor of insurer and homeowners appealed. The
supreme court held that: (1) in first-party progressive property loss cases, carrier whose policy
was effective when progressive damage became manifest is liable, and (2) material issue of
fact as to when damage to the home became manifest precluded summary judgment.
C. Nicholas Pereos, Reno, for Appellants.
Haefner & Enzenberger, Reno, for Respondent.
1. Insurance.
In first-party progressive property loss cases, the carrier whose policy was effective when progressive damage became manifest is
liable.
2. Insurance.
Manifestation of loss is defined as that point when appreciable damage occurs and is or should be known to the insured such
that a reasonable insured would be aware that the notification duty under the policy has been triggered.
3. Judgment.
Material issue of fact as to when structural damage to a home became manifest precluded summary judgment for insurer in suit on
homeowners' insurance policy for progressive property loss.
OPINION
Per Curiam:
Appellants Donald and Nancy Jackson (Jacksons) sought insurance coverage for
structural damage to their home.
insurance coverage for structural damage to their home. Because State Farm Fire and
Casualty Company (State Farm) denied their claim, the Jacksons brought this action. The
district court, however, granted State Farm summary judgment. For the reasons discussed
herein, we reverse and remand this matter.
FACTS
In July 1977, Mr. Jackson purchased a used home in Reno.
1
Through disclosures in the
purchase agreement, Mr. Jackson was informed that repairs had been made to the home to
correct a settling problem and that said repairs had been made to the satisfaction of the City
of Reno. In September 1977, Mr. Jackson purchased homeowner's insurance from State Farm.
The Jacksons maintained homeowner's coverage through the date of the litigation
(approximately ten years) by renewing the policy annually.
At some unknown date, the Jacksons noticed small wall cracks in their home. In 1987,
they retained Pezonella Associates, Inc., an engineering firm, to investigate these cracks. An
employee of Pezonella Associates, Inc., inspected the Jacksons' home and opined that the
cracks in the wall were the result of an incipient slope failure occurring on the steep creek
embankment located behind this residence and the adjacent property. In June 1987, Ray
Pezonella informed the Jacksons that the house had suffered some structural damage.
The Jacksons made a claim with State Farm, but State Farm denied the claim on the
ground that the structural damage was caused by earth movement, an uninsured peril.
Thereafter, the Jacksons brought this action against State Farm, alleging breach of contract
and bad faith torts.
2
They claimed that their home suffered continuous and ongoing gradual
damage which was the result of negligent construction by a third party. The district court
bifurcated the Jacksons' breach of contract claim from the remaining claims.
State Farm moved for summary judgment on the breach of contract claim, arguing that the
applicable policy, the last policy issued to the Jacksons, excluded losses resulting from
negligent construction and earth movement. In opposition, the Jacksons argued that the first
policy issued to them controlled their claim and that it did not exclude losses resulting
from negligent construction.
__________

1
The Jacksons were not married at the time of the purchase. They were married several years later on
September 29, 1981.

2
Specifically, their complaint alleged the following claims: (1) breach of contract; (2) breach of the implied
covenant of good faith and fair dealing; (3) unfair claim settlement practices; and (4) intentional infliction of
emotional distress. Also, the Jacksons named Frank Taylor, a resident claim superintendent for State Farm, as a
defendant. However, he is not a party to this appeal.
argued that the first policy issued to them controlled their claim and that it did not exclude
losses resulting from negligent construction. The district court entered summary judgment for
State Farm on this claim.
State Farm next moved for summary judgment on the remaining claims. State Farm argued
that the remaining causes of action were premised on the Jacksons' insurance claim being
covered, but because their loss was not covered under the applicable policy, the Jacksons
could not prevail on these causes of action as a matter of law. The district court again granted
State Farm summary judgment.
DISCUSSION
This case involves the oft-stated summary judgment standard of review: State Farm was
entitled to have its motion granted only if no genuine issue of material fact remained for trial,
and State Farm was entitled to judgment as a matter of law. American Federal Savings v.
County of Washoe, 106 Nev. 869, 871, 802 P.2d 1270, 1272 (1990).
It is undisputed that the Jacksons' home suffered progressive property damage. However,
the parties dispute the cause of the damage, each side supporting their position by competent
evidence. In reviewing orders granting summary judgment, we view the evidence most
favorable to the party against whom summary judgment was entered. See, e.g., Nevada State
Bank v. Jamison Family Partnership, 106 Nev. 792, 796, 801 P.2d 1377, 1380 (1990).
Therefore, for purposes of this appeal, we accept the Jacksons' position that the damage
resulted from negligent construction.
We must first determine which policy controls the Jacksons' loss. The Jacksons contend
that the policy purchased at the inception of coverage, effective September 1977 through
September 1978, is controlling. State Farm contends that the policy which was effective from
September 1986 through September 1987 is controlling. In order to resolve this question, the
Jacksons urge this court to adopt the so-called continuous exposure rule and State Farm, in
turn, urges this court to adopt the manifestation rule.
Pursuant to the continuous exposure rule, the loss is apportioned between those insurers
whose policies insured the risk during the period from the date when the damage first
occurred to the date of its discovery by the insured. Prudential-LMI Ins. v. Superior Court,
798 P.2d 1230, 1243 (Cal. 1990). Under the manifestation rule, only the carrier whose policy
was effective when the progressive damage became manifest is liable. Id.
3
These theories
developed out of a series of California cases.
__________

3
More recently, these theories have been described as the triggers of coverage which identify the event
constituting an occurrence/loss.
These theories developed out of a series of California cases. California first adopted the
continuous exposure rule in California Union Ins. Co. v. Landmark Ins. Co., 193 Cal.Rptr.
461 (Ct.App. 1983). In that case, the insureds installed a swimming pool during Landmark
Insurance Company's (Landmark) policy period. Id. at 462-63. The pipes leaked during
Landmark's policy period and during the subsequent insurer's, California Union's, policy
period, causing landslide damage. Id. at 463-64. Corrective repairs were attempted during
Landmark's policy period, even though the actual cause of the damage had not yet been
discovered. Id. at 463. Consequently, the damage continued into the period insured by
California Union. Id. Landmark and California Union disputed the liability of the damage that
developed after the initial attempt to correct the problem. Id. at 464.
The court articulated and applied the continuous exposure rule, stating:
[I]n a one occurrence case involving continuous progressive and deteriorating
damage, the carrier in whose policy period the damage first becomes apparent remains
on the risk until the damage is finally and totally complete, notwithstanding a policy
provision which purports to limit the coverage solely to those accidents/occurrences
within the time parameters of the stated policy term.
Id. at 469. The court concluded that Landmark was liable for the damage which occurred after
the termination date of its policy. Id. at 470-71. The court further held that California Union
was jointly and severally liable even though the damage had its genesis in the installation of
the pool and even though the damage had manifested before California Union had issued its
policy. Id.
In 1990, the California Supreme Court addressed which of several successive insurers
was responsible for a covered loss discovered by the insured seven years after it
commenced.
__________
Montrose Chemical Corp. v. Admiral Ins. Co., 5 Cal.Rptr.2d 358, 364 (Ct.App. 1992). The Montrose court
explained that under the continuous exposure analysis:
[T]he timing of the cause of the bodily injury or property damage . . . is immaterial (it doesn't matter if it
was before or during the policy period), as is the date of discovery of the injury or damage (which may
not be contemporaneous), and it is only the effect (the bodily injury or property damage) which matters.
Under this theory, if injury or damage is continuous or progressive throughout successive policy periods,
coverage is triggered under the policies in effect for all periods.
Id. (emphasis in original). Pursuant to the manifestation analysis:
[T]he critical date is that point in time when appreciable damage occurs and is or should be known to a
reasonable insured. Where the loss is continuous and progressive throughout successive policy periods
but is not discovered until after expiration of some of the policies, only the policy in effect at the time of
manifestation affords coverage. Under this analysis, a policy commencing after manifestation (discovery)
affords no coverage, notwithstanding that the injury or damage may continue into the effective period of
the post-discovery policy.
Id. at 364-65.
had manifested before California Union had issued its policy. Id.
In 1990, the California Supreme Court addressed which of several successive insurers was
responsible for a covered loss discovered by the insured seven years after it commenced.
Prudential-LMI, 798 P.2d at 1232. The court concluded that California Union was materially
distinguishable in that it involved a third-party liability case.
4
Id. at 1246. In the first-party
context, concluded the court, the manifestation rule furthered sound public policy:
[T]he manifestation rule in the first party context promotes certainty in the insurance
industry and allows insurers to gauge premiums with greater accuracy. Presumably this
should reduce costs for consumers because insurers will be able to set aside proper
reserves for well-defined coverages and avoid increasing such reserves to cover
potential financial losses caused by uncertainty in the definition of coverage.
Id. at 1246 (quoting Home Ins. Co. v. Landmark Ins. Co., 253 Cal.Rptr. 277, 282 (Ct.App.
1988)). Furthermore, where successive policies have been issued by different insurers, the
reasonable expectations of the insured are fulfilled because the insured seeks coverage
through his present carrier. Id. at 1247. Accordingly, the court held that the manifestation rule
applies in first-party progressive property loss cases where the loss occurs during several
policy periods but is not discovered until a later policy is in effect. Prudential-LMI, 798 P.2d
at 1246. Before the manifestation, the loss is a mere contingency whereby the insured has not
yet suffered a compensable loss. Id. The manifestation triggers indemnity unless the loss is
specifically excluded under the policy. Id.
[Headnote 1]
We agree with the reasoning in Prudential-LMI, namely, that in first-party liability cases,
the manifestation rule promotes greater certainty in the insurance industry {which
ultimately results in lower costs to the insureds) and enables the reasonable expectations
of the insureds to be met.
__________

4
The court cited Garvey v. State Farm Fire and Cas. Co., 770 P.2d 704 (Cal. 1989) for authority that
first-party insurance cases are materially different from third-party liability cases. The Garvey court identified
two major differences. First, the liability analysis differs between the two types of insurance. Id. at 710. Property
insurance is a contract where the insurer agrees to indemnify the insured in the event that the property insured
suffers a covered loss. Id. Coverage is provided by reference to enumerated perils. In contrast, coverage under a
third-party liability policy involves traditional concepts of torts, where the insurer agrees to cover the insured for
a broader spectrum of risks than in the property insurance context. Id.
Second, under the all-risk property policy, the exclusions generally are the limitation on coverage. Id. at 711.
Under the liability portion of the policy, on the other hand, the initial focus is on the insured's legal obligation to
pay for injury or damage arising out of an occurrence. Id.
in first-party liability cases, the manifestation rule promotes greater certainty in the insurance
industry (which ultimately results in lower costs to the insureds) and enables the reasonable
expectations of the insureds to be met. Moreover, when California Union articulated its equal
exposure rule, it relied on several asbestos cases. See Keene Corp. v. Insurance Co. of North
America, 667, F.2d 1034 (D.C.Circ. 1981); Insurance Co. of North America v. Forty-Eight
Insulations, 633 F.2d 1212 (6th Cir. 1980). The need to apportion the astronomical damages
associated with asbestos cases supports the equal exposure rule; however, those same
considerations are not present in progressive property damage cases. We therefore adopt the
manifestation rule, as articulated in Prudential-LMI, in first-party progressive property loss
cases.
[Headnote 2]
Manifestation of loss is defined as that point in time when appreciable damage occurs and
is or should be known to the insured, such that a reasonable insured would be aware that his
notification duty under the policy has been triggered. Prudential-LMI, 798 P.2d at 1247. The
manifestation date will generally be a question of fact; nonetheless, summary judgment may
be appropriate where the undisputed evidence establishes that no damage had been
discovered before a given date. Id.
[Headnote 3]
In the present action, there is insufficient evidence to accurately establish the manifestation
date. While the Jacksons were informed in 1987 that the cracks in the wall were the result of
structural damage, the record does not reveal when the Jacksons first learned of the wall
cracks and whether that discovery in and of itself was sufficient to constitute the
manifestation date. Consequently, there remains a material issue of fact as to whether the
structural problems became manifest during the 1986-87 policy period or a prior policy
period.
5
The district court therefore erred in granting State Farm summary judgment as to the
breach of contract claim.
The district court entered summary judgment as to the remaining claims based on the
finding that State Farm properly denied coverage and thus did not breach its contract with the
Jacksons. Because the district court erred in granting State Farm summary judgment as to the
breach of contract claim, we hold that summary judgment as to the remaining claims was also
improper.
Finally, because of our resolution of this appeal, we conclude that it is unnecessary to
address the remaining contentions.
__________

5
The record only contains the 1977-78 policy and the 1986-87 policy. It is therefore unclear what exclusions
exist in the remaining policies issued by State Farm.
that it is unnecessary to address the remaining contentions. Accordingly, we reverse the
district court's judgment and remand this matter for proceedings consistent with this opinion.
____________
108 Nev. 510, 510 (1992) Kahn v. Orme
JEFFREY KAHN, Appellant, v. BRENT ROBERT ORME, Respondent.
No. 21784
August 5, 1992 835 P.2d 790
An appeal from a district court order denying appellant's NRCP 60(b) motion to set aside a
default judgment. Eighth Judicial District Court, Clark County; Nancy A. Becker, Judge.
Defendant moved to set aside default judgment. The district court denied the motion, and
defendant appealed. The supreme court held that defendant was not entitled to relief based on
mistake, inadvertence, surprise or excusable neglect.
Affirmed.
Richard R. Reed, Las Vegas, for Appellant.
Cohen, Lee, Johnson & Merialdo, Las Vegas, for Respondent.
Standard of review of order denying motion to set aside default judgment is whether district court abused its discretion. NRCP
60(b).
2. Judgment.
District judges are afforded broad discretion in ruling on motion for relief from judgment. NRCP 60(b).
3. Judgment.
Before relieving a party from final judgment on grounds of mistake, inadvertence, surprise, or excusable neglect, district court
must consider whether there was prompt application to remove the judgment, absence of intent to delay proceedings, lack of
knowledge of procedural requirements on part of moving party, good faith on part of moving party, meritorious defense to nonmoving
party's claim for relief, and court must also duly consider state's underlying basic policy of resolving cases on their merits. NRCP
60(b)(1).
4. Judgment.
Party seeking to set aside default judgment has burden to prove mistake, inadvertence, surprise, or excusable neglect, either singly
or in combination, by preponderance of the evidence. NRCP 60(b)(1).
5. Judgment.
Defendant was not entitled to relief from default judgment on ground of mistake, inadvertence, surprise, or excusable neglect;
defendant failed to promptly apply for relief, did not establish lack of intent to delay proceedings or lack of knowledge of procedural
requirements, did not provide good-faith reason for five-month gap between entry of default and time he obtained new
counsel, and did not tender meritorious defense to plaintiff's claim.
108 Nev. 510, 511 (1992) Kahn v. Orme
default and time he obtained new counsel, and did not tender meritorious defense to plaintiff's claim. NRCP 60(b)(1).
6. Judgment.
Meritorious defense, required to set aside default judgment on ground of mistake, inadvertence, or excusable neglect, may be
established by fact testimony, or affidavit, or responsive pleadings tendered in good faith, which, if true, would tend to establish
meritorious defense, opinion of moving party's counsel that meritorious defense exists, or any combination thereof. NRCP 60(b)(1).
OPINION
Per Curiam:
The sole issue on appeal is whether the district judge abused her discretion in denying a
motion to set aside default judgment pursuant to NRCP 60(b). We hold that she did not.
THE FACTS
On or about September 12, 1987, respondent Brent Robert Orme (Orme) was employed
as a doorman for the Moby Grape Nightclub in Las Vegas, Nevada. Appellant Jeffrey Kahn
(Kahn) was a patron at the nightclub, along with his brother Frank and two other
companions. Orme alleges that during the course of the evening, Kahn and his brother
engaged in unruly and destructive behavior, following which Orme asked Kahn to leave the
premises with his party. As Orme walked behind the party, he alleges that Kahn's brother
Frank became abruptly violent and engaged in an unprovoked and malicious attack on Orme.
Orme further alleges that as he was attempting to restrain Kahn's brother, he fell to the ground
and Kahn kicked Orme several times. When the police arrived, Orme was placed under arrest,
based on false accusations apparently manufactured by Kahn.
Orme was subsequently charged with attempted murder and battery. The attempted murder
charge was dropped. Orme was subsequently acquitted of all remaining charges following a
trial before Judge Donald M. Mosely on August 8, 1988. Orme then filed a complaint against
Kahn and his companions for battery, defamation and malicious prosecution on December 2,
1988.
Kahn was personally served with a copy of the summons and complaint, through his wife,
on February 4, 1989, at his residence in San Mateo County, California. After Kahn failed to
file an answer, Orme filed a motion for entry of default judgment which was scheduled for
hearing on April 13, 1989. On April 13, 1989, Kahn made a special appearance through his
counsel, Peter L. Flangas (attorney Flangas), to quash service of process. Kahn's motion
was subsequently granted and Orme petitioned this court for a writ of mandamus, which
was unopposed by Kahn.1 The writ was granted and the district court was instructed to
accept personal jurisdiction over Kahn on November 27, 19S9.
108 Nev. 510, 512 (1992) Kahn v. Orme
this court for a writ of mandamus, which was unopposed by Kahn.
1
The writ was granted
and the district court was instructed to accept personal jurisdiction over Kahn on November
27, 1989. See Orme v. District Court, 105 Nev. 712, 782 P.2d 1325 (1989).
On December 12, 1989, Orme filed a re-notice of motion for entry of default judgment.
The motion was set for hearing on January 3, 1990. However, on or about December 20,
1990, attorney Flangas and Kahn agreed to terminate their attorney-client relationship.
Thereafter, attorney Flangas filed a motion to withdraw and Kahn personally appeared before
Judge J. Charles Thompson, without counsel, at the hearing on January 3, 1990.
2
Judge
Thompson informed Kahn that motions for attorney Flangas' withdrawal and default
judgment were pending and advised him to obtain counsel. The hearing was continued until
January 18, 1990, to be heard before Judge Nancy A. Becker.
Following the January 3, 1990 hearing, Kahn did not obtain counsel as advised. Moreover,
Kahn did not file an opposition to the motion for default judgment, and also failed to
personally appear at the hearing on January 18, 1990. As a result, a default judgment was
entered against Kahn in the amount of $9,624.26 as damages for legal fees incurred by Orme
in his defense of the criminal prosecution instigated by Kahn, together with $134.69 for costs.
The hearing was continued to February 8, 1990, for Orme to prove-up all further damages.
Because of his absence at the hearing on January 18, 1990, Kahn had no notice of the
continuance.
At the hearing on February 8, 1990, Orme provided evidence and testimony regarding the
additional damages. Kahn was not in attendance and was unrepresented. Following the
hearing, the district court awarded Orme $100,000.00 in general damages and $50,000.00 in
punitive damages, for a total award of $159,398.93 plus postjudgment interest. The final
default judgment was filed on February 16, 1990.
Nearly six months later, on August 10, 1990, Kahn filed a motion for relief from judgment
pursuant to NRCP 60(b).
3
Following a hearing held on September 20, 1990, Judge Becker
denied Kahn's motion for relief in an order filed on October 12, 1990.
__________

1
This court received a letter from attorney Flangas on August 2, 1989, wherein he stated that Kahn had not
responded to correspondence advising him of the petition by Orme. Consequently, attorney Flangas did not file
an opposition to the petition, although ordered to respond by this court, because he was apparently unsure as to
whether Kahn had obtained other counsel on the matter.

2
Attorney Flangas filed a motion to withdraw as Kahn's counsel of record on December 21, 1989, wherein
attorney Flangas stated that Kahn was given full notice of the pending motion for entry of default judgment and
the hearing on January 3, 1990.

3
NRCP 60(b) provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or his legal representative
from a final judgment, order, or
108 Nev. 510, 513 (1992) Kahn v. Orme
lowing a hearing held on September 20, 1990, Judge Becker denied Kahn's motion for relief
in an order filed on October 12, 1990.
DISCUSSION
[Headnotes 1, 2]
The standard of review for an order denying a NRCP 60(b) motion for relief is whether the
district court abused its discretion. Heard v. Fisher's Cobb Sales, 88 Nev. 566, 568, 502 P.2d
104, 105 (1972) (citations omitted). District judges are afforded broad discretion in ruling on
NRCP 60(b) motions. Britz v. Consolidated Casinos Corp., 87 Nev. 441, 445, 488 P.2d 911,
914-15 (1971) (trial judge is free to judiciously and reasonably exercise discretion in
determining whether a default judgment should be set aside). Kahn bases his argument
primarily on NRCP 60(b)(1).
[Headnotes 3, 4]
Under NRCP 60(b)(1), the district court may relieve a party from a final judgment on
grounds of mistake, inadvertence, surprise, or excusable neglect. Before granting a NRCP
60(b)(1) motion, the district court must consider several factors, as provided in Yochum v.
Davis, 98 Nev. 484, 653 P.2d 1215 (1982). First there must have been a prompt application
to remove the judgment. Yochum, 98 Nev. at 486, 653 P.2d at 1216 (citing Hotel Last
Frontier v. Frontier Prop., 79 Nev. 150, 380 P.2d 293 (1963)) (citations omitted) (emphasis
added.) Second, there must be an absence of an intent to delay the proceedings. Id.
(Emphasis added). Third, there must be evidence of a lack of knowledge of procedural
requirements on the part of the moving party. Id. (Emphasis added.) Fourth, the motion must
be made in good faith. Id. (Emphasis added.) Fifth, the moving party must promptly
tender a meritorious defense' to the claim for relief. Yochum, 98 Nev. at 487, 653 P.2d at
1216-17 (citations omitted) (emphasis added). Finally, the court must give due consideration
to the state's underlying basic policy of resolving cases on their merits whenever possible.
Yochum, 98 Nev. at 487, 653 P.2d at 1217 (emphasis added). Here, the burden of proof lies
with Kahn, who must show mistake, inadvertence, surprise or excusable neglect, either
singly or in combination . . .
__________
proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud
(whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an
adverse party which would have theretofore justified a court in sustaining a collateral attack upon the
judgment . . . .The motion shall be made within a reasonable time, and for reasons (1) and (2) not more
than six months after the judgment, order, or proceeding was entered or taken.
108 Nev. 510, 514 (1992) Kahn v. Orme
by a preponderance of the evidence. . . .' Britz v. Consolidated Casinos Corp., 87 Nev. 446,
488 P.2d at 911 (1971) (quoting Luz v. Lopes, 358 P.2d 289, 294 (Cal. 1960)).
A. Whether Kahn acted promptly.
[Headnote 5]
Default judgment was entered against Kahn on February 16, 1990. As early as March of
1990, Kahn admitted under oath, while testifying as a witness on behalf of his brother Frank
in a separate trial stemming from the same incident, that he was aware that default judgment
had been entered against him. NRCP 60(b) provides a maximum time of six months in which
a party may file for relief under subsection (1). Despite his knowledge of the default
judgment, Kahn did not file to set it aside until nearly six months of its entry.
In Union Petrochemical Corp. v. Scott, 96 Nev. 337, 609 P.2d 323 (1980), we upheld a
default judgment against a party who filed a NRCP 60(b) motion within the six-month period.
We reasoned that, although Union filed within the deadline provided in NRCP 60(b), it
nevertheless failed to act promptly. We concluded: want of diligence in seeking to set aside a
judgment is ground enough for denial of such a motion. Union, 96 Nev. at 339, 609 P.2d at
324 (citing Lentz v. Boles, 84 Nev. 197, 438 P.2d 254 (1968); Hotel Last Frontier v. Frontier
Prop., 79 Nev. 150, 380 P.2d 293 (1963)). Here, Kahn admittedly knew the default judgment
had been entered against him as early as March of 1990. Kahn did not seek out counsel until
late May of 1990, after which he did not move to set aside the default judgment until August
10, 1990. Under the circumstances, we cannot conclude that the district judge abused her
discretion in finding that Kahn failed to act promptly.
B. Whether the facts show an absence of intent to delay.
Within ten days of Orme's re-notice of motion for entry of default judgment, Kahn
declined to retain attorney Flangas, personally appeared before Judge Thompson at the
hearing on January 3, 1990, and subsequently ignored Judge Thompson's admonitions to
obtain counsel. In fact, Kahn waited for nearly five months to secure other representation.
Furthermore, Kahn failed to file a single motion opposing Orme below. Accordingly, we
conclude that there is sufficient evidence to support the district court's determination that
Kahn failed to establish the absence of an intent to delay.
C. Whether Kahn lacked knowledge of procedural requirements.
Kahn unquestionably had full notice of the hearing on January 18, 1990. All that was
required of Kahn was to either personally appear at the hearing or obtain counsel to appear on
his behalf.
108 Nev. 510, 515 (1992) Kahn v. Orme
Kahn also knew that a hearing for default judgment was pending when he chose to terminate
his relationship with attorney Flangas on December 20, 1989. Kahn's failure to obtain new
representation or otherwise act on his own behalf is inexcusable. As we stated previously in
Union:
we are not confronted here with some subtle or technical aspect of procedure, ignorance
of which could readily be excused. The requirements of the rule are simple and direct.
To condone the actions of a party who has sat on its rights only to make a last-minute
rush to set aside judgment would be to turn NRCP 60(b) into a device for delay rather
than the means for relief from an oppressive judgment that it was intended to be.
Union, 96 Nev. at 339, 609 P.2d at 324 (citing Franklin v. Bartsas Realty, Inc., 95 Nev. 559,
598 P.2d 1147 (1979); Central Operating Co. v. Utility Workers of America, 491 F.2d 245
(4th Cir. 1974)) (emphasis added). Kahn had sufficient knowledge to act responsibly. We
cannot conclude that Kahn failed to respond to set aside the default judgment because he was
ignorant of procedural requirements. Accordingly, we hold that Judge Becker did not abuse
her discretion in deciding this issue.
D. Whether Kahn acted in good faith.
Kahn has not provided any reason for failing to appear at the hearing on January 18, 1990.
Furthermore, he has not provided a reasonable explanation for waiting five months to obtain
other counsel despite having knowledge of the default judgment entered against him.
Accordingly, we conclude that the district court could have reasonably determined that Kahn
lacked good faith in contesting this action.
E. Whether Kahn has produced a meritorious defense.
[Headnote 6]
The elements of a meritorious defense are as follows:
(1) the fact testimony or affidavit of one possessing testimonial qualifications, which
factual information, if true, would tend to establish a defense to all or part of the claim
for relief asserted; or
(2) the opinion of counsel for a party, based upon facts related to him (without setting
forth such facts), that a meritorious defense exists to all or part of the claim for relief
asserted; or
(3) the tendering of a responsive pleading in good faith, with the moving papers, which
responsive pleading, if true, would tend to establish a meritorious defense to all or part
of the claim for relief asserted; or
(4) any combination of the above.
108 Nev. 510, 516 (1992) Kahn v. Orme
Hotel Last Frontier v. Frontier Prop., 79 Nev. 150, 155, 380 P.2d 293, 295 (1963).
In an affidavit attached to his NRCP 60(b) motion, Kahn provided a defense to the battery
claim; however, he did not provide a defense to the charge of malicious prosecution. We
agree with the district court that it cannot be said as a matter of law that Kahn was not guilty
of instigating a malicious prosecution against . . . Orme when he admittedly gave false oral
and written reports . . . to officers. . . .
F. Whether this case should be tried on the merits for policy reasons.
This court has held that good public policy dictates that cases be adjudicated on their
merits. See Hotel Last Frontier v. Frontier Prop., 79 Nev. 150, 155-56, 380 P.2d 293, 295
(1963) (original emphasis). However, this policy has its limits:
We wish not to be understood, however, that this judicial tendency to grant relief
from a default judgment implies that the trial court should always grant relief from a
default judgment. Litigants and their counsel may not properly be allowed to disregard
process or procedural rules with impunity. Lack of good faith or diligence, or lack of
merit in the proposed defense, may very well warrant a denial of the motion for relief
from the judgment.
Lentz v. Boles, 84 Nev. 197, 200, 438 P.2d at 256 (1968).
The trial court concluded that Kahn failed to show mistake, inadvertence, surprise or
excusable neglect sufficient to justify relief from that default judgment entered against him on
February 18, 1990, under the terms of Nev. R. Civ. P. 60(b). (Emphasis added.) A court has
wide discretion in determining what neglect is excusable and what is inexcusable. Britz v.
Consolidated Casinos Corp., 87 Nev. 441, 445-46, 488 P.2d 911, 915 (1971) (quoting
Cicerchia v. Cicerchia, 77 Nev. 158, 161, 360 P.2d 839, 841 (1961)). Accordingly, we cannot
conclude that Judge Becker abused her discretion in ruling against Kahn below.
CONCLUSION
Kahn has failed to show that the district court abused its discretion in denying him relief
from the default judgment pursuant to NRCP 60(b). Kahn has had every opportunity to
properly defend this action and appears to have made a voluntary choice not to. Therefore, we
conclude that the district court reasonably applied the basic factors in evaluating a NRCP
60(b) motion and did not abuse its discretion in denying Kahn's motion for relief. We have
reviewed all other issues on appeal and conclude that they lack merit.
____________
108 Nev. 517, 517 (1992) Dougan v. Gustaveson
PENNY COLLEEN DOUGAN, Appellant v. ROY GUSTAVESON, JOAN GUSTAVESON,
LILLIAN F. LAMPI, CARL A. LAMPI, RICHARD McMILLIAN, Individually and
Doing Business as GLM PARTNERSHIP and LAKE TAHOE
ACCOMMODATIONS, Respondents.
No. 21803
August 5, 1992 835 P.2d 795
Appeal from an order of the district court dismissing appellant's complaint pursuant to
NRCP 4(i) and NRCP 16.1. Ninth Judicial District Court, Douglas County; Norman C.
Robison, Judge.
Guest sued property managers for injuries sustained at residence. The district court entered
order granting managers' motion to dismiss, and guest appealed. The supreme court held that
dismissal was unwarranted where property managers had waived objection to untimely
service by failing to seasonably assert defense, even though calendaring mistake resulting in
untimely service did not constitute excusable neglect.
Laura Wightman FitzSimmons, Las Vegas, and Michael Allen Laub, Zephyr Cove, for
Appellant.
Vargas & Barlett, Reno, Nicholas Frey, Reno, and William B. Cherry, Jr., Stateline, for
Respondents.
1. Process.
Plaintiff failed to demonstrate good cause for untimely service of process upon defendants where plaintiff alleged mere calendaring
mistake as excusable neglect. NRCP 4(i).
Barring legitimate excuse, service rule is mandatory and requires dismissal if service is untimely.
3. Courts.
Interpretation of federal counterpart to state rule of civil procedure is not controlling, but may be persuasive.
4. Process.
Where defendants waited 351 days to object to service which was eight days late without alleging any way in which they had been
prejudiced, defendants waived objection to untimely service by failing to seasonably assert defense in first responsive pleading or in
prepleading motion. NRCP 4(i).
If early case conference is not held within 180 days after service of summons and complaint, case may be dismissed without
prejudice, unless there are compelling and extraordinary circumstances for continuance beyond this period. NRCP 16.1(e)(1).
Case may be dismissed without prejudice if plaintiff does not file case conference report within 240 days after service of summons
and complaint. NRCP 16.1(e)(2).
Dismissal of plaintiff's complaint for failure to timely comply with discovery provisions concerning case conferences was
unwarranted where defendants' answers were not served until well past deadline for holding early case conference and guest had tried
to comply with case conference rules. NRCP 16.1.
8. Courts; Pretrial Procedure.
Timeliness provisions written into rules of civil procedure will, as a general proposition, be enforced by court in order to promote
timely and efficient processing of cases.
OPINION
Per Curiam:
Appellant Penny Dougan filed a complaint for personal injuries against the respondents.
Upon the respondents' motions, the district court dismissed the complaint for failure to serve
the summons and complaint within 120 days and failure to comply with the requirements of
NRCP 16.1, regarding mandatory pretrial discovery. We conclude that dismissal was
unwarranted and reverse.
Facts
On May 8, 1987, Dougan attended a party at a residence owned by three couples under the
name of GLM Partnership (GLM) and Managed by Lake Tahoe Accommodations (LTA).
Dougan, then nineteen years old, alleges that she was injured while a guest at the residence
when the upstairs loft, occupied by several other guests, collapsed and fell on her.
Shortly before the statute of limitations ran, on May 2, 1989, Dougan filed a complaint
against the respondents seeking damages for personal injuries suffered in the accident.
Dougan later filed an amended complaint on August 29, 1989. The GLM partners were
served with the summons and complaint between September 2, and September 7, 1989
(slightly over 120 days after the complaint was filed). LTA was served on September 7, 1989.
In September 1989, Dougan accommodated requests by the insurers of GLM and LTA to
grant the latter entities an open extension of time within which to answer the complaint. On
May 14, 1990, Dougan sent a demand letter to LTA's insurance company, detailing Dougan's
injuries and offering to settle the claim with LTA for $50,000. Three days later, Dougan
withdrew the offer to settle and the open extension of time, and requested that LTA file an
answer.
1
LTA filed its answer on June 26, 1990; GLM answered on July 6, 1990 and
asserted claims against LTA and the tenants who occupied the residence at the time of
the accident.
__________

1
Apparently, Dougan also withdrew GLM's extension at this time, although the record does not contain any
such communication.
LTA filed its answer on June 26, 1990; GLM answered on July 6, 1990 and asserted
claims against LTA and the tenants who occupied the residence at the time of the accident.
LTA filed an amended answer and cross-claim against GLM on July 16, 1990, followed by a
claim against the tenants later in the following month.
On August 24, 1990, LTA filed an NRCP 4(i) motion to dismiss Dougan's complaint for
failure to serve LTA within 120 days of filing the complaint. The motion also sought
dismissal under NRCP 16.1, for failure to hold an early case conference and submit a case
conference report within the required time limits. On October 3, 1990, GLM also filed a
motion to dismiss based upon Dougan's failure to comply with NRCP 16.1.
On December 3, 1990, the district court entered an order granting the respondents' motions
to dismiss on the grounds requested. Although Dougan's complaint was dismissed without
prejudice, the effect of the dismissal was final because the statute of limitations had run. After
the district court certified the judgment as final, this appeal followed.
Discussion
Dismissal Under NRCP 4(i)
Dougan's complaint against LTA was dismissed under NRCP 4(i), which states:
If a service of the summons and complaint is not made upon a defendant within 120
days after the filing of the complaint and the party on whose behalf such service was
required cannot show good cause why such service was not made within that period,
the action shall be dismissed as to that defendant without prejudice upon the court's
own initiative without notice to such party or upon motion.
Dougan's complaint was filed on May 2, 1989. Therefore, under NRCP 4(i), the respondents
should have been served by August 30, 1989. LTA was served on September 7, 1989eight
days late.
2

Dougan first claims that the untimely service was the result of excusable neglect, and
should have been justified under the NRCP 4(i) good cause exception. Dougan contends
that service was late because the secretary who calendared the service of process mistakenly
thought that service had to occur within 120 days after the date of return of the filed
complaint from the clerk of the court, rather than 120 days after the complaint was filed.
The only cases in which we have addressed the NRCP 4(i) good cause exception are
Dallman v. Merrell, 106 Nev. 929, S03 P.2d 232 {1990), and Domino v. Gaughan, 103 Nev.
5S2
__________

2
Although Dougan's service upon GLM was also untimely, GLM did not object to the service.
good cause exception are Dallman v. Merrell, 106 Nev. 929, 803 P.2d 232 (1990), and
Domino v. Gaughan, 103 Nev. 582, 747 P.2d 236 (1987). In Dallman, we upheld an NRCP
4(i) dismissal where service was made more than 100 days late, no good cause for the delay
was shown, and the defendant was prejudiced by the delay. In contrast, we determined in
Domino that good cause existed for the plaintiff's failure to effect timely service of process.
The evidence indicated that Domino's complaint had been filed by Nevada counsel, with the
understanding that California counsel would arrange for service. Shortly before the 120-day
limit expired, California counsel requested Nevada counsel to effect service of process. Due
to various difficulties, including the illness of counsel, the defendant was not served until
after the deadline passed.
[Headnotes 1, 2]
Although Dougan invokes Domino as controlling here, the facts are dissimilar in that the
instant case reflects no illness or last minute changes in counsel. Dougan alleged merely a
calendaring mistake. The cases interpreting the analogous federal rule of procedure have
consistently held that inadvertence does not justify untimely service. See, e.g., Wei v. Hawaii,
763 F.2d 370 (9th Cir. 1985); Geiger v. Allen, 850 F.2d 330, 333 (7th Cir. 1988). The good
cause exception in NRCP 4(i) furthers the goal of deciding cases on their merits when
legitimate extenuating circumstances exist. Barring a legitimate excuse, however, the
language of NRCP 4(i) is mandatory and requires dismissal. Accordingly, we determine that
the district court properly ruled that Dougan failed to demonstrate good cause for her
untimely service of process. See Whale v. United States, 792 F.2d 951 (9th Cir. 1986) (the
decision to dismiss a complaint for failure to effect timely service of process lies within the
sound discretion of the district court), cited in Domino at 584, 747 P.2d at 237.
Dougan's next assignment of error, however, has merit. Dougan persuasively claims that
LTA waived its objection to the late service because it failed to raise the issue until two
months after its answer was filednearly a year after LTA was served.
[Headnote 3]
Although this court has not previously considered whether an objection to untimely service
may be waived, Dougan's position has merit under a line of federal cases interpreting Federal
Rule of Civil Procedure 4(j), which is virtually identical to NRCP 4(i).
3
The interpretation of
a federal counterpart to a Nevada Rule of Civil Procedure is not controlling, but may be
persuasive.
__________

3
The only difference between the two rules is an additional sentence in the federal rule which states that the
rule is inapplicable to service in a foreign country.
of Civil Procedure is not controlling, but may be persuasive. See Bowyer v. Taack, 107 Nev.
625, 629, 817 P.2d 1176, 1178 (1991).
[Headnote 4]
The federal cases have consistently held that a defendant who fails to timely assert a defect
in service may be barred from doing so later. See, e.g., Pusey v. Dallas Corp., 938 F.2d 498
(4th Cir. 1991); Dunbar Corp. v. Lindsey, 905 F.2d 754 (4th Cir. 1990); Pardazi v. Cullman
Medical Center, 896 F.2d 1313 (11th Cir. 1990); Kersh v. Derozier, 851 F.2d 1509 (5th Cir.
1988). Despite the mandatory language of the FRCP 4(j) dismissal provision, these federal
courts have determined that the defense of insufficient service of process may be waived
under FRCP 12(b) for failure to raise the defense in the answer or a pre-answer motion.
4

The reasoning of the federal courts is persuasive here. LTA failed to object to Dougan's
untimely service in its first responsive pleading or a pre-pleading motion. The rules of civil
procedure are to be construed to secure the just, speedy, and inexpensive determination of
every action. NRCP 1. If these interest were jeopardized because Dougan took eight extra
days to complete service, then LTA was more than derelict in waiting 351 days to object to
the late service. In addition, LTA has failed to allege any way in which it has been prejudiced
by the late service. Under the fact-specific circumstances presented here, we conclude that
LTA waived its objection to Dougan's untimely service by failing to seasonably assert the
defense in its first responsive pleading or a pre-pleading motion. Thus, Dougan's complaint
against LTA was erroneously dismissed on the basis of NRCP 4(i).
Dismissal Under NRCP 16.1
Dougan's complaint against LTA and GLM was also dismissed because of Dougan's
failure to meet deadlines prescribed in NRCP 16.1, which mandates certain pretrial discovery
measures. Subsection (a) requires litigants' attorneys to attend an early case conference to
begin the discovery process and discuss settlement. This early case conference is to be held
within thirty days after service of the answer by the first answering defendant. The parties or
the court may extend the time in which to hold the first conference, but [a]bsent compelling
and extraordinary circumstances, neither the court nor the parties may extend the time to a
day more than one hundred and eighty (180) days after service of
__________

4
NRCP 12(b) also requires defenses to be raised in the responsive pleading or a pre-pleading motion. If the
defense of insufficient service of process is not raised according to NRCP 12(b), it is waived. NRCP 12(h)(1).
the summons and complaint upon the defendant in question. NRCP 16.1(a).
In addition, NRCP 16.1(c) requires the parties to file a joint case conference report within
30 days after each case conference. Although no case conference was ever held, Dougan filed
a purported case conference report with the court on May 29, 1990, in attempted compliance
with the rule.
[Headnotes 5, 6]
Rule 16.1 provides specific sanctions for failure to comply with its mandates. If the early
case conference is not held within 180 days after service of the summons and complaint, the
case may be dismissed without prejudice, unless there are compelling and extraordinary
circumstances for a continuance beyond this period. NRCP 16.1(e)(1). The case may also be
dismissed without prejudice if a plaintiff does not file a case conference report within 240
days after service of the summons and complaint. NRCP 16.1(e)(2). Dougan's complaint was
dismissed for failure to meet these deadlines.
[Headnote 7]
On appeal, Dougan argues that the delay in commencing discovery was due to the
respondents' delay in filing their answers to the complaint. Dougan further contends that she
attempted to comply with the NRCP 16.1 requirements by submitting a unilateral case
conference report in May 1990, scheduling a case conference for September 13, 1990, and
writing to respondents to request documents in connection with the first case conference.
Finally, Dougan contends that dismissal was an excessive sanction for failure to meet the
early case conference deadlines.
LTA and GLM's answers were not served until well past the deadline for holding an early
case conference because of the open extension of time given at the request of both
defendants. It would have been fruitless to hold a case conference before the defendants
answered and the case was at issue. Furthermore, respondents have failed to show any
prejudice that they suffered because of Dougan's accommodation of their requests for
extensions at the predictable and probable risk of failing to meet the Rule 16.1 deadlines.
Under these unique circumstances, we determine that the dismissal of Dougan's complaint for
failure to timely comply with the discovery provisions of NRCP 16.1 was unduly harsh.
[Headnote 8]
Despite our decision in this case, we do not mean to de-emphasize the importance of
compliance with the rules of civil procedure. The timeliness provisions written into the rules
will, as a general proposition, be enforced by the courts in order to promote the timely and
efficient processing of cases.
promote the timely and efficient processing of cases. In effect, these provisions recognize
judicial commitment to the proposition that justice delayed is justice denied. We therefore
commend the district courts and discovery commissioners for their vigilance in promoting
reasonable diligence on the part of counsel. However, we are mindful that occasionally an
overly strict application of a ruleespecially when coupled with ultimate sanctionswill
defeat the very ends of justice that the rules are designed to promote.
For the reasons discussed above, we determine that dismissal was unwarranted under the
circumstances of this case, and reverse the decision of the district court and remand this
matter for further proceedings.
____________
108 Nev. 523, 523 (1992) Drake v. State
MICHAEL FRANK DRAKE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22741
August 5, 1992 836 P.2d 52
Proper person appeal from an order of the district court denying a petition for
post-conviction relief. Eighth Judicial District Court, Clark County; Joseph T. Bonaventure,
Judge.
Following conviction for three counts of sexual assault, petitioner sought post-conviction
relief. The district court denied petition, without appointing counsel or conducting an
evidentiary hearing, and petitioner appealed. The supreme court held that petitioner was
entitled to evidentiary hearing on issue of whether he had received effective assistance of
counsel.
Michael Frank Drake, in Proper Person, for Appellant.
1. Criminal Law.
Post-conviction petitioner was entitled to evidentiary hearing on claim that counsel was ineffective in rape prosecution in failing
adequately to oppose state's motion in limine to exclude evidence of victim's criminal record for prostitution. NRS 48.069, 50.090,
50.095; U.S.C.A.Const. amend. 6.
2. Rape.
Rape shield laws, restricting admissibility of victim's prior sexual conduct, do not apply to acts of illegal prostitution. NRS 48.069,
50.090.
108 Nev. 523, 524 (1992) Drake v. State
3. Rape.
Although defendant in rape prosecution is not precluded by rape shield laws from asking victim about arrest record for
prostitution, he may not introduce extrinsic evidence of such a record if only purpose of evidence is to attack victim's credibility. NRS
48.069, 50.085, subd. 3, 50.090.
OPINION
Per Curiam:
This is a proper person appeal from an order of the district court denying a petition for
post-conviction relief.
On November 15, 1989, the district court, pursuant to a jury verdict, convicted appellant of
three counts of sexual assault and sentenced appellant to three concurrent terms of fifteen
years in the Nevada State Prison. This court dismissed appellant's direct appeal.
On June 5, 1991, appellant filed in the district court a petition for post-conviction relief.
That petition was opposed by the state. On October 14, 1991, the district court, without
appointing counsel or conducting an evidentiary hearing, denied appellant's petition. This
appeal followed.
[Headnote 1]
On February 28, 1992, this court filed an order noting that our preliminary review of the
record on appeal indicated that the district court may have erred in dismissing appellant's
petition for post-conviction relief without an evidentiary hearing. In that order we expressed
the following concerns:
In the instant case, appellant has alleged ineffective assistance of counsel.
Specifically, appellant has alleged that his counsel failed adequately to oppose a motion
in limine to exclude the victim's criminal record. Attached to appellant's petition was
what appears to be a record of numerous arrests of the victim for various crimes,
including prostitution, and providing false information to a police officer. We note that
the state's motion in limine asserts that the victim's criminal record is of no relevance
because appellant planned to use an alibi defense, thus making consent irrelevant.
Further, the state argued that prior sexual history was inadmissible merely to challenge
credibility. NRS 50.090. We are not convinced, however, that the state's arguments are
well taken. First, there is no inconsistency in asserting an alibi defense and also
challenging the victim's veracity with an extensive arrest record. Second, it is not at all
clear that NRS 50.090 would apply to an arrest record for prostitution. Accordingly, if
appellant's allegations are true, his trial counsel was arguably ineffective for not
attempting to bring this information to the attention of the jury.
108 Nev. 523, 525 (1992) Drake v. State
Accordingly, we ordered the state to show cause why the order of the district court denying
appellant's petition for post-conviction relief should not be vacated and this matter remanded
to the district court for a proper consideration of appellant's claims. The state has now
responded to our order.
The state first contends that appellant failed to show that his counsel was ineffective
pursuant to Strickland v. Washington, 466 U.S. 668 (1984). The state's reliance on Strickland,
however, is misplaced. The question in this case is not whether appellant proved his counsel
was ineffective, but whether appellant made allegations which entitled him to an evidentiary
hearing. See Hargrove v. State, 100 Nev. 498, 686 P.2d 222 (1984); Grondin v. State, 97 Nev.
454, 634 P.2d 456 (1981).
The state concedes that, under certain circumstances, evidence of prior sexual conduct may
be admitted into evidence to prove consent. NRS 48.069.
1
Nevertheless, the state argues that
appellant's alibi defense made the issue of consent irrelevant. The state suggests that the only
possible relevance of the victim's arrest record would be to attack her veracity. The state notes
that evidence of prior sexual conduct is inadmissible to attack the credibility of a victim of
sexual assault. NRS 50.090.
2
Finally, the state notes that only felony convictions may be
used to attack the credibility of a witness, and that the victim was convicted only of
misdemeanors.
__________

1
NRS 48.069 reads as follows:
In any prosecution for sexual assault or for attempt to commit or conspiracy to commit a sexual
assault, if the accused desires to present evidence of any previous sexual conduct of the victim of the
crime to prove the victim's consent:
1. The accused must first submit to the court a written offer of proof, accompanied by a sworn
statement of the specific facts that he expects to prove and pointing out the relevance of the facts to the
issue of the victim's consent.
2. If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the
presence of the jury, if any, and at the hearing allow the questioning of the victim regarding the offer of
proof.
3. At the conclusion of the hearing, if the court determines that the offered evidence:
(a) Is relevant to the issue of consent; and
(b) Is not required to be excluded under NRS 48.035, the court shall make an order stating what
evidence may be introduced by the accused and the nature of the questions which he is permitted to ask.
The accused may then present evidence or question the victim pursuant to the order.

2
In any prosecution for sexual assault or statutory sexual seduction or for 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 absence of such conduct, in
which case the scope of the accused's cross-examination of the victim or rebuttal must be limited to the
evidence presented by the prosecutor or victim.
108 Nev. 523, 526 (1992) Drake v. State
the credibility of a witness, and that the victim was convicted only of misdemeanors. NRS
50.095.
The state's argument is without merit. In Cox v. State, 102 Nev. 253, 721 P.2d 358 (1986),
this court considered the refusal of a district court to allow a defendant accused of attempted
sexual assault to show that the alleged victim applied for an escort license shortly after the
incident. This court held that the district court's refusal to allow Cox to show that the victim
applied for an escort license was a violation of Cox's rights under the confrontation clause of
the Sixth and Fourteenth Amendments to the United States Constitution. Id. at 256-57, 721
P.2d at 360.
An arrest record for prostitution is much more than simple evidence of prior sexual
conduct. The victim's arrest record shows a long-standing pattern of criminal dishonesty and
sexual crimes. This would appear to be clearly probative to an allegation of sexual assault. To
deny appellant the right to introduce this evidence would be to deny him the right to confront,
in any meaningful way, the most significant witness against him.
The rape shield laws contained in NRS 48.069 and 50.090 were enacted to promote
important policies, and reverse certain antiquated misconceptions concerning rape. This court
has previously explained the purpose behind Nevada's rape shield laws, as follows:
Such laws have generally been designed to reverse the common law rule applicable
in rape cases, that use of evidence of a female complainant's general reputation for
morality and chastity was admissible to infer consent and also to attack credibility
generally. Thus, for example, it had been held: It is a matter of common knowledge
that the bad character of a man for chastity does not even in the remotest degree affect
his character for truth, when based upon that alone, while it does that of a woman.
State v. Sibley, 33 S.W. 167, 171 (Mo. 1895), quoted in State v. Brown, 636 S.W.2d
929, 933 n. 3 (Mo. 1982), cert. denied sub nom., Brown v. Missouri, 103 S.Ct. 1207
(1983). Such statutes as Nevada's have been described as directed at the misuse of
prior sexual conduct evidence based on this antiquated and obviously illogical
premise. State v. Hudlow, 659 P.2d 514, 519 (Wash. 1983). See also People v.
McKenna, 585 P.2d 275, 278 (Colo. 1978). An additional purpose of such statutes is
to protect rape victims from degrading and embarrassing disclosure of intimate details
about their private lives.' 124 Cong. Rec. at H 11945 (1978), quoted in Doe v. United
States, 666 F.2d 43, 45 (4th Cir. 1981). Finally, [t]he restrictions placed on the
admissibility of certain evidence by the rape-shield laws will, it was hoped, encourage
rape victims to come forward and report the crimes and testify in court protected
from unnecessary indignities and needless probing into their respective sexual
histories."
108 Nev. 523, 527 (1992) Drake v. State
encourage rape victims to come forward and report the crimes and testify in court
protected from unnecessary indignities and needless probing into their respective sexual
histories. State v. Lemon, 456 A.2d 261, 264 (R.I. 1983).
Summitt v. State, 101 Nev. 159, 161, 697 P.2d 1374, 1375 (1985).
[Headnote 2]
When dealing with illegal acts of prostitution, however, the policies behind the rape shield
laws largely disappear. Illegal acts of prostitution are not intimate details of private life. They
are criminal acts of sexual conduct engaged in, for the most part, with complete strangers.
The legislature could not have intended to afford special protection, beyond that afforded to
other criminal conduct, to acts of illegal prostitution just because those acts happen to involve
sexual conduct. We hold that NRS 48.069 and NRS 50.090 do not apply to illegal acts of
prostitution. This is not to say that a victim's prior arrest record for prostitution must always
be admitted in a sexual assault case. By this opinion, we merely place a prior arrest record for
prostitution on an equal footing with other evidence of misconduct. Like other kinds of
evidence, a prior arrest record for prostitution is subject to considerations of, for example,
confusion and prejudice. NRS 48.035.
3
In the appropriate case, a district court could
properly exercise its discretion by refusing to admit such evidence.
[Headnote 3]
Further, we note that [s]pecific instances of the conduct of a witness . . . other than
conviction of crime are not admissible for the purpose of attacking credibility. NRS
50.085(3). Even in the case of conviction of a crime, in order to be admissible for the purpose
of attacking credibility the crime must be one punishable by death or imprisonment for more
than 1 year . . . . NRS 50.095(1). Therefore, while a defendant might be entitled to ask a
witness about an arrest record for prostitution, he would normally not be able to introduce
extrinsic evidence of such a record if the only purpose of the evidence was to attack the
credibility of the witness. NRS 50.085(3).
Next, assuming, without suggesting, that it would be inconsistent for appellant to assert an
alibi defense and also introduce the victim's arrest record, there is no rule of law which
would prohibit appellant from presenting inconsistent defenses.
__________

3
NRS 48.035 reads, in part, as follows:
1. Although relevant, evidence is not admissible if its probative value is substantially outweighed by
the danger of unfair prejudice, of confusion of the issues or of misleading the jury.
considerations of undue delay, waste of time or needless presentation of cumulative evidence.
108 Nev. 523, 528 (1992) Drake v. State
victim's arrest record, there is no rule of law which would prohibit appellant from presenting
inconsistent defenses. Even if the defenses are inconsistent and competent counsel would
only present one of them, it is not at all clear that competent counsel should not have
attempted to impeach the victim with her arrest record rather than use an alibi defense. From
the documents attached to appellant's petition for post-conviction relief, it appears that the
victim had been arrested approximately twenty-one times for prostitution, twice for providing
false information to a police officer, six times for obstructing a police officer, and once each
for contempt of court and possession of false identification. This type of information may
well have been much more convincing to a jury than an alibi defense offered in the face of the
victim's testimony that appellant was, indeed, the perpetrator.
Appellant's petition for post-conviction relief plainly contained contentions, supported by
specific allegations of fact which, if true, would entitle appellant to relief. Those contentions
were not repelled by the record. Therefore, appellant was entitled to an evidentiary hearing.
See Hargrove v. State, 100 Nev. 498, 686 P.2d 222 (1984); Grondin v. State, 97 Nev. 454,
634 P.2d 456 (1981).
Accordingly, we vacate the order of the district court denying appellant's petition for
post-conviction relief. We remand this matter to the district court for a proper consideration
of appellant's claims.
4

____________
108 Nev. 528, 528 (1992) LaPierre v. State
RICHARD FRANCIS LaPIERRE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22466
August 5, 1992 836 P.2d 56
Appeal from a judgment of conviction of ten counts of sexual assault with a minor under
fourteen years of age. Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
The supreme court held that: (1) evidence was insufficient as to five counts; (2) evidence
as to prior inconsistent statements of a witness was improperly excluded; and (3) testimony
regarding an act of which defendant had been acquitted was inadmissible.
Vacated in part, reversed in part and remanded.
__________

4
Although appellant has not been granted permission to file documents in this matter in proper person, see
NRAP 46(b), we have received and considered appellant's proper person documents. We deny as moot
appellant's motion for appointment of counsel, and appellant's motion for an extension of time in which to file an
opening brief.
Morgan D. Harris, Public Defender, and Howard S. Brooks, Deputy Public Defender,
Clark County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney; and
James Tufteland and John P. Lukens, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Standard of review for sufficiency of evidence on appeal from conviction is whether jury, acting reasonably, could have been
convinced of defendant's guilt beyond a reasonable doubt, and where there is substantial evidence to support jury's verdict, verdict will
not be upset on appeal.
2. Assault and Battery; Rape.
Evidence was insufficient as to five of ten counts of sexual assault on a minor where child testified to five particular incidents but,
as to the other five counts, testified only that the total was ten or more and that she knew that it was ten or more because he was
doing it up until he left.
3. Rape.
Testimony of sexual assault victim alone is sufficient to uphold conviction, but victim must testify with some particularity
regarding the incident in order to uphold the charge.
4. Assault and Battery.
Child victim of sexual assault is not required to specify the exact number of incidents, but there must be some reliable indicia that
the number of acts charged actually occurred.
5. Criminal Law; Witnesses.
In prosecution for sexual assault on a child, in which defendant's former wife denied making any statements that victim had
previously been sexually abused while in foster care, testimony of two witnesses as to prior inconsistent statements by the former wife
was admissible for impeachment and as substantive evidence that victim had previously been sexually abused while in foster care.
NRS 51.035, 51.035, subd. 2(a).
6. Criminal Law.
In prosecution for sexual assault of minor by means of digital penetration, in which defendant had previously been acquitted on a
count charging penile penetration, statements and testimony of examining physician and of police officer who had read doctor's report,
referring to penile penetration, was not admissible under the complete story of the crime doctrine, where both physician and officer
could easily have tailored their testimony to omit any such reference, in that mention of penile penetration was not necessary detail in
testimony of either witness and was not crucial to jury's understanding of interactions which transpired between the child and either the
physician or the police officer. NRS 48.035.
OPINION
Per Curiam:
FACTS
In 1984, Richard LaPierre (Richard) and his wife, Maria LaPierre {Maria), allowed
Maria's granddaughter to come live with them.
LaPierre (Maria), allowed Maria's granddaughter to come live with them. The child had been
in and out of foster homes for approximately two years. In March 1986, the LaPierres adopted
the little girl.
In June 1989, the marriage ended and Richard moved out of the residence. Within three
weeks, the child (who was nearly nine years old at the time) told her uncle that Richard had
been molesting her. Richard was initially charged with eleven counts of sexual assault with a
minor under fourteen years of age. Counts I through X charged digital penetration of the little
girl's vagina; count XI charged penile penetration of her vagina. After the jury trial, Richard
was acquitted of count XI. However, the jury was deadlocked on the other ten counts, and
Richard was tried a second time on counts I through X in the current case. The jury found him
guilty of all ten counts and he was sentenced to life with the possibility of parole on all
counts. The sentences on counts I through IV run consecutively; the remaining sentences run
concurrently.
INSUFFICIENCY OF THE EVIDENCE ON FIVE COUNTS
[Headnote 1]
Richard's first argument on appeal is that there was insufficient evidence to convict him of
all ten counts. The standard of review for sufficiency of the evidence upon appeal is whether
the jury, acting reasonably, could have been convinced of the defendant's guilt beyond a
reasonable doubt. Edwards v. State, 90 Nev. 255, 258-59, 524 P.2d 328, 331 (1974). Where
there is substantial evidence to support the jury's verdict, the verdict will not be upset on
appeal. Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981).
[Headnotes 2-4]
Richard argues that the victim only testified with particularity to four incidents of sexual
assault and therefore six of the convictions should be vacated. Our reading of the record
indicates that the victim testified with particularity to five incidents, not four. The first
incident occurred while the child was watching television and the second incident occurred
the next day. The third incident occurred when Richard called her into his bedroom. The
fourth and fifth incidents occurred on the Saturday and Sunday of the weekend before
Richard permanently left the family residence.
What concerns us is the victim's testimony regarding the remaining five counts. When the
child was asked at trial how many times Richard assaulted her, she answered, Ten or more.
When asked how she knew that was the number, she replied, Because he was doingI don't
know. I know it's ten or more because he was doing it up until he left."
because he was doing it up until he left. When she was asked later if she was absolutely sure
how many times it happened, she answered, No, I'm not absolutely sure. That's why I said
ten or more. It is important to note that during oral argument before this court, the State
conceded that there was insufficient evidence to convict Richard of all the counts and
stipulated to vacating five of the ten counts of conviction.
We have repeatedly held that the testimony of a sexual assault victim alone is sufficient to
uphold a conviction. See, e.g., Deeds v. State, 97 Nev. 216, 217, 626 P.2d 271, 272 (1981);
Henderson v. State, 95 Nev. 324, 326, 594 P.2d 712, 713 (1979). However, the victim must
testify with some particularity regarding the incident in order to uphold the charge. We are
cognizant that child victims are often unable to articulate specific times of events and are
oftentimes reluctant to report the abuse to anyone until quite some time after the incident.
Cunningham v. State, 100 Nev. 396, 400, 683 P.2d 500, 502 (1984). We also understand that
it is difficult for a child victim to recall exact instances when the abuse occurs repeatedly over
a period of time. We do not require that the victim specify exact numbers of incidents, but
there must be some reliable indicia that the number of acts charged actually occurred. In this
case, the child's testimony consisted of her speculation that it must have happened at least ten
times. Something more is required to support a conviction. If the victim in this case had
testified that the incidents occurred every weekend for the period of time Richard resided in
the family home or that he assaulted her nearly every weekend, we might view this case
differently. Here, however, the victim's testimony consisted of mere conjecture regarding five
of the counts. We agree with Richard that the victim's testimony regarding five of the counts
was not supported by sufficient evidence and hereby vacate five of the convictions.
PRIOR INCONSISTENT STATEMENT OF A WITNESS
[Headnote 5]
Prior to trial, Richard moved in limine to allow impeachment testimony on the issue of
whether Maria had told anyone that the victim had been sexually abused while in foster care.
The defense expected Maria to deny making any statements regarding prior sexual abuse of
the child, and indeed, at trial she did so deny making any such statement. Two witnesses
made an offer of proof that Maria had told them that the child had been sexually abused while
in foster care. Richard wished to introduce the testimony for impeachment purposes. The
district court denied the motion without stating the grounds for the denial. On appeal, Richard
argues that the prior inconsistent statement should have been admitted. We agree.
NRS 50.135
1
allows the introduction of a prior contradictory statement of a witness.
Here, Maria was on the witness stand and available to explain or deny the alleged previous
statement; both the defense and the prosecution had an opportunity to interrogate her
regarding the statement. The inconsistent statement was also admissible as substantive
evidence that the victim had previously been sexually abused while in foster care. See NRS
51.035(2)(a);
2
Miranda v. State, 101 Nev. 562, 567, 707 P.2d 1121, 1124 (1985).
We therefore conclude that the district court erred in refusing to admit Maria's prior
inconsistent statement.
ACQUITTAL EVIDENCE
[Headnote 6]
Prior to trial, Richard moved for the exclusion of any testimony regarding penile
penetration of the victim, as he had been acquitted of that act. The district court judge refused
to exclude the testimony on the basis that exclusion would require the witnesses to change
their testimony and he was unwilling to direct the witnesses to alter their statements.
During the trial, two witnesses testified as to penile penetration. The first witness was Dr.
Zak, the victim's examining physician. She stated that during examination, the child was
concerned about being pregnant and told her that the penis had been put inside of her
vagina. Due to the physical condition of the child's vagina, Dr. Zak concluded in court that
she had probably been penetrated by a penis. At this point, the district court informed the jury
that the victim's statements to Dr. Zak were so interconnected that they could not be
reasonably excised from the witness' testimony and advised the jury that Richard was not
being charged with penile penetration. The second witness was a Las Vegas police officer,
who testified that she had read the doctor's report which indicated that Richard had
penetrated the child with his penis.
__________

1
2. Extrinsic evidence of a prior contradictory statement by a witness is inadmissible unless:
. . . .
(b) The witness is afforded an opportunity to explain or deny the statement and the opposite party is
afforded an opportunity to interrogate him thereon.

2
Hearsay means a statement offered in evidence to prove the truth of the matter asserted unless:
. . . .
2. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the
statement, and the statement is:
(a) Inconsistent with his testimony;
. . . .
doctor's report which indicated that Richard had penetrated the child with his penis. The
district court did not repeat the cautionary instruction.
Under certain circumstances, evidence of another crime may be introduced at trial under
the complete story of the crime doctrine. See NRS 48.035;
3
Cirillo v. State, 96 Nev. 489,
493, 611 P.2d 1093, 1095 (1980). The doctrine is inapplicable here. Both Dr. Zak and the
police officer easily could have tailored their testimony to omit any reference to penile
penetration. Mention of penile penetration was not a necessary detail of either witness'
testimony, nor was it crucial to the jury's understanding of the interactions which transpired
between the child and the physician and the child and the police officer.
CONCLUSION
The level of prejudice to Richard arising from the admission of the acquittal evidence,
along with the district court's erroneous denial of Maria's prior inconsistent statement,
requires reversal of the remaining five counts of conviction.
We therefore vacate five counts of conviction for insufficient evidence, reverse five counts
of conviction and remand for a re-trial on the reversed counts only.
____________
108 Nev. 533, 533 (1992) Walker v. American Bankers Ins.
JAMES WALKER, Appellant, v. AMERICAN BANKERS INSURANCE GROUP,
Respondent.
No. 22647
August 5, 1992 836 P.2d 59
Appeal from an order of the district court granting a motion for summary judgment. Eighth
Judicial District Court, Clark County; John S. McGroarty, Judge.
Homeowner's insurer brought action against its insured for declaratory judgment that
insured was not entitled to recover for his personal property losses. The district court granted
summary judgment for insurer, and insured appealed.\
__________

3
3. Evidence of another act or crime which is so closely related to an act in controversy or a crime
charged that an ordinary witness cannot describe the act in controversy or the crime charged without
referring to the other act or crime shall not be excluded. . . .
These statements regarding the act of which Richard was acquitted were inadmissible under the complete story
of the crime doctrine. We hold that the admission of the statements was error.
judgment for insurer, and insured appealed. The supreme court held that: (1) insured
substantially complied with proof of loss requirement, and (2) insured was not barred from
recovery by one year limitations period in policy.
Victor Lee Miller, Las Vegas, for Appellant.
Rawlings, Olson & Cannon and Susan Holland Johnson and Bradley Helsten, Las Vegas,
for Respondent.
1. Judgment.
Summary judgment is necessarily foreclosed if there is the slightest doubt as to the operative facts. NRCP 56(c).
2. Judgment.
In considering motion for summary judgment, district courts must construe evidence presented in light most favorable to party
against whom summary judgment is sought; all of nonmovant's statements must be accepted as true, and district courts may not pass
on credibility of affidavits. NRCP 56(c).
Supreme court's review of order granting summary judgment is de novo. NRCP 56(c).
4. Insurance.
Insured substantially complied with proof of loss requirement of homeowner's policy, by submitting unsigned and unsworn list of
destroyed personal property within twenty-seven days after fire which caused loss; this information was sufficient to enable insurer to
investigate insured's losses, estimate its rights and liabilities, and prevent fraud and unjust claims from being asserted.
5. Insurance.
Test for determining whether insured has substantially complied with homeowner's policy proof of loss requirement, and thus may
recover despite failure to strictly comply, is whether proof submitted by insured fulfilled purposes of proof of loss requirement to
enable insurer to investigate insured's losses, estimate its rights and liabilities, and prevent fraud and unjust claims from being asserted.
6. Insurance.
Homeowner's policy provision, requiring insured to bring suit under policy within one year from date of loss, was tolled between
time insured notified insurer of his loss and insurer formally denied its liability to insured; thus, although adjuster wrote to insured
stating that payment for personal property loss would be declined, the continued negotiations between insured and insurer tolled
limitations period until the date on which insurer filed its complaint for declaratory relief.
OPINION
Per Curiam:
THE FACTS
On December 16, 1988, a fire substantially damaged appellant's house and personal
property contained therein.
lant's house and personal property contained therein. At the time of the fire, appellant held a
homeowner's insurance policy from respondent, American Bankers Insurance Group. This
policy contained conditions specifying appellant's obligations in case of loss. The conditions
relevant to this case are as follows:
CONDITIONS
1. What You Must Do In Case of Loss
In case a covered loss occurs, the insured person must perform the following
duties:
. . . .
(e) send to us, within 60 days after loss, a proof of loss signed and sworn to by the
insured person. . . .
. . . .
10. Suit Against Us
We may not be sued unless there is full compliance with all the terms of this policy.
Suit must be brought within one year after the loss.
(Emphasis in original.) Appellant immediately notified respondent of the fire and, shortly
thereafter, respondent provided coverage for the damage to the house.
Concerning appellant's personal property, however, a dispute soon arose. On January 12,
1989, twenty-seven days after the fire, respondent's adjustor met with appellant to discuss
appellant's personal property losses. At that meeting, appellant submitted a one-page list,
neither signed nor sworn to, which listed personal property items that appellant claimed were
destroyed in the fire. The total replacement cost claimed by appellant for these items was
$5,649.85.
In a letter dated January 17, 1989, respondent's adjustor informed appellant that the
one-page list did not satisfy the policy's proof of loss condition. The adjustor's letter also
reminded appellant that he had to submit a signed and sworn proof of loss within sixty days
after the loss. Appellant received this letter on January 24, 1989.
Sometime after receiving the adjustor's January 17 letter, appellant completed a twelve
page, signed and sworn list setting forth his claimed personal property losses. This list
contained many more items than the previously submitted one-page list, as evidenced by the
revised replacement cost sum of $47,089.45. Appellant submitted this list to respondent's
adjustor on April 3, 1989, over one hundred days after the fire. Thereafter, in a letter dated
April 4, 1989, respondent acknowledged receiving the list but denied coverage because
appellant had not submitted it within sixty days after the loss.
Notwithstanding respondent's April 4 letter, appellant and respondent continued to
correspond and negotiate regarding appellant's personal property claim.
respondent continued to correspond and negotiate regarding appellant's personal property
claim. Ultimately, on December 10, 1990, respondent filed a complaint for declaratory relief
against appellant, seeking a judicial declaration that appellant was not entitled to recover from
respondent for his personal property losses.
On June 11, 1991, respondent filed a motion for summary judgment. After an August 13,
1991 hearing, the district court granted respondent's motion. This appeal followed.
DISCUSSION
[Headnote 1]
Summary judgment can be entered only when no genuine issue of material fact remains for
trial and the moving party is entitled to judgment as a matter of law. NRCP 56(c); Charlie
Brown Constr. Co. v. Boulder City, 106 Nev. 497, 499, 797 P.2d 946, 947 (1990). Thus,
summary judgment is necessarily foreclosed if there is the slightest doubt as to the operative
facts. Sawyer v. Sugarless Shops, 106 Nev. 265, 267, 792 P.2d 14, 15 (1990).
[Headnotes 2, 3]
In considering a motion for summary judgment, district courts must construe the evidence
presented in the light most favorable to the party against whom summary judgment is sought.
Butler v. Bogdanovich, 101 Nev. 449, 705 P.2d 662 (1985). All of the nonmovant's
statements must be accepted as true, and a district court may not pass on the credibility of
affidavits. Sawyer, 106 Nev. at 268, 792 P.2d at 15-16. This court's review of an order
granting summary judgment is de novo. Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d
1281, 1282 (1989). Like the district court, this court must view the evidence and the
inferences arising therefrom in the light most favorable to the party against whom the motion
was granted. See Orcutt v. Miller, 95 Nev. 408, 595 P.2d 1191 (1979).
As it did in its motion for summary judgment, respondent here argues that summary
judgment is warranted because appellant (1) did not submit the required proof of loss forms
until April 3, 1989, well beyond the policy's sixty-day requirement, and (2) failed to file suit
against respondent within the one-year period of limitation set forth in the policy. We
disagree.
I. The Proof of Loss Condition.
[Headnote 4]
In Davenport v. Republic Insurance Co., 97 Nev. 152, 154, 625 P.2d 574, 575 (1981), we
held that absent an express forfeiture provision, an insured's failure to comply with a proof of
loss requirement does not preclude recovery, at least where the insured complied
substantially with the requirement.
requirement does not preclude recovery, at least where the insured complied substantially
with the requirement. The policy here does not expressly impose a forfeiture for failure to
submit a proof of loss within the time prescribed. Hence, the critical question is whether
appellant substantially complied with the proof of loss requirement.
[Headnote 5]
Though we have not previously enunciated a test for determining whether an insured has
substantially complied with a proof of loss requirement, other courts offer guidance. We find
persuasive the Oregon Supreme Court's decision in Sutton v. Fire Insurance Exchange, 509
P.2d 418, 419 (Or. 1973), in which the court held that the test for substantial compliance is
whether the proof submitted by the insured fulfilled the purpose of the proof of loss. In
applying this test, the Sutton court adopted the generally accepted view regarding the purpose
of a proof of loss requirement:
[T]o afford the insurer an adequate opportunity for investigation, to prevent fraud and
imposition upon it, and to enable it to form a [sic] intelligent estimate of its rights and
liabilities before it is obliged to pay . . . . to furnish the insurer with the particulars of
the loss and all data necessary to determine its liability and the amount thereof.
Id. (quoting George J. Couch, Cyclopedia of Insurance Law 49A:3 (2d ed. rev. 1982)); see
also Dixie Warehouse v. Federal Emergency Management Agency, 547 F.Supp. 81
(M.D.N.C. 1982). We adopt the Sutton test for this jurisdiction.
Accordingly, we must determine whether any of the documentation submitted by appellant
fulfilled the purposes enumerated above. Because the determinative facts are not disputed, we
shall consider this question as one of law.
In our view, appellant's one-page list fulfills the purpose of a proof of loss requirement,
especially when coupled with the prompt notice appellant gave respondent concerning the
fire. Although the list was unsigned and unsworn, it was submitted just twenty-seven days
after the loss, and it listed appellant's destroyed personal property and the replacement cost
for each item claimed. This information was sufficient to enable respondent to investigate
appellant's losses, estimate its rights and liabilities, and prevent fraud and unjust claims from
being asserted.
II. The One-Year Period of Limitation.
The date of loss here was December 16, 1988. Respondent filed its complaint for
declaratory judgment some two years later on December 18, 1990; as of that date, appellant
had not brought a lawsuit against respondent to recover on the policy.
a lawsuit against respondent to recover on the policy. The issue presented is whether
appellant is barred from bringing suit by the policy's one-year period of limitation.
1

In Clark v. Truck Ins. Exchange, 95 Nev. 544, 598 P.2d 628 (1979), a clause in a policy
required that suit be brought within twelve months after the inception of the loss.
Concluding that the twelve-month limitation period represented a reasonable balance between
the insurer's interest in prompt commencement of action and the insured's need for adequate
time to bring suit, this court held as follows: We construe the clause to allow the period of
limitations to run from the date of the casualty, but the period will be tolled from the time
[the insured] gave notice of the loss until [the insurer] formally denies liability. Id. at 546,
598 P.2d at 629; see also Davenport, 97 Nev. at 154, 625 P.2d at 575. We reasoned that if the
limitation period were strictly construed to begin from the date of loss, then the entire period
could . . . be consumed by the built-in delays of the policy and by the time in which the
parties attempt to negotiate the claim. Clark, 95 Nev. at 546, 598 P.2d at 629.
[Headnote 6]
In this case, appellant immediately notified respondent of his loss. Under Clark, then, the
one-year limitation period was tolled until respondent formally denied its liability to
appellant.
Respondent contends that it formally denied liability in the April 4, 1989, letter from its
adjustor to appellant. This letter contains the following statements:
Since [appellant's letter] was dated on the 17th of January [1989], and he was advised
as to the provisions under this policy, I've been advised and given authority by my
principal, [respondent], to respectfully decline payment [for personal property loss] to
[appellant] based upon the sixty (60) day time limit for submission of the proof of loss.
. . . .
I will be at this time closing out my file, since [appellant] has been paid satisfactorily
for both Building and Additional Living Expense.
These statements constitute a formal denial of liability on the part of respondent. Yet, on May
5, 1989, in response to an April 17, 19S9, letter written by appellant's attorney,
respondent's adjustor wrote, "As soon as I hear word from [respondent] in regards to the
reconsideration of this matter, I will advise you accordingly."
__________

1
Respondent also argues that, because appellant failed to submit his proof of loss statement within sixty days
after the loss, appellant is barred from bringing suit by the condition that respondent may not be sued unless
there is full compliance with all the terms of this policy. Because we believe that appellant's substantial
compliance satisfied the proof of loss condition, we need not address this issue.
1989, letter written by appellant's attorney, respondent's adjustor wrote, As soon as I hear
word from [respondent] in regards to the reconsideration of this matter, I will advise you
accordingly. And in correspondence to appellant's attorney dated August 7, 1989,
respondent's adjustor stated, My principal, [respondent] has instructed us to reopen our file
and handle this matter on their behalf with your offices, specifically in regards to the personal
property claim. Similar correspondence and negotiations between the parties continued until
respondent filed its complaint for declaratory relief. Thus, we conclude that the parties
continued to negotiate appellant's claim until December 10, 1990, the date on which
respondent filed its complaint for declaratory relief. Accordingly, we hold that the one-year
period of limitation was tolled until December 10, 1990, and, consequently, does not bar
appellant from suing to recover for his personal property losses.
CONCLUSION
For reasons set forth above, we hold, as a matter of law, that substantial compliance is
sufficient to satisfy a proof of loss condition, that appellant's one-page list substantially
complied with the proof of loss condition here, and that the one-year limitation period in the
policy does not bar appellant from suing respondent to recover for his personal property
losses. Thus, appellant is not precluded from bringing suit against respondent to recover for
the losses enumerated in his one-page list, and the district court erred in granting respondent's
motion for summary judgment. We hasten to add that the amount of appellant's personal
property loss remains a question to be resolved by the parties through additional negotiation
or litigation.
Accordingly, we reverse the district court's order granting summary judgment in favor of
respondent, and we remand this case for further proceedings not inconsistent with this
opinion.
____________
108 Nev. 539, 539 (1992) Joynt v. California Hotel & Casino
PATRICK JOYNT, Appellant, v. CALIFORNIA HOTEL & CASINO dba SAM'S TOWN
HOTEL, GAMBLING HALL & BOWLING CENTER, Respondent.
No. 22392
August 5, 1992 835 P.2d 799
Appeal from an order granting summary judgment in an action seeking recovery for
personal injuries; Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
Patron who was injured in casino's waiting area when he stepped backwards and fell over
statue's base plate sued casino for negligence. The district court granted casino's motion for
summary judgment. Patron appealed. The supreme court held that genuine issues existed as to
whether casino breached its duty to provide reasonably safe environment to its business
invitees, whether patron was negligent in stepping back without looking, and whether patron
was more negligent than casino.
Jason A. Awad and Associates and Frank J. Cundari, Las Vegas, for Appellant.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks and T. Arthur Ritchie,
Jr., Las Vegas, for Respondent.
Supreme court's review of summary judgment order is de novo.
2. Negligence.
Questions of negligence and proximate cause are generally questions of fact.
3. Negligence.
In negligence action, plaintiff has burden of demonstrating that defendant had duty to exercise due care with respect to plaintiff,
that defendant breached this duty, that breach was both actual and proximate cause of plaintiff's injury, and that plaintiff was damaged.
4. Judgment.
To prevail on summary judgment motion, moving party has burden of proving absence of genuine issues of fact and must show
that one of elements is clearly lacking as matter of law.
5. Judgment.
Court must give party opposing summary judgment benefit of favorable inferences, and must not draw inferences favorable to
moving party.
6. Judgment.
Genuine issues of material fact, precluding summary judgment for casino in negligence action by patron who was injured when he
stepped back and tripped over statue's base, existed as to whether casino breached its duty to provide reasonably safe environment to
its business invitees, whether patron was negligent in stepping back without looking, and whether patron was more negligent than
casino. NRS 41.141.
OPINION
Per Curiam:
On February 21, 1988, appellant Patrick Joynt (Joynt) was waiting to enter a restaurant
at the California Hotel and Casino, which does business as Sam's Town Hotel, Gambling Hall
and Bowling Center. According to Joynt, the waiting area was very crowded. While Joynt
was waiting to enter the restaurant, another person asked to pass in front of him. Because of
the crowding, it was necessary for Joynt to take a step back so that the person could pass.
was necessary for Joynt to take a step back so that the person could pass.
Behind Joynt was a colorful statue of a Western character with a slot machine in its chest.
Although Joynt had observed the statue in the past, he had not noticed that the statue had a
base plate that protruded beyond the statue. Thus, even though Joynt knew that he had enough
room to take a step backwards without contacting the statue, when he took his step
backwards, he fell over the base plate. As a result of this fall, Joynt injured his left shoulder
and arm and his right knee.
Joynt filed a complaint against the casino in which he asserted that the casino was
negligent in maintaining its premises. Thereafter, the casino's attorneys deposed Joynt.
During his deposition, Joynt was asked if he would have fallen if he had seen the base plate.
Joynt replied, If I would have seen the base, I wouldn't have fell. Joynt also stated that I
presume I wouldn't fall. I mean I'm not going to walk in a hole if there's a hole there, you
know. The casino then filed a motion for summary judgment and asserted that Joynt's fall
was caused by his own negligence. The casino relied on the argument that there were no
genuine issues of material fact with regard to causation. Subsequently, the district court
granted the casino's motion for summary judgment.
On appeal, Joynt asserts that the district court erred when it granted summary judgment.
Specifically, Joynt argues that: (1) he has raised genuine issues of fact with regard to the
casino's negligence, (2) his actions should be judged by a reasonableness standard, and (3)
because of the comparative negligence rule, any possible negligence on his part does not bar
his negligence action. We agree with Joynt and conclude that the district court erred in
granting summary judgment.
[Headnotes 1, 2]
Our review of summary judgment orders is de novo. Tore, Ltd. v. Church, 105 Nev. 183,
185, 772 P.2d 1281, 1282 (1989). We have often reiterated the requirements for a grant of
summary judgment:
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; properly
supported factual allegations of the party opposing summary judgment must be
accepted as true. Additionally, the pleadings and documentary evidence must be
construed in the light which is most favorable to the party against whom the motion for
summary judgment is directed. Litigants are not to be deprived of a trial if there is the
slightest doubt as to the operative facts.
Perez v. Las Vegas Medical Center, 107 Nev. 1, 805 P.2d 589, 590 (1991) (citations omitted).
In addition, questions of negligence and proximate cause are generally questions of fact: A
party's negligence becomes a question of law only when the evidence will support no other
inference. Shepard v. Harrison, 100 Nev. 178, 180, 678 P.2d 670, 672 (1984); see Nehls v.
Leonard, 97 Nev. 325, 328, 630 P.2d 258, 260 (1981).
[Headnotes 3-5]
In a negligence action, the plaintiff has the burden of demonstrating the following: (1) that
the defendant had a duty to exercise due care with respect to the plaintiff; (2) that the
defendant breached this duty; (3) that the breach was both the actual and proximate cause of
the plaintiff's injury; and (4) that the plaintiff was damaged. Perez at 4, 805 P.2d at 590-91.
To prevail on a summary judgment motion, the moving party has the burden of proving the
absence of genuine issues of fact and must show that one of the elements is clearly lacking
as a matter of law. Sims v. General Telephone and Electric, 107 Nev. 516, 521, 815 P.2d
151, 154 (1991); see Renaud v. 200 Convention Center, Ltd., 102 Nev. 500, 501, 728 P.2d
445, 446 (1986). In addition, the court must give the party opposing summary judgment the
benefit of favorable inferences, and must not draw inferences favorable to the moving party.
O'Dell v. Martin, 101 Nev. 142, 144, 696 P.2d 996, 997 (1985); Berge v. Fredericks, 95 Nev.
183, 186, 591 P.2d 246, 247 (1979).
[Headnote 6]
In the present case, Joynt has introduced evidence, in the form of an affidavit and
deposition testimony, suggesting that the casino may have breached its duty to provide a
reasonably safe environment to its business invitees and may have proximately caused Joynt's
injuries.
1
Specifically, Joynt asserts that the casino allowed a large crowd to form outside the
restaurant and did not establish any crowd control measures. In addition, Joynt contends that
the base plate on the statue is not noticeable (although it is visible) because the Western
character and slot machine are distracting by design. Thus, Joynt suggests that the casino did
not properly maintain its premises and that his injuries may have resulted from the casino's
failure to provide a reasonably safe environment. We conclude that Joynt has raised questions
of fact with regard to the breach of duty and causation issues.
The casino asserts that Joynt's deposition testimony amounts to an admission that the
actual and legal cause of his fall was his own negligence."
__________

1
The casino clearly owes a duty to its business invitees to maintain a reasonably safe environment, and the
casino does not dispute the fact that Joynt was injured.
own negligence. This assertion lacks merit for three reasons. First, the cases cited by the
casino in support of its assertion involve hazards that were clearly obvious or marked. For
instance, in Hennesy v. Tina Marie Homes, Inc., 388 P.2d 758 (Colo. 1963), the plaintiff,
while walking backwards, fell down the interior steps of a model home during her inspection
of the home. In Hill v. Gaertner, 92 N.W.2d 810 (Minn. 1958), the plaintiff walked
backwards down a hall and fell down the stairs. The hall was lighted, and the plaintiff lived in
an apartment on the hall and thus knew where the stairs were located. Finally, in Young v.
Price, 388 P.2d 203 (Haw. 1963), the plaintiff fell over a green hose lying across a cement
sidewalk. The hose was marked by two orange and black traffic cones and a red flag.
Joynt's accident did not involve such clearly obvious or well-marked hazards. Joynt asserts
that he did not previously notice the statue's base plate because the statue is designed to take
the viewer's attention away from the protruding base plate.
2
Also, the base plate apparently
was not marked. Further, Joynt's accident occurred during crowded conditions at the casino.
Second, we cannot conclude, as a matter of law, that Joynt was negligent in taking a step
back without looking; the evidence does not support only this inference. Joynt asserts that he
knew where the statue was when he took his step back and that he had not previously noticed
the protruding base plate. Joynt also contends that a large crowd had gathered, and that he
took his step back to allow a patron to pass.
We have previously held that a plaintiff may be justified in not watching every step. In
Wagonwheel Saloon & Gambling Hall, Inc. v. Mavrogan, 78 Nev. 126, 127-28, 369 P.2d
688, 690 (1962), the plaintiff, while walking down a stairway, fell over nails and lumber that
had been placed on the steps. The plaintiff had been looking at other persons and the bus to
which he was headed, and admitted that he had not been looking at the steps. The plaintiff
brought a successful negligence claim against the casino, and the casino appealed, contending
that the plaintiff was contributorily negligent as a matter of law. This court determined that
under the circumstances, the plaintiff may have been justified in not watching each of his
steps. Accordingly, this court held that the reasonableness of the plaintiff's behavior was
properly determined by the jury.
Further, cases from other jurisdictions have held that the totality of the circumstances
must be considered in determining reasonable care and that an ordinarily careful person
does not have to watch constantly where he or she is going. See, e.g., Chance v. Lawry's,
Inc.,
__________

2
The casino asserts that the attractive nature of the statue is irrelevant because Joynt was not looking at the
statue when he fell. The attractive nature of the statue is relevant to the issue of Joynt's possible negligence,
however, to the extent that it may have distracted Joynt and prevented him from observing the base plate on an
earlier occasion.
totality of the circumstances must be considered in determining reasonable care and that an
ordinarily careful person does not have to watch constantly where he or she is going. See,
e.g., Chance v. Lawry's, Inc., 374 P.2d 185 (Cal. 1962); Calerich v. Cudahy Packing Co., 460
P.2d 801 (Colo. 1967); Otts v. Brough, 409 P.2d 95 (Idaho 1965); Autry v. Walls I.G.A.
Foodliner, Inc., 497 P.2d 303 (Kan. 1972); Todd v. Harr, Inc., 417 P.2d 945 (Wash. 1966).
We thus conclude that the reasonableness of Joynt's actions should be determined by a jury.
Third and finally, the casino's assertion lacks merit because Nevada has adopted the
doctrine of comparative negligence; thus, a plaintiff's negligence does not automatically bar
her or his negligence action. NRS 41.141 states that [i]n any action to recover damages . . .
in which comparative negligence is asserted as a defense, the comparative negligence of the
plaintiff . . . does not bar a recovery if that negligence was not greater than the negligence . . .
of the parties to the action against whom recovery is sought. In Young's Machine Co. v.
Long, 100 Nev. 692, 693, 692 P.2d 24, 25 (1984), we concluded that Nevada's comparative
negligence statute is clearly intended to apply to negligence actions. The comparative
negligence statute eliminates contributory negligence as a bar to a plaintiff's recovery, at
least when negligence of a tortfeasor, or several tortfeasors combined, was a great as
plaintiff's or greater. Warmbrodt v. Blanchard, 100 Nev. 703, 707-08, 692 P.2d 1282,
1285-86 (1984).
Therefore, even if Joynt was negligent in not watching his step, the casino may still be
liable for negligence if Joynt was less negligent than (or only as negligent as) the casino. In
Taylor v. Silva, 96 Nev. 738, 741, 615 P.2d 970, 971 (1980), we explained that
[c]ontributing fault, if any, on [the plaintiff's] part could reduce [the plaintiff's] recovery
under the doctrine of comparative negligence, but does not negate a finding that [the
defendants'] negligence was a proximate cause of [the plaintiff's] injuries. We cannot
conclude in this case, as a matter of law, that Joynt was more negligent than the casino.
Therefore, Joynt's possible fault does not warrant a grant of summary judgment to the casino.
Because Joynt has raised questions of fact with regard to the casino's negligence, because
he may not have been negligent in stepping back without looking, and because Nevada has
adopted the doctrine of comparative negligence, we conclude that the district court erred in
granting summary judgment. We therefore reverse the district court order granting summary
judgment and remand this case to the district court for further proceedings consistent with
this opinion.
____________
108 Nev. 545, 545 (1992) Kelly v. State
GEORGE R. KELLY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21726
August 5, 1992 837 P.2d 416
Appeal from a judgment of conviction of one count each of forgery and offering false
evidence. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Defendant was convicted in the district court of forgery and offering false evidence, and he
appealed. The supreme court, Springer, J., held that: (1) evidence of defendant's prior
attempted sexual assault conviction and of charges that had been dismissed were relevant,
and (2) any error arising from admission of prior crimes evidence was harmless.
Affirmed.
Young, J., and Mowbray, C. J., dissented.
Paul A. Sherman, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Kevin G. Higgins, Deputy Attorney General,
1. Criminal Law.
Nevada courts had subject-matter jurisdiction over forgery prosecution based on defendant's alleged forgery, while in Nevada, of
documents used in federal habeas corpus proceeding. NRS 171.010.
2. Criminal Law.
Evidence of defendant's prior conviction of attempted sexual assault, and circumstances surrounding conviction, including
evidence of three charges that were subsequently dismissed, was relevant in forgery prosecution arising when defendant allegedly
forged letter purportedly written by trial counsel indicating that defendant had been promised five-year sentence if he pled guilty to
attempted sexual assault; state could not discuss circumstances of defendant's plea agreement, which related directly to defendant's
knowledge of forged letter and false information on federal habeas petition, without bringing in evidence of dropped charges.
3. Criminal Law.
Probative value of evidence that defendant had previously pled guilty to attempted sexual assault and that three other charges had
been dropped as part of plea bargain was admissible in forgery prosecution arising from defendant's alleged forgery of letter from
defense counsel and promising that defendant would receive five-year sentence in return for pleading guilty outweighed prejudicial
effect in forgery prosecution; evidence was probative of defendant's knowledge of actual terms of his plea agreement and whether he
reasonably could have believed that he was promised five-year maximum sentence.
4. Criminal Law.
Evidence that defendant had previously pled guilty to attempted sexual assault and that other charges had been dropped in return
for his guilty plea was admissible in forgery prosecution arising from defendant's alleged forgery of letter
from his attorney indicating that defendant had been promised five-year sentence for use in defendant's
federal habeas petition to show defendant's knowledge that letter was forged and that he knew that his
statements in habeas petition were false.
108 Nev. 545, 546 (1992) Kelly v. State
guilty plea was admissible in forgery prosecution arising from defendant's alleged forgery of letter from his attorney indicating that
defendant had been promised five-year sentence for use in defendant's federal habeas petition to show defendant's knowledge that letter
was forged and that he knew that his statements in habeas petition were false. NRS 48.045, subd. 2.
5. Witnesses.
Evidence of defendant's prior conviction for attempted sexual assault was admissible for impeachment purposes in forgery
prosecution in which defendant testified. NRS 50.095.
6. Criminal Law.
Even if admission of evidence of nature of charges against defendant that had been previously dismissed was error in forgery
prosecution, error was harmless, where jury was informed that charges had been dropped after defendant pled guilty to attempted
sexual assault, dropped charges also related to sexual assault, defendant admitted that he had been charged with other crimes, and
evidence of defendant's guilt was overwhelming.
OPINION
The appellant, George Kelly (Kelly), was serving a fifteen-year sentence for attempted
sexual assault when he filed a habeas corpus petition in federal court. In his habeas petition,
Kelly included a letter, purportedly written by his trial counsel, guaranteeing him a maximum
five-year sentence in exchange for pleading guilty to attempted sexual assault. Based upon
this letter, Kelly was subsequently charged in state court with forgery and offering false
evidence.
At trial, the State introduced evidence of Kelly's prior conviction of attempted sexual
assault and the circumstances surrounding this conviction, including evidence of the specific
four charges brought against Kelly, the maximum sentences they carried, Kelly's guilty plea
(to attempted sexual assault), and the three charges subsequently dismissed. Kelly now
contends that the district court committed prejudicial error in admitting evidence of his prior
conviction and the dismissed charges. We disagree and affirm the judgment of conviction.
The Facts
Kelly was previously charged with four crimes: attempted sexual assault, sexual assault,
attempted statutory sexual assault, and statutory sexual assault. All of these charges involved
Kelly's alleged molestation of his child. Because Kelly had confessed to the molestation and
because the felonies of sexual assault and statutory sexual assault each carry a possible life
sentence, Kelly's trial counsel recommended a plea bargain. Thereafter, Kelly agreed to plead
guilty to attempted sexual assault, which carries a maximum twenty-year sentence; in
return, the State agreed to drop the remaining charges and to recommend a five-year
sentence to the court.
108 Nev. 545, 547 (1992) Kelly v. State
Kelly agreed to plead guilty to attempted sexual assault, which carries a maximum
twenty-year sentence; in return, the State agreed to drop the remaining charges and to
recommend a five-year sentence to the court. At no time, however, was Kelly told that he
would receive a five-year sentence. In fact, Kelly was informed that although the court might
adopt the State's sentencing recommendation, the judge could sentence him to a maximum of
twenty years in prison. The plea agreement that Kelly signed also states that the judge has
discretion to determine Kelly's sentence.
During the sentencing hearing, the State recommended a five-year sentence.
1
The judge
asked Kelly if he understood that the maximum sentence for the crime of sexual assault is
twenty years, and Kelly answered, Yes. The judge also asked if any promises other than
those contained in the plea agreement had been made; Kelly answered, No. The judge then
asked if other negotiations had occurred, and Kelly responded, No. When the judge asked
Kelly what the maximum penalty could be, Kelly answered that the maximum penalty was
twenty years and that the terms of sentencing were up to the judge. At no time during this
hearing did Kelly state that he had been promised a five-year maximum sentence. At the
conclusion of the hearing, the judge sentenced Kelly to fifteen years in prison.
Subsequently, Kelly filed a motion to withdraw his guilty plea; the district court denied
this motion, and Kelly filed an appeal. In none of his pleadings did Kelly mention that he had
received a five-year maximum sentence guarantee. Furthermore, at no time did Kelly question
his trial counsel about breaching the promise of a five-year sentence.
Five years after he was convicted and sentenced, Kelly filed a petition for habeas corpus in
the federal district court. In this petition, which Kelly signed under penalty of perjury, Kelly
alleged that his guilty plea was involuntary and induced by promises from counsel. He stated
that his trial counsel had guaranteed him a five-year sentence; specifically, Kelly stated that
[t]rial counsel absolutely guaranteed me that I would not receive more than five (5) years.
Counsel coached me to give judge canvassing answers counsel desired given.
Kelly attached to his habeas petition a letter, purportedly written by his trial counsel,
which states that she had made a negotiation with both the Court and the State and that
[i]n exchange for your guilty plea . . . the other three charges will be dismissed and you will
receive a five {5) year sentence."
__________

1
The State first recommended at least a five-year sentence, then changed its recommendation to a
five-year sentence. On Kelly's direct appeal, we determined that the State conformed to its promise under the
plea agreement.
108 Nev. 545, 548 (1992) Kelly v. State
dismissed and you will receive a five (5) year sentence. The letter also states the following:
A formal plea memorandum is being drawn by me and although it states in it that the
Judge has the discretion to impose any sentence up to the maximum of twenty yearsI
want to assure you that I have already obtained the agreement of the Judge and the State
that you will not be sentenced to more than five (5) years.
Kelly was subsequently charged in state court with forgery and offering false evidence. As
mentioned, during the trial, the prosecutor and State's witnesses explained the circumstances
of Kelly's prior conviction, including the charges brought against him, the maximum
sentences they carried, his guilty plea, and the dropped charges. The court was careful to
exclude any evidence that Kelly had molested his own child.
Discussion
[Headnote 1]
Kelly asserts that the district court committed prejudicial error in allowing the State to
introduce evidence of his prior conviction and the three dismissed charges.
2
We disagree,
however, and conclude that the district court did not err in determining that the evidence was
relevant and not more prejudicial than probative. In addition, we conclude that the evidence
falls within the scope of NRS 48.045(2).
[Headnote 2]
First, the evidence was relevant. The State could hardly discuss the circumstances of
Kelly's plea agreement, which relate directly to Kelly's knowledge of the forged letter and
false information on the habeas petition, without bringing in evidence of the dropped charges.
Two of the dropped charges carried possible life sentences, and these were the charges that
Kelly sought to avoid with his plea agreement. His plea agreement simply would not make
sense to a jury if the jury were only informed that he was charged with attempted sexual
assault, which carries a maximum sentence of twenty years. In fact, his allegation that he was
promised a maximum five-year sentence for his guilty plea might have sounded reasonable if
the evidence of other charges had been precluded.
__________

2
Kelly initially argues that Nevada courts lack subject matter jurisdiction over this matter because his acts
constituted offenses only against the federal government. We disagree. Nevada courts have jurisdiction over
crimes committed in this state unless the offense is, by law, cognizable exclusively in the courts of the United
States. NRS 171.010. Because forgery is prohibited by Nevada law, a defendant may be tried in Nevada courts
for the crime.
108 Nev. 545, 549 (1992) Kelly v. State
been precluded. It is also worth noting that an important piece of evidence in this case, the
forged letter attached to Kelly's habeas petition, discusses the other charges. The fact that
the State dropped these other charges was ostensibly the most important part of the plea
agreement at issue.
[Headnote 3]
In his habeas petition, Kelly included a letter discussing a secret deal between his
counsel, the prosecutor, and the court. In his petition, and at trial, Kelly asserted that he was
promised a maximum five-year sentence, was misled by his trial counsel, and that some sort
of misbehavior occurred during the plea negotiations. Thus, to determine whether Kelly's
allegations had merit, the circumstances behind the plea agreement and sentencing hearing
necessarily had to be explained. As the district court stated, the charges of sexual assault were
germane to the plea negotiationssexual assault is a special type of assault and authorizes a
life sentence; it thus warrants a careful approach by counsel. In other words, the serious
nature of the charges directly related to whether or not Kelly could have been promised a
five-year maximum sentence and whether or not any secret deal had been made. The
dropped charges also related to the reasonableness of Kelly's plea agreement. The
circumstances of the plea negotiations were thus intimately related to the false allegations
made by Kelly in his petition for habeas corpus. Therefore, this evidence was relevant in that
it shows that there was no secret deal, that Kelly struck the best deal he could under the
circumstances, and that Kelly participated in the forgery and knew that the allegations in his
habeas petition were false.
Further, we have recognized that
While Nevada's Evidence Code prohibits the use of other crimes, wrongs, or acts as
evidence of an accused's character in order to prove that he acted in conformity
therewith on a particular occasion, such evidence may, however, be admissible for
other purposes . . . where its probative value is not substantially outweighed by the
danger of unfair prejudice. The decision to admit such evidence rests with the sound
discretion of the trial court and will not be disturbed on appeal absent a showing that
the ruling was manifestly wrong.
Brackeen v. State, 104 Nev. 547, 552, 763 P.2d 59, 63 (1988) (citations omitted); accord
Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992). As discussed above, in the present case,
the evidence of Kelly's charges and guilty plea is probative of Kelly's knowledge of the actual
terms of his plea agreement and whether Kelly could reasonably have believed that he was
promised a fiveyear maximum sentence.
108 Nev. 545, 550 (1992) Kelly v. State
year maximum sentence. Although admitting evidence of prior charges always involves the
danger of prejudice, the district court determined that the probative value of this evidence
outweighed any potential prejudicial effect.
3
In addition, the court was careful to admonish
the prosecutor not to explore the specific facts underlying the charges, and the court refused
to admit a portion of the prior proceedings that would have revealed that Kelly had molested
his own child. Because the evidence of Kelly's charges was relevant and probative, and
because the district court's decision to admit the evidence was not manifest error, the decision
should not be disturbed.
Moreover, in Brackeen, 104 Nev. at 553, 763 P.2d at 63, this court recognized that [w]e
have adopted the rule that the State is entitled to present a full and accurate account of the
circumstances surrounding the commission of a crime, and such evidence is admissible even
if it implicates the accused in the commission of other crimes. In the present case, the
underlying plea agreement constitutes part of the circumstances surrounding Kelly's charges
of forgery and offering false evidence. Thus, the State was entitled to present evidence of the
underlying charges and plea agreement to give the jury a full and accurate picture of the
circumstances involved in Kelly's present charges.
[Headnote 4]
We also conclude that evidence of the dropped charges falls within the ambit of NRS
48.045(2). This statutory provision states that:
[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. 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.
NRS 48.045(2) (emphasis added). In the present case, evidence of Kelly's dropped charges
{and conviction) was not introduced to show his character or that he acted in conformity
therewith; instead, it was introduced to explain the circumstances of the plea
negotiations, and Kelly's knowledge pursuant to these negotiations.
__________

3
We have recognized that
[t]he use of uncharged bad acts to convict a defendant is heavily disfavored in our system of criminal
justice. Such evidence . . . forces the accused to defend himself against vague and unsubstantiated
charges. Evidence of uncharged misconduct may unduly influence the jury, and result in a conviction of
the accused because the jury believes he is a bad person. The use of specific conduct to show a
propensity to commit the crime charged is clearly prohibited by Nevada law.
Berner v. State, 104 Nev. 695, 696-97,765 P.2d 1144, 1145 (1988) (citations omitted).
In the present case, however, unlike the Berner case, evidence of Kelly's charged bad acts was introduced,
and evidence of these acts did not force Kelly to defend himself against vague and unsubstantiated charges.
108 Nev. 545, 551 (1992) Kelly v. State
of Kelly's dropped charges (and conviction) was not introduced to show his character or that
he acted in conformity therewith; instead, it was introduced to explain the circumstances of
the plea negotiations, and Kelly's knowledge pursuant to these negotiations. Kelly's
knowledge of his possible life sentences, his knowledge that the most serious charges would
be dropped if he pled guilty, his knowledge that he faced a maximum twenty-year sentence
for the remaining charge, and his knowledge that the court had sentencing discretion is
directly relevant to his knowledge that the letter was forged, and that he knew that his
statements in the habeas petition were false. Thus, the evidence of Kelly's other charges and
his plea negotiations falls squarely within the scope of NRS 48.045(2).
4

[Headnote 5]
Furthermore, because Kelly testified, evidence of his prior conviction was also admissible
for impeachment purposes. NRS 50.095 explains that [f]or the purpose of attacking the
credibility of a witness, evidence that he has been convicted of a crime is admissible but only
if the crime was punishable by death or imprisonment for more than one year. Additionally,
the type of felony of which Kelly was convicted was admissible evidence. In Givens v. State,
99 Nev. 50, 54, 657 P.2d 97, 99 (1983), overruled on other grounds, Talacon v. State, 102
Nev. 294, 721 P.2d 764 (1986), we held that [t]he trial court has discretion to admit or
exclude the number and names of prior felony convictions. In Givens, the defendant had
been previously convicted of assault with attempt to commit rape; in his subsequent trial on
kidnapping and multiple sexual assault charges, the district court allowed the prosecution to
name his prior conviction. We concluded that the court had not abused its discretion.
Similarly, in this case, the district court did not abuse its discretion in admitting evidence
concerning the type of felony of which Kelly was convicted.
[Headnote 6]
The only possible error in Kelly's trial occurred when the district court admitted evidence
of the nature of Kelly's dismissed charges. We conclude, however, that the district court did
not err. And, moreover, even if the admission of this evidence constitutes error, we believe
that the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S.
18 (1967); Rice v. State, 10S Nev. 43
__________

4
The dissent cites Beck v. State, 105 Nev. 910, 784 P.2d 983 (1989). In Beck, we determined that evidence
of alleged, uncharged misconduct that occurred sixteen years prior to the current charged crime was not
admissible because it was not relevant. Thus, Beck is factually distinct from the present case.
108 Nev. 545, 552 (1992) Kelly v. State
State, 108 Nev. 43, 824 P.2d 281 (1992). First, the jury was informed that the other charges
had been dropped after Kelly pled guilty to attempted sexual assault. In addition, all of
Kelly's charges related to sexual assault; because evidence that Kelly had been convicted of
attempted sexual assault was clearly admissible and admitted, we conclude that the evidence
of dropped charges involving the same conduct was not prejudicial. Further, the jury was not
allowed to hear evidence on the facts of the underlying assault charges because the district
court concluded that this evidence was too prejudicial. Moreover, Kelly's attorney asked,
during his cross-examination of Kelly's former trial counsel, if it would be fair to state that
it's a difficult thing for a man to walk into court and plead guilty to the crime with which Mr.
Kelly was charged. Thus, Kelly's own counsel made inferences about the nature of Kelly's
prior charges. Finally, Kelly himself admitted that he was charged with four crimes and that
the charges involved two life sentences and two twenty-year sentences. Under these
circumstances, we conclude that the evidence of the names of the charges did not affect the
jury's decision.
Additionally, [w]here the evidence of guilt is great . . . error [in admitting evidence] will
be deemed harmless. McMichael v. State, 98 Nev. 1, 4, 638 P.2d 402, 403 (1982); see
Robins v. State, 106 Nev. 611, 798 P.2d 558 (1990), cert. denied, 111 S.Ct. 1608 (1990). Our
review of the record reveals an abundance of evidence supporting the jury's finding of guilt.
First, the State introduced the prison recordkeeper, who testified that Kelly had signed the
record review log after reviewing his legal file.
5
In addition, Kelly stipulated that the
signature on his habeas petition, stating that he had been absolutely guaranteed a five-year
sentence, was his and that he had read the habeas petition before signing it.
6
Further, Kelly's
former trial counsel testified that she had not written the letter, and that she had told Kelly
that he faced a possible twenty-year sentence for sexual assault. Kelly's former trial counsel
also testified that it is not possible for a plea bargain to bind the court to a particular sentence
and that she was certain that Kelly decided to forge the letter.
Although Kelly attempted to blame the forgery on a fellow inmate, Randal Wiideman, at
trial, an expert documents examiner concluded that the letter was an altered document and
that only part of the forged letter may have been typed on Wiideman's typewriter. In addition,
the State introduced evidence that Kelly had access to typewriters and copying machines. The
State also showed that the written plea agreement did not guarantee Kelly a five-year
sentence, that it explained that the judge had sentencing discretion, and that it stated
that Kelly's crime carried a maximum twenty-year sentence.
__________

5
Kelly stipulated that his signature was, in fact, on this document.

6
Kelly testified that he had read the letter and habeas petition, but that he did not have his glasses.
108 Nev. 545, 553 (1992) Kelly v. State
showed that the written plea agreement did not guarantee Kelly a five-year sentence, that it
explained that the judge had sentencing discretion, and that it stated that Kelly's crime carried
a maximum twenty-year sentence.
The State also demonstrated that at the sentencing hearing, Kelly was asked if he was
involved in any other promises other than those contained in the plea agreement; Kelly
answered, No. Also, at this hearing, Kelly acknowledged that his maximum sentence was
twenty years and that the terms of sentencing were up to the judge.
Importantly, although given an opportunity, Kelly never told the sentencing judge about
the alleged secret plea agreement; nor did Kelly complain about the alleged breach of this
agreement for five years, even though he filed numerous pleadings. When asked about the
forged letter, Kelly replied that he did not remember receiving the letter, even though it states
that it was hand delivered. Kelly did testify that he was dumbfounded when he learned
of the letter. Most importantly, during cross-examination, Kelly admitted that his trial counsel
had not promised him a five-year sentence. Kelly was then asked, So [the letter] isn't true, is
it? Kelly answered, I guess not.
We conclude that the district court did not err in admitting evidence of Kelly's prior
conviction or evidence that Kelly had been charged with other crimes. Because the evidence
of Kelly's guilt is overwhelming, the references to the nature of the dropped charges, if error
at all, were harmless, and Kelly's substantial rights were not affected.
7
See Stickney v. State,
93 Nev. 285, 287, 564 P.2d 604, 605 (1977). After reviewing the record, we conclude that
Kelly's other contentions are without merit. We therefore affirm the district court's judgment
of conviction.
Rose and Steffen, JJ., concur.
Young, J., with whom Mowbray, C. J., joins, dissenting:
__________

7
In Honkanen v. State, 105 Nev. 901, 902-03, 784 P.2d 981, 982 (1989), we explained that to find the
admission of evidence of prior uncharged acts harmless error, we had to be certain that the jury did not convict
the appellant of the [prior] uncharged . . . incident under the pretext of the [subsequent] charged offense, or use
the [prior] incident to conclude appellant acted in conformity' with the prior . . . act when he committed the
[subsequent] charged act. In the present case, we are certain that the evidence of Kelly's prior charged acts did
not lead the jury to convict him of these acts, as he had already pled guilty to one of the charges, and his
forgery/false evidence charges were not similar to the assault charges. In addition, we believe that the jury did
not conclude that Kelly, in forging the letter and offering false evidence, acted in conformity with the dropped
assault charges.
108 Nev. 545, 554 (1992) Kelly v. State
The Material Facts
In January 1984, after a plea of guilty was entered, the district court sentenced Kelly to
serve fifteen years in the Nevada State Prison. In November 1984, Kelly moved to withdraw
his plea, arguing that his defense counsel had failed to recognize a possible defense and that
the State had breached the plea bargain. Specifically, Kelly argued that he had agreed to plead
guilty in exchange for the State's recommendation at sentencing that he receive no more than
five years. However, at sentencing, the State recommended that Kelly be sentenced to at
least, well, to five years. Thus, reasoned Kelly, the State implicitly recommended more than
five years. The district court denied this motion.
In February 1988, Kelly filed a petition for a writ of habeas corpus in the federal district
court, arguing that he pled guilty based on unfulfilled promises of counsel. In support, he
attached a letter allegedly written by Laura FitzSimmons (FitzSimmons), his former defense
counsel. In the letter, FitzSimmons purportedly stated that in exchange for a plea of guilty,
the State and the trial judge had agreed that Kelly would receive only a five-year sentence.
(Oddly, Kelly did not make this argument when he moved to withdraw his guilty plea.) Based
on this letter, Kelly was charged in state court with offering false evidence and forgery.
At trial, FitzSimmons testified that she did not enter into an agreement with the State and
the trial judge as to Kelly's maximum sentence. Such an agreement would have been
impossible because counsel are not authorized to guarantee a maximum sentence; counsel
may merely recommend a sentence. The trial judge retains the authority to reject or accept the
recommendations from counsel.
1
Moreover, district judges in Nevada are not involved in the
plea negotiations.
FitzSimmons also testified that she did not draft, nor did her secretary type, the letter. In
fact, the typeface under her signature was larger than the typeface of the body of the letter.
Her office, however, used only one style of typeface for letters. She further noted that the
letter indicated that it had been hand-delivered to Kelly, which contradicted her policy of
never hand-delivering materials to inmates.
The State next called as a witness William Maddox (Maddox), the prosecutor who
negotiated the plea bargain with FitzSimmons.
__________

1
FitzSimmons adamantly pointed out that one of the core principles in plea negotiations is to make sure the
defendant realizes that sentencing is up to the judge. In fact, before Kelly pled guilty, the trial judge asked him,
You understand, Mr. Kelly, that the matter of sentencing is strictly up to me and no person right now can
predict or forecast what that sentence will be? Kelly responded, Yes, sir, I do.
108 Nev. 545, 555 (1992) Kelly v. State
mons. Maddox corroborated FitzSimmons' testimony. He testified that the trial judge was not
involved in the negotiations; that in exchange for the guilty plea, Maddox agreed to
recommend a five-year sentence (a recommendation which did not bind the trial judge); and
that he never guaranteed Kelly that his maximum sentence would be five years.
The State demonstrated that the letter was an altered document. The State's expert, an
examiner of the genuineness of documents, identified two different styles of typeface in the
letter, indicating that the document was produced by different typing instruments.
Kelly asserted a simple defense: a fellow inmate (Wiideman) who prepared and typed
Kelly's federal petition for habeas corpus forged the document. According to Kelly,
Wiideman advised him to transfer his records to the prison. When they arrived, Kelly gave
the records to Wiideman without reading through them. A week later, Wiideman showed
Kelly the letter. Kelly was dumbfounded over the letter because he did not recall it being
sent to him.
This defense, however, quickly dissipated. Kelly stipulated at trial that his signature
appeared on the federal petition; pursuant to the petition, Kelly declared under the penalty of
perjury that he ha[d] read the above pleading and that the information contained there [was]
true and correct. (Emphasis added.) Despite this declaration, during cross-examination,
Kelly admitted that FitzSimmons had not guaranteed him a five-year maximum sentence.
Instead, it was only his understanding from the circumstances.
The Prejudicial Evidence
The above facts show that the State could have convicted Kelly without resort to the
sexual assault evidence.
2
Nonetheless, on numerous occasions, the State introduced evidence
of the nature of Kelly's prior conviction and evidence of the dismissed charges.
During the State's opening statement, the prosecutor mentioned that Kelly had been
charged with four serious felonies and pled guilty to attempted sexual assault. FitzSimmons
testified that Kelly pled guilty to attempted sexual assault and had been charged with actual
sexual assault, statutory sexual assault, and attempted statutory sexual assault. Moreover,
Maddox testified that he had caused a warrant to be issued, based on sexual assault, for
Kelly's arrest. In light of the already mentioned evidence of his prior conviction and the
dismissed charges, Kelly took the stand, and during cross-examination, the State asked
whether he had been charged with the four named felonies.
__________

2
The facts referred to above gave the State what some might call a slam-dunk case. It is to be regretted
that sometimes the State seems to be influenced by what might, for lack of a better term, be called the Oscar
Wilde syndrome: Moderation is a fatal thing. Nothing succeeds like excess.
108 Nev. 545, 556 (1992) Kelly v. State
evidence of his prior conviction and the dismissed charges, Kelly took the stand, and during
cross-examination, the State asked whether he had been charged with the four named
felonies. Finally, in its closing statement, the State reiterated the four charges.
3

Evidence of prior crimes, wrongs or acts is not admissible against the accused unless it is
substantially relevant for some purpose other than to show the probability that the accused
committed the act because of a bad character. See, e.g., Daly v. State, 99 Nev. 564, 567, 665
P.2d 798, 801 (1983). However, such evidence is admissible as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident. Id.; see also NRS 48.045(2).
The State failed to meet the requirements for admitting the prior dismissed charges.
In order for prior bad acts to be admissible, the party introducing such evidence must
demonstrate the following: (1) that the acts are relevant; (2) that the acts were committed by
clear and convincing evidence; and (3) that the probative value of the evidence outweighs the
prejudicial value. Beck v. State, 105 Nev. 910, 911, 784 P.2d 983, 984 (1989).
The majority argues that the evidence of the dismissed charges was relevant because it
showed that Kelly knew that the letter was forged and that he offered false information in his
federal petition. I respectfully disagree.
__________

3
As the majority points out, the district court concluded that the underlying facts of Kelly's conviction were
too prejudicial to be admitted. Thus, the district court restricted the State from developing the underlying facts of
the conviction and attempted to delete such facts from the exhibits. Unfortunately, the district court's attempts to
delete these facts were inadequate. In exhibit 12, a transcript of Kelly's arraignment, the district court scribbled
with ink through the language. However, the transcript is still legible, providing:
It alleges that on the particular date that you willfully, unlawfully, and forcibly attempted to subject
------ ------
Kelly, who was born 12/5/68, which would make her
THE DEFENDANT: Fourteen
THE COURT: just about 15, yes, to sexual penetration against her will through the use and/or the
threat of the use of force under conditions in which the said defendant knew or should have known that
she was mentally or physically incapable of resisting and/or understanding the nature of the act because
of her young years and/or relationship of father to daughter.
Similarly, in exhibit 11, the memorandum of plea negotiation, the district court attempted to delete the name of
the victim, but her name was still legible.
108 Nev. 545, 557 (1992) Kelly v. State
Relevant evidence is that evidence which has 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; see also Beck, 105 Nev. at 912, 784 P.2d at
984.
There is no evidence in the record to establish that Kelly had been promised a maximum
five-year sentence. During his arraignment, the district court asked Kelly whether he
understood that sentencing was strictly up to the trial judge. Kelly responded, Yes, sir, I do.
When Kelly moved to withdraw his guilty plea, he failed to mention the alleged agreement
which guaranteed him a five-year sentence. Additionally, both FitzSimmons and Maddox
testified that they had not guaranteed (nor could they guarantee) Kelly a five-year maximum
sentence. In fact, Kelly admitted that he had not been promised such a sentence. Obviously,
when Kelly filed the federal petition, he knew it contained false evidencethe letter which
had been doctored by either Kelly or a fellow inmate. Therefore, the State could have
demonstrated Kelly's knowledge without reference to the dismissed charges, and the
dismissed charges did not tend to prove or disprove any of the material facts in Kelly's
forgery trial.
Even if the aforementioned evidence is relevant and tends to prove one of the possible
facts enumerated in NRS 48.045(2), it is not admissible if its prejudicial effect outweighs the
probative value. Daly, 99 Nev. at 567, 665 P.2d at 801. As we stated in Tucker v. State, 82
Nev. 127, 412 P.2d 970 (1966):
Whenever the problem of evidence of other offenses confronts a trial court, grave
considerations attend. The danger of prejudice to the defendant is ever present, for the
jury may convict now because he has escaped punishment in the past. . . . Indeed, as our
system of justice is accusatorial rather than inquisitorial, there is much to be said for the
notion that the prosecution must prove the defendant guilty of the specific crime
charged without resort to past conduct. Thus when the other offense sought to be
introduced falls within an exception to the rule of exclusion, the trial court should be
convinced that the probative value of such evidence outweighs its prejudicial effect.
Id at 130, 412 P.2d at 971 (emphasis added) (citations omitted).
Evidence of prior crimes is by its very nature potentially prejudicial, particularly where
the crimes alleged are sexual. Nix v. State, 653 P.2d 1093, 1098-99 (Alaska Ct.App. 1982).
Because evidence of prior sex crimes is extremely inflammatory, the general rule against
admission of evidence of prior crimes should be strictly applied in cases involving sexual
assault.4 State v. Collins, 69S P.2d 969, 973 {Or.Ct.App. 19S5); State v. Fears, 6SS P.2d
SS, 90 {Or.Ct.App.
108 Nev. 545, 558 (1992) Kelly v. State
should be strictly applied in cases involving sexual assault.
4
State v. Collins, 698 P.2d 969,
973 (Or.Ct.App. 1985); State v. Fears, 688 P.2d 88, 90 (Or.Ct.App. 1984). Here, the
prejudicial effect was so great and the probative value, if any, was so minimal that the district
court erred in admitting the evidence.
Further, reception of prior crime evidence is justified only by necessity. Tucker, 82 Nev. at
130, 412 P.2d at 971. Thus if other evidence substantially demonstrates the elements of the
crime involved (such as motive, intent, identity, absence of mistake), the probative value of
showing another offense is diminished, and the trial court should rule it inadmissible even
though relevant and within an exception to the rule of exclusion. Id. at 130, 412 P.2d at
971-72. Again, the district court erred because, as noted earlier, the State could have proved
its case without resort to the evidence of the prior dismissed charges.
Finally, the State never proved by clear and convincing evidence that the dropped
charges occurred. Indeed, the State did not introduce any evidence that Kelly committed these
offenses. Consequently, the State failed to meet any of the elements required to admit these
prior dismissed charges into evidence, and the district court erred in so admitting the
evidence.
The nature of the prior conviction was inadmissible.
While I recognize that it would have been impossible to avoid mentioning that Kelly was
incarcerated, the district court, in my opinion, also erred in admitting evidence of the nature
of Kelly's prior conviction. The majority concludes that it was admissible for impeachment
purposes.
This conclusion, however, initially ignores the fact that the State mentioned the nature of
the felony conviction several times before Kelly testified. As with the prior dismissed
charges, evidence of the nature of the felony conviction, which was introduced during the
State's case-in-chief, was not relevant.
Even so, the State improperly impeached Kelly. Although prior felony convictions may be
used to impeach a defendant who testifies, such evidence should not be admitted if its
probative value is substantially outweighed by danger of unfair prejudice, confusion of issues
or misleading the jury. Anderson v. State, 92 Nev. 21, 23, 544 P.2d 1200, 1201 (1976); see
also Givens v. State, 99 Nev. 50, 52-53, 657 P.2d 97, 99 (1983). Moreover, as this court
stated in Givens, "[w]e recognize that assaultive crimes usually have only slight probative
value with respect to the veracity. . . ." Id. Because of the highly inflammatory nature of
the sex crime in this case and its minimal probative value, the prejudicial effect of
identifying the nature of the felony conviction substantially outweighed the probative
value.
__________

4
Prior crime evidence is likely to inflame the passions of the jury such that the jury may convict the
defendant on the sole ground that he is a bad person, not because he was proven guilty. People v. Hoze, 241
Cal.Rptr. 14, 17 (Ct.App. 1987). I cannot imagine a crime more likely to inflame the jury and label the defendant
as a bad person than the crime of sexually assaulting one's own minor child.
108 Nev. 545, 559 (1992) Kelly v. State
this court stated in Givens, [w]e recognize that assaultive crimes usually have only slight
probative value with respect to veracity . . . . Id. Because of the highly inflammatory nature
of the sex crime in this case and its minimal probative value, the prejudicial effect of
identifying the nature of the felony conviction substantially outweighed the probative value.
Thus, I would hold that the district court erred in admitting this evidence.
The error was not harmless.
The majority recognizes that the State did not prove the prior dismissed charges by clear
and convincing evidence but concludes that this error was harmless. My brethren reason that
because the evidence of the felony conviction was properly admissible, the evidence of the
dismissed charges which also involved sex crimes was not prejudicial and, secondly, that
there was substantial evidence to sustain the jury verdict.
As noted above, the evidence of the nature of the prior conviction was not admissible.
Further, it is ironic that the majority premises the admissibility of the prior dismissed charges
on the need to demonstrate Kelly's knowledge, but then, in arguing harmless error, the
majority offers a strong recitation of the evidence showing that the State did not need the
evidence of the prior bad acts.
The problem is that the majority is essentially concluding that because there was
substantial evidence of guilt, the error was harmless. In my opinion, harmless error should not
be based simply on this criteria. We explained this point in Weakland v. State, 96 Nev. 699,
615 P.2d 252 (1980):
[T]his court has established certain guidelines to be followed in exercising its discretion
[in determining whether the error was harmless]. These include whether the issue of
innocence or guilt is close, the quantity and character of the error and the gravity of the
harm charged. Underlying each of these factors is the supervisory function of the
appellate court in maintaining the standards of the trial bench and bar, to the end that
all defendants will be accorded a fair trial.
Id. at 701, 615 P.2d at 254 (quoting in part Garner v. State, 78 Nev. 366, 374 P.2d 525
(1962)) (emphasis added). Likewise, the United States Supreme Court stated it preferred a
harmless error rule which was based on whether there [was] a reasonable probability that the
evidence complained of might have contributed to the conviction. Chapman v. California,
386 U.S. 18, 23 (1967) (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)). Otherwise,
through our harmless error rule, we are informing prosecutors that whenever there is
substantial evidence of guilt, there is an open invitation for them to introduce the available
prejudicial evidence.
108 Nev. 545, 560 (1992) Kelly v. State
of guilt, there is an open invitation for them to introduce the available prejudicial evidence.
Such a result undermines the idea that every defendant is entitled to a fair trial and implies
that only the innocent defendants have a right to object to errors of law. As stated by Justice
Sutherland in Berger v. United States, 295 U.S. 78, 88 (1935):
[A prosecutor] is . . . the servant of the law, the twofold aim of which is that guilt shall
not escape or innocence suffer. He may prosecute with earnestness and vigorindeed
he should do so. But while he may strike hard blows, he is not at liberty to strike foul
ones. It is as much his duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring about a just one.
I conclude that there is a reasonable probability the needless and prejudicial introduction of
the dismissed charges contributed to the conviction. Therefore, the error was not harmless.
5

For the foregoing reasons, I respectfully submit that the repetitious admission of the nature
of the felony conviction and the evidence of the dismissed charges denied Kelly a fair trial. I
therefore would reverse the conviction and remand for a new trial.
____________
108 Nev. 560, 560 (1992) Federated American Ins. v. Granillo
FEDERATED AMERICAN INSURANCE COMPANY, Appellant, v. BERNARDO T.
GRANILLO, SR., and BERNARDO T. GRANILLO, JR.; OMAHA PROPERTY
CASUALTY AND INSURANCE COMPANY, Respondents.
No. 22643
August 5, 1992 835 P.2d 803
Appeal from a district court order granting respondents' motion for summary judgment.
Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Automobile insurer brought declaratory judgment action, seeking declaration that
exclusion in an insured's automobile policy precluding insured's son from driving was
valid.
__________

5
Several years ago during an informal meeting on prosecutorial misconduct with members of our court, a
very successful and highly respected former prosecutor stated that during his service, the State usually attempted
to present all evidence which might help to convictwith an underlying premise that if admitted, and later a
legal issue arose, it would be addressedusually under the banner of harmless error. Such a practice
needlessly adds to the expense of trial, prolongs the proceedings and may even result in a new trial.
ing declaration that exclusion in an insured's automobile policy precluding insured's son from
driving was valid. The district court determined that the exclusion was invalid, and insurer
appealed. The supreme court, Springer, J., held that automobile insurer must provide
minimum coverage to all persons who drive an insured's car with insured's permission
regardless of whether permissive driver has been explicitly excluded from coverage.
Affirmed.
Thorndal, Backus, Maupin & Armstrong and Robert A. Groesbeck, Las Vegas, for
Appellant.
Fitzgibbons & Anderson, Las Vegas, for Respondent.
1. Insurance.
Automobile insurer must provide minimum coverage to all persons who drive an insured's car with insured's permission regardless
of whether permissive driver has been explicitly excluded from coverage. NRS 485.3091, subd. 1.
2. Insurance.
Nevada policy favors providing persons who are injured in motor vehicle accidents with at least minimum compensation for their
injuries.
3. Insurance.
Automobile insurer was required to provide minimum coverage for automobile accident caused by insured's son, even though the
son was specifically excluded from coverage under automobile policy; insurer is required to provide minimum coverage to all persons
who drive insured's car with insured's permission. NRS 485.3091, subd. 1.
OPINION
Respondent Bernardo Granillo, Sr. (Granillo) was insured by appellant Federated
American Insurance Company (Federated). Federated offered to insure Granillo at a lower
rate if his son, respondent Bernardo Granillo, Jr. (Bernardo), was excluded from coverage.
Specifically, Granillo was told that his policy would cost $552.00 per annum with Bernardo
excluded or $1,170.00 per annum if Bernardo were covered. Although Granillo accepted the
lower premium, he nonetheless allowed Bernardo to drive; subsequently, Bernardo caused an
accident in which another driver was injured.
The vehicle driven by the injured driver was insured by respondent Omaha Property and
Casualty Company (Omaha). Consequently, Omaha paid the driver $9,120.00 for her
injuries. Omaha later requested reimbursement from Federated for Bernardo's accident
contending that, under NRS 4S5.3091{1),1 individual exclusions are valid only for claims
exceeding the statutory minimum of $15,000.00.
Bernardo's accident contending that, under NRS 485.3091(1),
1
individual exclusions are
valid only for claims exceeding the statutory minimum of $15,000.00. Federated, however,
refused to reimburse Omaha.
Federated then filed a complaint for a declaratory judgment, requesting that the district
court find that the exclusion in Granillo's policy was valid. Subsequently, both Omaha and
Federated filed motions for summary judgment. Following a hearing, the district court
determined that NRS 485.3091(1) prohibits individual exclusions for less than the statutory
minimum amount and granted Omaha's motion for summary judgment. On appeal, Federated
contends that the district court erred when it granted Omaha's motion for summary judgment.
We disagree.
[Headnote 1]
NRS 485.3091(1) states that a motor vehicle insurance policy must provide the statutory
minimum coverage for both the owner of the policy and any other person who uses the
vehicle with the owner's permission. We have previously held that this provision invalidates
certain exclusions for claims less than the statutory minimum amount. For instance, in Baker
v. Criterion Ins. Co., 107 Nev. 25, 805 P.2d 599 (1991) we noted that, under NRS
485.3091(1), a household exclusion clause is valid only for claims in excess of the
$15,000/$30,000 minimum liability insurance required by statute. See also, Estate of Neal v.
Farmers Ins. Exchange, 93 Nev. 348, 566 P.2d 81 (1977) (concluding that a household
exclusion clause for less than the statutory minimum amount is void). We now hold that
under NRS 485.3091(1), an insurance company must provide minimum coverage to all
persons who drive an insured's car with the insured's permission regardless of whether the
permissive driver has been explicitly excluded from coverage.
__________

1
In pertinent part, NRS 485.3091(1) of the Motor Vehicle Responsibility Act (NRS ch. 485) states:
1. An owner's policy of liability insurance must;
. . . .
(b) Insure the person named therein and any other person, as insured, using any such motor vehicle
with the express or implied permission of the named insured, against loss from the liability imposed by
law for damages arising out of the ownership, maintenance or use of such motor vehicle . . . as follows:
(1) Because of bodily injury to or death of one person in any accident, $15,000. . . .
(2) Subject to the limit for one person, because of bodily injury to or death of two or more persons
in any one accident, $30,000; and
(3) Because of injury to or destruction of property of others in any one accident.
[Headnote 2]
We base this decision on our previously stated policy of providing persons who are injured
in motor vehicle accidents with at least minimum compensation for their injuries. In Hartz v.
Mitchell, 107 Nev. 893, 896, 822 P.2d 667, 669 (1991), we acknowledged that Nevada has a
strong public policy interest in assuring that individuals who are injured in motor vehicle
accidents have a source of indemnification. Our financial responsibility law reflects Nevada's
interest in providing at least minimum levels of financial protection to accident victims.
Based on this interest in protecting accident victims, we do not think that an insurance
company should be able to circumvent the requirements of Nevada's financial responsibility
law by excluding coverage to permissive drivers. These laws were enacted to benefit the
public as well as the insured; permitting such individual exclusions would frustrate that
purpose.
[Headnote 3]
Thus, we conclude that the district court did not err when it determined that Federated
must reimburse Omaha for Bernardo's accident even though Bernardo was specifically
excluded from Granillo's policy; we therefore affirm the district court order.
Mowbray, C. J., Rose and Young, JJ., concur.
Steffen, J. concurring:
Somewhat reluctantly, I concur in the result reached by the majority.
Contrary to an anecdotal law of nature, respondents Granillo, Sr. and Granillo, Jr., have
managed to eat their cake and have it, too. Granillo, Sr. has managed to avoid paying a
premium over twice the amount Federated charged as a result of excluding his son from his
policy and still have his son covered by the policy. Granillo, Jr. has managed to drive with
coverage despite the clear determination between the insurer and his father that he would not
be insured. Federated, on the other hand, didn't even see the cake (the higher premium), let
alone eat it.
I concur in the court's opinion because it conforms with Nevada's public policy, as
reflected by NRS Chapter 485, that all drivers be insured, thus providing a source of relief to
injured persons against the tortfeasors who cause them injury. Unfortunately, however, the
law as extended by today's ruling promotes a number of deleterious, socially negative
consequences. First, it provides every responsible person in a household relationship with
high risk, high cost drivers with an incentive to simply have them declared to be excluded on
the policy, knowing that they will be covered as a matter of law.1 Second, since insurance
companies could not survive as eleemosynary institutions, it is clear that premium
adjustments will have to be made to the detriment of all owners of highway vehicles in
order to cover the contingency that excluded, high risk drivers in a household will be
allowed to use the covered vehicles. Third, insureds such as Granillo, Sr., with coverage
specifically excluding high risk drivers, will enjoy coverage for such drivers as a matter of
law, courtesy of the subsidies furnished by vehicle owners who do not have such high risk
drivers in their households.
will be covered as a matter of law.
1
Second, since insurance companies could not survive as
eleemosynary institutions, it is clear that premium adjustments will have to be made to the
detriment of all owners of highway vehicles in order to cover the contingency that excluded,
high risk drivers in a household will be allowed to use the covered vehicles. Third, insureds
such as Granillo, Sr., with coverage specifically excluding high risk drivers, will enjoy
coverage for such drivers as a matter of law, courtesy of the subsidies furnished by vehicle
owners who do not have such high risk drivers in their households.
An added concern not at issue in this appeal involves what I believe to be a strongly
implied promise on the part of Granillo, Sr. not to permit his excluded son to drive the
covered vehicle. Granillo, Sr. had the option to cover his son at over twice the premium he
elected to pay in return for excluding his son from coverage. The sole quid pro quo Federated
received for not charging the higher premium was the fact that it would not be covering the
higher risk posed by Granillo, Jr. as a driver of the insured vehicle. It may be cogently argued
that it was implicit in the agreement between Federated and Granillo, Sr. that the latter would
not allow his son to drive the insured vehicle, for if the son were allowed to drive, he would
enjoy coverage under the policy as a matter of law. Since the son was allowed to drive the
vehicle, it appears equally cogent to conclude that there was a breach of an implied promise
that should leave Federated with an implied right of indemnity against its insured. If
Federated were able to recover against Granillo, Sr., at least the loss occasioned by Granillo,
Jr.'s operation of the automobile would fall on the party who authorized the son's use of the
car in violation of an implied promise not to do so.
2

It appears that there are few satisfactory remedies for the problem posed by the instant
case. Given the overriding importance of the availability of coverage, the legislature was
undoubtedly wise in requiring statutory coverage for all potential drivers in a household,
irrespective of risk, thus placing the cost burden on society as a whole. As with many public
impositions, there are inevitable inequities. There is an element of unfairness to responsible
insureds who would not allow an excluded driver to use a family vehicle, and the degree
of unfairness intensifies with owners of vehicles who do not have high risk drivers in their
households.
__________

1
Today's ruling will likely result in insurance policy adjustments that may emasculate the incentive by
eliminating elective exclusions that are ineffective as a matter of law and supplanting them with correspondingly
higher premiums.

2
I am not suggesting that the availability of an action for indemnification against the primary insured will
provide any real basis for obviating the inevitable increase in the cost of liability insurance that will result from
today's decision, as in most instances the prospect for recovery would probably be remote.
sible insureds who would not allow an excluded driver to use a family vehicle, and the degree
of unfairness intensifies with owners of vehicles who do not have high risk drivers in their
households. All liability insurance policy owners have to subsidize the cost of providing such
coverage. In any event, today's ruling rightfully recognizes the clear policy choice made by
our legislature, one of the effects of which is readily predicted as a result of the instant case,
as no insurance company can prosper by bargaining for, and basing its rates upon, driver
exclusions which the law will not allow.
____________
108 Nev. 565, 565 (1992) City of Las Vegas v. District Court
THE CITY OF LAS VEGAS, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, in and for The County of Clark, and THE
HONORABLE JEFFREY SOBEL, District Judge, Respondent, and REGINALD
SLAUGHTER, Real Party in Interest.
No. 22546
THE CITY OF LAS VEGAS, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, in and for The County of Clark, and THE
HONORABLE JEFFREY SOBEL, District Judge, Respondent, and DENNIS
BARTHOLOW, Real Party in Interest.
No. 22547
August 5, 1992 835 P.2d 806
Petitions for rehearing. Eighth Judicial District Court, Clark County; Jeffrey Sobel,
District Judge.
After granting prohibition to prevent district court from exercising jurisdiction over
appeals from certain judgments of conviction, 107 Nev. 885, 822 P.2d 115, the supreme
court, on rehearing, held that municipal courts must provide each indigent person whose fine
is converted to jail time with simplified form to facilitate his or her filing of habeas corpus
petition.
Petitions denied; with instructions.
Roy A. Woofter, City Attorney, and Bruce W. Nelson, Deputy City Attorney, Las Vegas,
for Petitioner.
Thomas F. Pitaro, Las Vegas, for Real Parties in Interest.
108 Nev. 565, 566 (1992) City of Las Vegas v. District Court
Habeas Corpus.
Municipal court should provide indigent person whose fine is converted to jail time with a simplified form, complete with
simplified instructions, to facilitate filing of appropriate petition for habeas corpus, thus allowing the district court to determine
whether the fine has been properly converted consistent with due process of law. U.S.C.A.Const. amend. 14.
Per Curiam:
On December 12, 1991, this court issued an opinion in these consolidated petitions
granting the requests of the state to prohibit the district court from exercising jurisdiction over
appeals from certain judgments of conviction. Specifically, we held that when a municipal
court converts a fine to jail time as a coercive measure to enforce payment of the fine, the
order of the municipal court does not constitute a modification or amendment of the original
judgment of conviction that resulted in the fine; thus, no appeal from the underlying judgment
of conviction could lie following the conversion of the fine to jail time. City of Las Vegas v.
District Court, 107 Nev. 885, 822 P.2d 115 (1991). We note, however, that the real parties
could challenge the conversion of their fines to jail terms by filing appropriate petitions for
writs of habeas corpus. Id. at 887 n.2, 822 P.2d at 116.
The real parties in interest have petitioned for rehearing. The petitions, however, do not
demonstrate that this court overlooked or misapprehended any material fact, or that this court
misapplied the law. Accordingly, we deny the petitions for rehearing. See NRAP 40(c).
Nevertheless, we note that the indigent individuals who are subject to having their fines
converted to jail terms are generally untrained in the law. Thus, it may be difficult for such
individuals to understand how to proceed with the filing of a petition for a writ of habeas
corpus. Accordingly, as an exercise of this court's general supervisory authority over the
municipal courts, we direct the municipal courts, in all future cases, to provide each indigent
person whose fine is converted to jail time with a simplified form, complete with simplified
instructions, to facilitate his or her filing of an appropriate petition for a writ of habeas
corpus, thus allowing the district courts to determine whether the fine has been properly
converted consistent with due process of law.
____________
108 Nev. 567, 567 (1992) Roy v. Luschar
LAURENCE ROY, Appellant, v. DONALD LUSCHAR, Respondent.
No. 22451
August 5, 1992 835 P.2d 807
Appeal from a judgment of the district court finding that respondent's debt to appellant had
been satisfied. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Mortgagor filed a complaint seeking an injunction prohibiting foreclosure on residential
property and a declaration that debts evidenced by promissory notes and secured by mortgage
on residential property had been satisfied. The district court entered judgment in favor of the
mortgagor, and the mortgagee appealed. The supreme court held that no merger of security
interests in residential and commercial property and deed of title in commercial property
occurred, and thus the loan transactions should not have been considered separately.
Gunderson, Mehesan & Wenzel, Reno, for Appellant.
Robert Damon Spitzer, Incline Village, for Respondent.
1. Mortgages.
In determining whether a merger of title and security interest has occurred, the court will consider whether the parties intended for
a merger to take place, and whether the interests are coextensive and commensurate; if the merger is not in the best interests of the
party in whom the interests are said to unite, no merger will be found.
2. Mortgages.
No merger of security interests in residential and commercial property and deed of title to commercial property occurred where
party in whom interests were said to unite asserted that his intent was to retain title in the commercial property as a security interest,
merger of interests was clearly not in that party's best interest, there was substantial evidence that the intent of both parties was that the
deed of title be held only as a security interest, and the interests were not coextensive and commensurate.
3. Mortgages.
In action seeking injunction prohibiting foreclosure on residential property and declaration that debts evidenced by promissory
notes had been satisfied, loan transactions relating to commercial property should not have been considered separately from the
transactions involving the residential property where transfer of deed of title to commercial property did not satisfy underlying debt
secured by mortgage on residential property.
108 Nev. 567, 568 (1992) Roy v. Luschar
OPINION
Per Curiam:
In 1983, Donald Luschar (Luschar) and William Courtney (Courtney) formed a partnership
to acquire and construct office buildings in Incline Village, Nevada. Luschar's primary
business experience was as a plumbing contractor. Luschar and Courtney's partnership
dissolved later that year, and Luschar was left with an office building at 924 Incline Way
(Incline Way), that was encumbered by a first mortgage for approximately $884,000.00 from
Sacramento Valley Bank (SVB), and a second mortgage of $199,974.00 from Courtney.
Courtney's deed of trust was eventually assigned to the Incline Investment Group (IIG).
In April of 1983, Luschar fell behind in his payments to SVB. Consequently, he sought the
assistance of Laurence Roy (Roy), an old friend who was a licensed realtor in California. Roy
gave Luschar a $60,000.00 loan, which Luschar secured with a deed granting Roy: (1) a third
priority interest on the Incline Way property, and (2) a third priority interest on Luschar's
residence, a house located at 626 Woodridge Circle (Woodridge). Several months later, Roy
loaned Luschar an additional $4,600.00 as an extension on the first loan.
By the fall of 1983, Luschar was behind in his payments to SVB, IIG, and Roy, and he was
attempting to sell the Incline Way property. In January of 1984, both SVB and IIG
commenced foreclosure actions on Incline Way. Shortly thereafter, IIG gave Luschar notice
that the property would be sold at a trustee's sale, and Luschar responded by filing a Chapter
11 bankruptcy petition.
Luschar's continuing efforts to procure a buyer for the Incline Way property were
frustrated by the fact that he had declared bankruptcy. Therefore, on May 3, 1985, Luschar
deeded title to Incline Way to Roy in order to facilitate the refinancing that was necessary for
the sale of the property. Roy reconveyed his second and third priority deeds to Incline Way to
Luschar by way of two separate deeds which stated that the indebtedness secured by the
priority deeds had been fully repaid. Thereafter, Roy refinanced Incline Way with a
$1,000,000.00 mortgage obtained from the American National Bank (ANB). At
approximately the same time, Roy contracted to sell Incline Way to Hallicrafters, a buyer
introduced to him by Luschar, for $1,600,000.00. He used a contract of sale for this purpose,
because Hallicrafters' poor credit rating and low down payment led Roy to suspect that they
might default and that he would have a better chance of retaining title under a contract of sale.
Luschar never objected to the sale.
108 Nev. 567, 569 (1992) Roy v. Luschar
Hallicrafters defaulted on the contract of sale in February of 1986, after having paid Roy
$150,000.00 as a down payment and $75,000.00 in additional installments.
On September 23, 1985, Luschar remortgaged his Woodridge home for $220,000.00 with
Bank of America. He used approximately $80,000.00 of the proceeds to redeem the first
mortgage on his home and paid the remaining $129,763.00 to Roy. At that time, Roy's
liability, in conjunction with his loans to Luschar, included his guarantee on the new
Woodridge mortgage and his liability on the $850,000.00 that remained on the American
National Bank mortgage of the Incline Way property.
Luschar also owned another residential property, located at 554 Silvertip (Silvertip), which
he held for investment purposes. Silvertip was encumbered by a mortgage for approximately
$80,000.00, held by Comstock Bank, and Luschar was also having trouble meeting his
obligations on that mortgage. On May 1, 1985, Luschar deeded Silvertip to Roy as security
for an additional $63,000.00 that he borrowed to pay off Comstock Bank. The deed was also
used as security for the $53,000.00 that Roy loaned to Luschar on May 13, 1985, to redeem
the mortgage on the Woodridge property.
Immediately prior to refinancing the Woodridge property, Roy asked Luschar for two
promissory notes that would reduce some of his outstanding debt to writing. Luschar testified
that he understood that the purpose of these notes was to give Roy some tangible evidence of
the existing debt in the event that something should happen to Luschar before the refinancing
occurred. Luschar stated that at the time Roy requested the promissory notes, Luschar
believed that he still owed Roy $108,000.00, although he later recalculated and determined
that, by his estimation, Roy had already been overcompensated by an amount exceeding
$300,000.00. On or about September 30, 1985, Luschar gave Roy two promissory notes, one
for $30,000.00 and the other for $60,000.00, as evidence of the existing debt. These notes
stated that they were payable on or before June 14, 1987, or upon sale of the Incline Way
property, whichever occurred first. The $90,000.00 evidenced by the notes was secured by a
deed of trust on the Woodridge property.
After deeding the Silvertip property to Roy, Luschar continued to manage the property
until January of 1987, when Roy instructed the tenant to begin paying rent to him rather than
to Luschar, because Luschar had neglected to pay the property taxes. As a result of Roy and
Luschar's disagreement over who should receive the rent from Silvertip, Roy and Luschar
stopped speaking to each other. On June 24, 1987, Roy sold Silvertip to a third party for
$205,000.00, without informing Luschar of the sale.
108 Nev. 567, 570 (1992) Roy v. Luschar
Luschar made no payments on the $30,000.00 and $60,000.00 promissory notes, and the
Incline Way property was not sold. Consequently, on October 25, 1989, Roy gave Luschar
notice that he intended to foreclose on Woodridge. On February 22, 1990, shortly before the
date of foreclosure was to take place, Luschar filed a complaint with the district court seeking
an injunction prohibiting foreclosure on Woodridge and a declaration that the debts
evidenced by the promissory notes had been satisfied. The district court ruled in favor of
Luschar, finding that Roy had received the deed to Incline Way in lieu of repayment for the
amounts he loaned to Luschar with respect to that property. Furthermore, the court found that
all transactions not related to the Incline Way property were related to each other, and that,
with respect to these other transactions, Roy had been overcompensated by approximately
$16,000.00. However, the district court decided that rough equity favored allowing Roy to
keep the overpayment.
Roy appeals, arguing that the loans relating to the Woodridge and Silvertip properties were
part of the initial Incline Way transaction, and that therefore, he should be allowed to recoup
the portion of the loss from his initial investment that was guaranteed by the $30,000.00 and
$60,000.00 promissory notes. Roy estimates that Luschar still owes him $965,603.21, based
upon the record he kept of the various loan transactions as they occurred. Luschar, on the
other hand, maintains that Roy owes him $300,811.60, based upon an accounting he
constructed immediately prior to trial. Despite the fact that Luschar claims that Roy was
overpaid a substantial amount of money, Luschar did not file a counterclaim against Roy.
[Headnotes 1, 2]
In order to determine the significance of the promissory notes and whether the debts they
secure have been repaid, we must first consider whether the transactions involving the Incline
Way property were wholly separate from Roy and Luschar's other transactions. Roy argues
that the district court should not have found that these transactions were wholly separate,
because such a finding necessarily implies that Roy's previously held priority interests in the
Incline Way and Woodridge properties merged into his interest in the deed of title to
Incline Way. We agree.
This court previously addressed the doctrine of merger as applied to a similar set of
circumstances in Aladdin Heating v. Trustees, Cent. States, 93 Nev. 257, 563 P.2d 82 (1977).
In Aladdin, respondents loaned the Kings Castle partnership $6,500,000.00 to finance the
construction of a building. Id. at 259, 563 P.2d at 83. To secure the loan, Kings Castle gave
respondents a promissory note and deed of trust covering both the real property in the
transaction and existing and future improvements. Id. As part of the lease transaction,
the parties also entered into a sale-leaseback arrangement whereby respondents agreed
to purchase the real property in question and lease it back to Kings Castle for a period of
five years, when Kings Castle would repurchase it. Id. Pursuant to this arrangement,
Kings Castle executed a grant, bargain, and sale deed in favor of respondents, which
covered only the real property.
108 Nev. 567, 571 (1992) Roy v. Luschar
real property in the transaction and existing and future improvements. Id. As part of the lease
transaction, the parties also entered into a sale-leaseback arrangement whereby respondents
agreed to purchase the real property in question and lease it back to Kings Castle for a period
of five years, when Kings Castle would repurchase it. Id. Pursuant to this arrangement, Kings
Castle executed a grant, bargain, and sale deed in favor of respondents, which covered only
the real property. When Kings Castle defaulted on its payments, the respondents foreclosed.
Id., 563 P.2d at 84. Appellants, who held junior mechanics' liens on the property, argued that
the respondents could not foreclose on their deed of trust because that deed had been
extinguished by merger when the respondents received the deed of sale. Id. at 261, 563 P.2d
at 84-5. This court held that a merger had not occurred for two reasons: (1) the parties did not
intend for a merger to take place, and (2) the interests said to merge were not coextensive and
commensurate. Id., 563 P.2d at 85.
The first consideration in determining whether a merger has occurred is the intent of the
parties, especially the intent of the party in whom the interests are said to unite. Id. If the
merger is not in the best interest of that party, no merger will be found. Id. In Aladdin, we
held that the respondents could not have intended for their interest to merge because a merger
would cause them to lose their priority over the holders of the mechanics' liens. Similarly, in
the instant case, Roy asserts that his intent was always to retain title to Incline Way as a
security interest. Merger of Roy's priority interests was clearly not in his best interest, because
he incurred substantial loan obligations in order to refinance the property and he knew that
there were potential problems with the prospective buyer. It was in Roy's best interest to hold
the deed of title to Incline Way in order to obtain the refinancing necessary to protect his
initial loan. There is also substantial evidence that the intent of both parties was that the deed
of title only be held as a security interest. Luschar testified that he expected to receive any
proceeds from the sale of Incline Way in excess of the amount he owed to Roy, and that one
of the reasons the deed of title was conveyed was to obtain refinancing. In addition, the two
promissory notes for $30,000.00 and $60,000.00 that Luschar gave Roy as evidence of his
debt stipulated that they were redeemable upon sale of the Incline Way property. Thus, we
conclude that Luschar has not presented sufficient evidence to establish that a merger was
intended by the parties.
In addition, in Aladdin, we held that interests can only merge if they are coextensive and
commensurate. Aladdin, 93 Nev. 261, 563 P.2d at 85. In that case, we held that respondents'
interests were not coextensive and commensurate, because the deed of sale conveyed title
to the real property only, whereas the deed of trust conveyed an interest in both the real
property and existing and future improvements. Id. In the instant case, the interests said
to be merged are also not coextensive and commensurate.
108 Nev. 567, 572 (1992) Roy v. Luschar
were not coextensive and commensurate, because the deed of sale conveyed title to the real
property only, whereas the deed of trust conveyed an interest in both the real property and
existing and future improvements. Id. In the instant case, the interests said to be merged are
also not coextensive and commensurate. Roy's initial loan was guaranteed by a third priority
deed on Incline Way and a third priority deed on Woodridge, Luschar's residence. Because
the deed of title that Luschar conveyed to Roy did not include any interest in the Woodridge
property, the merged interests cannot be said to be coextensive and commensurate. Therefore,
we conclude that the debt secured by Roy's priority interests in the Incline Way and
Woodridge properties was not fully satisfied by transfer of the Incline Way deed of title to
Roy.
[Headnote 3]
Because Luschar's transfer of the Incline Way deed of title to Roy did not satisfy the
underlying debt, we conclude that the loan transactions relating to the Incline Way property
should not be considered separately from the transactions involving Woodridge and Silvertip.
Rather, all of the transactions between Luschar and Roy should be considered together.
Accordingly, we reverse this case and remand to the district court, with the recommendation
that a master be appointed to conduct a hearing and accounting to determine the amount of
money due to whichever party is actually owed, in addition to the amount of interest and costs
owed to that party.
____________
108 Nev. 572, 572 (1992) Moser v. Moser
AMY MOSER n/k/a AMY REYNOLDS, Appellant, v. TIM MOSER, Respondent.
No. 22726
August 6, 1992 836 P.2d 63
Appeal from an order of the district court changing custody of a minor child. Eighth
Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Father filed an objection to child custody referee's report that mother should retain custody
of child. The district court reversed referee's decision without conducting evidentiary hearing
and awarded primary physical custody to father. Mother appealed. The supreme court, Rose,
J., held that: (1) mother was denied her right to full and fair hearing concerning custody of
child, and (2) it is error for district court to reject referee's findings without conducting proper
evidentiary hearing.
Reversed.
108 Nev. 572, 573 (1992) Moser v. Moser
Springer, J., and Mowbray, C. J., dissent in part.
Dickerson, Dickerson, Lieberman & Consul, Las Vegas, for Appellant.
John C. Wawerna, Las Vegas, for Respondent.
1. Parent and Child.
Litigants in a custody battle have the right to full and fair hearing concerning the ultimate disposition of child; observance of this
right requires that before parent loses custody of child, elements that serve as precondition to change custody award must be supported
by factual evidence and party threatened with loss of parental rights must be given the opportunity to disprove evidence presented.
2. Divorce.
Mother was denied her right to full and fair hearing concerning the custody of her child where court's finding that a change of
circumstance had occurred was not supported by any indication of what that change was, the court did not specifically refute findings
of referee that allegations of sexual abuse had not been shown, there was nothing to suggest that mother was the cause of child's
behavioral problem, and mother was not given the opportunity to cross-examine psychologist witness.
3. Divorce.
In child custody decisions, the referee is the decision maker closest to facts and it is error for the district court to wholly reject the
referee's findings without conducting a proper evidentiary hearing concerning the fact or facts in issue; however, if the district court
reviews the case and finds nothing troublesome in the referee's factual findings, an evidentiary hearing is not necessary. NRS 125.005,
subds. 2, 4.
OPINION
By the Court, Rose, J.:
Amy Antonucci Moser (Amy) and Tim Moser (Tim) were married in Las Vegas, Nevada,
on September 15, 1985, and were divorced on September 21, 1987. Their only child,
Elizabeth Katherine Moser (Katie) was approximately eighteen months old at the time of the
parties' divorce. Initially, both parties agreed that Amy should have primary physical custody
of Katie.
After divorcing Tim, Amy married Gregory Scott Reynolds (Greg) and became Amy
Reynolds. Amy, Greg, and Katie continued to live in Las Vegas until the summer of 1990,
when the family moved to Detroit, Michigan, because of Greg's employment.
Fourteen-year-old Richard Reynolds (Richard), one of Greg's children from his previous
marriage, also resided with the family in Michigan. Around the time of the move, Tim
executed an agreement that permitted Amy to relocate with Katie to Michigan.
108 Nev. 572, 574 (1992) Moser v. Moser
Pursuant to Tim and Amy's relocation agreement, Tim was permitted to pick Katie up in
Michigan and take her to Las Vegas for two weeks in December of 1990. Tim failed to return
Katie to her mother in Michigan at the end of this two-week period. Consequently, Amy went
to Las Vegas to retrieve the child. Because Tim refused to relinquish custody of Katie, Amy
filed a motion in the district court to compel her return. At a hearing before a court appointed
domestic relations referee, Tim alleged for the first time that the reason he had refused to
return Katie to Amy was that Katie had been behaving in a manner that suggested that she
had been sexually abused.
In support of his allegation of sexual abuse, Tim submitted numerous affidavits from his
friends and family to the referee. In his own affidavit, Tim stated that he, his live-in
girlfriend, Brenda Gardner (Brenda), his baby sitter, Tiffany Krisciliojlu (Tiffany), and his
sister, Sheri Brown (Sheri), all observed that Katie needed to urinate every fifteen or twenty
minutes during the day and evening, and that she would freely and openly undress in front of
them and digitally fondle her vaginal area. Tim further alleged that Katie had told him that
she showered with both Greg and Richard, and that they would have her wash their prickers
or buff their helmets. Tim also stated that Katie said she knew a man who had been
murdered, that she described in detail the dead body and blood, and that she complained of a
monster who scratched her.
Tim also took Katie to see Dr. Joan Owens (Owens), a licensed family counselor. Owens'
affidavit stated that her observations of Katie and the statements that Katie made during their
counseling sessions indicated that she may have been sexually molested. However, Owens
also admitted that most of the information contained in her initial affidavit was based upon
statements made to her by Tim and Brenda.
Tim further alleged that Katie was developmentally disabled. Several of his friends and
family members stated in their affidavits that Katie was an uncontrollable and obnoxious
child when she first arrived in Las Vegas. In addition, Tim submitted a progress report from
the preschool in which he had enrolled Katie. This report stated that Katie initially would not
follow directions. However, the report also stated that by the end of Katie's first week of
preschool, she was behaving better; by the end of her second week, she was progressing
academically; and by the end of her third week, she was doing very well.
Amy also submitted an affidavit, stating that Katie was never obnoxious or hyperactive in
her presence. She further stated that she had never observed a tendency on Katie's part to
urinate frequently, and that Katie had never mentioned having seen a man murdered or being
scratched by monsters.
108 Nev. 572, 575 (1992) Moser v. Moser
murdered or being scratched by monsters. In addition, Amy testified that although she had
heard her stepson, Richard, use the phrase beat my meat, the only individual she had ever
heard use the expression buff my helmet was Tim, who used it frequently. Amy contended
that the allegations that Katie showered with Greg and Richard were false, because Katie was
in Amy's physical presence substantially all of the time she resided in Michigan, and because
the house in Michigan was in the process of being remodeled at that time and did not have a
functional shower. She also stated that she had enrolled Katie in preschool in November of
1990, and that her progress reports did not mention any unusual behavior.
Beginning on February 5, 1991, a series of hearings were held before a domestic relations
referee. Because the referee could not ascertain the merit of Tim's allegations of sexual abuse,
he referred the parties to marathon conflict resolution through the district court's Child
Custody Division. The referee also determined that it would be beneficial for the court to
appoint its own independent expert to evaluate and counsel the child, and he appointed Dr.
Elizabeth Richitt (Richitt), a licensed psychologist, for that purpose.
On May 23, 1991, after Richitt had had an opportunity to evaluate Katie, the referee again
considered the evidence presented, which included deposition transcripts of Richitt, Tim,
Sheri, Brenda, and Tim's mother, Virginia McBride. In addition, the referee discussed this
case at length with Richitt and with Bill Sheldon of the Child Custody Division. The referee
did not, however, consider Owens' reports. The referee concluded that: (1) Katie had
experienced trauma, which was at least partially caused by separation anxiety, (2) there was
nothing to suggest that Amy or Amy's lifestyle in Michigan were the cause of Katie's
behavioral problems, (3) Amy's household was not inappropriate, (4) the allegations of sexual
abuse had not been shown, and (5) there had not been a change of circumstances. Therefore,
the referee ordered that Amy should retain custody of Katie and that they should be permitted
to return to Michigan. The referee also stipulated that Katie should be enrolled in preschool to
further her social development, and that she should be evaluated by a clinical psychologist in
Michigan shortly after her return to that state.
Tim filed an objection to the referee's report within ten days, alleging that the referee erred
in considering the evaluation of Richitt rather than Owens, with whom Katie had reportedly
bonded. No other specific objections to the referee's findings of fact were raised. Because
of Tim's objections, the district judge decided to reconsider the matter without conducting an
evidentiary hearing but requiring Richitt and Owens to meet with Katie one more time
and to each submit an additional evaluation.
108 Nev. 572, 576 (1992) Moser v. Moser
evidentiary hearing but requiring Richitt and Owens to meet with Katie one more time and to
each submit an additional evaluation.
Having read the additional reports of the counselors and reviewed the affidavits in the
record, the district court found that there had been a drastic change in the situation of both
parents since their divorce in 1987. However, the judge failed to indicate the nature of this
change. He also concluded that it would be in Katie's best interest to be placed with Tim,
based upon the statement in Richitt's report that a return to Michigan may reactivate Katie's
anxiety, and the statement in Owens' report that Katie is a fragile child. Thus, the district
judge reversed the referee's decision and awarded primary physical custody of Katie to Tim.
In addition, although permitting the parties to share joint custody of Katie, the district judge
limited Amy's visitation rights to visitations occurring in the State of Nevada.
The principal issue in this matter is what standard of review the district court must observe
in deciding to reject the findings and recommendations of the domestic relations referee. NRS
125.005, which was enacted in 1985, makes court appointed domestic relations referees the
masters of the facts in custody cases, subject to certain limitations. These referees are
authorized to hear all disputed factual issues and make written findings of fact and
recommendations to the district judge. NRS 125.005(2). However, NRS 125.005(4) provides
in part:
Within 10 days after receipt of the [referee's] report, either party may file and serve
upon the other party written objections to the report. If no objection is filed, the court
shall accept the findings of fact unless clearly erroneous, and judgment may be entered
thereon. If an objection is filed within the 10-day period, the court shall review the
matter and enter such order, judgment or decree as is just, equitable and appropriate.
From the plain language of NRS 125.005(4), it appears that the district court is not required
to follow findings of fact made by the referee that are specifically objected to by a party.
What remains unclear from the language of the statute is whether, when a timely objection is
filed, the district court has the discretion to ignore all factual findings not related to the
specifics of the party's objection. Furthermore, if the district court has discretion to ignore the
factual findings of the referee, this court must determine how much evidence the district court
should be required to consider in arriving at a de novo factual conclusion.
[Headnote 1]
Litigants in a custody battle have the right to a full and fair hearing concerning the ultimate
disposition of a child. Mathews v. District Court, 91 Nev. 96, 97, 531 P.2d 852, 852 (1975).
At a minimum, observance of this right requires that before a parent loses custody of a
child, the elements that serve as a precondition to a change of custody award must be
supported by factual evidence.
108 Nev. 572, 577 (1992) Moser v. Moser
minimum, observance of this right requires that before a parent loses custody of a child, the
elements that serve as a precondition to a change of custody award must be supported by
factual evidence. Furthermore, the party threatened with the loss of parental rights must be
given the opportunity to disprove the evidence presented.
[Headnote 2]
The district court's finding in the instant case that a change of circumstances had occurred,
a necessary precondition to a change of custody award under Murphy v. Murphy, 84 Nev.
710, 711, 447 P.2d 664, 665 (1968), was not supported by any statement indicating what that
change of circumstances was found to have been. In addition, the district court did not
specifically refute the findings of the referee that the allegations of sexual abuse had not been
shown and that there was nothing to suggest that Amy, or her lifestyle in Michigan, was the
cause of Katie's behavioral problems. Although Owens' report was the only distinctly new
information considered by the district court, Amy's request to take Owens' deposition, made
prior to the date Owens and Richitt submitted their final reports, was denied. Amy should
have been permitted the opportunity to cross-examine Owens. Thus, we hold that the district
court's method of reviewing the referee's findings in this case denied Amy her right to a full
and fair hearing concerning the custody of her child.
[Headnote 3]
By this holding, we do not mean to invalidate the system by which recommendations of
the referee are reviewed by the district court. However, where the referee is the decision
maker closest to the facts and he or she makes explicit findings of fact, we conclude that it is
error for the district court to wholly reject the referee's findings without conducting a proper
evidentiary hearing concerning the fact or facts in issue. Where, on the other hand, the district
court reviews the case file and finds nothing troublesome in the referee's factual findings, an
evidentiary hearing should not be necessary.
In the present case, because the district judge did not explain his findings that the
circumstances of the parties had drastically changed, and because this court has found nothing
in the record or in the referee's findings that supports the conclusion that a change of
circumstances had occurred, we conclude that Tim has failed to meet his burden of proof.
Therefore, we reverse the order of the district court and order that Katie be returned forthwith
to her mother in Michigan, pursuant to the referee's recommendations.
Steffen and Young, JJ., concur.
108 Nev. 572, 578 (1992) Moser v. Moser
Springer, J., with whom Mowbray, C. J., joins, concurring and dissenting:
I concur in the judgment reversing the district court's order but would remand this case for
a new trial.
Because our newly created family court will obviate the kinds of problems created in this
case by the domestic referee system in the Eighth Judicial District, I will not belabor the
matter in this dissent.
Due process of law and common fairness require that the one who hears a case should also
decide it. Due process implies the right or persons affected by a decision to be present before
the tribunal which pronounces judgment. Here, the judge who decided the case did not hear it.
I would therefore send the case back to the district court for a trial.
NRS 125.010 requires, in cases like this, that the district judge review the matter and
enter such order, judgment or decree as is just, equitable and appropriate. I think that the
only proper means of review in a case such as this is for it to be heard by a district judge with
the power to decide the custody issue. As stated in the majority, [l]itigants in a custody battle
have the right to a full and fair hearing concerning the ultimate disposition of a child. My
reading of the record tells me that neither party has been given a full and fair hearing in this
case. Although I would also reverse, I would remand for a full and fair hearing before a
district judge; therefore, I dissent.
____________
108 Nev. 578, 578 (1992) Nationwide Mut. Ins. v. Moya
NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant/Cross-Respondent, v.
FIDEL MOYA and SEBERO A. MOYA, a Minor, by FIDEL MOYA, His Guardian
Ad Litem, and GILBERT DANIEL DeLaROSA, a Minor, by CORDY and GILBERT
VELARDE, Guardians Ad Litem, and FIDEL MOYA, as the Administrator of the
Estate of RUBY MOYA, Deceased, Respondents/Cross-Appellants.
No. 22013
August 10, 1992 837 P.2d 426
Appeal and cross-appeal from an order of the district court granting in part each party's
motion for summary judgment. Second Judicial District Court, Washoe County; Deborah A.
Agosti, Judge.
Survivors of insured sought each occurrence limit under uninsured motorist provision of
insured's automobile policy. The district court ruled that survivors were entitled to each
occurrence" limit but that they were not entitled to stack death and dismemberment
benefit.
rence limit but that they were not entitled to stack death and dismemberment benefit. Insurer
appealed. The supreme court held that: (1) sickness, as referred to in definition of bodily
injury under automobile policy, meant sickness or disease contracted by insured injured in
accident and did not include grief and sorrow of survivors; (2) insured survivors were not
entitled to each occurrence limit of uninsured motorist coverage for wrongful death claims;
and (3) death and dismemberment benefit was not subject to stacking.
Reversed in part, affirmed in part.
Thorndal, Backus, Maupin & Armstrong, and Charles L. Burcham and Stephen C.
Balkenbush, Reno, for Appellant/Cross-Respondent.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks, and Leroy Arrascada,
Reno, for Respondents/Cross-Appellants.
1. Insurance.
Sickness, as referred to in definition of bodily injury under automobile policy, meant sickness or disease contracted by insured
injured in accident and did not include grief and sorrow of survivors, and thus, survivors' wrongful death claims fell within each
person limit, rather than each occurrence limit of uninsured motorist coverage.
2. Insurance.
Each person limit, rather than each occurrence limit of uninsured motorist coverage applied to wrongful death claims of
survivors of insured, where survivors did not suffer bodily injury in accident and their claims arose as result of injuries insured suffered
in accident.
3. Insurance.
Where one person is injured in accident, each person limit applies, regardless of number of persons damaged as result of
accident.
4. Insurance.
Survivors of insured were not entitled to stack death and dismemberment benefit of automobile policy based on ownership of two
vehicles insured by same insurer, where survivors paid separate premium for death and dismemberment benefit and that coverage
constituted one contractual agreement and was not tied to any particular vehicle. NRS 681A.020, subd. 1(b), 687B.145, subd. 1.
5. Insurance.
Nevada law permits two types of stacking: aggregation of coverage limits of each car insured under single automobile policy or
aggregation of coverage under more than one auto policy.
OPINION
Per Curiam:
An insured died from injuries she suffered in a car accident caused by an uninsured
motorist.
caused by an uninsured motorist. Respondents/cross-appellants (the Moyas), the insured's
personal representative and survivors, sought the each occurrence limit under the insurer's
uninsured motorists provision. They also attempted to stack the death and dismemberment
benefit. The district court granted each party partial summary judgment, ruling that the Moyas
were entitled to the each occurrence limit and that the death and dismemberment benefit
was not subject to stacking. For the reasons stated herein, we conclude that the district court
erred as to its determination of the applicable limit but properly ruled as to the stacking issue.
FACTS
Ruby Moya was driving alone on State Route 429 (the Bowers Mansion Highway).
Suddenly, her car was struck by a vehicle driven by a drunken driver, John Dittmer
(Dittmer). Mrs. Moya suffered severe injuries in the accident and, as a result, died several
days later.
Appellant/cross-respondent Nationwide Mutual Insurance Company (Nationwide) had
issued an automobile casualty and liability insurance policy to Mrs. Moya and her husband,
Fidel Moya. This policy insured the Moyas' pickup truck and 1987 Ford Tempo, which was
involved in the accident.
It is undisputed that Dittmer was an uninsured motorist.
1
The Moyas' insurance policy
provides for uninsured motorist (UM) coverage. The policy lists the following limits of
liability for damages caused by an uninsured motorist: $25,000 for each person and
$50,000 for each occurrence. The policy provides:
UNINSURED MOTORISTS
The Coverage section is replaced to read:
COVERAGE
We will pay bodily injury (meaning bodily injury, sickness, disease, or death)
damages that are due you by law from the owner or driver of an uninsured motor
vehicle.
Damages must result from an accident arising out of the:
1. ownership;
2. maintenance; or
3. use;
of the uninsured motor vehicle. We will also pay these damages to relatives.
__________

1
The Moyas inform the court that Dittmer carried only minimal liability coverage of $15,000 per person and
$30,000 per accident. The Moyas, however, suffered damages above Dittmer's coverage. Thus, under the
language of the policy, Dittmer was classified as an uninsured motorist.
. . . .
LIMITS OF PAYMENT
The Limits of Payment section is replaced to read:
AMOUNT PAYABLE FOR UNINSURED MOTORISTS LOSSES The
company's obligation to pay uninsured motorists losses is limited to the amounts per
person and per occurrence stated in the policy Declarations. The following conditions
apply to these limits:
1. Bodily injury limits shown for any one person are for all legal damages, including
care or loss of services, claimed to anyone for bodily injury to one person as a result of
one occurrence. Subject to this limit for any one person, the total limit of our liability
shown for each occurrence is for all damages, including care or loss of services, due to
bodily injury to two or more persons in any one occurrence.
(Emphasis in original.)
Nationwide paid the Moyas $50,000 in UM benefits (representing a stacking of the
$25,000 each person limit), $10,000 for the seat belt death benefit, and $10,000 for the
death and dismemberment benefit.
The Moyas brought this action,
2
alleging Nationwide breached its contract and seeking a
declaration as to the appropriate interpretation of the policy. The Moyas alleged that under
Nationwide's UM provision, they were entitled to the each occurrence limit, not the each
person limit. The Moyas also alleged that the seat belt death benefit and the death and
dismemberment benefit were subject to stacking.
Upon the parties' motion, the district court granted each party partial summary judgment.
The district court found that, as a matter of law, Nationwide's policy [was] ambiguous, and,
therefore, the [Moyas] must prevail as to the applicable UM limit. The district court ruled
that the death and dismemberment benefit was not subject to stacking and granted judgment
to Nationwide on this issue.
3

DISCUSSION
This court review[s] orders granting summary judgment de novo. Tore, Ltd. v. Church,
105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989). A party is entitled to summary judgment if
there are no genuine issues of material fact and the moving party is entitled to judgment
as a matter of law.
__________

2
The Moyas also sued Dittmer and his insurance carrier, seeking damages for Mrs. Moya's wrongful death,
medical expenses, funeral expenses and loss of income. Neither Dittmer nor his insurance carrier are parties to
this appeal.

3
The district court also ruled that the seat belt death benefit was subject to stacking, but the parties do not
contest this ruling on appeal.
no genuine issues of material fact and the moving party is entitled to judgment as a matter of
law. American Fed. Sav. v. County of Washoe, 106 Nev. 869, 871, 802 P.2d 1270, 1272
(1990). Where the parties do not dispute any material issues of fact, as here, the construction
of an insurance policy raises solely a question of law. Hauser v. State Farm Mut. Ins. Co., 252
Cal.Rptr. 569, 570 (Ct.App. 1988).
I. The Moyas are entitled to the each person UM limit.
[Headnote 1]
Nationwide argues that in order for the higher each occurrence limit to be applicable, the
Moyas' wrongful death claims must constitute bodily injuries under the policy, and
secondly, those bodily injuries must have occurred in the automobile accident. Assuming,
arguendo, that these wrongful death claims constitute bodily injuries, Nationwide contends
that they cannot be construed as occurring in the fatal automobile accidentespecially
where the compensable elements of these claims, such as grief, sorrow and loss of
consortium, occurred after Mrs. Moya's death.
The Moyas argue that their wrongful death claims constitute bodily injuries because that
term is defined to include sickness. Bodily injury, they contend, is generally defined only
to include an injury caused by external violence; thus, added significance must be attributed
to the inclusion of the word sickness. The Moyas define sick as meaning: (1) sickened by
strong emotion (with fear; worried); and (2) depressed and longing for something (for one's
home).
4
They reason that because grief and sorrow are compensable elements of a
wrongful death claim,
5
and because such elements are within the definition of sickness,
they have suffered bodily injuries. We disagree.
__________

4
We note that sickness, the operative word, is defined as: ill health; a disordered, weakened, or unsound
condition; a specific disease; and nausea, queasiness. Webster's Ninth Collegiate Dictionary, 1094 (1990).

5
NRS 41.085, Nevada's wrongful death statute, provides in part:
2. When the death of any person, whether or not a minor, is caused by the wrongful act or neglect of
another, the heirs of the decedent and the personal representatives of the decedent may each maintain an
action for damages against the person who caused the death . . . .
. . . .
4. The heirs may prove their respective damages in the action brought pursuant to subsection 2 and
the court or jury may award each person pecuniary damages for his grief or sorrow, loss of probable
support, companionship, society, comfort and consortium and damages for pain, suffering or
disfigurement of the decedent.
(Emphasis added.)
The word sickness, as referred to in the definition of bodily injury under Nationwide's
policy, means the sickness or disease contracted by the insured injured in the accident, Skroh
v. Travelers Ins. Co., 227 So.2d 328, 330 (Fla.Dist.Ct.App. 1969), not the grief and sorrow
of a survivor. Thus, courts generally do not construe sickness as including the survivor's
wrongful death claims. See, e.g., Valdez v. Interinsurance Exch. of Auto. Club of So. Cal., 54
Cal.Rptr. 906, 908-10 (Ct.App. 1966) (in wrongful death case, survivor's claim did not fall
within policy definition of bodily injury even though such definition included the term
sickness or disease). Because we are unable to construe the Moyas' wrongful death claims
as falling within the term sickness, they did not suffer a bodily injury. Therefore, the
Moyas cannot prevail on this argument.
[Headnote 2]
The Moyas next argue that Nationwide's policy does not require that their claims must fall
within Mrs. Moya's limits. They assert that to construe their claims as falling within the each
person limit ignores the independent nature of their wrongful death claims.
The majority of cases apply the reasoning articulated by Nationwide, namely, that damages
for loss of consortium or wrongful deathresulting from bodily injury to one personare
subject to the each person limit. See 1 A. Widiss, Uninsured and Underinsured Motorists
Insurance 12.4 (1985); see also, Izzo v. Colonial Penn Ins. Co., 524 A.2d 641, 645 (Conn.
1987). For example, in Hauser, 252 Cal.Rptr. at 570, the wife of an insured injured in a car
accident sued for loss of consortium, claiming that she was entitled to the limit for each
accident, instead of each person. The court disagreed, concluding that she could recover
the each accident limit only if her injury does not result from the bodily injury suffered by
her husband. Id. at 571. The court stated:
The policy's each accident provision amplifies State Farm's intent only to
compensate multiple victims injured in an accident under the higher limits. That
provision states: Under Each Accident' is the total amount of coverage for all
damages due to bodily injury to two or more persons in the same accident. This
definition of each accident implicitly distinguishes between a person harmed in the
accident, and one harmed only as a result of injuries sustained by one in the accident.
Since the wife was not in the accident, but only harmed as a result of injuries sustained
in the accident by her husband, the policy limits her recovery for damages to that
applicable to each person.
Id. at 571, n.1 (emphasis in original); accord United Services Auto. Ass'n v. Warner, 135
Cal.Rptr. 34, 37 (Ct.App. 1976); Thompson v. Grange Ins. Ass'n, 660 P.2d 307, 317
(Wash.Ct.App. 1983). This reasoning comports with common sense because the deprived
spouse would not have a claim but for the injuries sustained by his spouse. Warner, 135
Cal.Rptr. at 37. Furthermore, this rule complies with the traditional interpretation of per
person and per occurrence:
[T]he term one person repeatedly has been construed to refer to the person injured
directly and the words each occurrence to include the injuries of several persons,
regardless of how many persons may suffer loss. The limitation applies to all damages
sustained by all persons as a result of bodily injury to one person. This construction
does not render the per occurrence limit a nullity because that provision applies to
situations where more than one person suffers bodily injury in a single
occurrence.
Izzo, 524 A.2d at 644 (citations omitted).
6

This rule that claimants must be injured in, and not as a result of, the accident to recover
the per occurrence limit has been applied to wrongful death claims with equal force. In
Valdez, the heirs argued that they each enjoyed their own cause of action under California's
statutory wrongful death action and that consequently they were entitled to recover under the
higher each occurrence limit. Valdez, 54 Cal.Rptr. at 910. The court rejected the argument,
concluding that the each person limit applies where only one person loses his or her life,
even though several persons may have sustained damages as a result of the one death. Id. at
910-11; see also Green v. Mid-America Preferred Ins. Co., 751 P.2d 581, 584 (Ariz.Ct.App.
1987); Campbell v. Farmers Ins. Co. of Arizona, 745 P.2d 160, 165 (Ariz.Ct.App. 1987);
Mackoul v. Fidelity & Cas. Co., 402 So.2d 1259, 1260 (Fla.Dist.Ct.App. 1981).
7
[Headnote
3]
[Headnote 3]
__________

6
The Moyas attempt to discredit some of the cases following the majority view on the ground that they
involve automobile liability insurance instead of UM coverage. We reject this argument, for there is no
reasoned basis for differentiating between liability and uninsured provisions when considering the per person
and per occurrence issue. Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 579 (5th Cir. 1986). In fact,
the Moyas have relied on a liability insurance case to support their position.

7
Several courts have held the per occurrence limit is applicable for loss of consortium or wrongful death
claims. See Abellon v. Hartford Ins. Co., 212 Cal.Rptr. 852 (Ct.App. 1985); Allstate Ins. Co. v. Handegard, 688
P.2d 1387 (Or.Ct.App. 1984); Giardino v. Fierke, 513 N.E.2d 1168 (Ill.Ct.App. 1987). However, the language
in these policies is materially different from Nationwide's policy.
In Abellon, the policy did not include loss of services in the each
[Headnote 3]
We agree with the majority view, that is, where one person is injured in the accident, the
each person limit applies, regardless of the number of persons damaged as a result of the
accident. We conclude that the each person limit applies to the Moyas' claims. The Moyas
did not suffer bodily injuries in the accident; their claims arose as a result of the injuries Mrs.
Moya suffered in the accident (which eventually caused her death). The policy limited
Nationwide's liability to the each person limit if only one person sustained bodily injuries in
the accident but raised Nationwide's limitation to the each occurrence when two or more
persons suffered bodily injuries in the accident. Because only Mrs. Moya suffered bodily
injuries in the accident, the district court erred in concluding that the each occurrence limit
was applicable. We therefore reverse the grant of summary judgment in favor of the Moyas
on this issue.
II. The death and dismemberment benefit was not subject to stacking.
[Headnote 4]
The Moyas argue that they are entitled to stack the death and dismemberment benefit
because there is no anti-stacking language contained within this provision.
8
They rely on
State Farm Mut. Auto. Ins. Co. v. Knauss, 105 Nev. 407, 775 P.2d 707 (1989), wherein this
court held that medical payment coverage provided in three policies stacked because the
anti-stacking limitations were neither clear nor prominently displayed. They also rely on NRS
687B.145(1) which applies to provisions in policies of casualty insurance
9
and provides that
any limiting provision of benefits pursuant to this section must be in clear language and be
prominently displayed in the policy, binder or endorsement.
__________
person definition of all damages. Thus, the policy did not define one person's injury as including injuries
and damages to others resulting from this bodily injury. Here, however, Nationwide's policy limited one
person's injuries as including loss of services, claimed to anyone for bodily injury to one person as a result of
one occurrence.
In both Handegard and Giardino, the policies defined bodily injury such that it included claims for loss of
consortium. Handegard, 688 P.2d at 1390; Giardino, 513 N.E.2d at 1172-73. As discussed earlier, Nationwide's
policy does not define bodily injury as including the Moyas' wrongful death claims.

8
We surmise that the Moyas are initially premising this argument on the fact that Nationwide insured both the
vehicle involved in the fatal accident and a pickup truck.

9
They reason that this is a casualty insurance policy, as defined in NRS 681A.020(1)(b), which provides that
casualty insurance includes liability insurance . . . provisions of medical, hospital, surgical, disability benefits to
injured persons and funeral and death benefits to dependents.
[Headnote 5]
The purpose of stacking is to ensure that the insured receives the benefits for which he has
paid. Allstate Ins. Co. v. Maglish, 94 Nev. 699, 702, 586 P.2d 313, 314-15 (1978). Nevada
case law permits two types of stacking: the aggregation of coverage limits of each car insured
under a single automobile policy or the aggregation of coverage under more than one auto
policy. For example, in Cooke v. Safeco Ins. Co., 94 Nev. 745, 747, 587 P.2d 1324, 1325
(1978), this court allowed the insured to stack no-fault benefits under a single policy which
covered two vehicles because the insured paid two premiums for two separate no-fault
coverage. Likewise, where the insured had two separate policies which were issued by
different insurers but which covered the same vehicle, no-fault benefits were considered
stackable. Travelers Ins. Co. v. Lopez, 93 Nev. 463, 466-67, 567 P.2d 471, 473 (1977).
In accord, an anti-stacking clause is only necessary pursuant to NRS 687B.145(1) if the
insured has coverage available to him under more than one policy or provision of coverage.
10
The Moyas paid a $2.40 premium for a $10,000 death and dismemberment benefit, and that
coverage was not tied to any particular vehicle. The premiums are based on a flat rate which
is adjusted depending on the coverage chosen. This coverage constituted one contractual
agreement, whereby Nationwide agreed to pay a $10,000 benefit in exchange for a $2.40
premium. We therefore conclude that this benefit is not subject to stacking.
CONCLUSION
The district court erred in ruling, as a matter of law, that the each occurrence UM
coverage limit applied to the Moyas' wrongful death claims. Therefore, we reverse the entry
of summary judgment in favor of the Moyas on this issue. The district court properly
concluded that the death and dismemberment benefit was not subject to stacking, and we
affirm the entry of summary judgment in favor of Nationwide on this issue.
__________

10
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 the 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.
(Emphasis added.)
court properly concluded that the death and dismemberment benefit was not subject to
stacking, and we affirm the entry of summary judgment in favor of Nationwide on this issue.
____________
108 Nev. 587, 587 (1992) Eberle v. State ex rel. Redfield Trust
BINDEE EBERLE, JOSEPH J. EBERLE, ZENA REELS ERVIN, CAROLYN S. SCOTT,
WARREN NELSON, LUTHER MACK, DAVID W. CLARK, CHET PIAZZO,
WARREN FOX, LORETTA JANE YOUNG, LOUISE A. BULLIS, DARYL E.
DRAKE, RONALD G. PALMER, ANNE M. MacFARLANE, CLIFF YOUNG,
DARLENE G. PIAZZO, GARY G. BULLIS, JACK QUADE, NORMAN PRUPAS,
NORMA K. NELSON, GENIE H. MACK, HOLLY WALTON-BUCHANAN, IAN
MacFARLANE, CAROL O'BRIEN, BERNARD W. O'BRIEN, CAROL C. MOORE,
RON S. JEFFERY, ANDREA PELTER, NEWTON L. THOMPSON, CANDACE E.
FOX, LYMON H. METCALF, GAY K. METCALF, SHEILA F. SHAY, NANCY E.
WALTHER, WILLIAM BEN SCOTT, VIRGINIA C. DALES, DORIS LYNN
EIKELBERGER, ALICE WALTHER, NANCY FLANIGAN, DIANNE TILLER,
LARRY TILLER, JULIUS A. HOWELLS, JOHN FLANIGAN, LYN KISTLER,
JAMES L. LEWIS, SUE S. KEY, KAREN A. UNDERWOOD, RICHARD A.
UNDERWOOD, THEODORE H. MOORE, and STEVEN T. WALTHER, as the
Committee of Incorporators of Sierra Meadows, Appellants, v. THE STATE OF
NEVADA upon the Relation of the NELL J. REDFIELD TRUST; GERALD C.
SMITH, BETTY ALYCE JONES, HELEN JEAN JONES, IRIS BREWERTON, and
KENNETH G. WALKER, Trustees, JULIUS BALLARDINI, JULIETTE GASPARI,
and ANGELA PERSIGEHL, Respondents.
No. 21492
August 10, 1992 836 P.2d 67
Appeal from post-judgment order granting a motion for expert witness fees. Second
Judicial District Court, Washoe County; Deborah A. Agosti, District Judge.
Motion for expert witness fees and costs was granted by the district court after appeal was
dismissed as moot following amendment to statute challenged on appeal. The supreme court
held that: (1) statutory requirement that prevailing party file memorandum of cause within
five days is not jurisdictional requirement, and {2) neither party "prevailed" since
amendment to statutory scheme precluded appellate review of district court's legal
conclusions.
memorandum of cause within five days is not jurisdictional requirement, and (2) neither party
prevailed since amendment to statutory scheme precluded appellate review of district
court's legal conclusions.
Reversed.
Walther, Key, Maupin, Oats, Cox, Lee & Klaich, Reno; Stephen C. Mollath, Reno, for
Appellants.
Attorney and Ed Dannan, Chief Deputy District Attorney, Washoe County; Patricia Lynch,
Reno City Attorney and Madelyn Shipman, Chief Deputy City Attorney, Reno; Guild &
Hagen and Gary M. Fuller, Reno; Allison, MacKenzie, Hartman, Soumbeniotis & Russell,
Carson City, for Respondents.
1. Costs.
Memorandum of costs must be filed by prevailing party within five days after entry of judgment or within such further time as
court or judge may grant. NRS 18.110, subd. 1.
District court's exercise of discretion to reach merits of motion for extraordinary expert witness fees and costs could not be
disturbed on appeal. NRS 18.110, subd. 1.
3. Costs.
Statutory time limit for filing memorandum of costs by prevailing party is not jurisdictional requirement. NRS 18.110, subd. 1.
4. Costs.
Party could not be considered prevailing party, entitled to award of witness fees and costs, in action that has not proceeded to
judgment. NRS 18.110, subd. 1.
5. Costs.
Landowners who raised constitutional challenge to statutory scheme for incorporating cities were not prevailing parties entitled
to award of expert witness fees and costs since district court never ruled on statutory challenges to new city and legislature's
amendment to statute deprived landowners of opportunity to test district court's legal conclusions on appeal. NRS 18.110, subd. 1.
OPINION
Per Curiam:
This is an appeal from an order of the district court granting in part a motion for expert
witness fees and costs, following the entry of a final judgment in the action below.
Appellants attempted to incorporate a new city in the southwest portion of the Truckee
Meadows in Washoe County pursuant to Chapter 266 of the Nevada Revised Statutes.
portion of the Truckee Meadows in Washoe County pursuant to Chapter 266 of the Nevada
Revised Statutes. Respondents, owners of large pieces of property within the proposed new
city, opposed the incorporation and sought an injunction against appellants. A hearing was
held before District Judge James Guinan.
Shortly after the hearing, Judge Guinan called counsel into chambers and stated that he
considered NRS Chapter 266 to be unconstitutional. This determination made further action
by respondents unnecessary because respondents sought only to prevent appellants from
incorporating the proposed new city. Accordingly, on October 17, 1988, pursuant to a
stipulation by counsel, Judge Guinan entered an order granting a permanent injunction
prohibiting the proposed incorporation. The order concluded that NRS Chapter 266 was
unconstitutional because it delegated legislative authority to private individuals.
Appellants then challenged Judge Guinan's decision in this court. While the case was on
appeal, the Nevada State Legislature adopted Assembly Bill 161 which substantially amended
NRS Chapter 266. 1989 Nev. Stats. ch. 102 at 231. Upon becoming aware of A.B. 161, this
court ordered the parties to discuss the issue of mootness during oral argument. After hearing
oral argument, this court dismissed the appeal as moot based on the amendment of NRS
Chapter 266.
On January 9, 1990, respondents filed in the district court a motion for judgment. On
January 29, 1990, the district court entered a judgment permanently enjoining appellants from
attempting to incorporate under NRS Chapter 266 as it existed prior to amendment,
dismissing the action below and awarding costs. On February 5, 1990, respondents filed an
application for extraordinary expert witness fees and costs. Appellants then filed an
opposition to the respondents' application and a motion to retax costs. On June 25, 1990,
Judge Agosti entered an order granting, in part, the extraordinary expert witness fees and
costs. This appeal challenges the award of extraordinary expert witness fees and costs.
Appellants contend that respondents' request for extraordinary expert witness fees and
costs was not timely under NRS 18.110(1). Specifically, appellants contend that judgment
was entered on October 17, 1988, when Judge Guinan entered an Order Granting Permanent
Injunction. Respondents contend that final judgment was entered on January 29, 1990, when
Judge Brent Adams granted respondents' motion for judgment, and finally dismissed the
entire action. Respondents filed for extraordinary expert witness fees and costs five days after
Judge Adams' judgment was entered. We find it unnecessary to resolve this question in this
appeal.
[Headnotes 1-3]
NRS 18.110(1) provides that a memorandum of costs must be filed by the prevailing party
within five days after the entry of judgment or within such further time as the court or judge
may grant.
1
Although no further time for filing a motion for costs was specifically granted
by the district court, by granting the motion for expert witness fees and costs, the district
court either considered the motion to be timely, or impliedly granted respondents additional
time within which to move for expert witness fees and costs. In either case, the district court's
exercise of discretion to reach the merits of the motion will not be disturbed on appeal.
Contrary to appellants' arguments, the statutory period of NRS 18.110(1) is, by its own terms,
not a jurisdictional requirement.
We turn to a discussion of the merits of respondents' motion for costs. Pursuant to NRS
18.110(1), costs, including witness fees, can be recovered by [t]he party in whose favor
judgment is rendered. Appellants assert that because this court found the issues on appeal to
be moot, there is no party in whose favor judgment was rendered. We agree.
[Headnotes 4, 5]
We have held that a party cannot be considered a prevailing party in an action that has not
proceeded to judgment. See Works v. Kuhn, 103 Nev. 65, 68, 732 P.2d 1373, 1376 (1987);
Sun Realty v. District Court, 91 Nev. 774, 755 n.2, 542 P.2d 1072, 1073 (1975). In this case,
respondents sought to prevent the incorporation of the specific proposed new city primarily
on statutory grounds, and also raised a constitutional challenge to the entire statutory scheme
for incorporating cities in general. The district court never ruled on the statutory challenges to
the new city, but ruled only on the legal issue of the constitutionality of the statutory scheme.
Appellants were then deprived by an act of the legislature of their opportunity to test the
district court's purely legal conclusions in this court. In our opinion, under these peculiar
circumstances, neither party prevailed in this action; the action was terminated by the
legislature. Thus, the district court erred in awarding expert witness fees and costs to
respondents.
__________

1
In full, NRS 18.110(1) provides:
1. The party in whose favor judgment is rendered, and who claims his costs, must file with the clerk,
and serve a copy upon the adverse party, within 5 days after the entry of judgment, or such further time as
the court or judge may grant, a memorandum of the items of his costs in the action or proceeding, which
memorandum must be verified by the oath of the party, or his attorney or agent, or by the clerk of his
attorney, stating that to the best of his knowledge and belief the items are correct, and that the costs have
been necessarily incurred in the action or proceeding.
Accordingly, we reverse the order of the district court granting expert witness fees and costs
to respondents.
Mowbray, C. J., Springer, Rose and Steffen, JJ., and Stone, D. J.,
2
concur.
____________
108 Nev. 591, 591 (1992) Davidson v. Velsicol Chemical
ERNEST DAVIDSON, DARLENE DAVIDSON, Individually and as Guardians ad Litem of
SHERENE DAVIDSON and ERNEST DAVIDSON, JR., Their Minor Children,
Appellants, v. VELSICOL CHEMICAL CORPORATION, an Illinois Corporation,
Respondent.
No. 22464
August 12, 1992 834 P.2d 931
Interlocutory appeal from an order of the district court granting respondent's motion in
limine in a products liability action. Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Homeowners brought action against manufacturer of termiticide to recover for injuries
allegedly caused by the product. The district court granted manufacturer's motion in limine,
ruling that action was pre-empted by federal law, and homeowners appealed. The supreme
court held that: (1) Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not
expressly pre-empt state tort actions against pesticide manufacturers based on failure to
adequately warn or label, but (2) FIFRA implicitly pre-empts such claims.
Affirmed.
Johns & Johns, Las Vegas, for Appellants.
Jolley, Urga, Wirth & Woodbury, Las Vegas; and Spriggs & Hollingsworth, Washington,
D.C., for Respondent.
Crockett & Myers, Las Vegas; Baron & Budd and Charles S. Siegel, Dallas, Texas; and
Arthur Bryant and Priscilla Budeiri, Washington, D.C., for Amicus Curiae Trial Lawyers for
Public Justice.
__________

2
The Honorable Bob Miller, Governor, designated The Honorable James A. Stone, District Judge of the
Second Judicial District, to sit in this case in the place of The Honorable Cliff Young, Justice, who voluntarily
disqualified himself. Nev. Const., art. 6, 4.
Cory, MacDonald & Van, Las Vegas, for National Pest Control Association.
1. States.
Where Congress has expressly provided by pre-emption, resort to implied pre-emption doctrines is unnecessary; instead, court
need only determine scope of pre-emption. U.S.C.A.Const. Art. VI, cl. 2.
2. States.
In determining whether state law is pre-empted, courts must presume that historic police powers of states are not to be superseded
by federal statute unless that is clear and manifest purpose of Congress. U.S.C.A.Const. Art. VI, cl. 2.
3. States.
Burden of establishing pre-emption is on party seeking to give statute such effect. U.S.C.A.Const. Art. VI, cl. 2.
4. Agriculture; States.
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not expressly pre-empt state tort actions against pesticide
manufacturers based on failure to adequately warn or label. Federal Insecticide, Fungicide, and Rodenticide Act, 2 et seq., as
amended, 7 U.S.C.A. 136 et seq.; U.S.C.A.Const. Art. VI, cl. 2.
5. States.
With respect to pre-emption of state law, intent of Congress may be implied if Congress occupies entire field or if there is actual
conflict between state and federal law. U.S.C.A.Const. Art. VI, cl. 2.
6. States.
For purposes of implied pre-emption of state law, Congress occupies entire field if federal regulation is so pervasive that Congress
left no room for states to supplement it, if federal act involves field in which federal interest completely dominates field, or if goals
sought or obligations imposed by federal law reveal purpose to preclude state authority. U.S.C.A.Const. Art. VI, cl. 2.
7. Agriculture; States.
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) implicitly pre-empts state tort claims based on failure to adequately
label pesticide. U.S.C.A.Const. Art. VI, cl. 2; Federal Insecticide, Fungicide, and Rodenticide Act, 2(q)(1)(E), (bb), 3(c)(5),
(c)(5)(C), 9(c)(1), 12(a)(1)(A), (a)(2)(M), 24, 24(a), (b), as amended, 7 U.S.C.A. 136(q)(1)(E), (bb), 136a(c)(5), (c)(5)(C),
136g(c)(1), 136j(a)(1)(A), (a)(2)(M), 136v, 136v(a), (b); 24 (a), (b), as amended, 7 U.S.C. (1982 Ed.) 136v(a), (b).
OPINION
Per Curiam:
The main issue presented by this appeal is whether the Federal Insecticide, Fungicide, and
Rodenticide Act, 7 U.S.C. 136 et seq. (FIFRA), pre-empts state common law actions
against the manufacturers of pesticides based on failure to adequately label the pesticides. For
the reasons set forth below, we conclude that FIFRA impliedly pre-empts such tort claims.
FACTS
In March of 1986, appellants (the Davidsons) filed suit against respondent Velsicol
Chemical Corporation (Velsicol). The Davidsons alleged that in 1979, Bill Beckmeyer's
Pest-A-Way (Pestaway) applied Gold Crest Termide, a termiticide produced by Velsicol, to
their partially constructed home. Pestaway sprayed, by a method called broadcast spraying,
the ground in an area intended for the home's crawl space.
1
By broadcast spraying, toxic
chemicals allegedly migrated into the Davidsons' home.
The Davidsons claimed that Velsicol failed to give adequate warning and appropriate
instructions concerning the application of its product to the foundation of newly constructed
residences, namely, that broadcast spraying was inappropriate. They further claimed that as a
result, they were exposed to harmful quantities of chemicals contained in Gold Crest Termide
and suffered personal injuries. The Davidsons sought compensatory and punitive damages
based on failure to warn, negligence and strict liability.
In 1980, after Pestaway had sprayed the Davidsons' home, Velsicol changed its label to
provide a strict prohibition against broadcast spraying areas designated for crawl spaces. The
Davidsons moved in limine for a ruling that the post-accident label change on Velsicol's Gold
Crest Termide be admissible at trial. Velsicol countered in limine, seeking a ruling that
FIFRA pre-empted state tort claims based on a failure to adequately label or warn and that the
evidence of subsequent remedial measures was inadmissible.
The district court ruled that FIFRA impliedly pre-empts state common law tort suits
against manufacturers of Environmental Protection Agency (EPA)-registered pesticides to
the extent that such actions are based on claims of inadequate labeling. The district court
also ruled that the evidence of the subsequent remedial measures was inadmissible.
DISCUSSION
[Headnote 1]
Under the Supremacy Clause, U.S. Const., Art. VI, cl. 2, state laws which are contrary to,
or which interfere with, the laws of Congress are invalid. Wisconsin Public Intervenor v.
Mortier, 111 S.Ct. 2476, 2481 (1991) (citing Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23
(1824)). If Congress evidences an intent to occupy a given field, any state law falling
within that field is pre-empted."
__________

1
The Davidsons contrast broadcast spraying to rodding and trenching. Broadcast is defined as [c]ast
abroad or all over an area, as seed sown thus rather than in drills or rows. The Living Webster Encyclopedic
Dictionary 124 (1975).
occupy a given field, any state law falling within that field is pre-empted. Silkwood v.
Kerr-McGee Corp., 464 U.S. 238, 248 (1984). This intent may be either expressed in the
terms of the statute or implied. Mortier, 111 S.Ct. at 2481. Where Congress has expressly
provided for pre-emption, resort to the implied pre-emption doctrines is unnecessary; instead,
the court need only determine the scope of the pre-emption. Cipollone v. Liggett Group, Inc.,
60 U.S.L.W. 4703, 4707 (U.S. June 24, 1992).
[Headnotes 2, 3]
In determining whether state law is pre-empted, courts must presume that the historic
police powers of the states are not to be superseded by the Federal Act unless that is the clear
and manifest purpose of Congress. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230
(1947). Tort remedies which compensate for personal injuries are traditionally considered
properly within the scope of state superintendence. Florida Lime & Avocado Growers, Inc. v.
Paul, 373 U.S. 132, 144 (1963). The burden of establishing pre-emption is on the party
seeking to give the statute such effect. Silkwood, 464 U.S. at 255.
The Davidsons argue that FIFRA does not pre-empt its inadequate labeling clams against
Velsicol. They cite Ferebee v. Chevron Chemical Co., 736 F.2d 1529, 1539 (D.C.Cir. 1984),
cert. denied, 469 U.S. 1062 (1985), wherein the United States Court of Appeals for the
District of Columbia held that FIFRA does not pre-empt such tort claims.
Velsicol, in turn, argues that the district court properly found that FIFRA pre-empts the
Davidsons' claims. Velsicol relies on Arkansas-Platte & Gulf v. Van Waters & Rogers, 959
F.2d 158 (10th Cir. 1992), where the United States Court of Appeals for the Tenth Circuit
held that state damage actions based on labeling and failure to warn are impliedly pre-empted
by FIFRA.
2
There is a split of authority on this issue.
__________

2
Velsicol also relies on Papas v. Upjohn Co., 926 F.2d 1019 (11th Circ. 1991). At the time of oral
arguments in this case, a petition for writ of certiorari had been filed in Papas. See 59 U.S.L.W. 3825 (U.S. May
29, 1991) (No. 90-1837). However, since oral arguments, the United States Supreme Court issued a summary
order granting certiorari, vacating the judgment and remand[ing] to the United States Court of Appeals for the
Eleventh Circuit for further consideration in light of Cipollone v. Liggett Group, Inc., [60 U.S.L.W. 4703 (U.S.
June 24, 1992)]. See Papas v. Zoecon Corp., 60 U.S.L.W. 3878 (U.S. June 29, 1992).
Cipollone involved whether the Public Health Cigarette Smoking Act of 1969 or its 1965 predecessor, the
Federal Cigarette Labeling and Advertising Act, pre-empted petitioner's common law claims against several
cigarette manufacturers. Cipollone, 60 U.S.L.W. at 4704. Cipollone announced that if there is a determination of
express pre-emption, it is not necessary to infer Congressional intent (through the application of the implied
pre-emption doctrines). Cipollone, 60 U.S.L.W. at 4707.
The Papas court apparently contravened the pre-emption analysis set forth
There is a split of authority on this issue. Ferebee and Arkansas-Platte represent the two
views, and we therefore confine our discussion to these cases.
3

I. Congress did not expressly pre-empt state tort claims.
Velsicol argues that FIFRA expressly pre-empts state tort claims which are based on
failure to adequately label. FIFRA provides:
(a) In general
A State may regulate the sale or use of any federally registered pesticide or device in
the State, but only if and to the extent the regulation does not permit any sale or use
prohibited by [FIFRA].
(b) Uniformity
Such State shall not impose or continue in effect any requirements for labeling or
packaging in addition to or different from those required under [FIFRA].
7 U.S.C. 136v(a)-(b). Based on this language, several courts have held that FIFRA
expressly pre-empts state action regarding pesticide labeling. See, e.g., Fitzgerald v.
Mallinckrodt, Inc., 681 F.Supp. 404, 406 (E.D.Mich. 1987); and Kennan v. Dow Chemical
Co., 717 F.Supp. 799, 807 (M.D.Fla. 1989) (pre-emption based on the express language and
legislative history).
__________
in Cipollone by failing to determine whether FIFRA expressly pre-empts state tort claims based on inadequate
labeling. See Papas, 926 F.2d at 1024 ([W]e admit to a little uncertainty and pass over the question of express
preemption.) Our opinion is consonant with Cipollone in that we address implied pre-emption only after
concluding that FIFRA does not expressly pre-empt such claims (as discussed below).
We do not find Cipollone instructive on whether FIFRA pre-empts the Davidsons' claims; thus, we decline to
draw anything further from the Court's summary reconsideration order. Perhaps Justice Blackmun articulated it
best in Cipollone when he stated: I can only speculate as to the difficulty lower courts will encounter in
attempting to implement the Court's decision. Cipollone, 60 U.S.L.W. at 4714 (Blackmun, J., concurring in part
and dissenting in part).

3
Federal district courts finding pre-emption include Hurt v. Dow Chemical Co., 759 F.Supp. 556 (E.D.Mo.
1990); Kennan v. Dow Chemical Co., 717 F.Supp. 799 (M.D.Fla. 1989); Fisher v. Chevron Chemical Co., 716
F.Supp. 1283 (W.D.Mo. 1989); Herr v. Carolina Log Bldgs., Inc., 771 F.Supp. 958 (S.D.Ind. 1989); Fitzgerald
v. Mallinckrodt, Inc., 681 F.Supp. 404 (E.D.Mich. 1987).
Cases in which district courts found no pre-emption include Riden v. ICI Americas, Inc., 763 F.Supp. 1500
(W.D.Mo. 1991); Evenson v. Osmose Wood Preserving Inc., 760 F.Supp. 1345 (S.D.Ind. 1990); Stewart v.
Ortho Consumer Products, No. 87-4252, 1991 WL 36129 (E.D.La. 1990); Cox v. Velsicol Chem. Corp., 704
F.Supp. 85 (E.D.Pa. 1989); Roberts v. Dow Chem. Co., 702 F.Supp. 195 (N.D.Ill. 1988).
However, the majority of courts held that FIFRA does not expressly pre-empt state action
of pesticide labeling. See, e.g., Ferebee, 736 F.2d at 1542; Montana Pole & Treating Plant v.
I.F. Laucks, 775 F.Supp. 1339, 1343 (D.Mont. 1991); Riden v. ICI Americas, Inc. 763
F.Supp. 1500, 1505 (W.D.Mo. 1991); Hurt v. Dow Chemical Co., 759 F.Supp. 556, 558-59
(E.D.Mo. 1990); Fisher v. Chevron Chemical Co., 716 F.Supp. 1283, 1286-87 (W.D.Mo.
1989).
[Headnote 4]
We conclude that the majority's position is more persuasive. Although FIFRA provides
that states shall not impose or continue in effect labeling requirements which differ from
FIFRA, section 136v(b) makes no reference to the pre-emption of state common law
remedies. Because Congress has expressly pre-empted common law in other pre-emption
clauses, Congress' silence cannot be ignoredit is inimical to a finding of express
pre-emption. Riden, 763 F.Supp. at 1505-06. Indeed, as stated by the New Jersey Supreme
Court, courts should not strain to find pre-emption of state law:
[O]ur federal system, with its high regard for the several States' powers of governance
requires that judges not pre-empt state law lightly. . . . [W]hen the Supreme Court
considers whether the Congress has preempted state law, [a]ny indulgence in
construction should be in favor of the States, because Congress can speak with drastic
clarity whenever it chooses to assure full federal authority.
Dewey v. R.J. Reynolds Tobacco Co., 577 A.2d 1239, 1251 (N.J. 1990) (quoting in part
Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 780 (1947)).
4
Therefore, we hold that FIFRA does not expressly pre-empt state tort actions against pesticide
manufacturers based on failure to adequately warn or label.
II. Congress implicitly intended to pre-empt state tort claims.
[Headnote 5]
The next question is whether Congress implicitly intended to pre-empt state tort claims.
Mortier, 111 S.Ct. at 2481. Congress' intent may be implied if Congress occupies an entire
field or if there is an actual conflict between state and federal law.
__________

4
In the same fashion as Congress could have included a reference to pre-emption of state common law,
Congress could have also included a savings clause expressly sheltering state common law as it did in the
Occupational Safety and Health Act of 1970, 29 U.S.C. 653(b)(4) (1982). Fisher, 716 F.Supp. at 1287, n.1.
Thus, the lack of reference to state common law is important only because of the presumption against
pre-emption. Id.
there is an actual conflict between state and federal law. Arkansas-Platte, 959 F.2d at 161.
A. Congress occupies the entire field of pesticide labeling.
[Headnote 6]
Congress occupies an entire field if: (1) the federal regulation is so pervasive such that
Congress left no room for the states to supplement it; (2) the federal act involves a field in
which the federal interest completely dominates the field; or (3) if the goals sought or the
obligations imposed by the federal law reveal a purpose to preclude state authority. Mortier,
111 S.Ct. at 2481-82.
[Headnote 7]
The Ferebee court recognized that FIFRA does not allow states to directly impose
additional labeling requirements. Ferebee, 736 F.2d at 1541. The court, however, reasoned
that state action which has the effect of changing federal labeling requirements is permissible
because it falls within the states' power to regulate the sale or use of pesticides authorized
in 136v(a). Id.
In contrast, the Arkansas-Platte court held that FIFRA impliedly pre-empted state tort
actions, reasoning that the federal government occupies the entire field of regulating labels.
Arkansas-Platte, 959 F.2d at 164. Our review of the legislative history and the federal
regulations supports a ruling that Congress occupies the entire field of pesticide labeling
regulation.
In 1947, Congress enacted FIFRA to replace the Insecticide Act of 1910. Mortier, 111
S.Ct. at 2479 (citing 61 Stat. 163). Originally, FIFRA was primarily a licensing and labeling
statute. Id. (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991 (1984)). Increased
environmental and safety concerns prompted Congress to comprehensively amend FIFRA in
1972. Id. (citing 86 Stat. 973). These amendments enhanced FIFRA's registration and labeling
standards, and the EPA was granted increased enforcement authority. Id. at 2479-80. Thus the
1972 amendments converted FIFRA from a labeling law into a comprehensive regulatory
statute. Id. (quoting Ruckelshaus, 467 U.S. at 991).
A House of Representatives' report on the 1972 amendments to FIFRA indicated the
proposed authority of the states:
The States are given prime responsibility for the certification and supervision of
pesticide applicators. The Federal Government sets the program standards the States
must meet. State authority to change Federal labeling and packaging is completely
preempted, and State authority to further regulate general use pesticides is partially
preempted.
H.R. Rep. No. 511, 92d Cong., 2d Sess. 1-2 (1972) (emphasis added). This report reiterated
that:
In dividing the responsibility between the States and the Federal Government for the
management of an effective pesticide program, the Committee has adopted language
which is intended to completely preempt State authority in regard to labeling and
packaging.
Id. at 16 (emphasis added).
Moreover, in its report to the Senate, the Agriculture and Forestry Committee noted that
section 136v(b) preempts any state labeling or packaging requirements different from such
requirements under the Act. S. Rep. No. 838, 92d Cong., 2d Sess. (1972) reprinted in 1972
U.S.C.C.A.N. 3993, 4021 (emphasis added); see also, S. Rep. No. 970, 92d Cong., 2d Sess.,
reprinted in 1972 U.S.C.C.A.N. 4092, 4128 (the Commerce Committee also stated that
136v(b) pre-empts any state labeling or packaging requirements).
5

The 1972 Amendments added 7 U.S.C. 136v. That section, captioned Authority of the
States, provided in part:
(a) A State may regulate the sale or use of any federally registered pesticide or
device in the State, but only if and to the extent the regulation does not permit any sale
or use prohibited by [FIFRA].
(b) Such State shall not impose or continue in effect any requirements for labeling or
packaging in addition to or different from those required under [FIFRA].
7 U.S.C. 136v(a)-(b). In 1988, Congress added the title, In general, to subsection (a) and
added the title, Uniformity, to subsection (b). Pub. L. No. 100-532, 102 Stat., 2654, 2682
(1988).
FIFRA precludes the EPA from authorizing the sale of a pesticide unless the product, as
labelled, will not cause unreasonable adverse effects on the environment. 7 U.S.C.
136a(c)(5)(C). Such effects are defined as: [A]ny unreasonable risk to man or the
environment, taking into account the economical, social, and environmental costs and
benefits of the use of any pesticide. 7 U.S.C. 136(bb). The label must be such that it is
likely to be read and understood by the ordinary individual under customary conditions of
purchase and use."
__________

5
House Report 10729, which ultimately was enacted as the 1972 amendments, was referred to two
committees: (1) the Agriculture and Forestry Committee, and (2) the Commerce Committee. See S. Rep. No.
838, 92d Cong., 2d Sess. (1972), reprinted in 172 U.S.C.C.A.N. 3993; S. Rep. No. 970, 92d Cong., 2d Sess.,
reprinted in 1972 U.S.C.C.A.N. 4092 (1972).
under customary conditions of purchase and use. 7 U.S.C. 136(q)(1)(E).
The EPA cannot approve a pesticide unless it complies with FIFRA's requirements, as set
forth in 136a(c)(5), and the EPA's labeling requirements. 40 C.F.R. 152.112(f). The EPA
has extensively regulated pesticide labeling, see generally 40 C.F.R. 156 (1991), and
provides specific requirements for the contents of each label (including ingredient statements,
warnings, and directions for use). 40 C.F.R. 156.10(a)(1). The EPA details how warnings
are to be presented and provides specific requirements for the content, placement, type, size
and prominence of the warnings. 40 C.F.R. 156.10(h).
Also, there must be a statement of practical treatment. 40 C.F.R. 156.10(h)(1)(iii). If
hazards exist to humans and domestic animals, precautionary statements are required which
indicat[e] the particular hazard, the route(s) of exposure and the precautions to be taken to
avoid accident, injury or damage. 40 C.F.R. 156.10(h)(2)(i)(A). Directions for use of the
pesticide must be stated in terms which are easy to read and understand by the average
person. 40 C.F.R. 156.10(i)(1)(i). When followed, they must be sufficient to protect the
public from fraud and from personal injury. Id. If a pesticide manufacturer violates either
the general requirements of FIFRA or the regulations promulgated by the EPA, the EPA will
notify the United States Attorney General who, in turn, will institute criminal or civil
proceedings against the violator. 7 U.S.C. 136g(c)(1).
6

We reject Ferebee's reading of FIFRA as it conflicts with the language and legislative
history of the statute. First, the excerpts from the legislative history demonstrate that
Congress intended section 136v(b) to completely pre-empt state authority to change federal
labeling. See, e.g., H.R. Rep. No. 511, 92d Cong., 2d Sess. 1-2 (1972). Second, it is unlikely
that Congress would have designated federal control over labeling in section 136v(b) if it
thought that the provision could be circumvented by state action authorized by 136v(a).
Third, federal regulation of pesticide labeling created by FIFRA is so pervasive and so
dominant such that Congress left no room for the states to supplement it.
7
Therefore, we
hold that FIFRA occupies the entire field of pesticide labeling and implicitly pre-empts
state tort claims based on failure to adequately label the pesticide.S
__________

6
Among other things, FIFRA makes it unlawful to sell or distribute a pesticide that is not registered or to
alter the EPA-approved composition of the product. 7 U.S.C. 136j(a)(1)(A), (2)(M). In addition, it is unlawful
to sell a misbranded pesticide. (See 7 U.S.C. 136(q)(1) for a description of when a pesticide is misbranded.)

7
Several courts have sidestepped this aspect to FIFRA by finding that FIFRA does not create a
comprehensive scheme to pre-empt all state law
Therefore, we hold that FIFRA occupies the entire field of pesticide labeling and implicitly
pre-empts state tort claims based on failure to adequately label the pesticide.
8

B. State tort claims conflict with FIFRA.
The final question is whether state tort claims actually conflict with FIFRA. Mortier, 111
S.Ct. at 2482. There is an actual conflict when compliance with both state and federal law is
physically impossible, or when a state law obstructs the accomplishment and execution of the
full purposes and objectives of Congress. Id.
The Ferebee court concluded that tort damages did not create an actual conflict. Ferebee,
736 F.2d at 1542. The court reasoned that compliance with both FIFRA and state tort law was
not impossible because the manufacturer can continue to use the EPA-approved label and can
at the same time pay damages to successful tort plaintiffs; alternatively, the manufacturer can
petition the EPA for a more comprehensive label. Id This analysis has been identified as a
choice of reaction analysis. See, e.g., Hurt, 759 F.Supp. at 559.
The Ferebee court also concluded that state common law did not stand as an obstacle to
the accomplishment of FIFRA's purposes. The court stated that such a conflict would exist
only if FIFRA was an "affirmative subsidization" of the pesticide industry, not a regulatory
statute directed at public safety.
__________
claims. See, e.g., Riden, 763 F.Supp. at 1506. These courts have approached implied pre-emption too broadly.
The dispositive question is whether FIFRA occupies the particular field of pesticide labeling. See Mortier, 111
S.Ct. at 2486 (Whatever else FIFRA may supplant, it does not occupy the field of pesticide regulation in
general or the area of local use permitting in particular.)

8
This holding is strengthened by the recent United States Supreme Court's decision in Mortier, where the
Court noted that the entire field of pesticide regulation was not pre-empted but, in dicta, emphasized that
pesticide labeling was pre-empted. Mortier, 111 S.Ct. at 2486; see also Arkansas-Platte, 959 F.2d at 163. In
Mortier, the Court stated:
In the first place, 136v itself undercuts such an inference. The provision immediately following the
statute's grant of regulatory authority to the States declares that [s]uch State shall not impose or continue
in effect any requirements for labeling and packaging in addition to or different from those required
under FIFRA. 7 U.S.C. 136v(b). This language would be pure surplusage if Congress had intended to
occupy the entire field of pesticide regulation. Taking such pre-emption as the premise, 136v(a) would
thus grant States the authority to regulate the sale or use of pesticides while 136v(b) would
superfluously add that States did not have the authority to regulate labeling or packaging, an addition
that would have been doubly superfluous given FIFRA's historic focus on labeling to begin with.
Mortier, 111 S.Ct. at 2486 (emphasis added).
FIFRA was an affirmative subsidization of the pesticide industry, not a regulatory statute
directed at public safety. Ferebee, 736 F.2d at 1542-43.
In contrast, Arkansas-Platte held that jury awards of damages would result in a direct
conflict with FIFRA. Arkansas-Platte, 959 F.2d at 164. We agree. By registering a pesticide,
the EPA has determined that the labels are adequate to protect man and the environment
because it does not pose any unreasonable risk to man or the environment, taking into
account the economic, social, and environmental costs and benefits of the use of any
pesticide. A jury determination that a pesticide labeling is inadequate directly conflicts with
the EPA's determination that the label is adequate and, secondly, the EPA Administrator's
determination that the risks to man and environment are out-weighed by the beneficial
aspects of the pesticide.
Furthermore, as noted in Arkansas-Platte, such state damage actions would hinder
Congress' goal of reaching uniformity in pesticide labeling.
9
Id. at 162. If a jury determined
that a label was inadequate, a manufacturer would have to change the label or risk additional
suits for damages. These changes would destroy the uniformity sought by Congress because
warning labels for that pesticide would not be based on the same criteria the EPA uses to
establish warnings for all other pesticides.
Though a manufacturer could physically comply with both federal and state
requirements as articulated in Ferebee, we reject Ferebee's choice of reaction analysis
because such jury determinations would realistically force manufacturers to change their
labels. A business choice between paying damages and changing the label is only notional.
Id. at 162. Ferebee's choice of reaction is more an articulation of semantics, rather than an
articulation of actual choices. As one court stated:
This choice of reaction seems akin to the free choice of coming up for air after being
underwater. Once a jury has found a label inadequate under state law, and the
manufacturer liable for damages for negligently employing it, it is unthinkable that any
manufacturer would not immediately take steps to minimize its exposure to continued
liability.
Palmer v. Liggett Group, Inc., 825 F.2d 620, 627-28 (1st Cir. 1987) (discussing the choice of
reaction analysis under the Federal Cigarette Labeling and Advertising Act).
We conclude that a jury determination that a label is inadequate would directly conflict
with the EPA's determination that the label is adequate to protect man and the
environment.
__________

9
In 1988, Congress amended this section without changing the language of 136v(b) by adding the heading
Uniformity to this section. Pub. L. 100-532, 801(m) (1988).
is adequate to protect man and the environment. National uniformity in pesticide labeling
would also be frustrated by state common law tort claims. Therefore, we hold that these tort
claims are pre-empted because they actually conflict with FIFRA.
CONCLUSION
In sum, we hold that FIFRA does not expressly pre-empt state tort claims based on
inadequate labeling but that FIFRA impliedly pre-empts such claims. Our resolution of this
issue makes it unnecessary for us to address the Davidsons' remaining contention.
Accordingly, for the reasons stated above, we affirm the order of the district court.
Mowbray, C. J., Springer, Rose and Young, JJ., and Carnahan, D. J.,
10
concur.
____________
108 Nev. 602, 602 (1992) Greenwell v. State Bar of Nevada
GEORGIANA GREENWELL and GLEN H. GREENWELL, Individually and dba
GREENWELL PARALEGAL CENTER, Appellants, v. THE STATE BAR OF NEVADA,
Respondent.
No. 21467
August 14, 1992 836 P.2d 70
Appeal from a permanent injunction enjoining appellants from practicing law without a
license. Second Judicial District Court, Washoe County; Charles M. McGee, Judge.
State bar brought action claiming that typing service engaged in conduct amounting to
unauthorized practice of law. The district court entered permanent injunction against
specified activities of typing business, and business appealed. The supreme court held that:
(1) there was inadequate appellate record to justify reversal, but (2) state bar would be
ordered to investigate alleged unavailability of legal services for low and middle-income
Nevadans.
Affirmed.
William Curley, Gillette, Wyoming, for Appellants.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks, Reno; Gordon &
Silver and Douglas A. Emerick, Reno, for Respondent.
__________

10
The Honorable Lew Carnahan, Judge of the Second Judicial District Court, was designated by the
Appellate record was insufficient to justify reversing district court's order enjoining practices of typing business alleged to amount
to unauthorized practice of law, where record did not include transcripts of proceedings below, and assertions regarding unavailability
of pro bono programs and indigent legal services were made with no reference to record.
State bar would be ordered to investigate alleged unavailability of legal services for low and middle-income Nevadans, and to
formulate rules concerning conditions, if any, that would allow non-lawyers to provide specific simple legal services, and to train and
certify such non-lawyers, in response to serious issues raised by appeal from order enjoining typing service from engaging in conduct
amounting to unauthorized practice of law.
OPINION
Per Curiam:
Appellants operate a business that initially provided typing services to attorneys. As the
business evolved, appellants began providing services directly to private individuals. Some
eight years after the commencement of this business, the State Bar of Nevada sought
injunctive relief against appellants, alleging the unauthorized practice of law.
The district court found for the State Bar and issued a very specific injunction prohibiting
appellants from engaging in certain conduct. The injunction included specific provisions with
regard to appellants' use of advertising.
[Headnote 1]
Appellants contend that the services they provided fit within the public necessity
exception enunciated by this court in Pioneer Title v. State Bar, 74 Nev. 186, 326 P.2d 408
(1958). Although this argument may have merit, it is impossible to resolve because the record
on appeal does not include transcripts of the proceedings in the district court. This court is
unwilling to reverse the order of the district court based upon what would presumably be
found in the missing transcripts.
Appellants assert that because the injunction forbids them from providing any assistance
other than verbatim typing services, indigent, lower and middle class persons, the mentally
ill, the developmentally disabled, the self-reliant pro se person and other litigants who can not
afford or can not obtain the services of an attorney are required to ellect [sic] between
obtaining legal services from an attorney or foregoing any legal services in connection with
their action alltogether [sic]. Appellants further assert that pro bono programs and indigent
legal services are unavailable for these people seeking assistance with divorce proceedings.
Although appellants' factual assertions are a basis for concern, they are made with no
reference to the record. Furthermore, because appellants failed to have the transcript of the
court proceedings below made part of the record on appeal, the record clearly does not
support a finding that the services provided by appellants are so necessary that they should
not be prohibited as unauthorized practice of law.
1

This court did recognize in Pioneer that some simple legal services may be so necessary
that they could be properly provided by non-attorneys if they would otherwise be unavailable.
Although Nevada may in fact have a very serious problem with respect to the provision of
certain legal services to low-income Nevadans, the evidence, as presented in the instant case,
does not warrant a finding of practical necessity which would justify the actions of appellants.
[Headnote 2]
Based upon the serious issues raised by this appeal, we have ordered the State Bar of
Nevada to investigate the alleged unavailability of legal services for low and middle-income
Nevadans.
2
The State Bar has been specifically instructed to consider the opinions of the
directors of the various legal services agencies of the state as well as the directors of the
various pro bono programs. The Bar has also been instructed to formulate rules concerning
such conditions, if any, that would allow non-lawyers to provide specific simple legal
services. The permitted services are to be specifically defined by the rules, and the activities
of non-lawyers are not to exceed the specific definitions.
__________

1
Some evidence supporting appellants' position is found in the record on appeal. For instance, an affidavit of
Wayne Pressel, director of Nevada Legal Services, which provides free civil legal service to indigents in every
county in Nevada except Washoe, is found in the record. In his affidavit, Mr. Pressel asserts that Nevada Legal
Services does not handle divorces or bankruptcies and that legal services in Nevada are wholly inadequate to
address the needs of low-income Nevadans. The record also includes the affidavit of Kevin R. Christensen,
deputy director of the State of Nevada Office of Protection and Advocacy, an office charged with the
responsibility of providing advocacy services to mentally ill and developmentally disabled persons in the State.
In his affidavit, Mr. Christensen asserts that the majority of his agency's clients are unable to afford the services
of an attorney to assist them in many legal areas, including domestic relations. Mr. Christensen also details
specific instances in which his office has had difficulty in securing low cost or donated legal services for its
clients. While these affidavits and the assertions of the appellants indicate a distressing problem, they are not,
alone, sufficient evidence upon which to base a finding of public necessity.

2
Based upon appellants' allegations, we include reference to both low and middle-income groups. We note,
however, that because the relief sought by appellants entails extending the privilege to engage in what otherwise
would be the unauthorized practice of law, we are concerned about the income categories that would qualify for
services provided by the paralegal organizations.
non-lawyers are not to exceed the specific definitions. Further, the State Bar has been given
authority to train and certify non-lawyers who wish to provide simple legal services. The Bar
has been asked for suggestions as to how the training and certification of these paralegals is
to be organized and administered.
Although appellants raise serious issues that deserve attention, the record on appeal is
simply insufficient to justify reversal of the district court's order. Accordingly, we affirm the
order of the district court.
____________
108 Nev. 605, 605 (1992) Building & Constr. Trades v. Public Works
BUILDING AND CONSTRUCTION TRADES COUNCIL OF NORTHERN NEVADA, and
DAN RUSNAK, Appellants, v. STATE OF NEVADA, ex rel., PUBLIC WORKS
BOARD, and BOARD OF REGENTS OF THE UNIVERSITY OF NEVADA,
Respondents.
No. 21951
August 20, 1992 836 P.2d 633
Appeal from an order of the district court denying appellants' petition for writ of
mandamus. Second Judicial District Court, Washoe County; Mills B. Lane, Judge.
Public Works Board and public university announced that construction project at public
university was going to be re-bid after it was determined that all bids exceeded project
budget. Thereafter, Board and university negotiated and executed contract with construction
company that had submitted lowest bid during initial bidding. Construction trades council
petitioned for writ of mandamus arguing that there was legal duty to re-bid the project. The
district court denied the petition, and council appealed. The supreme court, Mowbray, C. J.,
held that: (1) university and Board had legal duty to re-bid the project, and (2) petition for
mandamus was barred by doctrine of laches.
Affirmed.
Rose and Springer, JJ., dissented in part.
Langton & Kilburn, Reno, for Appellants.
Frankie Sue Del Papa, Attorney General, and Jonathan Andrews, Deputy Attorney
General, Carson City, for Respondent State of Nevada, ex rel., Public Works Board.
Donald F. Klasic, General Counsel, University of Nevada System, Reno, for Respondent
Board of Regents of the University of Nevada.
1. Mandamus.
Writ of mandamus is available to compel performance of act which law requires as duty resulting from office, trust or station, but
mandamus will not lie to compel officer or board to perform a discretionary act. NRS 34.160.
2. Colleges and Universities.
Construction project at public university was a public work for purposes of bidding requirements, where $5,000,000.00 of
proposed construction budget consisted of a federal grant. NRS 338.010, subd. 3(b).
3. Mandamus.
Public university and Public Works Board had legal duty to re-bid construction project after it had announced that it would, rather
than allowing university and Board to negotiate contract with original lowest bidder; project was a public work, once university
exercised its discretion by undertaking the project they became bound by public works statute, and university had notified all bidders
that all bids were rejected and that the project would be redesigned and re-bid. NRS 34.160, 338.010, subd. 3(b), 338.143, 341.145.
4. Statutes.
When a statute is susceptible to but one natural or honest construction, that alone is construction that can be given.
5. Statutes.
When construing specific portion of statute, statute should be read as a whole, and, where possible, statute should be read to give
plain meaning to all of its parts.
6. Public Contracts.
After soliciting bids on public works project, Public Works Board may negotiate with lowest responsible bidder or reject any or all
bids and re-bid or cancel the project; if Board chooses to negotiate with lowest responsible bidder, it must first notify all other bidders
that their bids had been rejected, that the project will not be re-bid, and that the Board intends to negotiate with lowest responsible
bidder, but the Board may not notify all bidders that their bids have been rejected and that project will be redesigned and re-bid, and
then enter into negotiations with lowest responsible bidder. NRS 341.145.
7. Equity.
Laches is an equitable doctrine which may be invoked when delay by one party works to disadvantage of the other, causing
change of circumstances which would make grant of relief to delaying party inequitable.
8. Equity.
Especially strong circumstances must exist to sustain defense of laches when statute of limitations has not run.
9. Mandamus.
As an extraordinary remedy, writ of mandamus is subject to doctrine of laches.
10. Mandamus.
In deciding whether doctrine of laches should be applied to preclude consideration of petition for writ of mandamus, court must
determine whether there was an inexcusable delay in seeking the petition, whether implied waiver arose from petitioner's knowing
acquiescence in existing conditions, and whether there were circumstances causing prejudice to respondent.
11. Mandamus.
Equitable doctrine of laches precluded a construction council's petition for mandamus seeking to require Public Works Board and
public university to re-bid a construction project at public university, even though Board had a legal duty to re-bid the project after it
notified all bidders that their bids had been rejected and that the project would be redesigned and re-bid but then entered into
negotiations with lowest responsible bidder; council waited for over a month from time when it knew that contract was going to be
awarded to lowest bidder without being re-bid to file a petition for writ of mandamus, council knew of its legal rights but chose not to
exercise them for approximately a month, and the council's delay substantially prejudiced the Board and university, in that the bidder
that was awarded the contract had performed significant work. NRS 34.160, 338.010, subd. 3(b), 338.143, 341.145.
OPINION
By the Court, Mowbrary, C. J.:
Respondents solicited and received bids for a construction project at the University of
Nevada, Reno campus. After determining that all of the bids exceeded the project budget,
respondents notified all bidders that their bids had been rejected and that the project would be
redesigned and re-bid. Instead of re-bidding the project, however, respondents negotiated and
executed a contract with the construction company that had submitted the lowest bid during
the initial bidding. Approximately one month after construction of the project began,
appellants petitioned for a writ of mandamus, arguing that respondents had a legal duty to
re-bid the project. After a hearing on the return date of the writ, the district court denied
appellants' petition.
On appeal, appellants challenge the district court's denial of their petition. While we agree
with appellants that respondents were required by law to re-bid the project, we also agree
with the district court that the doctrine of laches barred issuance of the writ.
THE FACTS
In July and August of 1990, respondent Public Works Board, acting on behalf of
respondent Board of Regents, publicly invited construction contractors to bid on a project to
restore the Mackay School of Mines Building on the University of Nevada, Reno campus
(the project). The budget for the project was $6,113,275.00.
Approximately $5,000,000.00 of the proposed construction budget consisted of a federal
grant from the Defense Logistics Agency of the Department of Defense. Private sources
donated the remainder of the funds.
the remainder of the funds. No state funds were appropriated for the project.
Respondents received numerous bids for the project. Of these bids, Weyher Brothers
Company (Weyher) submitted the lowest, at $6,645,000.00. By letter dated September 25,
1990, however, respondents notified all bidders that [a]ll of the responsive bids received
were significantly over the available construction budget, and that as a result, this project
will be redesigned with a reduced scope of work and re-bid, as soon as possible.
Despite the letter of September 25, 1990, respondents immediately entered into
negotiations with Weyher. Respondents undertook these negotiations because Weyher was
the lowest responsible bidder and because Weyher's original bid for the project was within ten
percent of the budget for the project. See NRS 341.145(3)(b). Respondents did not negotiate
with any of the other bidders.
As a result of the negotiations, on October 15, 1990, respondents received a revised bid
from Weyher. The next day, representatives of respondents met with federal government
officials to discuss the project. During this meeting, the federal officials expressed concern
that the $5,000,000.00 federal grant might be lost if it was not utilized soon.
1
Based upon
their concern that the federal funds would be lost if the project were delayed, respondents
decided to accept Weyher's revised bid and not re-bid the project.
In early January 1991, appellant Building Trades Council of Northern Nevada (the
Council) learned that negotiations between respondents and Weyher had taken place and that
respondents intended to award the project contract to Weyher. On January 8, 1991, a
representative of the Council telephoned respondents and protested that the project contract
had been awarded to Weyher without first re-bidding.
On January 14, 1991, respondents formally executed a project contract with Weyher and
notified the other original bidders of the decision to award the project contract to Weyher. On
January 15, 1991, Weyher began work on the project. On that same date, the Council learned
that Weyher had begun working on the project.
On February 11, 1991, the Council filed a petition for a writ of mandamus seeking to
force respondents to re-bid the project.
__________

1
According to the officials, the following factors jeopardized the grant: (a) Graham Rudman Reductions
imposed on the federal budget; (b) the possibility that the Department of Defense would recall the grant because
the grant was part of the 1987 appropriation and had not yet been spent; and (c) the costs associated with the
activities of the United States Armed Forces in Operation Desert Shield.
mandamus seeking to force respondents to re-bid the project. After a hearing, the district
court entered findings of fact, conclusions of law and a decision denying the petition. The
district court concluded that (1) respondents had discretion to negotiate a contract with
Weyher instead of re-bidding the project, and (2) even if respondents did not have such
discretion, the doctrine of laches barred issuance of the writ. This appeal followed.
DISCUSSION
I. Mandamus.
Appellants contend that respondents had a legal duty to re-bid the project and, therefore,
the district court erred in denying appellants' petition for a writ of mandamus.
[Headnotes 1, 2]
A writ of mandamus is available to compel the performance of an act which the law
requires as a duty resulting from an office, trust or station. NRS 34.160. Mandamus, however,
will not lie to compel an officer or board to perform a discretionary act. Young v. Board of
County Comm'rs, 91 Nev. 52, 530 P.2d 1203 (1975). Nor will mandamus lie to control
discretionary action, Gragson v. Toco, 90 Nev. 131, 520 P.2d 616 (1974), unless discretion is
manifestly abused or is exercised arbitrarily or capriciously. Henderson v. Henderson Auto,
77 Nev. 118, 359 P.2d 743 (1961).
[Headnote 3]
Here, because of the $5,000,000.00 federal grant, the project was a public work as
defined by NRS 338.010(3)(b). NRS 338.143 and NRS 341.145 specify the procedures that
must be followed in bidding a public work. NRS 341.145, the critical section for this appeal,
states in relevant part:
The [public works] board:
. . . .
2. Shall solicit bids for and let all contracts for new construction or major repairs.
3. May negotiate with the lowest responsible bidder on any contract to obtain a
revised bid if:
(a) The bid is less than the appropriation made by the legislature for that building
project; and
(b) The bid does not exceed the relevant budget item for that building project as
established by the board by more than 10 percent.
4. May reject any or all bids.
. . . .
Appellants argue that although respondents had discretion to determine whether or not to
undertake the project in the first place, once respondents exercised their discretion by
undertaking the project, they became bound by NRS 341.145.
determine whether or not to undertake the project in the first place, once respondents
exercised their discretion by undertaking the project, they became bound by NRS 341.145.
Specifically, appellants contend that mandamus is warranted because respondents, after
notifying all bidders that all the bids were rejected and that the project would be redesigned
and re-bid, did not have discretion to negotiate the project contract with Weyher. We agree.
[Headnotes 4-6]
When a statute is susceptible to but one natural or honest construction, that alone is the
construction that can be given. Randono v. CUNA Mutual Ins. Group, 106 Nev. 371, 793
P.2d 1324 (1990). When construing 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.
Sheriff v. Morris, 99 Nev. 109, 659 P.2d 852 (1983). Applying these principles here, we
construe NRS 341.145(2)-(4) thus: After soliciting bids on a public works project, the Public
Works Board may, pursuant to NRS 341.145(3), negotiate with the lowest responsible bidder
(provided the criteria embodied in sections (a) and (b) are satisfied) or reject any or all bids
and re-bid or cancel the project.
2
If the Public Works Board chooses to negotiate with the
lowest responsible bidder, it must first notify all other bidders that their bids have been
rejected, that the project will not be re-bid, and that the Public Works Board intends to
negotiate with the lowest responsible bidder. The Public Works Board may not, however, as
it did here, notify all bidders that their bids have been rejected and that the project will be
redesigned and re-bid, and then enter into negotiations with the lowest responsible bidder.
For the foregoing reasons, we hold that respondents had a legal duty under NRS 341.145
to re-bid the project.
II. Laches.
Although we hold that respondents had a legal duty to re-bid the project, it remains for us
to consider whether, as the district court concluded, the Council's petition was barred by the
doctrine of laches.
[Headnotes 7-11]
Laches is an equitable doctrine which may be invoked when delay by one party works to
the disadvantage of the other, causing a change of circumstances which would make the
grant of relief to the delaying party inequitable.
__________

2
Because no appropriation by the legislature is involved, and because Weyher's original bid did not exceed
the budget for the project by more than ten percent, neither (a) nor (b) barred respondents from negotiating
with Weyher.
a change of circumstances which would make the grant of relief to the delaying party
inequitable. Erickson v. One Thirty-Three, Inc., 104 Nev. 755, 766 P.2d 898 (1988).
Especially strong circumstances must exist, however, to sustain a defense of laches when the
statute of limitations has not run. Lanigir v. Arden, 82 Nev. 28, 409 P.2d 891 (1966). As an
extraordinary remedy, a writ of mandamus is subject to the doctrine of laches. Buckholt v.
District Court, 94 Nev. 631, 584 P.2d 672 (1978). In deciding whether the doctrine should be
applied to preclude consideration of a petition for a writ of mandamus, a court must
determine: (1) whether there was an inexcusable delay in seeking the petition, (2) whether an
implied waiver arose from the petitioner's knowing acquiescence in existing conditions, and
(3) whether there were circumstances causing prejudice to the respondent. Id. at 633, 584
P.2d at 673-674.
Applying the test set forth in Buckholt, we hold that the district court properly found that
the relief sought by Council's petition was precluded by the doctrine of laches. First, we
believe the Council inexcusably delayed seeking the petition. The evidence reveals that the
Council knew by January 8, 1991, that the project contract was going to be awarded to
Weyher without being re-bid. The evidence also demonstrates that on or about January 15,
1991, the Council knew that Weyher had begun work on the project. Nevertheless, the
Council failed to take immediate legal action to stop the work being done on the project
pending resolution of this dispute. As the district court observed, the Council could have
secured a temporary restraining order or preliminary injunction, but instead waited until
February 11, 1991 (approximately one month later), to file a petition for writ of mandamus.
The Council offers no convincing reason for this delay.
Second, we conclude that an implied waiver arose from the Council's knowing
acquiescence in existing conditions. As previously noted, the Council knew by January 15,
1991, that Weyher had received the project contract and had commenced working. Though
the Council protested to respondents on January 8, 1991, the Council failed to take any
additional action until February 11, 1991. And this failure to take action cannot be ascribed to
a lack of knowledge, for at the March 1, 1991, hearing before the district court, the Council's
attorney stated:
But the latches [sic] argument I don't think is a very valid argument because we acted
with celerity I believe. We had our option of running to the [c]ourt for an injunction
but prudence mandated we not do that at that point in time. We instead tried to put the
various entities on notice, specifically the [Board] that we thought there was a reason
for not letting this contract. . . .
Thus, the Council knew of its legal rights but chose not to exercise them until February 11,
1991.
Finally, in our view, the Council's delay substantially prejudiced respondents. The record
demonstrates that Weyher performed significant work on the project between January 15,
1991 (the date on which the Council learned that Weyher had begun work on the project), and
March 1, 1991 (the date on which the hearing on the petition for writ of mandamus took
place). Specifically, Weyher had gutted the inside of the building, rebuilt some parts of the
building, cut and removed a major retaining wall to make way for a loading ramp, removed
and stored brick work, relocated major utility lines and started removing asbestos from the
building. In addition, the record shows that if the district court had rescinded the project
contract and required re-bidding, the consequent delay would have increased the project's cost
and perhaps resulted in a withdrawal of the federal grant.
Accordingly, we hold that, under the peculiar circumstances of this case, the district court
properly found that the doctrine of laches barred the Council's petition for a writ of
mandamus.
CONCLUSION
We hold that respondents, once they notified all bidders that the bids had been rejected,
and that the project would be redesigned and re-bid, were required by NRS 341.145 to re-bid
the project. We also hold, however, that the district court correctly concluded that the
doctrine of laches barred the Council's petition for a writ of mandamus. Accordingly, we
affirm the order of the district court.
Rose, J., with whom Springer, J., joins, concurring in part and dissenting in part:
I concur with the majority in its holding that the Public Works Board had a legal duty
under NRS 341.145 to re-bid the project, but I do not agree that the Council's petition was
barred by the doctrine of laches.
The respondents were required to re-bid the job and inform all bidders that the project
would be redesigned. Rather than do this, they privately negotiated with Weyher Brothers
Company (Weyher), executed a contract on January 14, 1991, with Weyher, and then notified
the other bidders that Weyher had been awarded the construction project. The Council
protested the respondents' actions by telephone calls and letters. Because these protests were
unsuccessful, a petition for a writ of mandamus was filed on February 11, 1991, seeking to
force respondents to re-bid the project.
Strong circumstances must exist to sustain a defense of laches when the statute of
limitations has not run, Lanigir v. Arden, 82 Nev. 28, 409 P.2d 891 (1966); and I do not find
compelling facts to deny the Council its requested relief. The Council acted in approximately
three weeks after receiving formal notification. This is not an unreasonable period of time,
especially when we consider that the Council initially tried to get relief without court action.
Laches is an equitable doctrine, and a party who requests equity must do equity. Overhead
Door Co. v. Overhead Door Corp., 103 Nev. 126, 127, 734 P.2d 1233, 1235 (1987). The
respondents violated the law by not re-bidding the project. They then surreptitiously began
negotiating with one bidder, but informed the others that the project would be re-bid. When
the project contract was formally signed, Weyher was ready immediately to begin work. The
situation where time was very critical was created by respondents. By their conduct, the
respondents have shown that they are not entitled to equitable relief.
For the reasons stated, I would not have found that the Council's petition was barred by
laches. Because the building project has now been completed, giving the Council relief at this
time is problematic; however, in light of the majority's adjudication that the Public Works
Board acted improperly in failing to abide by NRS 341.145, I would remand to the trial court
to give the appellants the opportunity to assert any legal claims that they might have against
the Board or the University of Nevada, as they were entitled to relief when this matter was
heard by the district court.
____________
108 Nev. 613, 613 (1992) Public Serv. Comm'n v. Vegas Rock & Sand
NEVADA PUBLIC SERVICE COMMISSION; WHEELER TRUCKING CORPORATION;
SIERRA RENTAL & TRANSPORT; PIONEER TRUCKING & AGGREGATES;
and W.E.S. TRUCKING, INC., Appellants, v. VEGAS ROCK & SAND, INC., and
LAS VEGAS PAVING CORPORATION, Respondents.
No. 22254
August 20, 1992 836 P.2d 630
Appeal from an order of the district court vacating and setting aside a decision of the
Public Service Commission. Eighth Judicial District Court, Clark County; Joseph T.
Bonaventure, Judge.
Motor carrier sought approval from Public Service Commission to transfer its Certificate
of Public Convenience and Necessity to another carrier. The Public Service Commission
approved the transfer, but restricted certificate to hauling of only petroleum products, and
motor carriers appealed.
the transfer, but restricted certificate to hauling of only petroleum products, and motor
carriers appealed. The district court vacated and set aside opinion and order of Commission,
and Commission appealed. The supreme court held that the Commission could not restrict
certificate of transfer without first demonstrating significant harm to public interest or to
protesting carriers which would result from revival and transfer of allegedly dormant rights.
Affirmed.
[Rehearing denied June 2, 1993]
Leslie T. Miller, General Counsel, Carson City, for Appellant Nevada Public Service
Commission.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell, Carson City, for Appellants
Wheeler Trucking Corporation, Sierra Rental & Transport, Pioneer Trucking & Aggregates,
and W.E.S. Trucking, Inc.
D. Lanny Waite, Las Vegas, for Respondents.
Automobiles.
For purposes of restricting certificate of transfer issued to motor carriers, Public Service Commission did not demonstrate
probability of significant harm to public interest or to other carriers by revival and transfer of allegedly dormant rights merely by
showing that expansion of carrier's operations beyond petroleum hauling activities of transferor would divert revenue from all other
motor carriers absent further showing of projected impact upon specific carrier or to industry as whole.
OPINION
Per Curiam:
Facts
Vegas Rock & Sand, Inc. (Vegas Rock) and Las Vegas Paving Corporation (Las Vegas
Paving) sought to transfer a Certificate of Public Convenience and Necessity (the certificate)
from Vegas Rock to Las Vegas Paving. During the transfer hearings, the intervenors, local
trucking companies which objected to the transfer, called no witnesses to support their
position. The only witnesses to appear on behalf of the Commission were its staff employees,
who testified that the certificate should be transferred in full for the following reasons: (1) for
the five years prior to the transfer hearing, Vegas Rock primarily hauled petroleum products
with only minimal loads of other goods; (2) during this five-year period, the amount of
business for Vegas Rock was decreasing, and the company had recently emerged from
bankruptcy proceedings; and (3) from 1985 to 1989, Vegas Rock lacked the requisite tariff
to haul goods other than petroleum-based products.1
lacked the requisite tariff to haul goods other than petroleum-based products.
1

On May 4, 1990, the Public Service Commission of Nevada (the Commission) approved
the transfer but restricted the certificate to the hauling of only petroleum products. The
Commission found that: (1) Vegas Rock's historical operations were limited and that, except
for petroleum hauling, those operations were dormant; (2) Las Vegas Paving planned to
expand Vegas Rock's historical operations and revive the dormant operating rights; and (3)
the planned expansion would harm the public interest by diverting $1.6 to $3.2 million away
from existing motor carriers.
Vegas Rock and Las Vegas Paving, dissatisfied with the restriction to petroleum products,
appealed to the district court, which vacated and set aside the opinion and order of the
Commission. The district court concluded that the Commission: (1) had not demonstrated a
required public interest; (2) had failed to recognize the operations of Vegas Rock from
1987 to 1988, when the general commodities tariff was not in effect, because the operations
were under color of law; (3) had failed to recognize the operations of Vegas Rock while
under a management agreement; (4) had failed to recognize the statutory definition of
dormancy and had mistakenly declared that the general commodities operations of Vegas
Rock were dormant; and (5) had failed to recognize that in order to show harm to the public
interest, the intervenors must testify that their operations will be damaged.
On appeal, the Commission argues that: (1) the district court improperly substituted its
judgment for that of the Commission as to the weight of the evidence on questions of fact; (2)
substantial evidence supports the determinations of the Commission made pursuant to NRS
706.6411; and (3) the Commission acted properly in modifying the operating authority
transferred.
Discussion
Pursuant to NRS 706.6411(5), the Commission can only restrict the transfer of a certificate
as the public interest may require. In Arrow Transportation Company v. United States, 300
F.Supp. 813 (D.R.I. 1969), the court noted that under the federal scheme of trucking
regulations, even if the operations of a carrier seeking to transfer a certificate are minimal or
non-existent prior to the transfer request, to restrict a certificate the regulatory authority must
find that sufficient harm to the public interest or to the protesting carriers would result. Id.
at S1S.
__________

1
Pursuant to the regulatory scheme of Nevada, a carrier is required to file schedules and tariffs for a specific
commodity or class of commodity which he wishes to haul in addition to holding a Certificate of Public
Convenience and Necessity authorizing the hauling of the commodity. See NRS 706.321 and 706.386.
interest or to the protesting carriers would result. Id. at 818. The court noted:
[T]his court finds dormancy to mean an abandonment or termination of services the
reactivation of which will result in damages either to the public interest or to
intervening or protesting carriers who conducted operations during the interruption of
said services.
Id. See also Hilt Truck Line, Inc. v. United States, 548 F.2d 214, 215-16 (8th Cir. 1977).
Also, in Central Transportation, Inc.-Pur.-Piedmont Petroleum, 127 M.C.C. 284 (1977), the
Interstate Commerce Commission (ICC) used a test that established that dormant rights can
be transferred so long as the applicant can show a benefit to the public interest in allowing the
transfer. The ICC established a scheme that shifted the burden of proof once certain elements
were proven. Id. at 286-287. The ICC stated:
The tripartite test requires the applicant to bear the initial burden of showing a public
benefit to be gained from the sale of the dormant rights. This initial showing must
merely indicate that the transfer will in some manner improve transportation service to
the public. In an unopposed case, this evidence is sufficient proof of a public benefit to
warrant a transfer of the rights. In an opposed case, the burden of going forward shifts
to the protestants (once applicants meet their initial burden) who are required to show
that there is a probability that they will be significantly harmed by the transfer. If this
burden of proof is met, the burden of going forward shifts once more to the applicant,
who is required to bring forth evidence of sufficient public need to outweigh this harm,
ordinarily in the form of shipper support.
Id. (emphasis added).
In accordance with this line of cases, we determine that for the Commission to restrict a
certificate of transfer, even if the operations of the transferor are minimal or non-existent, it
must demonstrate the probability of significant harm to the public interest or to the protesting
carriers.
The Commission argues that the certificate was properly restricted because Las Vegas
Paving's planned expansion of Vegas Rock's historical operations would harm the public
interest by diverting $1.6 to $3.2 million away from existing motor carriers. However, this
fact alone does not show what the projected impact will be to a specific carrier or to the
industry as a whole. Such a diversion of revenue from all existing motor carriers might have a
de minimis effect on the industry. Significant harm to the protesting carriers or the public
interest was not established at the transfer hearing. Therefore, we conclude that although the
Commission determined the operations of Vegas Rock were "dormant" prior to the
transfer hearing, the Commission did not make a sufficient showing of probable harm to
the public interest or to the protesting carriers to justify restricting the certificate.
although the Commission determined the operations of Vegas Rock were dormant prior to
the transfer hearing, the Commission did not make a sufficient showing of probable harm to
the public interest or to the protesting carriers to justify restricting the certificate.
Conclusion
Because neither the Commission nor the intervenors have demonstrated what impact the
expanded service of Las Vegas Paving or the loss of revenue by the other carriers will have
on the protesting carriers, we are not persuaded that the protesting carriers or the public
interest will be adversely affected by revival and transfer of the allegedly dormant rights.
Therefore, we conclude that the district court properly reversed the decision of the
Commission. Because we have determined that the district court had at least one basis to
reverse the decision of the Commission, we make no determination on the other issues on
appeal. Accordingly, we affirm the judgment entered below.
____________
108 Nev. 617, 617 (1992) Lucini-Parish Ins. v. Buck
LUCINI-PARISH INSURANCE, INC., Appellant, v. LEONARD and HELEN BUCK,
Respondents.
No. 22275
August 20, 1992 836 P.2d 627
Appeal from a judgment, pursuant to a jury verdict, in a breach of contract and negligence
action. Second Judicial District Court, Washoe County; Charles M. McGee, Judge.
Owners brought action against insurance agency for failure to procure equine mortality
insurance. Following a jury trial, the district court entered a judgment in favor of the owners,
and agency appealed. The supreme court held that evidence supported finding that horse was
in sound health at time equine mortality insurance could have been effective, for purposes of
the owners' claims against insurance agency arising out of agency's failure to procure
insurance.
Affirmed.
Springer, J., dissented.
Thorndal, Backus, Maupin & Armstrong, and Stephen C. Balkenbush, Reno, for Appellant.
Clark & Dickey, Reno, for Respondents.
1. Insurance.
Party who seeks to recover on an insurance policy has burden of establishing any condition precedent to coverage.
2. Insurance.
Evidence supported finding that owners' horse was in sound health at time equine mortality insurance could have been effective,
for purposes of the owners' claims against insurance agency arising out of agency's failure to procure insurance; veterinarian's
certificate, dated several days prior to when insurance could have been effective, reported that the horse was in sound health; moreover,
owners' expert indicated that insurer considered condition of sound health satisfied as long as no one knew of illness at inception of
policy.
3. Insurance.
Instruction that insurance agency was negligent for failing to procure insurance if it failed to use reasonable diligence in
attempting to place equine mortality insurance and to seasonably notify owners if it was unable to obtain the insurance was not unduly
broad; language referred to the insurance the agency agreed to procure, that is, adding owners' new horse to existing policy.
4. Insurance.
Deceased horse's pathology report was irrelevant in action owners brought against insurance agency for failing to procure equine
mortality insurance; owners had no knowledge of animal's illness, they provided veterinarian's certificate, and insurer considered
condition precedent satisfied under those conditions.
5. Evidence.
Owner may testify as to value of his property.
6. Insurance.
Evidence was sufficient to prove value of deceased horse, for purposes of owners' claim against insurance agency for failure to
procure equine mortality insurance, where an owner testified as to purchase price for horse and that in her opinion horse was worth that
price; moreover, expert testified that the purchase price, if recent, was proper means to determine value of the horse.
OPINION
Per Curiam:
Respondents Leonard and Helen Buck (Bucks) sued appellant Lucini-Parish Insurance,
Inc., (LPI) for failure to procure equine mortality insurance. The jury returned a verdict in
favor of the Bucks and judgment was entered on the verdict. For the reasons discussed herein,
we affirm.
FACTS
In 1985, the Bucks' daughter developed an interest in horses. The Bucks bought her a
horse in 1985 for $5,000. She began competing in show jumping. As her skills improved, the
Bucks purchased more expensive horses. During 1987 through 1988, they purchased three
more horses with prices ranging from $18,000 to $37,500.
Because of the value of these horses, the Bucks purchased equine mortality insurance to
cover them. The Bucks always obtained their insurance through LPI and always followed
the same procedure to obtain the insurance.
obtained their insurance through LPI and always followed the same procedure to obtain the
insurance. Mrs. Buck would direct one of her employees to contact LPI and to request that
LPI procure equine mortality insurance to cover the animal. The Bucks' employee would send
the necessary documents, and LPI would procure the insurance, usually through Lloyds of
London. The Bucks never negotiated the costs or the duration of the insurance. Mrs. Buck
simply paid the premiums when she received them.
In May 1989, the Bucks became interested in purchasing a thoroughbred horse named
Bluegrass. The Bucks had three veterinarians examine the horse and each determined that the
horse was in good health. On Thursday, June 29, 1989, Mrs. Buck decided to purchase
Bluegrass for $75,000. On Friday, June 30, she called her office and directed Nancy Potts
(Potts) to inform LPI that they were going to buy the horse and needed to add him to their
existing policy (which was issued by Lloyds of London).
At nine o'clock Friday morning, Potts called LPI and spoke with Barbara Ghilieri, a
customer service representative, informing her about the value of Bluegrass and that the
horse, which was stabled in California, would be arriving in Reno early Saturday morning.
She requested that Bluegrass be added to the Bucks' existing policy and asked Ghilieri what
documents LPI needed to accomplish this request. Ghilieri responded that she needed a
veterinarian's certificate and the bill of sale. Because the Bucks did not yet have the bill of
sale, Potts called Ghilieri again that morning and asked if a copy of the $75,000 check would
be sufficient. According to Potts, Ghilieri responded affirmatively.
From her conversations with Ghilieri, Potts believed that once she faxed the necessary
documents to LPI, Bluegrass would be insured. Likewise, through their course of dealings,
the Bucks thought that once they sent the requisite documents to LPI, the in-question animal
would be insured. Unbeknown to the Bucks, LPI lacked binding authority with respect to
equine mortality insurance.
1

Potts faxed the veterinarian's certificate and a copy of the check to LPI at approximately
three o'clock that afternoon. Although Potts remained at work until five o'clock, she had no
further contact from Ghilieri that day. Ghilieri also worked until five o'clock, but she did not
check the fax machine after three o'clock that afternoon. Thus she did not discover the
documents until mid-afternoon of the next day, Saturday. Afterwards, she sent the documents
via regular mail to a local agent with binding authority.
__________

1
It is noteworthy that Mrs. Buck's business utilized LPI to insure or procure insurance for boats, homes,
automobiles and business parks.
That same day, Saturday, July 1, Bluegrass arrived in Reno. The next day, the Bucks
transported him to San Diego, California, for a horse show. On Tuesday, July 4, Mrs. Buck
received a telephone call advising her that Bluegrass was sick, and late that evening a
veterinarian informed Mrs. Buck that Bluegrass had died.
Mrs. Buck called LPI on July 5. She informed Ghilieri of Bluegrass' death. Ghilieri told
Mrs. Buck that Bluegrass had not yet been insured. The Bucks brought this action, alleging
that LPI breached its contract to procure insurance, that LPI negligently failed to procure
insurance, and that LPI made negligent misrepresentations. The jury returned a verdict in
favor of the Bucks on the breach of contract and the negligent failure to procure insurance
claims. The jury found for LPI on the negligent misrepresentation claim.
DISCUSSION
LPI argues that there is insufficient evidence to support the jury verdict. Specifically, LPI
argues that even if it had procured the requested insurance, the Bucks' claim would have been
denied because they did not establish that Bluegrass was in sound health at the time insurance
could have been effective, a condition precedent to coverage.
[Headnotes 1, 2]
A party who seeks to recover on an insurance policy has the burden of establishing any
condition precedent to coverage. 19 Couch on Insurance 79:342 (2d ed. 1982). As
requested, the Bucks' employee sent LPI a veterinarian's certificate, dated several days earlier,
which reported that the horse was in sound health. According to LPI's agent, Barbara Ghilieri,
the purpose of the veterinarian's certificate was to make sure the animal [was] in good health
at the time it [was] insured.
Moreover, the Buck's expert testified that Lloyds of London considered the condition of
sound health satisfied as long as no one knew of the illness at the inception of the policy. See
Lasma Corp. v. Monarch Ins. Co. of Ohio, 764 P.2d 1118, 1121-22 (Ariz. 1988) (the insurer
had construed its sound health condition precedent to be based upon the knowledge of the
insured; thus the court adopted that construction). As there is substantial evidence to support
the jury's finding that the condition was satisfied, this court will not disturb it on appeal. See
Bally's Employees' Credit Union v. Wallen, 105 Nev. 553, 555-56, 779 P.2d 956, 957 (1989).
2
[Headnote 3]
[Headnote 3]
__________

2
The dissent argues that the Bucks did not satisfy the sound health condition, reasoning that the earliest date
that Lloyds of London could have approved the policy was July 3, 1989, but that the horse died of a two-day
[Headnote 3]
LPI next argues that the jury was improperly instructed as to the duty it owed the Bucks
under the negligence claim. The jury instruction provided:
An insurance agency that undertakes to procure insurance for another owes an
obligation to its client to use reasonable diligence in attempting to place the insurance
and to seasonably notify the client if it, the insurance agency, is unable to obtain the
insurance.
(Emphasis added.) LPI contends that this instruction was too broad because the Bucks merely
sought to add Bluegrass to their existing Lloyds of London policy, but the jury was instructed
that LPI breached its duty if it failed to obtain insurance, regardless of whether it was through
Lloyds of London. This argument is misplaced. The instruction is a strict reading of Keddie v.
Beneficial Insurance, Inc., 94 Nev. 418, 420, 580 P.2d 955, 956 (1978). The emphasized
language clearly referred to the insurance LPI agreed to procure, namely, to add Bluegrass to
the existing policy.
[Headnote 4]
As for its third assignment of error, LPI argues that it was prejudicially denied the right to
use the pathology report to argue that Bluegrass became ill before the insurance policy could
have become effective. Because the Bucks had no knowledge of the animal's illness, and
because they provided the veterinarian's certificate, Lloyds of London's policy of considering
the condition precedent satisfied under these circumstances made the pathology report
irrelevant.
[Headnotes 5, 6]
Finally, LPI argues that the Bucks failed to prove the value of Bluegrass. This argument is
meritless. An owner may testify as to the value of his property. See City of Elko v. Zillich,
100 Nev. 366, 371, 683 P.2d 5, 8 (1984); Jones v. Northside Ford Truck Sales, Inc.,
__________
disease (according to an inadmissible document) on July 4, 1989. The dissent ignores, however, the fact that
Lloyds of London considered this sound health condition satisfied if the veterinarian's certificate was provided
and if no one knew of the horse's illness at the inception of the policy. The Bucks provided a veterinarian's
certificate of sound health and did not know of Bluegrass' illness until July 4.
Additionally, the effective date for a prior equine mortality insurance policy which LPI had procured for the
Bucks was made retroactive. That policy was approved by Lloyds of London on May 18, 1988, but the effective
date was May 16, 1988the date Ghilieri faxed the veterinarian's certificate and the horse's registration to the
local agent with binding authority. Here, if Ghilieri would have sent Bluegrass' documents on the date they were
received by LPI, the insurance policy could have become effective on that date, June 30, 1989.
Sales, Inc., 556 P.2d 117, 121 (Or. 1976). Mrs. Buck purchased Bluegrass for $75,000 and
testified that, in her opinion, Bluegrass was worth that price. Moreover, the Bucks' expert
testified that the purchase price, if recent, was a proper means to determine the value of the
horse.
Accordingly, for the reasons stated above, we affirm the judgment of the district court.
Springer, J., dissenting:
I dissent because, in my view, even if the insurance policy had been issued, there would
have been no coverage here. A condition of liability in this case is that at the commencement
of this insurance each animal hereby insured is in sound health and free from any illness,
disease, lameness, injury or physical disability whatsoever. The earliest date on which
Lloyds of London could have been bound was July 3, 1989; Bluegrass died of a two-day
disease on July 4, 1989. The Bucks did not (and could not) establish that Bluegrass was in
sound health on July 3, 1989, and thus the condition precedent to coverage was not met.
Therefore, even if LPI negligently failed to procure insurance or breached its contract to
procure insurance, the Bucks were not affected by this failure or breach because they would
not have been covered by the insurance policy even if LPI had procured it.
I also conclude that it was reversible error for the trial court to deny LPI the right to use the
pathology report. It should have been admitted as a record of regularly conducted activity
under NRS 51.135.
____________
108 Nev. 622, 622 (1992) Washoe Medical Center v. Churchill County
WASHOE MEDICAL CENTER, INC., a Non-Profit Nevada Corporation, Appellant, v.
CHURCHILL COUNTY, a Political Subdivision of the State of Nevada, Respondent.
No. 22512
August 20, 1992 836 P.2d 624
Appeal from an order of the district court granting summary judgment to Churchill
County. Third Judicial District Court, Churchill County; Archie E. Blake, Judge.
Hospital sued patient and county for medical expenses incurred in treating patient. The
district court granted summary judgment to county. Hospital appealed. The supreme court
held that: (1) material issue of fact as to whether board of county commissioners received
actual notice of patient's hospitalization precluded summary judgment for county, and (2) it
was incumbent upon district court to make finding as to whether patient was an indigent
person under welfare statute in order to decide whether hospital was entitled to have
county pay patient's medical bill.
district court to make finding as to whether patient was an indigent person under welfare
statute in order to decide whether hospital was entitled to have county pay patient's medical
bill.
Robert E. Nelson-Kortland and Terrance E. Shea, Reno, for Appellant.
Kevin Pasquale, District Attorney, and Joe Ward, Deputy District Attorney, Churchill
County; Thorndal, Backus, Maupin & Armstrong and Brent Kolvet, Reno, for Respondent.
1. Judgment.
District court may properly grant summary judgment when no genuine issue of material fact exists and moving party is entitled to
judgment as a matter of law.
2. Judgment.
Summary judgment is foreclosed when there is the slightest doubt as to operative facts.
3. Judgment.
Material issue of fact as to whether board of county commissioners received actual notice of patient's hospitalization precluded
summary judgment for county in hospital's suit for medical expenses incurred in treating patient. NRS 428.010, 428.010, subd. 1,
428.015, 428.020, subd. 2, 439B.330, subds. 4, 5, 450.400.
It was incumbent upon district court to make finding as to whether patient was an indigent person under statute, permitting
hospital to recover from county cost of providing care to indigent who resides in another county, in order to decide whether hospital
was entitled to have county party pay patient's medical bill. NRS 450.400.
OPINION
Per Curiam:
On April 13, 1988, John W. Cooper (Cooper) was transferred from Churchill Regional
Medical Center in Churchill County to Washoe Medical Center (WMC) in Reno, for
treatment of an acute medical condition. On April 14, 1988, WMC sent a notice addressed to
Ruby Anderson, the Churchill County Clerk, which stated that Cooper was a patient and
requested that Churchill County accept financial responsibility for him. WMC discharged
Cooper on April 15, 1988, and his bill totaled $3,981.21. When the Churchill County Welfare
Department requested information from Cooper about his financial status, he did not respond.
Subsequently, Churchill County refused to pay the bill, claiming that it did not request WMC
to render medical services to Cooper, that it was not given proper notice under Nevada law
when Cooper was admitted to WMC, and that the failure to follow the statutory notice
procedures was fatal to WMC's claim for payment.
when Cooper was admitted to WMC, and that the failure to follow the statutory notice
procedures was fatal to WMC's claim for payment. Also, Churchill County stated that
payment was denied because it could not determine Cooper's eligibility for assistance. WMC
filed a complaint against Cooper and Churchill County on April 11, 1990, seeking monetary
damages pursuant to NRS 428.010,
1
428.015,
2
428.020(2),
3
439B.330(4) and (5),
4
and
450.400.
5
On May 15, 1990, WMC filed a motion for summary judgment. On January 7,
1991, Churchill County filed a motion for summary judgment.
__________

1
NRS 428.010(1) provides in part:
[E]very county shall provide care, support and relief to the poor, indigent, incompetent and those
incapacitated by age, disease or accident, lawfully resident therein, when those persons are not supported
or relieved by their relatives or guardians, by their own means, or by state hospitals, or other state, federal
or private institutions or agencies.

2
NRS 428.015 establishes standards of eligibility for medical and financial assistance and defines
emergency care and medically necessary care.

3
The county of residence of a person placed in institutional care is the county of residence of that
person before he was placed in institutional care.

4
NRS 439B.330(4) and (5) provide, in part, as follows:
4. The county which receives a discharge form from a hospital for an indigent inpatient shall verify
the status of the patient and the amount which the hospital is entitled to receive.
5. [I]f the county is the county of residence of the patient and the patient is indigent, the county shall
pay to the hospital the amount required.

5
1. When the privileges and use of the hospital are extended to a resident of another county who is
reasonably believed to be indigent, as defined in NRS 439B.310, and who is:
(a) Entitled under the laws of this state to relief, support, care, nursing, medicine or medical or
surgical aid from the other county; or
(b) Injured, maimed or falls sick in the other county,
the governing head shall notify the board of county commissioners of that county within 3 working days
after the person is admitted to that hospital.
2. The notice must be in writing and addressed to the board of county commissioners of that county.
3. Except in the case of an injury suffered in a motor vehicle accident, the board of county
commissioners receiving the notice shall cause the person to be removed immediately to that county, and
shall pay a reasonable sum to the hospital for the temporary occupancy, care, nursing, medicine, and
attendance, other than medical or surgical attendance, furnished to him.
4. If the board of county commissioners neglects or refuses to remove the person, or if in the opinion
of the attending physician it is not advisable to remove the person, the governing head has a legal claim
against the county for all charges for occupancy, nursing, care, medicine, and attendance, other than
medical or surgical attendance, necessarily furnished, and may recover those charges in a suit at law.
a motion for summary judgment. The district court conducted a hearing on February 26,
1991, on the motions for summary judgment. On April 17, 1991, the district court found that
WMC's notice was fatally defective and granted Churchill County's motion for summary
judgment.
[Headnotes 1, 2]
A district court may properly grant summary judgment when no genuine issue of material
fact exists and the moving party is entitled to judgment as a matter of law. Charlie Brown
Constr. Co. v. Boulder City, 106 Nev. 497, 499, 797 P.2d 946, 947 (1990). As we stated in
Sawyer v. Sugarless Shops, 106 Nev. 265, 267-68, 792 P.2d 14, 15 (1990) (all of the
non-movant's factual statements must be accepted as true), summary judgment is foreclosed
when there is the slightest doubt as to the operative facts.
[Headnotes 3, 4]
Using a strict application of NRS 450.400, the district court granted summary judgment on
the issue of notice. Although the statute requires notice to the board of county commissioners,
WMC's notice was sent to the county clerk; however, WMC argues that actual notice should
be sufficient to meet statutory requirements. In Washoe Medical Center v. Lyon County, 107
Nev. 493, 813 P.2d 1008 (1991), in which the hospital also sent notice of indigency to a
county clerk, this court concluded that actual notice would satisfy the requirements of NRS
450.400. This court further stated that:
The purpose of the notice requirement is to enable the commissioners of the resident
county to remove a patient to the local hospital so that the hospitalized person is closer
to her family and friends, and so that local facilities are utilized. . . . Actual notice
fulfills all of the purposes of the notice requirement.
Id. at 494, 813 P.2d at 1009 (citations omitted). Thus, if the board of county commissioners
received actual notice of Cooper's hospitalization, we conclude that such notice would be
sufficient to satisfy the purpose and requirements of the statute. Since the district court erred
in its application of NRS 450.400 to these facts, and because the record does not indicate
whether the board of county commissioners received actual notice, we reverse and remand for
a finding on that issue.
The district court made no finding as to whether Cooper is an indigent person under NRS
450.400.
6
See Nye County v. Washoe Medical Center, 10S Nev. 490, 492
__________

6
Cooper's indigency is a question of fact. When admitted to WMC, he was unemployed and had no health
insurance. However, the Churchill County Assessor's records indicate that he has acquired ownership of a
mobile home since his hospitalization.
Medical Center, 108 Nev. 490, 492, 835 P.2d 780, 781 (1982) (under Nevada's statutory
scheme, indigency is a prerequisite to a county's obligation to provide charitable medical
aid). If WMC satisfied the notice requirements under either NRS 450.400 or 439B.300 and
Cooper is found to be indigent, WMC is entitled to have Churchill County pay Cooper's
medical bill. We therefore reverse and remand for a determination of whether Cooper is in
fact indigent.
We disagree with WMC's remaining contention that it had an alternative claim pursuant to
NRS 439B.300 through NRS 439B.340. See Washoe Medical Center v. Lyon County, 107
Nev. 493, 495 n.3, 813 P.2d 1008, 1010 n.3 (1991) ([w]e are not persuaded that the
procedure in NRS 439B.330(3) serves to rescind the more precise requirement in NRS
450.400).
For the reasons specified above, we reverse the order granting summary judgment and
remand this matter to the district court for further proceedings consistent with this opinion.
____________
108 Nev. 626, 626 (1992) State of Nevada v. Father Richard
THE STATE OF NEVADA and LAS VEGAS METROPOLITAN POLICE DEPARTMENT,
Appellants, v. FATHER ALAIN RICHARD, O.F.M., BROTHER HARRY VASILE,
O.F.M., BROTHER GARY SPONNHOLZ, O.F.M., MICHAEL F. RADDING,
WILLIAM WILMERS, ANN KENNAN, MICKEY KENNAN and KELLY
KENNAN, a Minor, by and Through His Parent and Next Friend MICKEY
KENNAN, Respondents.
No. 22109
August 20, 1992 836 P.2d 622
Certified questions pursuant to NRAP 5. United States District Court, District of Nevada;
Howard D. McKibben, District Judge.
The United States District Court for the District of Nevada certified questions to the
Supreme Court of Nevada regarding constitutionality of Nevada and Las Vegas loitering
laws. The supreme court held that the provisions criminalizing loitering on private property
when the person has no lawful business with owner or occupant thereof lacked articulable
standards and failed to provide law enforcement officials with proper guidelines to avoid
arbitrary and discriminatory enforcement and are unconstitutionally vague under due process
clauses of federal and state constitutions.
Questions answered.
Frankie Sue Del Papa, Attorney General, David Sarnowski, Deputy Attorney General,
Carson City; Rex Bell, District Attorney, Mary-Anne Miller, Deputy District Attorney, Clark
County; Roy A. Woofter, City Attorney, Las Vegas, for Appellants.
George Rudiak, Michael V. Stuhff, Susan Quig-Terry, Las Vegas, for Respondents.
1. Constitutional Law; Vagrancy.
Nevada statute and Las Vegas Municipal Code provisions criminalizing loitering on private property when the person has no
lawful business with owner or occupant thereof lacked articulable standards and failed to provide law enforcement officials with
proper guidelines to avoid arbitrary and discriminatory enforcement and are unconstitutionally vague under due process clauses of
federal and state constitutions. NRS 207.030, 207.030(1)(i); U.S.C.A.Const. amend. 14.
2. Vagrancy.
Vagrants may not be punished for being vagrants; only persons who commit culpable acts are liable for criminal sanctions. NRS
207.030, 207.030(1)(i).
3. Criminal Law.
Vague law is one that fails to provide persons of ordinary intelligence with fair notice of what conduct is prohibited and fails to
provide law enforcement officials with adequate guidelines to prevent discriminatory enforcement.
OPINION
Per Curiam:
[Headnote 1]
The respondents, four homeless persons and four advocates for the rights of the homeless,
brought suit in the United States District Court, District of Nevada, challenging the
constitutionality of certain state and municipal loitering laws, including NRS 207.030(1)(i)
1
and Las Vegas Municipal Code sections 10.74.010 and 10.74.020.
2
The respondents claimed
that the law and ordinance are facially void because they are unconstitutionally vague and
overbroad.
__________

1
NRS 207.030, entitled VAGRANTS, provides in part:
1. Every person who:
. . . .
(i) Loiters, prowls or wanders upon the private property of another, without visible or lawful business
with the owner or occupant thereof
. . . .
. . . .
is a vagrant.
2. Every vagrant shall be punished:
. . . .
(d) For a violation of any provision of paragraphs (d) to (j) . . . of subsection 1, for a misdemeanor.

2
LVMC 10.74.010 provides:
It is unlawful for any person to loiter or prowl upon the private
nance are facially void because they are unconstitutionally vague and overbroad.
Subsequently, pursuant to NRAP 5,
3
the United States District Court certified the issue of
the constitutionality of the state statute and the municipal codes to this court. After reviewing
the laws in question, we conclude that the challenged provisions of both the Nevada statute
and the Las Vegas Municipal Code are unconstitutionally vague.
[Headnote 2]
Initially, we note that criminal statutes are designed to punish persons because they have
committed specific prohibited acts. Traditional vagrancy laws, however, have sought to
punish persons based on their status as vagrants, and not merely for culpable acts. See, e.g.,
Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Fenster v. Leary, 229 N.E.2d 426
(N.Y. 1967). As a remnant of these traditional status-based laws, the Nevada vagrancy statute
retains language that ostensibly punishes persons because they are vagrants. Specifically,
subsection (1) of NRS 207.030 lists certain acts and character traits which define a person as
a vagrant; subsection (2) states that [e]very vagrant shall be punished.
4
Vagrants may not
be punished for being vagrants; only persons who commit culpable acts are liable for criminal
sanctions.
5
[Headnote 3]
[Headnote 3]
__________
property of another without lawful business with the owner or occupant thereof.
LVMC 10.74.020 provides:
Among the circumstances which may be considered in determining whether or not a person who
loiters or prowls upon the private property of another has lawful business with the owner or occupant
thereof is the fact that such a person takes flight upon the appearance of a police officer or endeavors to
conceal himself or any object.

3
NRAP 5 provides in part:
The Supreme Court may answer questions of law certified to it by the Supreme Court of the United
States, a Court of Appeals of the United States, or of the District of Columbia, or a United States District
Court, when requested by the certifying court, if there are involved in any proceeding before those courts
questions of law of this state which may be determinative of the cause then pending in the certifying court
and as to which it appears to the certifying court there is no controlling precedent in the decisions of the
supreme court of this state.

4
See supra, note 1.

5
We also note that by retaining the concept of vagrancy, the Nevada statute, and others like it, remain rooted
in the poor laws of Elizabethan England and thus reflect an antiquated view of society. Commenting on the poor
laws, Caleb Foote explains that they were enacted to confine those unable to work to their own parish; if they
wandered they were liable to punishment and compulsory removal to the parish that was legally bound to
support them. Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U.Pa.L.Rev. 603, 615-17 (1956).
Recognizing the outmoded nature of such laws, some jurisdictions have
[Headnote 3]
Aside from its language prescribing punishment for being a vagrant, NRS 207.030 is
unenforceable because it is unconstitutionally vague, as are Las Vegas Municipal Code
sections 10.74.010 and 10.74.020. A vague law is one which fails to provide persons of
ordinary intelligence with fair notice of what conduct is prohibited and also fails to provide
law enforcement officials with adequate guidelines to prevent discriminatory enforcement.
Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Lanzetta v. New Jersey, 306 U.S.
451 (1938); Eaves v. Board of Clark Co. Comm'rs, 96 Nev. 921, 620 P.2d 1248 (1980). In
this case, the Nevada laws criminalize loitering on private property when an individual has
no lawful business with the owner or occupant thereof. We conclude that this language is
inadequate to inform the public of what conduct is prohibited. References to loitering and
lawful business fail to provide sufficient notice of when stepping onto private property will
subject an individual to arrest. Under these laws, an individual must necessarily guess as to
when an innocent stroll becomes a criminal loitering.
Because they lack articulable standards, these laws fail to provide law enforcement
officials with proper guidelines to avoid arbitrary and discriminatory enforcement. We
conclude that the challenged provisions of the Nevada vagrancy statute and the Las Vegas
Municipal Codes are vague and therefore unconstitutional under the due process clauses of
the federal and state constitutions.
____________
108 Nev. 629, 629 (1992) In re Stuhff
In re Discipline of MICHAEL V. STUHFF.
No. 21810
August 20, 1992 837 P.2d 853
Automatic appeal from a decision of the Southern Nevada Disciplinary Board of the State
Bar of Nevada.
On automatic appeal from decision of Disciplinary Board suspending attorney for six
months for personally serving judge trying client's criminal case with judicial complaint,
the supreme court held that such conduct warrants fine and public reprimand rather than
suspension.
__________
repealed their vagrancy statutes and replaced them with laws which exclude all references to vagrancy or
vagrants. See, e.g., People v. Weger, 59 Cal.Rptr. 661 (Cal.Ct.App. 1967) (explaining that California enacted
disorderly conduct laws specifically to replace its vagrancy laws); Gary v. Dubin & Richard H. Robinson, The
Vagrancy Concept Reconsidered: Problems and Abuses of Status Criminality, 37 N.Y.U.L.Rev. 102, 135
(1962) (noting that Illinois enacted legislation which eliminated the vagrancy concept and imposed sanctions
which would apply only where there is clear and definite proof of the commission of specific criminal acts).
108 Nev. 629, 630 (1992) In re Stuhff
trying client's criminal case with judicial complaint, the supreme court held that such conduct
warrants fine and public reprimand rather than suspension.
Reversed in part; modified and affirmed in part.
Potter Law Offices, Las Vegas, for Appellant.
Dennis L. Kennedy, Chairman, Southern Nevada Disciplinary Board, James Mancuso,
Sheldon A. Breskow, Bar Counsel and Rosalie Small, Executive Director, State Bar of
Nevada, Las Vegas, for Respondent.
Kevin M. Kelly, Las Vegas, for Amicus Curiae, Nevada Attorneys for Criminal Justice.
Though persuasive, Disciplinary Board's findings and recommendations are not binding on supreme court; court must review the
record de novo and exercise its independent judgment to determine whether and what type of discipline is warranted.
Rule of professional conduct which prohibits advocate from disrupting tribunal does not apply to conduct that occurs outside that
tribunal. SCR 174, subd. 3.
Rule of professional conduct prohibiting conduct intended to subvert and prejudice administration of justice applies to
out-of-court conduct which interferes with court proceedings. SCR 203, subd. 4.
Personally serving judge with judicial compliant after trial but before sentencing in client's criminal case warrants reprimand and
fine rather than suspension. SCR 203, subd. 4.
In determining questions of fact, higher degree of proof is required in disciplinary matters than in ordinary civil proceedings;
standard is whether findings are supported by clear and convincing evidence. SCR 105, subd. 2(e).
6. Evidence.
To be clear and convincing, evidence supporting a finding need not possess such a degree of force as to be irresistible, but there
must be evidence of tangible facts from which legitimate inferences may be drawn.
Void for vagueness doctrine is concerned with right to fair notice and adequate warning that conduct runs afoul of the law; further,
in determining sufficiency of notice, statute must be examined in light of conduct it prohibits.
Rule of professional conduct prohibiting conduct which is prejudicial to administration of justice adequately notifies attorneys of
conduct prohibited. SCR 203, subd. 4.
108 Nev. 629, 631 (1992) In re Stuhff
OPINION
Per Curiam:
Appellant, an attorney with many years of experience, represented Walter Crutchfield,
who, in May 1986, was indicted on controlled substance and racketeering charges.
1
Crutchfield was tried before District Court Judge Stephen Huffaker beginning on December
5, 1988.
During the trial, appellant and Judge Huffaker clashed repeatedly. According to appellant,
Judge Huffaker exhibited hostility and contempt toward the defense team. By the end of trial,
appellant concluded that Judge Huffaker's behavior violated the Nevada Code of Judicial
Conduct. From Judge Huffaker's perspective, however, appellant attempted to control the
Court and refused to abide by the court's rulings.
On December 16, 1988, the jury found Crutchfield guilty of four counts of controlled
substance violations and one related racketeering charge. Judge Huffaker scheduled
sentencing for January 26, 1989. Because of the seriousness of the charges against him,
Crutchfield faced a potential prison sentence of thirty to forty years. The likelihood of a
lengthy prison sentence was especially great since Judge Huffaker had presided over the trial
and was thoroughly familiar with the seriousness of Crutchfield's drug offenses.
Shortly after the jury returned its verdict, Crutchfield retained attorney William Terry
(Terry) to assist appellant in handling Crutchfield's sentencing and appeal. On January 18,
1989, appellant and Terry made a joint petition to the court for a new trial.
In the meantime, appellant's attorney-client relationship with Crutchfield began to
deteriorate. Crutchfield accused appellant of stealing $10,000.00 which was to have been
deposited in appellant's client trust account. As a result of this dispute (which was ultimately
resolved in appellant's favor), appellant filed a motion to withdraw as Crutchfield's counsel
on January 20, 1989. Judge Huffaker scheduled a hearing on the motion for January 31, 1989.
On January 24, 1989, appellant filed a complaint with the Nevada Commission on Judicial
Discipline, alleging that Judge Huffaker had committed misconduct during Crutchfield's trial.
On the afternoon of the next day, appellant served a copy of his complaint on Judge Huffaker.
Because of appellant's allegations and the resultant foundation for a claim of judicial bias
against appellant and, by extension, his client Crutchfield, Judge Huffaker concluded he
had an ethical obligation to recuse himself.2
__________

1
Appellant has been licensed to practice in Utah since 1973, Arizona since 1975, and Nevada since 1985.
108 Nev. 629, 632 (1992) In re Stuhff
appellant and, by extension, his client Crutchfield, Judge Huffaker concluded he had an
ethical obligation to recuse himself.
2

On January 26, 1989, Crutchfield, appellant and Terry appeared before Judge Huffaker for
the scheduled sentencing. Judge Huffaker, however, did not sentence Crutchfield that day.
Instead, he heard and granted appellant's motion to withdraw, and he continued Crutchfield's
sentencing to February 14, 1989.
On February 14, 1989, with appellant withdrawn and Terry serving as Crutchfield's
counsel, Judge Huffaker recused himself because of appellant's complaint. The prosecutor
considered this development problematic because he feared that any substitute judge would
neither understand nor appreciate the complexity and seriousness of Crutchfield's crimes.
Nevertheless, the case was turned over to another district court judge, who subsequently
sentenced Crutchfield to concurrent terms of ten, ten, three and three years, much less than
the maximum sentence he could have received.
On October 24, 1989, Judge Huffaker lodged a complaint against appellant with the
Southern Nevada Disciplinary Board (the Board). Following the State Bar Counsel's
investigation and a Screening Panel review, appellant was charged with violating SCR 174(3)
and SCR 203(4).
A hearing was held before a five-member panel of the Board on October 25, 1990. Judge
Huffaker, appellant, Terry, and the prosecutor of Crutchfield testified at this hearing. On
January 4, 1991, the Board submitted findings of fact and conclusions of law. The Board
found clear and convincing evidence that appellant had violated SCR 174(3) and SCR 203(4).
The Board recommended that appellant be suspended for six months from the practice of law,
that he retake and pass the ethics portion of the Nevada Bar Examination during the period of
his suspension, that he provide Judge Huffaker with a private apology and that he be required
to pay the costs and expenses of the disciplinary proceedings. This automatic appeal
followed.
DISCUSSION
I. SCR 174(3) and SCR 203(4)
SCR 174(3) forbids a lawyer from engaging in conduct intended to disrupt a tribunal.
SCR 203(4) provides that it is professional misconduct for a lawyer to [e]ngage in conduct
that is prejudicial to the administration of justice.
__________

2
Judge Huffaker testified that I felt like I couldn't go ahead with the sentencing because it would then be
inferred that I was not impartial with the sentencing. Had Judge Huffaker gone ahead and sentenced
Crutchfield, it seems certain that, on appeal, Crutchfield would have challenged the sentencing based on Judge
Huffaker's alleged partiality.
108 Nev. 629, 633 (1992) In re Stuhff
[Headnote 1]
Though persuasive, the Board's findings and recommendations are not binding on this
court. This court must review the record de novo and exercise its independent judgment to
determine whether and what type of discipline is warranted. State Bar of Nevada v.
Claiborne, 104 Nev. 115, 126, 756 P.2d 464, 471 (1988).
[Headnote 2]
Appellant first argues that SCR 174(3) does not cover his alleged misconduct. According
to appellant, one cannot disrupt a tribunal with conduct that occurs outside that tribunal; SCR
174(3), he asserts, only applies where actual physical or verbal disruption in the courtroom
occurs.
[Headnote 3]
We find appellant's argument persuasive. The Official Comment to ABA Model Rule of
Professional Conduct 3.5(c), upon which SCR 174(3) is based, states:
[2] The advocate's function is to present evidence and argument so that the cause may
be decided according to law. Refraining from abusive or obstreperous conduct is a
corollary of the advocate's right to speak on behalf of litigants. A lawyer may stand firm
against abuse by a judge but should avoid reciprocation; the judge's default is no
justification for similar dereliction by an advocate. An advocate can present the cause,
protect the record for subsequent review and preserve professional integrity by patient
firmness no less effectively than by belligerence or theatrics.
The language above strongly suggests that SCR 174(3) is designed to guard against in-court
disruption of an ongoing proceeding. A typical example of such disruption can be found in
State ex rel. Okl. Bar Ass'n v. Whiteley, 792 P.2d 1174 (Okl. 1990), in which the court found
that an attorney's combative and disruptive in-court demand for an immediate hearing before
a judge on a petition for a writ of habeas corpus constituted conduct intended to disrupt a
tribunal. Appellant's conduct in serving Judge Huffaker with a copy of the judicial complaint
is more appropriately classified as conduct intended to subvert and prejudice the
administration of justice, which is covered by SCR 203(4).
Appellant next contends that his conduct simply did not prejudice the administration of
justice. We disagree.
[Headnote 4]
SCR 203(4) is modeled on MRPC 8.4(d). Courts that have considered MRPC 8.4(d) have
concluded that conduct that intentionally interferes with the criminal justice and civil
litigation processes generally is prejudicial to the administration of justice. See, e.g., In re
Stanley, 507 A.2d 116S {N.J. 19S6); In re Keiler, 3S0 A.2d 119 {D.C. 1977).
108 Nev. 629, 634 (1992) In re Stuhff
tionally interferes with the criminal justice and civil litigation processes generally is
prejudicial to the administration of justice. See, e.g., In re Stanley, 507 A.2d 1168 (N.J.
1986); In re Keiler, 380 A.2d 119 (D.C. 1977). The Supreme Court of Oregon has interpreted
the word prejudice in the context of this rule to require either repeated conduct causing
some harm to the administration of justice or a single act causing substantial harm to the
administration of justice.
3
In re Haws, 801 P.2d 818, 823 (Or. 1990) (emphasis added).
Applying these interpretations, we conclude that appellant's conduct prejudiced the
administration of justice. As the Board correctly found, serving a copy of the complaint on
Judge Huffaker had the following prejudicial impact:
[Crutchfield's] sentencing was continued and eventually turned over to another judge
who was unfamiliar with the case, with the resultant effect that dockets had to be
rearranged, unnecessary delay was injected into the proceedings and additional time and
resources were expended. Furthermore, the delay conceivably encroached upon
Crutchfield's Sixth Amendment rights to a speedy trial, [citation ommitted]. [sic] and
his rights under N.R.S. 175.015(1) to sentencing without unreasonable delay.
Appellant next contends that his conduct worked no prejudice because it did not require
Judge Huffaker to recuse himself. According to appellant, the prejudice resulted from Judge
Huffaker's mistaken belief that he had to disqualify himself. This argument, too, lacks merit.
NRS 1.230(3) allows a judge, upon his own motion, to disqualify himself from acting in any
matter upon the ground of actual or implied bias. In our view, Judge Huffaker appropriately
disqualified himself to avoid a charge of bias.
Finally, appellant contends that there is no evidentiary basis for the Board's conclusion that
he knowingly and intentionally prejudiced the administration of justice in Crutchfield's case.
According to appellant, he served a copy of the complaint on Judge Huffaker out of moral
obligation and professional courtesy. We are not persuaded by appellant's position.
[Headnotes 5, 6]
In determining questions of fact, a higher degree of proof is required in disciplinary
matters than in ordinary civil proceedings.
__________

3
Appellant cites Disciplinary Proceeding Against Curran, 801 P.2d 962 (Wash. 1990), where the
Washington Supreme Court held that MRPC 8.4(d) only extends to violations of practice norms and physical
interference with the administration of justice. This view, however, appears to be the minority position on this
issue.
108 Nev. 629, 635 (1992) In re Stuhff
ings. In re Miller, 87 Nev. 65, 72, 482 P.2d 326, 330 (1971). The standard is whether the
findings are supported by clear and convincing evidence. SCR 105(2)(e); Gentile v. State Bar,
106 Nev. 60, 62, 787 P.2d 386, 387 (1990). To be clear and convincing, evidence need not
possess such a degree of force as to be irresistible, but there must be evidence of tangible
facts from which a legitimate inference . . . may be drawn. Gruber v. Baker, 20 Nev. 453,
477, 23 P. 858, 865 (1890).
In light of the equivocal nature of appellant's testimony and the legitimate inferences
drawn from the evidence, we believe that clear and convincing evidence supports the Board's
finding that appellant violated SCR 203(4). First, appellant testified before the Board that
Judge Huffaker's conduct was insulting and prejudicial to Crutchfield's right to a fair trial. He
also testified that he felt that filing a complaint might stop Judge Huffaker from trying or
sentencing others. In appellant's words:
I didn't think he should have tried Mr. Crutchfield or anyone else and from what I've
seen of Judge Huffaker I did not think that he should act as a judge in a criminal case.
. . . .
I had a lot of thought about what my complaint would do to the administration of
justice and that is the reason that I worked as hard as I could to put that together
because I was aware that Judge Huffaker as a sitting judge, had other cases and I
thought that if there's a gentleman who is sitting on a bench who has the attitude that
Judge Huffaker has, that he's going to cause damage to other people.
. . . .
I felt, however, it was extremely important that the concerns that I had about that judge
be brought to the attention of the Judicial Ethics Commission and I did that.
Second, despite appellant's apparent eagerness to bring Judge Huffaker's conduct to the
attention of the Nevada Commission on Judicial Discipline and his concerns about fairness
for the Crutchfield trial and other criminal matters assigned to Judge Huffaker, appellant
waited more than five weeks before he filed and served his complaint. Judge Huffaker's
alleged misconduct occurred prior to December 18, 1988; appellant filed his complaint on
January 24, 1989. Appellant asserts that he was busy with other matters during this five-week
period, but this assertion is contradicted by his testimony concerning the urgency of his
complaint against Judge Huffaker and the fact that the complaint consisted merely of a
three-page argument and a one-page verification. Also damning is appellant's failure to
explain why, given that he had waited five weeks, he did not wait until after Crutchfield's
sentencing to file his complaint.
108 Nev. 629, 636 (1992) In re Stuhff
Third, despite appellant's testimony that, because of his motion to withdraw, he believed
he would no longer be involved with the Crutchfield matter after January 26, 1989, and that
therefore he could not have anticipated that his complaint would be prejudicial, the evidence
presented at the Board suggests otherwise. More importantly, though appellant's motion to
withdraw was heard and decided on January 26, 1989 (the original date set for sentencing),
the motion was originally scheduled to be heard on January 31, 1989. Thus, when appellant
filed his complaint and served a copy on Judge Huffaker, he was still Crutchfield's counsel of
record and had no reason to believe that he would be dismissed from the case at the
sentencing hearing on January 26, 1989.
Fourth, appellant's testimony regarding his knowledge of the procedures and rules
governing the filing of his complaint is entirely unconvincing. Appellant, an attorney of many
years experience, testified that he obtained and reviewed a copy of these procedures and rules.
Rules 12 and 14, within the subsection of the Nevada Supreme Court Rules titled
Administrative and Procedural Rules for the Nevada Commission on Judicial Discipline,
clearly provide that a grievance against a judge is initiated by filing an initial complaint.
Nothing in either rule requires notice; in fact, they implicitly forbid it. Additionally, Rule 5 of
this subsection provides that [a]ll proceedings must be confidential until there has been a
determination of probable cause and filing of formal statements of charges. Given that
appellant, an experienced attorney, read the rules, filed a verified complaint as required by
Rule 12.1 and was aware of the confidentiality requirements, it is a reasonable inference, and
one supported by the evidence, that appellant knew that personal service on Judge Huffaker
was forbidden and potentially disruptive.
Finally, appellant challenges the Board's finding that he violated SCR 203(4). He first
argues that SCR 203(4) is void-for-vagueness because it did not provide adequate notice that
his actions were subject to discipline.
[Headnotes 7, 8]
The void-for-vagueness doctrine is concerned with a defendant's right to fair notice and
adequate warning that his conduct runs afoul of the law. See, e.g., Gentile v. State Bar of
Nevada,
------
U.S.
------
, 111 S.Ct. 2720 (1991); Smith v. Goguen, 415 U.S. 566 (1974).
Further, [i]n determining the sufficiency of the notice a statute must of necessity be
examined in the light of the conduct with which a defendant is charged. United States v.
National Dairy Products Corp., 372 U.S. 29, 33 (1963). Appellant is an experienced attorney,
and he admitted having researched our relevant rules prior to bringing his complaint
against Judge Huffaker.
108 Nev. 629, 637 (1992) In re Stuhff
researched our relevant rules prior to bringing his complaint against Judge Huffaker. In our
opinion, appellant must have known that serving Judge Huffaker with a copy of the complaint
would be prejudicial to the administration of justice in Crutchfield's case.
We also reject appellant's other constitutional challenges as lacking merit under either the
federal or Nevada constitutions.
II. Appellant's six-month suspension
Amicus, Nevada Attorneys for Criminal Justice, contends that the recommended
six-month suspension is excessive given appellant's misconduct and the sanctions imposed by
this court in prior cases involving more serious violations. With some reluctance, we agree. In
our view, given the fact that this appears to be the first time this type of ethical violation has
been brought to our attention, justice will be served by imposing a less severe sanction. In
doing so, however, we recognized the seriousness of appellant's conduct and strongly suggest
vigilance among members of the bar to carefully avoid a repetition of such conduct. Having
concluded that the discipline recommended by the Board is not warranted, see Claiborne, 104
Nev. at 126, 756 P.2d at 471, we reduce appellant's punishment to a $5,000.00 fine and a
public reprimand. See SCR 102(5). Accordingly, we hereby order that a public reprimand
issue against appellant.
____________
108 Nev. 638, 638 (1992) Nevada Power v. Flour Illinois
NEVADA POWER COMPANY, a Nevada Corporation, CALIFORNIA DEPARTMENT OF
WATER RESOURCES, an Agency of the State of California; DRAKE DeLANOY,
H. ROGER McPIKE and PAUL ACKER, Appellants, v. FLUOR ILLINOIS, an
Illinois Corporation and Successor in Interest to FLUOR POWER SERVICES, INC.;
BOECON CORPORATION, a Washington Corporation; BE&C ENGINEERING,
INC., a Delaware Corporation; LAS VEGAS BUILDING MATERIALS, a Nevada
Corporation; NEVADA TESTING LABORATORIES, INC., a Nevada Corporation;
WESTERN TECHNOLOGIES, INC., an Arizona Corporation; PITTSBURGH
TESTING LABORATORY, a Pennsylvania Corporation; RON LEWIS
CONSTRUCTION COMPANY, a Nevada Proprietorship; and CERAMIC
COOLING TOWER COMPANY, Respondents.
No. 21524
August 20, 1992 837 P.2d 1354
Appeal from a district court order dismissing a civil action with prejudice and awarding
respondents attorney's fees and costs and a subsequent judgment setting these fees and costs
at more than $5,200,000.00. Eighth Judicial District Court, Clark County; Earle W. White,
Jr., Judge.
After determining that plaintiffs had violated discovery order, the district court entered
order dismissing plaintiff's action with prejudice and judgment awarding defendants attorney
fees and costs at more than $5,200,000. Plaintiffs appealed. The supreme court held that: (1)
district court was required to hold evidentiary hearing before dismissing claim with prejudice
as sanction for violating discovery order, and (2) district court could only award
non-offending party attorney fees caused by discovery abuse.
Appellant Nevada Power Company and Appellant-Attorneys DeLanoy, McPike and Acker.
Guild and Hagen, Reno; Pillsbury, Madison & Sutro and Edward Wayne LeBaron, Jr.,
Robert Westberg, Sacramento, California, for Appellant California Department of Water
Resources.
Vargas & Bartlett and Thomas Kummer, Gerald Waite, Las Vegas, for Respondent
Western Technologies, Inc.
Schreck, Jones, Bernhard, Woloson & Godfrey and L. T. Jones, Lance C. Earl, Las Vegas;
Paul, Hastings, Janofsky & Walker and David B. Harriman, Jack Gould, Earl M. Benjamin,
Los Angeles, California, for Respondent Las Vegas Building Materials.
Keefer, O'Reilly, Ferrario & Eskin and Mark E. Ferrario, Kevin E. Helm, Harry R.
Gensler, Las Vegas, for Respondent Fluor Illinois and Fluor Power Services, Inc.
J. MacArthur Wright, Mesquite; Gallian & Westfall and Jeffrey Wilcox, St. George, Utah,
for Respondent Pittsburgh Testing Laboratory.
Clark, Greene, Mainor & Associates and Wesley F. Yamashita, Las Vegas, for Respondent
Ron Lewis Construction.
Jones, Jones, Close & Brown and Kirk R. Harrison, Las Vegas; Pettit & Martin and
Robert B. Thum, Stephen J. Fowler, San Francisco, California, for Respondent Boecon
Corporation and BE&C Engineering, Inc.
Thorndal, Backus, Maupin & Armstrong and Leland E. Backus, Nancy M. Somer, Las
Vegas, for Respondent Ceramic Cooling Tower Company.
Although discovery sanctions are within power of district court and supreme court will not reverse particular sanctions imposed
absent showing of abuse of discretion, where sanction of dismissal with prejudice has been imposed, a somewhat heightened standard
of review applies. NRCP 37(b), (b)(2).
District court abused its discretion in failing to hold evidentiary hearing on factual issues relating to meaning of discovery order
and relating to whether orders had actually been disobeyed before dismissing complaint with prejudice and awarding defendants
attorney fees and costs at more than $5,200,000. NRCP 37(b), (b)(2).
Dismissal for failure to obey discovery order should be used only in extreme situations, and if less drastic sanctions are available,
they should be used. NRCP 37(b), (b)(2).
District court which determines that facially clear discovery order was disobeyed must then give thoughtful consideration to all
pertinent factors affecting decision to impose sanction of dismissal, including willfulness of offending party, severity of sanction
compared with severity of discovery abuse, whether evidence has been irreparably lost, feasibility and fairness of less severe sanctions,
policy favoring adjudication on the merits, whether sanctions unfairly penalize party for misconduct of attorney, and need to
deter similar discovery abuses.
misconduct of attorney, and need to deter similar discovery abuses. NRCP 37(b), (b)(2).
If party against whom dismissal may be imposed as discovery abuse raises question of fact as to any pertinent factors affecting
discretionary decision to impose sanction of dismissal, court must allow parties to address relevant factors in an evidentiary hearing.
NRCP 37(b), (b)(2).
Rule, authorizing court to require party failing to obey discovery order to pay reasonable attorney fees caused by failure to obey,
limited award of attorney fees to those fees caused by alleged failure to obey the particular order in question; court could not order
offending party to pay all of non-offending party's attorney fees. NRCP 37(b), (b)(2).
OPINION
Per Curiam:
This appeal arises from the entry of a district court order and judgment. The order
dismissed with prejudice the civil action of appellants Nevada Power Company (NPC) and
California Department of Water Resources (CDWR), and awarded respondents their
attorneys' fees and costs. In the subsequent judgment, the court ordered NPC and CDWR to
pay the respondents more than 5.2 million dollars in attorneys' fees and costs. On appeal,
NPC and CDWR contend that the district court erred in imposing NRCP 37(b) sanctions
without first holding an evidentiary hearing. We agree.
Factual Background
The underlying action in this case involved an allegedly defective concrete mechanical
draft cooling tower at the Reid Gardner Generating Plant Unit #4, located in Clark County,
Nevada. The Reid Gardner plant generates electric power and is jointly owned by NPC and
CDWR. When the Reid Gardner plant was constructed, the cooling tower was built as an
integral part of the plant.
1
This cooling tower was constructed, tested, engineered, and
designed by respondents.
According to NPC and CDWR, the concrete in the cooling tower began to deteriorate soon
after the cooling tower was put into operation, and the tower had to be taken out of service
after only five years of use. In 1986, NPC and CDWR sued the respondents for breach of
contract, breach of implied and express warranties, negligence, affirmative misrepresentation,
and strict products liability.
2
The parties then proceeded with discovery, which did not
progress smoothly.
__________

1
A cooling tower cools the hot water discharged from boilers and is necessary for a plant like Reid Gardner
to operate.

2
Respondent Boecon joined Ceramic Cooling Tower Company as a third party defendant in March 1989.
which did not progress smoothly. Counsel for NPC and CDWR committed several discovery
abuses for which monetary sanctions were imposed.
Believing that the concrete cooling tower was defective, NPC and CDWR constructed a
wooden cooling tower to replace it. According to NPC, the concrete cooling tower had to be
taken out of service so that a portion of the existing water catchment basin needed to
operate the replacement tower could be connected to the replacement tower. In addition, part
of the concrete tower had to be demolished because its size and location interfered with the
necessary air flow to the replacement tower.
In early March 1988, counsel for NPC and CDWR informed respondents that the concrete
cooling tower would be demolished on or about October 1, 1988. Respondents then filed
motions for an order prohibiting the planned demolition. Subsequently, on September 29,
1988, the district court entered an order establishing an expedited schedule for discovery and
providing that [n]o portion of the cooling tower or cooling tower appurtenances shall be
destroyed, demolished, dismantled, or altered in any way until such time as this court
specifically grants approval of the same.
Then, on December 11, 1988, NPC filed a motion with the district court for partial
demolition of the concrete cooling tower. At the same time, NPC sought a stipulation from all
of the respondents. This stipulation, entered as an order on December 20, 1988, states, in
relevant part:
[NPC] shall, with any necessary leave of court, demolish the southerly four cells of the
cooling tower which is the subject of this dispute any time after February 7, 1989, and
[NPC] anticipate[s] demolition of the remaining three cells during an outage scheduled
for the fall, 1989. [NPC] shall store the demolished material from the cells on the mesa
adjacent to the Reid Gardner Unit No. 4 site. [Respondents] shall have free and
immediate access to the stored material between the hours of 8:00 a.m. and 5:00 p.m., 7
days a week, upon 48 hours notice to [NPC], to conduct any investigation or tests they
deem necessary.
. . . .
Moreover, it is understood by all parties that this Stipulation is entered into for the
purposes of facilitating scheduling of further inspections by the [respondents], and to
permit NEVADA POWER COMPANY to establish a schedule for all necessary work
to demolish the existing cooling tower, and to place the new Reid Gardner Unit No. 4
cooling tower in operation.
NPC and CDWR demolished the first portion of the cooling tower in March 1989 and
stored the demolished material on the mesa as ordered by the district court.
mesa as ordered by the district court. Thereafter, on November 19, 1989, NPC notified
respondents that it intended to demolish the remainder of the tower sometime during the
Spring outage, which would begin on April 1, 1990, and end on May 19, 1990. On April 5,
1990, during a hearing on several discovery motions, the district court and respondents
learned that NPC and CDWR were actually proceeding with the final demolition. The court
then terminated the hearing. After the hearing was terminated, NPC and CDWR continued to
demolish what remained of the cooling tower. The debris was then moved by truck to an
adjacent site and buried under backfill.
On April 6, 1990, respondents filed a joint ex parte application for order to show cause
and motion to dismiss complaint pursuant to NRCP 37(b)(2) and EDCR 7.60. On the same
day, the court issued an order to show cause. In a subsequent brief, respondents contended
that the appellant's misconduct, including the destruction of the tower and various discovery
abuses, justified a finding of contempt and sanctions. Specifically, respondents sought
dismissal of the complaint and an award of attorneys' fees and costs. In support, respondents
attached affidavits describing additional tests and analyses they would have performed if the
remaining portion of the tower had not been demolished and buried.
On April 16, 1990, NPC and CDWR submitted a response to the order to show cause and
an opposition to the motion to dismiss. In these papers and exhibits, NPC and CDWR
disclaimed any intention to disobey willfully the court's orders, proposed alternate sanctions
to dismissal, and requested that the court hold an evidentiary hearing on willfulness and
prejudice.
On May 3, 1990, the court held a hearing on contempt and the motion to dismiss.
Respondents introduced a videotape showing the tower's demolition and argued that the case
should be dismissed. Respondents also relied on their experts' affidavits to demonstrate
irreparable prejudice resulting from the tower's destruction. Counsel for NPC and CDWR
argued that they had interpreted the December 20, 1988, order in good faith as allowing the
demolition and that the respondents had already sufficiently inspected and tested the
demolished tower.
On June 15, 1990, the court entered findings of fact and conclusions of law, including the
following:
(1) Its September 27, 1988 order had not been vacated or modified by the December 20,
1988 order, which gave NPC permission to demolish only four cells, and the order had
been willfully violated;
(2) The tower's destruction and the burial of its remains caused irreparable prejudice to
respondents; {3) Dismissal with prejudice was "the only means to cure the
irreparable prejudice";
(3) Dismissal with prejudice was the only means to cure the irreparable prejudice;
(4) NPC and CDWR are bound by the actions of their attorneys and were cognizant of
all the events, including Court orders, involving the demolition of the cooling tower;
(5) The facts in dispute [were] sufficiently addressed by way of affidavits, documents,
pleadings and argument of counsel. Therefore, an evidentiary hearing would be
cumulative and unnecessary.
On the same day, the court entered a written order in which it found NPC, CDWR and
appellant-attorneys in contempt, dismissed the action, and imposed attorneys' fees and costs
on NPC and CDWR pursuant to NRCP 37(b)(2) and EDCR 7.60. In a subsequent
judgment, the court ordered NPC and CDWR to pay respondents more than $5.2 million in
attorneys' fees and costs.
3

The Sanction of Dismissal
[Headnote 1]
Although the district court found NPC, CDWR, and the appellant-attorneys in contempt,
the court relied on NRCP 37(b)(2)
4
in imposing the sanction of dismissal.
5
Therefore, we
must determine whether the district court erred in dismissing the suit with prejudice
pursuant to NRCP 37{b){2).6 We have held that "[w]here the discovery sanctions are
within the power of the district court, this court will not reverse the particular sanctions
imposed absent a showing of abuse of discretion."
__________

3
According to this judgment, NPC and CDWR are jointly and severally liable for the attorneys' fees and
costs.

4
The court also stated that it was dismissing the complaint with prejudice under EDCR 7.60. We note,
however, that under NRCP 83, district court rules must be consistent with the Nevada Rules of Civil Procedure.
Therefore, EDCR 7.60 cannot exceed the scope of NRCP 37(b).

5
During oral argument, Mark Ferrario, counsel for respondent Fluor Illinois, admitted that the sanctions
were not imposed pursuant to the court's contempt power. Specifically, he stated that:
the sanction was imposed under Rule 37 in conjunction with our motion to dismiss and it was also
imposed as abuse of litigation practices. . . . The dismissal did not come as a result of a civil or criminal
contempt. That is abundantly clear when you review the detailed findings of fact and conclusions of law
that were submitted by the trial court. The court did find them in contempt but when it came time to levy
the ultimate sanction, what the court said was, These parties were in violation of Rule 37 and they also
engaged in a pattern of abusive litigation practices.
In addition, respondents asserted in their joint answering brief that the court relied on NRCP 37(b)(2) in
dismissing the suit. Further, as noted above, respondents filed a joint motion to dismiss complaint pursuant to
NRCP 37(b)(2) and EDCR 7.60. We thus find it unnecessary to determine whether the district court had
authority, under its contempt power, to dismiss the complaint.
suit with prejudice pursuant to NRCP 37(b)(2).
6
We have held that [w]here the discovery
sanctions are within the power of the district court, this court will not reverse the particular
sanctions imposed absent a showing of abuse of discretion. Young v. Johnny Ribeiro Bldg.,
Inc., 106 Nev. 88, 92, 787 P.2d 777, 779 (1990) (citation omitted). Where the sanction of
dismissal with prejudice has been imposed, a somewhat heightened standard of review
should apply. Id. The appellants assert that the district court abused its discretion in
dismissing their suit without holding an evidentiary hearing, and we agree.
Under NRCP 37(b)(2), a party's suit may be dismissed if the party fails to obey an order
to provide or permit discovery.
7
Determining whether a party fail[ed] to obey an order
may, as it does here, involve factual questions as to the meaning of the order allegedly
disobeyed and questions as to whether the disobedient party did, in fact, violate the court's
discovery order. The only way that these questions of fact can be properly decided is by
holding an evidentiary hearing.
[Headnote 2]
In the present case, NPC and CDWR raised questions of fact regarding the meaning of the
court's discovery orders and denied that they had disobeyed the orders. Specifically, they
contended that their counsel, in good faith, interpreted the court's December order as
modifying its September order to mean that the tower could be destroyed any time after
February 7, 1989. In addition, NPC and CDWR asserted that it was necessary for them to
demolish the rest of the cooling tower during an outage; otherwise, the demolition could
cost them $200,000.00 per day for replacement energy.
__________

6
NRCP 37(b)(2) states the following:
(2) Sanctions-Party. If a party . . . fails to obey an order to provide or permit discovery. . .the court in
which the action is pending may make such orders in regard to the failure as are just, and among others
the following:
. . . .
(C) An order . . . dismissing the action or proceeding or any part thereof. . . .;
. . . .
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to
obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney's
fees, caused by the failure, unless the court finds that the failure was substantially justified or that other
circumstances make an award of expenses unjust.

7
As we have recognized in previous cases, NRCP 37 sanctions may also be imposed in situations where the
complaining party has destroyed evidence relating to the lawsuit before filing the suit. See, e.g., Stubli v. Big D
Int'l Trucks, Inc., 107 Nev. 309, 810 P.2d 785 (1991); Fire Ins. Exchange v. Zenith Radio Corp., 103 Nev. 648,
747 P.2d 911 (1987). These cases are based on the premise that litigants should not be able to circumvent the
district court's power to enforce discovery rules by destroying physical evidence prior to a request for
production.
NPC and CDWR asserted that it was necessary for them to demolish the rest of the cooling
tower during an outage; otherwise, the demolition could cost them $200,000.00 per day for
replacement energy. Finally, they noted that they had announced to respondents several
months ahead of time that they planned to destroy the remaining portion of the cooling tower.
We thus conclude that the district court abused its discretion in failing to hold an evidentiary
hearing on factual issues relating to the meaning of the discovery orders and relating to
whether these orders had actually been disobeyed.
[Headnotes 3-5]
Dismissal for failure to obey a discovery order should be used only in extreme situations;
if less drastic sanctions are available, they should be utilized. Moore v. Cherry, 90 Nev. 390,
528 P.2d 1018 (1974). If a district court determines that a facially clear discovery order was
disobeyed, the court must then give thoughtful consideration to all of the pertinent factors
affecting its discretionary decision to impose the sanction of dismissal. Johnny Ribeiro, 106
Nev. at 92, 787 P.2d at 780. These factors include the following:
the degree of willfulness of the offending party, the extent to which the non-offending
party would be prejudiced by a lesser sanction, the severity of the sanction of dismissal
relative to the severity of the discovery abuse, whether any evidence has been
irreparably lost, the feasibility and fairness of alternative, less severe sanctions, the
policy favoring adjudication on the merits, whether sanctions unfairly operate to
penalize a party for the misconduct of his or her attorney, and the need to deter both the
parties and future litigants from similar discovery abuses.
Id. at 93, 787 P.2d at 780. If the party against whom dismissal may be imposed raises a
question of fact as to any of these factors, the court must allow the parties to address the
relevant factors in an evidentiary hearing.
In the present case, the court determined that its December order did not replace its
September order, that the tower's destruction had caused irreparable prejudice which could
not be remedied by any sanction short of dismissal, and that NPC and CDWR had personally
participated in the demolition and were therefore blameworthy. The court also determined
that other remedies were not viable because appellants had demolished the subject matter of
the suit and had thus effectively destroyed defendants'. . . ability to properly prepare their
defense. The district court improperly held that no evidentiary hearing was necessary to
resolve the foregoing determinations. Appellants had no opportunity to present witnesses
or to cross-examine respondents or their experts with regard to any of the above matters.
had no opportunity to present witnesses or to cross-examine respondents or their experts with
regard to any of the above matters. This case was litigated for more than three years before
the cooling tower was completely destroyed. Discovery relating to the condition of the tower
was undertaken by respondents, and respondents inspected the cooling tower at various times
before its destruction. In addition, appellants raised a number of questions of fact regarding
the Johnny Ribeiro factors.
We conclude that the district court abused its discretion in failing to hold an evidentiary
hearing at which appellants could introduce evidence and cross-examine respondents' experts
concerning the meaning of the discovery orders, concerning the issue of whether appellants
disobeyed the discovery orders and concerning the Johnny Ribeiro factors discussed above.
The Sanction of Attorneys' Fees and Costs
Appellants also contend that the district court abused its discretion in awarding
respondents all of their attorneys' fees and costs from the inception of the suit, more than $5.2
million. We agree.
[Headnote 6]
The district court awarded these fees and costs pursuant to NRCP 37(b)(2).
8
NRCP
37(b)(2) provides that the court shall require the party failing to obey the order or the
attorney advising him or both to pay the reasonable expenses, including attorney's fees,
caused by the failure. (Emphasis added.) As discussed above, when a party facing NRCP
37(b)(2) sanctions raises a question of fact with regard to the meaning of a discovery order,
the court must hold an evidentiary hearing to determine what the discovery order means and
whether it has been violated. In addition, federal cases interpreting sanctions under FRCP
37(b)(2) have held that fees and costs imposed as a sanction must specifically relate to the
particular claim at issue in the order. See, e.g., Toth v. Trans World Airlines, Inc., 862 F.2d
1381, 1385-86 (9th Cir. 1988) (holding that to the extent that an award of fees includes fees
not incurred pursuant to the disobedience of a court order, it is an abuse of discretion); United
States v. National Medical Enterprises, Inc., 792 F.2d 906, 910 (9th Cir. 1986) (holding that
sanction must be just and must specifically relate to the particular claim at issue in the
order). We agree with these cases and conclude that NRCP 37(b)(2) limits an award of
attorneys' fees to those incurred because of the alleged failure to obey the particular
order in question.
__________

8
As mentioned above, according to the court's written order, the attorneys' fees and costs were imposed as a
sanction pursuant to NRCP 37(b)(2) and EDCR 7.60. Although the court listed EDCR 7.60 as a basis for the
sanctions, the requirements for the imposition of sanctions under this rule are at least as stringent as the
requirements under NRCP 37(b). See NRCP 83.
award of attorneys' fees to those incurred because of the alleged failure to obey the particular
order in question.
In the present case, sanctions, in the form of all of respondents' attorneys' fees and costs
from the inception of the suit, were imposed on NPC and CDWR because they demolished
the remaining portion of the cooling tower, allegedly in violation of the court's September
order. The court never held an evidentiary hearing to determine the meaning of its September
order in light of its stipulated December order; and, instead of determining what fees and
costs were actually caused by the destruction of the remaining portion of the cooling tower,
the court summarily ordered NPC and CDWR to pay the entire amount of the attorneys' fees
and costs incurred by respondents. It is difficult for us to understand how the appellants'
alleged violation caused all of these fees and costs. We thus conclude that the district court
abused its discretion in awarding all attorneys' fees and costs; instead, under NRCP 37(b)(2),
a district court should, if it properly finds that a party has violated a discovery order,
determine only those fees and costs associated with the violation of the discovery order.
9

For the reasons given above, we reverse the order and judgment of the district court and
remand this case to the Eighth Judicial District Court for an evidentiary hearing consistent
with this opinion.
__________

9
Respondents claim that the award of all attorneys' fees and costs from the inception of the suit can be
justified by the court's inherent power to sanction bad faith litigation. In the present case, the district court relied
on NRCP 37(b)(2) in imposing the sanctions of attorney's fees and costs. Thus, as the district court relied on
sanctioning mechanisms other than its inherent power, we conclude that it is unnecessary to determine whether
the court could impose such a sanction under its inherent power.
NPC and CDWR assert that the district court erred in imposing such a large sanction on them for the acts of
their attorneys. We disagree with this assertion; for in our system of representative litigation, . . . each party is
deemed bound by the acts of his lawyer-agent, Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962), and a party
cannot avoid the consequences of the acts or omissions of this freely selected agent. Moore v. Cherry, 90 Nev.
390, 395, 528 P.2d 1018, 1072 (1974).
____________
108 Nev. 648, 648 (1992) Mann v. Farmers Insurance Exchange
CAROLYN Y. MANN, Appellant, v. FARMERS INSURANCE EXCHANGE, Respondent.
No. 22609
August 20, 1992 836 P.2d 620
Appeal from a district court order granting a motion to dismiss. Eighth Judicial District
Court, Clark County; Carl J. Christensen, Judge.
Insured filed complaint against automobile insurer, alleging that her damages in accident
exceeded statutory cap and that insurer had in bad faith ignored her demand for underinsured
motorist benefits. The district court granted insurer's motion to dismiss. Insured appealed.
The supreme court held that: (1) exhaustion clause in policy, requiring insurer to exhaust
liability limit of other driver's insurance before she could pursue underinsured motorist
benefits, violated public policy of Nevada, and (2) insurer had prior notice of settlement and
release and could not deny underinsured motorist benefits to insured simply because she
settled and executed release.
Brent E. Leavitt, Las Vegas, for Appellant.
Cobb, Gugino & Williamson, Las Vegas, for Respondent.
1. Insurance.
Exhaustion clause in automobile policy, requiring insurer to exhaust liability limit of other driver's insurance before pursuing
underinsured motorist benefits, violated public policy of Nevada. NRS 687B.145, subd. 2.
2. Insurance.
Insurance carrier cannot deny underinsured motorist benefits if the insured has notified its carrier of the proposed settlement.
OPINION
Per Curiam:
Appellant, Carolyn Mann, was injured in a two-car accident; the other car was driven by a
Las Vegas Metropolitan Police Officer. At the time of the accident, Mann was insured with
respondent Farmers Insurance Exchange. Pursuant to a relevant Nevada statute, Mann could
recover a maximum payment of $50,000.00 from the police officer/department.
Mann settled with the police officer/department for $35,000.00 and executed a release.
Thereafter, she submitted a demand and proof of loss to Farmers in an attempt to recover
underinsured motorist benefits.
motorist benefits. Farmers did not respond to this demand. Mann then filed a complaint
against Farmers, stating that her damages exceeded the $50,000.00 statutory cap and that
Farmers had, in bad faith, ignored her demand. In response to this complaint, Farmers filed a
motion to dismiss; in this motion, Farmers contended that Mann, under the provisions of her
policy, was required to exhaust the liability limit of the police officer/department's insurance
before she could pursue underinsured motorist benefits. Farmers asserted that since Mann had
settled for less than the liability limit, she was not entitled to underinsured motorist benefits.
The district court granted Farmers' motion to dismiss.
[Headnote 1]
On appeal, Mann argues that the district court erred in dismissing her complaint because
her policy's exhaustion clause violates public policy.
1
We agree. According to the terms of
Mann's insurance policy, Mann is required to exhaust the liability limits of any applicable
bonds or policies before Farmers will pay underinsured motorist benefits. Specifically,
Mann's E-Z-Reader policy provides as follows:
Coverage CUninsured Motorist Coverage
(Including Underinsured Motorist Coverage)
We will pay all sums which an insured person is legally entitled to recover as damages
from the owner or operator of an uninsured motor vehicle because of bodily injury
sustained by the insured person.
. . . .
Other Insurance
1. We will pay under this coverage only after the limits of liability under any
applicable bodily injury liability bonds or policies have been exhausted by payments of
judgments or settlements.
2. The amount of Uninsured Motorist Coverage we will pay . . . shall be to the
extent the damages exceed the amount of any other bodily injury coverage
available to any party held to be liable for the accident.
__________

1
Mann also argues that the policy language is vague because it does not specifically state that Mann must
first exhaust the liability policy of the person at fault and does not clearly reference the statutory caps for
self-insured governmental entities that were involved in her case. We conclude, however, that the policy
provisions at issue are sufficiently clear. Insurance policy clauses should be understood in their plain, ordinary
and popular sense. Keener v. C.S.A.A., 107 Nev. 504, 506, 814 P.2d 87, 88 (1991) (citation omitted). In the
present case, Mann's policy unambiguously requires her to exhaust the limits of any applicable bodily injury
liability bonds or policies. In addition, although the policy does not specifically reference legislative caps for
self-insured entities, we conclude that these caps are analogous to policy limits for policy holders and do not
create an ambiguity.
pay . . . shall be to the extent the damages exceed the amount of any other bodily injury
coverage available to any party held to be liable for the accident.
Cases from other jurisdictions have held that exhaustion clauses violate public policy
because they unnecessarily promote litigation costs, increase the number of trials, and
unreasonably delay the recovery of underinsured motorist benefits. Specifically, these cases
point out that an insured may have valid reasons for accepting less than the tortfeasor's policy
limit, that an underinsured motorist carrier can compute its payments to the insured as if the
insured had exhausted the tortfeasor's policy limit, and that if an exhaustion clause is in
effect, the tortfeasor's carrier can force the plaintiff to go to trial by offering less than the
tortfeasor's policy limit, thereby greatly increasing litigation costs and expenses and
promoting delay. See Mulholland v. State Farm Mutual Auto Ins. Co., 527 N.E.2d 29
(Ill.App.Ct. 1988); Schmidt v. Clothier, 338 N.W.2d 256 (Minn. 1983) (superseded by
statute); Longworth v. Van Houten, 538 A.2d 414 (N.J.Super.Ct.App.Div. 1988); Hamilton v.
Farmers Ins. Co. of Washington, 733 P.2d 213 (Wash. 1987).
We conclude that the exhaustion clause in Mann's insurance policy violates public policy.
The Nevada Legislature intended that uninsured and underinsured motorist benefits be
available to Nevada citizens. See NRS 687B.145(2). The damaged insured is placed in a
difficult situation if he or she must forego all settlement offers and go to trial in order to
obtain (or attempt to obtain) compensation up to the tortfeasor's policy limitjust to qualify
for underinsured benefits under his or her own policy. For instance, if an insured covered by a
policy like Mann's were involved in an accident with three other drivers, each of whom was
responsible for the accident to a different extent, the insured would have to exhaust the
liability limits of each tortfeasor's policy before pursuing underinsured motorist benefits.
Thus, in this example, even if one of the drivers was only ten percent at fault, the insured
could not settle with this driver for less than his or her policy limit without giving up
underinsured motorist benefits.
Additionally, if a tortfeasor offers the insured, in good faith, an amount less than the
tortfeasor's policy limit, and the insured has suffered injuries exceeding the tortfeasor's policy
limit, the insured cannot accept this offer, even if it is close to the tortfeasor's policy limit,
unless the insured is willing to forego underinsured motorist benefits. Instead, the insured is
forced to go to trial, and costs are added while payment is delayed. Further, although the
underinsured motorist coverage provider, as a provider of excess coverage, should not have to
duplicate benefits that should have been covered by the tortfeasor's insurer, an
underinsured motorist coverage provider should only pay for whatever damages the
insured suffered beyond the tortfeasor's policy limit.
that should have been covered by the tortfeasor's insurer, an underinsured motorist coverage
provider should only pay for whatever damages the insured suffered beyond the tortfeasor's
policy limit.
Farmers asserts that if this court does conclude that the exhaustion clause violates public
policy, then Mann's underinsured motorist coverage is limited to $15,000.00. Farmers relies
on Zobrist v. Farmers Ins. Exchange, 103 Nev. 104, 734, P.2d 699 (1987). Our holding in
Zobrist is completely inapplicable, however, as Zobrist involved an exclusion clause, and in
this case, Farmers is attempting to enforce an exhaustion clause, a condition precedent to
coverage. As we conclude that this condition precedent violates Nevada's public policy, Mann
should be able to recover an amount restricted only by her coverage limit for underinsured
motorist$100,000.00.
[Headnote 2]
Farmers also asserts that Mann forfeited her right to underinsured motorist benefits when
she settled her claim and executed a release. Farmers had prior notice of the settlement and
release, however, and an insurance carrier cannot deny underinsured motorist benefits if the
insured has notified its carrier of the proposed settlement. See, e.g., Lambert v. State Farm
Mut. Auto. Ins. Co., 576 So.2d 160 (Ala. 1991); Huth v. Nationwide Ins. Co., 560 N.Y.S.2d
724 (N.Y.Sup.Ct. 1990); McDonald v. Republic-Franklin Ins. Co., 543 N.E.2d 456 (Ohio
1989); Hamilton v. Farmers Ins. Co. of Washington, 733 P.2d 213 (Wash. 1987).
Accordingly, Farmers cannot deny underinsured motorist benefits to Mann simply because
she settled and executed a release.
For the reasons stated above, we reverse the district court order dismissing Mann's
complaint and remand this case for further proceedings consistent with this opinion.
____________
108 Nev. 651, 651 (1992) Jones v. State
LLOYD JONES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21960
August 20, 1992 837 P.2d 1349
Appeal from a conviction of one count each of trafficking in a controlled substance and
conspiracy to possess or sell a controlled substance. Eighth Judicial District Court, Clark
County; John F. Mendoza, Judge.
108 Nev. 651, 652 (1992) Jones v. State
The supreme court held that: (1) error in permitting co-defendant who had pleaded guilty
not to testify warranted reversal; (2) newly discovered evidence supported motion for new
trial; (3) limiting cross-examination on allegations of detective's prior misconduct was within
district court's discretion; and (4) evidence demonstrating extent of injuries defendant
received in beating by police was admissible.
Ward & Maglaras, Las Vegas, for Appellant.
James Tufteland, Chief Deputy District Attorney, and Chris Owens, Deputy District Attorney,
1. Criminal Law.
Defendant's objections to witness' wrongful assertion of privilege against self-incrimination may not be entertained on appeal
absent a timely challenge by party presenting the witness. U.S.C.A.Const. amend. 5.
2. Criminal Law.
Defendant's claim that trial court incorrectly permitted co-defendant not to testify was preserved by defense counsel's participation
in discussion initiated by state's challenge to co-defendant's refusal to testify. U.S.C.A.Const. amend. 5.
3. Witnesses.
Witnesses in criminal prosecutions have a Fifth Amendment right to refuse to answer questions when their answers might subject
them to future prosecution; however, assertion of the privilege requires more than a vague and subjective fear of prosecution.
4. Witnesses.
Co-defendant who had pleaded guilty but had not yet been sentenced could not assert privilege against self-incrimination to avoid
testifying at defendant's trial. U.S.C.A.Const. amend. 5.
5. Criminal Law.
Error in allowing co-defendant, who had pleaded guilty, to assert privilege against self-incrimination at defendant's trial was
potentially prejudicial and warranted reversal, where believability of such testimony was enhanced by co-defendant's allegations that
his silence was coerced by investigating officers and by state's admission that officers questioned co-defendant outside the presence of
his attorney and without his attorney's permission. U.S.C.A.Const. amend. 5; SCR 182.
6. Criminal Law.
Evidence that co-defendant would have testified on defendant's behalf had police not coerced his silence constituted newly
discovered evidence on which defendant's motion for new trial should have been granted. NRS 176.515, subd. 1.
7. Witnesses.
Limiting cross-examination of detective on allegations of impropriety which later proved groundless and which did not result in
judicial action in an unrelated federal case, offered to impeach detective's credibility by showing that his
testimony in that case was contradicted by another witness, was within district court's discretion.
108 Nev. 651, 653 (1992) Jones v. State
action in an unrelated federal case, offered to impeach detective's credibility by showing that his testimony in that case was
contradicted by another witness, was within district court's discretion.
8. Witnesses.
When purpose of cross-examination is to expose bias, trial court is not accorded usual breadth of discretion in determining
whether to entertain the questioning; counsel must be permitted to elicit any facts which might color a witness' testimony.
9. Witnesses.
Impeachment evidence that police had beaten defendant so severely that they might be exposed to civil liability for the beatings
unless defendant was convicted was admissible to prove bias of police officers testifying in prosecution of defendant.
OPINION
Per Curiam:
Lloyd Jones (Jones) was charged with trafficking in a controlled substance and conspiracy
to possess or sell a controlled substance, as a result of his alleged participation in a sale of
methamphetamine to James Vaccaro (Vaccaro), an undercover narcotics officer. The only
non-circumstantial evidence implicating Jones at trial was the testimony of Vaccaro and the
other arresting officers. Vaccaro testified that on or about January 26, 1989, he received a
telephone call from an informant suggesting that he call another number and ask to speak to
Blaze. Blaze was later identified as Robert LaPalme (LaPalme), Jones' co-defendant in this
action. Vaccaro telephoned LaPalme and asked to purchase two pounds of methamphetamine.
Vaccaro testified that he and LaPalme agreed that the purchase price would be $10,000 per
pound, and that the transaction would take place the following day.
On January 27, 1989, Vaccaro met with LaPalme at LaPalme's apartment, after
telephoning him a second time to see if he had had an opportunity to contact Mike, his drug
connection. The two men then drove to a mobile home owned by Jones' co-defendant, Mike
Neathery (Neathery). Vaccaro testified that he and LaPalme were admitted into the trailer by
a woman, who told them that Neathery was in the back room. Vaccaro further testified that
LaPalme went into the back room and returned with a sawed-off rifle, with which he directed
Vaccaro towards the back room. He stated that Neathery and Jones were already present in
that room, and that the four men discussed the availability of the methamphetamine. Vaccaro
alleged that when he asked about the quality of the methamphetamine, Jones stated that it was
very good. Furthermore, Vaccaro testified that when he agreed to meet Neathery and Jones at
the Showboat Hotel to carry out the exchange, he was told that Neathery would carry out
the transaction but that Jones would also be present to safeguard the security of the deal.
108 Nev. 651, 654 (1992) Jones v. State
out the exchange, he was told that Neathery would carry out the transaction but that Jones
would also be present to safeguard the security of the deal.
Officer Vaccaro went into the Showboat Hotel and towards the main bar as planned, and
saw Neathery and Jones approaching the bar from the other direction. Vaccaro testified that
as he made eye contact with Neathery, Jones walked off in another direction. Neathery and
Vaccaro made the exchange, and then Vaccaro gave the arrest signal. While other officers
were arresting Neathery, Vaccaro apprehended Jones, with the assistance of Officer Huggins.
Vaccaro testified that he and Huggins identified themselves as police officers, that Huggins
showed Jones his badge, and that Huggins was armed. He stated that Jones then reached for a
revolver that was tucked beneath Jones' waistband. Vaccaro testified that he and Huggins
wrestled Jones to the ground in order to secure the revolver, and that in so doing, he struck
Jones a number of times in the face with a closed fist. Vaccaro also testified that it took six or
seven officers to subdue Jones, remove his gun, and handcuff him. Officer Huggins
transported Jones alone in his vehicle from the Showboat Hotel to the jail. Huggins testified
that although Jones was handcuffed, Huggins was forced to further subdue him because he
was still fighting, kicking, and biting.
At trial, both Jones and his girlfriend testified on Jones' behalf. Jones, girlfriend, Yvonne
Maness (Maness), testified that she had been dating Jones for nine years, and that they had
lived together in Las Vegas during most of that time. Jones and Maness have a son, Trevor,
who was five years old at the time of Jones' arrest. Maness also has three other children who
are not related to Jones. She testified that on the day of the arrest, her fourteen-year-old
daughter, Nicki, had not returned from school on the school bus as expected. She testified
that she, Jones, and Trevor had gone to Neathery's trailer to look for Nicki, because Nicki
frequently baby-sat for Neathery's two children. She stated that Neathery was in the back
room of the trailer when they arrived, and that Neathery called to Jones from the back room
to tell him to come look at a book about Vietnam. Officer Vaccaro was also present in the
back room at that time. Maness testified that she was with Jones virtually the entire time
Jones was in the back room, and that she did not hear him talk about drugs.
Maness testified that later that night, she, Jones, and Trevor went to the Showboat Hotel to
look for her daughter, Nicki, because Nicki's friend's parents bowled in a 9:00 p.m. bowling
league there. She further testified that Mike Neathery had requested a ride to an unnamed bar
earlier in the day, and that although she had refused his request, she had offered to take him
as far as the Showboat Hotel.
108 Nev. 651, 655 (1992) Jones v. State
as far as the Showboat Hotel. Maness and Jones returned to Neathery's trailer that evening
and gave him a ride to the Showboat Hotel. Maness testified that while Jones went to look for
Nicki, she remained in the car with their son, Trevor, who has a medical condition requiring
constant supervision. She also testified that Jones' shirt was tucked in when he left, and that
she did not notice the bulge of a gun in his waistband.
Jones testified in his own defense, stating that he had been regularly employed prior to his
arrest, and that Maness' testimony accurately reflected what had occurred on the day of his
arrest. Jones also testified that Officer Vaccaro had lied when he said that Jones had been a
participant in a discussion regarding the sale of drugs and that LaPalme was carrying a
sawed-off rifle at the trailer. Furthermore, Jones testified that he did not have a gun when he
was at the Showboat Hotel, and that he struggled with the arresting officers because the
officers did not identify themselves. Jones also testified that in addition to being beaten by the
police officers while in the hotel, he was severely beaten by Officer Huggins in the police car
on the way to the jail. The jail refused to accept Jones because of his injuries, and he was
taken to a medical clinic, where he received stitches for a cut he received above his eye.
Finally, Jones testified that several days after being returned to the jail, he experienced
convulsions, began to slip in and out of consciousness, and was taken to the University
Medical Center for X-rays and a CAT scan.
Neither Jones' nor Vaccaro's testimony was supported by testimony from neutral third
parties. Although both patrons and security guards were present in the casino of the Showboat
Hotel when the arrest occurred, none were questioned. Furthermore, the officers failed to
maintain a credible chain of custody on the gun, even though proof that Jones was carrying a
gun would have helped to justify the beatings he received. The gun was never dusted for
fingerprints; and initially at trial, the gun was believed to have been unavailable. The police
report given to Jones' counsel indicated that the gun had been lost or stolen. However, the
prosecutor told the court that this information was incorrect, and that the gun had been turned
over from the police department to its rightful owner, who had since moved to Montana and
was not available to testify. In addition, the prosecutor stated that the Metropolitan Police
Department (MPD) did not know who had turned the gun over to its owner, and that there
was no officer available who could testify to the fact that MPD had ever had the gun in its
possession.
Because Jones' counsel refused to stipulate to the existence of the gun, the court directed
the prosecutor, Owens, to provide some type of factual support for his claim that the gun
existed.
108 Nev. 651, 656 (1992) Jones v. State
Thereupon, the prosecution produced Willie Bates, MPD's evidence custodian, who testified
that his records showed that the gun impounded in this case was marked with serial number
158-11143 and had been released to Lorraine Leaver, a former employee of the North Las
Vegas Police Department. Then, Detective Daniel Harry testified that they had in fact just
located a gun with that serial number on it in an unsealed evidence bag in MPD's evidence
vault. Finally, Detective Fielding, who was present at the Showboat Hotel at the time of
Jones' arrest, testified that he recognized the unsealed evidence envelope as the one into
which he had placed the gun that Detective Manning had pulled out from underneath Jones
during the struggle. Fielding further testified that although he was present at Jones' arrest and
saw Manning remove the gun, he could not remember what type of shirt Jones was wearing
and was somewhat uncertain as to whether Jones' shirt was untucked.
Jones was convicted by a jury on the charges of trafficking in a controlled substance and
conspiracy to possess or sell a controlled substance. He appealed these convictions, arguing
that the district court erred in granting Neathery's request to invoke his Fifth Amendment
right to remain silent when called as a witness in Jones' trial. Neathery had been charged as a
co-defendant with Jones and had pleaded guilty. He was informed that by pleading guilty, he
was relinquishing his Fifth Amendment right not to testify. After having pleaded guilty but
before being sentenced, Neathery was called by the prosecution to be a witness in Jones' trial.
After answering a few preliminary questions, Neathery refused to answer a question
concerning the conversation in his trailer on the grounds that his answer might incriminate
him. A bench conference was held in which Neathery reluctantly expressed concern over the
outcome of his sentencing hearing and the possibility that he might subsequently be
prosecuted for perjury. He also expressed a general concern for his personal safety. The court
permitted Neathery to refuse to testify. Sometime after the conclusion of the trial, Jones'
counsel obtained a declaration from Neathery stating that the reason he refused to testify was
that he had been coerced by the investigating officers, and that if he had testified, he would
have stated that Jones was not involved in the drug sale.
[Headnotes 1, 2]
A defendant's objections to a witness's wrongful assertion of the privilege against
self-incrimination may not be entertained on appeal absent a timely challenge by the party
presenting the witness. Oliver v. State, 85 Nev. 418, 425, 456 P.2d 431, 435 (1969). In the
instant case, the State called Neathery as a witness and offered a contemporaneous challenge
to Neathery's refusal to testify.
108 Nev. 651, 657 (1992) Jones v. State
testify. Jones' counsel also took part in the discussion regarding whether Neathery should be
permitted to invoke the protection of the privilege. Therefore, we conclude that this issue was
properly preserved for review.
[Headnotes 3, 4]
Witnesses in criminal prosecutions have a Fifth Amendment right to refuse to answer
questions when their answers might subject them to future prosecution. Baxter v. Palmigiano,
425 U.S. 308, 316 (1976). However, assertion of the Fifth Amendment privilege requires
more than a vague and subjective fear of prosecution. Hoffman v. United States, 341 U.S.
479, 486 (1951). In Oliver, this court stated that Oliver's co-defendant could not assert the
privilege against self-incrimination to avoid testifying at Oliver's trial merely because his
testimony might tend to incriminate him in his application for probation. Oliver, 85 Nev. at
425, 456 P.2d at 435. At the time he was called to testify, Oliver's co-defendant had pleaded
guilty but had not yet been sentenced. Id. Similarly, in this case, Neathery was asked to testify
at a time when he had pleaded guilty but had not been sentenced. In accordance with our
holding in Oliver, we hold that it was error to permit Neathery to claim the protection of the
privilege against self-incrimination when called to be a witness in Jones' trial.
[Headnote 5]
With respect to whether this error was prejudicial, although the exonerating testimony of a
co-defendant who has already been sentenced should normally be viewed with some
skepticism, the believability of such testimony in the instant case is enhanced by Neathery's
allegations that he was coerced by the investigating officers in a case involving behavior that
might subject the officers to civil liability. These allegations are supported by the State's
admission that Owens and Vaccaro questioned Neathery outside the presence of Neathery's
attorney and without his attorney's permission, even though Neathery was still a co-defendant
in the case and in apparent violation of Supreme Court Rule 182. Because this alleged
violation of Rule 182 supports the credibility of Neathery's post-trial statements and casts
doubt upon the credibility of the State's witnesses, and because the State's case against Jones
depends exclusively on the credibility of the witnesses for both parties, we conclude that the
district court's error was potentially prejudicial and warrants reversal.
[Headnote 6]
In addition, Jones asserts that his motion for a new trial should have been granted pursuant
to NRS 176.515(1), which provides for new trials based on newly discovered evidence.
108 Nev. 651, 658 (1992) Jones v. State
for new trials based on newly discovered evidence. See Oliver, 85 Nev. at 424, 456 P.2d at
435; Pacheco v. State, 81 Nev. 639, 408 P.2d 715 (1965). In Burton v. State, 84 Nev. 191,
196, 437 P.2d 861, 864 (1968), under factual circumstances similar to those of the instant
case, the appellant requested a new trial based upon newly discovered evidence suggesting
that Burton's co-defendant, who had pleaded guilty to the crime charged, would have testified
on Burton's behalf. This request was denied, because the court found that Burton could have
obtained the testimony of his co-defendant through due diligence prior to the trial. Id.
However, in the present case, Jones' counsel attempted to elicit testimony from Neathery by
issuing a subpoena to him prior to the trial, but was informed that Neathery would elect to
remain silent. Jones maintains that his reliance upon Neathery's statement that he would
remain silent was reasonable because he had no way of knowing that this silence was
coerced. We believe that the unusual circumstances of this case, involving allegations of
impropriety, distinguish it from Burton, and that Jones' request for a new trial should
therefore have been granted.
[Headnote 7]
Jones also argues that the district court erred when it refused to allow Jones to
cross-examine Detective Vaccaro about allegations of impropriety lodged against him in a
three-year old federal case in which Vaccaro was also an undercover informant. Jones sought
to impeach Detective Vaccaro's credibility by showing that his testimony in that case was
contradicted by that of another witness. A subsequent investigation revealed that the
allegations against Vaccaro were groundless, and there was no resulting judicial action.
Therefore, limiting cross-examination on this point was within the district court's discretion.
Finally, Jones contends that the trial court erred in refusing to allow him to produce
evidence at trial concerning the nature and severity of the injuries he received from the
arresting officers. Although Jones was permitted to mention the beatings he received from the
police officers, he was not allowed to go into specific detail concerning their severity or his
claim that the beatings occurred predominantly outside the Showboat Hotel, rather than inside
the hotel at the time of his arrest. Jones was also not permitted to produce medical records
describing the extent of his injuries. Jones argues that introduction of this evidence was
necessary to establish that the police officers involved in this incident had an unusually
compelling motivation to lie. Specifically, he asserts that his injuries were so severe that
without a conviction, the individual police officers involved would be exposed to potential
civil liability.
108 Nev. 651, 659 (1992) Jones v. State
[Headnotes 8, 9]
When the purpose of cross-examination is to expose bias, a trial court is not accorded the
usual breath of discretion in determining whether to entertain the questioning. Crew v. State,
100 Nev. 38, 45, 675 P.2d 986, 990-91 (1984). Counsel must be permitted to elicit any facts
which might color a witness's testimony. Id.; see also Jackson v. State, 104 Nev. 409, 412-13,
760 P.2d 131, 133-34 (1988). Although, in this case, Jones did not seek to introduce evidence
of his injuries during cross-examination, his purpose in introducing this evidence was similar:
to prove that the officers involved in the arrest may have been motivated to lie by the
possibility that they might be exposed to civil liability for the beatings. Therefore, we
conclude that it was error to prohibit Jones from introducing evidence demonstrating the
extent of his injuries.
For the foregoing reasons, we reverse the judgment of the district court and remand this
case for retrial in accordance with this opinion.
Mowbray, C. J., concurring.
I agree with the majority that several legal errors plagued appellant's trial, and that these
errors necessitate a retrial. My complaint is with the majority's predilection for overstating
appellant's position.
This case, tried before a jury, involved conflicting testimony. In exaggerating that
testimony supporting appellant's version of events while deprecating, if not dismissing, that
favorable to the State, the majority disdains the jury, which, exercising it prerogative, see,
e.g., Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981), resolved questions of testimonial
weight and credibility in favor of the State. Even more vexing, I suspect that the majority's
advocacy on behalf of the appellant will hamstring the State's efforts to retry him.
____________
108 Nev. 660, 660 (1992) Neal v. Griepentrog
SENATOR JOSEPH M. NEAL, JR., and the SENATE COMMITTEE ON HUMAN
RESOURCES AND FACILITIES, Appellants, v. JERRY GRIEPENTROG, Director
of Human Resources; STEPHEN LEWIS, Administrator, Division of Health
Resources and Cost Review; TERESA P. FRONEK RANKIN, Acting Commissioner
of Insurance; FRANKIE SUE DEL PAPA, Attorney General of the State of Nevada;
and HUMANA, INC., dba HUMANA SUNRISE HOSPITAL, Respondents.
No. 22444
HUMANA, INC., a Delaware Corporation; GROUP HEALTH INSURANCE, INC., a
Delaware Corporation; and HUMANA HEALTH INSURANCE COMPANY OF
NEVADA, a Nevada Corporation, Petitioners, v. THE HONORABLE GERARD J.
BONGIOVANNI, Judge of the Eighth Judicial District Court of the State of Nevada,
in and for the County of Clark, Respondent.
GEORGE MEAD HEMMETER, M.D., Real Party in Interest.
No. 22856
August 21, 1992 837 P.2d 432
Appeal from an order denying a motion for an order permitting the dissemination of
documents; First Judicial District Court, Carson City; Michael E. Fondi, Judge. Petition for
Writ of Mandamus/Prohibition; Eighth Judicial District Court, Clark County; Gerard J.
Bongiovanni, Judge.
State Senate Committee sought permission to disseminate hospital documents. The First
Judicial District Court denied relief, and appeal was taken. In separate action, hospital sought
to seal records in which documents were disclosed. The Eighth Judicial District Court denied
motion, and mandamus relief was sought. Upon consolidation of actions, the supreme court
held that letters provided by hospital to state agency, describing its contracts with preferred
provider organizations, were public documents subject to disclosure upon request.
Reversed; petition for writ of mandamus/prohibition denied.
Lorne J. Malkiewich, Legislative Counsel, Carson City, for Senator Neal and Senate
Committee.
Lionel Sawyer & Collins and David N. Frederick, Las Vegas, for Humana.
Frankie Sue Del Papa, Attorney General, Brooke Nielsen, Chief Deputy Attorney General,
Carson City, for Respondents.
Morton R. Galane, Las Vegas; Edwards, Hunt, Hale & Hansen, Las Vegas, for Hemmeter.
1. Statutes.
Words in statute should be given their plain meaning unless this violates spirit of act.
2. Records.
Letters provided by hospital to state agency, describing its contracts with preferred provider organizations, were public documents
subject to disclosure upon request; information in letters was neither trade secret nor subject to executive privilege. NRS 49.325,
439B.420, 449.450-449.530.
3. Records.
Statute allowing Director of Department of Human Resources to publish and disseminate information relating to financial aspects
of health care if deemed desirable in public interest does not give Director discretion to make certain information unavailable to public.
NRS 449.500.
OPINION
Per Curiam:
Facts
On December 29, 1989, Christopher Thompson, Chief Accountant of the Division of
Health Resources and Cost Review (a division of the Department of Human Resources)
requested Samuel Hazen, Assistant Executive Director of Finance for Humana
Hospital-Sunrise,
1
to submit details of Humana Hospital-Sunrise's contracts with preferred
provider organizations.
2
In particular, Thompson asked Hazen to submit details concerning
the contractual allowances given to all preferred provider organizations and other entities
paying a discounted rate for hospital services. Thompson stated that the information was
requested in accordance with a relevant statutory provision (NRS 449.500) in order to allow
the Division of Health Resources and Cost Review to analyze the contractual discounts of
the six largest hospitals in Nevada.
__________

1
Respondent Humana, Inc. (Humana) does business as Humana Hospital-Sunrise.

2
This request was made pursuant to statutory provisions giving the Director of the Department of Human
Resources authority to require health care facilities to submit information to the Department and authorizing the
Director to study and analyze the cost of health care in Nevada and other states.
Cost Review to analyze the contractual discounts of the six largest hospitals in Nevada. In
addition, Thompson stated that [a]ll of the information submitted with respect to particular
agreements will be considered confidential but that Thompson's summary of the data would
become public information pursuant to another statutory provision, NRS 449.510.
In response to Thompson's request, Hazen sent Thompson two letters. The first letter
contained a listing of discounts given to various preferred provider organizations by Humana
Hospital-Sunrise for the fiscal years 1988, 1989, and the first four months of 1990. The
second letter provided the same information as well as discounts given to other organizations.
Thompson, using this information, then prepared a report summarizing the discounting
practices of Nevada's six largest hospitals.
3
It is impossible to tell, from Thompson's report,
if any of the hospitals give disparate discounts to preferred provider organizations.
Thompson's report was subsequently given to the Legislative Committee on Health Care.
In February 1991, the Senate Standing Committee on Human Resources and Facilities
(Senate Committee), acting through its chairperson, Senator Joseph M. Neal, Jr., sought
information concerning the cost of health care rendered by Nevada hospitals. Accordingly,
the Senate Committee issued subpoenas duces tecum for the production of various records,
including Hazen's two letters. The records were possessed by respondents Jerry Griepentrog,
Director of the Department of Human Resources, Stephen Lewis, Administrator of the
Division of Health Resources and Cost Review, Teresa P. Froncek Rankin, Acting
Commissioner of Insurance, and Frankie Sue Del Papa, Attorney General of Nevada.
Respondents Griepentrog, Lewis, Rankin, and Del Papa then brought an action in the First
Judicial District Court. Specifically, they sought a declaration that the subpoenaed records
were privileged or confidential and requested that the court enjoin further efforts to compel
production of the records.
Subsequently, the parties stipulated to the entry of an order for a permanent injunction.
According to the stipulation, the records would be produced for the Senate Committee, and
the Senate Committee would keep the records in a safe place and would maintain the records'
confidentiality unless the Attorney General gave prior approval for their dissemination or
disclosure to the public. In addition, under the agreement, if the Attorney General refused to
give approval for the records' dissemination or disclosure, the Senate Committee would be
required to obtain a district court order to disseminate or disclose the records.
__________

3
Specifically, Thompson's report gives, for each hospital, the gross revenue, net revenue, and contribution to
net revenue from all of the preferred provider organizations with which the hospital deals.
sure, the Senate Committee would be required to obtain a district court order to disseminate
or disclose the records. The district court approved the stipulation and thereafter entered an
order for permanent injunction.
In May 1991, the Senate Committee sought approval to disseminate the two letters written
by Hazen; the Attorney General denied this request. The Senate Committee then, pursuant to
the terms of the stipulated injunction, filed a motion in the district court for an order
permitting the dissemination of the letters. Thereafter, on June 18, 1991, the district court
heard the motion and determined that NRS 439B.420(10) precludes public disclosure of the
documents. The court denied the Senate Committee's motion and entered an order denying
the motion for an order permitting the dissemination of documents.
Subsequently, Hazen's first letter was admitted into evidence during the trial of Humana,
Inc., et al. v. George Mead Hemmeter, M.D., an unrelated action in the Eighth Judicial
District Court. Humana did not object to the admission of the letter into evidence, and
Samuel Hazen was later examined by counsel. More than one month later, Humana moved
the Eighth Judicial District Court for an order sealing the letter and portions of the trial
transcript relating to the letter. Soon thereafter, in an article dated January 18, 1992, the Las
Vegas Review-Journal/Sun reported that Humana had asked the district court to seal the
records relating to its contractual discounts. The article also revealed that Humana had given
disparate discounts to some of the preferred provider organizations with which it had
agreements. See Humana to request sealing of Hemmeter trial records, Las Vegas
Review-Journal/Sun, Jan. 18, 1992, at 1B.
On January 23, 1992, the Eighth Judicial District Court denied Humana's motion to seal
the records. The district court agreed to stay entry of its order denying Humana's motion for
three days so that this court could consider the issue. Subsequently, on January 28, 1992,
Humana filed a petition for writ of mandamus/prohibition with this court and included a
motion to stay the district court order denying Humana's motion to seal the court records.
Thereafter, this court entered an order granting Humana's motion to stay the district court's
order pending resolution of Humana's petition. This court then entered an order consolidating
Humana's petition for writ of mandamus/prohibition and the Senate Committee's appeal from
the First Judicial District Court.
The Confidentiality of the Documents
[Headnotes 1, 2]
On Appeal, the Senate Committee argues that the district court erred in determining that
the disputed documents fall within the ambit of NRS 439B.420{10).
erred in determining that the disputed documents fall within the ambit of NRS 439B.420(10).
We agree. Words in a statute should be given their plain meaning unless this violates the
spirit of the act. Hotel Employees v. State, Gaming Control Bd., 103 Nev. 588, 591, 747
P.2d 878, 879 (1987) (citation omitted). NRS 439B.420(10) does not make contracts between
health care insurers and hospitals confidential. It provides that contracts submitted under the
provisions of NRS 439B.420 are confidential; however, none of the provisions of NRS
439B.420 involves contracts between health care insurers and hospitals. Instead, these
provisions prohibit various agreements and arrangements between hospitals and
physicians/practitioners and also prohibit hospitals from offering financial inducements to an
officer, employee or agent of an insurer. Because NRS 439B.420(10) is unambiguous, and
its plain meaning does not apply to Humana's preferred provider agreements, the district court
erred in relying on it.
The Senate Committee also asserts that the documents at issue are public documents
pursuant to NRS 449.450-.530. We agree with this assertion. The relevant statutory
provisions in NRS 449.450-.530 are the following:
(A) Under NRS 449.460, the Director of the Department of Human Resources may:
2. Hold public hearings, conduct investigations and require the filing of information
relating to any matter affecting the costs of services in all [health care] institutions . . .
and may subpoena witnesses, financial papers, records and documents in connection
therewith.
(B) NRS 449.490 provides, in pertinent part, the following:
1. Every [health care] institution . . . shall file with the [D]epartment [of Human
Resources] the following financial statements or reports . . . at least annually:
(a) A balance sheet detailing . . . assets, liabilities and net worth. . . .; and
(b) A statement of income and expenses. . . .
. . . .
4. All reports, except privileged medical information, filed under any provisions of
NRS 449.450 to 449.530, inclusive, are open to public inspection and must be available
for examination at the office of the [D]epartment [of Human Resources] during regular
business hours.
(C) NRS 449.500 provides that:
The [D]irector [of the Department of Human Resources] shall engage in or carry out
analyses and studies relating to the cost of health care in Nevada and other states, the
status of any [health care] institution . . . and any other appropriate related matters,
and he may publish and disseminate any information relating to the financial
aspects of health care as he deems desirable in the public interest.
of any [health care] institution . . . and any other appropriate related matters, and he
may publish and disseminate any information relating to the financial aspects of health
care as he deems desirable in the public interest. He shall further require the filing of
information concerning the total financial needs of each institution and the resources
available or expected to become available to meet such needs. . . .
(D) NRS 449.510 provides, in part, that:
1. The [D]irector [of the Department of Human Resources] shall prepare and file such
summaries, compilations or other supplementary reports based on the information filed
with him pursuant to NRS 449.450 to 449.530, inclusive, as will advance the purposes
of those sections. All such summaries, compilations and reports are open to public
inspection, must be made available to requesting agencies and must be prepared within
a reasonable time following the end of each institution's fiscal year or more frequently
as specified by the director. The summaries, compilations and reports must include
information regarding each hospital's average and total contractual allowances to
categories of payers who pay on the basis of alternative rates rather than billed charges.
Under NRS 449.490(4), the information contained in Hazen's letters is public. According
to the terms of this provision, all records submitted under any provision in NRS 449.450-.530
are open to public inspection. Further, under NRS 239.010:
[a]ll public books and records . . . the contents of which are not otherwise declared by
law to be confidential, shall be open at all times during office hours to any person, and
the same may be fully copied or an abstract or memorandum prepared therefrom, and
any copies, abstracts or memoranda of the records taken therefrom may be utilized to
supply the general public with copies, abstracts or memoranda of the records.
Thus, even without the express public inspection requirement in NRS 449.490(4), all
records submitted to the Department are public unless otherwise declared by law to be
confidential.
[Headnote 3]
None of the provisions in NRS 449.450-.530 declares information submitted to the
Department to be confidential; therefore, no provision conflicts with NRS 449.490(4) and no
provision overrides NRS 239.010. NRS 449.500 allows the Director to publish and
disseminate information relating to the financial aspects of health care as deemed desirable in
the public interest; this provision does not give the Director discretion to make certain
information unavailable to the public.
sion does not give the Director discretion to make certain information unavailable to the
public. Further, NRS 449.510 requires, in conformity with NRS 239.010, that all summaries
and supplementary reports be available to the public.
4

Although respondents contend that Hazen's letters are protected as trade secrets under
NRS 49.325 and NRS Chapter 600A, we conclude that the information in the letters does not
constitute a trade secret because it is not a formula, pattern, compilation, program device,
method, technique or process (or anything similar) as required under NRS 600A.030.
5
Further, we conclude that, contrary to respondents' assertion, the information contained in
Hazen's letter is not the type of information subject to executive privilege.
For the reasons stated above, we reverse the First Judicial Court order denying the Senate
Committee's motion for an order permitting the dissemination of the letters. In addition, we
deny Humana's petition for writ of mandamus/prohibition.
6

__________

4
We note that NRS 449.510 was amended in 1991 and now states the following:
2. The [D]irector [of the Department of Human Resources] shall not disclose or report the details of
contracts entered into by a hospital, or disclose or report information pursuant to this section in a manner
that would allow identification of an individual payer or other party to a contract with the hospital, except
that the director may disclose to other state agencies the details of contracts between the hospital and a
related entity.
Thus, NRS 449.510 now removes certain documents from the public sphere and requires that they remain
confidential.

5
NRS 600A.030(4) defines a trade secret as follows: information including a formula, pattern, compilation,
program device, method, technique or process.

6
The Senate Committee asserts that the letter admitted into evidence at the Hemmeter trial is now a public
document, regardless of its status under the statute. Because we conclude that this letter was always a public
document, we do not need to reach this issue.
____________
108 Nev. 666, 666 (1992) Smith's Food King v. Hornwood
SMITH'S FOOD KING NO. 1 and SMITH'S MANAGEMENT CORPORATION,
Appellants, v. SANFORD and RITA HORNWOOD, Respondents.
No. 22602
August 28, 1992 836 P.2d 1241
Appeal from a district court judgment awarding damages to respondents for breach of a
lease agreement. Eighth Judicial District Court, Clark County; Gerard J. Bongiovanni, Judge.
Shopping center landlords brought suit against anchor tenant for breach of lease. The
district court, Earle W. White, Jr., J., found breach, but awarded no damages, and appeal and
cross-appeal were taken. The supreme court, 105 Nev. 188, 772 P.2d 1284, reversed in part,
affirmed in part, and remanded. On remand, the district court determined damages for
diminished value of shopping center, and landlords appealed. The supreme court, 107 Nev.
80, 807 P.2d 208, affirmed in part, reversed in part, and remanded. On remand, the district
court, Gerard J. Bongiovanni, J., again entered judgment for landlords, and anchor tenant
appealed. The supreme court held that successor judge was required to rehear disputed
evidence absent competent findings of fact by original judge.
Jolley, Urga, Wirth & Woodbury, Las Vegas, for Appellants.
Marquis & Aurbach, Las Vegas, for Respondents.
New Trial.
New trial is necessary to permit rehearing of disputed evidence when trial judge is replaced by successor judge and original judge
has made no competent findings of fact. NRCP 63.
OPINION
Per Curiam:
This case has come before this court on two previous occasions; hence, the facts are well
known. See Hornwood v. Smith's Food King, 105 Nev. 188, 772 P.2d 1284 (1989);
Hornwood v. Smith's Food King, 107 Nev. 80, 807 P.2d 208 (1991). Respondents, Rita and
Sanford Hornwood (the Hornwoods), leased space in their shopping center to appellant,
Smith's Food King (Smith's), with the understanding that Smith's would serve as the
shopping center's anchor tenant. Prior to the expiration of Smith's lease, however, it vacated
the premises. Subsequently, the Hornwoods filed suit against Smith's for breach of an implied
covenant of continuous occupancy, requesting damages for the diminished value of their
shopping center.
At a trial held before Judge White, experts for both parties presented evidence regarding
the diminished value of the shopping center caused by Smith's vacancy. The Hornwoods'
expert testified that the shopping center had decreased in value by $1,425,000.00; Smith's
expert, however, testified that the shopping center had not decreased in value or, alternatively,
that it had decreased by only $216,000.00. Although Judge White found that Smith's had
breached its covenant of continuous occupancy, he determined that any damages for the
diminished value of the center were unforeseeable and thus awarded no damages to the
Hornwoods based on diminution in value.
that Smith's had breached its covenant of continuous occupancy, he determined that any
damages for the diminished value of the center were unforeseeable and thus awarded no
damages to the Hornwoods based on diminution in value. Because Judge White found that
these damages were not foreseeable, he made no definitive findings regarding the amount of
these damages.
1

On appeal, this court reversed the trial court's judgment, holding that damages for the
diminished value of the shopping center were, in fact, foreseeable, and remanded the case
with instructions to award damages for the diminished value of the center. On remand, Judge
White applied the wrong damage formula and, as a result, he issued erroneous findings
regarding the Hornwoods' damages.
2
Consequently, the Hornwoods appealed again.
Thereafter, this court remanded the case to the trial court a second time with explicit
instructions regarding the applicable damage formula.
Prior to the second remand, Judge White, who lost his re-election bid, was replaced by
Judge Bongiovanni. Although Judge Bongiovanni did not preside at trial, he entered a
$1,425,000.00 judgment for the Hornwoods, without holding an evidentiary hearing.
On appeal, Smith's contends that under NRCP 63,
3
Judge Bongiovanni was required to
conduct an evidentiary hearing before rendering his decision. We agree. NRCP 63 states that
a judge who replaces the original trial judge after the original judge has filed findings of fact
and conclusions of law has the discretion to grant a new trial. Hence, by negative inference,
under NRCP 63, a successor judge is required to re-hear disputed evidence if the original trial
judge has not issued findings of fact and conclusions of law. The rationale behind the rule is
to prevent judges from passing judgment on the credibility of witnesses they have not
seen.
__________

1
In his findings of fact, Judge White merely noted the following: Testimony from two expert witnesses
presented by the Hornwoods placed the decrease in value of the shopping center property after Smith's moved
out at more than $1 million. The defense presented expert testimony that the center did not decrease in value
after the move out.

2
Judge White found that the Hornwood's had offered no evidence according to the damage formula that the
judge erroneously applied.

3
NRCP 63 states:
If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable
to perform the duties to be performed by the court under these rules after a verdict is returned or findings
of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court
on which the action was tried may perform those duties; but if such other judge is satisfied that he cannot
perform those duties because he did not preside at the trial or for any other reason, he may in his
discretion grant a new trial.
from passing judgment on the credibility of witnesses they have not seen.
Although there are no Nevada cases expressly interpreting NRCP 63, in Sly v. Sly, 100
Nev. 236, 679 P.2d 1260 (1984), we noted that a new trial is necessary when a trial judge is
replaced by a successor judge and the original judge made no competent findings of fact. In
Sly, the district court made inconsistent findings regarding the Slys' community property.
Consequently, we reversed the district court's decision. Because the case was sent to a new
judge on remand, we instructed the successor judge to conduct a new trial on all issues
pertaining to the Slys' community property.
Also, under the former FRCP 63, identical to NRCP 63, the federal courts have interpreted
the rule to require a new trial if the original trial judge failed to issue findings of fact.
4
See
Emerson Electric Co. v. General Electric, 846 F.2d 1324, 1325-26, (11th Cir. 1988) (Courts,
however, have read into Rule 63 the negative inference that if the presiding judge in a civil
case has yet to issue his findings of fact and conclusions of law, a successor judge must retry
the case.); Townsend v. Gray Line Bus Co., 767 F.2d 11, 17 (1st Cir. 1985) (If the
presiding judge in a civil case dies or becomes disabled before the rendering of a verdict or
before the judge issues his findings of fact and conclusions of law, a successor judge must
retry the case.); Thompson v. Sawyer, 678 F.2d 257 (D.C.Cir. 1982) (If the trial judge in a
non-jury trial becomes disabled before filing findings of fact and conclusions of law, a new
trial is probably obligatory.).
As noted above, Judge White made no relevant findings of fact indicating the amount of
damages suffered by the Hornwoods. Consequently, when Judge Bongiovanni rendered his
decision, he passed judgment on the credibility of witnesses whom he had never seen. We
therefore conclude that, under NRCP 63, Judge Bongiovanni erred when he failed to hold an
evidentiary hearing. Although Smith's has raised other contentions on appeal, we conclude
that they lack merit. We thus reverse the district court's judgment and remand this case for
an evidentiary hearing on the issue of damages.
__________

4
In 1991, FRCP 63 was amended; the new federal rule permits a successor judge to proceed without a new
trial, even if findings of fact and conclusions of law have not been filed, if that judge certifies familiarity with the
record and determines that the case may be completed without prejudice to the parties. The new FRCP 63,
however, states that [i]n a hearing or trial without a jury, the successor judge shall at the request of a party
recall any witness whose testimony is material and disputed and who is available to testify again without undue
burden. Hence, even if Nevada had a rule similar to the new federal rule, Judge Bongiovanni would be
compelled to re-hear the expert testimony since the evidence was disputed and Smith's requested a new
judgment and remand this case for an evidentiary hearing on the issue of damages.
Mowbray, C. J., Springer, Rose and Young, JJ., and Carnahan, D. J.,
5
concur.
____________
108 Nev. 670, 670 (1992) Carrell v. Carrell
AURORA CARRELL, Appellant, v. JOHN CARRELL, Respondent.
No. 22271
September 1, 1992 836 P.2d 1243
Appeal from a decree of divorce and subsequent order denying motion for a new trial.
Eighth Judicial District Court; Clark County; Donald M. Mosley, Judge.
The supreme court held that: (1) district court erred when it characterized wife's
community property consisting of share of pensions earned during marriage as spousal
support, thereby subjecting it to possible future modification, and (2) district court abused its
discretion in awarding husband $6,001 for post-trial attorney fees.
Affirmed in part; reversed in part and remanded with instructions.
Gerald W. Hardcastle, Las Vegas, for Appellant.
Simmons, Madson & Snyder, Las Vegas, for Respondent.
1. Divorce.
District court erred in divorce case when he characterized wife's community property consisting of share of pensions earned during
marriage as spousal support, thereby subjecting it to possible future modification. NRS 125.150, subds. 5, 7.
2. Divorce.
Under statute, district court may, in a divorce action, award reasonable attorney fees to either party; such an award lies within
sound discretion of district court and will not be overturned on appeal absent an abuse of discretion. NRS 125.150, subd. 3.
3. Divorce.
If district court awards attorney fees in a divorce case but makes no findings regarding the award, supreme court must rely on
examination of record to determine if district court has abused its discretion. NRS 125.150, subd. 3.
__________

5
4. Divorce.
District court abused its discretion in divorce case in ordering wife to pay husband $6,001 for post-trial attorney fees, where
husband stated he had spent only $2,101 in attorney fees for post-trial proceedings, and there was nothing in the record to substantiate
award of $6,001.
OPINION
Per Curiam:
On April 20, 1989, respondent, John Carrell, filed for a divorce from appellant, Aurora
Carrell. Following a trial on July 30, 1990, the district court entered a decree of divorce and
divided the Carrells' community property, including their respective pensions. Aurora
disagreed with the district court's property division and subsequently filed a motion for a new
trial. Although the district court denied Aurora's motion, it amended its findings of fact and
awarded an additional $7,696.69 to Aurora. The district court, however, also ordered Aurora
to pay John $6,001.00 for post-trial attorney's fees.
[Headnote 1]
On appeal, Aurora contends that the district court erred in dividing the Carrells' pensions
because it erroneously characterized a portion of her share of the pensions as spousal support.
Specifically, Aurora points out that the court awarded each party its own pension and, since
Aurora's pension was worth less than John's pension, subsequently required John to pay
spousal support to Aurora in an amount that would result in a fifty/fifty division of the
pensions. We agree with Aurora and conclude that the district court erred when it
characterized a portion of Aurora's share of the pensions as spousal support.
In Walsh v. Walsh, 103 Nev. 287, 738 P.2d 117 (1987), we held that retirement benefits
earned during marriage are community property. As community property, retirement benefits
are afforded certain rights which do not attach to spousal support awards. Specifically,
community property is not subject to future modification whereas spousal support can be
modified upon a showing of changed circumstances, remarriage, or death. NRS 125.150(5),
(7). Consequently, the district court erred when it characterized Aurora's community property
as spousal support, thereby subjecting it to possible future modification.
[Headnotes 2, 3]
Aurora also contends that the district court abused its discretion when it awarded John
$6,001.00 in attorney's fees for post-trial proceedings. We agree. Under NRS 125.150(3), a
district court may, in a divorce action, award reasonable attorney's fees to either party.
to either party. Such an award lies within the sound discretion of the district court and will
not be overturned on appeal absent an abuse of discretion. Schwartz v. Schwartz, 107 Nev.
378, 812 P.2d 1268 (1991). If the district court awards attorney's fees but makes no findings
regarding the award, this court must rely on an examination of the record to determine if the
district court has abused its discretion. Schouweiler v. Yancey Co., 101 Nev. 827, 712 P.2d
786 (1985).
[Headnote 4]
In the present case, the district court awarded John $6,001.00 but made no specific
findings regarding the award; after reviewing the record, we conclude that the award is not
supported. First, we note that in John's opposition to Aurora's motion for a new trial, John
stated that he had spent only $2,101.00 in attorney's fees for post-trial proceedings. Although
it is possible that John later spent more than $2,101.00,
1
there is nothing in the record to
substantiate an award of $6,001.00. Furthermore, as a result of Aurora's motion for a new
trial, the district court awarded her an additional $7,696.69; however, the district court
subsequently reduced this amount to $1,695.69 after deducting John's attorney's fees. Hence,
because the court made no findings with regard to its award of $6,001.00 and because we find
no support for this award, we conclude that the district court abused its discretion.
We have carefully considered Aurora's remaining contentions and conclude that they lack
merit. Accordingly, we reverse the district court's judgment with regard to the
characterization of Aurora's pension award and the award of attorney's fees, and we remand
with instructions to recharacterize Aurora's portion of the pension funds as community
property, to make findings regarding the award of attorney's fees and to enter an award based
on those findings. We affirm the judgment in all other respects.
Mowbray, C. J., Springer, Rose and Young, JJ., and Shearing, D. J.,
2
concur.
__________

1
Subsequent to John's request for attorney's fees, which was filed with his opposition to Aurora's motion for
a new trial, John's attorney presumably represented him at the hearing on the motion, thus incurring additional
fees. Also, the record indicates that John filed supplemental points and authorities after he had requested
attorney's fees.

2
The Honorable Miriam Shearing, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable Thomas Steffen, Justice. Nev. Const. art. 6, 4.
____________
108 Nev. 673, 673 (1992) Palmer v. Del Webb's High Sierra
JAMES C. PALMER, Appellant, v. DEL WEBB'S HIGH SIERRA, Respondent.
No. 20338
September 1, 1992 838 P.2d 435
Appeal from an order of the district court reversing an award of worker's compensation
benefits to appellant. Ninth Judicial District Court, Douglas County; Norman C. Robison,
Judge.
Claimant sought worker's compensation benefits for lung disease allegedly caused by
environmental tobacco smoke present at his place of employment. The district court reversed
appeals officer's adjudication in favor of claimant and denied the claim. Claimant appealed.
The supreme court, Springer, J., held that disease claimed to be caused by environmental
tobacco smoke present in workplace was not covered by Occupational Disease Act.
Affirmed.
Nancyann Leeder, Nevada Attorney for Injured Workers, Carson City, for Appellant.
Perry & Spann and Douglas R. Rands, Reno, for Respondent.
Vargas & Bartlett and Albert F. Pagni, Reno, for Amicus Curiae South Tahoe Gaming
Alliance.
Langton & Kilburn, Reno; Hamilton & Lynch, Reno, for Amicus Curiae Nevada Trial
Lawyers Association.
Workers' Compensation
Disease claimed to be caused by environmental tobacco smoke present in casino was not covered by Occupational Disease Act;
environmental tobacco smoke was not incidental to the character of the business. NRS 617.440, subds. 1, 2.
OPINION
The issue in this case is whether a worker who claims to suffer from a disease caused by
inhaling tobacco smoke exhaled by others in the work place is eligible for compensation
under the Nevada Occupational Disease Act (NODA). Appellant Palmer filed a claim for
occupational disease compensation, claiming that his lung disease was caused by
environmental tobacco smoke present at his place of employment. The trial court, in
reversing an appeals officers' adjudication in favor of Palmer, ruled that "[u]ntil such
times as the Legislature so decides, the claim must fail."
an appeals officers' adjudication in favor of Palmer, ruled that [u]ntil such times as the
Legislature so decides, the claim must fail. We agree with the trial court that until the
legislature so decides, occupational disease claims based on inhalation of environmental
smoke in the work place must fail. Specifically, we agree that environmental smoke, although
usually present in a casino, is not uniquely incidental to the character of that business.
Further, we conclude that secondary smoke is a hazard to which workers, as a class may be
equally exposed outside of the employment. Therefore, we affirm the judgment of the trial
court.
In reading the occupational disease statute one learns that an occupational disease must
arise out of the employment, that is to say, it must be related to the nature of the employment
at hand. The definitional statute, NRS 617.440, requires an occupational disease to be an
incident of the employment and not merely an accidental consequence that is not related to
the nature of the employment. Specifically, NRS 617.440(1) provides that the disease must be
a natural incident of the work as a result of the exposure occasioned by the nature of the
employment. (Our emphasis.)
What this language means is that the disease must arise out of job conditions, specifically,
the nature of the employment. With regard to this requirement, that the disease-causing
conditions must be incidental to the character of the business, it is apparent that the
legislature intended that there must be a connection between the kind of job and the kind of
disease. Mere causation is not enough. One could easily say that going to work caused a
person to develop ulcers; but the nature of the employment is, in most cases, not inherently
ulcerogenic; and ulcers are not in all probability a natural incident of the work claimed to
be the cause of the disease. Thus, a person who develops ulcers, catches a cold or gets a
migraine headache on the job is probably not going to be able to assert a successful claim for
occupational disease compensation.
We are, then, talking about a special kind of cause, work-related cause; and where, as
appears to be the case here, disease is not related to the nature of the job, the disease cannot
properly be called occupational. It is apparent to us that despite its common presence in
bars and casinos, environmental tobacco smoke is not incidental to the character of these
businesses, is not a natural incident of these businesses.
The trial court disallowed Palmer's claim, stating that it must fail under NRS
617.440(2). We agree with this conclusion. Under NRS 617.440(2), an occupational
disease must be incidental to the character of the business and not independent of the
relation of the employer and employee."
relation of the employer and employee. Again, contracting the disease must be part of the
actual job. Unless the disease is a part of the job, unless it is incidental to the character of
the business, a disease cannot be said to have the necessary direct causal relation to the
employment. NRS 617.400(1)(a). To illustrate: breathing in coal dust is certainly incidental to
the character of coal mining work. Whereas coal dust, the cause of black lung disease, is
certainly incidental to the character of coal mining (mining coal necessarily creates coal
dust), tobacco smoke is not part of the nature or character of a bar or casino business.
Tobacco smoke is not a natural incident of Palmer's employment nor is exposure to smoke
occasioned by the nature of the employment. NRS 617.440(1)(b). It is probably true that
more environmental smoke is associated with the casino and bar businesses than with other
businesses; still, the amount and density of such tobacco smoke is highly inconstant and may
range from none to quite dense, depending on the particular bar or casino and depending on
the air filtration systems and other variables that vary from business to business.
Of course, any individual business establishment might be shown to have an excessive
amount of secondary smoke in the work place. Until fairly recently, many office
environments were so filled with smoke that they were virtually intolerable to nonsmokers.
Still, there is nothing in the nature of office work that would make stale tobacco smoke a
natural incident of the work. A nonsmoker unfortunate enough to contract some disease
because of the excessive smoke rather clearly would not be entitled to compensation, because
environmental smoke disease is not an occupational disease of office work. The legislature,
of course, is free to declare that any person who contracts some secondary smoke-related
disease at work is eligible for occupational disease compensation. The courts, we believe, do
not have this power.
What we must not lose sight of is the reality that occupational disease coverage is designed
to protect those who suffer illness because of the special nature of their occupation, those
who suffer from an occupational disease. That is why words like natural incident of the
employment and occasioned by the nature of the employment are used in NRS 617.440. In
NRS 617.450, the statutory schedule of occupational diseases, we find further indication of
the legislature's intention that occupational diseases be incidental to the character of the
business and occasioned by the nature of the employment. The diseases listed in the statute
are quite job-specific and are closely related to the nature of the particular occupation,
diseases such as brass and zinc poisoning or chrome ulceration of the skin or nasal
passages.
In addition, NRS 617.450 provides a description of the specific processes by which the listed
diseases are contracted. The statutory purpose is clearly to provide protection for people who
have diseases that are related to their particular jobs. If the disease is not related to the
character of the particular business and not proximately caused by the conditions under
which the work is performed, it is not an occupational disease.
1

Smith v. Garside, 76 Nev. 377, 355 P.2d 849 (1960), is in harmony with our opinion in
this case. In Smith, a woman working in a printing plant claimed that she had incurred serious
diseases as a result of her employer's failure to heat the work place adequately. We concluded
that a disease contracted under such circumstances was not occupational because the
disease, which resulted from a poorly heated place of employment, was not, as required under
NRS 617.440 incidental to the character of the business. Id. at 382, 355 P.2d at 352. In
Smith we also concluded that Smith's disease was not occupational because NRS 617.440
excludes from coverage any disease that come[s] from a hazard to which workmen would
have been equally exposed outside of the employment.
As the condition of poorly heated premises is common and not incidental to the
character of the printing business, so is secondary tobacco smoke a condition that is not
incidental to the character or nature of the casino business. Similarly, as the condition of
poorly heated premises is one to which workers are commonly exposed outside of
employment, so is secondary tobacco smoke a condition to which we are generally exposed
independent of our employment.
Based on the statutory provisions and on our case law, we hold as a matter of law that
diseases claimed to be caused by environmental tobacco smoke present in the work place are
not covered by the Nevada Occupational Disease Act. We therefore affirm the judgment of
the trial court.
Rose, J., and Whitehead, D. J.,
2
concur.
__________

1
The concurring justice contends that Desert Inn Casino & Hotel v. Moran, 106 Nev. 334, 792 P.2d 400
(1990), is in direct conflict with this opinion. The concurring opinion, however, fails to recognize that Moran's
aggravated joint disease was compensable as an occupational disease because it was specifically related to
Moran's job as a masseuse and was a direct result of the character of the massage business which the casino ran.
If Moran had been exposed to second-hand smoke while working as a masseuse, any lung disease would not
have been compensable, as exposure to smoke was not incidental to Moran's job as a masseuse.

2
The Honorable Jerry Carr Whitehead, District Judge of the Second Judicial District, was designated by the
Governor to sit in place of The Honorable John Mowbray, Chief Justice. Nev. Const. art. 6, 4.
Young, J., concurring:
I concur with the majority's result but cannot agree with its reasoning. I therefore write
separately.
The issue presented by this appeal is whether a lung disease caused by secondhand tobacco
smoke is covered by NODA.
1
To resolve this issue, however, this court must decide whether
compensable occupational diseases are restricted to those specifically listed in NODA.
Facts
For over twenty years, Palmer was employed at Del Webb's High Sierra Casino (High
Sierra) as a pit boss. His job required that he supervise gaming tables from an area in the
casino referred to as the pit. The pit area had noticeably high levels of secondhand tobacco
smoke. During most of Palmer's years at High Sierra, the casino encouraged smoking by
providing free cigarettes and numerous ashtrays. When High Sierra ended this policy, it still
provided cigarettes to its preferred customers.
In Spring 1988, at the age of fifty-eight, Palmer experienced coughing and breathing
problems. He curtailed his outdoor activities but continued working until August 1, 1988,
when, following doctors' orders, he took a medical leave of absence. Although Palmer was
not a smoker, several doctors diagnosed him as suffering from reactive airways disease,
severe bronchitis and asthma. They concluded that Palmer's condition was caused by, or
substantially aggravated by, the smoke-filled environment at High Sierra. His doctors ordered
that he not return to work unless he could do so in a smoke-free environment.
Palmer filed a request for workmen's compensation with High Sierra, claiming that he
suffered from chronic obstructive pulmonary disease caused by the secondhand tobacco
smoke at work. High Sierra rejected Palmer's claim, so he requested a hearing with the
administrative hearings officer. At the hearing, Palmer presented evidence from three
medical doctors who stated Palmer's condition resulted from continuous exposure to toxic
tobacco fumes contained in the secondhand tobacco smoke.
__________

1
Nonsmokers' exposure to tobacco smoke is known by several terms, including secondhand tobacco smoke,
environmental tobacco smoke, involuntary smoking and passive smoking. U.S. Environmental Protection
Agency, Indoor Air Facts No. 5, Environmental Tobacco Smoke 1 (1989). For purposes of this concurring
opinion, I will use the term secondhand tobacco smoke.
Secondhand tobacco smoke is a combination of the smoke exhaled by a smoker (mainstream smoke) and the
smoke emitted from the burning tobacco (sidestream smoke). U.S. Dept. of Health and Human Services, The
Health Consequences of Involuntary Smoking, A Report of the Surgeon General 7 (1986). The majority appears
to focus its attention primarily on mainstream smoke. Palmer's claim, however, seeks compensation for lung
disease caused by secondhand tobacco smoke, not merely mainstream smoke.
presented evidence from three medical doctors who stated Palmer's condition resulted from
continuous exposure to toxic tobacco fumes contained in the secondhand tobacco smoke.
Another doctor stated that Palmer suffered from severe asthma and that the exposure to the
smokey environment placed him at great danger.
The hearings officer found that it was uncontested that Palmer's work exposure to
cigarette smoke caused his chronic obstructive lung disease. The hearings officer, however,
affirmed the denial of compensation. He concluded that Palmer did not suffer a compensable
occupational disease because lung diseases, under NRS 617.455, were restricted to firemen
and police officers.
Palmer appealed and presented uncontroverted evidence to the appeals officer. Palmer was
not a smoker, nor did he socialize or live with smokers.
2
Palmer exercised regularly, jogging
every other day. Outside of work, he spent most of his time participating in outdoor activities,
such as water and snow skiing, fishing, windsurfing and biking.
The appeals officer reversed the decision of the hearings officer, finding:
The evidence presented by testimony and by documents establish[es] a direct causal
connection between Palmer's work in an enclosed area containing smoke in the air he
breathed and his occupational disease of chronic pulmonary dysfunction. Because
Palmer was required to be in the pit area in order to perform his job for High Sierra and
because he was exposed in that area to smoking by gaming patrons, his chronic
pulmonary disorder was occasioned by the nature of his employment. His employment
is the proximate cause of his occupational disease since he was not exposed to
[secondhand tobacco] smoke in his normal life on a habitual basis. His job conditions
exposed him to the hazard of [secondhand tobacco] smoke in a greater amount than
other workers. His chronic pulmonary disorder is incidental to the character of being a
pit boss in a gaming establishment since he was required to be in a smokey area in
order to perform his job duties.
(Emphasis added.)
3
The appeals officer concluded that Palmer suffered a compensable
occupational disease under NRS 617.440.
__________

2
Two long-time acquaintances of Palmer testified that they had never known Palmer to smoke or associate
with smokers.

3
The appeals officer further stated: Mr. Palmer has done an extraordinarily good job of establishing that
exposure in the work place was far far greater than any he could have possibly been exposed to outside of work.
Moreover, the appeals officer concluded that the disease was incidental to the character of the business because
there was no element of volitional control, as Palmer could not control his exposure to the secondhand tobacco
smoke.
suffered a compensable occupational disease under NRS 617.440. However, the district court
reversed the decision of the appeals officer, summarily concluding that the disease was not
incidental to the character of the business.
Discussion
I. Compensable occupational diseases are restricted to those statutorily listed.
By applying NRS 617.440 as a catch-all provision, the majority assumes that compensable
occupational diseases are not restricted to those statutorily listed. In so doing, the majority
unfortunately broadens the coverage under NODA in spite of the legislature's clear language
and intent to restrict compensable occupational diseases to those listed. A careful review of
NODA demonstrates that the majority's application of the statute has the potential of
inflicting serious (and perhaps devastating) financial burdens on SIIS.
A. The plain language of NODA restricts coverage to those diseases listed.
Pursuant to NODA, an employee who is disabled or dies because of an occupational
disease, as defined in this chapter, arising out of and in the course of employment in the State
of Nevada . . . [is] entitled to the compensation provided by chapter 616 . . . . NRS
617.430(1) (emphasis added).
Determination of coverage under NODA generally constitutes a two-step analysis. First,
the employee must be seeking compensation for one of the occupational diseases defined in
NRS Chapter 617. Second, the employee must show the requisite causationthat is, the
injury claimed as a result of an occupational disease must arise out of and in the course of
the employment as set forth in NRS 617.440.
4

NODA contains a schedule of twenty-two diseases in NRS 617.450. That section provides
in part:
The following diseases, as well as other occupational diseases defined in NRS 617.440,
shall be considered occupational diseases and shall be compensable as such when
contracted by an employee and when arising out of and in the course of the
employment in any process described in this section.
__________

4
Cancer as an occupational disease of firemen (NRS 617.453), lung diseases as occupational diseases of
firemen and police officers (NRS 617.455), and heart diseases as occupational diseases of firemen and police
officers (NRS 617.457) involve a different causation analysis. Those sections begin with the introductory phrase
Notwithstanding any other provision of this chapter and thereafter specify the requisite causation.
NRS 617.450 (emphasis added). While NRS 617.450 refers to other occupational diseases
defined in NRS 617.440, nowhere in NRS 617.440 is the phrase occupational diseases
expressly defined. Instead, NRS 617.440 provides:
1. An occupational disease defined in this chapter shall be deemed to arise out of
and in the course of the employment if:
(a) There is a direct causal connection between the conditions under which the work
is performed and the occupational disease;
(b) It can be seen to have followed as a natural incident of the work as a result of the
exposure occasioned by the nature of the employment;
(c) It can be fairly traced to the employment as the proximate cause; and
(d) It does not come from a hazard to which workmen would have been equally
exposed outside of the employment.
2. The disease must be incidental to the character of the business and not
independent of the relation of the employer and employee.
3. The disease need not have been foreseen or expected, but after its contraction
must appear to have had its origin in a risk connected with the employment, and to have
flowed from that source as a natural consequence.
4. In cases of disability resulting from radium poisoning or exposure to radioactive
properties or substances, or to roentgen rays (X-rays) or ionizing radiation, the
poisoning or illness resulting in disability must have been contracted in the State of
Nevada.
(Emphasis added.) This section clearly addresses only the causation element required for a
claimant to recover for a compensable occupational disease. NRS 617.440 is not a catch-all
section, as the majority implies, for the judiciary to expand by judicial fiat the number of
covered occupational diseases. The legislature could have easily provided that an
occupational disease means, is or is defined as any disease which arises out of and in
the course of the employment. Instead, NRS 617.440 provides the elements necessary for a
disease, which has already been defined as occupational, to arise out of and in the course of
the employment.
5
B.
__________

5
In only one case has this court affirmed a finding that an occupational disease is not restricted to those
diseases expressly listed in the statute. See Desert Inn Casino & Hotel v. Moran, 106 Nev. 334, 792 P.2d 400
(1990)
B. The legislative intent endorses interpreting NODA as restricted to those diseases
statutorily listed.
Assuming, arguendo, that the reference in NRS 617.450 to other occupational diseases
defined in NRS 617.440 is ambiguous, this court must then ascertainguided by reason and
public policywhat the legislature intended by such language. Sheriff v. Marcum, 105 Nev.
824, 826, 783 P.2d 1389, 1390 (1989), amended 790 P.2d 497 (1990); State v. Vezeris, 102
Nev. 232, 236, 720 P.2d 1208, 1211 (1986). Legislative intent is determined by an
examination of the whole act, its object and its scope. Nevada Power Co. v. Public Serv.
Comm'n, 102 Nev. 1, 4, 711 P.2d 867, 869 (1986). As Justice Learned Hand said in Guiseppi
v. Walling, 144 F.2d 608, 624 (2d. Cir. 1944), this court must put [itself] in the place of
those who uttered the words, and try to divine how they would have dealt with the unforeseen
situation.
1. The legislative history sets the restrictive foundation.
Traditionally, the workmen's compensation laws did not expressly cover occupational
diseases. Peter S. Barth and H. Allen Hunt, Workmen's Compensation and Work-Related
Illnesses and Diseases 92 (1980). The earliest type of occupational disease found coverage
under the definition of injury or disease of the workmen's compensation acts. Arthur
Larson, Workmen's Compensation Law, 41.20 (1991).
In 1906, England enacted a schedule-type act which specifically listed the diseases along
with the process by which they were acquired. Barth et al., supra, at 93. In the 1920's,
following England's lead, the states began adopting schedule-type occupational disease acts.
Id. at 99; Larson, supra. The limiting attribute of these schedule-type acts attracted the states;
the states were concerned with overburdening the systema foreseeable consequence of a
heavy incidence of certain diseases in particular industries. Larson, supra, 41.20.
On March 15, 1947, the Nevada Legislature enacted a schedule of compensable
occupational diseases. NRS 617.440 comes from legislation approved on that date. Act of
March 15, 1947, ch. 44, 1947 Nev. Stat. 61. The legislature obviously intended to restrict
coverage when it provided: Only the following diseases shall be considered occupational
diseases and compensable as such, when contracted by an employee arising out of and in the
course of the employment in any process described herein."
__________
(masseuse developed degenerative joint disease in her hands). In my opinion, Moran failed to properly analyze
NODA and was incorrectly decided. Therefore, I would overrule Moran to the extent it is inconsistent with this
concurring opinion.
course of the employment in any process described herein. 1947 Nev. Stat. ch. 44, 26(b).
This language was followed by a schedule describing twenty-three diseases or injuries and the
processes involved in their contraction.
Subsequent amendments followed this theme of restricted coverage. The 1947 act was
amended in 1949, providing in part:
The following diseases as defined as well as all other occupational diseases defined in
subdivision (a) of this section shall be considered occupational diseases and shall be
compensable as such, when contracted by an employee and when arising out of and in
the course of the employment in any process described herein.
1949 Nev. Stat. ch. 177, 5 (emphasis added). This language is now contained in NRS
617.450 followed by twenty-two occupational diseases and their processes. The 1949
amendment added the language which, arguably, creates the ambiguity existing in the present
statute. However, when read in connection with the remaining language of that section, it is
apparent that the legislature did not create a catch-all provision. The occupational diseases
defined in subdivision (a) (NRS 617.440) were compensable when, and only when, they
ar[ose] out of and in the course of the employment in any process described herein. 1949
Nev. Stat. ch. 177, 5 (emphasis added).
2. The legislature extends coverage beyond those in the schedule by amending NODA and
specifically listing the new disease.
Recent amendments further demonstrate that the legislature intended to limit compensable
occupational diseases to those expressly listed in the statute. NODA was amended in 1965
such that lung diseases of firemen and police officers were compensable; and in 1987, the
legislature added cancer for firemen.
6
If the 1949 act opened the door to all "occupational
diseases" arising out of and in the course of employment, these subsequent acts were
clearly unnecessary.
__________

6
Palmer argues that the 1965 amendment to NODA which added industrial coverage for firemen and police
officers somehow demonstrates a legislative intent to cover his claim. Palmer argues that coverage for lung
diseases was not expanded by NRS 617.455 but that it merely provides a conclusive presumption. This
amendment stated that lung diseases resulting from exposure to heat, smoke, fumes, tear gas or any other
noxious gases would be covered if the fireman or police officer had been employed for two or more years. In
addition, it stated that for a fireman or police officer employed continuously for five years or more, there is a
conclusive presumption that the disease arose in the course of employment.
If a conclusive presumption for those with five or more years of employment was the only purpose for the
amendment because coverage already existed, there was manifestly no reason to specify that claimants with
more than two years, but less than five years, would thereafter be covered or that
1949 act opened the door to all occupational diseases arising out of and in the course of
employment, these subsequent acts were clearly unnecessary.
Moreover, the original schedule of occupational diseases included silicosis. See 1947 Nev.
Stat. ch. 44, 26(b). By March 1957, the legislature had deleted silicosis from the list of
twenty-three occupational diseases and set it out in a separate section: Silicosis [is an]
occupational disease and [is] compensable as such when contracted by an employee and when
arising out of and in the course of the employment. See e.g., 1957 Nev. Stat. ch. 219, 1
(codified as NRS 617.460(1)). If NRS 617.440 was a catch-all provision, the legislature did
not have to list silicosis in a separate section. Rather, it could have merely deleted silicosis
from the list of twenty-three occupational diseases, and a claimant would thereafter be able
to recover pursuant to NRS 617.440.
7

3. NODA is not consonant with any of the catch-all
provisions from sister states.
The majority has erroneously grouped NODA into the type of statutes enacted by sister
states which contain both a schedule of compensable diseases and an actual catch-all
provision. See generally Larson, supra, appendix A, table 2A (state-by-state compilation of
selected occupational diseases). Each of these statutes, however, is distinguishable from
NODA. Several statutes expressly provide that compensable occupational diseases are not
limited to those in the schedule. For example, Idaho's statute expressly provides:
Recognizing that additional toxic or harmful substances or matter are continually being
discovered and used or misused, the above enumerated occupational diseases [the scheduled
diseases] are not to be taken as exclusive. . . . Idaho Code 72-438 (Supp. 1991). Likewise,
Ohio's statute provides: A disease which meets the definition of an occupational disease is
compensable pursuant to Chapter 4123 of the Revised Code though it is not specifically
listed in this section."
__________
claims related to heat, smoke, fumes, tear gas, or other noxious gases would thereafter be covered. Therefore,
if this expanded coverage had not been specified by the 1965 legislature, it would not exist.

7
Likewise, in 1991, the legislature expanded the definitions of industrial injury to include exposure to a
contagious disease while providing medical services. 1991 Nev. Stat. ch. 723, 43. Specifically, NRS
616.110(3) provides:
For purposes of this chapter, the exposure of an employee to a contagious disease while providing
medical services, including emergency medical care, in the course and scope of his employment shall be
deemed to be an injury by accident sustained by the employee arising out of and in the course of his
employment.
Revised Code though it is not specifically listed in this section. Ohio Rev. Code Ann.
4123.68 (Anderson 1990) (emphasis added).
Other statutes list a catch-all provision within the schedule of compensable diseases. To
illustrate, North Carolina's statute reads, in part:
The following diseases and conditions only shall be deemed to be occupational
diseases within the meaning of this Article:
(1) Anthrax.
(2) Arsenic poisoning.
(3) Brass poisoning.
. . . .
(13) Any disease, other than hearing loss covered in another subdivision of this
section, which is proven to be due to causes and conditions which are characteristic of
and peculiar to a particular trade, occupation or employment, but excluding all ordinary
diseases of life to which the general public is equally exposed outside of the
employment.
N.C. Gen. Stat. 97-53 (1989); see also Ga. Code Ann. 34-9-280(3)(F) (1990); Utah Code
Ann. 35-2-27(28) (1988); Pa. Stat. Ann. tit. 77 1208(n) (1991).
The remaining statutes expressly define occupational disease as a disease in catch-all
language. See N.Y. Work. Comp. Law 2(15) (McKinney Supp. 1992) (occupational disease
defined as a disease resulting from the nature of employment and contracted therein); R.I.
Gen. Laws 28-34-1(3) (1986) (occupational disease means a disease which is due to causes
and conditions which are characteristic of and peculiar to a particular trade, occupation,
process or employment); Utah Code Ann. 35-2-107 (Supp. 1991) (a compensable
occupational disease is defined as any disease or illness which arises out of and in the course
of employment).
I respectfully submit that NODA does not expand the scope of compensable diseases
beyond those listed in the schedule by any of the methods described above. There is no
savings clause for additional diseases, no catch-all provision listed within the schedule, nor is
occupational disease defined as one which arises out of and in the course of the
employment. Instead, NODA provides that an employee may recover for damages which
result from a defined occupational disease which arises out of and in the course of the
employment.
4. Public policy directs that NODA be interpreted such that compensable occupational
diseases are restricted to those listed.
Lastly, I believe that the public policy of this state will be furthered by resolving the
ambiguity, if any, in favor of the legislature's restrictive intent. The legislature has specifically
mandated that SIIS be actuarially funded and regularly review[ed] by the legislative and
executive departments. NRS 616.1701. While there is no data to show the actual impact the
majority's decision will have on the system, simple mathematics can demonstrate the possible
implications.
In our casino and hotel industries alone, it is estimated that there are slightly over 100,000
employees who, like Palmer, have been or are now being exposed in some degree to
secondhand tobacco smoke. See generally Nevada Employment Security Department, Nevada
Occupational Projections, 1987-93 (August 1989). A hypothetical worker receiving the same
salary as Palmer would receive maximum benefits of approximately $20,000 annually. If the
hypothetical worker remained permanently and totally disabled, he would receive not only
this pension but medical expenses as well. Thus, if he lived for another thirty years, he would
receive approximately $600,000 from the system, plus medical expenses (not counting any
cost of living increases that might be given).
Base on the majority's catch-all interpretation, the additional burden these new claims
could have must be viewed in regard to the current system. Claims increased sixty-two
percent during the period of 1983-92, and, in the same time period, claims expenses increased
400 percent to almost $432,000,000.
8
Mike Norris, Reforms Key to SIIS Future, Reno
Gazette-Journal, June 19, 1992, at 1B. In light of these increases, it is not surprising that SIIS
is presently in financial straits. During fiscal year 1991-92, SIIS did not generate sufficient
income to cover the incurred expenses, and, consequently, the book value of SIIS' portfolio
was substantially depleted. State Industrial Insurance System, Cash Flow Forecast,
Information Packet 1 (March 17, 1992). The 1992 fiscal year will end with an approximate
$92,000,000 deficit. Norris, supra. In order to cover this loss, SIIS will dip into its reserve. Id.
Thus, in March 1992, SIIS projected that absent a twenty-two percent rate increase, its
portfolio would be completely depleted during the first part of fiscal year 1966. Id. at 11.
__________

8
A 1972 report indicated that, nationally, at least 390,000 new occupational diseases were compensated
annually. Note, Compensating Victims of Occupational Disease, 93 Harvard Law Rev. 916 (1980) (citing The
President's Report on Occupational Safety and Health III (1972)).
completely depleted during the first part of fiscal year 1996. Id. at 11. These figures have
added significance in this case where, according to SIIS, occupational disease claims
represented less than one percent of the total claims accepted by SIIS during each of the past
five fiscal years.
Public opinion of the proposed but withdrawn twenty-two percent rate increase prompted
Nevada businesses to question whether SIIS is the appropriate avenue for ensuring
compensation for injured workers. See, e.g., Mike Kirkpatrick, Give People a Choice, Reno
Gazette-Journal, April 10, 1992, at 12A. In June 1992, SIIS proposed a reform plan which
included a 9.2 percent increase in employer premiums and the following requirements: that
claimants be required to select doctors from a prescribed list; that claims examinations be
closely scrutinized; and that vocational rehabilitation regulations be clarified. Norris, supra.
Notwithstanding the potentially crushing impact on a financially floundering system, the
majority is improvidently creating a breeding ground for modern occupational diseases by
transforming NRS 617.440 into a catch-all provision. The majority is unnecessarily
encumbering SIIS with new unforeseen claims and, conceivably, a devastating impact. Sound
policy mandates that this court should not further burden SIIS where the legislature has not so
directed.
II. Palmer demonstrated that his disease arose out of and in the course of his employment.
If, however, I accepted the majority's position that NRS 617.440 is a catch-all provision, I
would hold that Palmer asserted a compensable occupational disease. I disagree with the two
broad conclusions used by the majority to preclude Palmer's claim. The majority argues: (1)
that secondhand tobacco smoke is not incidental to the character of casinos, and (2) that
exposure to secondhand tobacco smoke is a hazard to which workers, as a class, are equally
exposed outside of employment.
A. Standards of review and construction of workmen's compensations claims support
Palmer's claim.
In reviewing administrative decisions, this court will not reverse if there is substantial
evidence to support the decision. SIIS v. Christensen, 106 Nev. 85, 87-88, 787 P.2d 408,
409-10 (1990); SIIS v. Swinney, 103 Nev. 17, 20, 731 P.2d 359, 361 (1987).
9
Substantial
evidence is evidence which a reasonable mind might accept as adequate to support a
conclusion."
__________

9
This standard of review is mandated by NRS 233B.135(3), which provides:
The court shall not substitute its judgment for that of the agency as to
mind might accept as adequate to support a conclusion. State of Nevada Employment
Security Depart. v. Hilton Hotels Corp., 102 Nev. 606, 607-08, 729 P.2d 497, 498 (1986)
(citing Richardson v. Perales, 402 U.S. 389 (1971)).
The above standard must be viewed in light of this court's long-standing policy of liberally
construing the workmen's compensation statute to provide coverage. These statutes were
enacted as a humanitarian means of compensating injured workers. Industrial Commission v.
Peck, 69 Nev. 1, 10-11, 239 P.2d 244, 248 (1952). Thus, [a] reasonable, liberal and practical
construction of workman's compensation statutes is preferable to a narrow one where these
statutes are enacted for the purpose of giving compensation, not denying it. SIIS v. Woodall,
106 Nev. 653, 658, 799 P.2d 552, 555 (1990); see also, Desert Inn Casino & Hotel v. Moran,
106 Nev. 334, 337, 792 P.2d 400, 402 (1990); Weamer v. SIIS, 104 Nev. 305, 306, 756 P.2d
1195, 1196 (1988); SIIS v. Buckley, 100 Nev. 376, 381, 682 P.2d 1387, 1390 (1984); Hansen
v. Harrah's, 100 Nev. 60, 63, 675 P.2d 394, 396 (1984).
B. Secondhand tobacco smoke is incidental to Palmer's employment.
Whether an employee has suffered a compensable occupational disease arising out of his
employment is a question of fact. General Cas. Co. of Wisconsin v. Labor and Industry
Review Comm'n, 477 N.W.2d 322, 324 (Wis.Ct.App. 1991); see also Shelby Mutual Ins. Co.
v. Department of Indus., Labor and Human Relations, 327 N.W.2d 178, 180 (Wis.Ct.App.
1982) (The question of the existence of an occupational disease is one of fact rather than
law.). Similarly, whether an occupational disease is characteristic of the employment and
caused peculiar to the employment is a factual determination Ross Lab. v. Barbour, 412
S.E.2d 205, 208-09 (Va.Ct.App. 1991).
Palmer presented uncontroverted evidence to the appeals officer that his disease was
caused by the secondhand tobacco smoke at his place of employment. Palmer was forced to
work in this polluted environment in order to perform his duties. High Sierra even facilitated
such an environment and encouraged smoking by dispersing free cigarettes to its patrons.
__________
the weight of evidence on a question of fact. The court may remand or affirm the final decision or set it
aside in whole or in part if substantial rights of the petitioner have been prejudiced because the final
decision of the agency is:
. . . .
or
dispersing free cigarettes to its patrons. As recognized by casino officials, smoking goes
hand-in-hand with gaming. Wayne Melton, More Hotel-Casinos Cater to Non-Smokers,
Reno Gazette-Journal, April 20, 1992 (quoting Emelie Melton, John Ascuaga's Nugget
Hotel-Casino publicist in Sparks).
Accordingly, the appeals officer found that Palmer's chronic pulmonary disorder is
incidental to the character of being a pit boss in a gaming establishment since he was required
to be in a smokey area in order to perform his job duties. Assuming that NRS 617.440 is a
catch-all provision, this court must affirm the appeals officer's finding because there was
substantial evidence to support such a finding. Christensen, 106 Nev. at 87-88, 787 P.2d at
409-10.
Nonetheless, the majority concludes that Palmer's disease is not incidental to the character
of casinos. Based on the uncontroverted facts of this case, the appeals officer's findings of
fact, the deference which this court accords administrative findings of fact, and our policy
toward liberal construction of the workmen's compensation laws. I disagree.
I also reject the majority's construction of the incidental requirements set forth in NRS
617.440. The rule pronounced by the majority (as suggested in its black lung disease
hypothetical) is that while the worker performs his duties in the furtherance of the business'
product, his actions necessarily create the disease-causing agent; consequently, the disease
cannot arise from conditions coincidentally occurring in the claimant's workplace. As
explained by the majority, the cause of black lung' disease, is certainly incidental to the
character of coal mining (mining coal necessarily creates coal dust). Under this reasoning,
the presence of cigarette smoke in the casino is apparently not a product of High Sierra's line
of business, which is providing gambling entertainment. Therefore, concludes the majority,
Palmer's disease is not compensable. My colleagues give several supporting reasons: (1)
depending on the particular casino, the amount and density of secondhand tobacco smoke is
highly inconstant and may range from none to quite dense; (2) the purpose of occupational
disease coverage is to protect those who suffer illness because of the special nature of their
occupation; and (3) Nevada case law is in harmony with this case.
I venture the suggestion that these reasons fail to support the majority's conclusions. First,
it is irrelevant whether the amount of secondhand tobacco smoke varies depending on the
particular casino: this case involves only Palmer's work environment at High Sierra. Here, the
fact-finder determined that High Sierra had high levels of secondhand tobacco smoke,
especially in the pit where Palmer worked.
Second, without citing authority, the majority asserts that the purpose of compensating an
employee who suffers from an occupational disease is to protect those who suffer illness
because of the special nature of their occupation. The majority reasons that this is why the
phrases natural incident and occasioned by the nature of the employment are used in NRS
617.440.
Actually, the purpose of NODA is to provide coverage for specified occupational diseases
and to terminate private litigation between the employer and its employee through no-fault
compensation. Pershing Quicksilver Co. v. Thiers, 62 Nev. 382, 389, 152 P.2d 432, 436
(1944). However, as Larson notes, awards for occupational diseases initially did not flourish
because diseases did not fit within the idea of substituting no-fault liability for those
injuries which were considered the subject of fault liability:
[W]hile accidental injuries were known to the common law and could be made the
subject of an action for damages in appropriate circumstances, the concept of
occupational disease was a stranger to the lexicon of the precompensation-era common
law. To the extent that compensation acts were thought of as substituting nonfault
liability for the kind of injuries that were potential subjects of fault liability, there was
thought to be no place for occupational diseases, which (in the sense of a disease due to
the normal conditions of the industry as distinguished from the negligence of the
employer) had consistently been held incapable of supporting a common-law action.
Larson, supra, 41.20.
10

Thus, compensation acts defined occupational diseases such that diseases which could be
contracted in every day life were excluded from coverage. Larson, supra, 41.33. Through
the language cited by the majority, as well as the other criteria set forth in NRS 617.440,
NODA likewise differentiates between occupational diseases and those contracted in every
day life. There are two conditions of employment which make this distinction: the
employment involves unusual chemicals, dusts, poisons or germs; or the employment
involves familiar harmful elements which are present in an unusual degree. Larson, supra,
41.33(b).
In fact, normal activities such as walking on hard surfaces for many years have been
grounds for a compensable disease.
__________

10
States were also uncertain as to whether occupational diseases could be more properly dealt with under
general health insurance legislation. Larson, supra, 41.20. Additionally, states did not want to place too much
burden on the system. Id.
Wildermuth v. B.P.O. Elks Club (Lodge 621), 170 N.Y.S.2d 874, 874 (N.Y.App.Div. 1958).
In Wildermuth, a waiter worked on his feet, eight to nine hours per day, for twenty-five years;
as a result, he developed varicose veins in one leg. Id. The court stated:
Appellants seem to contend that because the condition could occur to any one who is on
his feet a great deal it was not an incident of claimant's occupation. However, The
conditions of employment which distinguish the occupational disease from the ordinary
diseases of life are sufficiently distinctive if familiar harmful elements are present in
excessive degree.
Id. (citations omitted). Likewise, the Missouri Court of Appeals recognized that an
occupational disease can be identified through high exposure to familiar elements:
[T]he determinative inquiry, here, as to the special quality of the employment,
involves two considerations: 1) whether there was an exposure to the diseasecarpal
tunnel syndromewhich was greater than or different from that which affects the
public generally, and 2) whether there was a recognizable link between the disease and
some distinctive feature of the claimant's job which is common to all jobs of that sort.
Jackson v. Risby Pallet and Lumber Co., 736 S.W.2d 575, 578 (Mo.Ct.App. 1987).
Moreover, when this court construes a statute, words will be given their ordinary meaning
if possible. Dumaine v. State, 103 Nev. 121, 125, 734 P.2d 1230, 1233 (1987). NRS
617.440(2) requires that the disease must be incidental to the character of the business and
not independent of the relation of the employer and employee. Incidental is defined as
[o]ccurring or liable to occur in fortuitous or subordinate conjunction with something else of
which it forms no essential part. Oxford University Press, Oxford English Dictionary, The
Compact Edition 1401 (500th Anniv. Ed. 1971).
11
Palmer's disease definitely occurred in
subordinate conjunction with the character of the business. Stated differently, although
High Sierra is in the business of gambling, the disease nevertheless occurred in
conjunction with one of the inferior aspects of the casino, that is, that the pit contained
extremely high concentrations of secondhand tobacco smoke.
__________

11
Incidental has also been defined as:
Occurring or liable to occur in connection with something else; happening in fortuitous or subordinate
conjunction with something else; casual or accidental; liable to happen or naturally appertaining to.
The English Language Institute of America, The Living Webster Encyclopedic Dictionary 485 (1975).
of gambling, the disease nevertheless occurred in conjunction with one of the inferior aspects
of the casino, that is, that the pit contained extremely high concentrations of secondhand
tobacco smoke.
NODA also requires that the disease followed as a natural incident of the work as a result
of the exposure occasioned by the nature of the employment.
12
NRS 617.440(1)(b). The
nature of Palmer's job was that he supervised the pit, an area which exposed him to high
levels of secondhand tobacco smoke. After twenty years of this exposurewhich was
occasioned by the nature of being a pit bosshe developed a lung disease. Palmer therefore
satisfied this element of NODA.
Finally, to support its reasoning, the majority refers to Smith v. Garside, 76 Nev. 377, 355
P.2d 849 (1960), while ignoring this court's more recent decision of Desert Inn Casino &
Hotel v. Moran, 106 Nev. 334, 792 P.2d 400 (1990).
In Moran, the claimant developed degenerative joint disease in her hands which was
aggravated by her job as a masseuse. Moran, 106 Nev. at 335, 792 P.2d at 401. Even though
she was employed by a casino, this court concluded that she suffered an occupational disease.
Id. at 336-37, 792 P.2d at 402. Under the majority's reasoning, how is a masseuse's
degenerative joint disease incidental to the character of a casino's business? How is it more
incidental than a gaming room filled with high levels of secondhand tobacco smoke,
especially where High Sierra exacerbated this work environment by dispersing free cigarettes
to its patrons? I respectfully suggest that Moran is in direct conflict with the incidental
issue portion of the majority's opinion.
Even Smith lends only superficial support to the majority's position. In that case, appellant
worked in a printing plant, where the heat was turned off near the end of March due to the
warm weather. Smith, 76 Nev. at 380, 355 P.2d at 851. On March 28, the temperature
dropped, creating a cold environment for all of one day and half of the next. Id. at 381, 355
P.2d at 851. At oral arguments on appeal, the employer conceded that the claimant had not
suffered an occupational disease,
13
and we summarily stated: This was necessarily so by
reason of the requirements of
__________

12
The majority construes this requirement as the natural incident of these businesses. However, NRS
617.440(1)(b) actually emphasizes the nature of the employment, not the business.

13
Appellant brought a common-law action for damages she suffered after being afflicted with a chest
infection which developed into serious diseases. Smith, 76 Nev. at 379, 355 P.2d at 850. After appellant
presented her case, the district court dismissed the case pursuant to NRCP 41(b) based on the ground her injury
was covered under the compensation acts. Id.
NRS 617.440 requiring that such disease does not come from a hazard to which workmen
would have been equally exposed outside of the employment,' and that the disease must be
incidental to the character of the business.' Id. at 382, 355 P.2d at 851-52.
Palmer has presented a far more compelling case than was presented in Smith. Palmer was
exposed to secondhand tobacco smoke only at work, and this exposure occurred for over
twenty years. While the Smith claimant was exposed to a cold environment for one and
one-half days, there was no evidence concerning her lifestyle away from work. Therefore, we
properly concluded in Smith that the claimant could have been equally exposed to the hazard
outside of her workplace.
In sum, if NRS 617.440 is a catch-all provision, the appeals officer had substantial
evidence to support its finding that Palmer's disease met the incidental requirements. These
provisions seek to distinguish a disease which has developed due to the claimant's working
conditions, as opposed to conditions outside of the claimant's workplace. The claimant should
prevail when he can demonstrate that he was exposed to unusual harmful substances or
familiar substances in unusually high concentrations. Palmer demonstrated by overwhelming
evidence that he developed his lung disease as a result of the high levels of secondhand
tobacco smoke at High Sierra.
C. Palmer was not equally exposed to secondhand tobacco smoke outside his workplace.
1. The scientific evidence demonstrates the extreme hazard Palmer faced at work.
Secondhand tobacco smoke contains both mainstream and sidestream smoke. American
Lung Association, Indoor Air Pollution Fact Sheet, Secondhand Smoke (1989). When the
smoker inhales, he draws mainstream smoke into his mouth, and when he subsequently
exhales, he exposes nonsmokers to this mainstream smoke. U.S. Dept. of Health and Human
Services, The Health Consequences of Involuntary Smoking, A Report of the Surgeon
General 7 (1986) (hereinafter Health Consequences). Sidestream smoke is the smoke
which comes off the burning end of the cigarette, polluting the air with numerous chemicals.
Id. at 7-8. There are over 4,700 chemical compounds in secondhand tobacco smoke and, of
those, forty-three are carcinogenic. U.S. Environmental Protection Agency, Indoor Air Facts,
Environmental Tobacco Smoke 1 (June 1989). Moreover, some of the substances are
mutagenic and can cause permanent damage to the genetic material of cells. Id.
In October 1986, former Surgeon General C. Everett Koop, M.D., stated that those
exposed to heavy levels of secondhand tobacco smoke "in the same office space or
workroom absorb as much smoke as if they themselves were 'mainstream' smoking two
or three cigarettes per day."
M.D., stated that those exposed to heavy levels of secondhand tobacco smoke in the same
office space or workroom absorb as much smoke as if they themselves were mainstream'
smoking two or three cigarettes per day. Surgeon General C. Everett Koop, M.D., Address at
the Workshop on Tobacco-Free America in Minneapolis, Minn. (Oct. 16, 1986). In fact,
sidestream smoke contains greater quantities of toxic chemicals than are present in
mainstream smoke. Id. For example, tar, the most carcinogenic substance, is seventy percent
more concentrated in sidestream smoke than in mainstream smoke.
14
Id.
Secondhand tobacco smoke persists for long periods after smoking stops. U.S.
Environmental Protection Agency, supra, at 2. Studies show that a single smoker in a home
can double the amount of particulate air pollution inhaled by nonsmoker members of the
household. Id. Indeed, the levels of indoor pollution caused by tobacco smoke are higher
than most outdoor pollution levels. American Lung Association, On the Air 9 (1988). Most
ventilation systems are not even designed to improve the indoor air quality; they are designed
to conserve energy. Id. In fact, secondhand tobacco smoke cannot be removed totally from
indoor air unless the source, smoking, is removed. U.S. Environmental Protection Agency,
supra, at 2.
Health concerns prompted the Surgeon General to conduct an extensive study in this area;
and in 1986, he concluded that secondhand tobacco smoke is a cause of disease, including
cancer, in healthy nonsmokers. Health Consequences, at 7. The report stated that
secondhand tobacco smoke causes nonsmokers to develop lung cancer, acute respiratory
disease, and chronic respiratory disease. Id. at 10.
15
2.
__________

14
Sidestream smoke also contains 2.5 times greater quantities of carbon monoxide, 2.7 times greater
quantities of nicotine and seventy-three times greater amounts of ammonia than are contained in mainstream
smoke. Surgeon General C. Everett Koop, M.D., Address at the Workshop on Tobacco-Free America in
Minneapolis, Minn. (Oct. 16, 1986); see also Health Consequences, 7-8.

15
The Environmental Protection Agency (EPA), classifies suspected human carcinogens into three groups:
(1) Group A consists of known human carcinogens; (2) Group B consists of probable human carcinogens; and
(3) Group C consists of possible human carcinogens. McKinney v. Anderson, 924 F.2d 1500, 1506-07 (9th Cir.
1991) (citing, Environmental Protection Agency, Methodology for Evaluating Potential Carcinogenicity in
Support of Reportable Quantity Adjustments Pursuant to CERCLA Section 102, 13-16 (1988)), vacated on other
grounds, Helling v. McKinney, 112 S.Ct. 291 (1991). Examples of Group A include arsenic, asbestos, benzene,
and chromium compounds. Id. In 1990, the EPA released a draft report wherein it classified secondhand tobacco
smoke as a Group A carcinogen, a known human carcinogen. Environmental Protection Agency, Health Effects
of Passive Smoking; Assessment of Lung Cancer in Adults and Respiratory Disorders in Children; External
Review Draft, 55 Fed. Reg. 25, 874 (1990).
2. The uncontroverted evidence demonstrates that Palmer was not equally exposed outside of
work.
Palmer presented uncontroverted evidence that he was exposed to smoke only at work,
that he was not a smoker, that he did not associate (or live) with smokers, that he spent his
free time participating in outdoor activities, and that he exercised regularly. In addition,
Palmer presented uncontested medical testimony that his disease was caused by the exposure
to the secondhand tobacco smoke. In fact, after Palmer left the smoke-filled environment at
work, his condition slightly improved. Finally, Palmer presented scientific evidence of the
dangers associated with exposure to secondhand tobacco smoke, including findings by the
former Surgeon General, C. Everett Koop, M.D.
The appeals officer therefore found that Palmer was not equally exposed to secondhand
tobacco smoke outside his workplace. Nonetheless, the majority concludes that secondhand
tobacco smoke is a hazard to which workers, as a class, may be equally exposed outside of
the employment.' By concluding that workers as a class may be exposed equally (without
any evidence presented at the hearing), the majority has again ignored the factual findings of
the appeals officer (which was based on uncontroverted evidence) and strayed from the issue
presented in this case, namely, whether Palmer was equally exposed to secondhand tobacco
smoke outside of his employment. If the legislature had intended for a claimant to prove that
workers as a class are not equally exposed outside the workplace, it could have easily so
done. It did not. See NRS 617.440(1)(d).
16
I respectfully submit that under applicable law,
we must affirm the appeals officer's finding that Palmer was not equally exposed to
secondhand tobacco smoke outside his workplace because there is substantial evidence
to support this finding, Christensen, 106 Nev. at S7-SS, 7S7 P.2d at 409-10, and no
evidence whatsoever to the contrary.
__________

16
The majority's broad generalization simply ignores the reality facing casino employees who work in
gaming areas. To highlight, according to the Tax and License Division of the Nevada Gaming Control Board,
John Ascuaga's Nugget in Sparks has over 1,200 slot machines and fifty-seven gaming tables; the Carson Nugget
in Carson City has approximately 680 slot machines and twenty gaming tables. In order to accommodate
smokers, these casinos provide approximately one ashtray per two slot machines and several ashtrays per gaming
table. Clearly, these businesses do not provide so many ashtrays for aesthetic purposes; they are there to
accommodate the heavy number of smokers who frequent these establishments.
In response to Nevada having the fourth highest cancer death rate in the nation, Dr. Edwin Savlov, president
of the local American Cancer Society chapter, stated, There's too much smoking. Just walk through the
casinos. Susan Voyles, State Ranks No. 4 in Cancer Deaths, Reno Gazette-Journal, June 23, 1992, at 1A. One
needs only to take such a stroll through a busy casino to dispel any idea that a nonsmoker, such as Palmer, is
equally exposed to secondhand tobacco smoke outside of work. Such an excursion will linger for a long period
on the traveler's person and clothes, as the bad odors produced by tobacco smoke clings to one's clothes, hair
and skin. American Lung Association, Facts About . . . Secondhand Smoke 3 (1990). This is because while
certain chemicals created by burning tobaccos cause
I respectfully submit that under applicable law, we must affirm the appeals officer's
finding that Palmer was not equally exposed to secondhand tobacco smoke outside his
workplace because there is substantial evidence to support this finding, Christensen, 106 Nev.
at 87-88, 787 P.2d at 409-10, and no evidence whatsoever to the contrary.
Conclusion
The majority has implicitly transformed NRS 617.440 into a catch-all provisiona
metamorphosis which is neither supported by the clear language of the statute nor the
legislature's intent. In my opinion, NODA is restricted to those occupational diseases
statutorily listed. I would therefore hold that Palmer's lung disease which was caused by
secondhand tobacco smoke is not a compensable occupational disease. If, however, NRS
617.440 could be properly construed as a catch-all provision, I would then be compelled to
hold that Palmer asserted a compensable occupational disease, for he presented substantial
evidence to satisfy the requirements of NRS 617.440. Consequently, I respectfully concur
only in the result.
Steffen, J., concurring:
Although I join in the opinion written by my brother Springer, I have also elected to write
a separate concurrence in order to address certain aspects of this unfortunate case that were
either not raised in the court's opinion or were not responsive to certain points raised in the
concurring opinion by my brother Young.
As a general proposition, I suggest with substantial reluctance that Palmer's claim for relief
under the provisions of the Nevada Occupational Disease Act (NODA) must be denied
because all of the deleterious effects of smoking, even to assiduous non-smokers like Palmer
who have suffered from exposure to secondary smoke, must currently be recognized as
products of a non-venereal form of social disease. For many years the government has
promoted the tobacco industry in this country through subsidies and price-supports. Until
comparatively recent years, smoking was almost uniformly promoted as a socially desirable
and fashionable habit that left non-smokers with few public havens to avoid air polluted by
smokers. Indeed, even today, smoking is promoted in advertising and the entertainment
industry as being idiosyncratic to any number of attractively portrayed people.
It is in this milieu of socially acceptable tobacco pollution that almost every aspect of
public intercourse became immersed.
__________
bad odors, other chemicals actually help the odors to hold onto the surface that they penetrate. Id.
almost every aspect of public intercourse became immersed. Not unexpectedly, casinos were
hardly an exception. Even the airlines formerly distributed free samples of cigarettes in
furtherance of the ubiquitous effort on the part of the tobacco companies to place ever
increasing percentages of humankind within the shackles of their products. The results have
been predictable, and despite the belated efforts of the United States Government and certain
health agencies and medical groups to enlighten the American public on the serious health
hazards associated with smokingor with exposure to secondary smoke created by
othersvast numbers of our citizens remain addicted to tobacco.
Although Palmer has produced strong evidence of his success in avoiding environmental
tobacco smoke to any great degree other than at his place of employment at the High Sierra, I
am thoroughly persuaded that our Legislature never contemplated the inclusion of disease
attributable to tobacco smoke within the purview of NODA. Unfortunately, the pervasive
problems related to smoking that continue to plague society and its taxpayers (whether in the
form of taxpayers' subsidies on the enormous health costs that are generated through
tobacco-caused illnesses, or in attempting to provide educational disincentives for smoking,
or in progressively freeing our public buildings and other public places from tobacco
pollution, to name but a few) provide definition to the extent of potential problems that could
arise from judicially engrafting tobacco-related diseases within our legislatively created
scheme of workmen's compensation. The judicial laboratory is ill-equipped to define the
financial and administrative impact that would result from making smoke-related or
smoke-caused disease compensable under NODA. Clearly, the Legislature is best suited for
undertaking the studies, conducting the hearings, and determining the consequences that
would ensue from including disease from exposure to secondary tobacco smoke in the work
place within the categories of disease that are compensable under NODA. It is substantially
on this basis that I concur in the denial of benefits to Palmer.
I deem it unwise to simply leave unchallenged the position asserted by Justice Young
which, with certain statutory exceptions, would limit relief under NODA to the twenty-two
diseases identified under NRS 617.450. Although the issue addressed by my colleague's
concurrence was not raised on appeal, and was thus disregarded in the majority opinion, I am
reluctant to risk the possibility that failure to respond may be viewed by some as a form of
deference for the position.
I do not accept the proposition that the Legislature, either by the wording of its statutes or
the most limited of its contemplations, ever intended to provide relief only to those
employees who fall prey to the twenty-two identified diseases, while denying relief to
those who suffer occupational disease of a type not yet catalogued under NRS 617.450.
fall prey to the twenty-two identified diseases, while denying relief to those who suffer
occupational disease of a type not yet catalogued under NRS 617.450. The result of such a
scheme would be unfair, discriminatory, and most probably lacking in a rational basis.
Before addressing what I consider to be a fallacious view of the statutory language by
Justice Young, I note that the general approach he assumes concerning relief for employees
impacted by occupational disease is contrary to the position we have consistently taken in our
cases concerning the policy served by Nevada's industrial insurance system. Justice Young
proceeds from the premise that any ambiguity in NODA ( and I find none regarding the point
under discussion) should be resolved in favor of the legislature's restrictive intent. This
court, on the other hand, has declared that:
[C]ompensation laws were enacted as a humanitarian measure. The modern trend is to
construe the industrial insurance acts broadly and liberally, to protect the interest of the
injured worker and his dependents. A reasonable, liberal and practical construction is
preferable to a narrow one, since these acts are enacted for the purpose of giving
compensation, not for the denial thereof.
Nevada Indus. Comm'n v. Peck, 69 Nev. 1, 11-12, 239 P.2d 244, 248 (1952). See, e.g.,
Spencer v. Harrah's Inc., 98 Nev. 99, 641 P.2d 481 (1982) (humanitarian purposes of
workmen's compensation laws compels liberal construction in favor of claimants); Desert Inn
Casino & Hotel v. Moran, 106 Nev. 334, 792 P.2d 400 (1990) (workmen's compensation
statutes must be liberally construed consistent with legislative intent to protect workers).
Turning to the pertinent statutes, Justice Young contends that NRS 617.450 exclusively
identifies the particular occupational diseases that may constitute the basis for a claim by an
afflicted employee.
1
I disagree. The Legislature has been able to identify and itemize specific
diseases that are most often employment-related, and describe the employment process or
environment that is conducive to contraction of each such disease. There is nothing endemic
to the identified diseases that would prompt the Legislature to grant relief to employees
suffering from those diseases while denying relief for work-generated diseases not identified
on the list. This is precisely why the Legislature provided an additional basis for relief for
non-listed, work-generated diseases in the language of NRS 617.450.
__________

1
Justice Young's concurrence also recognizes the special relief available to firemen and police officers for
certain diseases provided for under chapter 617 in addition to relief stated separately concerning silicosis. Other
than these exceptions, the position taken by my colleague would limit relief for occupational disease to the
twenty-two diseases listed under NRS 617.450.
vided an additional basis for relief for non-listed, work-generated diseases in the language of
NRS 617.450.
The statutory language of NRS 617.450 commences as follows: The following diseases,
as well as other occupational diseases defined in NRS 617.440, shall be considered
occupational diseases . . . . (emphasis supplied). The highlighted phrase clearly means to
the same extent or degree as the identified diseases. The phrase incorporates as additional
covered diseases those which are not identified by name but by the criteria defined under
NRS 617.440.
2
Justice Young's rationale would render NRS 617.440 redundant and
meaningless by characterizing it as addressing only the causation element required for
recovering industrial compensation. Moreover, my colleague further opines that NRS
617.440 is not a catch-all section from which the list of covered diseases may be expanded
by judicial fiat. I suggest that Justice Young misperceives both the intent and the effect of the
statute.
First, NRS 617.440 advances the basic purposes of the State Industrial Insurance System
(SIIS) by providing a basis for relief to employees who have contracted an unnamed
occupational disease as a result of their employment. NRS 617.440 stands as a tacit
recognition by the Legislature that its index of occupational diseases does not purport to be
complete, and that all employees who suffer occupational disease traceable to their
employment are entitled to compensation. Second, NRS 617.440 is self-executing and does
not require activation by judicial fiat. The statute sets forth the criteria necessary for a
sustainable claim in terms readily understood and implemented by SIIS. The statute does not
provide a basis for excluding coverage to workers smitten by occupational diseases that
have not yet found their way onto the list set forth in NRS 617.450.
__________

2
1. An occupational disease defined in this chapter shall be deemed to arise out of and in the course of
the employment if:
(a) There is a direct causal connection between the conditions under which the work is performed and
the occupational disease;
(b) It can be seen to have followed as a natural incident of the work as a result of the exposure
occasioned by the nature of the employment;
(c) It can be fairly traced to the employment as the proximate cause; and
(d) It does not come from a hazard to which workmen would have been equally exposed outside of
the employment.
2. The disease must be incidental to the character of the business and not independent of the relation
of the employer and employee.
3. The disease need not have been foreseen or expected, but after its contraction must appear to have
had its origin in a risk connected with the employment, and to have flowed from that source as a natural
consequence.
4. In cases of disability resulting from radium poisoning or exposure to radioactive properties or
substances, or to roentgen rays (X-rays) or ionizing radiation, the poisoning or illness resulting in
disability must have been contracted in the State of Nevada.
does not provide a basis for excluding coverage to workers smitten by occupational diseases
that have not yet found their way onto the list set forth in NRS 617.450.
Justice Young gravely declares that the court is creating a breeding ground for modern
occupational diseases that could provide a crushing impact on our financially floundering
industrial insurance system. My colleague thus apparently justifies a scheme where only
certain favored workers are compensated for occupational disease, while others are denied
protection based upon some arbitrary classification or omission from classification. Such has
never been the intent or the thrust of our workmen's compensation system. If the system is
floundering financially, and there are indications that financial difficulties do exist, the
solution is not to dispense relief by caprice or favor. Justice Young may as well argue that a
suffering worker's entitlement to compensation for occupational disease should be determined
by a coin toss. Such methodology, no more unfair than that espoused by my colleague, would
certainly provide financial relief to the system.
Finally, Justice Young throws a gratuitous sop to our societal victim, Palmer, by devoting
substantial print indicating why, if he were to interpret the statutes consistent with today's
opinion, he would rule in favor of Palmer. I am unable to resist extending the exercise to the
extent of noting that despite the cogent evidence Palmer produced indicating that his disease
is attributable to secondary smoke at his place of work, he does not satisfy the criteria set
forth in NRS 617.440(2) which requires that the disease be incidental to the character of the
business.
There is nothing inherent in casino operations that requires a smoke-laden environment.
Gaming could occur in the midst of patrons presenting odoriferous problems in personal
hygiene just as well as it could in the midst of secondary tobacco smoke. Both conditions
would be offensive to many, but neither is essential to gaming nor a characteristic of the
business. As indicated by Justice Springer in the court's opinion, coal dust is an expected and
incidental characteristic of the coal mining industry, but smoking and secondary smoke is not
a characteristic of gaming operations. An analysis of the twenty-two diseases and the
processes by which they are contracted, as specified under NRS 617.450, reveals the point
made here. Without exception, the listed diseases represent conditions precipitated by
processes of production, handling or use within the business or industry. In neither NRS
617.440 nor NRS 617.450 is provision made for coverage for diseases arising out of social
practice, habit, or convenience that are unrelated or non-incidental to the nature or
characteristics of the business in which the worker is engaged.
Unfortunately, this is another reason why Palmer would not be entitled to compensation
under the circumstances of this case.
____________
108 Nev. 700, 700 (1992) Powell v. State
KITRICH POWELL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22348
September 3, 1992 838 P.2d 921
Appeal from a judgment of conviction of first degree murder and from a sentence of death.
Eighth Judicial District Court, Clark County; John S. McGroarty, Judge.
Defendant was convicted of first degree murder of girlfriend's four-year-old child by the
district court and he appealed. The supreme court held that: (1) defendant waived right to
complain of State's delay in bringing him before magistrate for preliminary hearing; (2)
decision to shackle defendant during penalty phase of case was not abuse of discretion; and
(3) death sentence was not excessive given nature of crime and of defendant.
Affirmed.
Lee Elizabeth McMahon, for Appellant.
Tufteland, Chief Deputy District Attorney, and Daniel M. Seaton, Deputy District Attorney,
1. Arrest.
Purpose of statute requiring that preliminary hearing be held within seventy-two hours of defendant's arrest is to prevent police
from resorting to secret interrogations and coercive tactics. NRS 171.178.
2. Criminal Law.
In order to be entitled to relief, defendant must show prejudice resulting from State's delay in bringing him before magistrate for
preliminary hearing. NRS 171.178.
3. Courts.
United States Supreme Court's McLaughlin decision, that suspect must be brought before magistrate for preliminary hearing
within forty-eight hours of his arrest, could not be applied retroactively to cases in which preliminary hearing was held before
McLaughlin was announced. U.S.C.A.Const. amend. 4.
4. Courts.
Factors to be weighed in determining whether judicial decision may be applied retroactively are: purpose of decision; reliance on
prior, contrary law; and effect that retroactive application would have on administration of justice.
contrary law; and effect that retroactive application would have on administration of justice.
5. Arrest.
Defendant waived right to appearance before magistrate within seventy-two hours of his arrest, by voluntarily waiving his right to
remain silent and right to attorney and making incriminating statement to police. NRS 171.178; U.S.C.A.Const. amends. 5, 6.
6. Criminal Law.
Decision to admit or exclude evidence is within discretion of trial judge, and judge's determination will not be overturned on
appeal absent manifest error.
7. Criminal Law.
Other crimes evidence consisting of defendant's threats to kill murder victim's fourteen-year-old sister unless she lied at
defendant's trial was admissible, under complete story of crime doctrine, in order to explain why defendant would admit to the sister
that he had killed victim.
8. Criminal Law.
Complete story of crime doctrine provides that, under certain circumstances, evidence of another crime may be introduced at
trial if other crime is interconnected to act in question, such that witness cannot describe act in question without referring to this other
crime. NRS 48.035, subd. 3.
9. Homicide.
Terms deliberate, premeditated and willful, as used in first degree murder statute, all connote the same general ideal of
intention to kill; accordingly, if jury is properly instructed on concept of premeditation, it is not necessary to separately define
deliberateness or willfulness. NRS 200.010, 200.030.
10. Homicide.
Nature and extent of murder victim's injuries may constitute evidence of defendant's willfulness, premeditation and deliberation,
within meaning of first degree murder statute. NRS 200.010, 200.030.
11. Criminal Law.
Right of defendant to be free from shackles during guilt phase of trial is designed to protect presumption of innocence.
12. Criminal Law.
Defendant no longer has any constitutional right to be free of prison garb and shackles during penalty phase of case, inasmuch as
there is no longer any presumption of innocence.
13. Criminal Law.
Decision concerning restraint of defendant during penalty phase of case is within sound discretion of trial court, after balancing
State's interests for safety against interests of defendant.
14. Criminal Law.
Requiring first degree murder defendant to wear leg restraints during penalty phase of case and to be accompanied by law
enforcement personnel was not abuse of discretion, in light of defendant's threats to poke out eyes of law enforcement officers, sexual
remarks to prosecutor and threats to show court violence.
15. Criminal Law.
Trial judge did not improperly delegate to bailiff his discretion with regard to security measures by soliciting bailiff's opinion
regarding need to shackle defendant during penalty phase of murder case.
16. Criminal Law.
In exercising his discretion to restrain defendant during penalty phase of trial, judge may heed knowledge of court officers
regarding defendant's record, characteristics and tendency, and may consider officer's recommendation.
17. Homicide.
Evidence regarding first degree murder defendant's alleged molestation of twelve-year-old girl was admissible during penalty
phase of case, as relevant to defendant's character and as integral part of explaining defendant's death threat against girl's father.
18. Criminal Law.
Character evidence which is neither dubious nor tenuous is properly admitted during penalty hearing.
19. Homicide.
Penalty phase instruction in capital murder case, that jurors were not to be influenced by sympathy, prejudice or public opinion,
did not improperly prevent jurors from exercising mercy or compassion, in light of trial court's instruction that they were to consider all
mitigating circumstances.
20. Criminal Law.
Penalty phase instruction in capital murder case, that jurors were to consider any other mitigating circumstances, was not
improper as failing to provide specific guidelines for considering mitigating evidence of defendant's background and character; jury
was instructed that it could find mitigating circumstance even though circumstance was not sufficient to constitute defense or to reduce
degree of crime.
21. Homicide.
Death sentence was not excessive for first degree murder defendant who had previously been convicted of other violent crime, in
light of evidence that defendant had repeatedly subjected four-year-old victim to brutal beatings, which left her covered with injuries
literally from her head to her toe, and in light of defendant's inability to present even one person who had anything good to say about
him. NRS 200.010, 200.030.
OPINION
Per Curiam:
A jury convicted appellant Kitrich Powell (Powell) of first degree murder in the death of
four-year-old Melea Allen (Melea). Powell had subjected the child to repeated beatings which
resulted in a variety of injuries, one of which caused her death. Powell was sentenced to death
following a penalty hearing. For the following reasons, we affirm both the conviction and the
sentence.
Facts
Powell met Sharon Allen and her three children in September 1989 at a Salvation Army
shelter in Las Vegas, Nevada. The Allens and Powell then moved in and out of several
apartments and motels for the next two months. During this period, Mrs.
Allen worked at Deseret Industries from 8:30 a.m. until 5:00 p.m. Powell stayed home and
took care of Melea while the older children were at school and Mrs. Allen was at work.
Neighbors noticed that Melea had bruises on her face and legs, a cut chin and that one of
her eyes was quite red. On one occasion, a neighbor heard Melea screaming and crying.
When he saw Melea approximately one and one-half hours later, he noticed new bruises on
her face and legs which had not been there the night before. In the neighbor's presence,
Powell asked Melea how she had gotten hurt, and she answered: Daddy, you did it. Powell
then said, No, baby, remember you fell in the tub, remember? Powell and Melea repeated
this conversation a couple of times.
The testimony at trial indicated that Powell cruelly teased Melea and mistreated her
physically in the presence of others. On the evening of November 2, 1989, Melea was quiet
and inactive. She could not move her head and was complaining of head and neck pain. The
left side of her head was soft and spungy, and she had a new bruise on her forehead. She told
her mother and siblings that Daddy (Powell) had dropped her on her head when he was
lifting her over his shoulder. Melea was not taken to a hospital by either Powell or Mrs. Allen
on the day these new injuries occurred.
The next morning, November 3, 1989, Melea could not hold up her head and could not
walk without assistance. Mrs. Allen went to work as usual, and Powell delayed seeking
medical treatment for Melea until late that morning. By the time Melea was admitted to the
emergency room of the hospital, she was unconscious and in critical condition. An
examination of the comatose child revealed a deep laceration on her chin, which was in the
process of healing, and a number of bruises which were in different stages of healing. Melea's
buttocks showed a pattern of several injuries on top of one another. She had extensive
bruising all over her body and her spine was fractured. Melea's head showed evidence of
several injuries. The most recent and severe injury had caused her brain to swell and was the
cause of the coma. Melea's head injury was most likely caused by a blunt trauma which
carried considerable force. The State's expert witness, Dr. Richard Krugman, testified that in
the last three years he had seen only one head injury which was similar to Melea's. That injury
resulted from an adolescent being propelled off the top of a pickup truck at forty-five miles
per hour onto a concrete surface. Melea's injuries suggested a repetitive pattern of daily
injury. All three physicians who testified agreed that Melea's injuries were not the result of
accidents and that Melea had been subjected to severe abuse for some time. Without
regaining consciousness, Melea died from the head injury on November S, 19S9.
consciousness, Melea died from the head injury on November 8, 1989.
Originally, Powell was arrested and charged with child abuse with substantial bodily harm
(NRS 200.508). Shortly after Melea's death, Powell was additionally charged with murder
(NRS 200.010; NRS 200.030). Following a jury trial, Powell was found guilty of murder in
the first degree. Following a penalty hearing, the jury imposed a sentence of death. This
appeal followed. On appeal, Powell asserts several assignments of error, which we now
address.
Delay in Appearing Before a Magistrate
[Headnotes 1, 2]
Powell argues that he was not brought before a magistrate within seventy-two hours as
required by NRS 171.178(3). NRS 171.178(3) provides:
3. If an arrested person is not brought before a magistrate within 72 hours after
arrest, excluding nonjudicial days, the magistrate:
(a) Shall give the prosecuting attorney an opportunity to explain the circumstances
leading to the delay; and
(b) May release the arrested person if he determines that the person was not brought
before a magistrate without unnecessary delay.
The purpose of NRS 171.178 is to prevent the police from resorting to secret interrogations
and coercive tactics. Huebner v. State, 103 Nev. 29, 32, 731 P.2d 1330, 1333 (1987). This
court has repeatedly held that the defendant must show prejudice which resulted from the
delay. See e.g., Id. at 32, 731 P.2d at 1333; Morgan v. Sheriff, 92 Nev. 544, 546, 554 P.2d
733, 734 (1976).
Powell was arrested on Friday, November 3, 1989. A magistrate found probable cause to
hold Powell for a preliminary hearing on Tuesday, November 7, 1989. It is unclear from the
record whether Powell was present before the magistrate on this day. Powell contends that he
was not brought before a magistrate until November 13, 1989. On November 3, 1989, and
November 7, 1989, prior to his initial appearance, Powell made statements to the police. He
admitted to spanking Melea for wetting her pants and slapping her on other occasions. Powell
told officials that he never intended to hurt the baby. These statements, which were
presented to the jury, were clearly prejudicial to Powell.
We initially note that the United States Supreme Court has provided additional guidance
on the issue of what constitutes a timely initial appearance. See County of Riverside v.
McLaughlin, 111 S.Ct.
McLaughlin, 111 S.Ct. 1661 (1991). In McLaughlin, the Court stated that the Fourth
Amendment allows for a reasonable delay of a probable cause determination while authorities
are processing suspects through the criminal justice system. Id. at 1669. The Court then went
on to state that a judicial determination of probable cause within forty-eight hours of arrest
comports with the promptness requirement set forth in Gerstein v. Pugh, 420 U.S. 103
(1975). McLaughlin, 111 S.Ct. at 1670. Intervening weekends (and implicitly, holidays or
other non-judicial days) are included in the calculation of forty-eight hours. Id. If the suspect
does not receive a probable cause determination within forty-eight hours, the State must
prove that the delay was due to a bona fide emergency or other extraordinary circumstances.
Id.
[Headnotes 3, 4]
The McLaughlin case renders NRS 171.178(3) unconstitutional insofar that it permits an
initial appearance up to seventy-two hours after arrest and instructs that non-judicial days be
excluded from the calculation of those hours. Based on McLaughlin, we hold that a suspect
must come before a magistrate within forty-eight hours, including non-judicial days, for a
probable cause determination.
1

[Headnote 5]
However, the analysis of whether or not Powell's rights were violated does not end with
the mere facts of a delay and incriminating statements. We have previously held that an
accused waives his right to a seasonal arraignment when he voluntarily waives his right to
remain silent. Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979), vacated on other
grounds, 111 S.Ct. 1678 (1991). There, we stated:
We subscribe to the rule of law which provides that when an accused voluntarily
waives his right to silence and his right to counsel, he concurrently waives his right to
be seasonably arraigned.
__________

1
It is important to note that the forty-eight hour requirement mandated by McLaughlin does not apply to the
case at hand. When a case announces a new rule of law, the application of the rule is prospective unless it is a
rule of constitutional law; and then it is only applied retroactively under certain circumstances. Gier v. District
Court, 106 Nev. 208, 212, 789 P.2d 1245, 1248 (1990). The factors to be weighed in determining retroactivity
are: (1) the purpose of the rule; (2) the reliance on prior, contrary law; and (3) the effect retroactive application
would have on the administration of justice. Franklin v. State, 98 Nev. 266, 269 n.2, 646 P.2d 543, 545 n.2
(1982) (citing Tehan v. United States, 382 U.S. 406 (1966)).
We conclude that the new rule announced in McLaughlin would not apply retroactively, if only for the
monumental negative impact which retroactive application would have on the administration of justice in
Nevada. Were McLaughlin to be applied retroactively, untold numbers of prisoners would be set free because
they were not brought before a magistrate within forty-eight hours.
to counsel, he concurrently waives his right to be seasonably arraigned. The reason for
this rule is that the primary purpose of an arraignment is to inform the defendant of his
rights. But a delay in arraignment is not prejudicial when a defendant has already been
advised of his rights, was promptly so advised, and voluntarily waived his rights. This
is particularly so when the delay is not flagrant and the record is silent relative to any
other irregularities which go to the issue of voluntariness.
Id. at 680, 601 P.2d at 414 (citations omitted).
Powell does not challenge the voluntariness of his statements, nor is there any indication
in the record that the statements were involuntary. During the first interview on November 3,
1989, prior to being formally arrested, Powell left the interview twice in order to smoke a
cigarette. Powell's conduct indicates that he felt free to leave the interview at any time and
that he was not coerced or involuntarily detained in any way. On November 7, 1989, Powell
was read his Miranda rights prior to the interview, and he waived those rights. There is no
indication that the waiver was involuntary.
Irrespective of when Powell was brought before a magistrate, he waived his right to
remain silent and his right to counsel. By waiving those rights, he thereby waived his right to
a timely arraignment. Deutscher, 95 Nev. at 680, 601 P.2d at 414. The same reasoning this
court employed in Deutscher applies to the requirement of an initial appearance before a
magistrate within the prescribed time limit. At the initial appearance, Powell would have been
advised, inter alia, of the right to counsel and the right to remain silent. NRS 171.186.
2
One
of the purposes of a speedy arraignment is to ensure that the suspect is informed of his Fifth
Amendment right against self-incrimination. Huebner v. State, 103 Nev. 29, 32, 731 P.2d
1330, 1333 (1987). The same is true of a timely first appearance. Powell was advised of his
rights on November 7, 1989, when he gave a statement to the police, and he voluntarily
waived those rights. We therefore conclude that by waiving his right to remain silent and his
right to counsel, Powell waived his right to an appearance before a magistrate within
seventy-two hours.
__________

2
NRS 171.186 prescribes the rights of the defendant prior to a preliminary hearing. NRS 171.186 provides:
The magistrate or master shall inform the defendant of the complaint against him and of any affidavit
filed therewith, of his right to retain counsel, of his right to request the assignment of counsel if he is
unable to obtain counsel, and of his right to have a preliminary examination. He shall also inform the
defendant that he is not required to make a statement and that any statement made by him may be used
against him. The magistrate shall allow the defendant reasonable time and opportunity to consult counsel,
and shall admit the defendant to bail as provided in this Title.
waiving his right to remain silent and his right to counsel, Powell waived his right to an
appearance before a magistrate within seventy-two hours.
Evidence of a Prior Bad Act in the Guilt Phase
[Headnote 6]
Melea's fourteen-year-old sister, Melinda, testified that prior to trial, Powell asked her to
lie for him at trial and that he repeatedly made harassing phone calls to her. Powell told her
that he had killed Melea and threatened Melinda by saying that she was next. Prior to
Melinda's testimony, defense counsel moved to exclude the statement regarding the threat,
because it constituted proof of another crime. The State offered the statement as proof of
Powell's intent to kill Melea. NRS 48.045(2).
3
The district court denied the motion, stating
that there was no showing of unfair prejudice, confusion of the issues or misleading the jury
if the testimony were allowed. The decision to admit or exclude evidence, after balancing the
prejudicial effect with the probative value, is within the discretion of the trial judge. Petrocelli
v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985); see also NRS 48.035(1) and (2).
4
The
trial court's determination will not be overturned absent manifest error. Petrocelli, 101 Nev.
at 52, 692 P.2d at 508.
[Headnotes 7, 8]
We conclude that the district court did not abuse its discretion in allowing the threat to be
presented to the jury. The testimony was admissible under NRS 48.045 as proof of intent to
kill Melea, as well as the complete story of the crime doctrine. That doctrine provides that
under certain circumstances, evidence of another crime may be introduced at trial when the
other crime is interconnected to the act in question such that a witness cannot describe the act
in controversy without referring to the other crime.
__________

3
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.

4
48.035 Exclusion of relevant evidence on grounds of prejudice, confusion or waste of time.
1. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the
danger of unfair prejudice, of confusion of the issues or of misleading the jury.
considerations of undue delay, waste of time or needless presentation of cumulative evidence. . . .
other crime. See NRS 48.035(3);
5
Cirillo v. State, 96 Nev. 489, 493, 611 P.2d 1093, 1095
(1980). The doctrine is applicable in this case. Here, Melinda could not describe Powell's
admission that he had murdered Melea without describing the context in which the statement
was made. Otherwise, the jury would have had no idea why Powell would confess to a
fourteen-year-old child.
Guilt Phase Jury Instructions on Willfulness, Deliberateness and Premeditation
[Headnote 9]
Powell contends that the jury was not provided with an instruction defining willful or
deliberate and that in the absence of such definitions, the jury was misled to believe that the
State was only required to prove that Powell acted with premeditation.
Powell asserts that Jury Instruction No. 9 was incomplete because it merely defined
premeditation. Jury Instruction No. 9 provided:
Premeditation is a design, a determination to kill, distinctly formed in the mind at
any moment before or at the time of the killing.
Premeditation need not be for a day, an hour or even a minute. It may be as
instantaneous as successive thoughts of the mind. For if the jury believes from the
evidence that the act constituting the killing has been preceded by and has been the
result of premeditation, no matter how rapidly the premeditation is followed by the act
constituting the killing, it is willful, deliberate and premeditated murder.
Powell contends that this instruction directed the jury that if it found premeditation, it was to
automatically find willfulness and deliberation as well.
In Briano v. State, 94 Nev. 422, 581 P.2d 5 (1979), this court referred to deliberate and
premeditated as a single term and not separate elements requiring separate thought
processes. We recently considered deliberateness in DePasquale v. State, 106 Nev. 843, 803
P.2d 218 (1990), cert. denied, 112 S.Ct. 99 (1991). There, we stated:
Premeditation and deliberation can be inferred from the nature and extent of the
injuries, coupled with repeated blows. Given the brutal and extensive nature of Mr.
Cane's injuries {including injuries to the head, torso, ribs and back), and inference of
premeditation and deliberation can be reasonably drawn.
__________

5
NRS 48.035(3) provides in relevant part:
Evidence of another act or crime which is so closely related to an act in controversy or a crime
charged that an ordinary witness cannot describe the act in controversy or the crime charged without
referring to the other act or crime shall not be excluded. . . .
injuries (including injuries to the head, torso, ribs and back), an inference of
premeditation and deliberation can be reasonably drawn. This is particularly true when
considering the metal rod which was inserted deeply into the victim's ear. It is difficult
to imagine such a process occurring without deliberate thought.
Id. at 848, 803 P.2d at 221. In DePasquale, as in Briano, we used the terms premeditated and
deliberate as a single term.
Other jurisdictions have held that the terms deliberate, premeditated and willful are a
single phrase, meaning simply that the actor intended to commit the act and intended death to
result. See Sanders v. State, 392 So.2d 1280, 1282 (Ala.Crim.App. 1981) (the terms
premeditation and deliberation may be grouped together under the phrase formed design);
People v. Fusselman, 46 Cal.App.3d 289, 299 (Cal.Ct.App. 1975) (distinguishing malice
aforethought from the phrase willful, deliberate and premeditated; the latter phrase
indicates a frame of mind in which the actor weighs the course of action and chooses to kill);
Fuller v. State, 413 A.2d 277, 280 (Md.Ct.Spec.App. 1980) (the trilogy of terms willful,
deliberate and premeditated connote the same general idea of the intention to kill);
Commonwealth v. Nelson, 523 A.2d 728, 732 (Pa. 1987) (a willful, deliberate and
premeditated killing is one where the actor has specific intent to bring about the death of the
victim). In Fuller, the Maryland Court of Special Appeals queried whether the three
adjectives described three different aspects of the mental state of intent to kill or whether the
terms were simply a rhetorical expression used for emphasis. Fuller, 413, A.2d at 280. The
court went on to ask if the act could be willful (a specific design and purpose to kill) without
simultaneously being deliberate (conscious knowledge of the purpose to kill). Id. We agree
with the Maryland court when it stated: The trilogy of terms connotes the same general
ideathe intention to kill. The use of all three words would seem to us to serve no purpose
other than to shroud the intention in an aura of redundancy so as to convey the seriousness of
the matter. Id. at 380 (quoting Brown v. State, 410 A.2d 17, 22 (Md.Ct.App. 1979)).
We have set forth the requirement for premeditation in Briano v. State, 94 Nev. 422, 581
P.2d 5 (1978), where we stated [T]he state must prove that a design to kill was distinctly and
rationally formed in the mind of the perpetrator, at or before the time the fatal blows were
struck. . . . [I]t [does not] matter how short a time existed between the formation of the design
to kill and the killing itself. Id. at 425, 581 P.2d at 7. As long as the instruction on
premeditation which is given to the jury comports with Briano, it is not necessary to
separately define deliberateness or willfulness.
willfulness. The instruction on premeditation which was given to the jury in the case at hand
was an accurate definition. We therefore conclude that Powell's argument has no merit.
Guilt Phase Instruction on What Constitutes Evidence of Willfulness, Premeditation and
Deliberation
[Headnote 10]
Powell takes exception to Jury Instruction No. 10, arguing that it constituted an
impermissible comment on the evidence by the court because it instructed the jury what
evidence it could consider to show willfulness and deliberateness. The instruction read: The
nature and extent of the injuries, coupled with repeated blows, may constitute evidence of
willfulness, premeditation and deliberation.
The court has sanctioned a finding of premeditation and deliberation inferred from the
circumstances of the killing in several cases. See e.g., DePasquale v. State, 106 Nev. 843, 803
P.2d 218 (1990); Hern v. State, 97 Nev. 529, 635 P.2d 278 (1981); Curtis v. State, 93 Nev.
504, 568 P.2d 583 (1977). In fact, in DePasquale, this court used language nearly identical to
the instruction about which Powell complains. There, we stated that [p]remeditation and
deliberation can be inferred from the nature and extent of the injuries, coupled with repeated
blows. DePasquale, 106 Nev. at 848, 803 P.2d at 221. The jury instruction did not,
therefore, constitute an impermissible comment on the evidence.
Powell's Appearance in Shackles During the Penalty Phase
During both the guilt phase and the penalty phase of the trial, Powell exhibited disruptive
and threatening behavior. The first outburst by Powell occurred during the guilt phase of the
trial when one of the prosecutors informed the court that Powell had made derogatory
remarks regarding a witness' sexual preference as the witness was walking to the stand. The
judge declined to make a direct order, because he had not heard the comments himself. The
judge suggested that defense counsel speak to Powell, whereupon Powell stated, Mr. Seaton
has commented on me and f----- me in my a-- two or three different times since I have been in
[the] courtroom now. Now, that's out of line. Now, you admonish him because of his
outrageous behavior. The judge then enjoined everyone from making any personal
comments about any of the parties, counsel or any other officers of the court. Within minutes,
one of the prosecutors informed the court that Powell was making inappropriate comments,
which were not specified, to the prosecutors. Powell was admonished again.
6
During the
penalty phase of the trial, Powell angrily interrupted the testimony of a former neighbor,
accusing the witness of lying.
__________

6
We note that this entire interchange was outside the presence of the jury.
During the penalty phase of the trial, Powell angrily interrupted the testimony of a former
neighbor, accusing the witness of lying. The court recessed early for lunch, admonishing
Powell to cool off. After court resumed, but before the jury was brought in, the court stated:
We observed, for the record, that Mr. Powell reacted angrily to the testimony of his
former neighbor, Bob Yoho, the individual who knew him from his home town. Rather
than allow the defendant to continue with his verbal outburst, the court took a recess for
lunch. . . . Now, for the record, we have had some additional developments since we
broke for lunch; is that correct?
The bailiff then informed the court that when Powell was told he would remain in leg
shackles (as apparently had been decided in chambers), he looked at the officers and said,
What are you looking at, you pig scumbag, and Before this is over I'll get one of you. Take
off your badge and your gun, I'll whip your a--, and I am quicker than I seem to be, or I'm
quicker than I appear. The bailiff told the court that Powell went on to say Before this is
over, I'll get your eye, I'll take your eye. One of the prosecutors informed the court that when
she came back from the lunch break, Powell made remarks to her of a sexual nature, and
stated, If they want to see violence, I'll show them violence. The court ordered Powell to be
put in leg and arm restraints for the remainder of the penalty phase.
Later in the penalty phase, defense counsel requested that the shackles be removed prior to
Powell testifying in order to avoid prejudicing the jury. The court ordered Powell to remain in
hand and leg shackles, explaining that the ruling was based on Powell's outbursts and his
hair-trigger temper which resulted in the need to protect the safety of the jury and court
personnel. The defense then requested alternatively that Powell be unshackled but
accompanied by law enforcement personnel while he was on the witness stand. The court
asked the bailiff if that arrangement was acceptable to him, and the bailiff indicated that he
thought Powell should be in leg shackles because of the close proximity of the witness stand
to the bench and the jury. The court then ruled that Powell's hands and arms would be
unshackled but that the leg shackles would remain. The leg shackles could not be seen by the
jury while Powell was on the witness stand. During Powell's testimony, the bailiff sat in the
jury box.
Powell asserts that it was error for the district court to force him to appear in shackles
during the penalty phase of the trial and to be accompanied by law enforcement personnel.
[Headnotes 11-13]
The standard for restraint during the penalty phase is elucidated in Duckett v. State, 104
Nev. 6
dated in Duckett v. State, 104 Nev. 6, 752 P.2d 752 (1988). In Duckett, this court stated that
the right of a defendant to be free from shackles during the guilt phase of the trial is designed
to protect the presumption of innocence. Id. at 11, 752 P.2d at 755. During the penalty phase,
there is no longer a presumption of innocence and therefore the constitutional guarantee to be
free of prison garb and shackles no longer exists. Id. During the penalty phase, public safety
concerns are to be afforded greater significance. Id. The decision concerning restraint of the
defendant during the penalty phase of the trial is within the sound discretion of the trial court,
after balancing the state's interests for safety against the interests of the defendant. Id. The
court's decision will not be overturned absent an abuse of discretion. Id.
[Headnote 14]
In Duckett, this court stated that the defendant stood convicted of a brutal murder of two
people, for which the death penalty could be imposed, and he might have concluded that he
had nothing to lose from further acts of violence. Id. at 12, 752 P.2d at 755. The facts in this
case demonstrate an even greater need for security than the facts in Duckett. Here, Powell
threatened to poke out the eyes of law enforcement officers, made sexual remarks to a
prosecutor, harassed a witness and threatened to show [the court] violence. We hold that it
was not an abuse of discretion to shackle Powell during the penalty phase of the trial.
Delegation of Discretion to the Bailiff
[Headnote 15]
Powell also argues that the district court erred in delegating its discretion with regard to
security measures to the bailiff. Powell asserts that it was error for the district court to ask the
bailiff if it was acceptable to him that Powell be unshackled while on the witness stand.
[Headnote 16]
When exercising discretion in restraining the defendant, a trial judge has the right to give
heed to an officer of the court's knowledge regarding the defendant's record, characteristics
and tendencies. State v. McKay, 63 Nev. 118, 157, 165 P.2d 389, 406 (1946). The trial judge
may also consider the officer's recommendation. Id.
The record clearly indicates that the court was exercising its own discretion in determining
which method of restraint was appropriate under the circumstances and merely consulted the
bailiff for his opinion. We note that the court also considered the wishes of both defense
counsel and the prosecution. The bailiff was the officer who heard the defendant threaten to
poke out an officer's eye.
officer's eye. The bailiff clearly had knowledge of Powell's tendencies and characteristics, and
the district court was entitled to consider the bailiff's knowledge. We therefore find no merit
in Powell's contention.
Evidence of a Prior Bad Act in the Penalty Phase
[Headnote 17]
During the penalty phase of the trial, Thomas Kucera (Kucera) testified that he formerly
ran a halfway house for parolees and that Powell stayed there in early 1989. After Powell had
been at the halfway house for two weeks, Kucera's twelve-year-old daughter informed him
that Powell had molested her, whereupon Kucera told Powell to move out. Kucera telephoned
Powell's probation officer to report the incident while Powell was present. Powell then said
angrily, I am going to kill you. No, I am not going to do it. I will have somebody else do it.
The trial court allowed the testimony, finding that the probative value of the evidence
outweighed the prejudice to Powell.
Powell asserts that the testimony of the molestation should not have been admitted, as it
was more prejudicial than probative. See NRS 48.035(1). Powell argues that the testimony of
the death threat could have been introduced without the reference to the molestation and that
the testimony created an impression in the jury's mind that Powell had a pattern of mistreating
young girls.
[Headnote 18]
During a penalty hearing, evidence may be presented concerning aggravating and
mitigating circumstances relative to the offense, defendant or victim and on any other matter
which the court deems relevant to sentence, whether or not the evidence is ordinarily
admissible. NRS 175.552. This court has previously sanctioned the admission of testimony
during a penalty hearing regarding an attempted sexual assault. Biondi v. State, 101 Nev. 252,
699 P.2d 1062 (1985). In Biondi, this court held that character evidence which is neither
dubious nor tenuous is properly admitted during the penalty hearing. Id. at 257, 699 P.2d at
1065-66. Testimony regarding sexual assault is relevant to the defendant's character. Id.
Powell fails to make any argument as to how Kucera's testimony was not credible. Further,
the testimony regarding the molestation was an integral part of explaining the death threat
against Kucera. We therefore conclude that the district court was within the range of its
discretion in finding the testimony was more probative than prejudicial.
Anti-sympathy Jury Instruction
[Headnote 19]
Part of Jury Instruction No. 12, which was given during the penalty phase, read: "A
verdict may never be influenced by sympathy, prejudice or public opinion.
penalty phase, read: A verdict may never be influenced by sympathy, prejudice or public
opinion. Your decision should be the product of sincere judgment and sound discretion in
accordance with these rules of law.
Powell argues that a reasonable juror could interpret the language as an instruction to
discard mercy and compassion as well as the mitigating circumstances in sentencing him.
Powell's contention is without merit. In Riley v. State, 107 Nev. 205, 808 P.2d 551 (1991),
we stated, This court has previously ruled that it is not error to instruct the jury not to be
influenced by sympathy if the court also instructs the jury to consider mitigating
circumstances. Id. at 215, 808 P.2d at 557 (citations omitted). Here, the jury was instructed
to consider mitigating circumstances. Based on our holding in Riley, it was not error to give
this instruction.
Instruction on Any Other Mitigating Circumstances
[Headnote 20]
The jury was instructed on mitigating circumstances in Jury Instruction No. 8, which
provides in relevant part:
Murder of the First Degree may be mitigated by any of the following circumstances,
even though the mitigating circumstance is not sufficient to constitute a defense or
reduce the degree of the crime;
. . . .
8. Any other mitigating circumstances.
Powell takes exception with the phrase any other mitigating circumstances. Powell
argues that this catch-all language fails to provide the jury with specific guidelines for
considering mitigating evidence of his background and character.
This court considered the exact same argument in Flanagan v. State, 107 Nev. 243, 810
P.2d 759 (1991), vacated on other grounds, 112 S.Ct. 1464 (1992). There, this court stated:
[A] reasonable juror would conclude that mitigation was not restricted to crime-related
factors because it was stated that the mitigating circumstances did not have to constitute
a defense or reduce the degree of the crime. Furthermore, the jury in fact found two of
the three mitigating circumstances to exist. In addition, the instruction as a whole
adequately informed the jury of its right and duty to consider mitigating evidence.
Finally, it is highly unlikely that a different outcome would have resulted from more
specific instructions, given that the evidence of aggravating circumstances was
overwhelming and clearly outweighed the mitigating circumstances found by the jury.
Thus, we conclude that Instruction S did not violate the Eighth Amendment by
impermissibly limiting the jury's consideration of mitigation to evidence related to
the crime.
Instruction 8 did not violate the Eighth Amendment by impermissibly limiting the jury's
consideration of mitigation to evidence related to the crime.
Id. at 249, 810 P.2d at 762-63 (Emphasis in original.)
Here, the jury was similarly instructed that it could find a mitigating circumstance even
though that circumstance was not sufficient to constitute a defense or reduce the degree of the
crime. The jury also found four aggravating circumstances and no mitigating circumstances;
the aggravating circumstances obviously outweighed the mitigating circumstances. In light of
Flanagan, Powell's argument is without merit.
NRS 177.055 Considerations
[Headnote 21]
This court must consider the certain issues in all cases where the death penalty is imposed
under NRS 177.055. NRS 177.055 provides in relevant part:
2. [T]he sentence must be reviewed on the record by the supreme court, which shall
consider, in a single proceeding if an appeal is taken:
. . . .
(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.
We will discuss each of these issues in turn.
The evidence clearly supported the finding of the aggravating circumstances in this case.
NRS 177.055(2)(b). Powell was under a sentence of imprisonment for three crimes: robbery
with a firearm and two counts of second degree burglary (aggravating circumstances under
NRS 200.033(1)). Further, the evidence which was admitted at the penalty hearing firmly
established that Powell had previously been convicted of a felony involving the use or threat
of violence to another: robbery with a firearm (aggravating circumstance under NRS
200.033(2)).
We have examined the record and conclude that the sentence was not imposed under the
influence of passion, prejudice or any arbitrary factor. NRS 177.055(2)(c). We also conclude
that the sentence of death is not excessive. Over time, Powell repeatedly subjected
four-year-old Melea to brutal beatings, one of which eventually took her life. Every surface of
the child's body was covered with injuries, literally head to toe. She had suffered several head
injuries and her spine was fractured. Further, at the penalty hearing, only one witness
appeared on Powell's behalf.
penalty hearing, only one witness appeared on Powell's behalf. The defense investigator who
contacted Powell's family and friends indicated that he was unable to find one person who
had anything good to say about Powell. We therefore conclude that given the crime and the
defendant, the sentence of death was not excessive. NRS 177.055(2)(d).
Conclusion
We have considered Powell's remaining allegations of error and find them to be without
merit. Consequently, we affirm the judgment against him and the sentence of death.
____________
108 Nev. 716, 716 (1992) Hudson v. State
CLAUDE FLENOY HUDSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22134
September 3, 1992 837 P.2d 1361
Appeal from a judgment of conviction. Eighth Judicial District Court, Clark County; Jack
Lehman, Judge.
Defendant was convicted in the district court of one count of attempted murder with the
use of a deadly weapon. Defendant appealed. The supreme court held that evidence was
sufficient to allow jury to reject defendant's insanity defense and find him guilty.
Affirmed.
Morgan D. Harris, Public Defender and Howard Brooks, Deputy Public Defender, Las
Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex A. Bell, District Attorney and
Victoria Villegas, Deputy District Attorney, Clark County for Respondent.
1. Criminal Law.
It is the jury's province to determine whether defendant is legally insane.
2. Homicide.
Evidence was sufficient to allow jury to reject defendant's insanity defense and find him guilty of attempted murder; psychiatrist
testified that defendant fluctuated between sanity and insanity, and was a sophisticated person capable of misrepresenting himself to
mental health professionals, despite defendant's claim that he must have been insane to attack bicycle shop owner.
3. Criminal Law.
A mere history of mental illness is not enough to establish insanity for purposes of insanity defense.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, following a jury verdict, of one count of
attempted murder with use of a deadly weapon. The district court sentenced appellant to two
consecutive terms of fifteen years in the Nevada State Prison.
On January 23, 1990, the state filed an information in the district court charging appellant
with one count each of attempted murder with use of a deadly weapon and changing, altering,
removing, or obliterating the serial number of a firearm (a misdemeanor). The misdemeanor
firearm charge was later dismissed.
At trial, the state's first witness was John Cooper, the owner of the First Choice Bicycle
Shop. On September 7, 1989, Cooper opened his shop at about 9:00 a.m. and then went
across the street to get some coffee and a paper. When Cooper returned to the shop, appellant
was waiting out front. Cooper had seen appellant in the neighborhood, and Cooper thought
appellant had been in the shop a couple of times. Appellant said I thought you had locked
yourself in. Cooper replied no, I just went to get coffee. As Cooper opened the door and
stepped inside the shop, appellant grabbed the door, ran in behind Cooper, and stabbed
Cooper in the back twice before Cooper could turn around. Appellant stabbed Cooper a total
of seven or eight times. Appellant and Cooper struggled until Cooper was able to retrieve a
.357 magnum gun from Cooper's pocket and shot appellant three times. At that point two men
from neighboring shops came into the store and pulled appellant from Cooper.
The state's next witnesses were Jerry Birchett and David Horn. Birchett was a neighboring
shop owner, and Horn was an identification specialist with the Las Vegas Metropolitan Police
Department. Neither witness added anything to the testimony of Cooper.
The defense case began with the testimony of appellant. According to appellant, he had a
B.S. degree in English and was going to go to the University of Utah to get a Master's degree.
Appellant explained that he first met Cooper when appellant got a flat tire on his bicycle.
Cooper refused to patch the tube and insisted on selling appellant a new tube. To top it all off,
Cooper charged appellant five dollars despite the fact the Kmart sells bicycle tubes for one
dollar and seventy-seven cents. Over the last five or six years, everyone has been stealing
from appellant, which enrages him.
When asked about his second encounter with Cooper, the following exchange took place:
A: I did. I had one more encounter with him.
Q: Did you have another encounter with John Cooper?
A: Yeah.
Q: What happened in that encounter?
A: That time somebody had stolen my bicycle and not only had they stolen my
bicycle but it seemed to me it was almost like a conspiracy to steal the bicycle because I
stopped at American Youth Hostel. The guy absolutely wouldn't let me use the phone.
There was a phone outside that wasn't working. I told him I was in a big hurry. Let me
call up this place to see if it was GinaGina Eckstein was singing. Well these people
here that are over fifty-years-old or even younger may remember her Dad, Billy
Eckstein, but I wanted to see Gina Eckstein and I was running realthere was a real
shaky thing on time, you know, and he wouldn't let me use that telephone so I rode
down the street to the first bar I came to. I laid the bicycle down and I rushed in there
and put a quarter in the telephone to find out when this event was going to begin, and
where it was
. . .
A: So he put on a brand new spigot, or whatever it's called and charged meI don't
know how much it was now, but Bike World charged aboutway less. And not only
that but when I went to Bike World that time, which I went on a bicycle, they seemed to
already know all about the deal and they didn't like it, but they, you know, when they
told me the figures, you know, I can't explain it. They just seemed to know all about it
and they didn't exactlythey showed no respect for John in his responses to me as to
the spigot.
Q: Now, if I understand it right, are you saying that you actually went in there? You
talked to John while he was fixing your bicycle?
A: I was in there two times. He offered to let me come in there and watch the fights
with him. But I sure wasn't about to do that with a guy that charged me five dollars for
an inner tube when it only need a patch, so I knew I'd been robbed and there was
nothing I could do. No, I wasn't going to watch boxing with him. I told John I used to
live in Arkansas and I was probably the best fighter they had in Arkansas at that time,
but I didn't tell him that. I just told himI gave it to him in a funny way. You know, I
told him that I went to the finals in both tournaments in Arkansas and lost aI said I'm
a two time loser in your state. Which was true, but you know, I didn't tell him the
stories on it at all.
Appellant then proceeded with a rambling, semi-coherent story of hearing voices and
being tortured and seeing flashes of light and finally deciding to go and talk to Cooper about
Cooper stealing from him. Basically, appellant claimed that when he met Cooper at the shop
that Cooper made some kind of rude remark, briefly turned his back, and then turned around
and shot appellant. Appellant then stabbed Cooper in self-defense.
On cross-examination, the state argued with appellant over whether Cooper had a right not
to patch Appellant's tire, talked about appellant studying psychology in college, and appellant
explained again about hearing voices. Appellant explained that he stabbed Cooper because of
everyone stealing from him and tampering with his bicycles, and Cooper happened to be
available to stab. Appellant also explained that he stabbed Cooper because someone from
next door came into the shop and was laughing while appellant was talking to Cooper.
Appellant concluded that the person from next door was part of this electronic deal, you
know. When the deputy district attorney asked appellant how the serial number came to be
removed from appellant's gun, appellant suggested that the deputy district attorney might
have scratched them off.
The defense next called Dr. Jack A. Jurasky, a psychiatrist. Dr. Jurasky graduated from
medical school in 1946; in 1968, he was the Senior State Psychiatrist for the Mental Health
Department of Nevada. Dr. Jurasky testified that appellant has a history of illegal activity and
psychiatric illness going back twenty years, and that appellant has at various times been
determined to be incompetent and has been committed to mental hospitals. Following an
interview with appellant on November 13, 1989, Jurasky felt that appellant was suffering
from a mental illness of psychotic proportions, that also because of his inability to tell me the
date and to do relatively simple problems that he may be suffering from some organic brain
damage, and finally I felt he was not competent to assist counsel and that he should be in a
mental hospital. Dr. Jurasky testified that I think I took the position that he did not know
right from wrong at the time of the alleged crime. On being pressed further on this point,
Jurasky stated that [appellant] simply did not know what was going on. Following
extensive treatment at Lake's Crossing, Jurasky felt that appellant was competent to stand
trial.
When presented with a hypothetical containing the facts of this case as testified to by
Cooper, Dr. Jurasky testified that his conclusion would be that appellant would not have
known right from wrong, and would not have understood the nature and quality of his acts
during this unprovoked attack.
On cross-examination, Dr. Jurasky conceded that appellant was smart enough to feign a
mental disorder.
was smart enough to feign a mental disorder. Jurasky also conceded that a person who knew
right from wrong might commit the acts appellant committed. Jurasky testified that
appellant's actions at the bicycle shop would not necessarily prove that appellant was legally
insane. Jurasky's views were influenced by the totality of the circumstances, including
appellant's long history of mental illness. Appellant presented different faces and could
appear quite rational, and then quite irrational.
The jury was instructed on the insanity defense, and returned a verdict of guilty. Appellant
was convicted and sentenced as indicated above. This appeal followed.
Appellant contends that there was insufficient evidence to allow the jury to reject his
insanity defense and find him guilty. Appellant argues that Dr. Jurasky testified that there
were two conclusions that could be reached, depending on which set of facts was believed. If
appellant's version of the facts was believed, then Jurasky believed that appellant could be
sane. If Cooper's version of the facts was believed, then Jurasky felt that appellant was legally
insane.
Appellant argues that appellant's version of the facts is inherently unbelievable. It is
incredible to believe that a store owner simply turned around and shot a potential customer
for no good reason. The only plausible story is that offered by Cooper; appellant was simply
crazy.
Appellant points out that if a defendant can prove by a preponderance of the evidence that
he did not know the difference between right and wrong, then he is entitled to be found not
guilty by reason of insanity. Clark v. State, 95 Nev. 24, 588 P.2d 1027 (1979). Appellant
urges that only one verdict was possible under the facts of this case; that appellant was not
guilty by reason of insanity.
[Headnotes 1, 2]
Appellant's argument is without merit. It is the jury's province to determine whether a
defendant is legally insane. Aldana v. State, 102 Nev. 245, 720 P.2d 1217 (1986). Dr.
Jurasky's testimony showed that appellant fluctuates between sanity and insanity and that
appellant is a sophisticated person who is capable of misrepresenting himself to mental health
professionals.
Jurasky testified that appellant's actions had to be interpreted in light of what appellant's
motive was, and that there was no way to be sure what the motive was. Jurasky stated that a
sane person, motivated by revenge, could overreact and attack someone, even though he knew
the difference between right and wrong.
[Headnote 3]
A mere history of mental illness is not enough to establish insanity. Ford v. State, 102
Nev. 126, 136, 717 P.2d 27, 33 {19S6).
(1986). The jury was entitled to believe that Jurasky was mistaken, or otherwise unworthy of
belief. Accordingly, even though there was no expert testimony suggesting that appellant was
sane, the jury was entitled to reach that conclusion. Accordingly, we affirm the judgment of
conviction.
Hudson was insane at the time he assaulted John Cooper. As the majority points out,
Hudson recounted at trial a semi-coherent story of hearing voices, being tortured and seeing
flashes of light. He imagined that John Cooper and others had been stealing from him.
Hudson, who has a twenty-year history of disabling, psychotic mental disorder, has been
admitted to a number of mental hospitals. The idea that he was feigning or simulating insanity
(the only idea that even remotely supports the majority judgment) is ludicrous.
To the prosecution's credit, no experts were brought in by the State to say, under oath, that
this manifestly insane man was perfectly sane; the only evidence on the issue is Dr. Jurasky's
almost matter-of-fact testimony that, of course, Hudson was insane when he attacked Cooper
for stealing from him. Thus, I conclude that no reasonable juror could have found Hudson
sane. I fully realize that the Hudsons of our society are frequently segregated by putting them
in penal institutions because there is no place else to keep them. Hudson does not belong in
prison, so I must dissent from the judgment of affirming his conviction.
____________
108 Nev. 721, 721 (1992) State, Dep't of Taxation v. Visual Comm.
STATE OF NEVADA, DEPARTMENT OF TAXATION, Appellant, v. VISUAL
COMMUNICATIONS, INC., a Nevada Corporation dba PHOTOFINISH, Respondent.
No. 22006
September 3, 1992 836 P.2d 1245
Appeal from a district court order reversing a Department of Taxation assessment. Eighth
Judicial District Court, Clark County; J. Charles Thompson, Judge.
Commercial photography business filed petition for judicial review of a decision of the
Nevada Tax Commission upholding a tax assessment for failure to collect and pay sales tax
on photographers' labor charges. The district court entered decision for taxpayer, and
department appealed. The supreme court held that charges for photographer's labor were not
subject to sales tax.
Affirmed.
Frankie Sue Del Papa, Attorney General, and John S. Bartlett, Deputy Attorney General,
Carson City, for Appellant.
Gordon & Silver, Las Vegas, for Respondent.
1. Taxation.
Commercial photography studio's charges for a photographer's professional labor for time spent visualizing, creating and preparing
a photo shoot were not subject to sales tax; statute's administrative regulation addressed to photographers did not specifically indicate
that time spent by photographer in visualizing, creating and preparing photo shoot was subject to tax, and thus had to be construed in
favor of taxpayer. NRS 18.110, subd. 1, 372.060, 372.060, subd. 3(e), 372.105, 372.380.
2. Statutes; Taxation.
Taxing statutes and regulations which were conflicting and inconsistent had to be construed in favor of the taxpayers.
OPINION
Per Curiam:
The district court reversed a sales tax assessment which was levied by appellant against
respondent and subsequently upheld by both an administrative hearing officer and the Nevada
Tax Commission. The district court also awarded costs of suit to respondent. On appeal,
appellant contends that the district court erred both in reversing the assessment and in
awarding costs of suit. We hold that the district court did not err.
THE FACTS
Respondent, Visual Communications, Inc. (Visual), is a commercial photography
business engaged in staging, setting up and creating photographic layouts, and finishing and
selling prints. Visual primarily serves commercial clients such as casinos, real estate firms
and land developers.
After producing photographs for a client, Visual submits to the client an invoice
containing two separately listed charges. One charge is for printing and developing the
photographs; the other is an hourly charge for the photographer's labor, which includes
creativity, visualization, client consultation, set-up and supervision. Visual computes and
collects sales tax for the former charge but not for the latter charge.
According to appellant Department of Taxation (the Department), if a photograph is sold
to the client, then the charge for the photographer's labor is to be taxed in conjunction with
the charge for printing and developing. If no photograph is sold to the client, the
photographer's labor charge is not subject to sales tax. As a result of Visual's failure to collect
and pay sales tax on its photographers' labor charges when selling photographs to clients,
the Department assessed a sales tax deficiency of $26,135.70 against Visual.
photographers' labor charges when selling photographs to clients, the Department assessed a
sales tax deficiency of $26,135.70 against Visual. Visual contested the assessment,
contending that charges for a photographer's labor are not subject to sales tax.
After an audit hearing, an administrative hearing officer upheld the tax assessment. The
Nevada Tax Commission subsequently affirmed the hearing officer's decision. Visual then
filed a petition for judicial review. On December 17, 1990, the district court entered a
decision in favor of Visual, concluding that the Department could not impose sales tax on a
photographer's labor.
On December 18, 1990, Visual filed and served a notice of entry of decision. On January
16, 1991, the Department filed a timely notice of appeal and, on February 28, 1991, the
district court granted the Department's motion for a stay of the decision pending appeal.
On March 12, 1991, Visual filed its initial memorandum of costs and disbursements. The
Department moved to retax these costs, arguing that Visual's memorandum had not been
timely filed. See NRS 18.110(1). The district court refused either to award Visual its costs or
to grant the Department's motion to retax, concluding that the decision entered on December
17, 1990, was not a final judgment. On April 4, 1991, the district court entered what it
considered the final judgment.
On April 9, 1991, Visual filed both a notice of entry of judgment and a second
memorandum of costs and disbursements. The Department again moved to have the costs
denied. On May 6, 1991, the district court, again ruling that the decision of December 17,
1990, was not a final judgment, awarded Visual its costs but stayed execution pending appeal.
DISCUSSION
I. Sales Tax
[Headnote 1]
Both parties agree that the photographs taken by Visual are subject to sales tax when sold.
The measure of the sales tax, however, is in dispute here.
The parties differ in their interpretations of relevant statutes and regulations. The
Department relies upon NRS 372.105, NRS 372.060 and NAC 372.380. Pursuant to NRS
372.105, sales tax is imposed on the gross receipts of any retailer from the sale of all tangible
personal property sold retail in Nevada. Under NRS 372.060(3)(e), a sale includes [a]
transfer for a consideration of the title or possession of tangible personal property which has
been produced, fabricated or printed to the special order of the customer, or of any
publication. According to NAC 372.380, "producing," "fabricating" and "processing," as
used in NRS 372.060, include "any operation which results in the creation or production
of tangible personal property or which is a step in a process or series of operations
resulting in the creation or production of tangible personal property."
producing, fabricating and processing, as used in NRS 372.060, include any operation
which results in the creation or production of tangible personal property or which is a step in
a process or series of operations resulting in the creation or production of tangible personal
property. The Department contends that the sales tax must include Visual's charges for a
photographer's professional labor because this laborcreativity, visualization, consultation
with the client, set-up and supervisionis an essential step in the process of creating or
producing tangible personal property (a photograph), which is the ultimate object of the
transactions between Visual and its clients.
Visual emphasizes NAC 372.330, the administrative regulation specifically addressed to
photographers. NAC 372.330(1) provides:
1. The tax applies to sales of photographs and machine made copies, whether or not
they are produced to the special order of the customer, and to charges for making
photographs of machine made copies out of materials furnished by the customer. No
deduction is allowable for such expenses of a photographer as travel time, rental of
equipment, or salaries or wages paid to assistants or models, whether or not such
expenses are itemized in billings to customers.
Visual correctly observes that this regulation is silent on the question of whether a
photographer's time spent visualizing, creating and preparing a photo shoot is subject to sales
tax. Visual also correctly points out that NAC 372.330 differs from similar provisions in the
Nevada Administrative Code which expressly impose a tax upon a professional's labor. For
example, NAC 372.130(2), pertaining to advertising agencies, artists and designers, states the
following:
2. Commercial artists or any other persons or firms engaged in the creation or
production of drawings, paintings, designs, photographs or other art work are the
retailers of the tangible personal property which they sell to advertising agencies for use
by the agencies in the renditions of their services. The tax applies to the gross receipts
from the furnishing of drawings, paintings, designs, photographs, lettering, assemblies
or other art work used for reproduction as well as display purposes. The tax does not
apply to the receipts from services such as rough or comprehensive visualizations,
retouching, production, supervision, consultations and research.
(Emphasis added.) Like a photographer's labor, the services of an advertising agency, artist
and designer are directed toward creating and producing tangible personal property.
ing and producing tangible personal property. Yet, the Department seeks to tax one but not
the other.
[Headnote 2]
The taxing statutes and regulations relevant here are conflicting and inconsistent. The
statutes and regulations cited by the Department appear to subject a photographer's labor to
the sales tax; the regulation cited by Visual appears to exempt the labor from the tax. In
Cashman Photo v. Nevada Gaming Comm'n, 91 Nev. 424, 538 P.2d 158 (1975), we held:
Taxing statutes when of doubtful validity or effect must be construed in favor of the
taxpayers. A tax statute particularly must say what it means. We will not extend a tax statute
by implication. Id. at 428, 538 P.2d at 160 (citation omitted). Because this conflict and
inconsistency inject uncertainty and doubt into this area of tax law, Cashman Photo requires
that we construe the taxing statutes and regulations in favor of Visual.
II. Costs
NRS 18.110(1) requires the party in whose favor judgment is rendered to serve a copy of
his costs upon the adverse party within 5 days after the entry of judgment, or such further
time as the court or judge may grant. The Department contends that the district court erred in
awarding costs of suit to Visual. According to the Department, the decision of December 17,
1990, constitutes a final judgment and Visual did not file its initial cost memorandum until
March 12, 1991some eighty days after the district court entered its decision. We disagree.
The district court twice ruled that the decision of December 17, 1990, was not a final
judgment, and we perceive no reason to differ. Moreover, we agree with the district court's
conclusion that the decision of April 4, 1991, was the final judgment. Thus, Visual's cost
memorandum, filed five days later on April 9, 1991, was timely, and the award of costs was
not error.
CONCLUSION
Because this area of tax law is plagued by uncertainty and inconsistency, we conclude that
the statutes and regulations must be construed in favor of the taxpayer, Visual, and against the
Department. Therefore, we hold that Visual's charges for its photographer's professional labor
are not subject to Nevada sales tax. On the issue of costs, we conclude that the district court
did not err in awarding them to Visual.
For the reasons given above, the judgment of the district court is affirmed.
____________
108 Nev. 726, 726 (1992) Jacobs v. Sheriff
JOHNNY JACOBS, Appellant, v. SHERIFF, WASHOE COUNTY, Respondent.
No. 23189
September 3, 1992 837 P.2d 436
Proper person appeal from an order of the district court denying appellant's motion for
relief from a default judgment forfeiting appellant's property. Second Judicial District Court,
Washoe County; Charles M. McGee, Judge.
Claimant moved to set aside default, motion was denied, and claimant appealed. The
supreme court held that: (1) state was under obligation to contact claimant's attorney in
criminal proceedings to determine whether attorney also intended to appear in forfeiture
action, and (2) default judgment entered prior to valid default was void.
Johnny Jacobs, In Proper Person, Ely, for Appellant.
Dorothy Nash Holmes, District Attorney, Washoe County, for Respondent.
1. Forfeitures.
When state brings forfeiture proceeding against property belonging to claimant facing criminal charges, state has obligation to
contact claimant's attorney in criminal proceedings and determine whether attorney also intends to appear in forfeiture proceedings; if
attorney does not intend to appear, then state must explicitly warn claimant that attorney will not be representing him in forfeiture
action. SCR 175.
2. Judgment.
Failure of district court clerk to sign default could not be regarded as cured merely because default was accepted for filing and first
page of default was file stamped.
3. Judgment.
There can be no valid default judgment without valid default.
4. Judgment.
Default judgment entered before valid default was filed was void.
OPINION
Per Curiam:
On August 9, 1991, the state filed in the district court a complaint for forfeiture, naming as
respondent various items of personal property in which appellant claims an interest. On
August 13, 1991, the state served the amended complaint and summons on appellant
personally. On September 24, 1991, the state filed in the district court an application for
default. On September 24, 1991, an unsigned default was entered in the district court.
September 24, 1991, an unsigned default was entered in the district court. On September 26,
1991, the district court entered a default judgment, forfeiting appellant's interest in the
respondent property. No notice of entry of default judgment appears in the record on appeal.
On January 10, 1992, appellant, appearing through counsel, moved the district court to set
aside the default judgment. In the motion, appellant noted that, although he was represented
by counsel in related criminal proceedings when the complaint for forfeiture was filed, the
complaint was not served on appellant's attorney. Appellant also noted that he was
incarcerated. The state opposed appellant's motion. On March 11, 1992, the district court
denied appellant's motion. This appeal followed.
On July 13, 1992, this court issued an order noting the following concerns:
First, we note that, because the default was not signed by the district court clerk, it
appears that no valid default was entered in this case. See Opaco Lumber & Realty Co.
v. Phipps, 75 Nev. 312, 340 P.2d 95 (1959). We question whether a valid default
judgment can be entered in the absence of a valid default.
Further, we are concerned by appellant's allegation that his attorney (albeit in
separate proceedings) was not served with a copy of the complaint and summons, and
that neither appellant nor his attorney were served with notice of entry of the default
judgment. We note that SCR 175 provides that [w]hen a lawyer knows the identify of
a lawyer representing an opposing party, he or she should not . . . [cause] any default or
dismissal to be entered without first inquiring about the opposing lawyer's intention to
proceed. If the state was proceeding with a criminal prosecution against appellant
contemporaneously with a quasi-criminal forfeiture proceeding that arose from the
same alleged criminal behavior, the state's attorney arguably had a professional
obligation to inquire of appellant's attorney in the criminal proceeding to determine
whether appellant's attorney also intended to represent appellant in the forfeiture
proceeding.
In light of the above concerns, we ordered the state to show cause why the order of the
district court refusing to set aside the default judgment should not be vacated and this matter
remanded for further proceedings. On August 3, 1992, the state filed in this court its response
to our order of July 13, 1992.
First, the state represents that a notice of entry of the default judgment was mailed to
appellant at the Washoe County Jail. We note that the notice of entry is not part of the record
on appeal, notwithstanding the fact that, when the appellant is acting in proper person,
the district court clerk is obligated to transmit to this court "each and every paper,
pleading and other document" filed in the district court.
notwithstanding the fact that, when the appellant is acting in proper person, the district court
clerk is obligated to transmit to this court each and every paper, pleading and other
document filed in the district court. NRAP 10(a)(1). Further, we cannot rely on documents
not contained in the record on appeal. Carson Ready Mix v. First Nat'l Bk., 97 Nev. 474, 635
P.2d 276 (1981).
[Headnote 1]
The state concedes that it made no effort to contact appellant's attorney regarding the
pending forfeiture proceedings. The state offers the explanation that it was unaware that any
attorney was representing appellant in the forfeiture action. The state also offers an affidavit
from appellant's counsel in his criminal proceedings which indicates that counsel was not
representing appellant in the forfeiture proceeding. We hold that this is insufficient to meet
the requirements of SCR 175. When the state proceeds with a forfeiture proceeding against
property belonging to a claimant facing criminal charges, the state has an obligation, pursuant
to SCR 175, to contact appellant's attorney in the criminal proceedings and determine whether
that attorney also intends to appear in the forfeiture proceedings. Further, we hold that if the
attorney does not intend to appear in the forfeiture proceedings, the state must explicitly warn
the claimant that his attorney in the criminal proceedings will not be representing the claimant
in the forfeiture proceedings.
[Headnote 2]
Finally, the state suggests that the default, and therefore the default judgment, was valid.
Specifically, the state argues that this case is distinguishable from Opaco Lumber. In Opaco
Lumber, the appellant argued that the failure of the district court clerk to sign the default
should be regarded as cured by the fact of filing. [Appellant] emphasize[d] that, in filing the
document, the clerk had, by signature, attested the fact of filing. Opaco Lumber, 75 Nev. at
314, 340 P.2d at 96. We rejected this argument, holding that the duty to file the default is
distinct from the duty to enter the default. Id. Curiously, in light of the above language from
Opaco Lumber, the state argues that this case is distinguishable from Opaco Lumber because
the deputy clerk signed the first page of the default where it was file stamped. This is the
precise argument this court rejected in Opaco Lumber.
The state also argues that this case is distinguishable from Opaco Lumber because the
respondents in that case filed an answer after the default was entered, yet in this case
appellant never filed an answer . . . after he received the Notice of Entry of Judgment. First,
we note that the state's contention is false. The record on appeal contains an answer filed by
appellant after the default and the default judgment were entered.
the default and the default judgment were entered. Further, there is no hint in Opaco Lumber
that the act of filing an answer was a dispositive, or even relevant, fact in that case. Plainly,
this case is indistinguishable from Opaco Lumber, and the default was invalid.
[Headnotes 3, 4]
Although this court has never addressed the issue, other courts have held that there can be
no valid judgment without a valid default. See, e.g., P & B Land, Inc. v. Klungervik, 751 P.2d
274, 276-77 (Utah Ct.App. 1988) (holding that, in the absence of a valid default, a default
judgment is illegal). We agree, and hold that a default judgment entered before a valid default
has been entered is void.
Accordingly, we reverse the order of the district court denying appellant's motion for relief
from the default judgment. We remand this matter to the district court for further proceedings
____________
108 Nev. 729, 729 (1992) McKellar Development v. Northern Ins.
McKELLAR DEVELOPMENT OF NEVADA, INC., McKELLAR DEVELOPMENT
GROUP, INC., fka McKELLAR HOLDING COMPANY, INC.; McKELLAR &
ASSOCIATES, INC.; and JAMES A. McKELLAR, JR., Appellants, v.
NORTHERN INSURANCE COMPANY OF NEW YORK, and MARYLAND
CASUALTY COMPANY, Respondents.
No. 21258
September 3, 1992 837 P.2d 858
Appeal from an order of the district court granting respondents' motion for summary
judgment. Eighth Judicial District Court, Clark County; Earle W. White, Jr., Judge.
Comprehensive general liability (CGL) insurers filed declaratory judgment action to
determine whether they were liable for damages resulting from faulty soil compaction that
resulted in sinking and breakup of apartment buildings. The district court declared policies
did not cover claims made by purchaser of apartment complex, and insureds appealed. The
supreme court granted rehearing, withdrawing opinion at 107 Nev. 562, 816 P.2d 456. On
rehearing, the supreme court held that: (1) broad form property damage (BFPD) completed
operations hazard exclusion applied only to work performed by named insured and thus the
CGL policies covered the work of subcontractors performing soil compaction, and {2)
neither the similar products exclusion or the alienated premises exclusion applied.
performing soil compaction, and (2) neither the similar products exclusion or the alienated
premises exclusion applied.
Foley & Jones, Las Vegas, for Appellants.
Parnell & Associates, Las Vegas; Goldbeck & Ebert, San Diego, California, for
Respondents.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks, Reno, for Amici
Curiae Associated General Contractors of America, Inc. Las Vegas Chapter and Northern
Nevada Chapter and Nevada Association of Mechanical Contractors, Inc.
1. Insurance.
Broad form property damage (BFPD) endorsement of comprehensive general liability (CGL) policies provided coverage where
BFPD completed operations has exclusions eliminating phrase or on behalf of and applied only to work performed by the named
insured, thus indicating that the work of subcontractors was intended to be covered by the policy and applied to soil compaction work
performed by subcontractors.
2. Insurance.
Site preparation including soil compaction is a service, not a product, and thus was not excluded from coverage under a
comprehensive general liability (CGL) policy's products exclusion.
3. Insurance.
Alienated premises exclusion of comprehensive general liability (CGL) policy did not apply to subcontractor's site preparation
services; application of exclusion would severely limit coverage granted by broad form property damage endorsement, and faulty work
of the subcontractors was completed before the premises was alienated.
Per Curiam:
This is an appeal from a summary judgment in an action for declaratory relief.
1
The
district court declared that insurance policies issued by respondents to appellants do not cover
claims made by the purchaser of an apartment complex constructed by appellants.
__________

1
On August 27, 1991, this court issued an opinion affirming the judgment of the district court. On October
28, 1991, this court entered an order granting rehearing and withdrawing our opinion. See McKellar
Development v. Northern Insurance Company, 107 Nev. 562, 816 P.2d 456 (1991). We now issue this opinion
in place of our previously withdrawn opinion.
Appellants designed and built the Woodside Village apartment complex in Las Vegas,
Nevada. In May of 1986, Woodside Village was sold to Integon Life Insurance Company and
North American Mortgage Investors (hereinafter Integon). In March of 1987, Integon filed
suit against appellants seeking rescission of the sale agreement or, alternatively, money
damages. The complaint alleged that appellants had defectively designed and constructed the
project and that, as a result, the buildings were falling apart. The source of the problem was
apparently faulty soil compaction, resulting in the sinking and breakup of the apartment
buildings. Appellants had relied on subcontractors to do the soil compaction.
At the time, appellants had a comprehensive general liability (CGL) policy with
respondents. Respondent Northern Insurance Company of New York (Northern) had issued
three annual CGL policies to appellants during the years of 1985 through 1988. Maryland
Casualty Company (Maryland) had issued three secondary CGL policies to appellants for
the same period.
Upon the filing of the Integon complaint, appellants informed respondents that they were
potentially liable for the damage claim. Respondents brought this action for declaratory relief.
The district court granted respondents' motion for summary judgment, concluding that the
Integon claim was excluded from coverage under the policies' provisions.
[Headnote 1]
Appellants argue that the work of subcontractors is covered by the policies. The policies in
this case contain a broad term granting coverage, but then limit that coverage by numerous
specific exclusions. Further, the policies contain a broad form property damage (BFPD)
endorsement for which appellants paid an additional premium.
2
Appellants argue that the
BFPD endorsement provides coverage for the work of subcontractors.
The BFPD endorsement does not contain a separate term granting coverage, but instead
works by modifying exclusions contained in the basic policy. In particular, the BFPD
endorsement modifies the completed operations hazard exclusion of the basic policy. The
unmodified completed operations hazard exclusion provides as follows:
The insurance does not apply:
(o) to property damage to work performed by or on behalf of the named insured
arising out of the work or any portion thereof, or out of materials, parts or equipment
furnished in connection therewith.
__________

2
The Maryland policies also contain a similar endorsement referred to as the Contractor's Endorsement.
thereof, or out of materials, parts or equipment furnished in connection therewith.
(Emphasis added.)
The BFPD endorsement modifies the exclusion as follows:
VI. BROAD FORM PROPERTY DAMAGE LIABILITY COVERAGE (Including
Completed Operations)
. . . .
Exclusions (k) and (o) are replaced by the following:
(3) with respect to the completed operations hazard and with respect to any
classification stated in the policy or in the company's manual as including completed
operations to property damage to work performed by the named insured arising out of
such work or any portion thereof, or out of such materials, parts or equipment furnished
in connection therewith.
(Emphasis added.)
Thus, the BFPD completed operations hazard exclusion eliminates the phrase or on
behalf of and applied only to work performed by the named insured. We agree with
appellants that the elimination of the phrase or on behalf of indicates that the work of
subcontractors was intended to be covered by the policies. See Fireguard Sprinkler Systems v.
Scottsdale Ins., 864 F.2d 648 (9th Cir. 1988);
3
Maryland Casualty Co. v. Reeder, 221
Cal.App.3d 961 (Cal.Ct.App. 1990). Because appellants relied on subcontractors to do the
soil compaction, the BFPD endorsement provides coverage.
Respondents argue, however, that the products exclusion contained in both the Northern
and Maryland policies operates to exclude coverage of the Integon claim, notwithstanding the
BFPD endorsement. The products exclusion states in part as follows:
The insurance does not apply to . . . property damage to:
. . . .
__________

3
In Fireguard, the court concluded that the phrase or on behalf of contained in a similar CGL policy
referred to the work of subcontractors. Thus, because the phrase was omitted from the endorsement, damage
arising from a subcontractor's work was not excluded. In reaching this conclusion, the Fireguard court examined
a circular prepared by the Insurance Service Office (ISO). The ISO prepares standard form provisions that are
used to draft policies. The ISO prepared a provision upon which the BFPD completed operations hazard
exclusion appears to be based. The circular explained that the exclusion is intended to exclud[e] only damages
caused by the named insured to his own work. Thus, . . . [t]he insured would have coverage for damage to his
work arising out of a subcontractor's work [and] [t]he insured would have coverage for damage to a
subcontractor's work arising out of the subcontractor's work. Fireguard, 864 F.2d at 652.
(b) the insured's products arising out of such products.
. . .
Respondents argue that the apartment complex was appellants' product and therefore
damage arising out of the complex is excluded. They contend that a completed building
project is a product for purposes of the insurance policies.
[Headnote 2]
In Fireguard, the United States Court of Appeals for the Ninth Circuit examined a similar
products exclusion. The court concluded that in order for the products exclusion to apply, the
insurer must show that: (1) damage was done to the insured's product, and (2) the damage
arose out of the insured's product. Fireguard, 864 F.2d at 654. Appellants presented facts to
the district court showing that the damage in this case arose out of the site preparation.
Because site preparation is a service and not a product, we conclude that the products
exclusion does not exclude coverage of the Integon claim.
Respondents further argue that the alienated premises exclusion contained in Northern's
policies is applicable. This exclusion provides as follows:
This insurance does not apply:
(1) to property damage to premises alienated by the named insured arising out of
such premises or any part thereof.
[Headnote 3]
Respondents assert that this exclusion applies because appellant alienated the apartment
complex when they sold it to Integon, and the damage arose out of the complex.
Nevertheless, we conclude that the alienated premises exclusion was not intended to apply
to the work of subcontractors. First, the interpretation offered by respondents would severely
limit the coverage granted by the BFPD endorsement, a coverage for which appellants paid an
additional premium. Appellants provided the district court with insurance industry
publications stating that the alienated premises exclusion was not intended to apply in this
manner.
4
Second, the faulty work of the subcontractors in this case was completed before
appellants alienated the premises.
__________

4
One industry publication states as follows:
[The alienated premises exclusion] removes property damage coverage to premises alienated (e.g.,
sold) by the named insured arising out of the premises or any part thereof. This exclusion could severely
limit coverage granted under the BFPD endorsement. Consider the contractor who constructs property
such as office buildings, houses, etc., retains title, and later sells that property. This is often the case with
real estate developers. Once the sale has taken place, the contractor or developer would have no property
damage coverage for damage to the
tors in this case was completed before appellants alienated the premises. Thus, the damage to
the apartment complex arguably occurred before alienation. Consequently, summary
judgment was inappropriate on this issue.
Accordingly, we reverse the order of the district court granting summary judgment, and we
remand for further proceedings.
____________
108 Nev. 734, 734 (1992) Echavarria v. State
JOSE LORRENTE ECHAVARRIA and CARLOS ALFREDO GURRY, Appellants, v. THE
STATE OF NEVADA, Respondent.
No. 22354
September 3, 1992 839 P.2d 589
Appeal from judgments of conviction entered pursuant to jury verdicts, and sentence of
death (Echavarria) and sentences of life in prison with the possibility of parole (Gurry).
Eighth Judicial District Court, Clark County; Jack Lehman, Judge.
Defendants were convicted of felony murder, burglary, attempted robbery and conspiracy
by the district court and they appealed. The supreme court held that: (1) juror did not act
improperly in looking up definition of murder and capital punishment in encyclopedia at his
home in order to determine whether his religious beliefs would constitute impediment to his
ability to serve as juror; (2) defendant should have been allowed to present expert testimony
regarding difficulties of cross cultural identifications; but (3) erroneous exclusion of evidence
constituted mere harmless error.
Affirmed.
Schieck & Derke, Las Vegas, for Appellant Jose Lorrente Echavarria.
Morgan Harris, Public Defender, and David Wall, Deputy Public Defender, Clark County,
for Appellant Carlos Alfredo Gurry.
__________
alienated premises even though he has purchased completed operations coverage and the proper BFPD
endorsement. This interpretation is outside the scope of intent of the policy, but it has been taken on
occasion by insurers.
J. Gibson, Broad Form Property Damage Coverage: Analysis, Application and Alternatives 12-15
(International Risk Management Institute, Inc. 2d ed. 1982) (emphasis added).
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney; James
Tufteland, Deputy District Attorney; and William Henry, Deputy District Attorney, Clark
1. Criminal Law.
Finding that juror had not intentionally concealed his prior involvement as victim of assault was not abuse of discretion, so that
defendant was not entitled to new trial on ground of juror misconduct, where juror indicated that he considered prior incident, not as
assault, but as fight between himself and other participants.
2. Criminal Law.
Juror in capital murder case did not act improperly in looking up a definition of murder and capital punishment in encyclopedia
which he kept in his home, where juror indicated that he had undertaken his research only to determine whether there would be any
religious impediments to his ability to evaluate evidence and reach verdict in accordance with evidence and law.
3. Criminal Law.
Generally, for supreme court to examine charges of prejudicial jury misconduct based on exposure to media coverage, there must
be showing that member of jury has been exposed to media communications and has been influenced by exposure.
4. Criminal Law.
Statements of juror during post-trial interview that she had voted for death penalty only because she thought that verdict would be
overturned on appeal was not admissible to impeach jury's verdict.
5. Criminal Law.
Confession is admissible as evidence only if it is made freely, voluntarily, and without compulsion or inducement. U.S.C.A.Const.
amends. 5, 6.
Conviction based in whole or in part on involuntary confession violates due process, even if there is ample evidence aside from
confession to support conviction. U.S.C.A.Const. amend. 14.
7. Criminal Law.
Finding that defendant's confession to Mexican authorities was not obtained by means of torture was supported by substantial
evidence, including absence of physical marks to corroborate defendant's testimony regarding alleged beatings, by defendant's failure
to immediately report alleged abuse to authorities, and by testimony of witnesses who contradicted defendant's version of events.
8. Criminal Law.
Defendant's right to allocution during penalty phase of capital case did not include right to attempt to dispute facts in issue or to
offer exculpatory evidence.
9. Criminal Law.
Capital defendants enjoy common law right of allocution to stand before sentencing authority and present unsworn statements in
mitigation of sentence, including statements of remorse, apology, chagrin, or plans and hopes for the future.
10. Criminal Law.
Right of allocution is not intended to provide convicted defendant with opportunity to introduce unsworn,
self-serving statements of his innocence as alternative to taking witness stand; proper place for
introduction of evidence tending to establish innocence is in the guilt phase of trial.
with opportunity to introduce unsworn, self-serving statements of his innocence as alternative to taking witness stand; proper place for
introduction of evidence tending to establish innocence is in the guilt phase of trial.
11. Criminal Law.
District court must instruct defendant on limits of allocution and inform him that statement which transcends permissible bounds
will be subject to corrective action by court.
12. Criminal Law.
State's alleged failure to present grand jury with favorable portions of witnesses' testimony did not require reversal of defendant's
conviction; sufficient evidence was presented, even without witnesses' testimony, to sustain indictment, and any irregularities in grand
jury proceedings were cured when defendant was tried and convicted under higher criminal burden of proof.
Efficacy of indictment can be sustained upon slightest sufficient legal evidence.
14. Criminal Law.
Jury verdict of guilty may render harmless error in grand jury proceedings.
15. Criminal Law.
Hispanic defendant identified as driver of getaway car should have been allowed to present expert testimony of professor of
psychology regarding problems associated with cross-cultural identifications, where most, if not all, of identifications in case were
cross-cultural.
16. Criminal Law.
Erroneous exclusion of expert testimony regarding difficulties of cross-cultural identifications in murder case in which Hispanic
defendant was identified as driver of getaway car was not reversible error, in light of other evidence of defendant's participation in
crime, including the fact that he took off work the morning of incident, lied about his whereabouts to law enforcement officers, and left
his fingerprints on stolen license associated with crime.
17. Robbery.
Evidence that weapon recovered from alleged bank robber at time of his arrest was purchased by his codefendant was not
admissible, where gun was not connected in any way to crime scene or to codefendant's presence at crime scene and was of only
peripheral relevance to case.
18. Criminal Law.
Erroneous admission of evidence that gun recovered from alleged bank robber belonged to codefendant was harmless beyond
reasonable doubt, in light of substantial body of other evidence linking codefendant to crime.
19. Criminal Law.
Trial court's failure to give defendant's proffered instruction on deadly weapon enhancement was not reversible error, where
alternative instruction suggested by trial court and rejected by defendant would have adequately covered enhancement element.
20. Homicide.
Crime of attempted robbery continued even after defendant's arrest by FBI agent, when defendant overpowered agent while he was
waiting for handcuffs and fatally wounded agent with gun; accordingly, aider and abettor in attempted robbery could be found guilty of
murder under felony murder rule.
21. Homicide.
For purpose of felony murder rule crime of robbery includes acts taken to facilitate perpetrator's escape.
OPINION
Per Curiam:
Echavarria shot and killed an FBI agent who was in the process of arresting Echavarria for
attempted bank robbery. Gurry was identified as an accomplice and was arrested shortly after
the incident at the Las Vegas apartment he and Echavarria shared. Echavarria fled to Mexico,
but was apprehended by the Mexican authorities and returned to the United States. Echavarria
and Gurry were each found guilty of, among other felonies, first-degree murder with the use
of a deadly weapon. Echavarria was sentenced to death. Gurry received a sentence of life in
prison with the possibility of parole. Both men appealed their convictions. Echavarria also
appealed his sentences.
Facts
On the morning of June 25, 1990, Jose Lorrente Echavarria, disguised as a woman and
wearing a gauze pad on his cheek and a cast or sling on his arm, entered a Las Vegas branch
of the Security Pacific Bank with the intention of robbing it. Echavarria previously had
surveyed the bank and determined that no security guards were employed there. When
Echavarria approached a bank teller and eventually pointed a gun at her, the teller screamed
and jumped back from the counter, causing Echavarria to abandon his holdup attempt and
start walking towards the exit door of the bank.
FBI Special Agent John Bailey, who happened to be at the bank on Bureau business at the
time of the incident, inquired about the commotion. Upon learning that Echavarria had pulled
a gun on a bank teller, Bailey turned to follow Echavarria, pulled out his gun, and yelled
something akin to halt, this is the FBI. Echavarria turned, glanced at Bailey, and continued
to walk towards the exit. Bailey then fired a shot that shattered the bank's glass front door.
Echavarria stopped. Bailey grabbed the gunman, held him against the wall, and ordered him
to drop his gun, which Echavarria eventually did.
Acting swiftly, Agent Bailey frisked Echavarria, requested that someone call the FBI
office, and asked a bank employee to retrieve his handcuffs from his car. Bailey seated
Echavarria in a chair while he waited for the handcuffs. The bank employee returned with the
cuffs, but before Bailey could shackle Echavarria, he jumped out of the chair and collided
with Bailey.
During the ensuing scuffle, Bailey fell to the ground and Echavarria, retrieving his own gun,
fired several shots at the downed agent. Echavarria then ran from the bank. Bailey was
transported to a hospital, where he succumbed to three gunshot wounds.
The trial evidence supported the State's theory that after exiting the bank, Echavarria ran to
his blue Firebird where the getaway driver, Carlos Alfredo Gurry, was waiting and the two
sped away. A police officer who arrived at the crime scene shortly after Echavarria had fled
discovered a motorcycle in the handicap parking space outside the bank. An investigation of
the vehicle identification number on the motorcycle revealed Echavarria as the owner. A
DMV check disclosed that the license plate attached to the motorcycle belonged to another
vehicle. The rightful owner of the license plate identified Gurry as the person he had seen
lurking around his motorcycle on two mornings shortly before the bank incident. Testing
revealed Gurry's fingerprints on the stolen plate.
Information from a wallet which Bailey had removed from Echavarria during the frisk
quickly led investigators to the apartment shared by Echavarria and Gurry. The license plate
belonging to Echavarria's motorcycle and a screwdriver were found on the walkway in front
of the apartment. Inside the apartment, clothes were strewn about the living room floor. In a
dumpster outside the apartment police found a Security Pacific Bank Visa credit card
application with both Echavarria's and Gurry's fingerprints on it, and a business card with C.
Williams Costume Shop written on the back. When questioned, clerks at the costume shop
remembered two Hispanic men who came into the store a few days before the attempted
robbery and looked at afro wigs and arm casts, although they could not remember if the men
purchased anything.
Gurry was arrested when he returned to his apartment the afternoon of the incident.
Initially, Gurry, stated that he had been at a friend's house working on a car since 9:00 a.m.
Later, Gurry told the FBI that he was scared and had lied about his first story. Gurry stated
that he had actually borrowed Echavarria's car on the morning of June 25, 1990, to take care
of an immigration problem and some errands, and that he thereafter spent the remainder of
the morning at the apartment. Gurry reported that Echavarria, looking desperate, came into
the apartment about noon, changed clothes and left in a hurry. Gurry said that Echavarria's
behavior frightened him, so he called a friend to pick him up. Gurry allegedly stayed about
half an hour at the friend's house, then returned home.
Meanwhile, Echavarria headed south in his blue Firebird, arriving at the home of a former
girlfriend in Juarez, Mexico, in the early morning of June 26, 1990.
the early morning of June 26, 1990. Echavarria convinced the former girlfriend, Maria
Garcia, to give him six hundred dollars before leaving. Echavarria next contacted Maria's
brother, Jorge Garcia, for help. Jorge bought an airline ticket for Echavarria and took him to
the airport. At Echavarria's request, Jorge also buried two guns and abandoned the blue
Firebird along the highway.
1

The Juarez police arrested Echavarria at the airport at about 8:30 p.m. on June 26, 1990.
The next morning, Echavarria signed a written statement confessing to the murder of Agent
Bailey. Echavarria was turned over to the FBI after his confession, and subsequently returned
to the United States.
Echavarria and Gurry were each indicted on five counts: first-degree murder with the use
of a deadly weapon, burglary, attempted robbery, escape and conspiracy. The State had to
conduct a second grand jury to indict Gurry because the district court found that the evidence
against Gurry in the first grand jury was insufficient and the prosecutor had misled the grand
jury and failed to present exculpatory evidence.
Before trial, Echavarria moved to suppress his Juarez confession on the grounds that he
had confessed after being subjected to physical torture and abuse while in the custody of the
Mexican authorities. After a two-day evidentiary hearing, the motion was denied.
Trial commenced on March 15, 1991, and the guilt phase concluded with jury verdicts of
guilty on all counts against Echavarria. Gurry was found guilty of all counts except the escape
charge, which the district court had dismissed for lack of evidence.
After the penalty phase of the trial, the jury found three aggravating circumstances relating
to the murder committed by Echavarria and sentenced him to death. The jury found four
mitigating circumstances in favor of Gurry and sentenced him to life in prison with the
possibility of parole.
2
The district court also sentenced each appellant to additional prison
time for the other felonies. Appellants' motion for a new trial was denied.
Discussion
Each appellant raises several allegations of error. Those raised by both appellants will be
treated first, followed by assignments of error relating to Echavarria, and then Gurry.
__________

1
The guns were later recovered by the Mexican authorities and turned over to the FBI. One of the guns fired
the bullets which killed Agent Bailey. The other had been purchased by Gurry from a co-worker in late May,
1990. The Firebird was also recovered and searched, revealing the fingerprints of Echavarria and Gurry, and
fragments of glass consistent with the glass in the bank door.

2
Gurry received a second life term as a deadly weapon enhancement.
by both appellants will be treated first, followed by assignments of error relating to
Echavarria, and then Gurry.
Juror misconduct.
Both appellants raise allegations of juror misconduct, although Gurry challenges only the
jurors' conduct during the guilt phase of the trial, while Echavarria contends that misconduct
occurred during both the guilt and penalty phases. These allegations were considered in
connection with a motion for a new trial which was denied by the district court after an
3

The allegations of juror misconduct are primarily based upon the testimony of juror Ardys
Pool, who contacted defense counsel after the trial concluded and disclosed the following
purported instances of impropriety by certain jurors.
[Headnote 1]
Juror Charles Ivy, who served as foreman, failed to indicate on a written questionnaire or
during voir dire that he had been the victim of a crime. At the evidentiary hearing on juror
misconduct, Ivy admitted mentioning to some of the other jurors during a recess that he had
been in a fight as a youth many years ago in which he was beaten by men with tire irons and
hospitalized. Ivy indicated that he did not consider himself to be a victim of a crime, but
instead considered the incident a fight.
In Lopez v. State, 105 Nev. 68, 89, 769 P.2d 1276, 1290 (1989), we stated that when a
juror fails to reveal potentially prejudicial information on voir dire, the relevant question is
whether the juror is guilty of intentional concealment, the answer to which must be left with
the sound discretion of the trial court. As Ivy's testimony indicates that he did not view the
24-year-old incident as a criminal act, the district court was well within its discretion in
determining that Ivy did not intentionally conceal information from the court.
[Headnote 2]
Juror Thomas Stramat, upon learning that he was a potential juror in a capital case, went to
the public library and looked up the definition of murder. He also examined a Catholic
Encyclopedia which he kept in his home concerning murder and capital punishment. He
recorded his finding and carried them with him throughout the trial and deliberations. He did
not show his findings to the other jurors, although he did comment that his religion and his
training allowed him to consider the death penalty if the court so instructed him.
__________

3
The evidentiary hearing was conducted by Judge Leavitt after Judge Lehman voluntarily recused himself
following a motion by Gurry to disqualify him.
religion and his training allowed him to consider the death penalty if the court so instructed
him.
We agree with the district court's determination that Stramat's actions were not
inconsistent with his role as a juror. Stramat stated that his purpose in doing the research was
to determine if he could, in accordance with his religious faith, serve as a juror in a capital
case. Stramat also stated that he considered the instructions on the law given by the judge
superior to his own research. Stramat's actions indicate that he took his responsibility as a
juror seriously, and wanted to be certain that there would be no religious impediments to his
ability to evaluate the evidence and reach a verdict in accordance with what the evidence and
the law might dictate. Juror Stramat's actions were neither improper nor prejudicial.
Pool also alleged that some of the jurors were watching news reports of the trial. These
allegations were denied at the evidentiary hearing, although one juror readily admitted that his
wife was taping the news coverage of the trial, and that he had offered to make the tape
available to other jurors after the trial concluded.
[Headnote 3]
Generally, for this court to examine charges of prejudicial juror misconduct based on
exposure to media coverage, there must be a showing that a member of the jury has been
exposed to media communications and has been influenced by it. Arndt v. State, 93 Nev. 671,
675, 572 P.2d 538, 541 (1977). Here, there was no reliable evidence that jurors had watched
or read any news accounts, or were aware of the contents of any such accounts or were in any
way influenced by media reporting of the trial proceedings. Since there was no evidence that
appellants were prejudiced by media reports, no basis exists for overturning the district court's
refusal to grant a new trial based upon media exposure. See Barker v. State, 95 Nev. 309, 313,
594 P.2d 719, 721-22 (1979) (it is within the trial court's province to decide whether a
defendant has been deprived of an impartial jury by juror misconduct).
[Headnote 4]
Finally, Echavarria alleges that Pool revealed to defense counsel in a post-trial interview
that she only voted for the death penalty because she thought the verdict would be overturned
on appeal due to juror misconduct. At the evidentiary hearing, the court excluded Pool's
statements regarding her reason for voting for the death penalty as violative of NRS
50.065(2), which prohibits consideration of affidavits or testimony of jurors concerning their
mental processes or state of mind in reaching the verdict.
verdict. See Riebel v. State, 106 Nev. 258, 263, 790 P.2d 1004, 1008 (1990). We agree that
the district court properly excluded evidence of Pool's mentation in deciding upon a verdict.
Constitutionality of the reasonable doubt instruction.
Echavarria and Gurry contend that Nevada's statutory jury instruction on reasonable doubt
is unconstitutional. We have previously determined to the contrary. NRS 175.211, the
instruction at issue, satisfies the due process requirements of the United States and Nevada
Constitutions. Lord v. State, 107 Nev. 28, 806 P.2d 548 (1991); see also Felder v. State, 107
Nev. 237, 810 P.2d 755, cert. denied, 112 S.Ct. 222 (1991); Riley v. State, 107 Nev. 205, 808
P.2d 551 (1991).
Admissibility of the confession given by Echavarria to Mexican authorities.
Echavarria contends that the district court erroneously admitted into evidence his
confession to Juarez police officers. At the evidentiary hearing on the matter, Echavarria
insisted that he signed the confession only as a result of interrogation and torture by the
Mexican authorities. He also stated that United States agents cooperated and collaborated in
the torture efforts. The alleged torture included beatings and electrical shocks to the genital
area.
The district court determined that the confession was voluntary. In addition, the court
instructed the jurors to determine for themselves whether the confession was voluntary and if
not, to disregard it in their deliberations. On appeal, Echavarria continues to ascribe error to
the district court's refusal to suppress the Juarez confession.
[Headnotes 5, 6]
A confession is admissible as evidence only if it is made freely, voluntarily, and without
compulsion or inducement. Franklin v. State, 96 Nev. 417, 421, 610 P.2d 732, 734 (1980). A
criminal conviction based in whole or in part upon an involuntary confession is a denial of
due process, even if there is ample evidence aside from the confession to support the
conviction. Jackson v. Denno, 378 U.S. 368 (1964). Therefore, our examination of this issue
occurs without reliance on the overwhelming evidence of Echavarria's guilt.
[Headnote 7]
Echavarria's allegations of physical abuse are not taken lightly by this court. However, our
review of the record of the suppression hearing convinces us that the admission of
Echavarria's confession was proper. The district court heard two days of conflicting
testimony about the voluntariness of the confession obtained in Mexico, and determined
that Echavarria's testimony was not credible.
conflicting testimony about the voluntariness of the confession obtained in Mexico, and
determined that Echavarria's testimony was not credible. The trial umpire was in a better
position than this court to judge the truthfulness of Echavarria's testimony vis-a-vis the
evidence produced by the State. Factors militating against Echavarria's testimony included the
absence of physical marks consistent with the beatings he allegedly suffered, the testimony of
witnesses who refuted Echavarria's version of the events, Echavarria's failure to immediately
report the alleged abuse to authorities, and inconsistencies in Echavarria's testimony.
Where pure factual considerations are an important ingredient [in evaluating the
voluntariness of a confession, which is true in the usual case, appellate review . . . is, as
a practical matter, an inadequate substitute for a full and reliable determination of the
voluntariness issue in the trial court and the trial court's determination, pro tanto, takes
on an increasing finality.
Jackson, 378 U.S. at 390-91. The conclusion by the district court that the confession was not
coerced is supported by substantial evidence and we will not disturb it on appeal. See
Franklin v. State, 96 Nev. 417, 421, 610 P.2d 732, 735 (1980).
Limitation of the right of allocution.
[Headnote 8]
During the penalty hearing, Echavarria expressed his desire to make an unsworn statement
to the jury. The district court agreed to allow such a statement, but cautioned that Echavarria
could not attempt to dispute facts in issue or offer facts to exculpate himself. Echavarria
decided that he could not effectively express himself under such constraints and chose instead
to testify under oath.
Echavarria now contends that the district court's limitation on his unsworn statement
violated his right to allocution. In Echavarria's view, the right of the defendant to informally
address the jury should not be limited. He claims that the defendant has an unbridled right to
introduce competent evidence in mitigation . . . includ[ing] an unrestricted right to allocution
should [the] same be the decision of the defense in lieu of sworn testimony. Contrary to
Echavarria's assertion, the right of allocution is not without constraints.
[Headnote 9]
We recently discussed the boundaries of a defendant's right of allocution in Homick v.
State, 108 Nev. 127, 825 P.2d 600 (1992). Capital defendants in the State of Nevada enjoy
the common law right of allocution, which is recognized as "the right of the defendant to
stand before the sentencing authority and present an unsworn statement in mitigation of
sentence, including 'statements of remorse, apology, chagrin, or plans and hopes for the
future.'" Id. at 133, S25 P.2d at 604 {quoting DeAngelo v.
common law right of allocution, which is recognized as the right of the defendant to stand
before the sentencing authority and present an unsworn statement in mitigation of sentence,
including statements of remorse, apology, chagrin, or plans and hopes for the future.' Id. at
133, 825 P.2d at 604 (quoting DeAngelo v. Schiedler, 757 P.2d 1355, 1358 (Or. 1988)).
[Headnotes 10, 11]
The right of allocution is not intended to provide a convicted defendant with an
opportunity to introduce unsworn, self-serving statements of his innocence as an alternative
to taking the witness stand. The proper place for the introduction of evidence tending to
establish innocence is in the guilt phase of trial. At the penalty phase, the defendant's guilt has
already been assessed and is no longer in issue. See Homick at 133, 825 P.2d at 604. The
district court is obligated to instruct a defendant on the limits of allocution, and to inform him
that a statement which transcends permissible bounds will be subject to corrective action by
the court. Homick at 134, 825 P.2d at 605 (quoting State v. Zola, 548 A.2d 1022, 1046 (N.J.
1988), cert. denied, 489 U.S. 1022 (1989)).
If Echavarria had managed to present the same information in an unsworn statement that
he did under oath, he would have been subject to corrective action by the court, including
possible cross-examination, as he disputed some of the testimony which had been introduced,
offered new evidence and asserted that some of the State's witnesses had lied. See Zola at
1045 (right of allocution does not permit defendant to rebut facts in evidence, to deny his
guilt, or to voice an expression of remorse that contradicts evidentiary facts). The district
court's admonition to Echavarria concerning the scope of his statement in mitigation was
proper and not a denial of Echavarria's right of allocution.
Mandatory statutory review.
Finally, regarding Echavarria, we conclude, pursuant to NRS 177.055, that (1) the
evidence fully supports the finding of three valid aggravating circumstances, (2) that the
sentence of death was not imposed under the influence of passion, prejudice or any arbitrary
factor, and (3) that the sentence is not excessive, considering both the crime and the
defendant.
Prosecutorial misconduct.
[Headnotes 12-14]
Gurry contends that he was prejudiced by prosecutor William Henry's misconduct during
various stages of the proceedings against him. We determine that none of Gurry's allegations
merit reversal. The first grand jury indictment against Gurry was dismissed, thus vitiating
any misconduct.
missed, thus vitiating any misconduct. Gurry claims that the prosecution failed to present
favorable portions of two different witnesses' testimonies at the second grand jury. However,
even if the disputed testimony had been before the grand jury, there was sufficient evidence to
sustain the indictment. The efficacy of an indictment can be sustained upon the slightest
sufficient legal evidence. Franklin v. State, 89 Nev. 382, 387, 513 P.2d 1252, 1256 (1973).
Any irregularities which may have occurred in the second grand jury proceeding were cured
when Gurry was tried and his guilt determined under the higher criminal burden of proof.
4

We have also examined Echavarria's and Gurry's allegations of prosecutorial misconduct
during the trial, and conclude that any misconduct which might have occurred was harmless
beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18 (1967); see also NRS
178.598 ([a]ny error, defect, irregularity, or variance which does not affect substantial rights
shall be disregarded); Williams v. State, 103 Nev. 106, 111, 734 P.2d 700, 703 (1987)
(harmless prosecutorial misconduct does not justify reversal). The instances of alleged
misconduct were minor and did not detract from the substantial body of evidence reflecting
appellants' guilt.
5

Refusal to allow Gurry's eyewitness identification expert to testify.
[Headnote 15]
Gurry's primary grievance concerns the district court's refusal to admit the testimony of Dr.
Elizabeth Loftus, a professor of psychology at the University of Washington and a recognized
expert in the field of identification evidence and witness recall. Gurry sought to introduce the
rejected testimony because of the varied and conflicting descriptions of the driver of the
"getaway vehicle," and the lack of any reliable pre-trial identification of Gurry. Dr. Loftus'
testimony would have addressed "the processes of perception, memory and retrieval, as
well as specific circumstances effecting [sic] the accuracy of identification."
__________

4
At trial, the disputed portions of the witnesses' testimony were made known to the jurors, who nevertheless
found Gurry guilty. The Supreme Court has suggested that a jury verdict of guilty may render harmless an error
in the grand jury proceedings. See United States v. Mechanik, 475 U.S. 66, 71-73 (1986). See also Sheriff v.
Keeney, 106 Nev. 213, 216, 791 P.2d 55, 57 (1990) (substantial prejudice to defendant must be demonstrated
before invading the province of the grand jury); People v. Towler, 641 P.2d 1253 (Cal. 1982) (defendant must
show actual prejudice to reverse a grand jury indictment on appeal).

5
Gurry complains that the prosecutor should have recalled a witness who reportedly misstated his testimony.
The argument is without merit. Defendant recalled this witness, thus obviating the prospect of prejudice.
Echavarria complains that he was prejudiced by the prosecutor's use of the phrase savage blood lust in the
penalty phase as a reason for killing Agent Bailey. The impact of the phrase over a four-week trial, especially
when the jury was instructed to disregard it, provides no basis for concluding that Echavarria was deprived of a
fair trial.
varied and conflicting descriptions of the driver of the getaway vehicle, and the lack of any
reliable pre-trial identification of Gurry. Dr. Loftus' testimony would have addressed the
processes of perception, memory and retrieval, as well as specific circumstances effecting
[sic] the accuracy of identification. In addition, Dr. Loftus would have testified concerning
problems associated with cross-cultural identifications and how future identifications may be
tainted by showing a witness a photograph of an individual or providing the witness with
post-event information.
In United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir. 1973), the criteria for permitting
expert testimony on eyewitness identification were set forth, and include: (1) a qualified
expert; (2) a proper subject; (3) conformity to a generally accepted explanatory theory; and
(4) probative value compared to prejudicial effect.
6

We conclude that the proffered testimony of Dr. Loftus met the Amaral criteria and should
have been allowed. Unlike the situation in Porter v. State, 94 Nev. 142, 576 P.2d 275 (1978),
where proffered expert eyewitness identification testimony was justifiably excluded, here the
State conceded Dr. Loftus' expertise and there was considerable doubt about the reliability of
the State's primary identification witnesses against Gurry.
Bernice Oertell, one of the State's chief witnesses, testified that she was at the bank next
door to Security Pacific around noon on the day of the incident and she observed a blue,
metallic sports car zoom through the parking lot and a 5'3" tall 125-130 pound Mexican man
exit the car and jump up and down yelling over here, over here.
7
Oertell then observed an
individual she thought was a woman run from Security Pacific, jump over a row of bushes
and run to the passenger side of the car. Fearing the bank had been robbed, she asked a teller
at her bank to call the police. In court, Oertell identified Gurry as the driver of the vehicle.
However, Oertell had seen Gurry's picture on television the night of the incident.
The owner of the license plate found on Echavarria's motorcycle, who testified that Gurry
was the man he had seen lurking around his motorcycle a few days before the attempted
robbery, never picked Gurry out of a lineup, but made his identification when he saw a
picture of Gurry in the newspaper the day after the incident. Prior to identifying Gurry, the
witness described the man he had seen as 5'6" and weighing 1S5 pounds.
__________

6
Relying on the Amaral decision, the Arizona Supreme Court determined that Dr. Loftus had erroneously
been precluded from testifying in a case in that state. State v. Chapple, 660 P.2d 1208 (Ariz. 1983).

7
Counsel represented that Gurry is approximately 5'3 tall, Cuban, and weighed roughly 130 pounds at the
time of the incident.
man he had seen as 5'6" and weighing 185 pounds. Additionally, Gurry's employment
supervisor testified that Gurry would have been missed at work if he had taken a break of
sufficient duration to travel to and from the location where the license plate was stolen.
8

Other witnesses gave descriptions of Gurry which ranged from a 5'2" Hispanic to a 5'10"
Caucasian. No witnesses were able to identify Gurry as the driver from a pictorial lineup.
Most, if not all, of the identifications were cross-cultural.
[Headnote 16]
Given the conflict in evidence concerning the pre-arrest identifications of Gurry in this
case, the district court erred in not allowing Gurry's expert to testify. The substance of the
proposed testimony was relevant to the identification of Gurry as Echavarria's accomplice and
most likely would have been helpful to the jury. See NRS 50.275. However, eyewitness
identifications aside, the remaining evidence linking Gurry to the crime was clearly of a
qualitative magnitude that renders harmless the error in excluding Gurry's expert. Particularly
compelling is the fact that Gurry took off work the morning of the incident, and lied about his
whereabouts to law enforcement officers. Gurry's fingerprints on the stolen license plate as
well as the one belonging to Echavarria's motorcycle also strongly implicate Gurry. Various
items found in the roommates' apartment and the dumpster outside also tie Gurry to the
crime. Although none of these evidentiary items standing alone conclusively established
Gurry's involvement, the sum of the evidence presented at trial was sufficient to establish
beyond a reasonable doubt that Gurry participated in the planning and commission of the
attempted bank robbery which resulted in the tragic death of Agent Bailey.
Gurry's gun ownership.
The district court permitted the State to introduce evidence that one of the guns taken to
Mexico by Echavarria and recovered by the Mexican authorities was purchased by Gurry
about a month before the incident at Security Pacific Bank.
9

[Headnotes 17, 18]
Because Gurry's gun was not connected in any way to the crime scene or to Gurry's
presence there, evidence of Gurry's ownership of the gun was only of peripheral relevance
and should have been excluded.
__________

8
Gurry worked the 3:00 a.m. to 11:00 a.m. shift in the laundry room of the Hilton Hotel.

9
The district court had earlier granted Gurry's motion in limine to exclude the fact of Gurry's gun ownership,
then reversed itself two weeks into the trial, reasoning that the introduction of a statement by Echavarria that
Gurry was not involved in the crimes in any way made the issue of the ownership of the gun more probative.
crime scene or to Gurry's presence there, evidence of Gurry's ownership of the gun was only
of peripheral relevance and should have been excluded. However, because of the substantial
body of other evidence linking Gurry to the crime, we conclude that the error was harmless.
Deadly weapon enhancement.
[Headnote 19]
Gurry contends that the second consecutive life sentence imposed as a deadly weapon
enhancement was improper. He cites as error the district court's rejection of his proffered jury
instruction regarding the circumstances under which an unarmed aider or abettor may be
found to have used a deadly weapon.
10
Gurry's proposed instruction was based upon
language from our opinion in Anderson v. State, 95 Nev. 625, 600 P.2d 241 (1979).
Although Gurry was entitled to have the jury instructed on the law relating to this subject,
the district court determined that the proffered instruction was confusing and misleading and
offered to give another instruction taken directly from Anderson. Gurry refused this
instruction and elected instead not to have the jury instructed on the subject. As the
instruction suggested by the district court would have adequately covered the enhancement
element, the failure to give Gurry's proffered instruction was not reversible error.
Application of the felony murder rule to an aider and abettor.
[Headnotes 20, 21]
Gurry argues that his conviction of first-degree murder was improperly based upon the
felony murder rule in this instance because the felonies in which he participated ended before
the murder occurred, when Echavarria abandoned his robbery attempt. However, the crime of
robbery includes acts taken to facilitate the perpetrator's escape. See Payne v. State, 81 Nev.
503, 507, 406 P.2d 922, 925 (1965). Under the facts of this case, there is ample evidence to
support the conclusion that the murder took place during the chain of events which
constitutes the attempted robbery, thus subjecting Gurry to the felony murder rule as an aider
and abettor. See Archibald v. State, 77 Nev. 301, 362 P.2d 721 (1961) (homicide occurred
during perpetration of robbery when defendant robbed service station attendant in California,
kidnapped him, and killed him in Nevada).
__________

10
Gurry's proffered jury instruction stated:
[T]o find an aider and abettor in constructive possession of a weapon used by the principal offender, the
unarmed aider and abettor must have knowledge of the other offender's being armed and the unarmed
offender must have the ability to exercise control over the firearm.
We have carefully examined appellants' numerous other assignments of error and
determine that they lack merit.
For the reasons discussed above, we have concluded that both Echavarria and Gurry were
fairly tried and sentenced. We therefore affirm the judgments of conviction and sentences in
their entirety.
____________
108 Nev. 749, 749 (1992) Thompson v. State
WILLIAM JAMES THOMPSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22472
September 3, 1992 838 P.2d 452
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
attempted fraudulent use of a credit card. Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Defendant appealed his jury conviction for fraudulent use of a credit card entered by the
district court. The supreme court held that: (1) evidence supported district court's finding that
defendant's confession was voluntary; (2) trial court committed error by giving instruction
with mandatory presumption regarding intent; and (3) instructions establishing mandatory
presumption with regard to intent were harmless error.
Affirmed.
Morgan D. Harris, Public Defender, and Rebecca A. Geib, Deputy Public Defender, Clark
James Tufteland and David B. Barker, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Confession is inadmissible unless freely and voluntarily given.
2. Criminal Law.
In determining whether a confession is product of free will, supreme court employees totality of circumstances test.
3. Criminal Law.
Confession obtained by physical intimidation or psychological pressure is inadmissible.
4. Criminal Law.
District court's decision regarding voluntariness of a confession is final unless such finding is plainly untenable.
5. Criminal Law.
Evidence supported district court's finding that defendant's confession was voluntary, despite defendant's contention that he was
kept painfully handcuffed for several hours and was told that his handcuffs would be removed only if he signed written confession;
police officials testified that defendant was neither threatened nor coerced into giving his confession.
6. Criminal Law.
Instruction that person who possesses two or more credit cards belonging to someone else, is presumed to possess cards with
criminal intent constituted improper direction to jury to find presumed fact against defendant charged with attempted fraudulent use of
credit card. NRS 47.230, subd. 2.
7. Criminal Law.
Trial court committed error by giving instruction with mandatory presumption that person who was in possession of two or more
credit cards had those cards with intent of using them without giving charge that while law permits jury to regard basic, or predicate,
facts as sufficient evidence of presumed fact, law does not require jury to do so and that where presumed fact establishes guilt or is
element of offense charged, trial court must instruct jury that existence of presumed fact must, on all evidence, be proved beyond
reasonable doubt. NRS 47.230, subd. 3.
8. Criminal Law.
When trial court violates presumptions against accused statute, harmless-error analysis will be applied in the rare situations when
supreme court can be confident that error did not play any role in jury's verdict. NRS 47.230.
9. Criminal Law.
Instruction establishing mandatory presumption with regard to defendant's intent in prosecution of defendant for attempted
fraudulent use of credit card, and failure to give instructions mandated by presumptions statute, were harmless error, where defendant
in his confession admitted his intent to use the credit cards to purchase personal items for himself. NRS 47.230, 47.230, subd. 3,
205.760, subd. 1.
OPINION
Per Curiam:
A jury convicted appellant William James Thompson of attempted fraudulent use of a
credit card. After adjudging him a habitual criminal, the district court sentenced appellant to
ten years in the Nevada State Prison. Appellant raises two principal issues for our
consideration: (1) whether the trial court erred in admitting appellant's confession, and (2)
whether the trial court erred in giving a jury instruction that contained presumptions against
appellant.
THE FACTS
On January 18, 1991, James and Ivy Ryans, husband and wife, were walking through a
casino in Las Vegas, Nevada, when an unidentified person snatched Mrs.
unidentified person snatched Mrs. Ryans' purse and ran off. Mrs. Ryans' purse contained,
among other things, JC Penney and Sears credit cards.
Later that evening, appellant and an acquaintance, Rose Burrell, entered a Sears store in
Las Vegas and began looking at video equipment. They were assisted by Sears sales clerk
William Berman, who became suspicious when appellant showed no interest in anything but
the most expensive items. Berman instructed security agents Jimmy Campbell and Steven
Rollins to keep watch on appellant. Agent Campbell surveyed appellant and Burrell on a
video monitor located downstairs, while Agent Rollins monitored them from the sales floor.
Once appellant and Burrell had selected their items, Berman led them to the register and
asked how they intended to pay for the items. Burrell reached into her purse, removed a JC
Penney credit card, and offered it to Berman. Quipping, It would be kind of hard to use that
here, Berman refused the card. Burrell then became nervous and began fumbling around in
her purse. According to Berman's trial testimony, appellant then reached into Burrell's purse,
extracted the Sears credit card, and handed it to Berman. Appellant denies having reached
into Burrell's purse and insists that Burrell handed the Sears card to Berman.
Berman attempted to complete the transaction with the Sears card, but the register
indicated that the charge card had been lost or stolen. Berman asked Burrell and appellant for
identification, and when none was forthcoming, he confiscated the Sears card and summoned
Agents Campbell and Rollins. The agents took possession of the Sears card and asked
appellant and Burrell to accompany them to the security office. En route, appellant grew
recalcitrant and refused to proceed; consequently, Agent Rollins handcuffed appellant.
Once in the security office, the agents questioned appellant and Burrell. Agent Campbell
also contacted the Sears customer service center, which informed him that a stolen credit card
report had been received earlier that day from James Ryans. Agent Campbell then telephoned
the Las Vegas Metropolitan Police Department.
Metro Officer Todd Hyatt arrived at the Sears security office approximately two hours
later. Appellant asserts that he complained repeatedly during this two-hour period that his
handcuffs were causing him great pain and cutting off his circulation. Appellant further
contends that despite his complaints, neither Agent Campbell nor Agent Rollins removed or
loosened the handcuffs. Agent Campbell, however, testified that he removed the handcuffs
when appellant had to use the restroom and loosened them when appellant complained of
pain.
Officer Hyatt first interviewed Agents Campbell and Rollins. Then, after apprising
appellant and Burrell of their rights, he began questioning them. According to Officer Hyatt,
appellant admitted having attempted to purchase the video equipment with the Sears card and
voluntarily wrote the following confession:
As I was about to enter the shopping mall, I noticed a plastic credit card (Sears) on
the sidewalk near the entrance. I picked it up and placed it in my pocket. I then ran into
[Burrell] inside the mall. I must back up a bit and say that the reason I came to the mall
was to purchase a couple of pair of jogging outfits. But when I met [Burrell], I had
other thoughts. Without her knowledge or consent I led her into the store to purchase
personal items for myself, including a VCR & Vatamat. I used the card.
Appellant insists that Officer Hyatt coerced this confession. According to appellant, he was in
extreme pain from the handcuffs, Officer Hyatt told him the handcuffs would be removed
only if appellant wrote and signed a statement saying that he personally used the Sears card,
and he agreed to this condition to relieve the pain.
The State subsequently charged appellant with possession of a credit card without
cardholder's consent, in violation of NRS 205.690, and attempted fraudulent use of a credit
card, in violation of NRS 205.760 and 193.330. Appellant filed a pre-trial motion to suppress
his confession on the grounds that it was coerced and was therefore inadmissible, but the
district court denied this motion, concluding that appellant gave his confession voluntarily.
Appellant's trial began on April 24, 1991. At the conclusion of the trial, the jury returned a
verdict of guilty on the charge of attempted fraudulent use of a credit card. The district court
subsequently adjudged appellant a habitual criminal and sentenced him to a ten-year prison
term in accordance with NRS 207.010(1). This appeal followed.
DISCUSSION
I. Appellant's Confession
Appellant argues that his written confession was involuntarily given, and that the district
court erred in not suppressing it. According to appellant, he was kept painfully handcuffed for
several hours, and Officer Hyatt told him the handcuffs would be removed only if he signed a
written confession.
[Headnotes 1-3]
A confession is inadmissible unless freely and voluntarily given.
given. Rowbottom v. State, 105 Nev. 472, 482, 779 P.2d 934, 940 (1989). In order to be
voluntary, a confession must be the product of a rational intellect and a free will.' Passama
v. State, 103 Nev. 212, 213-214, 735 P.2d 321, 322 (1987)) (quoting Blackburn v. Alabama,
361 U.S. 199, 208 (1960)). In determining whether a confession is the product of a free will,
this court employs a totality of the circumstances test. Id. at 214, 735 P.2d at 323.
Unquestionably, however, a confession obtained by physical intimidation or psychological
pressure is inadmissible. Townsend v. Sain, 372 U.S. 293, 307 (1963), overruled on other
grounds by Keeney v. Tamayo-Reyes, 112 S.Ct. 1715, 1717 (1992).
[Headnotes 4, 5]
The district court's decision regarding voluntariness is final unless such finding is plainly
untenable. Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 109 (1979). If appellant's
allegations are true, then the district court's finding that his confession was voluntarily given
cannot stand. Officer Hyatt and Agent Campbell, however, both testified at trial that appellant
was neither threatened nor coerced by Officer Hyatt into giving his confession.
1
Agent
Campbell also testified that he loosened the handcuffs when appellant complained of pain and
removed them when appellant had to use the restroom. Though appellant disputes the
testimony of these witnesses, in our view it cannot be said that the district court's decision is
plainly untenable. See Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981) (where testimony
conflicts, it is for the trier of fact to determine what weight and credibility to give the
testimony). Thus, we hold that the district court did not err in admitting appellant's written
confession.
II. Jury Instruction No. 7
[Headnote 6]
Jury Instruction No. 7 in this case reads as follows:
Your [sic] instructed that there is a statutory presumption that any person who has in
his possession or under his control two (2) or more credit cards issued in the name of
names of another person or persons is presumed to have obtained and possess such
credit cards with the knowledge that they have been stolen.
The law also presumes that the person possessed the credit cards with the intent to
circulate, use, sell or transfer them.
__________

1
Although Agent Rollins did not testify at trial, he did testify at appellant's suppression hearing that Officer
Hyatt in no way coerced or threatened appellant.
These presumptions do not apply with [sic] a person who possess [sic] the credit card
with the consent of the cardholder.
(Emphasis added.) Appellant contends that the presumptions contained in this instruction are
mandatory and therefore improper, and that the district court committed error in giving this
instruction. We agree.
As the United States Supreme Court has noted, inferences and presumptions are a staple
of our adversary system of factfinding. Ulster County Court v. Allen, 442 U.S. 140, 156
(1979). Even so, distinctions are made between permissive and mandatory presumptions. A
permissive presumption suggests a possible conclusion to be drawn if the State proves
predicate facts, but does not require the jury to draw that conclusion. Francis v. Franklin,
471 U.S. 307, 314 (1985). Moreover, with a permissive presumption, the State is still
required to convince the jury beyond a reasonable doubt that the suggested conclusion
should be inferred based on predicate facts proved. Id. A mandatory presumption, on the
other hand, is typically cast in the language of a command and tells a jury it must infer the
presumed facts if the State proves certain predicate facts. Id. In Sandstrom v. Montana, 442.
U.S. 510 (1979), the high court held that mandatory presumptions violate the due process
clause of the Fourteenth Amendment, which requires a state to prove every element of the
charged crime.
In Nevada, presumptions are statutorily governed by NRS 47.230, which provides in
relevant part:
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. . . .
According to previous decisions of this court, while jury instructions phrased in the form of
permissible inferences may satisfy NRS 47.230, those phrased in mandatory language do not.
See Marshall v. State, 95 Nev. 802, 804, 603 P.2d 283, 284 (1979); Ricci v. State, 91 Nev.
373, 381, 536 P.2d 79, 83-84 (1975).
In Brackeen v. State, 104 Nev. 547, 763 P.2d 59 (1988), the appellant challenged a jury
instruction identical in all relevant aspects to Jury Instruction No. 7. We held that the
phraseology employed in the challenged instruction violated NRS 47.230(2), which
commands that a judge shall not direct the jury to find a presumed fact against the accused.
Id. at 552, 763 P.2d at 62.
presumed fact against the accused. Id. at 552, 763 P.2d at 62. The State offers no reason why
the holding of Brackeen should not control in this case. Accordingly, we conclude that Jury
Instruction No. 7 violated NRS 47.230(2) and that the district court erred in giving this
instruction.
2

[Headnote 7]
In addition to contravening NRS 47.230(2), the district court violated NRS 47.230(3).
Under that statute, whenever the existence of a presumed fact against the accused is
submitted to the jury, the district court must charge the jury that while the law permits the
jury to regard the basic, or predicate, facts as sufficient evidence of the presumed fact, the law
does not require the jury to do so. In addition, where, as here, the presumed fact establishes
guilt or is an element of the offense charged, the trial court must instruct the jury that the
existence of the presumed fact must, on all the evidence, be proved beyond a reasonable
doubt. Although the jury in the present case was given a general instruction that the
prosecution must prove beyond a reasonable doubt every material element of the offense
charged, the district court failed to give the specific instructions mandated by NRS 47.230(3).
Our previous decisions make clear that this failure is error. See, e.g., Brackeen, 104 Nev. at
552, 763 P.2d at 62.
Thus, we hold that the district court erred both in giving Jury Instruction No. 7 and in
failing to give the instructions required by NRS 47.230(3). It remains for us to consider
whether, as the State contends, these errors are harmless.
[Headnote 8]
We have held that violations of NRS 47.230 will not be deemed harmless where the
erroneous instruction concerns an essential element of the offense charged, see, e.g., id.;
Hollis v. State, 96 Nev. 207, 209, 606 P.2d 534, 536 (1980); Marshall, 95 Nev. at 804, 603
P.2d at 284, and Jury Instruction No. 7 concerns appellant's presumed intent to circulate, use,
sell or transfer stolen credit cards, which is an essential element of the offense charged.
3
See
NRS 205.760(1). Today, however, we clarify our position on this issue to reflect
__________

2
Because we conclude that Jury Instruction No. 7 violated NRS 47.230(2), we need not consider whether the
instruction violated the due process clause of the Fourteenth Amendment. See Spears v. Spears, 95 Nev. 416,
596 P.2d 210 (1979) (this court need not consider constitutional issues that are not necessary to the
determination of an appeal).

3
Jury Instruction No. 7 also contains a mandatory presumption concerning appellant's knowledge that the
credit cards had been stolen. However, because such knowledge is not an essential element of the offense
charged, we readily conclude that this mandatory presumption does not require reversal of appellant's judgment
of conviction.
position on this issue to reflect recent decisions of the United States Supreme Court.
Henceforth, we shall apply harmless-error analysis in those rare situations when we can be
confident that [the] error did not play any role in the jury's verdict. Connecticut v. Johnson,
460 U.S. 73, 87 (1983) (plurality opinion).
In Johnson, the plurality opinion mentioned as among those rare situations an instruction
establishing a mandatory presumption on a charge of which the defendant was acquitted (and
not affecting other charges), and an instruction establishing a mandatory presumption with
regard to an element of the crime that the defendant in any case admitted. Id. In Rose v.
Clark, 478 U.S. 570 (1986), the Court recognized a third such situation: When the predicate
facts relied upon in the instruction, the existence of which the jury has found beyond a
reasonable doubt, conclusively establish the ultimate fact to be presumed (the essential
element of the offense charged) so that no rational jury could find those predicate facts
without also finding that ultimate fact. See also Carella v. California, 491 U.S. 263, 266
(1989).
[Headnote 9]
As stated above, Jury Instruction No. 7 establishes a mandatory presumption with regard
to appellant's intent. In his confession, which elsewhere in this opinion we have held was
voluntarily given and, therefore, properly admitted at trial, appellant admitted his intent to use
the credit cards to purchase personal items for myself. Therefore, we hold that the district
court's giving of Jury Instruction No. 7 and its failure to give the instructions mandated by
NRS 47.230(3) were harmless error.
4

CONCLUSION
With respect to appellant's written confession, we conclude that the district court's findings
of voluntariness is not plainly untenable. As to Jury Instruction No. 7, we hold that the district
court erred both in giving the jury instruction and in failing to give the instructions required
by NRS 47.230(3). But because appellant admitted in his confession his intent to use the
credit cards, we conclude that these errors are harmless beyond a reasonable doubt.
Accordingly, we affirm appellant's judgment of conviction.
Springer, J., concurring:
I join in affirming the conviction but not in the opinion of the court.
__________

4
While we conclude that mandatory presumptions concerning an essential element of the offense charged
are subject to harmless error analysis, we continue to urge and expect our district courts to refrain from
instructing juries with such presumptions.
court. I am satisfied that any error in giving Instruction No. 7 was harmless beyond a
reasonable doubt and that we are not required to reverse on federal grounds.
____________
108 Nev. 757, 757 (1992) Coty v. Washoe County
LAUREN A. COTY, individually and as Special Administratrix of the Estate of MARK L.
COTY and CARL R. BLINCOE and PAMELA J. SIZEMORE, as Guardians Ad
Litem of ALEXANDER R. BLINCOE, a Minor, and CARL R. BLINCOE,
Appellants, v. WASHOE COUNTY, WASHOE COUNTY SHERIFF'S
DEPARTMENT, GREGG LUBBE, DANIEL L. CAVALLO and NICK P.
BUGANSKI, Respondents.
No. 22108
September 3, 1992 839 P.2d 97
An appeal from an order of the district court dismissing defendants from liability pursuant
to a NRCP 12(b)(5) motion. Second Judicial District Court, Washoe County; Brent T.
Adams, Judge.
In wrongful death action brought against county, county sheriff's department, and deputy
sheriff in connection with automobile accident, the district court dismissed defendants from
liability. On appeal, the supreme court, Mowbray, C. J., held that deputy sheriff did not
affirmatively cause the harm, as required for liability, in detaining, but not arresting,
intoxicated driver.
Affirmed.
Springer and Rose, JJ., dissented.
Petersen & Petersen, Reno, Bradley & Drendel, Reno, for Appellants.
Dorothy Nash Holmes, District Attorney, Edward Dannan, Chief Deputy District
Attorney, and Chester H. Adams, Deputy District Attorney; Margo Piscevich, Reno; Nick P.
Buganski, In Proper Person, Sparks, for Respondents.
1. Judgment.
District court order would be treated as summary judgment, as district judge considered matters outside pleadings in granting
motion to dismiss. NRCP 12(b)(5), 12(c).
2. Judgment.
Summary judgment is appropriate where there are no genuine issues of material fact and moving party is entitled to judgment as
matter of law.
Public duty doctrine refers to rule that duty of fire and police departments is one owed to public, but not to individuals.
4. Officers and Public Employees.
Affirmatively cause the harm, within meaning of statutory exception to public duty doctrine, means that public officer must
actively create situation which leads directly to damaging result in order to be held liable. NRS 41.0336, subd. 2.
5. Sheriffs and Constables.
Deputy sheriff did not affirmatively cause the harm, as required for imposition of liability in wrongful death action, in detaining,
but not arresting, intoxicated driver who subsequently left scene and became involved in fatal accident; deputy took precautionary
measures by ordering driver off the road and making arrangements for his return home, and it was driver who set act in motion by
disobeying deputy's order. NRS 41.0336, subd. 2.
OPINION
The sole issue on appeal is whether the appellants have set forth facts sufficient to sustain
a wrongful death action by asserting that a deputy sheriff affirmatively caused their harm,
pursuant to NRS 41.0336(2), in detaining, but not arresting, an intoxicated driver. We
conclude they have not.
THE FACTS
On April 14, 1990, during the Easter holiday weekend, Jamie Ray Anderson (Anderson),
age 19, was driving his 1972 Firebird automobile in a southerly direction on Pyramid Lake
Highway. At approximately 8:00 p.m., Deputy Gregg Lubbe (Deputy Lubbe), a deputy
sheriff for Washoe County, observed Anderson driving at an excessive rate of speed and
pulled him over. Thereafter, Deputy Lubbe determined that Anderson had been drinking and
administered a field sobriety test, which Anderson failed. Deputy Lubbe did not arrest
Anderson for drunk driving. Instead, Anderson was cited for speeding and Deputy Lubbe
ordered him to park his car along the side of the road. Meanwhile, Deputy Lubbe made a
radio request that Anderson's mother be contacted to arrange for Anderson's transportation
from the area. The Washoe County Sheriff's Department reached Anderson's mother by
telephone and requested that she come to the scene and drive him home. Deputy Lubbe left
the scene once arrangements for Anderson's ride home had been confirmed.1 Subsequently,
Anderson resumed driving in violation of Deputy Lubbe's order.
confirmed.
1
Subsequently, Anderson resumed driving in violation of Deputy Lubbe's order.
At approximately 8:30 p.m., Alexander R. Blincoe (Blincoe) and Mark L. Coty
(Coty), both age 16, were traveling in a northerly direction on Pyramid Lake Highway,
about 24 miles north of Sparks. Blincoe was driving a 1959 MGA automobile and Coty was a
passenger. Anderson's car streamed into the oncoming lane of traffic and collided with
Blincoe's vehicle. As a consequence, Anderson and Coty died.
Representatives of the Coty and Blincoe families (collectively referred to as appellants)
brought separate actions against Washoe County, the Washoe County Sheriff's Department
and Deputy Lubbe (collectively referred to as Washoe County), which were subsequently
consolidated. Washoe County moved to dismiss the action, pursuant to NRCP 12(b)(5), on
the ground that no special legal duty was owed to the appellants. The appellants sought to
convert the NRCP 12(b)(5) motion to a NRCP 56 motion for summary judgment, pursuant to
NRCP 12(c).
2
The district court did not specifically rule on the appellants' motion. However,
in entering judgment in favor of Washoe County, the district court clearly considered matters
outside the appellants' complaints.
3

DISCUSSION
[Headnotes 1, 2]
We will treat the district court order as a summary judgment because the district judge
considered matters outside the pleadings in granting the NRCP 12(b)(5) motion to dismiss.
See Pasco Builders, Inc. v. Hebard, 83 Nev. 165, 169-70, 426 P.2d 731, 734 (1967) (citations
omitted). Summary judgment is appropriate where there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law.
__________

1
At the hearing on the motion to dismiss, counsel for the defendants stated that Deputy Lubbe left the scene
to respond to another call.

2
NRCP 12(c) provides in pertinent part:
If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not
excluded by the court, the motion shall be treated as one for summary judgment and disposed of as
provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.

3
Prior to setting forth its finding of facts, the district court wrote:
The Court, having taken into consideration the oral arguments presented by counsel, and after reviewing
and considering as true the well-pled facts in the Complaints, the pleadings, motions and all documentary
evidence submitted in these proceedings to date, now finds and concludes as follows:
. . . .
party is entitled to judgment as a matter of law. See American Federal Savings v. Washoe
County, 106 Nev. 869, 871, 802 P.2d 1270, 1272 (1990) (citing NRCP 56(c); Levin v.
Wheatherstone Condominium Corp., 106 Nev. 307, 309, 791 P.2d 450, 451 (1990)).
[Headnote 3]
In Frye v. Clark County, 97 Nev. 632, 637 P.2d 1215 (1981), we held that a fire
department is not generally liable to individuals because the duty to fight fires runs to all
citizens and is to protect the safety and well-being of the public at large.' Id. at 633, 637
P.2d at 1216 (quoting Bruttomesso v. Las Vegas Met. Police, 95 Nev. 151, 153, 591 P.2d
254, 255 (1979)). Therefore, the duty of fire and police departments is one owed to the
public, but not to individuals. Frye, 97 Nev. at 633, 637 P.2d at 1216 (citations omitted).
This rule is often referred to as the public duty doctrine.
Our decision in Frye recognized the following exceptions to the public duty doctrine: (1)
where a public agent, acting within the scope of official conduct, assumes a special duty by
creating specific reliance on the part of certain individuals; or (2) where a public officer's
conduct affirmatively causes harm to an individual. Frye, 97 Nev. 634, 637 P.2d at 1216
(emphasis added). These exceptions were codified in 1987 in NRS 41.0336.
4

[Headnote 4]
The phrase affirmatively caused the harm is not defined in NRS 41.0336. However,
affirmatively caused has been defined as an act creating a dangerous situation which leads
directly to the injurious result. Hennes v. Patterson, 443 N.W.2d 198, 203 (Minn.Ct.App.
1989) (defining affirmative causation pursuant to Minn. Stat. Ann. 3.736, subd. 3(d) (West
1982)). In negligence situations, legal cause is determined when the actor's negligent
conduct actively and continuously operate[s] to bring about harm to another. Restatement
(Second) of Torts 439 (1964). We conclude that affirmatively caused the harm, as used in
NRS 41.0336(2), means that a public officer must actively create a situation which leads
directly to the damaging result.
__________

4
41.0336 Conditions and limitations on actions: Acts or omissions of firemen or law enforcement officers.
1. The fireman, officer or other person made a specific promise or representation to a natural person who
relied upon the promise or representation to his detriment; or
2. The conduct of the fireman, officer or other person affirmatively caused the harm.
The provisions of this section are not intended to abrogate the principle of common law that the duty of
governmental entities to provide services is a duty owed to the public, not to individual persons.
result. Thus, the issue is whether the facts demonstrate that Deputy Lubbe was the active and
direct cause of the harm to the appellants.
[Headnote 5]
Once Deputy Lubbe determined that Anderson was legally intoxicated, he ordered
Anderson to park his car off the road. Deputy Lubbe then made arrangements for Anderson to
be escorted home through dispatch. Anderson's ensuing departure was a violation of Washoe
County law.
5
Deputy Lubbe did not instruct Anderson to continue driving. Instead, Deputy
Lubbe actively and directly ordered Anderson off the road. While Deputy Lubbe's actions
may have been in violation of Washoe County Sheriff Departmental procedures, he was
under no statutory duty to arrest Anderson.
6

The appellants argue that the circumstances involving Anderson and Deputy Lubbe are
closely related to those in State v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985). In Eaton, the
State was held liable for a Nevada highway patrolman's failure to take reasonable
precautionary measures to warn oncoming motorists of the existence of a large patch of black
ice on Interstate 80, between Winnemucca and Battle Mountain, which resulted in a fatal
accident. The State was held liable for its failure to exercise due care to keep its highways
reasonably safe for the traveling public. Eaton, 101 Nev. at 709, 710 P.2d at 1373 (quoting
State v. Kallio, 92 Nev. 665, 667, 557 P.2d 705, 706 {1976)).
__________

5
Obedience to police officers. It is unlawful for any person willfully to fail or refuse to comply with any
lawful order or direction of any police officer when he is performing his duties in the enforcement of this
chapter.
Washoe County, Nv., Code 70.205 (October 12, 1982).

6
The appellants imply that internal procedures of the Washoe County Sheriff's Department created a special
duty on Deputy Lubbe to arrest Anderson once Anderson failed the field sobriety test. Although we have
previously held that statutes and ordinances can create a special duty exception to the public duty doctrine, we
have never held that a special duty may be created by internal procedures. See Charlie Brown Constr. Co., Inc. v.
Boulder City, 106 Nev. 497, 797 P.2d 946 (1990). A review of Nevada and Washoe County laws did not reveal
a statute mandating the arrest of an intoxicated driver. The dissent suggests that we adopt the clear minority view
that a special duty was created by the internal departmental procedures of the Washoe County Sheriff's Office.
However, internal procedures do not approach the level of statutes or ordinances, which must set forth
mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole' in
order to create a special duty. Morgan v. District of Columbia, 468 A.2d 1306, 1314 (D.C. 1983) (citations
omitted). Laws creating a special duty are a matter of public record, while internal procedures are not.
Moreover, we note that the parties stipulated that no liability existed pursuant to NRS 41.0336(1) because no
special duty between Deputy Lubbe and the appellants could be found.
(1976)). We further held that the State has a duty to remedy a known hazardous condition
on its highways or give appropriate warnings of its presence. [Citations omitted.]' Id.
However, the case at bar may be readily distinguished.
In Eaton, the trooper failed to take any precautionary measures after being at the scene of a
known hazardous condition for over an hour. Thus, the trooper may well have affirmatively
caused the harm as contemplated by NRS 41.0336(2). In the case before us, Deputy Lubbe
did take precautionary measures by ordering Anderson off the road and making arrangements
for his return home. It was Anderson who set the act in motion by disobeying Deputy Lubbe's
order. Therefore, we cannot conclude that Deputy Lubbe was the active and direct cause of
the harm to the appellants.
Accordingly, we hold that NRS 41.0336(2) precludes this action and affirm the district
court order dismissing this case pursuant to NRCP 12(b)(5).
7

Springer, J., with whom Rose, J., agrees, dissenting:
I dissent because, as I see it, the officer in this case may have affirmatively caused Mark
Coty's death and Alexander Blincoe's injuries. This case was dismissed pursuant to NRCP
12(b)(5) for failure to state a claim upon which relief can be granted. Dismissal under NRCP
12(b)(5) is not proper, however, unless it appears beyond a doubt that the plaintiff could
prove no set of facts which, if accepted by the trier of fact, would entitle him [or her] to
relief. Edgar v. Wagner, 101 Nev. 226, 228, 699 P.2d 110, 112 (1985).
As noted by the majority, the district court ostensibly considered evidence outside the
pleadings in ruling on the motion to dismiss, and therefore the order should be regarded as a
summary judgment. Summary judgment is only proper if
the moving party is entitled to judgment as a matter of law, and no genuine issue of
material fact remains for trial; properly supported factual allegations of the party
opposing summary judgment must be accepted as true. Additionally, the pleadings and
documentary evidence must be construed in the light which is most favorable to the
party against whom the motion for summary judgment is directed.
__________

7
While the district court founded its decision on NRS 41.0336(2), it should be noted that the decision of
whether to make an arrest is largely discretionary and NRS 41.032(2), providing immunity for discretionary acts,
may well have decided this issue in the absence of NRS 41.0336(2).
Perez v. Las Vegas Medical Center, 107 Nev. 1, 4, 805 P.2d 589, 590 (1991) (citations
omitted).
The plaintiffs in this case, representatives of the deceased Mark Coty and Alexander
Blincoe, claim that Deputy Lubbe failed to arrest Anderson or to remove the vehicle
Anderson was driving from his control, all in a manner that was contrary to official
procedures of the Washoe County Sheriff's Department which require the arrest of all drivers
who fail the field sobriety test. In addition, plaintiffs submitted affidavits of their counsel
stating that, based upon a preliminary investigation, counsel were informed that an internal
investigation into Deputy Lubbe's conduct had resulted in findings that he violated several
procedures and policies of the Washoe County Sheriff's Department relative to the arrest of
drunken drivers and that Lubbe was temporarily suspended.
Because there is evidence (1) that official Sheriff's Department regulations imposed on the
officer a special duty to arrest intoxicated drivers and thereby keep them off the highways, (2)
that the regulations were designed and intended to protect others from being harmed by
impaired drivers, and (3) that Deputy Lubbe knowingly violated the special duty created by
the regulation, I conclude that a jury could legally conclude that the harm caused by Lubbe
was affirmatively caused and that Lubbe, the Sheriff's Department, and Washoe County are
not immune from liability under NRS 41.0336.
1

NRS 41.0336 is the codification of the common law public duty doctrine, which holds
that no liability arises out of a failure to provide police protection. This immunity rests on the
principle that providing this kind of protection is a duty owed to the public, but not to
individuals. Frye v. Clark County, 97 Nev. 632, 633, 637 P.2d 1215, 1216 (1981). Liability
cannot be imposed under statutory rule in this case absent a showing of affirmative causation.
Affirmatively caused harm is not an easy term to deal with when it is used in connection
with negligence, as it is in NRS 41.0336. Although this court mentioned the term
affirmatively causes in Frye, we have never defined or explained what might be meant by
affirmatively-caused negligence.2 Id. at 634, 637 P.2d at 1216.
__________

1
NRS 41.0336 states, in relevant part, the following:
A . . . law enforcement agency is not liable for the negligent acts or omissions of its . . . officers . . .
nor are the individual officers . . . unless:
. . . .
2. The conduct of the . . . officer . . . affirmatively caused the harm.
be meant by affirmatively-caused negligence.
2
Id. at 634, 637 P.2d at 1216. If Deputy Lubbe,
by knowingly violating an official regulation designed to protect vehicle occupants and others
from the dangers inherent in drunk driving, did not affirmatively cause harm, then I am
unable to think of an example of what affirmatively-caused harm might be. I must assume
that the legislature intended that the term has meaning. I believe that I have found that
meaning.
There is certainly something inherently contradictory about the idea of affirmative
negligence. By nature, negligence is the failure to do something; it is, by definition, negative
and not affirmative; and the question becomes whether negative, negligently caused harm is
inconsistent with and irreconcilable with positive, affirmatively-caused harm.
At first glance affirmatively caused harm suggests intentionally caused harm. When one
affirmatively desires to bring about a certain, harmful result, one is said to have intended
that result. Obviously, however, the legislature could not have been referring to intentional
torts when it spoke of affirmatively-caused harm, because police officers are not, under NRS
41.0336, entitled to immunity for intentionally caused harm, only immunity for negligent acts
and omissions. Accordingly, if we are to find a meaning for the term, it must be more than
mere neglect, more than mere failure to use due care under the circumstances; there must
be something affirmative about the cause of harm that falls short of being intentional
harm.
__________

2
The majority carelessly cites Hennes v. Patterson, 443 N.W.2d 198, 203 (Minn.Ct.App. 1989), claiming
that in that case affirmatively caused' has been defined as an act creating a dangerous situation which leads
directly to the injurious result. (Majority Opinion at 760; emphasis in original). The expression, affirmatively
caused is not defined at all in Hennes; and, if it were, it would probably have no application to the present case
because, in Hennes, there was no negligence at all on the part of agents of the state. ([T]here was no evidence
the snowbank along the guardrail was created by a negligent act of plowing the road. Id. at 203). The Hennes
court went on to hold that even had there been negligence, the state's decision to plow the snow off the traveled
portions of the road and against the guardrail is immune from liability under the discretionary function exception
to liability. Id. at 204. The Hennes court also held that a statutory exclusion from immunity, expressed by the
statutory words when the condition is affirmatively caused by the negligent acts of a state employee, id. at 201,
was not applicable because there was no evidence that the snowbank was affirmatively caused by any negligent
acts of a state employee. Id. at 203. The case merely decides that there was no affirmative causation, without
ever discussing what affirmative causation might be. The case is in perfect harmony with my dissent, as I would
not dream of holding that affirmatively-caused negligence was present in a case, like Hennes, where there was
no negligence to begin with and in which any possible negligence (piling snow too high against a guardrail) was
totally unrelated to the affirmative duty created by regulation which we have in the case before us. As far as I
can tell the majority's definition of affirmative cause (It means that a public officer must actively create a
situation which leads directly to the damaging result.) was pulled right out of the sky. (Majority Opinion at
760-761).
than mere failure to use due care under the circumstances; there must be something
affirmative about the cause of harm that falls short of being intentional harm.
If a statutory provision is ambiguous, it should be construed in accordance with what
reason and public policy would indicate the legislature intended. Hotel Employees v. State,
Gaming Control Bd., 103 Nev. 588, 591, 747 P.2d 878, 880 (1987). The standard public
policy rationales behind the public duty doctrine are that the government should not be
exposed to excessive liability and that the governmental process should be protected. Further,
the [public duty] doctrine is also viewed as a mechanism for focusing attention on whether
the governmental agency owed a duty to the particular plaintiff, rather than the public as a
whole. Bailey v. Town of Forks, 737 P.2d 1257, 1259 (Wash. 1987). Additionally, in
Bruttomesso v. Las Vegas Metropolitan Police Department, 95 Nev. 151, 153, 591 P.2d 254,
255 (1979), we stated that:
[t]he duty of government, in this instance the Police Department, runs to all citizens and
is to protect the safety and well-being of the public at large. Consequently, government
is not liable for a failure to supply police protection without a showing of a special
relationship or duty to the particular individual.
(Citations omitted; emphasis added.)
After considering the phrase affirmatively causes in the context of NRS 41.0336, and
after reviewing the policy rationales behind the public duty doctrine, the only meaning that I
can give to affirmatively caused negligence is that it is the kind of negligence that results
from the breach of a special, affirmative duty that was created by statute or regulation for the
purpose of protecting an identifiable class of persons from the kind of harm the statute or
regulation was designed to prevent. The public duty doctrine was created to prevent excess
governmental liability and to protect the governmental process. It focuses on the duties that
police officers (and other public servants) owe to the public at large and shields these officers
from liability for the negligent performance of their general public duties. If, however, an
officer owes a special duty to a person or group of persons, public duty doctrine immunity
should not apply. Holding officers liable for negligence incurred from special, discrete duties
does not subject the government to excess liability, nor does it unduly interfere with the
governmental process. Thus, I read NRS 41.0336 to mean that an officer may affirmatively
cause harm when the officer knowingly violates a statute or regulation which is designed and
intended to protect others from a certain kind of harm.
harm. An officer, under such circumstances, owes a special duty created by the statute or
regulation; and, absent such a special duty, there can be no affirmative causation as
contemplated under NRS 41.0336.
To bring this definition into the context of the police officer's negligence charged in this
case, let me offer an example: Say that a police organization has enacted a regulation which
requires that, unexceptionably, all police officers must handcuff all arrestees who are arrested
for committing a felony. The purpose of the regulation is to prevent harm to police officers
and others that might reasonably expected to be inflicted by escaping felon-arrestees who
would not have inflicted harm had they been properly secured by handcuffs. If a police officer
knowingly violated this regulation, and if, as the proximate result of the violation, a person
was injured by a felon who was enabled to flee because of not having been handcuffed, then I
believe such an officer could be said to have violated a special duty to the injured person and
to have affirmatively caused the harm. I say this because the officer's deciding not to handcuff
is more than mere inadvertence, more than mere neglect, more than mere negligence. The
described officer makes a deliberate choice, not the choice intentionally to harm someone,
but, rather, the choice to eschew a positive duty that was specifically imposed upon the
officer by the regulation. What is affirmative about the causation of harm in this kind of
example is: (1) a specific and affirmative duty to protect persons in a definable zone of danger
is imposed, and (2) the officer makes an affirmative decision to avoid that duty.
3

In the present case, Deputy Lubbe may have had a special duty, created by Washoe County
Sheriff's Department procedures, and perhaps by state statute, to arrest drunk drivers and not
to release them and thus create the danger of harm inherent in driving while intoxicated.
Deputy Lubbe stopped Anderson, a drunk teenager who was speeding along the Pyramid
Highway. Deputy Lubbe had a special, affirmative duty, which ran to Coty and Blincoe,
members of the class of persons designed to be protected by a procedure or regulation
that requires sheriffs' deputies to arrest drunk drivers and not let them drive on the
highways.
__________

3
It could be argued that requiring a knowing and affirmative choice to violate a statute or regulation, rather
than a mere failure to comply with such, rewards incompetence and insulates an irregular officer from liability
for violating rules and laws. In other words to follow the examples given, if an officer were to fail to handcuff a
felon without knowing that he was by regulation required to do so, that officer would escape liability under NRS
41.0336. My answer to this is that harm caused by unknowing failure to follow regulations is not affirmatively
caused harm. It is the officer's deciding to violate the specific command contained in the regulation that gives the
affirmative quality to the causation. As a practical matter I do not think that if my rule were followed there
would be very many policemen saying: I did not know about our regulations; or I did not know I was
supposed to handcuff felons; or I did not know that I was required to arrest drunken drivers.
had a special, affirmative duty, which ran to Coty and Blincoe, members of the class of
persons designed to be protected by a procedure or regulation that requires sheriffs' deputies
to arrest drunk drivers and not let them drive on the highways. It appears to me that if Deputy
Lubbe was required, by a department regulation, to arrest Anderson, Coty was killed and
Blincoe was injured because of Deputy Lubbe's affirmative decision, in violation of this
regulation, not to arrest Anderson. Even if I were to accept the majority's less-than-explicit (to
be kind) definition of affirmative causation, namely, actively creat[ing] a situation which
leads directly to the damaging result, I would certainly find that the officer in this case
actively created a situation that led directly to a damaging result. Teenagers who are released
after illegally drinking and driving foreseeably present a danger to the public and to
themselves, and due care mandates that they be detained and their parents notified. Weldy v.
Town of Kensington, 514 A.2d 1257 (N.H. 1986) (in which liability arising out of an
automobile collision was based on a police officer's failure to arrest teenagers who had been
observed drinking alcohol in an automobile). That Deputy Lubbe actively created a
dangerous situation by not arresting the drunken teenagers or at least taking their car away
from them is in my mind almost beyond argument. The dangerous situation actively
created by the officer's breach of regulation was obvious and
immediate; it threatens serious physical injury; the threat of short lived . . . and the
plaintiffs (the motoring public) have no chance to protect themselves. Where the risk
created by the negligence of a municipal employee is immediate and foreseeable
physical injury to persons who cannot reasonably protect themselves from it, a duty of
care reasonably should be found. * * * [T]he calamitous consequences to the victims of
accidents caused by drunken driving are all too predictable.
Irwin v. Town of Ware, 467 N.E.2d 1292 at 1300, 1304 (Mass. 1984).
Whether we define affirmative cause in terms of violation of a special, affirmative duty
created by statute or regulation or in terms of actively creating a situation which leads directly
to a damaging result, Deputy Lubbe is liable in this case. In Irwin, above, the court defined
the issue thus: Is the decision of a police officer to remove from the roadways a driver who
he knows or has reason to know is intoxicated a discretionary act. . .? Id. at 1298. The court
held that such a decision was not discretionary and that liability could attach to the municipal
entity. No reasonable basis exists for arguing that a police officer is making a policy or
planning decision in deciding whether to remove from the roadways a driver who he
knows is intoxicated.
officer is making a policy or planning decision in deciding whether to remove from the
roadways a driver who he knows is intoxicated. Rather, the policy and planning decision to
remove such drivers has already been made by the Legislature. Id. at 1299. As I have pointed
out, Officer Lubbe had no discretion to permit these teenagers to continue in control of their
vehicle. The court in Irwin convincingly explains that the duty in these kinds of cases is not a
public duty, not a duty owed to the general public,' but, rather, one of the special
relationships' upon which the common law will base tort liability for the failure to take
affirmative action with reasonable care. Id. at 1301 (emphasis added); see Bailey and
Bruttomesso, above. I think it is clear that Lubbe's failure to take affirmative action as
required of him by department regulations constitutes the affirmative cause necessary to erase
any immunity created by the statute; and I agree with the Irwin court that there is a special
relationship between a police officer who negligently fails to remove an intoxicated motorist
from the highway, and a member of the public who suffers injury as a result of that failure.
Id. at 1303-04. The statutes which establish police responsibilities in such circumstances
evidence a legislative intent to protect both intoxicated persons and other users of the
highway. Id. at 1304. When Lubbe left these drunken boys in control of their vehicle he, for
sure, (to adopt the majority definition) actively created a dangerous situation.
4
There can
be no question but that the dangerous situation which Lubbe created by providing vehicular
transportation to known drunks was a situation that led directly to the damaging result. Even
if we adopt the majority's unsatisfactory, unfounded definition of affirmative cause, Lubbe
must be held responsible for affirmatively causing these deaths.
I fear that I belabor the point, but I offer in support of my position one more example of
case authority which relates, of course, not directly to Nevada's unique statute, but rather
to the mentioned public duty doctrine upon which NRS 41.0336 is based.
__________

4
I am almost too embarrassed to comment on the majority's suggestion that Lubbe can escape liability
because he actively and directly ordered Anderson off the road. (Majority Opinion at 761). After Lubbe
determined that Anderson was legally intoxicated, he ordered Anderson to park his car off the road and to be a
good little boy and not drive any more while he was so drunk. (Id. at 761). I am going to resist the temptation to
comment on the majority's position that all a police officer is required to do when he confronts a dangerously
drunk teenage driver is to tell him to drive his car to the side and park his car off the road. (Id.). If there was
not, as I maintain, a clear duty to arrest, there was most certainly a special and affirmative duty to take the boys'
car keys and remove the vehicle from their very hazardous and life-threatening control. As I read the majority
opinion, Lubbe did not cause this tragedy; rather, [i]t was Anderson who set the act in motion by disobeying
Deputy Lubbe's order to go park somewhere; therefore, Lubbe, in the majority's view, was not the active and
direct cause of the harm to appellants. (Id. at 762). I don't think so.
course, not directly to Nevada's unique statute, but rather to the mentioned public duty
doctrine upon which NRS 41.0336 is based. In Fudge v. City of Kansas City, 720 P.2d 1093
(Kan. 1986), the police failed to arrest or detain an obviously intoxicated man who was in a
parking lot. The man then drove his car and collided with another car; the driver of the other
car was killed. The Kansas court stated the following:
Where the police are subject to guidelines or owe a specific duty to an individual, the
general [public duty] rule does not apply and the police owe a special duty accordingly.
Here, the Kansas City police department had a standard operating procedure manual
which detailed mandatory procedures for handling a variety of police situations . . . .
[T]he police were also subject to a General Order which set out the procedures to be
followed by the police in handling individuals incapacitated by alcohol or drugs.
Id. at 1098 (emphasis added). The Kansas court concluded, because of police guidelines and a
relevant Kansas City Police Department internal order, that the police officers had a duty to
take the intoxicated [driver] into protective custody. Id. The court determined that the police
owed a special duty to the injured victims and noted that [t]he police officers should have
realized that taking [the drunk driver] into protective custody was necessary for the protection
of third persons. Id. at 1099. Regulations of the kind seen here, in my opinion, create a
special duty to protect third persons from drunk drivers; and, as I have pointed out, knowing
violation of such a regulation constitutes affirmative causation.
If Deputy Lubbe was required, by department regulation, to arrest drunk drivers, I think his
conduct falls within the affirmative causation exception of NRS 41.0336. I would therefore
reverse the summary judgment and allow the jury to determine if Deputy Lubbe was required
to arrest drunk drivers under department regulations and procedures and, if so, if Deputy
Lubbe, the Sheriff's Department, or Washoe County should be liable for affirmatively
caused negligence.
____________
108 Nev. 770, 770 (1992) Guy v. State
CURTIS GUY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22269
September 3, 1992 839 P.2d 578
Appeal from a judgment of conviction and sentence of death following a jury verdict of
guilty of first degree murder with the use of a deadly weapon. Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
Defendant was convicted in the district court of murder and sentenced to death, and he
appealed. The supreme court, Mowbray, C. J., held that: (1) evidence sustained finding that
murder was committed during robbery of cocaine from victim; (2) court's instructions were
proper; (3) statement of coconspirator was not admissible when offered for defense; (4)
evidence sustained finding of aggravating circumstances; (5) defendant was not entitled to
make unsworn statement contradicting the evidence in the case; and (6) sentence of death was
not excessive.
Affirmed.
Cherry & Bailus, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney, Daniel M. Seaton, Chief Deputy District Attorney,
1. Robbery.
Even though agreement to share controlled substances being purchased could not be enforced as a contract because of its illegal
purpose, the drugs could be the subject of a robbery. NRS 200.380, subd. 1.
2. Robbery.
Deal made by victim with defendant to lead defendant to a source of cocaine in exchange for some of the cocaine being purchased
by defendant gave the victim a possessory interest in the cocaine, which could be the subject of a robbery from him. NRS 200.380,
subd. 1.
3. Robbery.
Finding that drugs were taken by defendant from victim's person or in the victim's presence, as required for robbery, was supported
by evidence that drugs which defendant had purchased and agreed to share with victim remained in automobile while victim urinated
just outside the open rear passenger-side door and that defendant then sped off in the automobile with the drugs. NRS 200.380, subd.
1.
4. Robbery.
Finding that force was used to take drugs from victim, and not merely to escape, was supported by evidence that
victim was in automobile with defendant and drugs, that he stepped out of the automobile to urinate, that
defendant drove off, that the victim grabbed the door frame, and that defendant's companion shot the
victim.
108 Nev. 770, 771 (1992) Guy v. State
merely to escape, was supported by evidence that victim was in automobile with defendant and drugs, that he stepped out of the
automobile to urinate, that defendant drove off, that the victim grabbed the door frame, and that defendant's companion shot the
victim. NRS 200.380, subd. 1.
5. Homicide.
Court properly instructed jury that the condition of mind described as malice aforethought could arise from any unjustifiable or
unlawful motive or purpose to injure another which proceeded from a heart fatally bent on mischief or with reckless disregard of
consequences and social duty, and that it did not have to arise from anger, hatred, revenge, or particular ill will.
6. Homicide.
Court properly instructed the jury that express malice was that deliberate intention unlawfully to take away the life of a fellow
creature as manifested by external circumstances capable of proof, and that malice is implied when no considerable provocation
appears or when all the circumstances of the killing show an abandoned and malignant heart. NRS 200.020.
7. Criminal Law.
It was error to give flight instruction where the purported flight from police occurred thirteen days after the murder and did not
involve leaving the scene of the murder and where, in view of defendant's criminal proclivities, there were numerous possibilities as to
why he fled from the police.
8. Criminal Law.
Error in giving instruction on flight was harmless in view of overwhelming evidence against defendant.
9. Criminal Law.
Instruction that jury was to determine the guilt or innocence of defendant from the evidence in the case and was not called upon to
return a verdict as to the guilt or innocence of any other person and that jury should acquit defendant if it had a reasonable doubt of his
guilt even though they believed that one or more persons were guilty was both appropriate and necessary in prosecution of defendant
for homicide which was perpetrated with accomplice.
Indictment which alleged that defendant and accomplice willfully and feloniously killed victim by the accomplice shooting at the
victim and defendant aiding and abetting the accomplice was sufficient, despite defendant's claim that it should provide more
information as to the specific acts constituting aiding and abetting.
11. Criminal Law.
Co-conspirator exception to the hearsay rule did not apply to statement of co-conspirator which was offered for defendant, not
against him. NRS 51.035.
12. Criminal Law.
Claim that statement of accomplice was admissible under the catch-all exceptions to the hearsay rule would not be considered
when raised for the first time on appeal. NRS 51.075, 51.315, 51.345.
13. Criminal Law.
Prosecutor may not make statements unsupported by evidence produced at trial.
14. Criminal Law.
Prosecutor's factual assertion that victim bought cocaine on the night of the murder was supported by defendant's
statement to the police that the victim knew where they could purchase cocaine that night.
108 Nev. 770, 772 (1992) Guy v. State
night of the murder was supported by defendant's statement to the police that the victim knew where they could purchase cocaine that
night.
15. Homicide.
Aggravating circumstances that murder was committed while person was engaged in commission of robbery and committed to
receive money or other thing of value was supported by evidence that victim was robbed by defendant and his accomplice in order to
obtain cocaine. NRS 200.033, subds. 4, 6.
16. Homicide.
Trial court has broad discretion on questions concerning admissibility of evidence at penalty phase of capital murder prosecution.
17. Homicide.
Evidence of uncharged crimes may be admitted during penalty hearing of capital murder prosecution once any aggravating
circumstance has been established beyond a reasonable doubt. NRS 175.552.
18. Homicide.
Testimony of person who prepared presentence reports for defendant on his previous convictions concerning statements made by
her during those presentence investigation interviews was admissible at penalty phase of capital murder prosecution. NRS 176.156.
19. Witnesses.
Defendant did not have common-law right to make unsworn and unrestricted statement to the jury, including comments
concerning the charged crime and denial of guilt, without having first taken the witness stand.
20. Criminal Law.
Challenges to penalty phase instructions and special verdict forms were waived where defendant responded negatively when asked
by the court if he had objections to either the instructions or the forms.
21. Criminal Law.
Determination of culpability required before death sentence may be imposed upon a defendant may be made at any point, and it
need not be made by jury.
22. Homicide.
Defendant possessed necessary degree of culpability to be sentenced to death as result of shooting of victim by defendant's
accomplice where defendant knew that his accomplice was carrying a gun and thus was aware that the accomplice would use deadly
force in robbing victim where victim was shot while clinging to door frame of automobile which defendant was driving away from
scene of robbery.
23. Criminal Law.
Fact that defendant's accomplice, who actually shot the victim, received a sentence of life without possibility of parole was
irrelevant to validity of death sentence imposed upon defendant. NRS 177.055, subd. 2(d).
24. Homicide.
Sentence of death was not excessive when imposed upon defendant as result of shooting death of person who was being robbed of
cocaine.
25. Criminal Law.
Prosecutor's closing argument in which he addressed defendant and stated you have created havoc on our streets. You have stolen
from our homes and you, sir, deserve to die was egregiously improper but, in light of aggravating factors, was harmless beyond a
reasonable doubt.
108 Nev. 770, 773 (1992) Guy v. State
OPINION
FACTS
On the evening of April 7, 1990, appellant Curtis Guy and his friend Larry Pendleton were
cruising the streets of North Las Vegas in an automobile, intending to purchase cocaine.
Appellant was driving. He pulled the car into the parking lot of a convenience store, where
they encountered Ceasor Evans, with whom they had not been previously acquainted. Evans
told Pendleton and appellant that he knew where they could buy cocaine. Evans entered the
automobile, and the three men set off to make the purchase. En route, Evans agreed to lead
appellant and Pendleton to his source in return for a portion of the drugs they would purchase.
At Evans' direction, appellant drove to an undisclosed location where they purchased
cocaine. As they drove away after making the purchase, Evans asked appellant to pull to the
side of the road so that Evans could urinate. Appellant stopped the car and Evans alighted
from the rear door. The cocaine remained in the car. As Evans stood outside the car, appellant
attempted to drive off so as to deprive Evans of his portion of the cocaine. Evans, however,
grabbed onto the rear door frame on the passenger side as the car sped away. As appellant
continued driving with Evans clinging to the door frame, Pendleton turned and shot Evans
three times in the abdomen with a .25 caliber handgun. Evans fell from the car, and Pendleton
and appellant drove off. Evans died later that evening.
Some two weeks later, after a high-speed automobile chase through the streets of North
Las Vegas, appellant was charged with murder with the use of a deadly weapon.
1
The state
gave notice of its intent to seek the death penalty.
At appellant's jury trial, the state's theory of the case was as follows: Appellant was guilty
of first degree murder, either because he aided and abetted Pendleton in murdering Evans or
because he and Pendleton conspired to commit a dangerous felony (robbery) and Evans was
killed in the perpetration of this felony. At the conclusion of the trial, the jury found appellant
guilty of first degree murder.
At the penalty phase of the trial, the state offered evidence of appellant's extensive
criminal record, including crimes that Pendleton and appellant, acting together, had
committed near in time to the murder of Evans.
__________

1
Pendleton was also indicted for Evans' murder. Pursuant to a plea bargain, Pendleton was sentenced to life
without the possibility of parole.
108 Nev. 770, 774 (1992) Guy v. State
Pendleton and appellant, acting together, had committed near in time to the murder of Evans.
On April 6, 1990, the day before they murdered Evans, Pendleton and appellant burglarized
the Las Vegas home of Jennifer Courtney and, when she returned home during the course of
the burglary, slashed her throat in an attempt to murder her. She survived and later testified at
the penalty phase of appellant's trial. On April 11, 1990, Pendleton and appellant burglarized
the home of Richard French while he lay asleep in his bed. Their search for valuables took
Pendleton and appellant into the bedroom where French lay sleeping. Armed with handguns,
appellant and Pendleton each shot French several times in the head. French miraculously
survived, and he, too, testified at the penalty phase of appellant's trial.
At the conclusion of the penalty phase, the jury found that four aggravating circumstances
had been established beyond a reasonable doubt. The jury did not, however, find any
mitigating circumstances. Appellant received a sentence of death.
DISCUSSION
I. GUILT PHASE
A. Felony murder
To convict appellant under a felony murder theory, the state had to prove that Evans was
murdered while being robbed by Pendleton and appellant. Appellant contends that the
evidence does not support the jury's finding that he and Pendleton robbed Evans. We
disagree.
NRS 200.380(1) defines robbery as follows:
[T]he unlawful taking of personal property from the person of another, or in his
presence, against his will, by means of force or violence or fear of injury, immediate or
future, to his person or property, or the person or property of a member of his family, or
of anyone in his company at the time of the robbery. Such force or fear must be used to
obtain or retain possession of the property, or to prevent or overcome resistance to the
taking, in either of which cases the degree of force is immaterial. If used merely as a
means of escape, it does not constitute robbery. Such taking constitutes robbery
whenever it appears that, although the taking was fully completed without the
knowledge of the person from whom taken, such knowledge was prevented by the use
of force or fear.
Appellant first argues Evans had no legal or proprietary interest in the drugs because the
agreement that entitled him to a portion of the drugs was void and unenforceable. See Gaston
v. Drake, 14 Nev. 175 {1S79) {holding that a contract will not be enforced if it is against
public policy or if it is for an illegal purpose).
108 Nev. 770, 775 (1992) Guy v. State
Nev. 175 (1879) (holding that a contract will not be enforced if it is against public policy or if
it is for an illegal purpose). Appellant concludes that because Evans had no legal or
proprietary interest in the drugs, there was no unlawful taking of personal property and
therefore no robbery.
[Headnotes 1, 2]
Appellant's argument fails. Admittedly, the agreement could not be enforced as a contract
because of its illegal purpose; that does not mean, however, that the drugs could not be the
subject of a robbery. The Supreme Court of California has declared that by prohibiting
possession of an item, the government does not license criminals to take it by force or stealth
from other criminals. People v. Dillon, 668 P.2d 697, 704 n.5 (Cal. 1983). And in State v.
Pokini, 367 P.2d 499 (1961), The Supreme Court of Hawaii specifically held that a thief
could be robbed of stolen goods. In our view, these cases correctly characterize robbery as a
crime against possession, and we believe that the deal Evans made with his killers gave him a
possessory interest in the cocaine.
[Headnote 3]
Appellant next argues that the evidence fails to demonstrate that he and Pendleton took the
drugs either from Evans' person or in Evans' presence. According to appellant, the drugs
remained in the automobile while Evans urinated just outside the open rear passenger-side
door. Thus, concludes appellant, when he and Pendleton sped off in the automobile with the
drugs (the taking), the drugs were taken neither from Evans' person nor in Evans' presence.
This argument lacks merit also. We have adopted a broad definition of presence with
respect to robbery, stating that [a] thing is in the presence of a person, in respect to robbery,
which is so within his reach, inspection, observation or control, that he could, if not overcome
by violence or prevented by fear, retain his possession of it.' Robertson v. Sheriff, 93 Nev.
300, 302, 565 P.2d 647, 648 (1977) (quoting Commonwealth v. Homer, 127 N.E. 517, 520
(Mass. 1920)). Applying this definition, we upheld a trial court's determination that money in
a cash register was taken from a bartender's presence even though the bartender, who was in
the bathroom when the robbers entered the bar, remained in the bathroom during the robbery
out of fear. Id. at 301-302, 565 P.2d at 647. We also agreed with the trial court's finding that
the bartender was prevented by fear from retaining possession of the money in the register. Id.
at 302, 565 P.2d at 648.
In light of Robertson, we conclude that the drugs were taken from Evans's presence.
108 Nev. 770, 776 (1992) Guy v. State
from Evans's presence. Under the deal to purchase the drugs, Evans possessed a portion of the
drugs he purchased. Even while Evans urinated outside the car, the drugs were within his
view. Moreover, Evans could have retained possession of his portion if Pendleton had not
shot him.
[Headnote 4]
Finally, appellant argues that Pendleton's shooting of Evans was force used merely as a
means of escape. NRS 200.380(1). We disagree. The evidence indicates that the firearm was
used to overcome Evans' resistance to the taking of the drugs; a use of force that satisfies the
statutory definition of robbery. See NRS 200.380(1).
Where there is substantial evidence to support the jury's verdict, it will not be disturbed on
appeal. Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981). In determining whether a jury
verdict is supported by substantial evidence, the relevant inquiry is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Koza v. State,
100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)) (emphasis in original). We hold that substantial evidence supports the jury's finding
that appellant and Pendleton robbed Evans.
B. Jury Instructions
Appellant assigns error to several of the jury instructions given at the guilt phase of his
trial. In reviewing these assignments of error, our task is to ensure that the instructions
correctly stated existing law. See Barron v. State, 105 Nev. 767, 783 P.2d 444 (1989).
[Headnote 5]
Appellant first challenges Jury Instruction No. 5, which defined malice aforethought:
The condition of the mind described as malice aforethought may arise, not alone from
anger, hatred, revenge or from particular ill will, spite or grudge toward the person
killed, but may result from any unjustifiable or unlawful motive or purpose to injure
another, which proceeds from a heart fatally bent on mischief or with reckless disregard
of consequences and social duty . . . .
According to appellant, this language does not accurately reflect the law of this state. In
addition, appellant contends that this language, when read in conjunction with Jury
Instruction No. 6 {defining express and implied malice),2 confused the jurors and
incorrectly implied that malice was imputable to appellant merely because he was present
when Pendleton shot Evans.
108 Nev. 770, 777 (1992) Guy v. State
(defining express and implied malice),
2
confused the jurors and incorrectly implied that
malice was imputable to appellant merely because he was present when Pendleton shot
Evans.
In Thedford v. Sheriff, 86 Nev. 741, 744, 476 P.2d 25, 27 (1970), this court held that
malice, as applied to murder, does not necessarily import ill will toward the victim, but
signifies general malignant recklessness of others' lives and safety or disregard of social
duty. This holding validates the language used in Jury Instruction No. 5.
[Headnote 6]
Appellant's challenge to Jury Instruction No. 6 also lacks merit; for this instruction
accurately informed the jury of the distinction between express malice and implied malice.
See NRS 200.020; Keys v. State, 104 Nev. 736, 766 P.2d 270 (1988). Moreover, because
appellant offers no evidence showing confusion on the part of the jury, his allegation is
speculative.
[Headnotes 7, 8]
Appellant next argues that the district court erred in giving Jury Instruction No. 25, which
states:
The flight of a person after the commission of a crime is not sufficient in itself to
establish his guilt or the crimes charged, but is a fact which, if proved, may be
considered by you in the light of all other proven facts in deciding the question of his
guilt or innocence. Whether or not evidence of flight shows a consciousness of guilt of
the crimes charged, and the significance to be attached to such a circumstance, are
matters for your determination.
We agree that the trial court erred in giving the flight instruction. The purported flight
occurred some thirteen days after Evans was killed and did not involve leaving the scene of
the murder. Given appellant's criminal proclivities, there are numerous possibilities as to why
he fled from the police on April 20, 1990. It is speculative to assert that he fled because of a
consciousness of guilt and fear of arrest arising out of the killing of Evans. See Theriault v.
State, 92 Nev. 185, 547 P.2d 668 (1976). It is equally plausible that he fled to avoid being
caught with illicit drugs in his possession. Although we find error here, we conclude that
because of the overwhelming evidence of appellant's guilt, the error is harmless beyond a
reasonable doubt.
__________

2
Jury Instruction No. 6 states:
Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which
is manifested by external circumstances capable of proof.
Malice shall be implied when no considerable provocation appears, or when all the circumstances of
the killing show an abandoned and malignant heart.
108 Nev. 770, 778 (1992) Guy v. State
clude that because of the overwhelming evidence of appellant's guilt, the error is harmless
beyond a reasonable doubt. See Manning v. Warden, 99 Nev. 82, 659 P.2d 847 (1983).
[Headnote 9]
Appellant next challenges Jury Instruction No. 30, which states:
You are here to determine the guilt or innocence of the defendant from the evidence
in the case. You are not called upon to return a verdict as to the guilt or innocence of
any other person. So, if the evidence in the case convinces you beyond a reasonable
doubt of the guilt of the defendant you should so find, even though you may believe one
or more persons are also guilty.
According to appellant, this instruction tended to confuse the jury by leading it to an
erroneous conclusion that [appellant] was a moving party in causing the death of Evans and
override [sic] any doubts the trier of fact may had [sic] as to [appellant's] knowledge of and/or
participation in the events which led to Evans [sic] death.
We hold that the trial court did not err in giving Jury Instruction No. 30. In effect, this
instruction admonishes the jury to ignore Pendleton's culpability when determining whether
appellant is guilty as charged. Such an instruction was both appropriate and necessary.
C. Sufficiency of the indictment
[Headnote 10]
Appellant was charged in the murder of Evans by way of grand jury indictment which
alleged in relevant part:
Defendant CURTIS GUY and LARRY PENDLETON did, on or about April 7,
1990, then and there, without authority of law and with malice aforethought, wilfully
and feloniously kill CEASOR EVANS, a human being, by LARRY PENDLETON
shooting at and into the body of the said CEASOR EVANS, with a deadly weapon, to
wit: a firearm; Defendant CURTIS GUY aiding and abetting LARRY PENDLETON
THROUGH counsel and encouragement by transporting Defendant and LARRY
PENDLETON to and away from the crime scene and by being present before, during,
and after the commission of said crime.
Appellant challenges the sufficiency of the indictment, arguing that the indictment fails to
provide sufficient information as to the specific acts that constituted the aiding and abetting.
108 Nev. 770, 779 (1992) Guy v. State
Appellant's contention lacks merit. In Barren v. State, 99 Nev. 661, 668, 669 P.2d 725, 729
(1983), we held:
[W]here the prosecution seeks to establish a defendant's guilt on a theory of aiding and
abetting, the indictment should specifically allege the defendant aided and abetted, and
should provide additional information as to the specific acts constituting the means of
the aiding and abetting so as to afford the defendant adequate notice to prepare his
defense.
See also Ikie v. State, 107 Nev. 916, 823 P.2d 258 (1991). In our view, appellant's indictment
satisfies the criteria set forth in Barren. The indictment expressly alleges that appellant aided
and abetted the murder of Evans. And while the indictment may not be as factually specific as
it could have been, this court, reasoning that an element of waiver is involved, applies a
reduced standard of review where, as here, a defendant attacks an indictment for the first time
on appeal. Barren, 99 Nev. at 669, 669 P.2d at 729-730.
D. Hearsay statements sought by appellant
[Headnotes 11, 12]
During the trial, appellant sought to elicit from one of the state's witnesses an out-of-court
statement made by Pendleton. Appellant argued that the statement should be admitted under
the co-conspirator exception to the hearsay rule. See NRS 51.035. The state objected,
asserting that the statement constituted inadmissible hearsay. The trial court refused to admit
the statement, and appellant contends that this refusal constitutes error.
Because Pendleton's statement was being offered for, not against, appellant, the
co-conspirator exception does not apply. See Johnstone v. State, 93 Nev. 427, 566 P.2d 1130
(1977). Appellant concedes as much in his opening brief, but asserts that the statement was
nevertheless admissible at trial under NRS 51.075, NRS 51.315, or NRS 51.345.
3
We
disagree. At trial, when appellant asked the state's witness to recount Pendleton's
out-of-court statement, the state responded with a hearsay objection.
__________

3
1. A statement is not excluded by the hearsay rule if its nature and the special circumstances under
which it was made offer assurances of accuracy not likely to be enhanced by calling the declarant as a
witness, even though he is available.
1. A statement is not excluded by the hearsay rule if:
(a) Its nature and the special circumstances under which it was made offer strong assurances of
accuracy; and
(b) The declarant is unavailable as a witness.
108 Nev. 770, 780 (1992) Guy v. State
when appellant asked the state's witness to recount Pendleton's out-of-court statement, the
state responded with a hearsay objection. At that point, the trial court excused the jury and
invited the parties to present arguments concerning the admissibility of the statement. During
this colloquy, the trial court asked appellant several times to provide the hearsay exception
under which the statement could be admitted. Appellant offered only the co-conspirator
exception which, as noted above, is inapplicable; he did not mention NRS 51.075, NRS
51.315, or NRS 51.345. Because appellant failed to present these hearsay exceptions at trial,
the trial court had no opportunity to consider their merit. Consequently, we will not consider
them for the first time on appeal. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 623 P.2d
981 (1981).
E. Prosecutorial misconduct
In his appellate brief, appellant reproduces some four pages of the trial transcript from the
state's rebuttal argument in the guilt phase of the trial. Appellant contends that the reproduced
portion of the transcript is illustrative, and not dispositive, of occasions where the
prosecutor made disparaging remarks of defense counsel and misstated evidence.
In Riley v. State, 107 Nev. 205, 808 P.2d 551 (1991), we held that it was inappropriate for
a prosecutor to make disparaging remarks pertaining to defense counsel's ability to carry out
the required functions of an attorney. In the case before the court, the prosecutor's statements
are in no way similar to those condemned in Riley. Moreover, appellant never objected on
this basis to any of the statements made by the prosecutor. Thus, we hold that the prosecutor's
comments during the guilt phase of appellant's trial did not disparage defense counsel.
[Headnotes 13, 14]
With respect to misstated evidence, it is clear that a prosecutor may not make statements
unsupported by evidence produced at trial. Witherow v. State, 104 Nev. 721, 724, 765 P.2d
1153, 1155 (1988). Appellant objects to the prosecutor's factual assertion that Evans bought
the cocaine on the night of the murder, arguing that the record contains no evidence
supporting the assertion.
__________
1. A statement which at the time of its making:
(b) So far tended to subject him to civil or criminal liability;
. . . .
that a reasonable man in his position would not have made the statement unless he believed it to be true is
not inadmissible under the hearsay rule if the declarant is unavailable as a witness. A statement tending to
expose the declarant to criminal liability and offered to exculpate the accused in a criminal case is not
admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
108 Nev. 770, 781 (1992) Guy v. State
that the record contains no evidence supporting the assertion. In our view, however, the state
established a factual basis for its assertion. In his statement to the police, appellant recounted
that Evans knew where they could purchase cocaine on the night of April 7, 1990. From this
the jury could reasonably infer that it was Evans who made the purchase, and therefore the
prosecutor's assertion was not improper.
II. PENALTY PHASE
A. Aggravating circumstances
[Headnote 15]
NRS 200.033 enumerates those circumstances by which murder of the first degree may be
aggravated. In the present case, the jury found four aggravating circumstances beyond a
reasonable doubt, and appellant challenges the following two: (a) the murder was committed
while the person was engaged in the commission of or an attempt to commit any robbery; and
(b) the murder was committed by a person, for himself or another, to receive money or any
other thing of monetary value. See NRS 200.033(4) and (6). According to appellant, there
was no evidentiary basis for these two aggravating circumstances. We disagree. As noted
above, the evidence shows that Evans was murdered while being robbed by Pendleton and
appellant. The evidence also shows that they murdered Evans to obtain cocaine, which has
monetary value.
B. Testimony of Joy Mundy-Neal
In the penalty phase of appellant's trial, Joy Mundy-Neal, an employee of the Nevada
Department of Parole and Probation, testified for the state. Mundy-Neal had prepared the
presentence reports on appellant for his previous convictions.
4
In her testimony, she
commented both on offenses appellant had committed before the murder of Evans and on
those he had committed after the murder. Mundy-Neal also recounted, over appellant's
objection, statements made to her by appellant during two presentence investigation
interviews. According to Mundy-Neal, appellant stated during those interviews that he
supported himself by burglarizing an average of ten homes per week and that during
December 1986, he and some cohorts burglarized approximately three homes per day.
Appellant argues that the trial court committed prejudicial error by allowing her to testify
about his statements. According to appellant, under NRS 176.156, these statements may
only be used in sentencing appellant in the cases for which the corresponding
presentence reports were prepared.5 As a corollary, appellant submits that these
statements may not be used during the penalty phase of a subsequent, unrelated trial.
__________

4
Mundy-Neal first prepared a presentence report on appellant in December 1990 after he was convicted of
burglary. At the time of her testimony in this case, Mundy-Neal had prepared three such reports on appellant.
108 Nev. 770, 782 (1992) Guy v. State
statements may only be used in sentencing appellant in the cases for which the corresponding
presentence reports were prepared.
5
As a corollary, appellant submits that these statements
may not be used during the penalty phase of a subsequent, unrelated trial.
[Headnotes 16-18]
Appellant's position here is untenable. Under NRS 175.552, the trial court has broad
discretion on questions concerning admissibility of evidence at a penalty phase. Pellegrini v.
State, 104 Nev. 625, 764 P.2d 484 (1988). Moreover, NRS 175.552 establishes broad
parameters as to what constitutes admissible evidence at a penalty phase. For example,
though the statements recounted by Mundy-Neal appear to be hearsay, NRS 175.552
specifically allows admission, at the penalty hearing, of hearsay evidence that relates to the
character and record of the defendant. Rogers v. State, 101 Nev. 457, 705 P.2d 664 (1985),
cert. denied, 476 U.S. 1130 (1986). It is also true that evidence of uncharged crimes may be
admitted during the penalty hearing once any aggravating circumstance has been established
beyond a reasonable doubt. Robins v. State, 106 Nev. 611, 798 P.2d 558 (1990), cert denied,
111 S.Ct. 1608 (1991). Prior to Mundy-Neal's testimony, the state had established beyond a
reasonable doubt the aggravating circumstance that appellant had committed the murder of
Evans while appellant was under sentence of imprisonment.
C. Allocution
[Headnote 19]
During the penalty phase, the parties and the court engaged in a lengthy discussion
regarding the scope of appellant's right of allocution. The trial court ultimately allowed
appellant to make an unsworn statement to the jury but limited the statement to remorse, a
request to have mercy and other matters that do not attempt to contradict the evidence in the
case. Appellant contends that the district court erred in restricting his statement. According
to appellant, he had a common law right to make an unsworn and unrestricted statement to
the jury, and this statement may include comments concerning the crime charged and a denial
of guilt, even without having first taken the witness stand.
__________

5
NRS 176.156 states:
1. The Court shall disclose to the district attorney, the counsel for the defendant and the defendant
the factual content of the report of the presentence investigation and the recommendations of the
department of parole and probation and afford an opportunity to each party to object to factual errors and
comment on the recommendations.
2. Except for the disclosures required by subsection 1, the report and its sources of information are
confidential and must not be made part of any public record.
108 Nev. 770, 783 (1992) Guy v. State
of guilt, even without having first taken the witness stand. Appellant's contention lacks merit.
In Homick v. State, 108 Nev. 127, 825 P.2d 600 (1992), we recognized that capital
defendants in this state enjoy the common law right of allocution. We also, however,
restricted this right, adopting and endorsing the decision of the New Jersey Supreme Court in
State v. Zola, 548 A.2d 1022 (1988). In Zola, the court held that while a capital defendant is
entitled to argue to the jury that she is an individual capable of feeling and expressing
remorse and of demonstrating some measure of hope for the future,' she may not dispute
facts in issue, offer other facts to exculpate herself, or deny her guilt. Id. at 1046 (quoting
Sullivan, The Capital Defendant's Right to Make a Personal Plea for Mercy: Common Law
Allocution and Constitutional Mitigation, 15 N.M. L. Rev. 41, 41 (1985)). In the case before
us, the trial court explicitly followed the holding of Zola in restricting appellant's allocution.
Accordingly, we conclude that there was no error.
D. Jury Instructions
[Headnote 20]
Appellant next challenges the penalty phase jury instructions and the special verdict forms
used by the jury for reporting its findings of aggravating and mitigating circumstances. The
record discloses, however, that when the trial court specifically asked appellant if he had any
objections to either the penalty phase jury instructions or the special verdict forms, he
responded negatively. Consequently, we hold that these challenges were waived by
appellant's failure to object at trial. See Williams v. State, 103 Nev. 106, 100-111, 734 P.2d
700, 703 (1987).
E. The Eighth Amendment
The Eighth Amendment of the United States Constitution prohibits imposing the death
penalty on a defendant who does not himself kill, attempt to kill, or intend that a killing take
place or that lethal force will be employed. Enmund v. Florida, 458 U.S. 795, 798 (1982)
(overturning death sentence for felony murder because there was no proof that defendant
possessed the degree of culpability warranting the death penalty). In Tison v. Arizona, 481
U.S. 137, 158 (1987), the Supreme Court held that major participation in the felony
committed, combined with reckless indifference to human life, is sufficient to satisfy the
Enmund culpability requirement. In Doleman v. State, 107 Nev. 409, 418, 812 P.2d 1287,
1292-1293 (1991), we synthesized Enmund and Tison, holding that [t]o receive the death
sentence, [a defendant] must have, himself, killed, attempted to kill, intended that a killing
take place, intended that lethal force be employed or participated in a felony while
exhibiting a reckless indifference to human life."
108 Nev. 770, 784 (1992) Guy v. State
that a killing take place, intended that lethal force be employed or participated in a felony
while exhibiting a reckless indifference to human life.
[Headnote 21]
Here, the Enmund determination of culpability was not made by the jury. This
determination, however, can be made at any point, and it need not be made by the jury.
Cabana v. Bullock, 474 U.S. 376, 386-387 (1986). In Doleman, this court, while expressing a
preference that the jury make the culpability determination based upon the trial evidence,
declared we have no reservation about making the determination on appeal. Doleman, 107
Nev. at 418, 812 P.2d 1292. Thus, we turn to consider appellant's culpability in the murder of
Evans.
[Headnote 22]
In our view, the record amply demonstrates that appellant possessed the necessary degree
of culpability. First, because Pendleton had used deadly force during a previous burglary
committed by Pendleton and appellant (the burglary of Jennifer Courtney's home on April 6,
1990), and because appellant knew that Pendleton was carrying a gun the night Evans was
murdered, we conclude that appellant was aware that Pendleton would use deadly force in
robbing Evans. Moreover, because of this awareness, we believe that appellant possessed a
reckless disregard for human life when he participated in the robbery of Evans. Further,
appellant demonstrated a reckless disregard for human life by continuing to drive the
automobile while Evans clung to the door frame. Finally, appellant's reckless disregard for
human life is evidence by appellant's failure to attempt to foil Pendleton's shooting of Evans
and by his failure, after the shooting, to stop and render aid to Evans.
F. NRS 177.055(2)(d)
[Headnote 23]
Appellant contends that his death sentence is excessive given that Pendleton received a
sentence of life without the possibility of parole. We disagree.
In 1985, our legislature amended NRS 177.055(2)(d) to abolish proportionality review by
this court. Under the current statute, we review whether the death sentence is excessive
considering only the crime and the defendant. Thus, because we no longer consider whether
the death sentence imposed by the jury is disproportionate to the penalty imposed in similar
cases in this state, the penalty imposed here on Pendleton is irrelevant.
[Headnote 24]
In light of the four aggravating circumstances found by the jury, the senseless nature of
the murder, and appellant's significant history of criminal behavior, we conclude that the
death sentence was not excessive.6
108 Nev. 770, 785 (1992) Guy v. State
jury, the senseless nature of the murder, and appellant's significant history of criminal
behavior, we conclude that the death sentence was not excessive.
6

G. Prosecutorial misconduct
Lastly, appellant alleges that the prosecutor made several improper and prejudicial
comments during closing argument in the penalty phase. Appellant again presents in his
appellate brief a portion of the trial transcript containing the allegedly improper comments
without referencing those specific statements he finds objectionable. And he again contends
that the foregoing is illustrative, and not dispositive, of instances where the prosecutor
engaged in misconduct. According to appellant, these instances include misstating the
evidence, attempting to place the jurors in the shoes of the victim, inflaming the passions of
the jury, and making speculative predictions about possible rehabilitation. After examining
the entire record, however, we are unable to locate any of these alleged instances.
[Headnote 25]
Although not cited by appellant, one of the prosecutor's statements was clearly improper.
In concluding his closing argument, the prosecutor stated:
Mr. Guy, you have created havoc on our streets. You have stolen from our homes. You
have victimized Jennifer Courtney. You have victimized Richard French. You certainly
have victimized Ceasor Evans. Ladies and gentleman, and Mr. Curtis Guy, you, sir,
deserve to die.
(emphasis added). In Collier v. State, 101 Nev. 473, 480, 705 P.2d 1126, 1130 (1985), this
court held to be prosecutorial misconduct the following statement:
[Defense counsel] asks you to look at Gregory Allen Collier and to look him in the
eye and tell him that you want to kill him, to tell him that you want to execute him.
Ladies and gentlemen, I would not ask you to do that unless I could do that myself.
[prosecutor turns and faces Collier]
Gregory Allen Collier, you deserve to die.
While here the record does not indicate whether the prosecutor turned and faced appellant
when telling him he deserved to die, this slight difference does not constitute a meaningful
distinction.
__________

6
We further conclude that appellant's death sentence was not imposed under the influence of passion,
prejudice, or any arbitrary factor. See NRS 177.055(2)(c).
108 Nev. 770, 786 (1992) Guy v. State
Like the statement in Collier, the prosecutor's remark that appellant deserved death injected
the prosecutor's personal beliefs into the argument and detracted from the unprejudiced,
impartial, and nonpartisan role that a prosecuting attorney assumes in the courtroom. State v.
Rodriguez, 31 Nev. 343, 346, 102 P. 863, 864 (1909). In both cases, the prosecutor, by
invoking the authority of his supposedly greater experience and knowledge, invites undue
jury reliance upon the conclusions he personally endorses. Tucker v. Kemp. 762 F.2d 1480,
1484-1485 (11th Cir. 1985) (en banc); United States v. Frascone, 747 F.2d 953, 957 (5th Cir.
1984). Thus, we conclude that the prosecutor's remark was egregiously improper.
Nevertheless, in light of the several aggravating factors found by the jury, we conclude that
this error is harmless beyond a reasonable doubt.
CONCLUSION
We have examined the remaining assignments of error and conclude that they are without
merit. Accordingly, for the reasons set forth above, we affirm appellant's judgment of
conviction and sentence of death.
Rose, Steffen and Young, JJ., concur.
The felony-murder conviction cannot stand unless Guy robbed his fellow-drug dealer,
Evans. The drugs that are the subject of the supposed robbery never belonged to Evans; and,
therefore, Evans could never have been robbed of the drugs. This case is, plainly and simply,
a case of one drug dealer killing another. It was Pendleton and not Guy who heartlessly shot
and killed Evans in cold blood.
It is very difficult to discover what really happened in this case because the principals to
the episode did not testify. There is no evidence, certainly no evidence beyond a reasonable
doubt, as to the events that preceded Pendleton's shooting Evans. The following is about the
best that one can derive from the record as to what happened: Evans, the decedent, was
without any money with which to buy drugs. Evans told Guy and Guy's friend, Pendleton,
where they could go to buy some cocaine. For this information, Guy and Pendleton told
Evans that they would give him a portion of the drugs they [Guy and Pendleton] would
purchase. (Majority Opinion at 773; emphasis added.)
The trio drove to the place where Evans told them that they could purchase drugs. It is
possible, but not at all clear, that Evans made the actual purchase of the drugs; but if he did
so, he clearly did it as the agent of Guy and Pendleton, who had the wherewithal to make
the buy.
108 Nev. 770, 787 (1992) Guy v. State
clearly did it as the agent of Guy and Pendleton, who had the wherewithal to make the buy.
Evans delivered the cocaine to Pendleton and Guy and off they went in a car driven by Guy,
with Evans harboring the hopeful expectation that he would be given a portion of the cocaine
for his trouble in arranging for the purchase.
The ill-fated Evans got out of the car to relieve himself. When Guy started to drive off
without him, Evans tried to gain entry back into the car by clinging to the door frame. (Id.)
For reasons known only to Pendleton, Pendleton shot Evans in the abdomen and killed him.
Now, strangely, Guy, not Pendleton, is facing the lethal needle for shooting Evans. I do not
understand how anyone can make a felony-murder out of these very poorly established facts.
The felony-murder rule simply stated is that any homicide, committed while perpetrating
or attempting a felony, is first degree murder. Payne v. State, 81 Nev. 503, 505, 406 P.2d
922, 924 (1965). As I see it, Pendleton is clearly guilty of intentional, premeditated,
first-degree murder. Guy committed neither homicide nor robbery. Neither Pendleton nor Guy
did anything that even remotely approaches robbery. They possibly could be said to be guilty
of perpetrating a breach of contract, that is refusal to abide by their promise to give Evans a
promised reward; although it is not clear from the facts of this case that even this promise was
made by Pendleton and Guy to Evans. Even if we were allowed to assume that Evans was
trying to get back into the car in order to enforce his interest in the contraband that had
supposedly been promised to him, then, at most, Pendleton's shooting of Evans was done in
order to avoid Evans's attempt to claim some executory, undivided and completely
unspecified interest in the cocaine. This certainly does not constitute robbery.
1

Evans had no identifiable claim of any kind to the cocaine that was purchased by
Pendleton and Guy. If he did, it is of a most vague and unenforceable nature, even if we put
aside the illegality of such a transaction. Even if we were to say that Evans had an ownership
interest or some other kind of right to immediate possession to a quantity of the
contraband, there is still no possibility of making a robber out of either Guy or Pendleton.
__________

1
As far as I can see, the evidence does not establish just what Evans's claimed undivided interest in the
cocaine might have beenassuming that this is why Evans was trying to get back into the car. Maybe Evans was
claiming a full one-third interest; or maybe Evans was claiming only the right to a few crumbs for his trouble.
We do not know what either Pendleton or Guy told Evans they were going to give him for the tip. Not only do
we not know the reason why Evans was trying to get back into the car, we have no idea of the nature or extent of
Evans's supposed claim against Pendleton and Guy. If Evans had indeed been robbed, we could not possible
know what the subject of the supposed robbery might be.
108 Nev. 770, 788 (1992) Guy v. State
ownership interest or some other kind of right to immediate possession to a quantity of the
contraband, there is still no possibility of making a robber out of either Guy or Pendleton.
This is not a robbery and therefore not a felony-murder; so I would reverse Guy's
conviction.
____________
108 Nev. 788, 788 (1992) Mallin v. Farmers Ins. Exchange
JENNIFER B. MALLIN, Individually, and JENNIFER B. MALLIN and ROBERTA GRILL,
as Guardians of JESSICA B. MALLIN, and JENNIFER B. MALLIN as Special
Administratrix of the Estate of VIRGINIA MALLIN EGYED, Deceased; EDITH
EGYED, Executrix of the Estate of ALEX EGYED, aka ALEXANDER EGYED,
Deceased; JEANNE DI FIORE COSGROVE; JOHN DI FIORE II; JARED E.
SHAFER, Executor of the Estate of ELIZABETH BARTON DI FIORE, aka BETTY
DI FIORE, Deceased; MILES LEVY; ELISE KAGASOFF; and JARED SHAFER,
Administrator of the Estate of JACK LEVY, Deceased, Appellants, v. FARMERS
INSURANCE EXCHANGE, a California Corporation, Respondent.
No. 20903
September 15, 1992 839 P.2d 105
Appeal from a district court order granting respondent insurer's motions for summary
judgment. Eighth Judicial District Court, Clark County; Earle W. White, Jr., Judge.
Personal representatives of three persons who were shot and killed by insured at his
residence brought suit against insurer under homeowner's policy. The district court entered
summary judgment in favor of insurer, and plaintiffs appealed. The supreme court, Springer,
J., held that expert testimony that insured was unable to control his acts when he shot and
killed three persons at his residence did not establish that shootings were unintentional, and
thus covered by homeowner's policy providing coverage for damages from an accident,
defined as a sudden event* * *neither expected or intended by the insured.
Affirmed.
Handelsman, D. J., dissented.
Rogers & Rogers, Las Vegas, for Appellant Jennifer B. Mallin.
Appellants Mallin.
Morse & Mowbray, Las Vegas, for Appellant Egyed.
Gordon & Silver and Don Springmeyer, Las Vegas, for Appellants Di Fiore, et al.
Thorndal, Backus, Maupin & Armstrong, Las Vegas, for Respondent.
1. Insurance.
Insured's intentional shooting of his estranged wife and two of her friends was not accident covered by homeowner's liability
policy.
2. Evidence.
Expert testimony that insured was unable to control his acts when he shot and killed three persons at his residence did not establish
that shootings were unintentional, and thus covered by homeowner's policy providing coverage for damages from an accident,
defined as a sudden event* * *neither expected or intended by the insured.
3. Action.
Volitional defenses which are rejected in criminal law also do not apply in civil law.
OPINION
The case is brought by the personal representatives of three persons who were shot and
killed at a residence insured by a homeowner's policy issued by Farmers Insurance Exchange.
Farmers denies any liability under the policy because an intentional shooting is not an
accident covered by the policy and because the policy contains an express exclusion of
coverage for casualties [a]rising as a result of intentional acts of the insured. The trial court
granted summary judgment to Farmers, declaring that, under the undisputed facts of this case,
Farmers was entitled to judgment as a matter of law. We affirm the summary judgment.
The homicides in question occurred in the following manner. The assailant, Alex Egyed,
was having difficulties with his wife, Virginia Mallin. On the evening of the homicides,
Virginia had attended a social event with her friends, Nina Schwartz, Betty Di Fiore and Jack
Levy. Because of earlier misunderstandings with her husband, Virginia had decided not to
stay at home that evening but, rather, to stay with her friend, Nina Schwartz. Before going to
Nina's home, Virginia asked her friends to stop at her house so that she could pick up her
daughter, Jessica. While Virginia was at the house, Alex confronted her and asked her to talk
to him; she refused to talk to him, however. Alex then went to Jessica's room, where he found
Jessica, a friend of Jessica's and Betty Di Fiore.
and Betty Di Fiore. Alex shot Di Fiore in the head, killing her. He then left Jessica and her
friend and went downstairs, where he found Virginia in the kitchen. Alex shot his wife in the
head, killing her. He subsequently proceeded outside to the car occupied by Jack Levy and
Nina Schwartz and shot Jack Levy in the head, killing him. Alex then returned to the house
and shot and killed himself.
[Headnote 1]
The insurance policy in this case provides coverage for damages from an accident.
(Emphasis supplied.) An accident, under the policy means a sudden event . . . neither
expected nor intended by the insured. The policy expressly exempts damages [a]rising as a
result of intentional acts of an insured. (Emphasis supplied.) As mentioned above, one of the
insureds in this case, Alex Egyed, shot his wife and two of her friends in the head: Shooting
three people in the head has every appearance of being an intentional act. If, instead of
shooting his wife, Alex had, in a fit of anger, broken up all of their living room furniture,
probably no one would have thought of filing an insurance claim; still, the claimants seek
indemnity for losses which they claim resulted from an accident under Farmers'
Homeowners Package Policy.
Representatives of the unfortunate deceased victims, the claimants in this case, contend
that the shootings were not intentional acts. It is not easy to understand, under these
circumstances, how shooting three people can be described as unintentional. The claimants'
expert psychological witness, Dr. Glovinsky, testified that in his opinion at the point in time
that Alex pulled the trigger he intended to kill her [his wife] and that Alex Egyed had the
intent to kill her. (Emphasis supplied.) Of course Alex intended to kill his victims; and the
trial court was justified on this record in holding that a jury could not have rationally
concluded that Alex did not intend to kill three people. Because there is no evidence that the
casualties in this case did not result from intentional acts of the insured, the trial court
properly granted summary judgment to the insurance company.
[Headnote 2]
It is curious to see how the claimants try to avoid the insurance policy language and how
they can maintain that the killings in this case were accidental and not intentional. The
claimants, through their expert witnesses, and in particular psychologist Glovinsky, advance
the position that Alex was unable to control his acts at the time of the homicides and that
Alex was overcome by his emotions to the degree he was unable to make the rational
decision not to commit the acts that he committed. Notwithstanding Dr.
standing Dr. Glovinksy's testimony that Alex was so overcome by emotion that he was unable
to control himself, this expert witness testified not only that Alex intended to kill his victims
but testified further that Alex's state of mind was such that he was mentally able to make a
conscious decision not to shoot another person present at the time and place of the shootings,
namely, his step-daughter, Jessica. Significantly, Dr. Glovinsky testified that Alex made the
decision not to shoot his stepdaughter because he had no malice toward Jessica.
In the face of the testimony of their own witness and the way in which Alex shot and killed
these people, the claimants are hard-pressed indeed to argue that these killings were
accidental and not, as they rather clearly appear to be, intentional acts.
In its simplest denotation, an intentional act is merely a willed muscular contraction.
1
We are speaking here, however, of more than the mere voluntary flexion of Alex's trigger
finger and more, even, than the intentional shooting of a firearm. The mental process that is
critical here is, in Dr. Glovinsky's words, Alex's intent to kill his victims. The willed
muscular contraction of his trigger finger was accompanied here with the willed objective of
taking the lives of three persons. Intention involves the intersection of two ideas: bodily
motion and operation of the will. Specifically, intent or intention denotes a design or
desire to cause the consequences of one's acts and a belief that given consequences are
substantially certain to result from the acts. Restatement (Second) of Torts 8A (1965). Alex
had the design and desire to kill his wife and her friends and knew that shooting his victims in
the head would result in their deaths. Thus, it must be fairly said that Alex intended to kill
them.
The rather simple idea of what is intentional and what is accidental
2
is turned awry by
modern psychoanalytical (psychodynamic) theories, which put into question an individual's
capacity to exercise free will over his or her actions. Those who follow these theories believe
that unconscious and unwilled mental forces, and not individual will or intent, cause human
actions. In the present case, when the claimants' psychological experts testify in their
affidavits that Alex was not mentally able to make the moral decision as to whether or not he
should kill, they are opining in terms of psychological theories that are far from being
universally accepted and which, in my opinion, have been expressly rejected by this court.
__________

1
O. W. Holmes, The Common Law 54 (1881).

2
As Justice Oliver W. Holmes wisely noted, Even a dog distinguishes between being stumbled over and
being kicked. O. W. Holmes, The Common Law 3 (1881).
expressly rejected by this court. See Sollars v. State, 73 Nev. 248, 316 P.2d 917 (1957). Thus,
I give no credence to testimony stating that Alex was so overcome by emotion that he was not
mentally able to make the kill or not-to-kill decision.
None of the claimants' experts testified that when Alex killed, he did not have the intent to
kill. The testimony is directly to the contrary. Alex's supposed inability to control his acts is
not the same as an inability to intend his acts. What the psychologists seem to be saying is
that Alex actually did intend to kill these people but that because of some kind of
psychological force Alex was not able to control or decide against doing these intentional
acts. Such testimony does not bring Alex's damaging acts within the policy language; and,
further, Nevada has expressly chosen, in its criminal law, not to relieve an assailant of
responsibility for his or her acts by reason of mental compulsions or irresistible impulses.
[Headnote 3]
Specifically, Nevada has rejected in its criminal law the so-called volitional defenses to
criminal liability. The loss of volitional control, the I-couldn't-help-myself defense of
irresistible impulse was expressly rejected in Sollars. Id. at 253-55, 316 P.2d at 920. If we
have refused to accept the loss of volitional control as a defense to criminal liability, it is
inconsistent and most improvident for this court now to hold that it was permissible for a jury
to decide that Alex did not intend to kill his victims because of his supposed loss of will
power.
3
Thus, even if one of the experts had actually testified for the claimants that Alex,
because he was overcome by emotions, did not or could not intend to kill his wife and her
friends, it would still be necessary to hold, as a matter of law, that the deaths in this case
resulted from the intentional acts of the insured. In short, this court does not accept the
described psychoanalytical theory which renders an individual not responsible for supposedly
uncontrollable acts done in a rage or under other emotional stress.
4

As stated above, the main thrust of the claimants' case is that Alex lost control of himself
and thus lost control over his actions. The affidavit of William D. O'Gorman, M.D., however,
goes farther than this. Dr. O'Gorman testified that Alex was "unable to control his acts at
the time of the homicides."
__________

3
We do not afford civil defendants the same defenses as we do criminal defendants, as criminal liability
results in more severe penalties than civil liability. Therefore, if we have rejected the volitional defenses in our
criminal law, these defenses certainly do not apply in our civil law.

4
Under this psychiatric concept no man could be convicted of anything if the law were to accept the
impulses of the unconscious as an excuse for conscious behavior. State v. Sikora, 210 A.2d 193, 206 (N.J.
1965).
farther than this. Dr. O'Gorman testified that Alex was unable to control his acts at the time
of the homicides. He further stated that Alex at the time of the shootings was suffering
from an involutional psychotic reaction and was unable to distinguish right from wrong.
This testimony is ostensibly based on the proposition that a person who committed the act . .
. in a state of insanity is free from criminal liability. NRS 194.010(4). In other words, this
testimony suggests that Alex, at the time of the homicides, did not have the mental capacity to
commit a crime. The offered testimony on Alex's supposed criminal insanity is necessarily
based on claimants' supposition that there is some relationship between the insanity defense
in criminal cases and a person's mental capacity to perform volitional or intentional acts in a
civil context. Any such relationship, if one exists at all, is tenuous at best.
5

The principle of insanity, which provides a total defense to criminal liability, is entirely
different from the concept of a nonlitigant's mental capacity in a civil case. Whether Alex had
the mental capacity to intend his actions is to me much different from the question of whether
he would have available to him the total defense of insanity had he survived and been
prosecuted criminally. As explained above, intent is the design or desire to cause the
consequences of one's acts and a belief that the consequences are very likely to result from the
acts. Nothing in this record leads to the conclusion that Alex was mentally incapable of
forming, even in his enraged state, the design or desire to shoot and kill three people and the
belief that their deaths would likely result from the shootings. Certainly Dr. O'Gorman's
conclusory reference in his affidavit to part of the M'Naghten test does not provide evidence
in this civil case that Alex was so mentally deranged that he did not have the mental capacity
to perform that cognitive function commonly known as intention. Every indication in the
record suggests the conclusion that when Alex shot these three people, he desired to cause
their deaths. As explained in the margin, however, there is certainly a possibility that some
kinds of circumstances could, in certain cases lead to the conclusion that a person was
suffering from such a mental disorder as to be incapable of forming the intent to kill.6
__________

5
Dr. O'Gorman testified that Alex had an involutional psychotic reaction that made him unable to
distinguish right from wrong. Dr. O'Gorman had no occasion to examine, treat or even meet Alex. An
involutional psychotic reaction is a temporary mid-life reaction to events said by Dr. O'Gorman to be
psychotic in nature. Even if we were to assume, on the basis of Dr. O'Gorman's testimony, that Alex did suffer
a temporary disease of mind and a defect of reason that prevented him from realizing that it was wrong to shoot
three people in the head, this is, of itself, not enough to render these killings unintentional. As pointed out in
the text, no one has said that Alex did not intend to kill.
sion that a person was suffering from such a mental disorder as to be incapable of forming the
intent to kill.
6

The test for capacity in criminal cases is necessarily different from the test that must be
applied in the present case. In the criminal law, we are interested in mens rea, the guilty mind,
and in moral reprehensibility. We want to know, in criminal cases, whether a person is justly
deserving of punishment or not. The rationale of the insanity defense is that it is not fair,
reasonable or just to punish a person for a crime when that person does not understand what
he or she is doing or is so deluded as to believe that criminal acts are right and proper. These
concepts have no bearing on the case at hand. The criminal law deals with a particular species
of mental incapacity that has meaning only when associated with the ends and purposes of the
criminal law.
If the claimants' position had been that Alex did not have the mental capacity to intend to
kill his wife, rather than that Alex was criminally insane under the M'Naghten rule, they
should have said so and pursued the issue of Alex's mental incapacity to intend to kill.
Insanity and the consequent freedom from criminal liability are much different from the
mental capacity to perform a legal act, an act which will be deemed effective under the civil
law. If this were a will contest case, for example, a person challenging the mental capacity of
a testator to execute a will would have to introduce evidence showing that the testator did not
have the capacity to understand the nature of the estate and the ordinarily expected objects of
the will rather than testimony relating to the testator's incompetency to commit a crime. If a
person's capacity to marry or to make a contract were the subject of litigation, testimony
based on the M'Naghten rule would not be very useful or pertinent to the issues at hand. The
issue in this case is whether, under the terms of this insurance policy, Alex intended to kill his
victims. The claimants' expert witness, Dr.
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6
For instance, if there were psychological evidence that Alex thought that he was doing something other
than discharging bullets into the bodies of three human beings, then it would be possible that Alex did not desire
to cause the consequences of his acts, i.e., the killing of three human beings. In such a case, we might be willing
to let such evidence go to a jury on the issue of whether these killings were intentional acts.
There are other circumstances in which the mental condition of a person might prevent that person from
being mentally able to commit an intentional act. If, for example, a mother were suffering under such a delusion
that she believed that the devil had taken over the body of her infant child and, acting under such a delusion,
hurled the child from the window of a tall building, under such circumstances the conclusion that the woman did
not intend to kill her child might be accepted. The mother in this example did not have the design, or the desire,
to kill her child. Instead, her intention was to assail the devil; consequently, with regard to the child her actions
might not be considered to be intentional acts.
Glovinsky, testified that Alex did intend to kill the victims. There is no evidence to the
contrary.
In sum, then, there is no evidence to support the contention that these casualties were
accidents or were caused by anything other than the intentional acts of Alex. There is
affirmative evidence that Alex's acts were intentional. The trial court was correct in refusing
to allow a jury to decide either that Alex did not intend to kill or that he did not have the
mental capacity to make such a decision. The summary judgment of the trial court is,
therefore, affirmed.
Steffen and Young, JJ., and Whitehead, D. J., concur.
7

Handelsman, D. J., dissenting:
As explained below, I believe that genuine issues of material fact exist in this case.
Therefore, I must respectfully dissent.
BACKGROUND
This is an appeal from two summary judgments entered against the appellants in actions
that were consolidated below. The actions arose out of the killings of three people by Alex
Egyed, who committed suicide immediately after the killings. On September 22, 1984,
Egyed's wife, Virginia Mallin, along with her friends Nina Schwartz, Betty Di Fiore, and Jack
Levy, went to a charity banquet at Caesar's Palace in Las Vegas. Egyed also attended the
banquet and was hostile toward Mallin and her friends. Although they had previously
received counseling, Egyed and Mallin were having continuing marital difficulties. Earlier
that day, Mallin told Schwartz that she wanted to stay with her, and Schwartz let her stay in a
guest room. Farmers concedes that Egyed was a jealous and possessive husband and that he
hated his wife's friends. Moreover, at the hearing pertaining to Farmers' motions for summary
judgment, Mallin's daughter, Jessica, testified that Egyed was very depressed and distraught
and that he had been drinking alcohol that evening.
Mallin was upset and embarrassed by Egyed's behavior at the banquet. She asked her
friends to drive her home so she could remove her daughter, Jessica, from the premises.
Egyed also returned home and asked Mallin to talk with him. When she refused, Egyed went
upstairs and found a gun.
Egyed first went to Jessica's room and found Jessica, a friend of Jessica's, and Di Fiore. He
shot Di Fiore in the head and pointed the gun toward Jessica. According to Jessica, he
appeared to be in a wild frenzy and looked out of control.
__________

7
The Honorable Jerry C. Whitehead, Judge of the Second Judicial District, was designated by the Governor
to sit in the place of The Honorable Robert E. Rose, Justice. Nev. Const. art. 6, 4.
to be in a wild frenzy and looked out of control. He refrained from shooting Jessica, however,
and went downstairs. He found his wife in the kitchen, made her kiss his foot, and shot her in
the head. He then ran to Levy's car and shot him in the head. Schwartz crouched behind the
front seat of the car and was not shot. After shooting Levy, Egyed returned to the house,
turned the gun on himself, and committed suicide.
After the killings, various claims were filed against Egyed's estate by the estates and heirs
of the victims. Egyed's estate reported the claims to Farmers Insurance Exchange (hereinafter,
Farmers), the issuer of a homeowner's insurance policy covering Egyed, and demanded that
Farmers either indemnify the estate or defend the actions.
The homeowner's policy issued by Farmers states, in pertinent part, as follows:
We shall pay all damages from an accident which an insured is legally liable to pay of
bodily injury or property damage covered by this policy.
Accident is defined as a sudden event, including continuous or repeated exposure to the
same conditions, resulting in bodily injury or property damage neither expected nor intended
by the insured. In addition, the Exclusions section of the policy provides that Farmers will
not cover bodily injury or property damage [a]rising as a result of intentional acts of the
insured, nor bodily injury to any resident of the household.
Farmers initially provided a defense, but subsequently filed a separate declaratory relief
action against Egyed's estate and against the plaintiffs in the actions filed against Egyed's
estate. Farmers sought a declaration of noncoverage pursuant to the intentional acts and
household resident exclusions.
Thereafter, these cases were consolidated for discovery purposes only. Following
discovery, Farmers filed two separate motions for summary judgment. One motion was
directed toward the claims asserted by the Estate of Virginia Mallin and her daughter Jessica,
and was based upon the household resident exclusion. The second motion sought a final
determination of noncoverage as to all actions against Egyed's estate based upon the
intentional acts exclusion. Both of these motions were granted and the rulings were
certified as final pursuant to NRCP 54(b).
1
DISCUSSION
DISCUSSION
__________

1
A more detailed account of the procedural history of these actions is set forth in Mallin v. Farmers Ins.
Exch., 106 Nev.606, 797 P.2d 978 (1990).
DISCUSSION
A. Standards Applicable to Summary Judgments
The standards applicable to motions for summary judgment have been stated often, but
bear repeating. A party seeking to recover upon a claim may move for a summary judgment
in his favor upon all or any part of that claim. NRCP 56(a). The motion must be granted if the
following requirements are satisfied:
[T]he 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.
Id. 56(c). See Ferreira v. P.C.H. Inc., 105 Nev. 305, 306, 774 P.2d 1041, 1042 (1989).
In deciding whether summary judgment is appropriate, the evidence must be viewed in the
light most favorable to the party against whom summary judgment is sought, and the factual
allegations of that party must be presumed correct. See id.; Pacific Pools Constr. Co. v.
McClain's Concrete, Inc., 101 Nev. 557, 559, 706 P.2d 849, 851 (1985). In addition, the
burden of establishing the non-existence of any genuine issue of fact is on the movant. Pacific
Pools, 101 Nev. at 559, 706 P.2d at 851; Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d
662, 663 (1985). A litigant has the right to a trial when there remains the slightest doubt as to
remaining issues of fact. Pacific Pools, 101 Nev. at 559, 706 P.2d at 851; Oak Grove
Investors v. Bell & Gossett Co., 99 Nev. 616, 623, 668 P.2d 1075, 1079 (1983).
B. Killing as an Accident
I view this case as presenting rather straightforward issues of contract interpretation.
Generally, the issue is whether the actions of Egyed are covered under the terms of the
homeowners' insurance policy issued to Egyed by Farmers. The first sub-issue is whether
killing can be considered an accident. Although this Court has not specifically held that an
individual's insanity may negate his or her intent to commit an act, courts from other
jurisdictions have held that a killing or suicide may be accidental for purposes of insurance
coverage if the actor was insane at the time of the act. See, e.g., Sturm v. Washington Nat'l
Ins. Co., 208 F.2d 97, 100-02 (8th Cir. 1953) (suicide by an insane insured constituted
accidental death for purposes of life insurance coverage), cert. denied, 347 U.S. 918, 74 S.Ct.
516, 98 L.Ed. 1073 (1954); Continental Casualty Co. v. Maguire, 471 P.2d 636, 638-39
(Colo.App. 1970) (insured's actions were not voluntary due to his insanity, and his injuries
were therefore caused by accident); Gulf Life Ins. Co. v. Moore, 60 S.E.2d 547, 550-51
{Ga.App. 1950) {plaintiff could recover on a life insurance policy providing benefits for
accidental death based upon evidence that assailant of her deceased husband was insane
at the time of killing); Ray v. Federated Guar. Life Ins. Co., 3S1 So.2d S47, S4S {La.App.
accident); Gulf Life Ins. Co. v. Moore, 60 S.E.2d 547, 550-51 (Ga.App. 1950) (plaintiff could
recover on a life insurance policy providing benefits for accidental death based upon evidence
that assailant of her deceased husband was insane at the time of killing); Ray v. Federated
Guar. Life Ins. Co., 381 So.2d 847, 848 (La.App. 1980) (insured was insane at the time he
drowned himself, and his drowning was therefore accidental); State ex rel. Kansas City Life
Ins. Co. v. Bland, 184 S.W.2d 425, 426 (Mo. 1945) (suicide while insane is considered an
accident, whereas suicide while sane is considered not an accident); Travelers Ins. Co. v.
Gray, 306 N.E.2d 189, 191 (Ohio C.P. 1973) (killing by an insane person would be an
accidental killing).
The reasoning of these cases is sound. An individual's mind may be so protracted by
disease that he is unable to form an intent. See Fox v. State, 73 Nev. 241, 244, 316 P.2d 924,
926 (1957). In that situation, the individual's acts may properly be termed accidental for
purposes of insurance coverage, regardless of whether those acts appear intentional to the
uninformed observer. Thus, a killing could reasonably be considered an accident for
purposes of the insurance policy issued to Egyed by Farmers.
C. Intentional Acts Exclusion
The next question is whether the exclusion in the Farmers' policy pertaining to intentional
acts bars any recovery by the appellants in this case. The majority answers this question in
the affirmative and believes that conclusion is the only reasonable conclusion. I disagree.
1. Ambiguity of the Intentional Acts Exclusion
The intentional acts exclusion relied upon by Farmers excludes from coverage bodily
injury . . . [a]rising as a result of intentional acts of the insured. Farmers argues, and the
majority agrees, that this provision precludes coverage regardless of whether Egyed was
insane at the time of the shootings.
Farmers relies primarily on Johnson v. Insurance Co. of N.Am., 350 S.E.2d 616 (Va.
1986), to support this contention. In Johnson, the Virginia Supreme Court held that,
notwithstanding an insured's delusional belief as a reason for shooting a friend, he was aware
of what he was doing and intended the resulting injury. Thus, the defendant insurance
company was permitted to avoid coverage under an insurance policy exclusion for bodily
injury which is either expected or intended from the standpoint of the insured.
As an initial matter, the Johnson case was in a procedural posture different from the case
at bar. In Johnson, the Virginia Supreme Court was reviewing the trial court's final
judgment on the insurer's action for a declaratory judgment.
Supreme Court was reviewing the trial court's final judgment on the insurer's action for a
declaratory judgment. Unlike the case at bar, the trial court's judgment in Johnson was not
rendered based upon a motion for summary judgment and the trial court was therefore
permitted to weigh the evidence and draw any proper inferences. The district court in the case
at bar was not entitled to weigh evidence and draw inferences in favor of Farmers.
Moreover, the Johnson decision espouses the minority view on this issue. See also Kipnis
v. Antoine, 472 F.Supp. 215, 220-21 (N.D.Miss. 1979); Colonial Life & Accident Ins. Co. v.
Wagner, 380 S.W.2d 224, 226-27 (Ky. 1964); Deloache v. Carolina Life Ins. Co., 104 S.E.2d
875, 875-76 (S.C. 1958). The majority of courts have held that acts committed by an insane
insured are not considered intentional for purposes of insurance coverage. See Rosa v.
Liberty Mut. Ins. Co., 243 F.Supp. 407, 409 (D.Conn. 1965); Globe Am. Casualty Co. v.
Lyons, 641 P.2d 251, 253-54 (Ariz.App. 1981); Congregation of Rodef Sholom v. American
Motorists Ins. Co., 91 Cal.App.3d 690, 695-99, 154 Cal.Rptr. 348, 350-52 (1979); Mangus v.
Western Casualty & Sur. Co., 585 P.2d 304, 305-06 (Colo.App. 1978); George v. Stone, 260
So.2d 259, 261-62 (Fla.App. 1972); West Am. Ins. Co. v. McGhee, 530 N.E.2d 110, 111-12
(Ind.App. 1988); von Dameck v. St. Paul Fire & Marine Ins. Co., 361 So.2d 283, 288-89
(La.App. 1978), cert. denied, 362 So.2d 794 and 802 (La. 1978); State Farm Fire & Casualty
Co. v. Wicka, 461 N.W.2d 236, 242 (Minn.App. 1990), aff'd as modified, 474 N.W.2d 324
(Minn. 1991); Ruvolo v. American Casualty Co., 189 A.2d 204, 208 (N.J. 1963); Nationwide
Mut. Fire Ins. Co. v. Turner, 503 N.E.2d 212, 216-17 (Ohio App. 1986). The Wicka court
explained why the Johnson view should be rejected:
We believe that the rule adopted by the majority of the courts in this country is the
better rule. A narrower interpretation of the exclusionary clause is not unreasonable, but
ambiguities, particularly in exclusions are construed against the insurer. This is
especially true when the conduct insured against involves injury to members of the
public and when the policy rationale behind the clause is inapplicable. In our view, an
insured could reasonably expect liability coverage for injuries resulting from acts
committed at a time when, because of mental illness, the insured is unable to control his
or her conduct in accordance with reason.
Wicka, 461 N.W.2d at 240.
2
I agree that ambiguous insurance policy provisions, including
exclusion provisions, are to be strictly construed against the insurer and in favor of the
insured.
__________

2
The Minnesota Supreme Court expressly rejected views it termed as liberal and narrow. In affirming
the appellate court's decision, however, the high court stated as follows:
I agree that ambiguous insurance policy provisions, including exclusion provisions, are to
be strictly construed against the insurer and in favor of the insured. See Catania v. State Farm
Life Ins. Co., 95 Nev. 532, 534-35, 598 P.2d 631, 633 (1979). The intentional acts
exclusion in the Farmers policy covering Egyed is ambiguous as to whether the acts of an
insane insured are excluded from coverage and the provision therefore must be construed
against Farmers. In this regard, this Court's decision in Hernandez v. First Fin. Ins. Co., 106
Nev. 900, 802 P.2d 1278 (1990), cited by Farmers, is inapposite because the provision at
issue in Hernandez was not ambiguous.
Simply put, Farmers could easily have defined the term intentional acts to include acts
committed by an insane insured, as insurance companies have been doing for many years.
Instead, Farmers chose to leave this term undefined. Any ambiguity in that term must
therefore be construed against Farmers. Thus, for purposes of the intentional acts exclusion
in Egyed's insurance policy, I would hold that acts committed by an insane person are not
excluded from coverage by this exclusion as a matter of law.
2. Evidence of Egyed's Incapacity
I must also disagree with the majority's conclusion that there is no evidence that the
casualties in this case did not result from intentional acts of the insured. At the hearing on
Farmers' motions for summary judgment, appellants proffered evidence that Egyed was
incapable of forming an intent to commit the killings. Jessica Mallin, Egyed's stepdaughter,
testified that she spent the evening of September 22, 1984, at home with Egyed, until he left
for the banquet. She testified that Egyed was very depressed and distraught that evening, and
that he had been drinking alcohol. She also testified that he appeared to be in a wild frenzy
and looked out of control when he shot Di Fiore. Another lay witness, Schwartz, testified to
Egyed's hostile behavior toward his wife and her friends at the banquet.
__________
Although we reject the formulations advanced under both the liberal and narrow views, we agree that an
insured's mental illness can defeat the application of the intentional act exclusion . . .
. . .
. . . We hold, therefore, that for purposes of applying an intentional act exclusion contained in a
homeowner's insurance policy, an insured's acts are deemed unintentional where, because of mental
illness or defect, the insured does not know the nature or wrongfulness of an act, or where, because of
mental illness or defect, the insured is deprived of the ability to control his conduct regardless of any
wrongdoing of the nature of the act or its wrongfulness. . . .
474 N.W.2d at 329-31. The court also held that the question of whether the above circumstances exist is one for
the trier of fact. See id. at 331.
In addition to the personal observations of Jessica and other lay witnesses, appellants also
proffered expert witness testimony. Psychiatrist Robert Lynn Horne, M.D., offered his
opinion that, at the time of the shootings, Egyed was suffering from a compulsive
personality disorder and a paranoid personality disorder further effected by alcohol
ingestion. Dr. Horne also stated that Egyed was unable to control his acts at the time of the
shootings in question, and could not consciously decide to kill Betty Di Fiore, Jack Levy and
Virginia Mallin Egyed.
William D. O'Gorman, M.D., another psychiatrist, concluded that Egyed was suffering
from an involutional psychotic reaction manifested by deep seated depression, suspiciousness
and paranoid ideation. In the opinion of Dr. O'Gorman, Egyed, as a result of the
above-described mental state, was unable to control his acts at the time of the homicides in
question and was further unable to distinguish right from wrong.
Psychologist Marv A. Glovinsky provided marital counseling to Egyed and Mallin until
January 1984. Dr. Glovinsky testified in his deposition that Egyed was unable to control his
acts at the time of the homicides. According to Dr. Glovinsky, Egyed was unable to decide
not to commit the acts and was overcome by his emotions to the degree that he was unable to
make the rational decision not to commit the acts. Egyed became psychotic early in the
evening on the night of the shootings and his psychotic state escalated to a point at which he
lost control, was unable to distinguish the elements of reality and totally lost touch with
reality. Dr. Glovinsky also testified that Egyed's ability to govern his acts at the time of the
shootings was virtually nil.
Appellants presented considerable evidence concerning Egyed's deranged mental state. In
the face of this evidence, the majority chooses, instead, to infer Egyed's intent from his
actions on the night of the shooting. I agree that this inference can properly be drawn from the
record before us. I cannot say, however, that this is the only inference that may be drawn.
From the evidence presented by appellants, a reasonable juror could conclude that Egyed's
psychosis was so pervasive that his acts should not be considered intentional. The district
court was required to view the evidence presented in the light most favorable to appellants.
Instead, the court improperly drew an inference from the evidence favorable to Farmers. See
Johnson v. Steel, Inc., 100 Nev. 181, 183, 678 P.2d 676, 677-78 (1984) (nonmoving party on
a motion for summary judgment is entitled to have its evidence and all inferences therefrom
accepted as true); Orcutt v. Miller, 95 Nev. 408, 411, 595 P.2d 1191, 1193 (1979) (facts and
inferences must be viewed in the light most favorable to the nonmoving party on a motion
for summary judgment).
favorable to the nonmoving party on a motion for summary judgment).
The majority accepts Farmers' contention that Egyed's intent, and therefore sanity, may be
inferred from his selection of victims and from the execution-style slaying of those victims. I
agree that this is an inference that the trier of fact may draw from the record before us, but I
reject the majority's conclusion that this evidence points to only one reasonable conclusion.
Egyed's apparent ability to draw distinctions does not compel a finding of sanity:
Talking irrationally could be indicative of an unsound mind. But the converse, talking
normally, does not negate the more subtle and insidious forms of insanity with which
the mind may be possessed.
State v. Overton, 562 P.2d 726, 729 (Ariz. 1977). Conflicting inferences as to an individual's
sanity raise a genuine issue of material fact and render summary judgment inappropriate. See
George v. Stone, 260 So.2d 259, 262 (Fla.App. 1972).
Moreover, the term intent is a slippery one, subject to myriad applications. In this case,
we must draw a distinction between Egyed's arguably volitional act of pulling a trigger and
his mental capacity to kill, or to refrain from killing. These two intents are different and
should not be confused. Certainly, one can infer an intent to kill from the volitional act of
pulling a trigger, but this conclusion is not mandatory.
Farmers refers to several cases in which other jurisdictions have inferred an individual's
intent to injure based upon the acts committed. In principle, Farmers is correct: An actor's
intent can be inferred from his or her acts in certain cases. As this Court recently indicated in
Rivera v. Nevada Medical Liab. Ins. Co., 107 Nev., Adv. Op. 70, at 4, 814 P.2d 71, 73
(1991), some acts are substantially certain to injure and an intent to injure may be inferred
from the intentional commission of those acts regardless of the actor's subjective intent. This
principle, however, presupposes a sane mind. When, as in this case, the parties opposing a
motion for summary judgment have presented evidence on an actor's lack of mental capacity
or sanity, the actor's intent to commit murder cannot be inferred from the act of shooting his
or her victims. See Congregation of Rodef Sholom, 91 Cal.App.3d at 695-99, 154 Cal.Rptr. at
350-52 (1979); Arkwright-Boston Mfrs. Mut. Ins. Co. v. Dunkel, 363 So.2d 190, 193-94
(Fla.App. 1978); von Dameck v. St. Paul Fire & Marine Ins. Co., 361 So.2d 283, 288-89
(La.App. 1978); Allstate Ins. Co. v. Miller, 438 N.W.2d 638, 641-42 (Mich.App. 1989),
remanded, 452 N.W.2d 209 (Mich. 1990), after remand, 460 N.W.2d 612 {Mich.App.
(Mich.App. 1990); Wicka, 461 N.W.2d at 242; Nationwide Mut. Fire Ins. Co. v. Turner, 503
N.E.2d 212, 216-17 (Ohio App. 1986).
3. Evidence of Egyed's Intoxication
Appellants also presented evidence during the summary judgment hearing below that
Egyed had a blood-alcohol content of .10% at the time of his death. In my view, intoxication
may be relevant for purposes of determining coverage under a policy exclusion for
intentional acts if the insured's intoxication at the time of the act was so significant that the
insured was unable to form the requisite intent to commit the act. In determining the insured's
intent for these purposes, lack of capacity is the key issue. Without question, an insured's
intoxication can be so severe as to render the insured incapacitated.
I do not mean to suggest that an insured's intoxication relieves the insured from liability
for wrongful acts committed while intoxicated. I would hold only that under the language of
this intentional acts exclusion, an intoxicated insured who causes injury or damage may
still be covered if the insured was so intoxicated that he or she was incapable of forming an
intent to commit the acts causing injury or damage. Moreover, I realize that this holding
would have the anomalous result of making insurance coverage for wrongful acts more likely
as the insured's degree of intoxication increases. Nevertheless, insurers are the parties
responsible for the language used in their policies. Insurers are the only parties in a position to
exclude coverage for damage or injury caused by an intoxicated insured. As discussed above,
the language in this policy exclusion is ambiguous and must be construed against the insurer.
Other courts have considered this issue. A few have denied coverage under the relevant
policy exclusions due to the insured's voluntary intoxication. See Prudential Property &
Casualty Ins. Co. v. Kerwin, 576 N.E.2d 94, 97-98 (Ill.App. 1991), appeal denied,
------
.
N.E.2d
------
(Ill. 1991); Allstate Ins. Co. v. Hampton, 433 N.W.2d 334, 336 (Mich.App.
1988); Coleman v. Sanford, 521 So.2d 876, 878 (Miss. 1988); Hanover Ins. Co. v.
Newcomer, 585 S.W.2d 285, 289 (Mo.App. 1979); Aetna Life Ins.Co. v. McLaughlin, 380
S.W.2d 101, 102-06 (Tex. 1964). My view, however, is in accord with a large majority of
courts that have considered this issue. See Lawler Mach. & Foundry Co. v. Pacific Indem. Ins.
Co., 383 So.2d 156, 158 (Ala. 1980); Parkinson v. Farmers Ins. Co., 594 P.2d 1039, 1041
(Ariz.App. 1979); State Farm Fire & Casualty Co. v. Morgan, 368 S.E.2d 509, 510 (Ga.
1988); Allstate Ins. Co. v. Carioto, 551 N.E.2d 382, 389 (Ill.App. 1990), appeal denied, 555
N.E.2d 374 (Ill.
1990); Perilloux v. Nelson, 378 So.2d 551, 552-53 (La.App. 1979); Wicka, 461 N.W.2d at
240-41; MacKinnon v. Hanover Ins. Co., 471 A.2d 1166, 1169 (N.H. 1984); Burd v. Sussex
Mut. Ins. Co., 267 A.2d 7, 15 (N.J. 1970); Moorman v. National Casualty Co., 68 N.E.2d
359, 360 (Ohio Mun. 1946), rev'd on other grounds, 75 N.E.2d 806 (Ohio App. 1947);
Williams v. Pilgrim Life Ins. Co., 452 A.2d 269, 271 (Pa.Super. 1982); Long v. Coates, 806
P.2d 1256, 1259-60 (Wash.App. 1990), review denied, 807 P.2d 884 (Wash. 1991); Morris v.
Farmers Ins. Exch., 771 P.2d 1206, 1214-15 (Wyo. 1989).
Egyed's intoxication has significance for another reason. Dr. Horne testified that Egyed's
intoxication contributed to his psychosis. This evidence is directly relevant to the issue of
Egyed's sanity and should be considered by the trier of fact. For all the foregoing reasons, I
must disagree with the majority's conclusion that there is no evidence that Egyed's acts were
not intentional. Rather, I believe there is sufficient evidence from which a jury could
determine that appellants' should be permitted to recover under Egyed's insurance policy.
4. Public Policy in Finding Coverage
Although not discussed by the majority, Farmers also argues that the intentional acts
exclusion should apply to Egyed's conduct in this case based upon public policy. Farmers
asserts that the public policy underlying this intentional acts exclusion is that an insured
should not profit from his own intentional wrongdoing. According to Farmers, a finding that
coverage for these claims exists would clearly undermine this policy because insurance
proceeds would insulate the assets of Egyed's estate from the actions filed by the estates and
heirs of Egyed's victims.
This argument, however, begs the question of whether Egyed's acts were intentional. As
discussed above, the issue of Egyed's intent in this case cannot be decided on this motion for
summary judgment. If the trier of fact finds that Egyed lacked the capacity to form an intent,
there is little compelling about Farmers' policy goals. No significant public policy will be
served by depriving an individual of insurance coverage for acts committed while he or she
was insane or otherwise incapacitated. An individual who lacks the capacity to conform his or
her conduct to the law will be uninfluenced by the existence or nonexistence of insurance
coverage for the consequences of that conduct. See Lyons, 641 P.2d at 253-54. Further, as
stated by the Wicka court, there is a strong public interest in the compensation of victims. See
Wicka, 461 N.W.2d at 240. See also Congregation of Rodef Sholom, 91 Cal.App.3d at 697,
154 Cal.Rptr. at 352. Under these circumstances, I must reject Farmers' public policy
arguments.
The majority highlights statements by Dr. Glovinsky that Egyed had the intent to kill his
wife, and concludes that the trial court was therefore justified in granting Farmers' motions
for summary judgment. Apparent inconsistencies in the testimony of a given witness are not
new to our judicial process. Attorneys use such inconsistencies in cross-examination every
day, sometimes to great effect. In this case, too, Farmers' attorneys would have had the
opportunity to attack the testimony of Dr. Glovinsky and appellants' other witnesses.
Ultimately, the appropriate place to weigh the credibility of a given witness should have been
the deliberation room.
The majority also appears troubled by [t]hose who . . . believe that unconscious and
unwilled mental forces, and not individual will or intent, cause human actions. I do not
regard these two alternatives as absolutes. Rather, unconscious mental forces and individual
will, either separately or in conjunction, can affect human actions. The majority need not have
presented themselves with such an imposing metaphysical dilemma; the issue in this case is
relatively mundane.
Farmers and Egyed entered into a contractual agreement. Under this agreement, Farmers
agreed to provide insurance coverage for all damages from an accident which Egyed would
be legally liable to pay. Coverage was not applicable to damages caused by Egyed's
intentional acts. This exclusion begs the question, however, of whether the acts committed
by Egyed were intentional. The policy did not state whether damages caused by acts of an
insane insured were intentional. Since that term is ambiguous, it must be construed against
Farmers and in favor of appellants. We are left with the task of determining whether Egyed
was incapacitated at the time of the killings. That issue is a question of fact and should have
been resolved by a jury.
The majority's analogy to criminal law is also inapposite. The majority correctly observes
that the defense of irresistible impulse has been rejected by this Court. See Sollars v. State,
73 Nev. 248, 253-55, 316 P.2d 917, 920 (1957). That holding, however, has no relevance to
the case at bar. As explained above, this is a case of contract interpretation, presented on a
motion for summary judgment. An insurance company is free to agree to provide coverage for
damages caused by the acts of an insane insured. It is also free to decline to provide such
coverage. If the agreement is ambiguous with regard to that issue, the ambiguity must be
construed against the insurer. All that remains is for the jury to determine whether the insured
was, or was not, insane when the acts were committed. Contrary to the majority's conclusion,
there is no relationship between the insanity defense in criminal cases, and the constructive
agreement of an insurer to provide coverage for damages caused by an insane insured.
provide coverage for damages caused by an insane insured. Moreover, I believe that
appellants clearly articulated their contention that Egyed did not have the mental capacity to
intend to kill.
5. Estoppel of Appellants
Although not discussed by the majority, Farmers also contends that appellants should be
estopped from arguing that Egyed lacked the mental capacity to form an intent to kill.
Farmers points to allegations set forth in appellants' separate actions against Egyed's estate. In
those actions, appellants allege negligent and intentional misconduct by Egyed. Moreover, in
probate proceedings relating to Egyed's estate, Jennifer Mallin, Jessica Mallin, and the
executrix of the Estate of Virginia Mallin each claimed that Egyed murdered Virginia Mallin.
The trial court apparently found these allegations disturbing:
This Court notes that in this particular proceeding the defendants claim Alex Egyed
lacked the intent to commit an intentional act, while at the wrongful death proceedings
and probate proceedings, the various defendants claimed that Alex Egyed acted with
some type of intent. The defendants have conveniently tailored Alex Egyed's intent
differently depending on which proceeding is taking place.
Collateral estoppel serves only to prohibit parties or their privies from relitigating issues
actually litigated and necessarily determined in a previous lawsuit. State v. Kallio, 92 Nev.
665, 668, 557 P.2d 705, 707 (1976). Until a particular issue is actually litigated and
adjudicated, parties are free to make alternative or inconsistent allegations regarding that
issue. See NRCP 8(e)(2) (in pleadings, parties may set forth as many inconsistent and
alternative claims as they have). See also Paradise Palms Community Ass'n v. Paradise
Homes, 89 Nev. 27, 31-32, 505 P.2d 596, 598-99 (1973) (collateral estopped is inapplicable
until there has been a final judgment on the merits), cert denied, 414 U.S. 865, 94 S.Ct. 129,
38 L.Ed.2d 117 (1973). Inconsistent allegations in alternative claims cannot be used as
admissions. Trans W. Leasing Corp. v. Corrao Constr. Co., 98 Nev. 445, 448, 652 P.2d 1181,
1183 (1982); Auto Fair, Inc. v. Speigelman, 92 Nev. 656, 658, 557 P.2d 273, 275 (1976).
Farmers has presented no evidence that the issue of Egyed's intent was fully adjudicated in
any other proceeding. Indeed, notwithstanding the statements quoted above, the district court
specifically rejected Farmers' argument that appellants should not be permitted to argue
Egyed's lack of capacity at the hearing below because of allegations in the related
proceedings.
below because of allegations in the related proceedings. Moreover, Farmers failed to cite even
one authority supporting its estoppel argument.
In addition, certain allegations in the related proceedings are not necessarily inconsistent
with appellants' arguments pertaining to Egyed's mental incapacity. For example, an
allegation that Egyed's conduct was wrongful does not necessarily imply that the conduct
was intentional. Even if Egyed is found to have lacked the mental capacity to form an intent
to kill, his estate remains liable for certain wrongful acts committed by Egyed prior to his
death, including wrongful death. See Polmatier v. Russ, 537 A.2d 468, 469-71 (Conn. 1988);
Barylski v. Paul, 196 N.W.2d 868, 869-70 (Mich.App. 1972); Ross v. York, 233 S.W.2d 347,
348-49 (Tex.Civ.App. 1950). Appellants' wrongful death actions against Egyed's estate are
not inconsistent with their arguments that he was insane at the time of the killings.
In the probate proceedings relating to Egyed's estate, the estate and heirs of Virginia
Mallin sought to prohibit Egyed from succeeding to Mallin's separate and community
property, and to property held in joint tenancy with Egyed prior to her death, pursuant to
statute. See NRS 111.067, 134.007 (preventing persons convicted of murder from succeeding
to the property of their victims). Ultimately, Egyed's estate entered into a settlement with
these parties, without admitting applicability of these statutes, and this compromise was
approved by the district court. Farmers' estoppel argument based upon these facts must fail,
however, because compromises are not admissible to prove the validity or amount of a claim.
NRS 48.105. In addition, no criminal court has ruled that Egyed murdered his victims, a
prerequisite to an application of NRS 111.067 and 134.007. See Holliday v. McMullen, 104
Nev. 294, 296, 756 P.2d 1179, 1180 (1988).
D. Household Resident Exclusion
Farmers also argues that it should not be required to provide coverage for injuries alleged
by Jessica Mallin and the Estate of Virginia Mallin based upon a household residents
exclusion set forth in the homeowner's policy. That exclusion provides that Farmers will not
cover [b]odily injury to any resident of the household except a resident employee. Farmers
contends that Virginia and Jessica Mallin were household residents, as a matter of law, at
the time Virginia Mallin was killed.
1. Enforceability of Household Resident Exclusion
The Mallin appellants have raised an issue regarding the enforceability of the "household
resident" exclusion at issue in this case.
enforceability of the household resident exclusion at issue in this case. They argue that the
exclusion should be considered part of a contract of adhesion because the insureds were not
given an option as to whether the exclusion should be part of their homeowner's policy.
Although unconscionable contract provisions are voidable, adhesion contracts are not
unenforceable per se. See, e.g., Adams v. Merrill Lynch Pierce Fenner & Smith, 888 F.2d
696, 701 (10th Cir. 1989). The household resident exclusion exists to protect insurance
companies from the natural partiality of the insured to assist the injured person when he or
she is a member of the family circle. Even without actual dishonesty appearing, the natural
bias and sympathies of the insured might easily render every such claim a dangerous one. See
6C J. Appleman, Insurance Law and Practice, sec. 4411, at 345-46 (Buckley ed. 1979). This
reasoning is sound, and the Mallin appellants' unconscionability argument must therefore be
rejected. The real issue in this case is not one of enforceability, but of applicability.
2. Evidence of Nonresidency
The meaning of the term resident is not absolute and must be determined in a particular
case by viewing all relevant circumstances. See Hartford Ins. Group v. Winkler, 89 Nev. 131,
136, 508 P.2d 8, 11 (1973). Necessarily, the issue of whether an individual is a resident for
purposes of this policy exclusion is one of fact for the jury. In resolving the issue of
residency, the trier of fact may consider a variety of factors, including the following: (1)
subjective or declared intent of the individual to remain indefinitely in the household, (2)
formality of the relationship between the individual and the householder, (3) whether the
individual and householder live in the same house or premises, (4) whether the individual has
another place of lodging, and (5) any circumstances surrounding the individual's presence or
absence from the home. Workman v. Detroit Auto. Inter-Insurance Exch., 274 N.W.2d 373,
379-80 (Mich. 1979); Government Employees Ins. Co. v. Dennis, 645 P.2d 672, 676 and n.2
(Utah 1982). With these factors in mind, we must determine whether a genuine issue of
material fact exists with regard to whether Virginia and Jessica Mallin were household
residents at the time of the killings.
The Mallin appellants base their argument for nonresidency upon several facts presented at
the hearing below. They point out that the day before the killings, Virginia Mallin told her
friend, Nina Schwartz, that she wanted to stay with Schwartz. Schwartz agreed and permitted
Mallin to stay in the guest room. On that same day, Mallin had clothes delivered to
Schwartz' residence.
same day, Mallin had clothes delivered to Schwartz' residence. Schwartz testified that she
believed Mallin was moving in with her. In addition, the Mallin appellants assert that the sole
reason that Mallin returned to the house on the night of the killings was to remove Jessica
from the premises and to take some of Jessica's clothing so she could also move in with
Schwartz. Moreover, although Egyed and Virginia Mallin had marital counseling prior to the
killings, Egyed was still exhibiting hostility toward Mallin, as shown by his behavior at the
banquet. The Mallin appellants argue that these facts show Virginia Mallin's intent to
permanently remove herself and her daughter from the house.
These circumstances raise a genuine issue of material fact with regard to whether Virginia
and Jessica Mallin were household residents at the time of the killings. Specifically, the
Mallin appellants presented evidence concerning Virginia Mallin's intent that she and her
daughter move out of the house and begin living with Schwartz. Intent is critical to the
determination of residency in cases pertaining to insurance coverage and exclusions. See
Country Mut. Ins. Co. v. Watson, 274 N.E.2d 136, 138 (Ill.App. 1971); Bearden v. Rucker,
437 So.2d 1116, 1121 (La. 1983). In this regard, the statements of Jessica Mallin regarding
her understanding as to her residence, although relevant, are not dispositive.
Moreover, these facts raise an issue as to whether Virginia Mallin was going to terminate
her and Jessica's relationship with Egyed, another significant factor with regard to a
determination of residency. See Pamperin v. Milwaukee Mut. Ins. Co., 197 N.W.2d 783,
787-88 (Wis. 1972). As stated by the Utah Supreme Court:
Residence emphasizes membership in a group rather than an attachment to a building.
It is a matter of intention and choice rather than one of geography.
American States Ins. Co. v. Walker, 486 P.2d 1042, 1044 (Utah 1971). See also Winkler, 89
Nev. at 136-37, 508 P.2d at 12 (an insurance company should [not] be able to avoid liability
under ambiguous provisions of a policyby attempting to require the spouse of the policy
owner as an insured' to remain under the same roof and in the same physical household
during the legal existence of a marriage) (quoting Aetna Casualty & Sur. Co. v. Miller, 276
F.Supp. 341, 248 (D.Kan. 1967). A reasonable juror could conclude from these facts that the
family relationship had disintegrated and that Virginia and Jessica Mallin were no longer
residing with Egyed.
Likewise, the trier of fact may determine that Virginia and Jessica Mallin were not
members of the same "household" as Egyed.
Jessica Mallin were not members of the same household as Egyed. If departure from a
relationship is highly probable, one need not have another place of abode in order to prevent
or terminate residency in the household. See Novak v. State Farm Mut. Auto. Ins. Co., 293
N.W.2d 452, 456 (S.D. 1980); Pamperin, 197 N.W.2d at 787.
Farmers failed to define either household or resident in the policy at issue. These
terms are fraught with ambiguity and Farmers easily could have resolved much of this
uncertainty by defining those terms. As stated previously, ambiguities in insurance policies
must be construed against the insurer. Thus, on remand, the trier of fact need not determine
whether Virginia and Jessica Mallin were or were not household residents at the time of the
killings. Rather, the trier must decide whether one could reasonably conclude from all the
relevant circumstances that Virginia and Jessica Mallin were not household residents at that
time. If the trier answers this question affirmativelythat is, if appellants' interpretation of
the relevant circumstances is a reasonable onethen the household resident exclusion is
inapplicable.
Farmers contends that even if Virginia and Jessica Mallin were residing with Schwartz, the
household resident exclusion would be applicable based upon another policy section. That
section states as follows: Insured location means . . . [p]art of a premises not owned by an
insured, but where an insured is temporarily residing. The Mallin appellants argue, however,
that the Mallins were not temporarily residing with Schwartz, and that they had
permanently left their former residence and had no intention of returning. Whether or not the
Mallins were temporarily residing with Schwartz is an issue for the trier of fact. The cases
cited by Farmers are inapposite. In State Farm Fire & Casualty Co. v. Lewis, 191 Cal.App.3d
960, 236 Cal.Rptr. 807 (1987), no issue was raised as to whether the insured's wife and
children were residents. State Farm Fire & Casualty Co. v. Alstadt, 113 Cal.App.3d 33, 169
Cal.Rptr. 593 (1980), involved a challenge to the legitimacy of a household resident
exclusion, but did not deal with the issue of residency. The court in State Farm Fire &
Casualty Co. v. Clendening, 150 Cal.App.3d 40, 197 Cal.Rptr. 377 (1983), held only that the
exclusion was not in violation of public policy. That court was not confronted with any issues
concerning residency. Likewise, the two Nevada cases cited by Farmers, Estate of Neal v.
Farmers Ins. Exch., 93 Nev. 348, 566 P.2d 81 (1977), and Baker v. Criterion Ins. Co., 107
Nev. 25, 805 P.2d 599 (1991), did not address any issues pertaining to residence.
CONCLUSION
For all of the foregoing reasons, I would reverse the decision of the trial court and remand
this case for further proceedings.
3

__________
108 Nev. 811, 811 (1992) Grand Hotel Gift Shop v. Granite St. Ins.
THE GRAND HOTEL GIFT SHOP, a Nevada General Partnership, LIBERTY JOSEPHS,
IRMA GOLOB, RUTH FOND, and LIBERTY JOSEPHS as Trustee of the
JENNIFER LYNN JOSEPHS TRUST, the DIANE ZOE JOSEPHS TRUST, and the
ADELE FELICE JOSEPHS TRUST, Individually, dba THE GRAND HOTEL GIFT
SHOP, Appellants/Cross-Respondents, v. GRANITE STATE INSURANCE
COMPANY, Respondent/Cross-Appellant.
No. 21370
September 15, 1992 839 P.2d 599
Appeal and cross-appeal from a judgment of the district court in a civil action on an
insurance policy. Eighth Judicial District Court, Clark County; Earle W. White, Jr., Judge.
Insured whose business was destroyed by fire brought action against insurer on issues
concerning agency, incremental rent, reformation of contract and statutory notice. The district
court entered judgment in favor of insured but awarded costs and prejudgment interest to
insurer on ground that insured's recovery was less than offer of judgment made by insurer
prior to trial and appeal was taken. The supreme court held that: (1) agent broker was agent of
insured not insurer; (2) evidence of insured's alleged independent negligence was properly
excluded; (3) court's definition and application of terms net sales and incremental rent were
improper; and (4) award of costs and attorneys fees was vacated.
Affirmed in part; reversed, remanded, and vacated in part.
[Rehearing denied January 28, 1993]
Brent A. Larsen, Las Vegas, and Anderson & Holland, Salt Lake City, Utah, for
Appellants/Cross-Respondents.
__________

3
Farmers also moved for the dismissal of the appeal by the Estate of Virginia Mallin on the ground that the
estate failed to file an opening brief. See NRAP 31(c). I would deny this motion in light of my conclusion that
the summary judgments entered in this case were improper.
The Honorable Mark Handelsman, Judge of the Second Judicial District, was designated by the Governor to
sit in the place of The Honorable John Code Mowbray, Chief Justice. Nev. Const. art. 6, 4.
Morse & Mowbray, Las Vegas, and Cummins & White and Irvin Halpern, Los Angeles,
California, for Respondent/Cross-Appellant.
Daniel F. Polsenberg and Allan R. Earl, Las Vegas, for Amicus Curiae Nevada Trial
Lawyers Association.
1. Appeal and Error; Contracts.
Question of interpretation of contract when facts are not disputed is question of law; therefore, appellate court reviews trial court's
findings de novo.
2. Principal and Agent.
Agency relationship is formed when one who hires another retains contractual right to control other's manner of performance.
3. Insurance.
Nevada statutes which regulate insurance by requiring out-of-state insurer to appoint in state resident agent did not create
principal-agent relationship between insurer and agent; insurer and agent had simple contractual relationship to split commissions, but
had no agreement that insurer controlled agent nor any agreement beyond compliance with licensing requirements to show that agent
had authority to act on behalf of insurer. NRS 680A.300.
4. Insurance.
Although determination of whether insurance agent was agent of insured or of insurer should include consideration of relevant
statutory provisions, other factors which also merit consideration include: insured's reliance on agent's judgment and discretion in
procuring insurance coverage; general rule that independent insurance agent is considered agent of insured, not insurer; in dealing with
insured, whether agent selected which insurance company to use; whether agent reviewed insured's financial records and made
recommendations regarding coverage; whether agent knew that insured was relying on him to explain insurance policies he procured;
and general rule that even if agent acts in dual agency capacity, he is still agent for insured, not insurer.
5. Insurance.
Insurance agent and broker was agent of insured rather than agent of insurer; either agent or insurer could revoke agent's agency
appointment, insurer did not restrict whom agent could solicit as potential insured, insurer did not require agent to submit potential
clients to it exclusively and it was agent, not insurer who made decision to renew policy.
6. Insurance; Reformation of Instruments.
District court's decisions to exclude evidence of negligent supervision of agent broker by insurer and to deny reformation of
contract on basis of mutual mistake between insured and agent were proper in insured's action against insurer; such theory of recovery
first necessitated finding that agent broker was agent of insurer.
7. Insurance.
Pleadings by insured, due to their vagueness, gave insurer insufficient notice of insured's claim of independent negligence on part
of insurer and thus evidence of insured's alleged negligence in writing policy was inadmissible in action against agent broker and
insurer; although insurer was named defendant, pleadings were indefinite and there was absence of specific
allegation of independent negligence on part of insurer.
although insurer was named defendant, pleadings were indefinite and there was absence of specific allegation of independent
negligence on part of insurer.
8. Insurance.
Where term in insurance contract was unclear and ambiguous, all doubts are resolved in favor of insured.
9. Insurance.
Under insurance contract insuring retail store which was destroyed by fire, incremental rent should be deducted from gross
earnings to arrive at net sales; policy did not define term net sales which was elastic term and should be construed in accordance with
understanding of person unfamiliar with insurance policies.
10. Insurance.
Effect of inclusion of an ordinary payroll exclusion (OPE) in policy is to eliminate coverage under business interruption portion
of policy for costs incurred by business to keep nonmanagerial employees on payroll during business interruption.
11. Insurance.
Insured whose business was destroyed by fire was entitled to recover expenses under ordinary payroll exclusion (OPE) coverage
that prior policy had included based upon insurer's failure to notify insured, as required by statute, that policy was being renewed
without OPE coverage; insured unequivocally took position that it would not have accepted policy without OPE coverage had it been
brought to its attention but policy was renewed with altered terms without notification to insured by insurer. NRS 687B.350.
12. Costs.
District court's award of costs and attorneys' fees to insurer in action brought against agent and insurer, even though insured had
prevailed at trial, on basis that post-trial recovery by insured was less than insurer's offer of judgment was to be vacated; amount of
additional recovery added to judgment on appeal rendered insured's total recovery in excess of offer in judgment.
OPINION
Per Curiam:
This dispute arose from a fire at the MGM Grand Hotel in Las Vegas on November 21,
1980, which destroyed the inventory of stock and interrupted the business of the Grand Hotel
Gift Shop (Gift Shop) until July 31, 1981, resulting in a loss of $999,051.00. On December
19, 1983, the Gift Shop filed a complaint against the Harley E. Harmon Insurance Agency,
Inc. (Harmon), which had sold the Gift Shop an insurance policy, and against Granite State
Insurance Company (Granite State), the underwriter. In June, 1988, the Gift Shop settled with
Harmon and filed a dismissal with prejudice as to Harmon. The Gift Shop also settled with
Granite State on the issue of the loss of its inventory stock. The bench trial, which began on
April 3, 1989, centered around four issues concerning agency, incremental rent, reformation
of the contract, and statutory notice.
reformation of the contract, and statutory notice. In an amended judgment, filed on April 12,
1990, the court ruled that: (1) Harmon was not acting as the agent of Granite State regarding
representations made to the Gift Shop, (2) Granite State's treatment of the incremental rent in
determining the amount of business interruption coverage was correct, (3) the Gift Shop was
not entitled to reformation of the contract, (4) Granite State violated NRS 687B.350 by failing
to notify the Gift Shop that the renewal policy did not contain an ordinary payroll exclusion
(OPE), and (5) due to that violation, Granite State was liable to the Gift Shop for
$113,883.00, that portion of its business interruption loss attributable to the absence of the
OPE from the policy.
The principal changes in the amended judgment were to eliminate the Gift Shop's award of
costs and prejudgment interest on the principal amount of $113,883.00 and to award Granite
State its taxable costs of $10,151.75 and attorneys' fees of $36,476.00. These changes were
made because the Gift Shop's judgment recovery was less than an offer of judgment in the
amount of $125,000.00 made by Granite State prior to trial.
On appeal, the Gift Shop raises issues as to agency, reformation, independent negligence,
definitions and application of contract terms, and the offer of judgment. Granite State
cross-appeals on the issue of statutory notice.
Harmon's Agency Relationship
The district court's findings of fact state in part that the Harmons [Harley E. Harmon
Insurance Agency, Inc., Harley Harmon, and Jeff Harmon] were acting as the agent of the
Gift Shop, and not as the agent of Granite State. As a result of this finding the district court
excluded evidence of negligent supervision by Granite State and denied reformation of the
contract. The Gift Shop argues that the district court erred as a matter of law and that Harmon
was instead an agent of Granite State. The Gift Shop contends that Harmon was an agent of
Granite State for two reasons: (1) Granite State appointed Harmon as its agent by filing a
notice of appointment in compliance with NRS 683A.280,
1
and (2) Harmon was not only
authorized to countersign policies in Nevada, it actually countersigned this policy.
2
[Headnote 1]
[Headnote 1]
__________

1
NRS 683A.280(1) provides, in pertinent part:
Each insurer appointing an agent, resident or nonresident, in this state shall file with the [insurance]
commissioner a written appointment specifying the kinds of insurance to be transacted by the agent for
the insurer.

2
The policy states that it must be countersigned by an authorized representative of the Company.
[Headnote 1]
The question of the interpretation of a contract when facts are not disputed is a question of
law. Nationwide Mutual v. Moya, 108 Nev. 578, 837 P.2d 426 (1992). Therefore, we review
the court's findings de novo as a question of law. See Board of Regents v. Phoenix
Newspapers, 806 P.2d 348, 351 (Ariz. 1991).
The Gift Shop contends that Nevada's insurance licensing statutesNRS 680A.300,
683A.030, 683A.040, and 683A.280create a principal-agent relationship between Granite
State and Harmon, and that the district court should have admitted evidence to prove Granite
State's negligent supervision of its agent, Harmon. The insurance licensing statutes require
out-of-state insurers to appoint resident agents or brokers in Nevada to transact business.
However, these statutes are limited in scope and do not govern the general law of agency. As
stated in 16 John Alan Appleman & Jean Appleman, Insurance Law and Practice with Forms
8671, at 182-83 (1981 & Supp. 1991):
Statutes requiring the registering or licensing of insurance agents have no effect on their
powers to bind their principals, and do not change the general laws of agency. Neither
the license granted to an insurance agent nor the statute under which it is issued define
the authority of an insurance agent.
[Headnotes 2, 3]
An agency relationship is formed when one who hires another retains a contractual right to
control the other's manner of performance. Sharp v. W.H. Moore, Inc., 796 P.2d 506 (Idaho
1990). In 1979, Granite State, which is located in New Hampshire, appointed Harmon as its
resident agent pursuant to the licensing statutes, and Harmon countersigned the Gift Shop's
1979 policy as required by NRS 680A.300. The two parties had a simple contractual
relationship to split commissions, but they had no agreement, express or implied, that Granite
State controlled Harmon nor any agreement beyond compliance with licensing requirements
to show that Harmon had authority to act on behalf of Granite State. Because Granite State
and Harmon had no agreement or other manifestation of consent from which to find a
principal-agent relationship, their compliance with Nevada's insurance licensing statutes
alone is an insufficient reason to establish a principal-agent relationship between the parties.
See Pete's Satire, Inc. v. Commercial Union Ins., 698 P.2d 1388 (Colo.Ct.App. 1985) (statute
providing that insurance agents are agents of insurer and brokers are the representatives of
insured does not govern or allocate liabilities for wrongs as among principal, agent, and third
party), aff'd, 739 P.2d 239 (Colo. 1987). Also, when acting on its own initiative, without
being subject to Granite State's direction as to how to negotiate and execute the contract,
Harmon was not acting as an employee of Granite State.
subject to Granite State's direction as to how to negotiate and execute the contract, Harmon
was not acting as an employee of Granite State. See Anderson v. Farm Bur. Mut. Ins. Co. of
Idaho, 732 P.2d 699 (Idaho Ct.App. 1977) (insurance agent whose function is solely to bring
about contractual relations between his principals and others on his own initiative is not an
employee of the insurer). Thus, we conclude that the Nevada statutes which regulate
insurance do not create a principal-agent relationship between Harmon and Granite State.
[Headnote 4]
Although the determination of whether an insurance agent was an agent of the insured or
of the insurer should include consideration of the relevant statutory provisions, see Vina v.
Jefferson Ins. Co. of New York, 761 P.2d 581, 584-85 (Utah Ct.App. 1988), other factors also
merit consideration. In European Bakers, Ltd. v. Holman, 338 S.E.2d 702 (Ga.Ct.App. 1985),
the Georgia Court of Appeals evaluated the following factors in deciding a factually similar
case: (1) the insured's reliance on the agent's judgment and discretion in procuring insurance
coverage, (2) the general rule that an independent insurance agent is considered the agent of
the insured, not the insurer, (3) in dealing with an insured, whether the agent selected which
insurance company to use, (4) whether the agent reviewed the insured's financial records and
made recommendations regarding coverage, (5) whether the agent knew that the insured was
relying on him to explain the insurance policies he procured, and (6) the general rule that
even if the agent acts in a dual agency capacity, he is still the agent for the insured, not the
insurer. Id. at 704.
[Headnote 5]
In the instant case, the Gift Shop had been using Harmon for its insurance needs since the
1960's. Harmon, which was licensed in Nevada as a broker as well as an agent, had advised
the Gift Shop regarding its insurance coverage requirements for the entire period since its
opening. The agency had appointments as a resident agent by five insurance companies. Of
the total insurance premiums collected on policies written through Harmon in 1979,
approximately 25% was based on policies issued by Granite State. In obtaining policies from
Granite State, Harmon dealt with a company known as Western General Agency, which was
the managing general agent for Granite State. Granite State issued policies only through such
intermediaries rather than with the public. Either Harmon or Granite State could revoke
Harmon's agency appointment, and Granite State did not restrict whom Harmon could solicit
as a potential insured. Moreover, Granite State did not require Harmon to submit potential
clients to it exclusively, nor did it require Harmon to produce any specific amount of
premiums for Granite State in order to keep the agency appointment.
exclusively, nor did it require Harmon to produce any specific amount of premiums for
Granite State in order to keep the agency appointment. After Harmon collected its premium
from the insured, it deducted its commission, which was its only compensation, from the
premium and forwarded the remaining portion to Granite State. Also, it was Harmon, not
Granite State, that made the decision to renew the Gift Shop's policy with Granite State.
Thus, because the facts of the instant case are similar to those of European Bakers, where the
independent insurance agent was held to be the agent of the plaintiff-insured, and because of
our application of the European Bakers factors to the facts of the case at bar, we conclude
that Harmon was an agent of the Gift Shop rather than an agent of Granite State.
[Headnote 6]
Therefore, we hereby affirm the district court's decisions to exclude evidence of negligent
supervision and to deny reformation of the contract on the basis of a mutual mistake between
the Gift Shop and Harmon, because those theories of recovery first necessitated a finding that
Harmon was an agent of Granite State.
Granite State's Independent Negligence
The Gift Shop next argues that the district court should have admitted evidence of Granite
State's independent negligence in writing the Gift Shop's business interruption coverage. The
Gift Shop contends that the evidence would have established that Granite State was negligent
in writing the policy, which showed a figure for annual gross sales that was substantially less
than the amount of business interruption coverage. Another alleged discrepancy was that
Granite State's audit before the fire showed annual sales of more than fifteen times the
amount covered in the policy. The Gift Shop contends that these inconsistent figures should
have alerted Granite State's underwriting department that it needed to re-examine the policy,
and that the failure to do so constituted independent negligence. Granite State filed a motion
in limine to preclude the Gift Shop from introducing evidence of Granite State's alleged
independent negligence, and the district court granted that motion to the extent of excluding
an expert witness.
[Headnote 7]
In Hay v. Hay, 100 Nev. 196, 198, 678 P.2d 672, 674 (1984), this court stated that
[b]ecause Nevada is a notice-pleading jurisdiction, our courts liberally construe pleadings to
place into issue matters which are fairly noticed to the adverse party. The Gift Shop observes
that the first amended complaint in the first cause of action states that the Gift Shop
purchased the services and insurance of Granite State," and that Granite State's answer
raises contributory negligence as the sixth affirmative defense.
and insurance of Granite State, and that Granite State's answer raises contributory negligence
as the sixth affirmative defense. Also, the Gift Shop argues that Granite State was included in
the allegation of negligence because it is a named defendant. However, because of the
indefiniteness of the pleadings and the absence of a specific allegation of independent
negligence, we do not agree with the Gift Shop's contentions. Nevada's construction of
pleadings, however, liberal it may be, only extends to matters which are fairly noticed to the
adverse party. We conclude that the pleadings, due to their vagueness, gave Granite State
insufficient notice of the Gift Shop's claim of independent negligence, and that the district
court committed no error in excluding evidence of Granite State's alleged negligence in
writing the policy.
Net Sales and Incremental Rent
The district court held that incremental rent
3
should not be deducted from the gross
earnings to arrive at the net sales, and the Gift Shop contends that this was error because
the district court erroneously defined net sales. The gross earnings section in the policy
defined gross earnings as net sales and other earnings minus the cost of raw stock, supplies,
merchandise sold, and outside services. The policy also provided that no other costs shall be
deducted in determining gross earnings, but, the policy did not define the term net sales.
The Gift Shop argues that the proper standard to apply in the construction of an insurance
contract is how a person untrained in insurance would construe a policy in light of its plain
meaning, and that incremental rent should be deducted from gross earnings in calculating net
sales.
The dispute with respect to net sales and incremental rent requires a brief explanation of
the insurance contract. The policy's Contribution Clause (sometimes referred to as a
co-insurance clause) sets forth the formula for ascertaining what portion of the business
interruption loss is recoverable under the policy. The first calculation is the gross earnings
that the insured would have earned under the policy had there been no loss during the
twelve-month period beginning with the date of the loss. This figure, compared with the
amount of insurance necessary, shows whether the insured has met the policy requirements.
In the instant case, the policy required that the business loss be S0% of the gross earnings to
allow for recovery of 100% of the insured's loss.
__________

3
The district court explained incremental rent as follows:
The lease between the Gift Shop and the MGM Grand Hotel provided that the rent payable by the
Gift Shop would be based on a percentage of the Gift Shop's sales, with a guaranteed minimum annual
rental. The amount of the rent based on the specified percentage of the Gift Shop's sales, which exceeded
the guaranteed minimum annual rental, is referred to as the Incremental Rent.
loss be 80% of the gross earnings to allow for recovery of 100% of the insured's loss. The
amount of insurance purchased determines the potential recovery and the percentage of the
loss that can be recovered. If the Gift Shop's incremental rent were deducted as an ordinary
expense, the figure for gross earnings would be less, and this would translate into a greater
percentage of recovery for the Gift Shop under the co-insurance clause.
[Headnotes 8, 9]
Where a term in an insurance contract is unclear and ambiguous, all doubts are resolved in
favor of the insured. Insurance Corp., of America v. Rubin, 107 Nev. 610, 616, 818 P.2d 389,
392 (1991); Keener v. C.S.A.A., 107 Nev. 504, 506, 814 P.2d 87, 88 (1991). The term net
sales is susceptible to more than one interpretation because reasonable minds may disagree
as to what items should be deducted from the gross earnings to determine the net sales.
Moreover, the Gift Shop introduced evidence that another insurance company allowed a
deduction of incremental rent from gross earnings to determine net sales. We agree with the
Gift Shop that net sales is an elastic term, and it should be construed in accordance with the
understanding of a person unfamiliar with insurance policies. Based on the foregoing reasons,
we conclude that the district court incorrectly defined net sales, and that incremental rent
should be deducted from gross earnings to arrive at net sales. Therefore, we reverse and
remand for a determination of the exact amount of the increase in damages to be awarded to
the Gift Shop.
Notice Pursuant to NRS 687B.350
In an amended judgment, the district court awarded $113,883.00 to the Gift Shop because
Granite State failed to give statutory notice to the Gift Shop. The district court found that
Granite State had violated NRS 687B.350
4
by failing to notify the Gift Shop that the policy
was being renewed without the ordinary payroll exclusion (OPE) coverage that the prior
policy had included. Granite State argues that this interpretation was erroneous because NRS
687B.350 only applies where the insurer offers or purports to renew a policy, and Granite
State made no such unilateral effort to renew the policy on different terms.
__________

4
NRS 687B.350 provides:
If the insurer offers or purports to renew the policy but on different terms, including different rates,
the policyholder shall, for 30 days after he receives notice calling his attention to the changes in the
policy, have the option of canceling it. If he elects to cancel, the insurer shall refund to him the excess of
the premium paid by him above the pro rata premium for the expired portion of the new term.
[Headnotes 10, 11]
The effect of the inclusion of an OPE in a policy is to eliminate coverage under the
business interruption portion of the policy for the costs incurred by a business to keep
non-managerial employees on the payroll during a business interruption period. In this case,
had Granite State included an OPE in the renewed policy, the Gift Shop would have
recovered an additional $113,883.00, which is the amount the district court awarded to the
Gift Shop as damages for Granite State's failure to give proper notice under NRS 687B.350.
The OPE was one of the features in the Gift Shop's prior policy with Granite State, and the
parties purposely bargained for a renewal on the same basis as the prior policy. NRS
687B.350 requires the insurer to notify a policyholder if a policy is renewed with altered
terms. The Gift Shop unequivocally took the position that it would not have accepted a policy
without OPE coverage had it been brought to its attention. Granite State, however, renewed
the policy with altered terms by failing to include the OPE in the policy and by failing to
notify the Gift Shop. The remedy for this dereliction is to treat the policy as having contained
the OPE, as the district court did, because that is the only way the policy would, in effect,
remain unaltered at renewal. Therefore, we conclude that the district court was correct in
granting judgment in the Gift Shop's favor because Granite State failed to comply with NRS
687B.350.
Offer of Judgment; Costs and Attorneys' Fees
[Headnote 12]
The district court's award of costs and attorneys' fees to Granite State was based on a
post-trial recovery by the Gift Shop of $113,883.00, which was less than Granite State's offer
of judgment, which was $125,000.00. The Gift Shop claims that the district court erred with
respect to that award. However, due to the resulting increased recovery for the Gift Shop, our
conclusion as to net sales and incremental rent renders these claims moot. The Gift Shop's
total loss was $999,051.00, and the full policy limit was $960,000.00. Before trial, Granite
State paid $379,546.00 to the Gift Shop, and after the trial the district court allowed an
additional $113,883.00 in damages, for a total of $493,429.00. Testimony indicated that,
given the deduction for incremental rent, the Gift Shop's percentage recovery of its loss would
rise from 49.39 percent to 61.0 percent, which is an increase of $115,989.82. This amount of
additional recovery, added to the award of $113,883.00 which we have affirmed, easily
renders the Gift Shop's total recovery in excess of Granite State's offer of judgment of
$125,000.00. Accordingly, since our decision means that the Gift Shop's recovery will be
greater than the offer of judgment, we hereby vacate the award of costs and attorneys'
fees to Granite State.
decision means that the Gift Shop's recovery will be greater than the offer of judgment, we
hereby vacate the award of costs and attorneys' fees to Granite State.
Conclusion
In summary, we conclude that the district court: (1) properly ruled that Harmon was the
Gift Shop's agent and it was not Granite State's agent, (2) properly ruled that Harmon was not
the agent of Granite State for the purposes of proving negligent supervision, (3) properly
denied reformation of the policy, and (4) properly excluded evidence of Granite State's
alleged independent negligence. However, the district court erred in its definition and
application of the terms net sales and incremental rent. We further conclude that the district
court did not err in awarding damages to the Gift Shop based on the absence of statutory
notice from Granite State as to renewal of the policy without OPE coverage, but we vacate
the award of costs and attorneys' fees to Granite State because our ruling on the issue of
incremental rent will result in an award to the Gift Shop in excess of Granite State's offer of
judgment.
For the reasons set forth above, we remand this case to the district court for proceedings
Springer, V. C. J., Rose, Steffen and Young, JJ., and Shearing, D. J.,
5
concur.
____________
108 Nev. 821, 821 (1992) Busch v. Flangas
MARY BUSCH, Appellant, v. PETER L. FLANGAS, Individually, and DELWIN
POTTER, Individually, Respondents.
No. 21489
September 15, 1992 837 P.2d 438
Appeal from an order of the district court granting respondents' motions for summary
judgment in a legal malpractice action. Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Business seller sued attorney and law clerk, alleging that law clerk's failure to file UCC-1
financing agreement resulted in seller's loss of interest in equipment, and that attorney was
liable for clerk's negligence. The district court granted defendant's motion for summary
judgment.
__________

5
The Honorable Miriam Shearing, Judge of the Eight Judicial District Court, was designated by the
motion for summary judgment. Seller appealed. The supreme court held that genuine issues
of material fact existed as to whether sale required filing of UCC-1 financing agreement, and
as to whether attorney was responsible for supervising clerk's work.
Springer, J., and Leavitt, D. J.,
1
dissented.
Corby D. Arnold and Michael F. Bohn, Las Vegas, for Appellant.
Peter L. Flangas and Delwin Potter, in Proper Person, Las Vegas, for Respondent.
In reviewing grant of summary judgment, supreme court accepts as true all evidence and reasonable inferences favorable to party
against whom summary judgment was entered. NRCP 56(c).
2. Judgment.
Even if both parties move for summary judgment, district court is not relieved of its responsibility to determine whether genuine
issues of fact existed. NRCP 56(c).
3. Secured Transactions.
True lease, in contrast to secured sale, is not subject to provisions of Uniform Commercial Code.
4. Judgment.
Genuine issue of material fact, precluding summary judgment for law clerk in action by business seller for whom law clerk
prepared documents for sale, existed as to whether transaction required UCC-1 financing statement, which clerk failed to file, to secure
seller's interest in bakery equipment.
Law clerk can be subject to legal malpractice claim if he attempts to provide legal services.
6. Judgment.
Genuine issue of material fact, precluding summary judgment for attorney in legal malpractice action by business seller who lost
her interest in equipment allegedly due to law clerk's failure to file UCC-1 financing agreement, existed as to whether attorney was
responsible for supervising clerk's work.
OPINION
Per Curiam:
Appellant Mary Busch is the former owner of the Busch Bavarian Pastry Shop.
__________

1
The Honorable Myron E. Leavitt, Judge of the Eight Judicial District Court, was designated by the
Bavarian Pastry Shop. In 1984, Busch agreed to sell the shop. A customer suggested that
Busch contact respondent Delwin Potter, who worked for respondent Peter Flangas, to help
draw up documents pertaining to the sale of the bakery. Believing Potter to be a lawyer,
Busch contacted Flangas' law office and made an appointment with Potter. Potter was in fact
a law clerk employed by Flangas. The necessary documents for the sale of the bakery were
prepared, but a UCC-1 financing statement necessary to the perfecting of Busch's security
interest in the bakery equipment pending final payment was never filed. The buyers failed to
satisfy their financial obligation to Busch and eventually filed bankruptcy. Busch, as an
unsecured creditor, lost her interest in the bakery equipment.
Busch instituted a malpractice action against Potter and Flangas, alleging that Potter's
negligence caused her to lose her security interest in the bakery equipment. Busch claimed
that Flangas was also liable for his employee's negligence. Potter and Flangas claimed that
another attorney had supervised Potter's work, thus relieving both of them of any liability.
The district court granted summary judgment in favor of Potter and Flangas, and Busch
appealed. We reverse.
[Headnote 1]
Summary judgment is appropriate only where there are no genuine issues of material fact
to be resolved, and the moving party is entitled to judgment as a matter of law. NRCP 56(c).
In reviewing a grant of summary judgment, this court accepts as true all evidence and
reasonable inferences favorable to the party against whom summary judgment was entered.
Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989).
[Headnote 2]
Even though both parties moved for summary judgment, this did not relieve the district
court of its responsibility to determine whether genuine issues of fact existed. Ardmore
Leasing Corp. v. State Farm Mut. Auto. Ins. Co., 106 Nev. 513, 796 P.2d 232 (1990). Our
review of the record reveals the existence of disputed material facts concerning the issue of
Potter's and Flangas' liability. Summary judgment was therefore improper.
[Headnote 3]
The district court determined that the document transferring the bakery was a lease, rather
than a secured sales agreement. A true lease, in contrast to a secured sale, is not subject to the
provisions of the UCC. U C Leasing, Inc. v. Laughlin, 96 Nev. 157, 606 P.2d 167 (1980). We
find ample evidence indicating that the agreement was in fact a secured sale, thus requiring
the filing of a UCC-1 financing agreement in order to protect Busch's interest in the bakery
equipment.
interest in the bakery equipment. This interpretation of the agreement is supported in the
record which reveals that Busch intended to sell the bakery, and signed a document entitled
sales agreement. The agreement identified the parties to the transaction as buyers and
sellers, and the consideration for the sale was labelled as the purchase price.
Significantly, even the respondents refer to the transaction as a sale in their motions below.
[Headnotes 4, 5]
Busch presented substantial evidence indicating that the transaction required a UCC-1
financing statement, which Potter failed to file, to secure her interest in the bakery equipment.
Although Potter is not an attorney, he can be subject to a legal malpractice claim if he
attempts to provide legal services. See Bowers v. Transamerica Title Ins. Co., 675 P.2d 193
(Wash. 1983). Therefore, summary judgment was improperly granted as to Potter.
[Headnote 6]
Flangas contends that he cannot be liable for malpractice because he never met Busch nor
attempted to provide legal services for her. Clearly, this contention is without merit. Busch's
claim against Flangas states a cause of action on a respondeat superior theory. Thus, Flangas
may be liable for Potter's negligence if Potter was acting within the scope of his employment
when he performed services for Busch. Molino v. Asher, 96 Nev. 814, 618 P.2d 878 (1980).
Respondents concede that Potter was employed by Flangas, but claim that on this occasion
Potter was supervised by another attorney
2
who maintains a separate practice, but who
nevertheless occasionally utilized the services of Potter or Flangas' secretaries.
Busch claims that Flangas was responsible for supervising Potter's work, and attached to
her opposition to the motions for summary judgment copies of Potter's paychecks from
Flangas covering the period of time when Potter performed services for Busch. At a
minimum, Busch raised a genuine issue below as to Flangas' liability. Therefore, summary
judgment was improperly granted as to Flangas. NRCP 56(c).
After careful consideration, we have determined that the other issues raised by the parties
are without merit. The summary judgment in favor of respondents is reversed, and the case is
remanded to the district court for a trial on the merits.
Springer, J., with whom Leavitt, D. J., agrees, dissenting:
I conclude that the trial court was correct in granting summary judgment; therefore, I
respectfully dissent.
__________

2
The statute of limitations has run against this other attorney, precluding a claim against him.
The Flangas Judgment
The case against Flangas is based on actual negligence on his part and not on vicarious
liability. An employer is liable for an employee's acts which the employer authorized or
ratified, upon familiar principles of negligence and agency. Vicarious liability, on the other
hand, is based on conduct which is not the conduct of the employer but which extends to any
and all tortious conduct which an agent performs within the scope of employment. Busch
does not plead a case for vicarious liability nor does she aver that all of Potter's tortious acts
were done in the scope of his employment for Flangas.
Rather than trying to impute Potter's negligence to Flangas under the doctrine of
respondeat superior, Busch's complaint charges specific and independent negligence on the
part of Flangas. According to the complaint, Flangas knew that Defendant Potter was
representing himself as an attorney and performing legal services on behalf of Defendant
Flangas. In other words, Flangas knowingly let a non-lawyer work in his office as a lawyer.
There is no evidence that this charge is true.
Busch argues in her Opposition to Motion for Summary Judgment that Potter is guilty of
malpractice per se. This may be true, but absent an allegation that such untoward and
outrageous action by Potter was done in the scope and power of his employment by Flangas,
no vicarious liability can exist.
1

Because there is no claim for vicarious liability and because there is no evidence to
support actual negligence on the part of Flangas, I would affirm the trial court's summary
judgment in his favor.
The Potter Judgment
The gist of Busch's claim against Potter is that Potter represented himself to Plaintiff as
an attorney and further represented that he was competent and able to prepare all documents .
. . and . . . to protect the Plaintiff's [legal] interests, and that Potter was then guilty of legal
malpractice when he negligently failed and omitted to cause the UCC-1 Financing Statement
to be filed with the appropriate agency.
If, as is clearly the case, Potter had not represented himself to Plaintiff as an attorney, he
could not, of course, have undertaken the duty to prepare all documents nor to fully
protect the Plaintiff's [legal] interests. By Busch's own testimony, neither Flangas nor Potter
ever represented that Potter was a lawyer. Busch assumed that Potter was a lawyer because
one of her customers at the bakery told her so.
__________

1
In the mentioned Opposition papers, Busch tardily mentions the theory of respondeat superior, but
neither the compliant nor the motion documents support this kind of claim of liability.
customers at the bakery told her so. There is no evidence that Potter was either acting as a
lawyer or representing himself to be a lawyer. According to Potter's affidavit, he prepared the
documents in question at the behest of and under the supervision of another attorney, John
Stone. I believe that the trial court was correct in concluding that there was no evidence to
support the allegation that Potter represented himself to Plaintiff as an attorney or that as a
non-attorney working for attorney Stone, Potter owed a duty to Busch relative to the
preparation and filing of the UCC documents. I would affirm the trial court's summary
judgment in favor of Potter.
____________
108 Nev. 826, 826 (1992) Stumpf v. Lau
FELIX F. STUMPF, FAUN DIXON, and DONALD CARLSON, Petitioners, v.
CHERYL A. LAU, in Her Capacity as Secretary of State, Respondent.
No. 23517
September 18, 1992 839 P.2d 120
Original proceedings in mandamus.
Petitioners sought writ of mandamus directing Secretary of State to remove from
November ballot an initiative proposal which placed limits on the number of terms a United
States Congressman or Senator from Nevada could serve. The supreme court, Springer, V. C.
J., held that proposal would violate the United States Constitution.
Writ made permanent.
Steffen and Young, JJ., dissented.
Bible, Hoy, Trachok, Wadhams & Zive, Reno; Hamilton & Lynch, Reno; Richard E.
Thornley, Carson City; John Calvin Jeffries, Jr., Charlottesville, Virginia, for Petitioners.
Frankie Sue Del Papa, Attorney General, Kateri Cavin, Deputy Attorney General, Carson
Susan Quig-Terry, Las Vegas, for Nevadans for Term Limits.
1. Mandamus.
Mandamus ordering Secretary of State to remove from November ballot an initiative proposal which sought to place limits on
number of terms a United States Congressman or Senator from Nevada could serve, was proper to remedy improper initiative.
2. Injunction.
If proposed amendment to the Nevada Constitution by its terms specifically and necessarily violates command or
limitation of the United States Constitution, and would inevitably be futile and nugatory and incapable of
being made operative under any conditions and circumstances, the prescribed legal procedure for
submitting such proposed legal amendment to electorate may be enjoined by a proper party in order to
avoid expense of submission.
108 Nev. 826, 827 (1992) Stumpf v. Lau
specifically and necessarily violates command or limitation of the United States Constitution, and would inevitably be futile and
nugatory and incapable of being made operative under any conditions and circumstances, the prescribed legal procedure for submitting
such proposed legal amendment to electorate may be enjoined by a proper party in order to avoid expense of submission.
3. States; United States.
State limits on number of terms that could be served by United States Congressmen or Senators would violate qualification clauses
of Article I of the United States Constitution. U.S.C.A.Const. art. 1, 2, cl. 2, 3, cl. 3.
Initiative proposing limits on number of terms that could be served by United States Congressmen or Senators was subject to
removal from ballot by court as it could not be implemented in constitutional manner and there was no public utility in burdening the
already strapped public fisc with expense that would be incurred by placing meaningless question on the ballot, conducting election,
and tallying votes, even where balloting would allow voters to express their views.
5. Constitutional Law; Statutes.
Failure of drafters of initiative proposing state limits on number of terms that could be served by United States Congressman or
Senator to specify whether proposal sought to enact law or amend constitution was not merely an obscurity of language but a fatal
omission that effectively prevented signers from knowing what they were signing. Nev. Const. art. 19, 2(1).
6. Statutes.
One who is not a registered voter at time he or she signs petition is not empowered to sign validating affidavit. Nev. Const. art. 19,
3.
OPINION
By the Court, Springer, Vice-Chief Justice:
[Headnote 1]
On August 19, 1992, this court issued an alternative writ of mandamus to the Secretary of
State ordering the Secretary either to remove from the November ballot an initiative proposal
that seeks to place limits on the number of terms a United States Congressman or Senator
from Nevada may serve, or show cause why the proposal should not be rejected.
1
The writ
was issued on three grounds.
__________

1
The initiative reads as follows:
TERM LIMITATIONS FOR FEDERAL OFFICE HOLDERS.
Section 1 This act may be cited as and referred to as, the Term Limitation Act of 1992.
Section 2 Findings and declarations: The people of the State of Nevada hereby find and declare as
follows:
Section 2.1 Federal representatives who remain in office for extended periods of time become
preoccupied with their own reelection
108 Nev. 826, 828 (1992) Stumpf v. Lau
three grounds. First, it appeared that if the initiative were approved by the voters, Nevada
would be approving a law or an amendment of the state constitution that was violative of the
United States Constitution and clearly beyond the powers of this state to enact. Second, it
appeared that the initiative failed to gather sufficient valid signatures to qualify under the
Nevada Constitution for placement on the ballot.
__________
and for that reason devote more effort to campaigning for their office than making legislative decisions
for the good of the people of Nevada;
Section 2.2 Federal representatives have become too closely aligned with the special interest groups
who provide contributions and support their reelection campaigns, provide special favors and intense
lobbying, all of which causes [sic] corruption or the appearance of corruption of the legislative system;
Section 2.3 Entrenched incumbency has discouraged qualified citizens from seeking office and leads
to a lack of competitiveness and a decline in robust debate on issues important to the people of Nevada;
Section 2.4 Due to the appearance of corruption and the lack of competitiveness for entrenched
incumbency seats, there has been a reduction in voter participation which is counter-productive in a
representative democracy;
Section 2.5 The people of the State of Nevada have determined that the declarations and findings
contained herein threaten their vital interest in maintaining the integrity of their federal office holders and
avoiding the appearance of corruption and lack of response to the needs of the people of Nevada. It is
their purpose and intent in enacting this law that term limitation is the best method by which to insure that
these vital interests are guarded for the people of the State.
Section 3 Notwithstanding any other provision of Nevada law, the Secretary of State or other
authorized official, will not accept or certify a person's nomination petition, nor print or cause to be
printed on any ballot or ballot label for the office specified, the name of any person, if any of the
following shall occur:
Section 3.1 The person who by the end of the current term of office will have served, or but for
resignation, would have served as a representative from Nevada to the United States House of
Representatives for six (6) or more years in any twelve (12) year period of time, except that, any time
served in the United States House of Representatives, prior to January 1, 1995, shall not be counted for
purpose [sic] of this term limit.
Section 3.2 The person who by the end of the current term of office will have served, or but for
resignation, would have served as a representative from Nevada to the United States Senate for twelve
(12) or more years in any twenty-four (24) year period, except that, any time served in the United States
Senate, prior to January 1, 1995, shall not be counted for purposes of this term limit.
Section 4 The term limit set forth in Section 3 above shall apply only to the specific office referenced
in which the person previously served. It is not the intent that this act preclude or prohibit a person from
seeking nomination or election to any other office for which the referenced term limits are not applicable.
Section 5 If any part of this measure or the application to any person or circumstance is held invalid,
the invalidity shall not affect other provisions or application, [sic] which reasonably can be given effect
without the invalid provision or applications.
108 Nev. 826, 829 (1992) Stumpf v. Lau
Constitution for placement on the ballot. Third, it appeared that the initiative was so poorly
drafted that signers of the initiative petition were not advised as to whether they were seeking
enactment of a law or an amendment to the Nevada Constitution. Mandamus is the proper
remedy in such controversies. See, e.g., Lundberg v. Koontz, 82 Nev. 360, 418 P.2d 808
(1966) (in challenge to legal sufficiency of an initiative petition this court issued an
alternative writ of mandamus which the court later made permanent).
[Headnote 2]
After examining the written responses to the mandamus petition and listening to the oral
arguments of counsel, the true nature of this initiative effort began to unfold: the initiative
was designed not to change the law or the constitution but to let the people express
themselves in what would amount to a straw poll or statement of public opinion on the
question of how many voters favored or disfavored changes in the terms of our United States
Senators and Congressmen. We heard no serious argument claiming that the people of this
state, through the initiative process provided for in our state constitution, had the power to
interfere with the qualifications and term limits of federal office holders. We received no
acceptable explanation of how an initiative petition could bring about an amendment of the
Nevada Constitution when the initiative did not mention the Nevada Constitution or even the
word, amend. The insufficiency in the number of valid signatures that appears from the
record before us was not cogently argued on the merits but, rather, was dismissed with the
argument that only a trial court could deal with such factual matters. Counsel for the
Secretary of State argued that the mere fact that the initiative might be unlawful is not enough
to disqualify the petition. Counsel for the initiative petitioners argued that people have the
right to propose an idea; and if they have enough signatures, they have the right to vote on it.
Even one of this court's justices wondered if it might not be proper to allow the matter on the
ballot just so the people would be able to express their views. This, then, is the real
question: Should this court reject a proper challenge to the initiative process and thereby
approve a statewide balloting whose only purpose is to allow the people to express their
views, when all concerned appear to recognize that voter approval would enact a proposition
that was contrary to the Constitution of the United States and would not have any legal force
or effect? We answer the question in the negative and hold, as we did in Caine v. Robbins, 61
Nev. 416, 131 P.2d 516 (1942), that
[i]f a proposed amendment to the state Constitution by its terms specifically and
necessarily violates a command or limitation of the Federal Constitution, . . . the
prescribed legal procedure for submitting such a proposed amendment to the
electorate . . . may be enjoined at the suit of proper parties in order to avoid the
expense of submission, when the amendment, if adopted, would palpably violate
the paramount law and would inevitably be futile and nugatory and incapable of
being made operative under any conditions and circumstances.
108 Nev. 826, 830 (1992) Stumpf v. Lau
terms specifically and necessarily violates a command or limitation of the Federal
Constitution, . . . the prescribed legal procedure for submitting such a proposed
amendment to the electorate . . . may be enjoined at the suit of proper parties in order to
avoid the expense of submission, when the amendment, if adopted, would palpably
violate the paramount law and would inevitably be futile and nugatory and incapable of
being made operative under any conditions and circumstances.
Id. at 425, 131 P.2d at 519 (quoting Gray v. Winthrop, 156, So. 270, 272 (Fla. 1934)).
I.
Violation of the Paramount Law
Opponents to the mandamus petition now before us made little or no argument urging that
the people of this state have the power to alter the qualifications or terms limits of federal
offices created by the Constitution of the United States. Not even Congress has the power to
alter qualifications for these federal constitutional officers. See Powell v. McCormack, 395
U.S. 486 (1969). As this court noted in State ex rel. Santini v. Swackhamer, 90 Nev. 153,
155, 521 P.2d 568, 569 (1974) (quoting 1 Story on the Constitution, (5th Ed. 627)), [t]hose
officers owe their existence and functions to the united voice of the whole, not of a portion of
the people. Further, as Justice Story has observed, the States can exercise no powers
whatsoever which exclusively spring out of the existence of the national government . . . .
Id. Thus, the initiative petition, whether it enacts a law or amends the state constitution, can
have no effect on the terms of members of the United States Congress.
[Headnote 3]
This point need not be overly belabored. The term limits initiative clearly and palpably
violates the qualifications clauses of Article I of the United States Constitution.
2
No case
authority has been offered in support of the novel proposition that this or any state has the
power to impose qualifications for federal office provided for in the United States
Constitution. Again, the only question is whether, under these circumstances, the people
should vote on a moot issue.
3
Citing our recent decision in Las Vegas Chamber of
Commerce v. Del Papa, 106 Nev. 910
__________

2
See U.S. Const. art. I, 2, cl. 2; U.S. Const. art. I, 3, cl. 3.

3
The dissent suggests that our decision will disenfranchise the voters and prevent them from participating in
a groundswell of support for federal term limits. No citizen has a right to participate in a straw poll on an
amendment to the State Constitution that clearly violates the United States Constitu-
108 Nev. 826, 831 (1992) Stumpf v. Lau
Citing our recent decision in Las Vegas Chamber of Commerce v. Del Papa, 106 Nev.
910, 802 P.2d 1280 (1990), respondent and the Nevadans for Term Limits (NTL) contend
that this court should decline to determine whether the federal term limits initiative violates
the United States Constitution. Our decision in Las Vegas Chamber of Commerce, however,
did not overrule our holding in Caine, a holding which has remained inviolate in an
unbroken line of cases that has stood for almost fifty years. Las Vegas Chamber of
Commerce, 106 Nev. at 916, 802 P.2d at 1281. To the contrary, this court twice cited Caine
with approval in the Las Vegas Chamber of Commerce case. Caine stands today and has
stood ever since its issuance in 1942 for the proposition that a ballot question may be
enjoined by this court where the question, if enacted, would constitute a plain and palpable
violation of the United States Constitution and would inevitably be futile and nugatory and
incapable of being made operative under any conditions or circumstances. Id. at 425, 137
P.2d at 519 (quoting Gray v. Winthrop, 156 So. 272 (Fla. 1934)). See also Advisory Opinion
to the Atty. Gen., 592 So.2d 225, 229 (Fla. 1991) (Overton, J., dissenting in part and
concurring in part).
[Headnote 4]
In Las Vegas Chamber of Commerce, this court addressed a ballot question that arguably
might have been applied in a constitutional manner. Unlike the ballot question at issue in Las
Vegas Chamber of Commerce, the ballot question in the instant case falls squarely into the
category of initiative measures defined in Caine which are subject to removal by this court.
The question here cannot be implemented in a constitutional manner, and we envision no
political utility in burdening an already strapped public fisc with the expense that would
inevitably be incurred by placing a meaningless question on the ballot, conducting the
election, and tallying the votes. As we noted in Caine:
To deny the jurisdiction of courts in a case of this character, where a plain, palpable
violation of the constitution is threatened, would be to concede that irreparable injury,
obvious and undisputed, was beyond the restraint of the remedial arm of equity.
Id. at 427, 131 P.2d at 520.
__________
tion. When a proposal is obviously unconstitutional, permitting a vote on the matter will lead only to the creation
of false hope and, if passed, eventual anger and disillusionment when the measure is declared unconstitutional. It
is far better to bite the bullet now, strike the measure from the ballot, and avoid the expense and any false
expectations for the proposal.
108 Nev. 826, 832 (1992) Stumpf v. Lau
II
Failure of Initiative to Define Nature or Purpose of Proposed Enactment
[Headnote 5]
As a justice of this court commented at the time of oral argument, The word constitution
does not appear, in the initiative petition. There is nothing that would prevent the Secretary
of State from drafting the initiative petition's proposals as a statutory enactment rather than as
a constitutional amendment. The potential signers certainly were given no indication on the
form that they signed that they were urging such momentous action as amending our state
constitution. The Nevada Constitution is the fundamental law of our state, and if it is to be
amended by an initiative, potential signers are to be made specifically aware of the solemnity
of their act in signing that they may do so with full appreciation of the fact that they are
participating in an effort to change the fundamental law, i.e., the constitution of their state.
State ex rel. Scott v. Kirkpatrick, 484 S.W.2d 161, 164 (Mo. 1972). In Scott, the Missouri
State Constitution required the enacting clause in an initiative to state that the constitution
would be amended. Our constitution requires that there be an enacting clause stating: The
People of the State of Nevada do enact as follows[]. Nev. Const. art. 19, 3(1). When a
constitutional amendment is being proposed, one would expect to find, after recital of the
required enacting clause, some kind of proposal or declaration that the constitution was being
amended, thus: The People of the State of Nevada do enact as follows: The Constitution of
Nevada, Article
------
., Section
------
, is hereby amended to read as follows:
------
'
Without language specifying whether the initiative is intended to create a law, amend a law or
amend the constitution, the Secretary of State has no guidance as to how the ballot
proposition is to be drafted. This failure to specify the nature and purpose of the initiative is
not merely an obscurity of language; it is a fatal omission that effectively prevents the signers
from knowing what they are signing. If initiative petition signers are petitioning for enactment
of a state law, the petition should state that law enactment is what the petition is about. If the
petition signers are going further and seeking to amend the state constitution, certainly they
should say this in their petition and not leave the choice up to the Secretary of State. The idea
that all a petition for initiative must contain is a loose collection of ideas that can be crafted
into legislative or constitutional form by the Secretary of State is contrary to the basic nature
of the initiative process. Article 19, section 2(1) of the Nevada Constitution gives to the
people the power to propose . . . amendments to this constitution. . . ."
108 Nev. 826, 833 (1992) Stumpf v. Lau
constitution . . . . If the people are going to propose an amendment to the constitution, they
must propose an amendment as an amendment to the constitution and not as a mere law nor
as a loosely worded aggregate of ideas and philosophical ruminations. The initiative petition
before us is not even ambiguous. It refers to a law, an act, not a constitutional amendment.
(This act may be cited and referred to as the Term Limitation Act of 1992.' (Emphasis
added.)) It is not difficult to find case authority for the proposition that an initiative petition
signer must be informed at the time of signing of the nature and effect of that which is
proposed. Failure to so inform the signatories and voters is deceptive and misleading, and
therefore the Petition is invalid. In re Initiative Petition No. 344, 797 P.2d 326, 330 (Okla.
1990). We cannot assume that people are indifferent whether they are asked to approve an
ordinary law or to amend their constitution. Oregon State Homeowner's Ass'n v. Roberts,
703 P.2d 954, 955 (Or. 1985).
Our constitution is too sacred a document to be amended by way of an initiative petition
that does not mention the constitution and which is framed in terms of an ordinary law, an
Act. The initiative petition clearly must fail on this ground alone.
III
Insufficiency of Signatures
[Headnote 6]
With regard to the petitions from two counties, Carson City and Lyon County (or Lion
County as it appears in the answer filed by Nevadans for Term Limits), it is clear from the
record before us that these petitions cannot qualify.
In Carson City, one William Elton Harvey circulated documents 73 through 82. On May 9,
1992, Harvey signed each document in the space provided. On each of the documents were
also Harvey's validating affidavit sworn to on May 9, 1992. On May 9, 1992, when he signed
the petition documents and the affidavits, he was not a registered voter. If because of Harvey's
ineligibility to execute the validating affidavits these documents are not valid, the petition
fails in Carson City.
In Lyon County, one Jeanette B. Smith circulated a twenty-five-signature document which
she signed on May 28, 1992. On May 28, 1992, however, she was not a registered voter. If
the twenty-five-signature document is not valid, the petition fails in Lyon County. If Lyon
County and Carson City do not qualify, the whole initiative fails.
The question is a very simply one: Is one who is not a registered voter at the time he or she
signs the petition empowered to sign the validating affidavit required by article 19, section 3
of the Nevada Constitution?
108 Nev. 826, 834 (1992) Stumpf v. Lau
3 of the Nevada Constitution? The answer is clearly, no, and since these documents do not
contain the required affidavit, they must be discarded.
Article 19, section 3(1) of the Nevada Constitution requires that each signer of an
initiative petition must affix the signature, residence address and the county in which he or
she is a registered voter. The constitution goes on to provide that each document of the
petition must have an affidavit made by one of the signers of such document . . . .
(Emphasis added.) The necessary and indispensable affidavit must say that (1) all of the
signatures are genuine and (2) that each individual who signed such document was at the
time of signing a registered voter . . . . (Emphasis added.) Because Ms. Smith in Lyon
County and Mr. Harvey in Carson City were not registered voters at the time that they signed
the petition, they clearly were not signers as defined by the Nevada Constitution. Only
registered voters can be signers; and since they were not registered voters at the time, they
could not be signers. The validating affidavit on each document must be made by one of the
signers of the document. It is a legal impossibility for either Ms. Smith or Mr. Harvey to
have been a signer at the time they put their signatures to the documents in question; hence,
they were not qualified under our constitution to execute the validating affidavit that is
required by the constitution. There can be no argument about this. This is not a matter of
appellate fact-finding. This is not a matter that need be sent back to the trial court for hearing.
The record is plain. No one has suggested that the signers of the subject affidavits were in fact
registered voters at the time they signed the petition documents and were thus qualified to
make the validating affidavit.
There is no way on the record as it now stands that the initiative petition can be said to
have the required number of valid signatures. It may be stricken from the ballot on this
ground alone.
4

IV.
Conclusion
As Justice Steffen pointed out at oral argument, the obvious and proper way of going
about effecting changes in the terms of federal constitutional officers is to amend the
Constitution of the United States.
__________

4
There are a fairly large number of other jurisdictional defects which probably would be established where
time available. The petition effort appears to have been conducted by mercenaries from outside of the state. A
number of petitions fail to state the proper date or to state the county name. One petition document in Washoe
County contains an unsigned affidavit which was nonetheless notarized as having been [s]ubscribed to before
[the notary]. Since the deficiencies in Carson City and Lyon County are so apparent and indisputable, we do not
give further consideration to the remaining defects.
108 Nev. 826, 835 (1992) Stumpf v. Lau
United States. Obviously, the people of this state, either by ordinary act or by constitutional
amendment adopted through the initiative process, are not empowered to intrude into this
clearly federal ground. It is also apparent that the initiative petition now before us is totally
ineffective as an instrument of constitutional amendment; and, finally, the petition has an
insufficient number of valid signatures. Still, we hear the cry that we should ignore all of this
and let the matter go on the ballot just to see what would happen. Those who make this idle
demand should reflect upon the consequences of this court's falling away from its clear duty
to interpret and enforce the law. Must those who are right, those who have come to us to tell
us correctly that this proceeding is constitutionally insupportable under either the Nevada or
the United States Constitution, be turned away, while we rule in favor of those who want us
to let an almost admittedly ineffective initiative proceeding take its course through the
elective process? We need not calculate or estimate the cost of playing such games to predict
that necessarily either side of this issue will be expected to expend substantial funds on
political advertising and considerable human energy in furthering one side of this issue or the
other. It is interesting to speculate as to just when those who urge that this proposition remain
on the ballot would wish us to perform our judicial duties if we do not perform them now. It
is, of course, possible that the measure would fail in one of the elections. This would
diminish the amount of unnecessary mischief brought about by our failure to exercise our
judicial duties in a timely way, depending, of course, on when the measure failed. If the
measure were to fail on the second ballot, it is certain that large sums of money and human
resources would have been expended in the first balloting for advancing either side of this
invalid proposition. The most harm would be done, however, if the measure passed in two
elections, and this court were then asked in some later legal maneuver to tell the voters that
their vote was of no effect and that we knew all along that they were voting on a measure that
was contrary to the provisions of the United States Constitution, and was based on an invalid
petition that had been worded and circulated in a manner that did not conform to the Nevada
Constitution. Were we, at a later date, after the voters had twice approved the measure, to
declare that the term limit proposition was, just as its proponents suggest, merely a straw poll
and of no legal force or effect, the people of this state would be understandably and justifiably
outraged and enraged at such irresponsibility on the part of the highest court in this state. As
put by the Oklahoma Supreme Court last month when it removed an initiative question from
the ballot because it would have, if enacted, violated the United States Constitution: "It
would be a disservice to the proponents, to the protestants, and to the state's citizens to
hold an election that could not withstand the immediate . . . challenge that would be
bound to follow."
108 Nev. 826, 836 (1992) Stumpf v. Lau
It would be a disservice to the proponents, to the protestants, and to the state's citizens to
hold an election that could not withstand the immediate . . . challenge that would be bound to
follow. See In re Initiative Petition No. 349, 838 P.2d 1.
The proposed Term Limitation Act, as it is called, cannot be allowed to stay on the ballot.
Elections in this state are not games or straw polls. If the initiative attempt must fail, it must
fail now and not after public and private time, money and energy have been expended in the
political process. We would be shirking our duty indeed if we failed to act in this manner
now. The writ is made permanent; the Secretary of State is ordered to remove the matter from
the ballot.
Rose, J., and Handelsman, D. J.
5
concur.
Steffen, J., with whom Young, J., joins, dissenting:
The majority has hastily painted a picture highlighting the blemishes on the challenged
initiative (hereafter initiative or Question 7). Unfortunately, the majority's preoccupation
with the blemishes seems to have obscured what I believe to be the more comely part of the
picture. Discussing perspective has little value, however, as the metaphoric picture to which I
make reference has the force of law behind it that disenfranchises the right of Nevada's
citizens to participate in the completion of the painting. Casting aside this court's tribute to
the value of public sentiment, Las Vegas Chamber of Commerce v. Del Papa, 106 Nev. 910,
802 P.2d 1280 (1990), the majority hastens to resolve highly complex issues of first
impression to create a foundation for issuing a discretionary writ enjoining a public vote on a
subject of great current interest in this nation. My basis for dissenting has far more to do with
the timing and the scope of the majority opinion than it does with its analysis of the defects in
the initiative and the prospects for the initiative's constitutional validity if it were to succeed
as an amendment to the Nevada Constitution. The majority, not unreasonably convinced that
passage of Question 7 would provide but a fleeting victory to be dashed by a subsequent
challenge in the courts, has elected to spare the electorate the possible frustration of being
advised that they have voted in vain. For reasons I shall endeavor to express hereafter, I
believe that, from the voters' standpoint, it is "far better to have spoken and lost, than to
have never spoken at all."
__________

5
The Honorable John Mowbray, Chief Justice, voluntarily recused himself from participation in the decision
of this matter. The Honorable Mark Handelsman, Judge of the Second Judicial District Court, was therefore
designated by the Governor to sit on this case, and has participated in its decision after full review of all briefs,
the record, the exhibits and the recording of the oral argument heretofore heard by the court. Nev. Const. art. 6,
4.
108 Nev. 826, 837 (1992) Stumpf v. Lau
believe that, from the voters' standpoint, it is far better to have spoken and lost, than to have
never spoken at all.
I suggest initially, that stare decisis demands that this court ask and answer in a legally
defensible way at least one threshold question before reaching the merits of petitioners'
federal constitutional arguments. In Caine v. Robbins, 61 Nev. 416, 131 P.2d 516 (1942), this
court held that a proposed amendment to the state constitution may be enjoined (emphasis
added) where the question, if enacted, would constitute a plain and palpable violation of the
United States Constitution and would inevitably be futile and nugatory and incapable of
being made operative under any conditions or circumstances. Id. at 425, 137 P.2d at 519
(quoting Gray v. Winthrop, 156 So. 270, 272 (Fla. 1934)). I emphasize the discretionary word
may because it is clear that even where this court is convinced that an initiative is fatally
endowed with unconstitutionality, we may nevertheless choose not to interfere in the process
of public expression.
Less than two years ago this court announced:
[E]ven if an initiative measure is unconstitutional, there is great political utility in
allowing the people to vote on the measure. Such a vote communicates clearly to the
representative branches of government the popular sentiment on a particular issue or
issues.
See Las Vegas Chamber of Commerce v. Del Papa, 106 Nev. 910, 917, 802 P.2d 1280, 1282
(1990). Thus, while simultaneously reaffirming the vitality of Caine, we proceeded in Las
Vegas Chamber of Commerce to recognize a predominate value in public expression even if
an initiative measure is unconstitutional. In brief, Las Vegas Chamber of Commerce
represented a policy decision by this court that our decision to intervene in such matters
should be strongly tempered by deference to the people's right to express themselves through
the ballot. Stated otherwise, Las Vegas Chamber of Commerce emphasizes in unmistakable
terms this court's recognition of the guarantees of freedom of expression and the right to vote
as among the most cherished rights conferred by the constitution. In light of our ruling in Las
Vegas Chamber of Commerce, the threshold question now should be, why should this court
hastily exercise its discretion in order to deprive Nevada voters of the right of expression that
we found to be so significant and compelling in Las Vegas Chamber of Commerce?
This matter came to this court slightly less than one month ago. Orderly and measured
appellate consideration of the issues presented by the parties has been severely constrained by
the need to allot adequate time to election officials to carry out their statutory duties and to
prepare and disseminate the general election ballots to resident and absentee voters.
108 Nev. 826, 838 (1992) Stumpf v. Lau
duties and to prepare and disseminate the general election ballots to resident and absentee
voters. See NRS 293.253; 293.309. We have been required to employ expedited procedures in
an effort to accelerate resolution of the merits of this matter and in order to prevent significant
disruption to the election process. We have been equally pressed by the demands of the oral
argument calendar and the time limitations resulting therefrom. Thus, in the abbreviated
period devoted to briefing, research, argument, and deliberation, neither the parties nor this
court have been able to provide exhaustive efforts to the resolution of the intricate and
complex issues presented. Under similar circumstances, this court has in the past declared
that it would decline to determine the merits of a ballot election challenge. See Beebe v.
Koontz, 72 Nev. 247, 302 P.2d 486 (1956). Our holding in Las Vegas Chamber of Commerce
also recognizes the reality that federal constitutional questions are simply too important and
complex to resolve in haste, without careful and measured consideration.
The majority concludes that there is no utility in facilitating the needless expenditure of
money and other resources in campaigning for and against the measure before us. I remind
my colleagues, however, that untold lives and fortunes have been expended in defense of the
right to advance ideas and concepts in free electionsa right so cherished that it may not be
valued in terms of monetary cost. On the basis of this argument alone, and without due and
careful deliberation, I am not prepared to cast aside established precedent reflecting a policy
of deference to that fundamental right.
I do not suggest that our established precedents should never be subject to limitation and
revision. To the contrary, there may be valid and persuasive reasons to revisit and reexamine
our prior holdings. Prior to interdicting the foremost rights of the people, however, due regard
for the concept of stare decisis demands that this court devote adequate time to undertake the
research and careful consideration necessary to analyze our precedents in cautious, principled,
and deliberate manner.
As the majority observes, it is beyond cavil that no single state may supersede, amend or
qualify any provision of the United States Constitution. With all due respect, however, I am
not prepared to state with absolute assurance that resolution of the questions presented is
susceptible to such a superficial and facile analysis. Recently, the Supreme Judicial Court of
Massachusetts was faced with the identical federal constitutional issues now before this court.
With understandable restraint, the Massachusetts court observed:
The United States constitutional issues presented . . . in addition to being highly
complex, are ones which have not as yet been considered, in any respect, by the
United States Supreme Court or by Federal trial or appellate courts.
108 Nev. 826, 839 (1992) Stumpf v. Lau
yet been considered, in any respect, by the United States Supreme Court or by Federal
trial or appellate courts. In fact, only one State appellate court has reported a decision
regarding the question of political term limitations, and that court declined to formulate
an opinion on the Federal issues involved. See Advisory Opinion to the Attorney Gen.,
592 So.2d 225 (Fla. 1991). Therefore, for this court to address the questions posed by
the Senate regarding the constitutionality of the initiative under the United States
Constitution we would have to predict the view the Supreme Court ultimately would
take on the issue of Federal term limitations, speculating as well as to the basis on
which the Justices would rely to support that view.
See Opinion of the Justices to the Senate, 595 N.E.2d 292, 302 (Mass. 1992). If this court is
to be the first to confront the constitutionality of state-imposed federal term limits, it should
devote more than mere passing, superficial consideration of the Constitution's text, structure
and history, as well as the Supreme Court decisions that bear on the question. See Troy
Andrew Eid and Jim Kolbe, The New Anti-Federalism: The Constitutionality of
State-Imposed Limits on Congressional Terms of Office, 69 Denv. U. L. Rev. 1, 5 (1992).
It is at least arguable that the federal term limits measure could be viewed by the United
States Supreme Court as constitutionally valid. By way of illustration, I set forth below a
number of questions which lurk below the surface of petitioners' claims which would seem to
require an informed and careful analysis prior to reaching any conclusions concerning the
position that will eventually and inevitably be taken by the final arbiter of the subject (absent
a constitutional amendment), the United State Supreme Court.
Consideration of the express text of the United States Constitution gives rise to a number
of complex questions that demand in-depth analysis. Nowhere in that document is it
expressly provided that the states are precluded from imposing conditions on the election of
federal legislators. To the contrary, the constitution expressly provides that members of the
United States House of Representatives are to be chosen . . . by the People of the several
states, and that the Electors in each State shall have the Qualifications requisite for Electors
of the most numerous Branch of the State Legislature. See U.S. Const. art. I, 2, cl. 1
(emphasis added). Similarly, the Senators from the respective states are to be elected by the
people thereof . . . and [t]he electors in each State shall have the qualifications requisite for
electors of the most numerous branch of the State legislatures. See U.S. Const. amend. XVII.
Perhaps a state constitutional limitation of federal congressional terms can be considered
as merely one way in which the people of the respective states are permitted to chose
their representatives.
108 Nev. 826, 840 (1992) Stumpf v. Lau
limitation of federal congressional terms can be considered as merely one way in which the
people of the respective states are permitted to chose their representatives. See Roderick M.
Hills, Jr., A Defense of State Constitutional Limits on Federal Congressional Terms, 53 U.
Pitt. L. Rev. 97, 107 (1991). Further, it has been argued that, in expressly conferring upon the
people of the respective states the right to choose and elect their representatives and
senators, the framers may also have intended to reserve directly to the people, as opposed to
the federal or state legislatures, the right to enact, through the initiative process, state
constitutional provisions adding reasonable qualifications beyond those specified in the
qualifications clauses. Id.
The Ninth Amendment to the United States Constitution provides that [t]he enumeration
in the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people. The Tenth Amendment provides that [t]he powers not delegated to
the United States by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people. In the proper performance of our duties, this court
should at least take time to reflect on the history and meaning of these amendments to
consider whether they may support a conclusion that the qualifications clauses merely
establish a floor below which the states may not go. Certainly, it can be argued that the
constitution's broad grant of authority to the states to determine who shall vote in
congressional elections might imply that the people of the respective states also possess the
power to provide in their state constitutions qualifications or conditions for election as a
federal legislator. See Roderick M. Hills, Jr., A Defense of State Constitutional Limits on
Federal Congressional Terms, 53 U. Pitt. L. Rev. 97 (1991).
Provisions in our own constitution, for example, mandate that [n]o person shall be
eligible to any office who is not a qualified elector under this constitution and that no person
may be an elector who has been or may be convicted of treason or felony in any state . . .
unless restored to civil rights . . . . See Nev. Const. art. 15, 3; Nev. Const. art. 2, 1. Can
we say with certainty that there is no reason to the argument that such provisions merely
operate as state imposed limitations on candidates for public office, including the federal
congress, rather than additional qualifications beyond those of age, residency and citizenship
contained in the qualifications clauses? In other words, if a state may constitutionally deny a
place on the ballot to a convicted felon, thus effectively precluding his election as a federal
legislator, perhaps a state could also limit ballot access for federal office to those who have
not already served in such office for a period of time specified by state law. After all, the
United States Supreme Court has validated some forms of state-imposed restrictions
denying access to the ballot.
108 Nev. 826, 841 (1992) Stumpf v. Lau
States Supreme Court has validated some forms of state-imposed restrictions denying access
to the ballot. See Jenness v. Fortson, 403 U.S. 431 (1971) (Georgia regulation barring
independent candidates who fail to collect signatures of five percent of the electorate from
ballot held to be a valid election regulation); Storer v. Brown, 415 U.S. 724 (1974)
(California restriction denying access to ballot to independent candidates who had formerly
registered with political party within preceding year held to be valid election regulation).
I do not suggest affirmative answers to such questions. Nor do I suggest that exhaustive
research validates the questions. I do suggest, however, that if it is determined that the
constitutional issues need to be decided, there is wisdom in taking the time to see that
necessary questions are asked and that sufficient research is undertaken to provide incisive
answers before any conclusion respecting the constitutionality of Question 7 can be stated
with confidence.
With adequate time, there is little doubt that a thorough examination of other traditional
sources of constitutional history would enlighten and inform this court's consideration of the
issues presented. The cursory research thus far completed by this court indicates that the
records of the Constitutional Convention of 1787, the writings of Madison and Hamilton
contained in the Federalist Papers, and the writings of the Anti-Federalist pamphleteer
Cincinnatus all provide useful insight into the intent of the framers with respect to the
questions before us.
A focused review of the history of certain Congressional actions would also seem to be in
order. Both the House of Representatives and the Senate have had occasion to address
election contests involving alleged violations of state-imposed requirements. See Roderick M.
Hills, Jr., A Defense of State Constitutional Limits on Federal Congressional Terms, 53 U.
Pitt. L. Rev. 97, 128 (1991). The light in which Congress itself views the import of
state-imposed regulations on its members should at least be reviewed.
I note as well that NTL contends that the thirteen-county requirement mandated in article
19, 2(2) of the Nevada Constitution is violative of the one person, one vote principle of the
First and Fourteenth Amendments to the United States Constitution. NTL argues that such a
requirement unconstitutionally provides the less populous counties with a veto power over
initiatives supported by the more populous counties. See generally Moore v. Ogilvie, 394
U.S. 814 (1969). Such contentions are of precisely the type which we declined to reach in Las
Vegas Chamber of Commerce v. Del Papa, 106 Nev. 910, 917, 802 P.2d 1280, 1282 (1990).
They are simply not reasonably susceptible to resolution by resort to accelerated and
summary procedures without time for adequate briefing, argument, research and
deliberation.
108 Nev. 826, 842 (1992) Stumpf v. Lau
tible to resolution by resort to accelerated and summary procedures without time for adequate
briefing, argument, research and deliberation.
Although I entertain serious doubts respecting the constitutional validity of the ballot
question in issue, due to the imperatives of haste and the complexity of the issues, those
doubts have not as yet attained that measure of certitude which would permit me to conclude
confidently that the initiative is plainly and palpably unconstitutional. See Caine v. Robbins,
61 Nev. 416, 427, 131 P.2d 516, 520 (1942).
Moreover, I suggest that proper appellate procedure would question the necessity or
wisdom of reaching the constitutional issues and rushing to be at the forefront of a concern
that has yet to be addressed by any of the federal courts. In cases too numerous to list, this
court has repeatedly held that it will not consider constitutional issues that are unnecessary to
the court's determination of the case. See, e.g., Spears v. Spears, 95 Nev. 416, 596 P.2d 210
(1979); Union Pacific R.R. Co. v. Adams, 77 Nev. 282, 362 P.2d 450 (1961); State v. Curler,
26 Nev. 347, 67 P. 1075 (1902). Where, as here, the majority confidently decides that the
initiative violates Nevada law, there is simply no basis for reaching issues involving the
federal constitution.
Turning to petitioners' claims relating to the validity of the initiative petition documents, it
is at least safe to say that the validity of the documents is problematic. It is also clear that
issues surrounding validity include not only challenges to the legality of the language or
clarity of the initiative, but also fact intensive problems regarding the validity of signatures.
For the most part, petitioners have requested this court to resolve these factual issues on the
basis of conflicting affidavits. Ordinarily, of course, an appellate court is not an appropriate
forum in which to resolve disputed questions of fact. See Round Hill Gen. Imp. Dist. v.
Newman, 97 Nev. 601, 637 P.2d 534 (1981). When disputed factual issues are critical to the
proper resolution of a request for extraordinary relief, the writ should be sought in the first
instance in the district court, with appeal from an adverse judgment to this court. Id. The time
constraints applicable here, however, have foreclosed such an orderly and traditional
fact-finding process.
It is true that some of the critical facts petitioners have sought to establish by way of
affidavits remain uncontroverted. I nevertheless find it difficult to resolve many of these
matters with certainty, given the minimal time limits under which the respondent, the
initiative proponents, and this court were forced to proceed. And where it is alleged that
technical deficiencies render the petition documents a few signatures short of the required
number, I suggest that doubts concerning such technicalities should be resolved in favor
of the people's right to express themselves through the ballot process.
108 Nev. 826, 843 (1992) Stumpf v. Lau
number, I suggest that doubts concerning such technicalities should be resolved in favor of
the people's right to express themselves through the ballot process.
Although disqualifying shortages may exist in one or more counties, we were informed on
the eve of oral argument that it has now been determined that signatures previously thought to
have been invalid in White Pine County may have now been validated in sufficient numbers
to qualify that county for inclusion among the counties that have met the requirements for a
valid initiative. Moreover, allegations of deficiency concerning Carson City were raised on
the eve of oral argument, and the Secretary of State and NTL had no opportunity to review
and refute those allegations. I do not purport to know what the facts may eventually show
concerning the various contentions of technical invalidity in certain of the petition
documents, but I would most certainly not decide the issues precipitantly in order to prevent
our citizens from voting on Question 7.
During oral argument I expressed my concerns regarding the fact that the initiative
language made no reference to the measure as an intended means of amending our state
constitution. In truth, the language facially suggests an initiative designed to produce a state
statute. Although my concerns remain, and the issue is significant, a lingering question
prevents me from prematurely accepting the disqualifying conclusion reached by my brethren
in the majority. May the lack of clarity be cured by definitive ballot language supplied by the
Secretary of State? It seems clear that if the intendments of the initiative are clearly set forth
on the ballot, voters will not be misled as they cast their votes on the subject. I respect the fact
that an affirmative answer to the question posed could be viewed as a major step in the
direction of rendering the formal initiative process unacceptably lax. I emphasize again,
however, that in asking the question, I suggest neither the answer nor the validity of the
question. I merely underscore the wisdom of those courts that have exercised restraint in
favor of the voters rather than disqualifying technicalities.
In my view, where, as here, severe time constraints prevent this court's resolution of
complex issues without significant disruptions to the election process, any doubts respecting
the validity of a proposed initiative should be resolved in favor of allowing the measure to go
before the voters. Two centuries of successful democracy in this country amply justify an
abiding faith in the wisdom of the electorate to determine such matters in the first instance.
See, e.g., Las Vegas Chamber of Commerce v. Del Papa, 106 Nev. 910, 917, 802 P.2d 1280,
1282 (1990) (even if an initiative measure is unconstitutional, there is great utility in allowing
the people to vote on the measure; such a vote communicates clearly to the representative
branches of government the popular sentiment on a particular issue).
108 Nev. 826, 844 (1992) Stumpf v. Lau
cates clearly to the representative branches of government the popular sentiment on a
particular issue). Accordingly, I would decline to resolve at this time the merits of the factual
and legal issues presented.
Nonetheless, as justices we cannot ignore our obligation to protect and defend the
paramount law of the nation and of this state. If our citizens had been allowed to vote on
Question 7, due regard for our obligation and the electorate would have mandated that the
voters of this state be forthrightly apprised of the strong possibility that a public vote in favor
of Question 7 may ultimately be declared invalid in future judicial proceedings. Accordingly,
I would have had this court direct the Secretary of State to include the following language in
the ballot question arguments formulated, pursuant to NRS 293.250(5), both for and against
passage of Question 7:
The Nevada Supreme Court has expressed strong concern about the validity of
Question 7 under both the Nevada State Constitution and the United States
Constitution. Voters are cautioned that their vote for or against this measure may
ultimately have value only as an expression of public sentiment on the subject.
Such a cautionary instruction regarding the constitutionality of Question 7 would serve to
dispel any false expectations among voters who support such restrictions and would
encourage term limit advocates and opponents alike to weigh the prospects of an eventual
ruling of invalidity as they plan their efforts and expenditures on the measure.
CONCLUSION
I have carefully avoided irrelevant inferences concerning the merits of term limitations on
federal legislators. This court has no legitimate interest in the wisdom of the proposed
measure, and would indeed be presumptuous to assume that its members possess greater
insights on the subject than our voting citizens. Rather, my major concerns have focused on
the fundamental right of our citizens to access the ballot. The Secretary of State has
determined that 32,853 Nevadans have requested that federal term limits be placed before the
people on the November 1992 general election ballot. My colleagues in the majority speculate
that the signatures were induced by mercenaries. I am far more interested in the fact that
such large numbers of our citizens have indicated a desire to have the measure placed on the
ballot than I am the citizenship of those who labored in the initiative process.
This court was faced with two basic alternatives: the exercise of its discretion to
precipitantly exalt technicalities over the predominate right of public sentiment
recognized by this court in Las Vegas Chamber of Commerce or the exercise of its
discretion in favor of the public right to communicate "clearly to the representative
branches of government the popular sentiment on a particular issue or issues."
108 Nev. 826, 845 (1992) Stumpf v. Lau
of its discretion to precipitantly exalt technicalities over the predominate right of public
sentiment recognized by this court in Las Vegas Chamber of Commerce or the exercise of its
discretion in favor of the public right to communicate clearly to the representative branches
of government the popular sentiment on a particular issue or issues. Las Vegas Chamber of
Commerce, 106 Nev. at 917, 802 P.2d at 1282. Nevada's voice will not be heard among the
numerous states that will be voting on federal congressional term limitations this year. I do
not fault the bona fides of my colleagues and recognize that many will respect their
willingness to take a stand now rather than later. My position, however, is simple. Time
constraints have summoned haste in deciding complex issues of great importance that, under
this court's precedents, should have remained undecided or delayed in favor of contemplative
thoroughness and allowing a public vote on Question 7. This nation has achieved greatness
by promoting and protecting free expressionthe world of ideas. Whether the idea of federal
term limitations moves to a crescendo capable of producing an amendment to the United
States Constitution, a favorable or adverse decision by the United States Supreme Court, or
simply withers on the vine, our federal society will have been enriched by the discourse. It is
unfortunate that the views of Nevadans will not be part of the enriching process, at least
during this moment in our nation's history.
For the reasons abbreviated above, I would deny the relief requested in the instant petition,
and vacate our prior order of August 19, 1992, granting an alternative writ and imposing a
stay. Further, I would direct the clerk of this court to issue a writ of mandamus directing the
Secretary of State to include the aforementioned cautionary language in the arguments
presented on the ballot both for and against passage of Question 7, and let our people vote.
____________
108 Nev. 845, 845 (1992) Topaz Mutual Co. v. Marsh
TOPAZ MUTUAL COMPANY, INC., Appellant/Cross-Respondent, v. FLORENCE
MARSH, Respondent/Cross-Appellant, and VIRGIE ARDEN and the Estate of
JOHN ARDEN, Deceased, Cross-Respondents.
No. 21068
September 29, 1992 839 P.2d 606
Appeal from an order of the district court awarding damages and attorney's fees to
respondent for claims of breach of contract, fraud, and unjust enrichment. Cross-appeal from
an order limiting cross-appellant's breach of contract and unjust enrichment damages
against cross-respondents.
ing cross-appellant's breach of contract and unjust enrichment damages against
cross-respondents. Second Judicial District Court, Washoe County; Roy L. Torvinen, Judge.
Lender brought action against water company and its principals to recover amount of
investment. The district court entered judgment in jury verdict in favor of lender, and
defendants appealed. The supreme court held that: (1) water company was equitably estopped
from asserting that lender could only recover the amount of loan approved by Public Service
Commission; (2) lender could maintain action for both fraud and breach of contract; (3)
equitable mortgage was properly imposed on water company's assets and income; but (4)
court improperly limited amount of recovery for unjust enrichment.
Affirmed in part; reversed in part and remanded.
Bible, Hoy, Miller, Trachok & Wadhams, Reno, for Appellant/Cross-Respondent Topaz
Mutual Company, Inc. and Cross-Respondent Virgie Arden.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell and Mike Pavlakis, Carson City,
for Respondent/Cross-Appellant.
Gregory F. Wilson, Reno, for Cross-Respondent Estate of John Arden.
1. Trial.
Where other instructions inform jury of information contained in proposed instruction, trial court need not give the proposed
instruction.
2. Trial.
Instruction that each item of damage in fraud action must be proved by preponderance of the evidence did not require reversal
where related instructions adequately informed the jury of the standard of clear and convincing evidence which was applicable.
Where plaintiff did not claim on appeal that fraud damages were improperly restricted or divided by the jury, supreme court would
not alter the judgment to provide for joint and several liability for the total amount of damages.
4. Pleading.
Lender could proceed against borrower on both contract and fraud claims.
5. Estoppel.
Equitable estoppel precluded water company from asserting that loan was void and that lender could not recover the full amount of
loan because Public Service Commission had not approved the full amount of loan where the water company represented to the lender
that approval had been secured for the full amount and where none of the loan was used for improvement of
the water company and the bulk of the loan was diverted.
had been secured for the full amount and where none of the loan was used for improvement of the water company and the bulk of the
loan was diverted.
6. Estoppel.
Equitable estoppel is applied to prevent manifest injustice and hardship to an injured party.
7. Estoppel.
Equitable estoppel functions to prevent the assertion of legal rights that in equity and good conscience should not be available due
to a party's conduct.
Neither ratepayers who were deprived of protection which the Public Service Commission sought to provide them when denying
approval for full amount of loan nor investor who parted with full amount of the loan proceeds because of misrepresentations that the
full loan had been approved by the Public Service Commission could be forced to bear the burden created by manipulative conduct and
breach of contract attributable to the water company and its officers, and investor was entitled to recover the full amount of her
damages, plus interest against the water company, none of which could be passed on or charged to the ratepayers.
9. Mortgages.
For equitable mortgage to be imposed, there must be an identifiable res.
10. Mortgages.
Court properly imposed lien in nature of equitable mortgages on assets and income of water company in favor of lender where
documents specifically stated that those assets and income would be security to guarantee the loan.
11. Implied and Constructive Contracts.
Fact that funds lent to water company were used by the owners of the water company to postpone foreclosure on unrelated property
which they owned and to make improvements to the property could be considered in determining the amount by which they had been
unjustly enriched.
OPINION
Per Curiam:
1

__________

1
This matter was originally docketed in this court to reflect that Topaz Mutual Company, Inc. and Florence
Marsh were the only parties to this appeal and cross-appeal. We note, however, that Florence Marsh's Notice of
Cross-Appeal filed March 6, 1990, specifically challenges:
That portion of the Findings of Fact, Conclusions of Law and Judgment entered in this matter on January
19, 1990 which limited Florence Marsh's recovery against defendants, Virgie Arden and the Estate of
John Arden, Deceased, to $5,000 each, from that portion of the Judgment on Verdict entered in this
matter on January 19, 1990 which resulted from Judge Torvinen's ruling that the maximum recovery
against defendant, Topaz Mutual Company, Inc. on the Contract and Note was $73,001 and from Judge
Torvinen's ruling that Florence
Facts
Topaz Mutual Company, Inc. (Topaz) is a privately owned public utility that supplies
water to a portion of Douglas County near Topaz Lake. Topaz is owned by John and Virgie
Arden through its parent corporation, Topaz Development Corporation. Florence Marsh
(Marsh) is a private citizen who, in 1986, was looking for an investment opportunity to fund
her stay in a retirement home in Santa Barbara, California. On March 21 of that year,
ostensibly to improve the water system and retire debts, Topaz entered into a loan
commitment with Marsh whereby she would loan a maximum of $121,000.00 to Topaz at an
interest rate of sixteen percent per annum. According to a loan commitment agreement,
Topaz expected to repay the loan through a surcharge on its customers. The loan commitment
was negotiated in part by Skip Roggenbihl (Roggenbihl), a partner in Nevada Lands
Association (NLA). John Arden, as president of Topaz Mutual Company, and Marsh signed
the agreement.
On July 23, 1986, as required by the terms of the loan commitment, Topaz requested
approval for the financing of the loan in the amount of $93,187.84 from the Public Service
Commission (PSC). The PSC approved a loan in the amount of $73,001.00, contingent upon
Topaz approaching at least three banks for a lower interest rate. Because it concluded that
Topaz could obtain a lower interest rate elsewhere, the PSC refused to give final approval to
the Marsh loan, but no one informed Marsh of the PSC's decision.
__________
Marsh could not maintain an action for fraud on the basis of the Intent to Loan dated March 21, 1986.
Accordingly, we have modified the caption on this court's docket to reflect that Virgie Arden and the Estate
of John Arden are cross-respondents in this matter.
Further, Marsh's notice of cross-appeal, docketing statement filed June 1, 1990, answering brief and opening
brief on cross-appeal filed March 8, 1991, and reply brief on cross-appeal filed May 23, 1991, all challenge the
district court's limitation of unjust enrichment damages recoverable from Virgie Arden and the Estate of John
Arden. These documents were all duly served upon the law firm of Bible, Hoy, Miller, Trachok & Wadhams,
counsel for Topaz Mutual Company, Inc. and Virgie Arden, and upon attorney Gregory F. Wilson, counsel for
the Estate of John Arden. On April 25, 1991, the law firm of Bible, Hoy, Miller, Trachok & Wadhams filed a
reply brief and answering brief on cross-appeal which addresses the issues raised by Marsh on cross-appeal.
Notwithstanding service of Marsh's notice of appeal, docketing statement and briefs, attorney Wilson elected
not to file a brief in response to the issues raised by Marsh on cross-appeal, to join in the reply brief and
answering brief on cross-appeal filed April 25, 1991, or to otherwise enter an appearance in this court on behalf
of the Estate of John Arden. Consequently, this matter was submitted for decision following oral argument on
September 9, 1991, upon the briefs and oral arguments tendered by counsel for Florence Marsh and Topaz
Mutual Company, Inc. and Virgie Arden.
approval to the Marsh loan, but no one informed Marsh of the PSC's decision.
On October 1, 1986, the Ardens sold their corporate propertiesincluding Topaz, Topaz
Ranch Estates, Inc. (Topaz Ranch), and othersto NLA for $7.5 million. The corporate
minutes of Topaz for that date showed that the original partners of NLATony Wesley
Martin (Martin) and Gordon V. Ruff (Ruff)were directors of Topaz as well as the Ardens'
other corporations. Forty percent of Topaz's stock was issued to NLA, and NLA (Martin and
Ruff) was authorized to enact all business on behalf of Topaz, including the funding and sale
of properties. The Ardens issued a proxy for their thirty percent sharehold interest in Topaz to
NLA and Ruff.
Marsh was told that NLA and its current partnersMartin, Ruff, and Roggenbihlwere
purchasing the Ardens' properties and had authority to act for the Ardens. She was also told
that NLA had become part of Topaz. On October 8, 1986, Marsh wrote a check to Topaz in
the amount of $121,000.00, with the understanding that the funds would be used to pay for
system improvements. She gave the check to Roggenbihl, who later requested that she make
her check out to NLA rather than to Topaz, and Marsh issued a check for $121,000.00 to
NLA. In return she received a promissory note signed by NLA and its partners, as well as a
contract with Topaz signed by the partners of NLA. Unbeknownst to Marsh, the borrowers
used most of the loan in an unsuccessful attempt to forestall foreclosure on Topaz Ranch,
property which was not mentioned in the loan agreement, and Roggenbihl received $6,000.00
as a commission for procuring the loan. John and Virgie Arden each received $5,000.00 of
Marsh's loan, and none of the money purchased system improvements. Marsh received only
two of the promised interest payments on the note.
In February, 1989, Marsh filed suit against Topaz, NLA, the Ardens, Martin, Ruff, and
Roggenbihl. The district court entered a directed verdict against NLA, Martin, Ruff, and
Roggenbihl on their $121,000.00 promissory note. The court also ruled that Marsh's
maximum allowable recovery against Topaz on the contract was $73,001.00 because of the
limitation the PSC had placed on the loan. Pursuant to a jury verdict, the district court ordered
Topaz to pay Marsh $73,001.00, together with interest calculated at a rate of sixteen percent
per annum dating from December 8, 1986. Based on the language in the loan commitment
agreement and the contract and note, the district court imposed an equitable mortgage in the
sum of $73,001.00, with interest, against the assets of Topaz in favor of Marsh.
In answers to interrogatories contained in the verdict, the jury found Topaz, NLA, Martin,
Ruff, and Roggenbihl liable on the fraud count and assessed damages at one-fourth of
$121,000.00. Later the jury found Topaz also liable for fraud, and again assessed damages at
one-fourth of $121,000.00. There was no explanation for this allocation of damages, but the
net result is that each of the five parties found liable were assessed only one-fourth of Marsh's
total loss or $30,250.00.
Punitive damages against Martin, Ruff, and Roggenbihl were also assessed in the amounts
of $5,000.00, $10,000.00, and $20,000.00, respectively. Marsh was also awarded attorney's
fees in the sum of $20,000.00 to be paid by the five parties. In addition, the court awarded
$5,000.00 to Marsh against each of the Ardens, for a total of $10,000.00, on her claim of
unjust enrichment.
Topaz appealed, and Marsh cross-appealed against all of the parties on the issues of the
district court's limitations of the equitable mortgage and the award of unjust enrichment. By a
stipulation pursuant to NRAP 28(h)
2
which was filed on December 5, 1990, Topaz, the
defendant at trial, agreed to file the opening brief as appellant/cross-respondent.
Discussion
Damages on Fraud Claim
Jury Instruction No. 29 provided that each item of damage must be proved by a
preponderance of the evidence. Topaz correctly observes that clear and convincing
evidence and not preponderance of the evidence is the correct burden of proof with respect
to the fraud claim. Read out of context, the jury instruction is misleading. However, the jury
received instructions on fraud that adequately informed it of the proper burden of proof. Jury
Instruction No. 25, which outlined the essential elements of fraud, including damage to
Marsh, provided that each element must be proved by clear and convincing evidence.
Additionally, Jury Instruction No. 27 defined clear and convincing as beyond a mere
preponderance of the evidence.
[Headnotes 1, 2]
Where other instructions inform the jury of information contained in a proposed
instruction, the trial court need not give the proposed instruction. Colorado Environments v.
Valley Grading, 105 Nev. 464, 467
__________

2
NRAP 28(h) provides in part:
In cases involving a cross-appeal, the plaintiff in the court below shall be deemed the appellant for all
purposes, unless the parties otherwise agree or the court otherwise orders.
(Emphasis added.)
105 Nev. 464, 467, 779 P.2d 80, 82 (1989); Beattie v. Thomas, 99 Nev. 579, 583-84, 668
P.2d 268, 271 (1983); see Gordon v. Hurtado, 96 Nev. 375, 609 P.2d 327 (1980) (no reversal
for giving of jury instruction which is not technically correct is required where, taking into
consideration all of instructions given, jury was sufficiently and fairly instructed). Because
the related instructions adequately informed the jury of the standard of clear and convincing
evidence, Instruction No. 29 was not so misleading as to warrant reversal.
The jury found five partiesNLA, Topaz, Martin, Ruff, and Roggenbihlguilty of fraud,
but only awarded damages of $30,250.00 against each party. The jury unequivocally found
Topaz guilty of fraud and determined that the total amount of damage suffered by Marsh
because of the fraudulent acts was $121,000.00. The Ardens had turned control of Topaz over
to NLA, Martin, and Ruff, and this provided sufficient evidence to hold Topaz liable for their
fraudulent acts. Topaz and the Ardens claim, as does the dissent, that Martin and Ruff were
rogues and that they proved to be. But, it was the Ardens who turned over control of Topaz
to Martin and Ruff in the fall of 1986 and empowered them to act for Topaz.
[Headnote 3]
Concerning damages, Topaz has observed on appeal that, The amount of damages
awarded against Topaz for fraud represents the amount of the contract and note divided by
four of the defendants ($121,000.00 divided by 4 equals $30,250.00). Under the facts of this
case, Marsh's loss on the fraud claim was either $121,000.00 or nothing. Once the jury found
the five parties liable to her for fraud and her total damage of $121,000.00 because of their
fraudulent conduct, each party should have been found jointly and severally liable for the
total amount. See Price v. Aztec Limited, Inc., 701 P.2d 294 (Idaho Ct.App. 1985) (rule of
joint and several liability prevails where tortfeasors act in concert in execution of common
purpose). However, since Marsh has not claimed on appeal that the fraud damages were
improperly restricted or divided by the jury and the parties have not briefed this issue, we
decline to alter in Marsh's favor the fraud damages imposed, and we leave those damages as
assessed by the jury and entered by judgment of the district court.
[Headnote 4]
Topaz argues that Marsh should have been forced to proceed against Topaz on either the
contract or fraud claim, but not both, and that the resulting awards against Topaz will permit
Marsh a double recovery. We disagree. A plaintiff may assert several claims for relief and be
awarded damages on different theories.
claims for relief and be awarded damages on different theories. It is not uncommon to see a
plaintiff assert a contractual claim and also a cause of action asserting fraud based on the facts
surrounding the contract's execution and performance. See Amoroso Constr. v. Lazovich and
Lazovich, 107 Nev. 294, 810 P.2d 775 (1991). The measure of damages on claims of fraud
and contract are often the same. However, Marsh is not permitted to recover more than her
total loss plus any punitive damages assessed. She can execute on the assets of any of the five
parties to the extent of the judgments entered against them until she recovers her full
damages.
The Contract Claim
[Headnote 5]
Topaz argues that the loan is void because it lacked PSC approval for the full amount.
Other states' statutes declare a transaction void ab initio if it is made to a public utility
without approval of the commission that regulates public utilities. See, e.g., Vt.Stat.Ann.tit.
30, 107(c)(4) (1991 Supp.); see also Hogue v. Superior Utilities, 210 P.2d 938 (N.M. 1949)
(the note and mortgages of a corporation operating a gas distribution system were void where
not authorized by the Public Service Commission as required by statute). NRS 704.323(1)
provides as follows:
No privately owned public utility organized under the laws of and operating in the
State of Nevada shall issue any security, or assume any obligation as guarantor,
endorser, surety or otherwise, in respect of any security of any other person, firm or
corporation, unless and until, and only to the extent, authorized by a written order of the
commission.
See also NRS 704.325,
3
which prohibits unapproved use of proceeds. NRS 704.323(1) and
704.325 do not expressly render an unauthorized loan or transaction void. The statutes, in
effect, make an unapproved loan or security transaction voidable by any party in interest, the
public utility, the lender, or the Public Service Commission. Normally, the statutes that
regulate public utilities should be given full force and effect, and loans or other transactions
with utilities which have not secured PSC approval will be deemed voidable and thus
unenforceable.
__________

3
No public utility shall, without the consent of the commission, apply any security or any proceeds
thereof to any purpose not specified in the commission's order, or supplemental order, or to any purpose
in excess of the amount allowed for such purpose in such order, or otherwise in contravention of such
order.
will be deemed voidable and thus unenforceable. However, the facts of this case compel us to
reach a different result.
Marsh always intended to make a loan to Topaz to improve the utility's water delivery
system. While the agreement to loan and the subsequent promissory note indicated that PSC
approval was necessary, Topaz, through the fraudulent conduct of its officers and directors,
represented to Marsh that approval had been secured and that it was appropriate to make the
loan in the full amount. In reliance on the false representation, Marsh issued her check in the
amount of $121,000, but none of the money was used for the system's improvement, and the
bulk of the funds was diverted to forestall foreclosure on the Ardens' ranch, which was not an
asset of Topaz. If we permit Topaz to claim that the loan, which was consummated by
fraudulent acts of its officers and directors, is unenforceable pursuant to NRS 704.325, we
will be permitting the utility to profit from its own wrongful conduct. This we will not do.
[Headnote 6]
To enforce the contract only to the limit of the PSC approval would allow Topaz to escape
full responsibility for its misrepresentations and would penalize Marsh, who loaned the full
sum requested in good faith and on the assumption that Topaz would utilize the loan proceeds
to improve the utility's water system and debt structure. The most elementary conceptions of
justice and public policy require that the wrongdoer shall bear the risk of the uncertainty
which his own wrong has created. Bigelow v. RKO Radio Pictures, 327 U.S. 251, 265
(1946). The duty of good faith and fair dealing is created by law in all contracts. K Mart
Corp. v. Ponsock, 103 Nev. 39, 48, 732 P.2d 1364, 1370 (1987). Equitable estoppel is applied
to prevent manifest injustice and hardship to an injured party as in Cheqer, Inc. v. Painters &
Decorators, 98 Nev. 609, 665 P.2d 996 (1982), where a hospital relied to its detriment on a
letter of approval which specified a timetable within which to act or lose authorization to
proceed with the project, and this court held that the Department of Human Resources was
estopped from vacating its previously issued letters of approval.
[Headnote 7]
Equitable estoppel functions to prevent the assertion of legal rights that in equity and good
conscience should not be available due to a party's conduct. United Brotherhood v. Dahnke,
102 Nev. 20, 714 P.2d 177 (1986). Thus, when a party acts in bad faith and with an intent to
defraud, it can be estopped from challenging the enforceability of a contract executed because
of that conduct. Since Marsh acted to her detriment in reliance on the misrepresentations by
Topaz's officers and directors, and it was represented to her that PSC approval had been
obtained, the principle of equitable estoppel applies to prevent Topaz from now asserting
that the contract is voidable.
the misrepresentations by Topaz's officers and directors, and it was represented to her that
PSC approval had been obtained, the principle of equitable estoppel applies to prevent Topaz
from now asserting that the contract is voidable. Therefore, we conclude that the district court
erred in ruling that the loan was enforceable only to $73,001.00, the amount that the PSC had
expressly approved.
Because utilities have a monopoly on a necessary service, they are regulated to protect the
ratepayers, the public, and the parties who transact business with them. We are not only
concerned about the impact of NRS 704.323(1) and 704.325 upon a good faith lender who is
defrauded by the utility, but also upon the impact that the judgment will have on the
ratepayers of Topaz. The purpose of a regulatory agency is to protect power consumers
against excessive prices' by assuring that costs passed-through into utility rates are just and
reasonable. Alliance for Aff. Energy v. New Orleans, 578 So.2d 949, 972 (La.Ct.App. 1991)
(quoting Pennsylvania Power Co. v. F.P.C., 343 U.S. 414, 418 (1951)). Nevada law
specifically requires that charges made by a public utility for services rendered must be just
and reasonable (NRS 704.040(1)); and every unjust and unreasonable charge is unlawful
(NRS 704.040(2)).
[Headnote 8]
Given the fraudulent and unauthorized conduct of the officers and directors of Topaz, none
of the burdens of this judgment should be passed on or charged to its ratepayers, but rather
borne solely by Topaz. Nevada Power v. Public Service Commission, 105 Nev. 543, 545, 779
P.2d 531, 532 (1989) (a judgment may require a utility to satisfy it through the owners' equity
rather than to permit the cost to be passed on to the ratepayers.) We therefore hold that neither
the ratepayers, who were deprived of the protection the PSC sought to provide them, nor
Marsh, who parted with the full amount of the loan proceeds, should be forced to bear the
burden created by the manipulative conduct and breach of contract attributable to Topaz and
its officers and directors. Marsh is entitled to the full amount of her contract damages plus
interest against Topaz, none of which may be passed on or charged to the ratepayers.
Assessment of Equitable Mortgage
[Headnotes 9, 10]
Based on the loan commitment agreement as well as the contract and note, the district
court imposed an equitable mortgage against Topaz of $73,001.00. The contract and note
states in part:
The signers of this contract are declared individually and jointly responsible for
repayment of this note and agree to underwrite the contract by pledge of personal
credit as well as income derived from sale of water and other assets of Topaz
Mutual Co. as security for the principal amount of $121,000.00 and all accrued
interest when due.
jointly responsible for repayment of this note and agree to underwrite the contract by
pledge of personal credit as well as income derived from sale of water and other assets
of Topaz Mutual Co. as security for the principal amount of $121,000.00 and all
accrued interest when due.
(Emphasis added.)
The note in favor of Florence Marsh for $121,000.00, signed by Martin, Ruff, and
Roggenbihl as Nevada Lands Association, a Nevada General Partnership, contains the
following language:
This note is secured by the assets of Topaz Mutual Water Company Inc., a Nevada
Corporation in an amount equalling the face value of this promissory note. The present
total assets of Topaz Mutual Water Company Inc. include $1,335,000.00 of water rights
plus office and physical assets of: $1,469,725.00.
(Emphasis added.) At the time these documents were executed, the Ardens, as majority
stockholders of Topaz, as well as the principal officers, had relinquished control of Topaz to
NLA.
In Nee v. L. C. Smith, Inc., 97 Nev. 42, 47-8, 624 P.2d 4, 7 (1981), this court stated: A
mortgage is usually considered to be a nominal conveyance, held in abeyance, of certain
property as a security for the payment of a certain debt. If the parties intend to create a
mortgage, no particular form of instrument or words is necessary to create an equitable
mortgage. (Footnote omitted; citations omitted.) We do not question the district court's
reasons for imposing the equitable mortgage. However, Topaz argues that the property to be
impressed with this lien was not sufficiently identified in the documents, and therefore, the
equitable lien cannot be imposed. For an equitable mortgage to be imposed, there must be an
identifiable res. In order for an agreement to give a mortgage to be considered an equitable
mortgage it must clearly describe or point out the property intended to be charged with the
lien. 59 C.J.S. Mortgages 16 (1949 & Supp. 1992). In its judgment, the district court
imposed the lien on the assets and income of Topaz. This is what the documents specifically
stated would be the security to guarantee the loan repayment. While the defined property is
described in broad terms, Topaz agreed to the language, and the identification of the res as the
profits and income of a company is a sufficient identification of the property to be
encumbered by an equitable lien. See Sundheim v. School Dist., 166 A. 365 (Pa. 1933) (an
equitable lien is created on a particular fund when a written contract indicates an intention for
it to secure a debt); Field v. Lang, 32 A. 1004 (Me. 1895) (equitable liens may be applied to
rents and profits).
Since we have determined that Marsh should recover $121,000.00 plus interest and the
property to be subject to the lien was sufficiently described, the imposition of the equitable
lien by the district court is affirmed and the amount of the lien shall be increased to
$121,000.00.
Unjust Enrichment
[Headnote 11]
The district court limited the unjust enrichment claim against John and Virgie Arden to a
maximum of $10,000.00 and did not submit the claim to the jury for its decision, but instead
reserved that decision for itself to make at the conclusion of the trial. Without ruling on the
court's reservation of this issue, we conclude that limiting the recovery to a maximum of
$10,000.00 was error. A major portion of the loan proceeds ($87,000.00) went to the Federal
Land Bank in order to postpone foreclosure twice on the Ardens' Topaz ranch. Some of the
proceeds funded improvements on the ranch. Other portions of the loan proceeds went to
various parties, including a $6,000.00 commission to Roggenbihl which Marsh did not know
about.
Unjust enrichment is the unjust retention of a benefit to the loss of another, or the
retention of money or property of another against the fundamental principles of justice or
equity and good conscience. Nevada Industrial Dev. v. Benedetti, 103 Nev. 360, 363 n.2,
741 P.2d 802, 804 n.2 (1987). This court has observed that the essential elements of unjust
enrichment are a benefit conferred on the defendant by the plaintiff, appreciation by the
defendant of such benefit, and acceptance and retention by the defendant of such benefit.
Unionamerica Mtg. v. McDonald, 97 Nev. 210, 212, 626 P.2d 1272, 1273 (1981).
Postponing foreclosure on a property benefits the owner by reducing his or her total debt
and by allowing additional time to negotiate a sale. Improvements made to a property also
benefit the property owner. Thus, the proceeds used to postpone foreclosure and improve the
ranch at least indirectly benefited the Ardens and may have directly benefited them. If
permitted to consider these additional benefits to the Ardens, the jury or court may conclude
that they benefited by more than $10,000.00. See John A. Artukovich, Etc. v. Reliance Truck,
614 P.2d 327 (Ariz. 1980) (trucking company was liable to owner of crane under theory of
unjust enrichment because trucking company received a benefit by using the crane);
Restatement of Restitution 1 cmt. b (1937). Because these are questions for the jury or court
to consider, we reverse and remand to the district court for a new trial concerning the extent
of the Ardens' unjust enrichment.

Conclusion
Accordingly, we affirm the fraud judgment against Topaz and increase the contract
judgment to $121,000.00 plus interest. We also affirm the imposition of an equitable
mortgage levied against Topaz's assets and income and remand to the district court to increase
the amount of this lien as indicated. Finally, we reverse and remand for a new trial as to the
extent of the Ardens' unjust enrichment.
Respectfully, I dissent. Complex cases, like hard cases, make bad lawand this is indeed a
complex case. It presented difficult questions to the jury, the trial judge, and our court on
appeal. Moreover, the questions were considered in an atmosphere of profound sympathy for
Marsh, a person of advanced years who was cynically swindled out of $121,000.00 by three
unscrupulous men, Roggenbihl, Martin and Ruff.
It has been well said that a camel is a horse put together by a committee. I suggest that the
majority opinion is, figuratively speaking, a judicial camel. It not only perpetuates error
committed below, but enhances it at the appellate level. I respectfully submit, for reasons
stated hereinafter, that the matter should be sent back for a new trial before a properly
instructed jury on both liability and damages.
Facts
Events underlying the instant lawsuit are as follows: In 1985, Roggenbihl began living on
Marsh's property in Verdi, first, in a camping trailer and later, in her home while she was
away receiving medical treatment. He became her confidant and helper. Late in 1985, Marsh
paid Roggenbihl a ten percent commission for assisting her in the sale of water rights. She
apparently had so much confidence in him that at one time Marsh wanted him to serve as a
director and secretary of her corporation.
Roggenbihl learned that Topaz, a privately owned utility, was seeking financing to
improve its water system. He sought to create a financial arrangement that would be
beneficial to both Marsh and Topazand to himself through some type of finder's fee if a
loan was made.
An agreement, entitled Intent to Loan, was signed by Topaz and Marsh on March 21,
1986. It provided for a maximum loan by Marsh to Topaz in the amount of $121,000.00 at
sixteen percent interest. Loan purposes were expressly limited to: (a) paying the balance of an
existing loan for Phase One improvements; (b) paying the balance due a parent corporation
for advances made for Phase One; and {c) paying contractors and suppliers for
improvements to be completed under Phase Two.
advances made for Phase One; and (c) paying contractors and suppliers for improvements to
be completed under Phase Two. The agreement, which was prepared with Marsh's assistance
and carefully reviewed by her, provided that Topaz was obligated to provide Marsh with: (1)
a copy of the PSC's approval prior to any request for funding; and (2) a note and
assignment of all collections of surcharge from individual customer service and from each
collection of new hook-up fees.
Four months later on July 23, 1986, Topaz submitted its application to the PSC (as
required by law) for approval of financing in the amount of $93,187.84 with sixteen percent
interest. The PSC concluded that an institutional lender would probably give Topaz a lower
rate of interest. Consequently, the PSC conditioned its approval of a loan from Marsh upon
Topaz first approaching at least three other lenders to determine if money would be available
at less than sixteen percent. No such effort was ever made by Topaz. Phase Two
improvements were ultimately completed without borrowing by Topaz.
The Ardens, also elderly and in poor health (John Arden died before trial), wanted to retire
from real estate development and on October 1, 1986, entered into a contract of sale of their
properties with NLA, a partnership of Roggenbihl, Ruff and Martin. Included in the contract
of sale was the Topaz Ranch which was encumbered by a first deed of trust to the Federal
Land Bank; the note secured by the trust deed was in default. In the contract, NLA not only
agreed to purchase all the Arden properties (including the Topaz Ranch) but to assume all
liens and encumbrances.
In early October 1986, prior to the PSC's decision on Topaz's application for permission to
borrow (the decision was filed November 5, 1986), Roggenbihl fraudulently told Marsh that
the loan conditions had been met and asked Marsh to fund the Topaz loan. On October 8,
1986, Marsh made out a check to Topaz Mutual Company in the amount of $121,000.00 and
gave it to Roggenbihl. Roggenbihl mentioned this to Virgie Arden who immediately told him
that the check could not be accepted because the Topaz application had not been approved by
the PSC. Roggenbihl then returned the check to Marsh and fraudulently told her that another
check would be required.
1
Having an abiding confidence in Roggenbihl, Marsh gave him a
check dated October 21, 1986, in the amount of $121,000.00, payable not to Topaz,
Roggenbihl, Martin or Ruff, but to NLA.
__________

1
In support of this request, Roggenbihl prepared what was entitled a Contract and Note (dated October 18,
1986) in which, for the first time, he, Ruff and Martin, as well as Topaz, were shown as borrowers.
Marsh had no communication with the Ardens (who were directors of Topaz) concerning
the loan after the Intent to Loan was signed March 21, 1986, until July 1987. The
$121,000.00 check payable to NLA was deposited into NLA's checking account. The Ardens
were totally unaware of the fraud perpetrated by NLA and knew nothing of the check to NLA
until July 1987, almost ten months later. None of the $121,000.00 was ever received by
Topaz.
In return for the check to NLA, Marsh received: (1) a promissory note executed by NLA,
signed by Roggenbihl, Martin and Ruff; and (2) a Contract and Note signed by Roggenbihl,
Martin and Ruff. Although the Contract and Note and promissory note purported to pledge
assets of Topaz, they were not signed by the corporation nor by anyone on its behalf.
The verdict alone reflects the difficulty experienced by the jury in considering the issues.
The jury was permitted to pass on the issue of liability on the contract (Contract and Note
dated October 18, 1986), but not on damages resulting from the alleged breach. The court
arbitrarily set damages at $73,001.00.
I am at a loss to understand how the amount conditionally approved by the PSC
($73,001.00), three weeks after the fraud perpetrated by Roggenbihl, Martin and Ruff, is
probative of damages. Presumably, if the PSC had conditionally approved the full amount
sought in the Topaz application ($93,187.84), this would have been designated as the amount
of damages against Topaz for breach of a contract never executed by Topaz or on its behalf
and for failure to repay a loan which probably never would have been made!
Confusion also seemed to reign supreme when the jury determined damages for fraud. In
answers to special interrogatories, the jury set damages for each of five defendants at 1/4 of
$121,000 + interest. The five separate awards total $151,250.00. Did the jury intend a total
of $151,250.00 or only $121,000.00? If $151,250.00 was intended, presumably the award
against each would have been 1/5 of $151,250 + interest. The jury was apparently not
instructed on legal principles governing joint and several liability which probably contributed
to a sincere, but perhaps misguided, attempt to apportion tort damages.
Another perturbing fact was the treatment of the sum 1/4 of $121,000 + interest. May
the court simply ignore the + interest in the verdict form? The jury was instructed that
damages shall be the difference, if any, between the actual value of that which [Marsh]
received and the value which she would have had if the fraudulent misrepresentations had
been true.
The trial court awarded interest on the tort damage {$30,250.00 for each dependent)
"with interest thereon at the legal rate from February 3, 19SS" {the date the complaint
was filed).
($30,250.00 for each dependent) with interest thereon at the legal rate from February 3,
1988 (the date the complaint was filed). I respectfully submit that the jury, in awarding a
sum + interest, was strictly following the court's instruction. If the fraudulent
misrepresentations had been true, Marsh would have received sixteen percent interest
commencing October 18, 1986 (date of Contract and Note). From this date until the jury fixed
damages in its verdict (September 21, 1989) thirty-five months later, the interest would have
amounted to over $400.00 per month per defendant on the sums awarded.
2

I respectfully suggest that before the jury was discharged, the court and counsel should
have made an effort to resolve these disturbing issues. With proper instructions to the jury,
this could have readily been done.
In sum, the jury experienced a frustrating assignment. It was given the daunting task of
determining contract liability with insufficient instructions (as will be set forth hereinafter); it
was denied the opportunity to determine contract damages; it was inadequately instructed on
tort damages; and its award of interest as a component of tort damages was ignored by the
court although the jury was dutifully following instructions.
I suggest that the problems in connection with the jury alone taint the judgment and
warrant a new trial.
The contract claim against Topaz is predicated upon two documents, a promissory note
dated October 8, 1986, in the amount of $121,000.00 payable to Marsh or her survivors
3
and
a document entitled "Contract and Note With Topaz Water Company Inc. and Tony Wesley
Martin, Gordon V.
__________

2
Arguably, the sixteen percent interest should be computed only until the complaint was filed (February 3,
1988). If $121,000.00 had been awarded with joint and several liability, interest would have amounted to
$19,370.00 per year or over $1,600.00 per month for whatever period would be appropriate.

3
The promissory note read as follows:
PROMISSORY NOTE
$121,000.00
Dated: October 8, 1986
For value received, the undersigned, NEVADA LANDS ASSOCIATION, A Nevada General Partnership, with
principal office for the transaction of its' business at 425 Gentry Way #B, Reno, Nevada 89502 does hereby
promise to pay Florence Marsh or her survivors the principal sum of One Hundred Twenty One Thousand
Dollars ($121,000.00) together with interest thereon of sixteen percent (16%) per annum on decreasing balance
from the eighth day of October, 1986 until paid in full. Payments are due the eighth of each month.
Public Service Commission is scheduled to come on line within 60 days. Interest only on principal will be paid
until Public Service Commission comes on line at the rate of sixteen percent (16%) per annum. Payments on
principal and interest will commence thereafter.
This note is secured by the assets of Topaz Mutual Water Company Inc., a Nevada Corporation in an amount
equalling the face value of this promissory note. The present total assets of Topaz Mutual Water Company Inc.
include
entitled Contract and Note With Topaz Water Company Inc. and Tony Wesley Martin,
Gordon V. Ruff and William R. Roggenbihl.
4

__________
$1,335,000.00 of water rights plus office and physical assets of: $1,469,725.00.
The maker hereof waves demand, notice, protest and diligence and the maker hereof further promises that if this
Note and the interest thereon are not fully paid as above provided, it will pay all costs and expenses, including a
reasonable attorney's fee, that may be incurred in collecting this Note or any part thereof.
Nevada Lands Assoc.
A Nevada General
Partnership
s/
- - - - - - - - - - - - - - - -

Tony Wesley Martin,
Partner
s/
- - - - - - - - - - - - - - - -

Gordon V. Ruff, Partner
s/
- - - - - - - - - - - - - - - -

William R. Roggenbihl
STATE OF NEVADA }
} ss.
COUNTY OF WASHOE }
On this 13th day of October, 1986 personally appeared before me, the undersigned, a notary public in and for
the County and State aforesaid, TONY WESLEY MARTIN, GORDON V. RUFF, AND WILLIAM R.
ROGGENBIHL, general partners, known to me to be the person described in and who executed the within
instrument, and who acknowledged to me that they executed the same freely and voluntarily and for the uses and
purposes therein mentioned.
s/
-------------------------------------------

LORRAINE W. YOUNG

4
The Contract and Note reads as follows:
CONTRACT AND NOTE WITH TOPAZ WATER COMPANY INC.
AND TONY WESLEY MARTIN, GORDON V. RUFF AND
WILLIAM R. ROGGENBIHL
Florence Marsh agrees to loan the sum of $121,000.00 to Topaz Mutual Company and Tony Wesley Martin,
Gordon V. Ruff, and William R. Roggenbihl who agree to secure said loan with sufficient personal assets as to
guarantee the whole amount of the aforementioned principle [sic]. Interest payments are to be made at the rate of
16% annually, and paid on the eighth of every month. Terms of the loan shall be in effect for no less than one
year from the date of signing this agreement and no longer than three years from the date of the signing of this
contract.
The signers of this contract are declared individually and jointly responsible for repayment of this note and agree
to underwrite the contract by pledge of personal credit as well as income derived from sale of water and other
assets of Topaz Mutual Co. as security for the principal amount of $121,000.00 and all accrued interest when
due.
In the event of default by Topaz Mutual Co. or failure to make timely payment on interest and principle [sic]
sums agreed upon in attached note, the signatories agreed to personally carry the loan until such time as Topaz
Mutual Company can carry the loan obligation.
In the event that Topaz Mutual Company is sold this note and contract IS NOT TRANSFERABLE to new
ownership and becomes due and payable at
In the promissory note, the obligor clearly was NLA. On the day this was executed, Marsh
gave Roggenbihl a check payable to Topaz in the amount of $121,000.00
Upon being advised of this by Roggenbihl, Virgie Arden told him that Topaz could not
borrow money until the PSC approved its application. The borrowing of money by Topaz
without PSC approval or assumption of liability by Topaz in violation of NRS 704.323 would
subject any person involved to criminal penalties. NRS 704.640. The expenditure of any
funds for purposes not approved by the commission is also prohibited by statute. NRS
704.325.
Roggenbihl, Martin and Ruff then went back to the drawing board and prepared the
Contract and Note wherein they themselves were designated as borrowers along with Topaz.
Pursuant to this document, Marsh gave Roggenbihl a check payable not to Topaz, but to
Nevada Lands Association in the amount of $121,000.00. This Contract and Note was not
signed on behalf of Topaz although the document states in the second paragraph that the
"signers . . . agree to underwrite the contract by pledge . . . of income derived from sale of
water and other assets of Topaz Mutual Co. . . . ."
The signers were Roggenbihl, Ruff and Martin and the acknowledgement, identical except
for the date, indicated that they signed as "general partners"presumably of NLA.
__________
time of sale in the sum of the principle [sic] amount of $121,000.00 together with all interest to the end of
calendar year in which said sale is consummated.
In the regular course of events this contract and note may, at the beneficial agreement of parties concerned, be
opened for negotiation at the end of the third full calendar year from the time of the original date of signatory
agreement.
All legal charges and fees required to ensure the timely execution of this contract and its terms shall be bourne
[sic] by the Topaz Mutual Company as an integral part of this agreement.
It is acknowledged and agreed that there is no prepayment privilege on this note for the three year period from
date of signature, however in the event Topaz Mutual Co. wishes to retire this note and contract said company
may, contingent on agreement of Florence Marsh, retire the note and remaining interest due.

s/
- - - - - - - - - - - - - - - -
Tony Wesley Martin
s/
- - - - - - - - - - - - - - - -

Gordon V. Ruff
s/
- - - - - - - - - - - - - - - -

William R. Roggenbihl
STATE OF NEVADA }
} ss.
COUNTY OF WASHOE }
On this 18th day of October, 1986, personally appeared before me, the undersigned a notary public in and for
the County and State aforesaid, TONY WESLEY MARTIN, GORDON V. RUFF, WILLIAM R.
ROGGENBIHL, general partners, known to me to be the persons described and who executed the within and
foregoing instrument, and who acknowledged to me that they executed the same freely and voluntarily and for
the uses and purposes therein mentioned.
s/
-------------------------------------------

LORRAINE W. YOUNG
the signers . . . agree to underwrite the contract by pledge . . . of income derived from sale of
water and other assets of Topaz Mutual Co. . . . .
The signers were Roggenbihl, Ruff and Martin and the acknowledgement, identical except
for the date, indicated that they signed as general partnerspresumably of NLA. To the
extent that the document purported to create liability or put a lien on Topaz's income or
assets, it was in violation of NRS 704.323 because no approval had been given or was ever
given for Topaz to borrow or provide security. The Ardens did not become aware of the
Marsh payment to NLA until July of the following year. None of the Marsh money ever went
into a Topaz account or benefitted Topaz in any way.
Put in perspective, what happened was simply that three rogues fraudulently took money
that Marsh thought was going to Topaz and cynically used it for their own purposes. Trial
was largely devoted to determining whether Topaz and the Ardens would be liable for the
wrongdoing of three scoundrels as a result of the Ardens entering into a contract on October
1, 1986, to sell their properties to NLA. The partners in NLA at the time the contract was
executed were Ruff and Martin. Subsequently, and in apparent recognition of his
demonstrated ability to raise funds, Roggenbihl was given a minor partnership interestand a
$6,000.00 finder's fee.
The majority opinion predicates its decision to increase the damages on the Contract and
Note from the $73,001.00 (the sum awarded by the trial court) to $121,000.00 (the sum
referred to in the Contract and Note) upon the fraudulent conduct of its officers and directors
. . . .
I respectfully submit that this sweeping characterization is not supported by the record.
The principal architect of the fraud was Roggenbihl, a confidant of Marsh, and the only
person from either NLA or Topaz in contact with her. Neither of the Ardens saw Marsh from
March 1986 (when the Intent to Loan was signed) until August 1987.
5

Ruff and Martin were arguably directors of Topaz as a result of the October 1, 1986,
agreement between NLA and the Ardens. Ruff never met Marsh until the August 1987
meeting called by Virgie Arden. Martin informally met Marsh in 1985 but neither saw her nor
communicated with her until the August meeting in 1987. Roggenbihl was neither a director
nor officer of Topaz. The Ardens remained directors of Topaz and assuming the October 1,
19S6, sales agreement made Ruff and Martin also directors, there were no board
meetings where receipt of funds from Marsh were discussed.
__________

5
Marsh called Virgie Arden in July 1987 complaining about nonpayment of the note. This was the first
information received by the Ardens of the Marsh check to NLA dated October 18, 1986, and caused Virgie
Arden to call a meeting in August.
1986, sales agreement made Ruff and Martin also directors, there were no board meetings
where receipt of funds from Marsh were discussed. To have borrowed money without PSC
approval would have exposed the directors to criminal penalties. Virgie Arden specifically
told this to Roggenbihl when he advised her that he had a $121,000.00 check from Marsh for
Topaz. This necessitated a change in strategy by Roggenbihl; he then resourcefully caused the
Contract and Note to be drafted where he, Martin and Ruff would be borrowersand the
check ultimately was made payable to NLA (by which time he was then presumably a partner
for his distinguished fund-raising ability).
Neither the promissory note nor the Contract and Note was signed by or on behalf of
Topaz. Even if signed by Topaz, it would have been necessary to show actual or apparent
authority. Dixon v. Thatcher, 103 Nev. 414, 742 P.2d 1029 (1987). Clearly there was no
actual authority here. This is generally in the form of a board resolution authorizing an agent's
conduct.
The next inquiry is to whether Roggenbihl had implied or apparent authority to bind
Topaz. Apparent authority may under certain circumstances be predicated on estoppel where
a principal holds his agent out as possessing or permits him to exercise or to represent himself
as possessing under such circumstances as to estop the principal from denying its existence.
Orbit Stations, Inc. v. Curtis, 100 Nev. 205, 207, 678 P.2d 1153, 1154 (1984).
I suggest that the evidence here does not establish estoppel. None of the directors or
officers had been in touch with Marsh. Topaz's position was set forth in the Intent to Loan
agreement with Marsh going back to March 1, 1986, which indicated that a copy of the PSC
approval would be furnished prior to any request to borrow. The Ardens presumed they had
stopped any efforts to borrow for Topaz when Virgie Arden told Roggenbihl that the PSC had
not approved the Topaz application and therefore the October 8, 1986, check could not be
accepted. Roggenbihl, who was not acting with authorization from Topaz in obtaining the
check in the first place, then returned it to Marsh and inveigled her out of another check for
$121,000.00, this time payable to NLA with the loan said to be secured by the Contract and
Note, which although purporting to be an obligation of Topaz and pledge of its assets, was
not signed by Topaz.
The acts of Roggenbihl without more do not create an estoppel. In this respect it is stated
in 1 Mecham On Agency (Second Edition) 513, secs. 725, 726, (Liability by estoppel):
The acts of the agent in question can not be relied upon as alone enough to support an
estoppel. If his acts are relied upon there must also be evidence of the principal's
knowledge and acquiescence in them.
Moreover, in any case, the reliance must have been a reasonable one, consistent
with the exercise of reasonable prudence, and the party who claims reliance must not
have closed his eyes to warning or inconsistent circumstances. . . . If the inferences
against the existence of the authority are just as reasonable as those in favor of it, there
can be no reliance within this rule.'
Ellis v. Nelson, 68 Nev. 410, 419, 233 P.2d 1072, 1076 (1951).
Probably blinded by her confidence in Roggenbihl, there is substantial evidence that
Marsh failed to heed clues that Roggenbihl, Martin and Ruff were acting outside the scope of
their authority. Marsh had helped draft the Intent to Loan document signed by Topaz and
herself. She knew a request to borrow had been submitted to the PSC. She knew from the
language of the promissory note that PSC approval had not occurred. She knew that under the
Intent to Loan agreement, Topaz will provide lender with a copy of the commission's order
prior to any request for funding. She knew the first check (payable to Topaz) had been
returned to her. She knew that neither the promissory note nor Contract and Note was signed
by Topaz. She knew the check of October 21, 1986, was made out to Nevada Lands
Association. She was manifestly put on notice that something unusual was occurring.
In view of the foregoing, it was error for the court to refuse the following instruction
offered by Topaz:
A director or directors of a corporation may bind the corporation to a contract only if
the purpose and object of the director is to enter into the contract for the benefit of the
corporation. If a director or directors enter into a contract for personal benefit, then the
contract does not bind the corporation unless ratified by either a majority of the
stockholders or the board of directors.
I further submit that the court erred even more egregiously in giving Jury Instruction No.
20 which provided as follows:
For Topaz Mutual Company to be liable to plaintiff on the Contract and Note, the
plaintiff must prove the following by a preponderance of the evidence:
1. The execution of the Contract and Note on behalf of Topaz Mutual by its directors
or its agent;
2. That by a check dated October 21, 1986, Mrs. Marsh intended to lend $121,000 to
Topaz Mutual Company;
3. That the condition of paragraph six of the November 5, 1986, Public Service
Commission order was satisfied.
Topaz's counsel objected to subsection 3 of this instruction and suggested that the jury
should instead be given the chance to decide whether there had been approval of the loan
pursuant to NRS 704.323, which provides in relevant part: "No privately owned public
utility . . . shall issue any security, or assume any obligation as guarantor, endorser,
surety or otherwise, in respect of any security of any other person, firm or corporation,
unless and until, and only to the extent, authorized by a written order of the commission."
suggested that the jury should instead be given the chance to decide whether there had been
approval of the loan pursuant to NRS 704.323, which provides in relevant part: No privately
owned public utility . . . shall issue any security, or assume any obligation as guarantor,
endorser, surety or otherwise, in respect of any security of any other person, firm or
corporation, unless and until, and only to the extent, authorized by a written order of the
commission. (Emphasis added.)
Marsh's payment to NLA occurred more than two weeks prior to the PSC order and the
condition of paragraph six of the PSC order was never satisfied. Under paragraph six, Topaz
was to make diligent efforts to finance Phase II improvements . . . at less than sixteen
percent interest. Only after demonstrating to staff that their efforts have failed may the
applicant obtain financing at sixteen percent interest.
Indisputably, Topaz made no effort to obtain financing at less than sixteen percent interest.
Thus, there was never approval by PSC staff and no authorization under Nevada law. In view
of the uncontroverted evidence that the conditions had not been satisfied, it was error to even
present to the jury an opportunity to find it had been satisfied. To conclude there was
contractual liability, the jury had to find the condition of paragraph six was satisfied and there
was no evidence to support the finding.
The trial court denied the claim by Marsh against Topaz based on the promissory note
dated October 8, 1986, in the amount of $121,000.00. The claim was dismissed by the court
on a motion pursuant to NRCP 41(b) because it was signed only in the name of NLA
Partnership. The acknowledgement shows it was signed by Tony Wesley Martin, Gordon V.
Ruff, and William R. Roggenbihl, general partners.
However, the court found contractual liability against Topaz on the Contract and Note of
October 18, 1986, notwithstanding that it was signed by the same three individuals. The
check was made payable to Nevada Lands Association who was not even named as a
borrower! The acknowledgement on this document, except for the date, was identical to that
on the promissory note, and indicated that the parties affixed their signatures as general
partners.
The court apparently concluded that: (1) the $121,000.00 loan to NLA by Marsh was really
a loan to Topaz; (2) a PSC approval on a conditional order more than two weeks later in
November somehow related back to the October date of the check; (3) compliance with the
conditions had either occurred or was unnecessary; and (4) the $121,000.00 check to NLA
created a $73,001.00 loan repayment obligation for Topaz even though Topaz received none
of the money and the conditions of the PSC order had not been met!
I suggest that the trial court erred. On the surface, the loan was not to Topaz. To the extent
that by estoppel or otherwise it might be deemed to be a Topaz loan, it was clearly in
violation of law and would subject all parties, presumably even the Ardens (who were not
aware of the payment until ten months later), to criminal penalties. NRS 704.640.
My colleagues in the majority concede that NRS 704.323 presents a problem to find
contract liability by saying that [n]ormally, the statutes that regulate public utilities should be
given full force and effect, and loans or other transactions with utilities which have not
secured PSC approval will be deemed voidable and thus unenforceable. However, the facts of
this case compel us to reach a different result.
The opinion rationalizes its disregard of the clear provisions of NRS 704.323 by saying
that unless liability is enforced in the amount of $121,000.00,
6
we will be permitting the
utility to profit from its own wrongful conduct. This we will not do.
Just what profit the majority found to have gone to the utility is unfortunately not
described. The evidence is undisputed that not one cent of the money fraudulently acquired
by Roggenbihl, Ruff and Martin was ever received by Topaz. Any money going to
Roggenbihl, Ruff and Martin was obviously not profit to Topaz.
I submit that the majority's perception of profit accruing to Topaz would not overcome
the clear statutory bar to contract liability. To conclude otherwise would make statutory law
subservient to the law of judges. This I submit would be inconsistent with our system of
justice. As Justice Cardozo wisely pointed out, [t]he Constitution overrides a statute, but a
statute if consistent with the Constitution overrides the law of judges. Benjamin M. Cardozo,
The Nature of the Judicial Process 14 (1921).
Turning now to the lien upon the assets of Topaz, I suggest that the trial court erred in
granting an equitable lien upon the assets of Topaz Mutual for the sum of $73,001.00. The
trial judge's decision was predicated upon both the promissory note and Contract and Note.
Ruling upon an NRCP 41(b) motion, the court rejected Marsh's contract claim on the
promissory note against Topaz because it was signed only by the partnership. Upon its face,
the promissory note violated NRS 704.323 by purporting to pledge Topaz's assets before PSC
approval. Having properly rejected contract liability on the note, I submit it was contrary to
both logic and law to then find the same note was somehow a predicate for an equitable lien
on all of Topaz's assets.
Similar arguments can be made against creating a lien on the Topaz assets by the terms
of the Contract and Note.
__________

6
The record shows that $20,028.78 was received from Virgie Arden and the estate of John Arden with
partial satisfaction filed April 4, 1991.
Topaz assets by the terms of the Contract and Note. It was in violation of law when signed,
no money was received by Topaz as a result of the note, it was not signed on behalf of Topaz,
and the document by its express terms states that the signers of the contract pledge the
income and assets of Topaz. By no stretch of the imagination or through any innovative legal
doctrine can Topaz be deemed a signer.
There is a sound public policy behind NRS 704.323, namely, to protect utility customers
from the threat of illegal or improvident management. The majority opinion increases the
amount of contract liability to $121,000.00 and includes both income and assets in property
covered by the equitable mortgage. The majority opinion then reassuringly states, None of
the burdens of this judgment should be passed on or charged to its ratepayers, but rather borne
solely by Topaz.
The logic of this comforting rhetoric must yield to the logic of reality. The record shows
that litigation regarding the lien commenced shortly after judgment was entered January 19,
1990, when the legal equivalent of World War III erupted. Marsh served a writ of
garnishment on Topaz seeking $174,659.29. Within several weeks, the PSC moved for an
order deciding that the funds belonged to the ratepayers. Three days later, the Topaz Ranch
Estate Property Owners Association became a participant in the melee, and on April 11, the
Attorney General's Office of the Advocate for Customers of Public Utilities entered the fray.
The record does not reflect what thereafter happened but presumably a good time was had by
all, particularly the lawyers. Maybe the participants are waiting for enlightenment from this
court. This is precisely a situation that NRS 704.323 was designed to preventand would
have done so if it had been properly followed.
The court next turns its attention to the unjust enrichment claim against John and Virgie
Arden which was limited by the trial court to a maximum of $10,000.00, the sum received by
them from NLA on October 24, 1986.
On October 1, 1986, the Ardens had contracted to sell their holdings to NLA, including the
Topaz Ranch upon which foreclosure occurred. By this agreement, NLA was to pay
$10,000.00 every thirty days to the Ardens. This $10,000.00 received from NLA was the first
of such payments. The Ardens were unaware of the source of the money or of the loan by
Marsh to NLA until nearly ten months after it was made.
The majority contends that because $87,000.00 was fraudulently used by NLA to prevent
foreclosure on a property under contract of sale to NLA, this benefitted the Ardens. The
Federal Lank Bank, after a several month postponement, foreclosed on the property.
My colleagues suggest that the delay in foreclosure may have somehow benefitted the
Ardens because it provided more time to find a buyer. Such a benefit, if quantifiable at all,
would have redounded not to the benefit of the Ardens but to NLA which had contracted to
purchase the property from the Ardens and assume the encumbrances. The opinion alludes
vaguely to other direct and indirect benefits but regrettably does not provide any illumination
as to what they are.
It is difficult, from the record, to hold that a jury or court would conclude that the Ardens
benefitted by more than $10,000.00if by that amount. The trial court considered all of the
evidence and imposed this limit which has been paid. It would appear there is substantial
evidence to support the trial court's judgment, and not being clearly erroneous, I find no basis
for reversing and permitting Marsh to have another jury trial to seek more damages for unjust
enrichment.
One cannot but feel sympathy for Marsh who was victimized by an unscrupulous confidant
and his two greedy associates. Their actions were instinct with fraud; liability was easy to
find. However, the liability of Topaz and the Ardens is far less clear. Even the trial judge
admitted that evidence of fraud against Topaz was skimpy. The defendants were entitled to
something they did not receivea fair trial with a properly instructed jury.
The majority opinion was fashioned in part from the jury deliberations, in part from the
judgment of the court, and in part from the majority's perceptions. I respectfully submit that
the combination of the three parts from the camel alluded to, perhaps somewhat
irreverently, at the beginning of my dissent.
For reasons stated, I suggest that this judicial camel should be put in a caravan heading
back to the lower court for a new trial.
____________
108 Nev. 869, 869 (1992) Sheriff v. Harrington
SHERIFF, CLARK COUNTY, NEVADA, JOHN T. MORAN, Appellant, v. THOMAS
EDWARD HARRINGTON, Respondent.
No. 23319
October 22, 1992 840 P.2d 588
Appeal from an order of the district court granting respondent's pretrial petition for a writ
of habeas corpus. Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Defendant filed pretrial petition for writ of habeas corpus based on claim that state had
failed to present exculpatory evidence to grand jury which indicted him on charge of felony
driving under the influence (DUI). Petition was granted by the district court and state
appealed.
district court and state appealed. The supreme court held that ruling by justice of peace that
defendant's prior driving under the influence conviction was invalid was not evidence
required to be presented to grand jury in subsequent felony DUI proceeding.
Joseph W. Houston, II, Las Vegas, for Respondent.
1. Automobiles.
Evidence to substantiate existence of defendant's 1990 driving under the influence conviction established that defendant was
represented by counsel at that time, and thus, such conviction was valid for purposes of enhancing subsequent driving under the
influence (DUI) charge to felony DUI.
2. Grand Jury.
Ruling by justice of peace that defendant's prior driving under the influence conviction (DUI) was invalid was not evidence
required to be presented to grand jury in subsequent felony DUI proceeding, but rather, was opinion on legal issue not tending to
negate defendant's guilt. NRS 172.145, subd. 2, 484.3792, subds. 1(c), 2.
OPINION
Per Curiam:
This is an appeal by the state from an order of the district court granting respondent
Harrington's pretrial petition for a writ of habeas corpus.
[Headnote 1]
On December 9, 1991, and December 17, 1991, a preliminary hearing was held on various
charges against Harrington. Following the preliminary hearing, the justice of the peace
dismissed Count I, felony driving under the influence of intoxicating liquor. The justice of the
peace dismissed the felony DUI count based on his conclusion that Harrington's prior DUI
conviction from 1990 was constitutionally infirm for enhancement purposes.
1
Having been
unsuccessful in the preliminary hearing, the state next went before the grand jury.
__________

1
We note that the justice of the peace erred in concluding that Harrington's prior DUI conviction from 1990
was constitutionally infirm for enhancement purposes. The evidence presented to the justice of the peace to
substantiate the existence of Harrington's 1990 conviction, when taken together, demonstrates that Harrington
was represented by counsel and that the spirit of constitutional principles was respected. Thus, Harrington's 1990
conviction was valid for enhancement purposes. See Dressler v. State, 107 Nev. 686, 819 P.2d 1288 (1991)
(citing Koenig v. State, 99 Nev. 780, 672 P.2d 37 (1983)).
Having been unsuccessful in the preliminary hearing, the state next went before the grand
jury. Following a hearing on January 9, 1992, the Clark County Grand Jury returned a true
bill. On January 10, 1992, the state filed an indictment against Harrington charging him with
felony DUI. The indictment charged that Harrington had previously been convicted of DUI in
Las Vegas, Nevada, on both August 15, 1989, and December 18, 1990.
On February 25, 1992, Harrington filed a pretrial petition for a writ of habeas corpus based
on a claim that the state had failed to present exculpatory evidence to the grand jury.
Specifically, Harrington claimed that the state should have presented to the grand jury the fact
that in the preliminary hearing, the justice of the peace determined that Harrington's 1990
DUI conviction was constitutionally infirm for enhancement purposes. The state opposed
issuance of the writ. On April 22, 1992, the district court entered an order granting
Harrington's petition and dismissing the case. This appeal followed.
[Headnote 2]
If the district attorney is aware of any evidence which will explain away the charge,
he shall submit it to the grand jury.
In Sheriff v. Frank, 103 Nev. 160, 165, 734 P.2d 1241, 1244 (1987), this court held that a
deputy district attorney violated his duty under NRS 172.145(2) by failing to submit evidence
to the grand jury which had a tendency to explain away the charge against the defendant.
After examining the record, we conclude that the district court erred in granting
Harrington's pretrial petition for a writ of habeas corpus. Specifically, we conclude that the
ruling of the justice of the peace was not evidence regarding the charge, but was rather an
opinion on a legal issue. Such an opinion is not evidence, and it does not tend to negate
Harrington's guilt. It could not, for example, be introduced at trial as evidence of Harrington's
guilt of the instant offense. See NRS 484.3792(2) ([t]he facts concerning a prior offense
must . . . not be read to the jury or proved at trial but must be proved at the time of
sentencing); Koenig v. State, 99 Nev. 780, 783-84, 672 P.2d 37, 39 (1983) (former NRS
484.379(5), cf. NRS 484.3792(1)(c), does not set forth a separate offense specifying prior
convictions as separate elements). The fact that the justice of the peace, following a
preliminary hearing, did not bind an accused over on a particular charge is simply part of the
procedural history of the case. It is not evidence regarding the accused's guilt.
2
Accordingly,
we reverse the order of the district court granting Harrington's pretrial petition for a writ
of habeas corpus and remand this case to the district court for further proceedings
__________

2
A second potential issue exists as to whether the district court erred by
Accordingly, we reverse the order of the district court granting Harrington's pretrial
petition for a writ of habeas corpus and remand this case to the district court for further
____________
108 Nev. 872, 872 (1992) Brust v. State
SHAWN BATISTA BRUST, Appellant v. THE STATE OF NEVADA, Respondent.
No. 21869
October 22, 1992 839 P.2d 1300
Appeal from a judgment of conviction based upon a jury verdict of two counts of sexual
assault on a child under the age of fourteen and one count of lewdness with a child under the
age of fourteen; Fourth Judicial District Court, Elko County; Joseph O. McDaniel, Judge.
The supreme court held that: (1) evidence sustained finding that defendant's confession
was voluntary, and (2) any error in admitting videotape of child's statements was harmless.
Affirmed.
Easterly & Armstrong, Elko, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Marshall Smith, District Attorney,
Cheryl Day Schorr, Deputy District Attorney, Elko County, for Respondent.
1. Criminal Law.
Confession is involuntary if it was coerced by physical intimidation or psychological pressure.
2. Criminal Law.
If substantial evidence supports district court's finding that confession was voluntary, district court did not err in admitting the
confession.
3. Criminal Law.
Finding that defendant's statement to police officer was voluntary was supported by evidence that, although officer made
statements regarding leniency and told defendant that he needed help, officer repeatedly stated that he could make no promises and told
the defendant that his job was to gather evidence against the defendant and by evidence that defendant was read his Miranda rights and
waived those rights.
__________
granting Harrington's petition purely on the basis that exculpatory evidence had not been presented. Even if the evidence in question had
been exculpatory, the further issue remained as to whether the failure to present it destroyed the existence of an independent and informed
grand jury. See Sheriff v. Frank, 103 Nev. 160, 166, 734 P.2d 1241, 1245 (1987). We find it unnecessary to reach this issue.
108 Nev. 872, 873 (1992) Brust v. State
4. Criminal Law.
Videotape showing state psychologist interviewing child victim was hearsay even when offered to show jury how psychologist
interviewed small children because it contained child's out-of-court statements describing sexual assault by defendant. NRS 51.035.
5. Criminal Law.
It was error for trial court not to make determination of trustworthiness of child victim's videotaped statements at a separate
hearing before admitting the videotape. NRS 51.385, subd. 1.
6. Criminal Law.
Trial court's failure to conduct separate trustworthiness hearing before admitting videotape containing hearsay statements of child
victim of sexual offense was harmless where district court had already listened to the child's trial testimony and the testimony of the
psychologist and had been told that the videotape was repetitive of the child's trial testimony. NRS 51.385, subd. 1.
7. Criminal Law.
Because child's testimony on videotape was the same as that given at trial, defendant's right to confront and cross-examine the
child was not affected by any error in admission of the videotape.
OPINION
Per Curiam:
On October 11, 1990, the appellant, Shawn Batista Brust (Brust), was convicted of two
counts of sexual assault on a child under the age of fourteen and one count of lewdness with a
child under the age of fourteen. All of these incidents involved Brust's niece, who was five
years old when the incidents occurred. Brust was sentenced to life imprisonment on each of
the sexual assault counts and to three years in prison on the lewdness count; the sentences are
running concurrently.
At Brust's trial, the jury was allowed to hear several arguably incriminating statements
made by Brust when he was interviewed by the police at the Elko County Jail.
1
In addition,
the complaining witness, Brust's niece, testified. Dr. Joann Lippert, a child psychologist who
had interviewed the child at the State's request, also testified. The jury was then allowed to
view part of a previously videotaped interview between the child and Dr. Lippert to
demonstrate the techniques of [Dr. Lippert] in interviewing a small child.
2

[Headnote 1]
On appeal, Brust contends that his statements to the police were not voluntary but were
coerced because the police impliedly promised leniency.
__________

1
Brust had previously filed a motion to suppress this confession; the district court, however, denied the
motion.

2
On July 23 and 24, 1990, Dr. Joann Lippert conducted two interviews of the child; Dr. Lippert videotaped
both interviews.
108 Nev. 872, 874 (1992) Brust v. State
promised leniency. We disagree. We have held that [a] confession is admissible only if it is
made freely and voluntarily, without compulsion or inducement. 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)). Specifically, a confession is involuntary if it was coerced by physical
intimidation or psychological pressure. Passama at 214, 735 P.2d at 322-23. We conclude
that Brust's testimony was made voluntarily and that it was not coerced.
In Passama, 103 Nev. at 226, 735 P.2d at 323, we enunciated a totality of the
circumstances test to be used in determining whether a confession is voluntary:
To determine the voluntariness of a confession, the court must consider the effect of the
totality of the circumstances on the will of the defendant. The question in each case is
whether the defendant's will was overborne when he confessed. Factors to be
considered include: the youth of the accused; his lack of education or his low
intelligence; the lack of any advice of constitutional rights; the length of detention; the
repeated or prolonged nature of questioning; and the use of physical punishment such
as the deprivation of food or sleep.
(Citations omitted.) We also noted in Passama that promises made to the defendant are
critical in determining whether the confession was voluntary: If these promises, implicit and
explicit, tricked [the defendant] into confessing, [the] confession was involuntary. Id. at 215,
735 P.2d at 323.
3
Subsequently, in Rowbottom v. State, 105 Nev. 472, 482, 779 P.2d 934,
941 (1989), we noted that each [confession] situation should be evaluated according to its
particular facts and circumstances. In the present case, the district court applied Passama to
the specific facts involved and determined that Brust's statement was voluntary considering
the totality of the circumstances.
[Headnote 2]
On appeal, if substantial evidence supports the district court's finding that the confession
was voluntary, then the district court did not err in admitting the confession. Rowbottom, 105
Nev. at 483, 779 P.2d at 941. Substantial evidence has been defined as evidence that a
reasonable mind might accept as adequate to support a conclusion.'" First Interstate Bank of
Nevada v. Jafbros Auto Body Inc.,
__________

3
In Passama, the officer used a carrot and stick approach and continually urged the defendant to talk. The
officer stated that if the defendant was lying, the officer would see that he went to prison. In addition, the officer
expressly stated that if the defendant told the truth, the officer would help. Id. We determined that Passama's
confession was coerced, and therefore involuntary; thus, Passama's due process rights were violated when the
confession was admitted at trial. Id. at 216, 735 P.2d at 324.
108 Nev. 872, 875 (1992) Brust v. State
support a conclusion.' First Interstate Bank of Nevada v. Jafbros Auto Body Inc., 106 Nev.
54, 56, 787 P.2d 765, 767 (1990) (citation omitted).
[Headnote 3]
We conclude that the district court's decision to admit Brust's statements is supported by
substantial evidence. Although Detective Ladd did make suggestive statements regarding
leniency and did tell Brust that Brust needed help, Detective Ladd repeatedly stated that he
could make no promises and told Brust that his job was to gather evidence against Brust.
4
In
addition, Detective Ladd read Brust his Miranda Rights, Brust waived these rights, and Brust
was not interviewed for a particularly long time. At the onset of the interview, Detective Ladd
reiterated that Brust did not have to talk if he did not want to talk. Finally, Brust was not
physically intimidated or abused during the interview process.
In Laursen v. State, 97 Nev. 568, 570, 634 P.2d 1230, 1231 (1981), we summarized the
process of admitting a possibly coerced statement as follows:
Nevada follows the Massachusetts rule when the voluntariness of a defendant's
statement is put in issue. Under this rule, the trial judge receives evidence on the
voluntariness of the statement and determines whether the statement was voluntary. If
so, it is admitted. However, the court must later submit the issue by appropriate
instruction to the jury.
In the present case, the district judge determined that Brust's statements were voluntary and
properly instructed the jury on the voluntariness of statements. We conclude that the district
judge did not err in determining that Brust's statements were voluntary and that the district
court properly admitted them.
__________

4
Brust argues that incriminating statements induced by promises of leniency should be suppressed. He relies
on cases from several jurisdictions holding that express promises of leniency result in involuntary confessions as
a matter of law. See People v. Koesterer, 358 N.E.2d 295 (Ill.App. 1976); State v. Tardiff, 374 A.2d 598 (Me.
1977); State v. Ely, 390 P.2d 348, 350 (Or. 1964). Brust also relies on State v. Dye, 36 Nev. 143 (1913). In Dye,
the defendant was told by the complaining witness that the complaining witness wanted only the head man and
did not want Dye to go to prison. The complaining witness also stated, Bill, you ain't to blame. It is others I
blame. Id. at 145. Thus, in Dye, the complaining witness directly represented to Dye that Dye would not be
punished. Although some of the statements made to Dye were similar to statements made to Brust in the present
case, we conclude that the cases are factually distinguishable as no representations were made to Brust that he
would not be prosecuted. In fact, the opposite is true; Detective Ladd told Brust that his job was to gather
evidence against Brust and to lock him up and that the child-victim (the complaining witness) would be
testifying against him.
108 Nev. 872, 876 (1992) Brust v. State
[Headnote 4]
Brust also argues that the district court erred when it allowed the jury to view the
videotaped interview between the child and Dr. Lippert, the State's psychologist. Even though
the videotape may have effectively shown the jury how the psychologist interviews small
children, the videotape was still hearsay, as it contained the child's out-of-court statements
describing the sexual assaults. See NRS 51.035. Brust maintains that his right to confront and
cross-examine the child was disregarded when the jury was allowed to view the videotape. In
addition, he correctly contends that, at the very least, the court should have conducted a
hearing as required under NRS 51.385.
NRS 51.385(1) is an exception to the hearsay rule; it allows a child's out-of-court
statement describing sexual conduct to be admitted. Specifically, NRS 51.385(1) states the
following:
In addition to any other provision for admissibility made by statute or rule of court, a
statement made by a child under the age of 10 years describing any act of sexual
conduct performed with or on the child is admissible in a criminal proceeding regarding
that sexual conduct if the:
(a) Court finds, in a hearing out of the presence of the jury, that the time, content and
circumstances of the statement provide sufficient circumstantial guarantees of
trustworthiness; and
(b) Child either testifies at the proceeding or is unavailable or unable to testify.
Thus, to admit hearsay evidence under NRS 51.385, the court must, in a separate hearing,
find the hearsay statement trustworthy. In addition, the child must either testify or be unable
to testify at trial.
[Headnote 5]
In our recent case of Lytle v. State, 107 Nev. 589, 816 P.2d 1082 (1991), we examined the
requirements of NRS 51.385(1). In Lytle, numerous hearsay statements made by the
child-victim to her mother and government agents were admitted at trial without the requisite
trustworthiness hearing. We concluded that NRS 51.385 clearly requires a hearing for the
purpose of determining the trustworthiness of the offered hearsay statements prior to the
statements being brought before the jury. Id. at 591, 816 P.2d at 1083. Thus, in the present
case, the district court erred, as it did not, in a separate hearing, find the child's video taped
statements trustworthy.
[Headnote 6]
In this case, however, the hearsay testimony and the circumstances under which it was
introduced were quite different from the testimony and circumstances in Lytle.
108 Nev. 872, 877 (1992) Brust v. State
the testimony and circumstances in Lytle. Here, the hearsay evidence consisted of the child's
own taped statements to a clinical psychologist in an interview situation. Prior to the
introduction of the hearsay evidence, the child-victim had already taken the stand and had
testified about the sexual assaults. The child was fully cross-examined by defense counsel. In
addition, Dr. Lippert had testified about the circumstances of her interview with the child
before the tape was introduced. Specifically, Dr. Lippert explained that the child had
spontaneously brought up the specific incidents of bad touching in the taped interview.
In opposing the admission of the videotape, defense counsel stated, I have watched it, and
it's basically a tape of [the child] telling her story again . . . to Dr. Lippert. It's repetitive of her
own testimony, of the doctor's testimony. . . . So I would argue that this would just be
repetitive. It's hearsay and inadmissible. Thus, the district court was informed, by defense
counsel, that the child's statements on the tape were the same as her statements during trial.
Because the child's own statements appeared on the videotape, and because the district court
had already listened to her trial testimony, listened to Dr. Lippert's testimony, knew the
circumstances of the child's interview with Dr. Lippert, and was told by defense counsel that
the tape was repetitive of the child's trial testimony, the court knew what to expect from the
videotaped interview. The district court certainly should have held a separate hearing to
determine that the time, content and circumstances of the [videotaped] statement provided
sufficient circumstantial guarantees of trustworthiness; however, we conclude that the lack
of a separate trustworthiness hearing was harmless error under these particular
circumstances.
[Headnote 7]
Brust's right to cross-examine the child-victim is a substantial right; and although Brust
did not have the opportunity to cross-examine her during the videotaped interview, the child
was present as a witness and was cross-examined during the trial. As the child's testimony
during the trial was the same as that recorded on the videotape, Brust's right to confront and
cross-examine the child was not affected by any error. As we held in Maginnis v. State, 93
Nev. 173, 176, 561 P.2d 922, 923 (1977), the Confrontation Clause is not violated by
admitting a declarant's out-of-court statements, as long as the declarant is testifying as a
witness and subject to full and effective cross examination.' (Citation omitted.)
Accordingly, we affirm in all respects the judgment of conviction.
____________
108 Nev. 878, 878 (1992) Charleson v. Hardesty
SUSAN CHARLESON, Acting as Guardian Ad Litem for RICHARD LEE TRELEASE and
RICHARD ROBERT TRELEASE, Appellants, v. JAMES W. HARDESTY, Respondent.
No. 21940
October 22, 1992 839 P.2d 1303
Appeal from an order granting summary judgment. Second Judicial District Court,
Washoe County; Peter I. Breen, Judge.
Action was brought against trust attorney by beneficiaries of trust. The district court
granted summary judgment in favor of attorney, and beneficiaries appealed. The supreme
court held that: (1) claim for negligent drafting of the trust was time barred, but (2) attorney
for trustee owes fiduciary duties to beneficiaries.
Hager & Mausert, Reno, for Appellants.
Wait & Shaffer, Reno, for Respondent.
When attorney represents trustee in his or her capacity as trustee, attorney assumes duty of care in fiduciary duties toward
beneficiaries as matter of law.
2. Judgment.
Question of fact as to possible breach of attorney's duties to beneficiaries of trust, precluding summary judgment, was raised by
evidence that the trustee made improper use of the funds, that the attorney did not receive from the trustee information which he sought
and that attorney was aware that rent due on a mobile home which is part of the trust corpus had fallen into substantial arrearages.
3. Limitation of Actions.
Beneficiaries of trust should have known of any possible breach of attorney's duty in connection with drafting of the trust when
their own attorneys examined the trust document, and limitations on claim for negligent drafting began to run at that time. NRS
11.207, subd. 1.
OPINION
Per Curiam:
In 1982, respondent, James W. Hardesty (Hardesty), an attorney, prepared a trust
agreement for Adele Kate Trelease. The main beneficiaries of this trust are Ms. Trelease's son
and grandson, appellants, Robert Trelease and Richard Lee Trelease (Treleases).
At the time the trust was formed, Ms. Trelease designated Abraham Lichowsky
{"Lichowsky"), of Southern California, as her successor trustee, even though Hardesty
recommended a corporate successor trustee.
Abraham Lichowsky (Lichowsky), of Southern California, as her successor trustee, even
though Hardesty recommended a corporate successor trustee. Hardesty also suggested the
requirement of a bond for the trustee, but Ms. Trelease remarked that since she had great faith
in Lichowsky's abilities, it was not necessary for a bond to be posted. Thus, when Hardesty
drafted the trust instrument, he included a provision allowing the trustee to make or to
receive secured or unsecured loans. On May 29, 1983, Ms. Trelease died, and Lichowsky
became trustee. At the time of Ms. Trelease's death, the trust contained $350,000.00 to
$400,000.00 in assets.
Although Hardesty claims that he did not advise Lichowsky of his duties as successor
trustee, the Treleases claim that Hardesty acted as attorney for the trustee. They point out that
early on, Lichowsky asked Hardesty to have a local accountant evaluate some information
concerning the trust assets. In addition, Hardesty sent an insurance company a copy of the
trust agreement rather than refer the insurance company to Lichowsky. Moreover, the
attorneys who represented the Treleases stated that Hardesty appeared to be the attorney for
the trust/trustee and that they went to Hardesty for information concerning the trust.
1
Finally,
Lichowsky explained that Hardesty helped him with a number of problems that he had as
trustee and that anytime he had a question, he would call Hardesty for help. Lichowsky also
sent Hardesty a letter stating that Hardesty was the attorney for the trust.
According to the Treleases, Lichowsky, during the eighteen months after he became
successor trustee, sold the Nevada trust property and transferred the funds to Southern
California. Lichowsky then proceeded to withdraw all of the trust funds for his own use and
never rendered an accounting of the trust assets to the Treleases. Although Hardesty had
repeatedly told Lichowsky that Lichowsky was required to render an accounting, and
Lichowsky had promised to send an accounting, Hardesty never received one.
2
Hardesty,
however, never contacted the beneficiaries about the lack of an accounting.
__________

1
The Treleases had their own counsel at various times, and these attorneys examined the trust agreement.
Specifically, in February 1983, attorney Richard Fleischer was appointed to represent Richard Robert Trelease
in criminal proceedings. Mr. Fleischer received copies of the trust agreement. Subsequently, in 1985, Richard
Robert Trelease contacted attorney David G. Pumphrey, who examined the trust agreement in March 1985. In
1983, Susan Charleson, Richard Lee Trelease's mother, hired attorney Sheila Smith to file a petition so that she
could be appointed guardian ad litem for Richard Lee Trelease. Ms. Smith reviewed the trust agreement in
October 1983.

2
Lichowsky supplied various excuses as to why he had not rendered an accounting. At some point, Lichowsky
told Hardesty that he had moved his office to a new building and that his files had been damaged because the
roof leaked.
beneficiaries about the lack of an accounting. In addition, at some point, Hardesty became
aware that rent due on a mobile home, part of the trust corpus, had fallen into substantial
arrearages. Hardesty contacted the mobile home park, apparently on Lichowsky's behalf, and
made them an offer to trade the mobile home for the debt. Hardesty, however, never informed
the beneficiaries of this development.
In September 1986, more than three years after Lichowsky became trustee, Susan
Charleson (Charleson), acting as guardian ad litem for Richard Lee Trelease, filed a
complaint against Lichowsky for declaratory relief and an accounting. Hardesty notified
Lichowsky that Charleson was seeking an accounting and told Lichowsky that he would have
to furnish one. At this time, Lichowsky informed Hardesty that most of the trust assets had
been removed from Nevada and invested in a Malibu ranch. Hardesty requested information
from Lichowsky regarding the ranch property, but Lichowsky never sent him any information
about the ranch. Nevertheless, Hardesty filed, for Lichowsky, an answer to Charleson's
complaint, in which it was asserted that Charleson's allegation that Lichowsky had not
rendered an accounting was false.
3

After filing the answer, Hardesty received some information from Lichowsky regarding
the trust assets. This information, however, represented the trust account balances in 1983,
not 1986. Even so, Hardesty, on behalf of Lichowsky, offered Charleson $1,200.00 per month
if she would stop all further discovery, and Charleson agreed.
4

After Charleson's complaint was settled, Hardesty learned that Lichowsky had been
writing bad checks. Lichowsky first denied writing bad checks and then stated that the bank
had made a mistake. Further, according to Lichowsky, he had told Hardesty that he had
written checks to himself from the trust. Hardesty told Lichowsky that this was not a good
idea but that the trust agreement might allow it.
In 1988 or 1989, Lichowsky filed for bankruptcy, and, as mentioned above, no assets
remain in the trust account. On June 22, 1989, Richard Robert Trelease and Susan Charleson,
as guardian ad litem for Richard Lee Trelease, filed a complaint against Hardesty.
__________

3
Hardesty claims that Lichowsky told him that he had sent the accounting to Charleson. As mentioned,
however, Hardesty had never received an accounting from Lichowsky and did not have an accounting when he
filed the answer to Lichowsky's complaint.

4
As the trust is a spendthrift trust, Charleson's counsel realized that Charleson could not receive any trust
funds unless Lichowsky, in his discretion, decided to give them to her. Therefore, he recommended that she
accept the offer extended by Lichowsky, through Hardesty.
against Hardesty. In this complaint, they alleged that Hardesty negligently drafted the trust
instrument so as to allow Lichowsky to make unsecured loans (without posting a bond) and
that Hardesty negligently failed to furnish Ms. Trelease with proper legal advice so that her
funds would be preserved. In addition, the Treleases asserted that Hardesty undertook to
represent Lichowsky and negligently failed to advise him of his fiduciary duties as trustee.
They also claimed that Hardesty owed them fiduciary and professional duties and that he had
breached these duties.
After filing an answer, which denied the complaint's averments, Hardesty filed a motion
for summary judgment. In his motion, Hardesty asserted that he was hired by Lichowsky on
only a limited basis, had no continuing attorney-client relationship with Lichowsky, and
therefore had no duty to supervise Lichowsky's conduct. The Treleases then filed an
opposition to Hardesty's summary judgment motion and filed their own motion for partial
summary judgment. In their motion, the Treleases contended that Hardesty had misstated the
facts, that Hardesty was the attorney for Lichowsky in his capacity as trustee, and that
Hardesty was aware of Lichowsky's breaches of trust.
Thereafter, the district court entered an order granting summary judgment to Hardesty. The
court found that the applicable statute of limitations had passed with regard to the Treleases'
claim of negligent drafting, that Hardesty had no duty to supervise Lichowsky, and that
Hardesty owed no duty to the Treleases with respect to his representation of Lichowsky.
On appeal, the Treleases assert that the district court erred in granting summary judgment
to Hardesty, and we agree. This court reviews summary judgment orders de novo, Tore, Ltd.
v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989), and has often reiterated the
requirements for a grant of summary judgment:
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; properly
supported factual allegations of the party opposing summary judgment must be
accepted as true. Additionally, the pleadings and documentary evidence must be
construed in the light which is most favorable to the party against whom the motion for
summary judgment is directed. Litigants are not to be deprived of a trial if there is the
slightest doubt as to the operative facts.
Perez v. Las Vegas Medical Center, 107 Nev. 1, 4, 805 P.2d 589, 590 (1991) (citations
omitted). Although, if both parties file motions for summary judgment, the district court
"may be at liberty in most circumstances to determine that the parties have thereby
conceded no material issues of fact remain[,] . . . the mere filing of cross motions for
summary judgment [does not] automatically relieve[] the trial court of its obligation of
determining whether there actually remains any genuine issue of fact for trial."
motions for summary judgment, the district court may be at liberty in most circumstances to
determine that the parties have thereby conceded no material issues of fact remain[,] . . . the
mere filing of cross motions for summary judgment [does not] automatically relieve[] the trial
court of its obligation of determining whether there actually remains any genuine issue of fact
for trial. Cheqer, Inc. v. Painters and Decorators, 98 Nev. 609, 612, 655 P.2d 996, 998
(1982). Here, even though both parties filed motions for summary judgment, the Treleases
raised a question of material fact concerning Hardesty's representation of Lichowsky in his
capacity as trustee. Because this question of material fact exists, summary judgment was not
proper.
Hardesty's Duty Toward the Beneficiaries
The Treleases contend that, as attorney for the trustee, Hardesty owed them a duty to
protect their interests. In Schick v. Bach, 238 Cal. Rptr. 902, 908 (Cal.Ct.App. 1987), the
court held that when an attorney represents a trustee, the attorney also assumes a duty of care
toward the beneficiaries. Further, [i]t is clear that the attorney for a trustee may be held
liable to the beneficiary of the trust when he [or she] actively participates in a breach of
trust. Morales v. Field, 160 Cal. Rptr. 239, 243 (Cal.Ct.App. 1980) (citing 4 Scott on Trusts
326.4, at 2568 (1967)). In the present case, the evidence does not suggest that Hardesty
actively participated in a breach of trust.
The Morales court also noted that [w]hether an attorney owes . . . a duty [to a third person
not in privity] is a question of law and depends on a judicial weighing of the policy
considerations for and against the imposition of liability under the circumstances. Id. at 315,
160 P.2d at 243 (citing Goodman v. Kennedy, 556 P.2d 737 (1976)). Additionally, the court
reasoned that
[i]n all matters connected with [the] trust a trustee is bound to act in the highest good
faith toward all beneficiaries, and may not obtain any advantage over the latter by the
slightest misrepresentation, concealment, threat, or adverse pressure of any kind. An
attorney who acts as counsel for a trustee provides advice and guidance as to how that
trustee may and must act to fulfill [her or] his obligations to all beneficiaries. It follows
that when an attorney undertakes a relationship as advisor to a trustee, [she or] he in
reality also assumes a relationship with the beneficiary akin to that between trustee and
beneficiary.
Id. at 244 (citation omitted).
[Headnotes 1, 2]
We agree with the California courts that when an attorney represents a trustee in his or
her capacity as trustee, that attorney assumes a duty of care and fiduciary duties toward
the beneficiaries as a matter of law.
represents a trustee in his or her capacity as trustee, that attorney assumes a duty of care and
fiduciary duties toward the beneficiaries as a matter of law. In the present case, if Hardesty
was the attorney for the trustee, we conclude that he owed the Treleases a duty of care and
fiduciary duties. Further, we conclude that under the circumstances of this case, the Treleases
have raised a question of fact with regard to a possible breach of Hardesty's duties.
Negligent Drafting
[Headnote 3]
The Treleases also assert that their claims against Hardesty for negligent drafting of the
trust agreement are not barred by the applicable statute of limitations. We disagree.
NRS 11.207(1) states that
[n]o action against any . . . attorney . . . to recover damages for malpractice, whether
based on a breach of duty or contract, may be commenced more than 4 years after the
plaintiff sustains damage and discovers or through the use of reasonable diligence
should have discovered the material facts which constitute the cause of action.
In K.J.B., Inc. v. Drakulich, 107 Nev. 367, 369-70, 811 P.2d 1305, 1306 (1991), this court
held that [p]ursuant to NRS 11.207(1), the statute of limitations will not commence to run
against an attorney malpractice cause of action until the claimant sustains damages. We have
also held that the statute of limitations for attorney negligence does not begin to run until
the client discovers, or should discover, facts establishing the elements of his or her cause of
action.' Sorenson v. Pavlikowski, 94 Nev. 440, 581 P.2d 851 (1978) (quoting Neel v.
Maganam Olney, Levy, Cathcart & Gelfand, 491 P.2d 421 (Cal. 1971)); see also Peterson v.
Bruen, 106 Nev. 271, 792 P.2d 18 (1990). Thus, in the present case, the statute of limitations
did not commence until the Treleases sustained damages and discovered or should have
discovered their cause of action.
The Treleases contend that by the end of 1984, virtually no trust funds remained. Thus, the
Treleases were damaged by Lichowsky's withdrawals by the end of 1984. Because they did
not file the present action until June 22, 1989, more than four years after the harm occurred,
the dispositive issue is when the Treleases discovered or should have discovered their cause
of action.
The elements of a professional negligence action are the following: (1) the duty of the
professional to use such skill, prudence, and diligence as other members of [the] profession
commonly possess and exercise; (2) the breach of that duty; (3) a proximate causal
connection between the negligent conduct and the resulting injury [;] and {4) actual loss
or damage resulting from the professional's negligence."
proximate causal connection between the negligent conduct and the resulting injury [;] and
(4) actual loss or damage resulting from the professional's negligence. Sorenson, 94 Nev. at
443, 581 P.2d at 853.
In Began v. Dixon, 547 A.2d 620, 623 (Del.Super.Ct. 1988), the court concluded that
dissatisfaction with a drafted document is not inherently unknowable. In Jaramillo v. Hood,
601 P.2d 67 (N.M. 1979), a beneficiary under a will sued the attorney who drafted the will for
negligent drafting and negligent execution. The court held that although the beneficiary's
harm arose when the testatrix died, the beneficiary's cause of action did not accrue until the
harm was ascertainable. Nevertheless, the court entered summary judgment for the attorney,
concluding that the beneficiary's harm was ascertainable when the beneficiary obtained
counsel to examine the will. Although Jaramillo involved a will instead of a trust, we
conclude that the provision for unsecured borrowing involved in this case was readily
apparent to counsel who examined the trust instrument.
5
Thus, in our view, the Treleases
knew or should have known of any possible breach of Hardesty's duty to use the skill,
prudence, and diligence exercised by other attorneys when their attorneys examined the trust
document.
6

For the reasons stated above, we concluded that the Treleases have raised a question of
fact with regard to Hardesty's representation of Lichowsky as trustee. In addition, we
conclude that Hardesty owed a duty of care and fiduciary duties to the Treleases if he was the
attorney for the trustee. Further, the Treleases have raised a question of fact with regard to a
possible breach of these duties. We therefore reverse the district court's summary judgment
order and remand this case to the Second Judicial District Court for further proceedings
__________

5
The uncontroverted evidence demonstrates that Ms. Trelease wanted Lichowsky to have discretion over the
trust assets and specifically did not want a provision requiring secured borrowing. Thus, it appears that the
Treleases' claim of negligent drafting, even if not barred by the statute of limitations, would necessarily fail.

6
As discussed above, Richard Robert Trelease had two attorneys. One of them examined the trust agreement
in 1983; the other examined the trust agreement in 1985. Richard Lee Trelease was represented, through his
mother, by an attorney who examined the trust agreement in 1983.
____________
108 Nev. 885, 885 (1992) Van Cleave v. Osborne, Jenkins & Gamboa
VIRGINIA VAN CLEAVE, Appellant, v. OSBORNE, JENKINS & GAMBOA, CHTD.,
Respondent.
No. 22389
October 22, 1992 840 P.2d 589
Appeal from judgment awarding respondent attorney's fees pursuant to an attorney's lien.
Second Judicial District Court, Washoe County; Charles M. McGee, Judge.
The district court entered summary judgment in favor of law firm, and former client
appealed. The supreme court held that law firm's attorney's lien against former client's
settlement in personal injury action was unenforceable after firm entered into consent
judgment in former client's legal malpractice case based on firm's handling of case.
Reversed in part and remanded.
Anderson, Pearl, Hardesty, Lyle, Murphy & Stone, Reno, for Appellant.
Hibbs, Roberts, Lemons, Grundy & Eisenberg, Reno, for Respondent.
1. Judgment.
Law firm's attorney's lien against former client's settlement in personal injury action was unenforceable after firm entered into
consent judgment in former client's legal malpractice case based on firm's handling of case, which stated that it settled all claims
between parties.
2. Judgment.
Extinguishment of law firm's attorney's fee lien in former client's personal injury case and its right to award of attorney's fees as
result of its entry into consent judgment in client's legal malpractice action based on its handling of personal injury case did not affect
law firm's award of costs, where contingency fee agreement executed by former client acknowledged her responsibility for costs
incurred in pursuing her claim.
OPINION
Per Curiam:
This action involving attorney's fees has its origin in an automobile rollover accident that
occurred in 1979 in which appellant Virginia Van Cleave was paralyzed. The facts of the
underlying suits are discussed in our prior opinions of Van Cleave v. Gamboni Construction
Co., 99 Nev. 544, 665 P.2d 250 (1983); and Van Cleave v. Gamboni Construction Co., 101
Nev. 524, 706 P.2d 845 (1985). The controversy before us began when Van Cleave hired the
respondent law firm of Osborne, Jenkins & Gamboa, Chtd.
Gamboa, Chtd. (Osborne firm) to represent her in her personal injury action.
1

With minimal effort, the Osborne firm obtained two settlements for Van Cleave totalling
$71,000. The driver of the vehicle involved in the accident paid $50,000, and Washoe
County, which designed and maintained the road on which the accident occurred, paid
$21,000. On the advice of the Osborne firm, Van Cleave released these parties from further
liability. The Osborne firm received one-third of these settlements as attorney's fees, plus its
costs, pursuant to a contingency fee contract. After settling with the driver, however, the
Osborne firm realized that it had overlooked a potential avenue of relief in the driver's
employer, Gamboni Construction. At the time of the accident, the driver, although in his own
car returning from a weekend outing with Van Cleave, was apparently on a short deviation
from the personal excursion to check on the status of the construction site where he was
employed. Substantial time, effort and expense were thereafter spent on the two appeals
referenced below, in determining whether Van Cleave's release of the driver of the vehicle
also served to release the driver's employer, Gamboni Construction. Although we ultimately
decided that Gamboni was not released by virtue of its employee's discharge, the recovery
was jeopardized and the action was delayed for several years, during which Gamboni went
bankrupt.
In October of 1985, a dissatisfied Van Cleave replaced the Osborne firm with the firm of
Durney & Brennan (Durney firm). At this time, causes of action were pending against
Gamboni and the manufacturers of the car and the tires involved in the accident. After
transferring the case file, the Osborne firm notified the Durney firm pursuant to NRS 18.015
that it claimed an attorney's lien on any recovery received by Van Cleave.
The Durney firm obtained settlements for Van Cleave of $500,000 from Gamboni (one of
Gamboni's few remaining assets was a $500,000 liability insurance policy) and $10,000 from
the automobile manufacturer.
2
The Durney firm forwarded the settlement check to the
Osborne firm, which endorsed and returned it to the Durney firm with the condition that the
Durney firm set aside all attorney's fees (one-third of the settlement) and the Osborne firm's
cost ($12,288) pending an appropriate allocation of attorney's fees. The Durney firm disputed
the Osborne firm's entitlement to any attorney's fees, but nevertheless agreed to set aside
sufficient monies to satisfy [the] lien if it is ultimately proven to be valid.
__________

1
At the time, the law firm was known as Echeverria & Osborne.

2
These two settlements will be collectively referred to as the Gamboni settlement.
On June 12, 1986, the Osborne firm filed a Motion to Adjudicate and Enforce Attorney's
Lien. The district court ordered the parties to schedule an evidentiary hearing on the motion.
Van Cleave thereafter initiated a legal malpractice lawsuit against the Osborne firm for the
way it handled her personal injury case.
3
Van Cleave accepted an offer of judgment in
connection with the malpractice action, and a consent judgment was entered against the
Osborne firm on November 30, 1989 in the amount of $127,098.47.
4
Van Cleave signed a
release which stated that the payment was not to be construed as an admission of guilt.
[Headnote 1]
After the resolution of the malpractice action, the Osborne firm began actively pursuing its
attorney's lien. On March 1, 1990, Van Cleave moved for summary judgment in the lien
proceeding on the basis that the Osborne firm's attorney's lien was not enforceable. After a
four-day hearing, the district court determined that the Osborne firm was entitled to
thirty-five percent of the one-third contingency fee retained by the Durney firm. Judgment
was entered awarding the Osborne firm $55,560.45 in attorney's fees, plus $12,288.00 in
costs. The district court also ordered interest to be paid on those sums at the rate of twelve
percent from June 20, 1986 to the date of the judgment. Van Cleave appealed from this
judgment. She asserts that the Osborne firm's attorney's lien was unenforceable after the
consent judgment was entered in the malpractice case. We agree.
Pursuant to the parties' agreement, the order settling the malpractice case stated, in part,
that [t]his Judgment shall constitute an adjudication of all claims of the parties in any way
arising out of or relating to the subject matter of this case. Although the Osborne firm
contends that the malpractice claim and the attorney's lien proceeding are wholly different
matters, we conclude that both actions are founded upon the same events, and therefore the
Osborne firm's attorney's lien claim was extinguished upon the entry of the above judgment.
The services provided by the Osborne firm are the basis for both the malpractice action and
the attorney's lien, and we cannot logically conclude that the subject matter of the two actions
are separate. The interrelatedness of the services performed and the payment expected by an
attorney is demonstrated in the principle that the court in the action in which the attorney's
services were rendered has incidental jurisdiction to resolve disputes between a litigant and
his attorney relative to the establishment of an attorney's lien."
__________

3
Although the timing is not conclusively established in the record, we accept the district court's
determination that the attorney's lien motion was filed before the malpractice action.

4
The offer of judgment was apparently made by the Osborne firm's insurance carrier, contrary to the wishes
of the Osborne firm.
relative to the establishment of an attorney's lien. Gordon v. Stewart, 74 Nev. 115, 118, 324
P.2d 234, 236 (1958).
Significantly, the Osborne firm's counsel was given the opportunity to examine and amend
the language of the consent judgment. The Osborne firm's counsel did, in fact, insert language
into the proposed judgment, but neglected to except the attorney's lien proceeding from the
plain language settling all claims between the parties. The failure to do so, we conclude,
served to terminate the attorney's lien action upon entry of the judgment. A consent
judgment should be strictly construed to preserve the bargained for position of the parties.
Beaver v. Kingman, 785 P.2d 998, 1001 (Kan. 1990) (citing Williams v. Vukovich, 720 F.2d
909, 920 (6th Cir. 1983). See also Hohensee v. Chemodurow, 470 P.2d 965 (Mont. 1970)
(agreement which purported to settle all claims between disputing parties constituted
complete settlement of specified as well as unspecified claims).
We are also concerned about the Osborne firm's failure to pursue its claim from July, 1986
to November, 1989. This protracted lack of diligence, coupled with the absence of any
exclusion of the lien action in the judgment, convinces us that the attorney's lien became
unenforceable upon entry of judgment in the malpractice action.
The conclusion we have reached is not only appropriate in light of the consent judgment
entered in the district court, but also represents sound policy under the circumstances of this
case. In our view, it would be inconsistent to allow the Osborne firm to collect attorney's fees
for the same services that formed the foundation for a substantial malpractice judgment
against the firm. Even though the consent judgment contained no admission of liability, it is
obvious that Van Cleave's recovery was, at a minimum, delayed several years because of the
Osborne firm's failure to perform sufficient investigative work before drafting a release of the
driver in exchange for a small settlement. Although the Osborne firm did lay a groundwork
for Van Cleave's recovery, the Durney firm was able to accomplish in six months what the
Osborne firm had been unable to do in six years. We accordingly perceive nothing inequitable
in allowing the Durney firm to retain the entire attorney's fee.
[Headnote 2]
Our decision respecting the extinguishment of the Osborne firm's attorney's fee lien and its
right to an award of attorney's fees does not affect the firm's award of costs, however. The
contingency fee agreement executed by Van Cleave acknowledged her responsibility for the
costs incurred in pursuing her claim. The Osborne firm has continually asserted its right to
$12,288 in costs. We conclude that the firm entitled to its costs, plus interest from June 20,
19S6, as ordered by the district court.
plus interest from June 20, 1986, as ordered by the district court. However, it is unclear from
the record what portion of the claimed costs includes expenses related to the two prior
appeals seeking to limit the applicability of the release of the driver. We must therefore
remand to the district court the task of redetermining costs exclusive of any sums spent on the
two prior appeals.
Because of our disposition of this matter, it is unnecessary to address Van Cleave's other
assignments of error.
For the reasons stated above, we reverse that part of the judgment awarding attorney's fees
to the Osborne firm, and remand for a redetermination of costs to be awarded to the Osborne
firm consistent with the dictates of this opinion.
____________
108 Nev. 889, 889 (1992) Elizabeth E. v. ADT Security Systems West
ELIZABETH E., Appellant, v. ADT SECURITY SYSTEMS WEST, INC., Also Known as
ADT, WEST, INC., Respondent.
No. 22508
October 22, 1992 839 P.2d 1308
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Jeffrey D.
Sobel, Judge.
Restaurant employee who was sexually assaulted in restaurant after alarm system was
activated brought action against alarm company that serviced restaurant. The district court
entered summary judgment in favor of alarm company, and employee appealed. The supreme
court held that evidence raised fact issue as to whether alarm company breached its duty not
to misrepresent capabilities of alarm system, precluding summary judgment.
Elwin C. Leavitt, Las Vegas, for Appellant.
Pico & Mitchell, Las Vegas, for Respondent.
1. Judgment.
Party opposing summary judgment may not simply rest on allegations of pleadings; to the contrary, non-moving party must, by
competent evidence, produce specific facts that demonstrate presence of genuine issue for trial. NRCP 56(c).
2. Judgment.
Evidence that alarm company employees told restaurant manager that restaurant's alarm system was equipped with panic feature
and that manager subsequently instructed employees how to operate panic feature, even though alarm system installed in restaurant did
not include such a feature, raised fact issue as to whether alarm company breached its duty not to misrepresent capabilities
of alarm system precluding summary judgment in action arising when employee was sexually assaulted in
restaurant after alarm system was activated.
its duty not to misrepresent capabilities of alarm system precluding summary judgment in action arising when employee was sexually
assaulted in restaurant after alarm system was activated. NRCP 56(c).
Alarm company owed restaurant owner and its employees duty not to misrepresent capabilities of alarm system installed in
restaurant.
Restaurant employee was beneficiary of restaurant owner's contract with alarm company and could bring action against alarm
company after she was sexually assaulted in restaurant after being misinformed as to existence of alarm system's panic feature.
OPINION
Per Curiam:
Appellant Elizabeth E., an employee of Taco Bell, was the victim of a sexual assault
during the process of closing and exiting her place of employment late at night. Elizabeth
filed a complaint against the alarm company that serviced the restaurant, basically alleging
negligence theories as a basis for her right of recovery. Respondent ADT, Security Systems,
West, Inc. (ADT) filed a motion for summary judgment which was granted by the district
court without a specification of reasons other than the pleadings. Despite the lack of
cogency presented on behalf of Elizabeth's cause of action either at the district court level or
on appeal, we conclude that summary judgment was inappropriate.
FACTS
At the date and time pertinent to this case, Elizabeth was employed at a Taco Bell
restaurant in Las Vegas. She served as a night shift assistant manager and her duties included
closing the restaurant and activating the burglar alarm system prior to leaving.
The alarm system installed at Taco Bell by a predecessor to ADT
1
provided burglary
service that entailed monitoring of the premises after business hours. Prior to closing and
exiting the building, Taco Bell employees were instructed to call the alarm service company
(ADT at the time of the incident) to advise the company that the alarm was being engaged.
Once activated, the system provided employees thirty seconds within which to exit the
building. If the system was thereafter disengaged, an unscheduled entry was registered with
ADT, prompting an immediate call to the premises by an ADT operator.
__________

1
The original parties to the contract for the alarm system were Crime Control, Inc. and Taco Bell. Crime
Control, Inc. sold its business to Electro Protective Corp., which later changed its name to ADT Security
Systems, Inc. The latter entity transferred its Nevada operations to its regional subsidiary, ADT, Security
Systems, West, Inc.
immediate call to the premises by an ADT operator. In the absence of an answer, ADT would
then telephone designated employees of Taco Bell.
Elizabeth stated in her deposition that she was trained by Taco Bell manager Karen Burke,
who told her that the alarm system was equipped with a panic or holdup feature which
would transmit a silent alarm to an ADT operator who would then immediately notify the
police. Elizabeth indicated that Burke informed her that the silent alarm was activated by
simultaneously pressing the number one and three buttons on the key pad. Unfortunately, the
silent alarm instruction was in vain, as Taco Bell elected not to purchase that feature of the
system until the month after Elizabeth's ordeal.
On October 22, 1989, Elizabeth and her daughter, who also worked for Taco Bell, were
working the late shift. As they concluded their shift at approximately 1:20 a.m., Elizabeth
called ADT to announce that they were leaving the building and engaging the alarm.
Elizabeth's daughter started to leave through the rear door, with her mother close behind,
when the daughter was accosted by a man with a gun and forced back inside the building. The
intruder then instructed Elizabeth to disengage the alarm. In the process of deactivating the
alarm, Elizabeth pressed the two buttons on the key pad that she obviously believed would
transmit a silent alarm to ADT. The intruder then ordered the women to get down on the floor
and told them he would kill them if the police arrived. The man next removed money from
the safe and thereafter sent the daughter to the break room. Elizabeth was told to remove her
pants and lie down by the back door. Apparently satisfied that the police would not be
arriving at the scene, the intruder ripped the cord from the telephone and proceeded to
sexually assault Elizabeth. After the assailant left, Elizabeth and her daughter ran to a market
across the street and called the police.
The deposition of Melinda Chaffee, a lead operator for ADT at the time of the incident,
revealed that ADT received the unscheduled entry signal resulting from the assailant
forcing the two women back into the building. Chaffee stated that after receiving the signal,
she called Taco Bell but there was no answer (Elizabeth stated by deposition that phone did
not ring). She thereafter telephoned the store manager, Karen Burke, who requested that an
ADT representative meet her at the restaurant. When the store manager arrived at the crime
scene, the police had already been contacted by Elizabeth.
Elizabeth's action against ADT was essentially based upon allegations of negligence and
deceptive trade practices. The district court granted summary judgment against Elizabeth and
declined to specify grounds for the decision other than "the pleadings."
declined to specify grounds for the decision other than the pleadings.
DISCUSSION
[Headnote 1]
Summary judgment is properly entered only when there are no genuine issues of material
fact, it is virtually clear what the truth is, and the moving party is entitled to judgment as a
matter of law. NRCP 56(c); Short v. Hotel Riviera, Inc., 79 Nev. 94, 103, 378 P.2d 979, 984
(1963). Although summary judgment may not be used to deprive litigants of trials on the
merits where material factual doubt exists, the availability of summary proceedings promotes
judicial economy and reduces litigation expense associated with actions clearly lacking in
merit. Therefore, it is readily understood why the party opposing summary judgment may not
simply rest on the allegations of the pleadings. To the contrary, the non-moving party must,
by competent evidence, produce specific facts that demonstrate the presence of a genuine
issue for trial. Michaels v. Sudeck, 107 Nev. 332, 334, 810 P.2d 1212, 1213-1214 (1991).
[Headnote 2]
With the above legal principles in mind, the record in the instant case leaves us with an
element of doubt concerning the truth. In so stating, we do not fault the district court judge
who was given precious little justification for declining to enter summary judgment. Indeed, it
is far from clear on the record whether the district court's attention was even directed in any
meaningful way to key aspects of depositions taken in the action. Appellant's counsel
complains on appeal that he intended to again amend Elizabeth's complaint as soon as the
depositions were signed. Fortunately for Elizabeth, excerpts of depositions were included in
the appendix to appellant's brief, and ADT voiced no objection to this court considering these
materials on appeal. Nor did ADT object to appellant's appendix on grounds that its contents
were not before the district court on summary judgment. In any event, we have elected to
review the depositional testimony included in the appendices primarily because Elizabeth's
counsel filed a document in the district court specifying the same depositions as attachments
to Elizabeth's points and authorities in opposition to summary judgment. The designation of
the record on appeal included all papers and documents filed in the district court.
It is uncontroverted that the alarm system purchased and installed at the location where
Elizabeth worked at the time of the incident did not include a panic or holdup feature. The
system was acquired to protect the premises from acts of burglary occurring after the store
was closed. It was not until the month following Elizabeth's ordeal that the panic or holdup
feature was added to the system.
following Elizabeth's ordeal that the panic or holdup feature was added to the system. It is
thus clear on the record that ADT had been paid only to provide property protection rather
than people protection at the time of the incident. However, that fact does not end the matter.
The depositional testimony of store manager Karen Burke indicated that she was informed
by a representative of ADT, a mechanic or person who worked on the systems, that the alarm
system installed at Elizabeth's place of employment included a panic or holdup feature. Burke
further stated that the mechanic told her how to operate that aspect of the system, and that she
in turn instructed Taco Bell assistant manager trainees, including Elizabeth, how to operate
the panic buttons. Clearly, this testimony raises a material issue of fact unsuited to a summary
resolution.
Despite the absence of record evidence upon which liability could be based for negligence
connected with the alarm system as it related to the features actually purchased by Taco Bell,
it is apparent that if a representative of ADT negligently misrepresented the existence of a
panic feature that was not purchased or programmed into the Taco Bell alarm system, a basis
for liability in tort has been asserted. Moreover, the basis for liability is strengthened where
the ADT representative also instructed the store manager how to operate the panic function in
anticipation of further instruction and reliance among Taco Bell employees.
[Headnote 3]
Although the theory upon which we reverse the summary judgment is based upon a tort
cause of action for negligent misrepresentation, the duty owed to Elizabeth by ADT is
attributable to the contract between ADT and Taco Bell. As a result of the contract and the
serious nature of the services provided by ADT under the contract, we have no difficulty
recognizing ADT's duty of care to Taco Bell and its employees not to misrepresent the
capabilities of the alarm system installed at the location where Elizabeth worked on the
occasion of her injuries. See generally, 65 C.J.S. Negligence 20 (1966) (special relationship
arising from contract can serve as basis for liability for economic or physical injury resulting
from reliance upon negligent misrepresentation).
[Headnote 4]
ADT seeks to avoid a finding of duty running to Elizabeth by contending that Elizabeth
was nothing more than an incidental beneficiary under the contract between ADT and Taco
Bell and that as such, she had no right of action against ADT. We disagree. In Lipshie v.
Tracy Inv. Co., 93 Nev. 370, 566 P.2d 819 {1977), we stated that in order to enjoy the
status of a third-party beneficiary, "there must clearly appear a promissory intent to
benefit the third party {Olson v. Iacometti, 91 Nev. 241, 533 P.2d 1360 {1975)), and
ultimately it must be shown that the third party's reliance thereon is foreseeable {Lear v.
Bishop, S6 Nev. 709, 476 P.2d 1S {1970))." Id. at 379, 566 P.2d at S24-S25.
(1977), we stated that in order to enjoy the status of a third-party beneficiary, there must
clearly appear a promissory intent to benefit the third party (Olson v. Iacometti, 91 Nev. 241,
533 P.2d 1360 (1975)), and ultimately it must be shown that the third party's reliance thereon
is foreseeable (Lear v. Bishop, 86 Nev. 709, 476 P.2d 18 (1970)). Id. at 379, 566 P.2d at
824-825. In the instant case, drawing all inferences, as we must, in favor of Elizabeth, it
reasonably may be inferred that when ADT represented that the panic feature was part of the
Taco Bell alarm system, ADT had to know that the emergency feature would be used, if at all,
by employees of Taco Bell. Moreover, the ADT representative must have known, and it was
therefore foreseeable to ADT, that Taco Bell employees would rely on the availability and
effectiveness of the panic function during times of emergency such as the one that faced
Elizabeth. Clearly, the existence of such a feature would be intended to benefit the promisee's
employees who would be using the system.
2

But for the above depositional testimony of Burke and Elizabeth, who confirmed that
Burke informed her of the panic feature of the system and how to operate it, we would have
agreed with the determination of the district court. There is little doubt, however, that ADT
had a duty not to misinform Taco Bell concerning the capabilities of the alarm system that
existed on the premises. The duty not to misinform is especially clear where it is foreseeable
that those to whom the misinformation is given may rely upon it to their extreme detriment.
3

We perceive no validity to the other allegations of Elizabeth's complaint, and conclude that
her specifications of fraud, deceptive trade practices and strict products liability are without
merit. Moreover, we note with some degree of dismay that it has been necessary to view
Elizabeth's amended complaint with substantial latitude in order to devine a cause of
action based upon negligent misrepresentation.
__________

2
Despite our analysis rejecting ADT's contention that Elizabeth would have been at most an incidental
beneficiary under the contract between ADT and Taco Bell, we need not decide whether Taco Bell employees
were third-party beneficiaries under the contract. Because corporations function through their officers, directors,
and employees, it may be argued that Taco Bell employees such as Elizabeth were, in legal contemplation,
promisees under the contract, at least to the extent necessary for recognizing a special relationship between the
injured employee and the responsible contracting party. In any event, where, as here, the misrepresented service
(the panic or holdup feature) would have necessarily been used by, and of greatest potential benefit to, the Taco
Bell employees, it would be unreasonable to conclude that no special relationship existed between ADT and
Elizabeth.

3
Of course, this is an appeal from summary judgment, and at trial Elizabeth will have to prove that a
misrepresentation by an employee or agent of ADT occurred, and that the negligent misrepresentation was the
proximate cause of her injuries. It should be apparent from our opinion that absent the misrepresentation, there
would be no duty running from ADT to Elizabeth.
necessary to view Elizabeth's amended complaint with substantial latitude in order to devine a
cause of action based upon negligent misrepresentation. We nevertheless conclude that
Elizabeth should have the opportunity to seek redress for her injuries based upon a composite
of allegations in the amended complaint that are barely adequate to state a cause of action.
For the reasons discussed above, we reverse the summary judgment entered below and
remand for a trial on the merits.
____________
108 Nev. 895, 895 (1992) Bibicoff & Assoc. v. Fulton
BIBICOFF & ASSOCIATES, INC., Appellant, v. STAN FULTON, Respondent.
No. 22691
October 22, 1992 839 P.2d 133
Appeal from a district court order granting a motion for summary judgment in a breach of
contract action. Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Reversed.
Hale, Lane, Peek, Dennison & Howard and Richard L. Elmore, Las Vegas, for Appellant.
Lionel Sawyer & Collins and David N. Frederick, Las Vegas, for Respondent.
OPINION
Per Curiam:
Appellant, Harvey Bibicoff, claims that he and respondent, Stan Fulton, entered into an
oral contract whereby Fulton agreed to pay to Bibicoff a fee if Bibicoff successfully obtained
a buyer for Fulton's stock. Fulton denies any such agreement was made. There are many
issues of fact relating to the existence of the claimed contract, and, as well, to Bibicoff's claim
based on quantum meruit and to his claim for fraud based on Fulton's making a promise that
he did not intend to keep. Summary judgment should not have been granted under these
circumstances; therefore, we reverse the judgment of the district court.
____________
NYE COUNTY, a Political Subdivision of the STATE of NEVADA, Appellant, v.
WASHOE MEDICAL CENTER, INC., a Non-Profit Nevada Corporation, Respondent.
No. 22827
October 22, 1992 839 P.2d 1312
Appeal from a judgment in favor of respondent in an action to recover costs for medical
services provided to a resident of Nye County. Fifth Judicial District Court, Nye County;
John P. Davis, Judge.
The district court denied county's motion to set aside order for summary judgment and
entered judgment in favor of hospital in action to recover costs for medical services provided
to county resident. County appealed. The supreme court held that: (1) rule that default
judgments entered against state must be established by evidence satisfactory to court had no
application to unopposed summary judgment motion; (2) rule was applicable to county; and
(3) county failed to move within reasonable time to set aside judgment.
Affirmed.
Art Wehrmeister, District Attorney, and Les W. Bradshaw, Deputy District Attorney, Nye
Durney & Brennan and Terrance Shea, Reno, for Respondent.
1. Judgment.
Rule requiring establishment of claim to support entry of default judgment against state had no application to entry of unopposed
summary judgment against state; failure of state to serve and file written opposition to motion was to be construed as admission or
consent to granting of motion. NRCP 55(e); DCR 13, subd. 3.
2. Judgment.
Rule that default judgment must only be entered against state, or officer, or agency thereof upon establishment of claim or right to
relief by evidence satisfactory to court should be read narrowly such that it applies only to actual default judgments. NRCP 55(e).
3. Judgment.
Rule that default judgments may only be entered against state or officer or agency thereof upon establishment of claim to
satisfaction of court applies equally to counties. NRCP 55(e).
4. Judgment.
County's failure to file motion to set aside order granting summary judgment for more than one year precluded relief since action
was not taken within reasonable time period.
OPINION
Per Curiam:
Respondent Washoe Medical Center, Inc. (WMC) sued Michael D. Hall (Hall) and
appellant Nye County to recover the costs of medical services rendered to Hall. WMC moved
for summary judgment. Nye County failed to oppose WMC's motion. The district court
granted WMC summary judgment. Approximately one year later, Nye County moved to set
aside the order. The district court denied this motion and entered judgment for WMC. For the
reasons discussed herein, we affirm.
FACTS
On May 11, 1988, Hall was transferred via air ambulance to WMC from Nye Regional
Medical Center. On May 12, 1988, WMC sent notice to the Nye County Clerk, Karen Quilter.
The notice stated that Hall was a patient of WMC and requested that Nye County assume
financial responsibility for Hall's treatment. When Hall checked out of WMC on May 16,
1988, he had incurred $4,333.73 in medical expenses. The bill was never paid.
In September 1989, WMC brought this action against Hall and Nye County pursuant to
NRS 450.400 and NRS 428.030, seeking reimbursement for the medical expenses and
declaratory relief that it was entitled to reimbursement. Neither Hall nor Nye County made an
appearance; thus, default was entered against each party. In December 1989, WMC and Nye
County stipulated to set aside the default judgment entered against Nye County. On
December 11, 1989, the district court set aside the default judgment. Nye County answered
the complaint, denying all allegations and asserting, by way of affirmative defenses, that
WMC failed to determine if Hall was an indigent and failed to comply with the notice
requirements of NRS 428.060(2)
1
and NRS 450.400(2).
2

On April 9, 1990, WMC moved for summary judgment, claiming that Hall was an
indigent resident of Nye County, thereby entitling WMC to be reimbursed. In support, WMC
submitted the affidavit of investigator Charles Woodman, who determined that Hall was not
employed and did not have any assets.
__________

1
NRS 428.060(2) provides: The notice must be in writing, attested by the clerk of the board of county
commissioners, and deposited in the post office, addressed to the board of county commissioners of the other
county.

2
NRS 450.400(2) reads: The notice must be in writing and addressed to the board of county
commissioners of that county.
Nye County did not oppose WMC's motion for summary judgment. On June 25, 1990, the
district court granted WMC summary judgment, finding that Hall was a medical indigent of
Nye County at the time of his transfer to WMC and that WMC met the notice requirements of
NRS 428.060. Notice of entry of order granting summary judgment was filed on July 2, 1990.
On July 13, 1990, WMC moved for costs and attorney's fees. Notice for this motion was filed
on August 27, 1990, and a request for submission was filed on September 24, 1990.
On August 26, 1991, Nye County moved to set aside the order granting summary
judgment, arguing that the notice requirements had not been met and that there was no
evidence demonstrating that Hall was indigent. WMC opposed and argued that Nye County
had waived any defenses it had by failing to move within the six-month time limitation of
NRCP 60(b). Nye County replied that pursuant to NRCP 55(e), the district court improperly
entered summary judgment against it because there was not sufficient evidence to support the
relief awarded.
The district court denied Nye County's motion to set aside the order granting summary
judgment. The district court stated:
Under the factual time framework of the events in this case, the court deems to grant
said motion would be an abuse of discretion and to do so essentially says we have rules
and time constraints but they really don't mean what they say. Notwithstanding the
characterization by the state this was not a default judgment.
Thereafter, judgment was entered against Nye County in the amount of $9,432.97 which
included interest, costs and attorney's fees.
DISCUSSION
[Headnote 1]
Nye County contends that before the district court could enter summary judgment against
it, WMC had to present substantial evidence that Nye County was obligated to reimburse
WMC for Hall's medical costs. Nye County cites NRCP 55(e) for support and contends that
the district court erred in concluding that NRCP 55(e) was limited to default judgments.
NRCP 55(e), captioned Judgment Against the State, provides: No judgment by default
shall be entered against the State or an officer or agency thereof unless the claimant
establishes his claim or right to relief by evidence satisfactory to the court. WMC argues that
NRCP 55(e) does not apply to this case because it does not involve a default judgment; it
involves a summary judgment. We agree.
As stated in Giampaoli v. Califano, 628 F.2d 1190, 1193 (9th Cir. 1980), [b]y its plain
terms the rule applies only to a default judgment,' a term of art ordinarily referring to a
judgment entered because of a defendant's failure to respond to a complaint.
3
The purpose
behind Fed. R. Civ. P. 55(e) is that the public fisc should be protected against payment of
unfounded claims where the government responds slowly to a complaint. Id. at 1193-94.
However, the protection provided by the rule should be extended only in those cases in
which the government has altogether failed to respond. Id. at 1193.
In Ouellette v. Heckler, 102 F.R.D. 940 (D.Me. 1984), plaintiff sought judicial review of
the decision of the Secretary of Health and Human Services which denied plaintiff's claim for
Social Security benefits. Id. at 941. Defendant moved to remand because she could not
produce the administrative record, and plaintiff moved for judgment on the pleadings. Id.
When the district court granted plaintiff's motion, defendant moved to vacate the order,
arguing that it was in substance a default and thus violated Fed. R. Civ. P. 55(e). Id. at 943.
Relying on a local court rule which provided that a party who does not respond to a motion
within ten days shall be deemed to have waived objection, the court rejected this argument.
The court stated:
Local Rule 19(c) in this District, however, is not a rule of default. Instead, it is a rule by
which the court determines what motions are contested. It is clear that the Government
like any other litigator is able to consent to the granting of motions or indeed that it can
settle an entire case by consenting to the relief sought. Such actions when incorporated
in a decree of the court do not amount to default judgments against the United States.
Local Rule 19(c) merely provides a standard by which the court can assume that
inaction amounts to waiver of any objection to a motion.
Id. at 943 (emphasis added). Such a rule provides a balance between the interest of litigants
and the needs of the court to have reasonably prompt notice that matters are contested. Id.
Likewise, Nevada's DCR 13(3) reads:
Within 10 days after the service of the motion, the opposing party shall serve and
file his written opposition thereto, together with a memorandum of points and
authorities and supporting affidavits, if any, stating facts showing why the motion
should be denied.
__________

3
Giampaoli involved Fed. R. Civ. P. 55(e) which provides:
Judgment Against the United States. No judgment by default shall be entered against the United States or
an officer or agency thereof unless the claimant establishes his claim or right to relief by evidence
satisfactory to the court.
supporting affidavits, if any, stating facts showing why the motion should be denied.
Failure of the opposing party to serve and file his written opposition may be construed
as an admission that the motion is meritorious and a consent to granting the same.
(Emphasis added.)
[Headnote 2]
We agree with the reasoning in Ouellette and hold that NRCP 55(e) should be read
narrowly such that it applies only to actual default judgments. Otherwise, as stated in
Giampaoli, the government obtains an undue advantage, which enhances its strategic
position and upsets the overriding policy that civil litigants receive equal treatment.
Giampaoli, 628 F.2d at 1195. Indeed, we cannot read NRCP 55(e) as extending such unfair
advantage to the Nye County's continual failure to oppose this action. The purpose behind
NRCP 55(e) does not outweigh the district court's authority, pursuant to DCR 13.3, to
construe such inaction as an admission that the motion is meritorious and a consent to
granting the same.
4

[Headnote 3]
WMC also argues that NRCP 55(e) applies only against the State or an officer or agency
thereof and that, consequently, it is inapplicable here because this action involves a
judgment against a political subdivision of the State. However, based on the purpose
behind NRCP 55(e), we conclude that NRCP 55(e) applies against counties.
[Headnote 4]
We note that even if NRCP 55(e) controlled this action, our resolution would remain
unchanged. The defaulting party must move within a reasonable time to set aside a judgment.
Dow Chem. Pac. Ltd. v. Rascator Maritime S.A., 782 F.2d 329, 336 (2d Cir. 1986).
5
Nye
County waited over one year after notice of entry of the order granting summary judgment
before it filed its motion to set aside the order. Nye County did not explain its inaction (nor
has it attempted to inform this court of the reason behind its delay).
__________

4
Several courts have held that Fed. R. Civ. P. 55(e) is not limited to default judgments. See, e.g., Marziliano
v. Heckler, 728 F.2d 151, 158 (2d Cir. 1984); Carroll v. Secretary, Dept. of Health, Educ. and Welfare, 470 F.2d
252, 256 (5th Cir. 1972). For the reasons discussed above, we conclude that these courts have unduly expanded
the scope of rule 55(e); thus, we reject the invitation to do the same.

5
In Dow Chemical, the moving party had known of the default judgment for at least seven months prior to
its motion to set aside the default. Dow Chemical, 782 F.2d at 336. The court concluded that the motion to set
aside was not made within a reasonable time. Id.
behind its delay). Thus, under the circumstances of this case, Nye County did not file its
motion to set aside the order within a reasonable time.
Accordingly, for the reasons discussed herein, we affirm the judgment of the district court.
____________
108 Nev. 901, 901 (1992) Shetakis Dist. v. State, Dep't Taxation
JIM L. SHETAKIS DISTRIBUTING COMPANY, INC., Doing Business Under the Firm
Name and Style of SHETAKIS WHOLESALERS, Appellant, v. THE STATE OF
NEVADA, DEPARTMENT OF TAXATION, Respondent.
No. 22849
October 22, 1992 839 P.2d 1315
Appeal from an order of the district court affirming the decision of the Nevada Tax
Commission,
1
which imposed a tax deficiency on appellant. First Judicial District Court,
Carson City; Michael R. Griffin, Judge.
Taxpayer filed petition for judicial review of decision of the Nevada Tax Commission,
which imposed sales tax deficiency on taxpayer, a wholesaler selling food and non-food items
to hotels, restaurants and other businesses involved in food preparation. The district court
dismissed petition, and taxpayer appealed. The supreme court, 106 Nev. 1027, 835 P.2d 45,
remanded for determination on the merits. On remand, the district court affirmed
Commission's decision, and taxpayer again appealed. The supreme court held that: (1)
Department of Taxation may use representative and reasonable audit test periods in
determining if a taxpayer has paid the proper amount of sales taxes; (2) taxpayer's sales of
rock salt to its customers were subject to sales tax, notwithstanding taxpayer's claim that
transactions were not retail sales; and (3) taxpayer's sales of foil, wax paper and other paper
products were also subject to sales tax.
Affirmed.
Denton & Denton, Las Vegas, for Appellant.
__________

1
The order is captioned Order Denying Petition for Judicial Review. The order is more properly
considered one which affirms the decision of the Nevada Tax Commission. Under NRS 233B.135 the District
Court must review the administrative record and either remand, affirm or set aside the final decision of the
agency. NRS 233B.135(1), (3). In the order, the district court properly stated that the decision of the
Department of Taxation is affirmed . . . .
Frankie Sue Del Papa, Attorney General, and John S. Bartlett, Deputy Attorney General,
1. Taxation.
Authority granted the Department of Taxation under statute to conduct an investigation if it is not satisfied with sales tax return or
amount of tax is not limited to a simple investigation of taxpayer's records; rather, by express statutory language, Department may use
any information which it may come to possess, and may conduct an investigation using any reasonable and fair means. NRS 372.400,
372.435.
2. Taxation.
Department of Taxation may use representative and reasonable audit test periods in determining if taxpayer has paid the proper
amount of sales taxes. NRS 372.400.
3. Taxation.
Tax exemptions are strictly construed in favor of finding taxability and any reasonable doubt about whether an exemption applies
must be construed against the taxpayer.
4. Taxation.
Taxpayer did not establish that he was exempt from sales tax on sales of water softening rock salt to hotels, restaurants and other
businesses involved in food preparation on theory that such sales constituted wholesale transactions because the salt was incorporated
into food and then resold to restaurant's customers in the form of a meal; given that over a forty-five day test period alone taxpayer
sold nearly $1,000 worth of rock salt, letters from two of taxpayer's customers were insufficient to prove that all rock salt it sold was
used in the food preparation process. NRS 372.155.
5. Taxation.
Taxpayer did not prove that its sales of foil, wax paper, and other paper products to hotels, restaurants, and other businesses
involved in food preparation constituted wholesale transactions exempt from sales tax, on theory that customers used products to
package and serve food which was, in turn, resold to their customers; taxpayer presented a single document from one of its customers
which indicated that customer used foil in food preparation, but document did not specify how much foil ultimately found its way to a
customer. NRS 372.155.
OPINION
Per Curiam:
FACTS
Jim L. Shetakis Distributing Co., Inc., d/b/a Shetakis Wholesalers (Shetakis), is a
wholesaler who sells food and non-food items to hotels, restaurants and other businesses
involved in food preparation. The Department of Taxation (Department) conducted an audit
of Shetakis for the period of April 30, 1980, through March 31, 1983. The audit was
conducted by the use of two test periods. The Department originally audited the records for
eight-day test periods in September 1980, August 19S1 and August 19S2.
1981 and August 1982. Shetakis did not agree with the results of the audit and requested a
more expanded audit. The Department then audited seven-day test periods in December 1980,
May 1981 and March 1982. The total number of days that were audited in these two test
periods was forty-five days. The Department determined, inter alia, that Shetakis failed to
collect sales tax on non-food items such as rock salt (which is used as a water softener),
waxed paper and foil.
2
On September 2, 1983, a tax deficiency of $27,840.77 (including
interest) was imposed against Shetakis.
Shetakis filed a petition for re-determination and two evidentiary hearings were held, one
on November 8, 1983, and one on February 28, 1984. The hearing officer denied the petition,
which in effect affirmed the tax deficiency. The hearing officer held that the audit test period
was customary and reasonable. The officer further held that the rock salt sold to restaurants
was properly considered a non-food item, which thus should be taxed, and that foil and
waxed paper should be taxed as wellirrespective of the restaurant's ultimate use of the
product.
Shetakis appealed to the Nevada Tax Commission, which affirmed the decision of the
hearing officer. Shetakis then filed a petition for judicial review. The district court entered an
order affirming the hearing officer's decision, holding that the use of the audit test period was
fair and reasonable and that the non-food items were taxable.
3
Shetakis appealed. The two
issues on appeal are whether the use of an audit test period is allowable and whether certain
non-food items sold by Shetakis are taxable.
We agree with the Department's arguments, and for the following reasons, we affirm.
DISCUSSION
This court's role in reviewing an administrative decision is identical to that of the district
court: to review the evidence before the agency in order to determine whether the agency
decision was arbitrary or capricious and was thus an abuse of the agency's discretion.
Titanium Metals Corp. v. Clark County, 99 Nev. 397, 399, 633 P.2d 355, 357 (1983). The
decision of an administrative agency will be affirmed if there is substantial evidence to
support the decision. SIIS v. Swinney, 103 Nev. 17, 20, 731 P.2d 359, 361 (1987).
Substantial evidence is that which "a reasonable mind might accept as adequate to support
a conclusion."
__________

2
The Department also imposed other deficiencies which are not at issue in this case.

3
Originally, the district court dismissed Shetakis' petition for judicial review. However, on appeal this court
issued an order of remand ordering that the case be determined on its merits. Shetakis v. Dep't of Taxation,
Docket No. 21101 (December 20, 1990).
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).
NRS 233B.135 provides a statutory standard of review, it reads in relevant part:
3. The court shall not substitute its judgment for that of the agency as to the weight
of evidence on a question of fact. The court may remand or affirm the final decision or
set it aside in whole in or part if substantial rights of the petitioner have been prejudiced
because the final decision of the agency is:
. . . .
(e) Clearly erroneous in view of the reliable, probative and substantial evidence on
the whole record; or
THE AUDIT TEST PERIOD
Shetakis contends that the use of an audit test period is unjustified when the taxpayer has
sufficient records to conduct a detailed, daily audit. Shetakis argues that NRS 372.435 allows
an estimation to be made only where no return has been filed. NRS 372.435 provides in
relevant part:
1. If any person fails to make a return, the department shall make an estimate of the
amount of the gross receipts of the person or, as the case may be, of the amount of the
total sales price of tangible personal property sold or purchased by the person, the
storage, use or other consumption of which in this state is subject to the use tax.
However, under NRS 372.400, the Department has authority to conduct an investigation.
372.400 Recomputation of tax; determination on discontinuance of business.
1. If the department is not satisfied with the return or returns of the tax or the
amount of tax required to be paid to the state by any person, it may compute and
determine the amount required to be paid upon the basis of the facts contained in the
return or returns or upon the basis of any information within its possession or that may
come into its possession. . . .
(Emphasis added.) The Department asserts three reasons why the language of NRS 372.400
should be broadly construed to allow an audit using a test period.
language of NRS 372.400 should be broadly construed to allow an audit using a test period.
Without such authority, the Department would then be effectively prohibited from auditing
any business which filed returns but which kept no records. Second, in the case of inadequate
records, the Department would be unable to assess a tax deficiency beyond what the
inadequate records indicated. Third, if the Department was held to estimating deficiencies
only where no return had been filed, the Department would be left with no choice but to
disallow all claimed exemptions and make the taxpayer prove every exemption.
[Headnote 1]
We agree with the Department. The authority granted the Department under NRS 372.400
is not limited to a simple investigation of the taxpayer's records. Rather, by express statutory
language, the Department may use any information which it may come to possess. We
interpret this language to mean that the Department may conduct an investigation using any
reasonable and fair means.
[Headnote 2]
The Department notes that the Nevada Tax Commission considered available publications
on the use of audit sampling techniques and concluded that (1) audit sampling is widely
accepted and used; (2) absolute maximum and minimum sample sizes cannot be established
due to the individual circumstances present in each case; and (3) reliance must be placed
upon the sound judgment of the auditor to select the appropriate audit sample. In the case
before us, the Department conducted the audit using the test periods because it considered the
technique to be an accepted audit procedure which works well on large audits. Further, the
sample renders comparable results to a day-to-day audit using the taxpayer's records. The test
period method saves an auditor months of work, especially for a business which, as in this
case, has recurring customers who buy things from the taxpayer on a regular basis. Under
these circumstances, it would be foolish to audit on a detailed basis because of the
consistency of the transactions. The Department considers it a misuse of the public's money
to conduct a more lengthy audit under the circumstances presented here.
We are not alone in holding that a test period is reasonable. In Torridge Corporation v.
Commissioner of Revenue, 506 P.2d 354 (N.M. 1973), the Commissioner used a test
months method to determine a tax deficiency. Id. at 357. The court stated that even though
the taxpayers had records upon which to base an audit, restricting the Commissioner to the
use of the records alone would effectively foreclose any investigation. Id. The court held that,
as a matter of law, the audit techniques employed by the Commissioner were not
arbitrary. Id. See also Paine v. State Bd. of Equalization, 137 Cal.App.3d 43S {Ct.App.
19S2); Farrar Brown Company v. Johnson, 207 A.2d 406 {Me. 1965); Chartair, Inc. v.
State Tax Commission, 411 N.Y.S.2d 41 {N.Y.App.Div. 197S); McDonald's of Springfield,
Ohio, Inc. v.
that, as a matter of law, the audit techniques employed by the Commissioner were not
arbitrary. Id. See also Paine v. State Bd. of Equalization, 137 Cal.App.3d 438 (Ct.App. 1982);
Farrar Brown Company v. Johnson, 207 A.2d 406 (Me. 1965); Chartair, Inc. v. State Tax
Commission, 411 N.Y.S.2d 41 (N.Y.App.Div. 1978); McDonald's of Springfield, Ohio, Inc.
v. Kosydar, 330 N.E.2d 699 (Ohio 1975).
In the case at hand, Shetakis issued an average of 250 invoices per day. Over a three year
period, this totals 195,000 invoices. Shetakis' non-food sales were approximately one percent
of its business. Therefore, the Department would be forced to look at 195,000 invoices over
the three-year period to find the one percent non-food sales and determine whether particular
line items on those invoices were properly exempted from sales tax. This would place an
undue burden on the Department and would virtually cripple the Department's ability to
conduct an audit in a timely and efficient manner.
We are not unmindful of Shetakis' argument that if a taxpayer keeps accurate and complete
records, as is required by NRS 372.735(1), it is entitled to have those records used in an audit.
In this case, the Department did use Shetakis' records in sampling its business for certain
periods of time. In a very practical sense, it is unrealistic for this court to impose the burden
on the Department of auditing 195,000 invoices looking for specific line items over a
three-year period. It is simply unfeasible and unreasonable to conduct an audit in this manner.
We therefore conclude that the Department may use representative and reasonable test
periods in determining if a taxpayer has paid the proper amount of taxes.
TAXATION OF NON-FOOD ITEMS
Shetakis argues on appeal that it is a wholesaler who does not sell at retail. NRS
372.050(1) defines a retail sale as a sale for any purpose other than resale in the regular
course of business of tangible personal property. A sale of personal property is presumed to
be taxable unless proven to be sold for resale under NRS 372.155. NRS 372.155 provides in
relevant part:
[I]t is presumed that all gross receipts are subject to the tax until the contrary is
established. The burden of proving that a sale of tangible personal property is not a sale
at retail is upon the person who makes the sale unless he takes from the purchaser a
certificate to the effect that the property is purchased for resale.
Additionally, NRS 372.160 provides in relevant part:
A resale certificate relieves the seller from the burden of proof only if taken in good
faith from a person who is engaged in the business of selling tangible personal
property . . . and who, at the time of purchasing the tangible personal property,
intends to sell it in the regular course of business. . . .
proof only if taken in good faith from a person who is engaged in the business of selling
tangible personal property . . . and who, at the time of purchasing the tangible personal
property, intends to sell it in the regular course of business . . . .
In the case at hand, Shetakis did not obtain resale certificates from its buyers. However,
Shetakis argues on appeal that it rebutted the presumption against taxation when it proved
that the non-food items it sells are resold by its customers. Shetakis contends that the sale of
water softening rock salt should not be taxed because its customers use the salt for
preparation of prime rib. The salt is thus incorporated into the food itself and then resold to
the restaurant's customers in the form of a meal. Likewise, Shetakis argues that foil, waxed
paper, and other paper products it sells, should not be taxed because its customers use these
products to package or serve food which is then resold to their customers.
[Headnotes 3, 4]
Tax exemptions are strictly construed in favor of finding taxability and that any reasonable
doubt about whether an exemption applies must be construed against the taxpayer. Sierra Pac.
Power v. Department Taxation, 96 Nev. 295, 297, 607 P.2d 1147, 1148 (1980). Shetakis' sole
proof that the rock salt which it sold was used as a food product consisted of letters from
two of its customers. Given that over the forty-five day test period alone, Shetakis sold nearly
$1,000 worth of rock salt, we conclude that letters from two of Shetakis' customers is
insufficient to prove that all the rock salt it sold was used in the food preparation process.
Shetakis therefore did not rebut the presumption of taxation. Accordingly, we hold that the
hearing officer did not err in holding that the rock salt was taxable.
[Headnote 5]
Shetakis also argues that the foil, waxed paper, and other paper products it sold should not
be taxed because its customers use these products to package or serve food which is, in turn,
resold to their customers. The proof Shetakis offered at the administrative hearing is even
scantier than that offered for the rock salt. Shetakis presented a single document from one of
its customers which indicated that the customer used the foil for the following: to wrap
potatoes for baking, to wrap take out foods, for storage, and to line cooking pans.
We conclude that one document from one customer, which does not specify how much foil
ultimately found its way to a customer, does not overcome Shetakis' burden of proving that
the foil was purchased by its customers for resale. We therefore hold that the hearing officer
did not err in holding that the remainder of the non-food products which Shetakis sold
were taxable.
that the hearing officer did not err in holding that the remainder of the non-food products
which Shetakis sold were taxable.
Accordingly, we affirm the judgment of the district court.
____________
108 Nev. 908, 908 (1992) Blanchard v. Blanchard
LEE BLANCHARD, Appellant v. RENE BLANCHARD, Respondent.
No. 22867
October 23, 1992 839 P.2d 1320
Appeal from an order dismissing a complaint for intentional misrepresentation. Eighth
Judicial District Court, Clark County; Lee A. Gates, Judge.
Former wife filed complaint against former husband to rescind property settlement
agreement due to alleged intentional misrepresentations regarding existence and value of
certain community assets listed in agreement. The district court dismissed complaint for
failure to state a claim, and plaintiff appealed. The supreme court held that former wife's
allegations that former husband intentionally misrepresented existence and value of certain
community assets were sufficient to state a claim.
Mahan & Ellis, Las Vegas, for Appellant.
Jimmerson, Davis & Santoro and Radford J. Smith, Las Vegas, for Respondent.
1. Fraud.
Action for intentional misrepresentation imposes burden on plaintiff to show that defendant made a false representation to him
with knowledge or belief that the representation was false or without a sufficient basis for making representation; further, plaintiff must
establish that defendant intended to induce plaintiff to act or refrain from acting on the representation, that the plaintiff justifiably
relied on the representation; finally, plaintiff must establish that he was damaged as a result of his reliance.
2. Fraud.
In order to establish justifiable reliance in an action for intentional misrepresentation, plaintiff must show that the false
representation played a material and substantial part in leading plaintiff to adopt his particular course; plaintiff's loss is not attributed to
defendant when defendant was unaware of false representation at time that he acted, or it is clear that plaintiff was not in any way
influenced by the representation and would have done the same thing without it for other reasons.
3. Fraud.
Defendant may be found liable for misrepresentation even when defendant does not make an express misrepresentation, but,
instead, makes a representation which is misleading because it partially suppresses or conceals information.
makes a representation which is misleading because it partially suppresses or conceals information.
4. Fraud.
Integration clauses in agreements do not bar claims for misrepresentation; likewise, waiver clauses cannot bar a misrepresentation
claim.
5. Fraud.
Generally, for purposes of intentional misrepresentation claim, plaintiff making an independent investigation will be charged with
knowledge of facts which reasonable diligence would have disclosed; such a plaintiff is deemed to have relied on his own judgment
and not on defendant's representations; however, independent investigation will not preclude reliance where falsity of defendant's
statements is not apparent from the inspection, where plaintiff is not competent to judge the facts without expert assistance, or where
defendant has superior knowledge about the matter in issue.
Former wife's allegations that former husband made intentional misrepresentations in property settlement agreement concerning
existence and valuation of certain community assets were sufficient to state claim for rescission of agreement due to alleged
misrepresentations.
OPINION
Per Curiam:
THE FACTS
Appellant Lee Blanchard filed a complaint to divorce her husband, respondent Rene
Blanchard, on September 13, 1989. A decree of divorce was entered on June 20, 1991. The
marital property was distributed pursuant to a property settlement agreement (agreement),
executed by the parties on May 30, 1991. The agreement was incorporated by reference into
the divorce decree. A financial analysis listing the parties' assets and their approximate value
was prepared by respondent (financial statement) and incorporated by reference into the
agreement. The property appears to have been divided in a near equal fashion pursuant to the
values included in the financial statement. However, the parties expressly acknowledged that
the purpose of the financial statement was to disclose all community assets and that the
accompanying valuations were not relied on by the parties.
On August 23, 1991, appellant filed a complaint against respondent to rescind the
agreement due to alleged intentional misrepresentations regarding certain community assets.
Specifically, appellant disputes the existence and valuation of the following assets:
(a) Florida real property (Florida property): The agreement gave appellant [t]he one
(1) acre lot in Florida, free and clear of all liens and encumbrances. The Florida property was
valued at $10,000.00. However, appellant later discovered that the Florida property "had
been forfeited to the State in 19S6 for failure to pay taxes."
the Florida property had been forfeited to the State in 1986 for failure to pay taxes. Thus,
there was no Florida property as represented by the agreement.
(b) Valley Investment Corporation Pension Plan (pension plan): The agreement
provided that appellant would receive her vested portion of the pension plan in the
approximate amount of $44,100.00 in cash. Appellant later learned that her vested portion
was actually only about $29,000.00.
(c) Dunes Oil Investors & Salmon River Sheelite Corporation stock: Appellant was
awarded 100 percent of the marital interest in Dunes Oil Investors, with a represented value
of $400.00, and 100 percent of the marital interest in Salmon River Sheelite Corporation
stock, with a represented value of $1,800.00. Appellant claims that the stocks are worthless.
(d) West Sahara Partners (Sahara investment): Respondent received the Sahara
investment. Although the financial statement depicts this asset to be worth $150,000.00,
appellant alleges that respondent orally represented that the [Sahara investment] . . . was
worthless and subsequently sold it at a profit.
On September 17, 1991, respondent filed a NRCP 12(b)(5) motion to dismiss. Following a
hearing on November 19, 1991, the motion was granted.
In considering a NRCP 12(b)(5) motion to dismiss, a court must accept the allegations set
forth in the complaint as true. Northern Nev. Ass'n Injured Workers v. SIIS, 107 Nev. 108,
807 P.2d 728 (1991); Hynds Plumbing v. Clark Co. Sch. Dist., 94 Nev. 776, 587 P.2d 1331
(1978). A trial court is obligated to construe the pleadings liberally and draw every fair
intendment in favor of the plaintiff. Capital Mortgage Holding v. Hahn, 101 Nev. 314, 315,
705 P.2d 126, 126 (1985) (citations omitted). A complaint should not be dismissed for failure
to state a claim for relief unless it appears beyond a doubt that the plaintiff could prove no
set of facts which, if accepted by the trier of fact, would entitle him to relief. Edgar v.
Wagner, 101 Nev. 226, 228, 699 P.2d 110, 112 (1985) (citing Conley v. Gibson, 355 U.S. 41,
45-46 (1957)).
Respondent maintains that appellant failed to state a claim for relief because she cannot
show justifiable reliance. We disagree. For reasons discussed below, we hold that it was error
to dismiss appellant's complaint.
DISCUSSION
[Headnote 1]
Appellant's action is for intentional misrepresentation, which imposes a burden on the
plaintiff to show the following elements: that the defendant made a false representation to
him, with knowledge or belief that the representation was false or without a sufficient
basis for making the representation.
that the defendant made a false representation to him, with knowledge or belief that the
representation was false or without a sufficient basis for making the representation.
Further, the plaintiff must establish that the defendant intended to induce the plaintiff to
act or refrain from acting on the representation, and that the plaintiff justifiably relied
on the representation. Finally, the plaintiff must establish that he was damaged as a
result of his reliance.
Epperson v. Roloff, 102 Nev. 206, 210-11, 719 P.2d 799, 802 (1986) (emphasis added)
(citations omitted); see also Collins v. Burns, 103 Nev. 394, 741 P.2d 819 (1987).
[Headnote 2]
In order to establish justifiable reliance, the plaintiff is required to show the following:
The false representation must have played a material and substantial part in leading
the plaintiff to adopt his particular course; and when he was unaware of it at the time
that he acted, or it is clear that he was not in any way influenced by it, and would have
done the same thing without it for other reasons, his loss is not attributed to the
defendant.
Lubbe v. Barba, 91 Nev. 596, 600, 540 P.2d 115, 118 (1975) (quoting Prosser, Law of Torts,
714 (4th ed. 1971)) (emphasis added). The issue of whether a party has met the elements of
intentional misrepresentation is generally a question of fact. Epperson, 102 Nev. at 212, 719
P.2d at 803.
Appellant charges that respondent made several misrepresentations relating to the disputed
property which were intended to cause her to believe and rely on them so that the plaintiff
would compromise and settle the pending action. Appellant further asserts that had she
known the actual facts, and that the representations of defendant were not true, she would not
have entered into the aforementioned property settlement agreement but would have taken the
matter to trial.
[Headnote 3]
The Florida property was clearly not part of the marital estate, because it had been
forfeited six years earlier for non-payment of taxes. [A] defendant may be found liable for
misrepresentation even when the defendant does not make an express misrepresentation, but
instead makes a representation which is misleading because it partially suppresses or
conceals information. Epperson, 102 Nev. at 212-13, 719 P.2d at 803 (citations omitted)
(emphasis added). The mere fact that the financial statement misrepresented the existence of
the Florida property, by itself, supports appellant's claim for relief.
[Headnote 4]
Respondent seeks refuge in provisions in the agreement which provide that the appellant
did not rely on the values provided in the financial statement or on any other representations
made by respondent.
1
However, integration clauses do not bar claims for misrepresentation.
Epperson, 102 Nev. at 211, 719 P.2d at 802 (citations omitted). Likewise, waiver clauses
cannot bar a misrepresentation claim.
[Headnote 5]
Respondent further argues that a logical reading of the language of the agreement
indicates that [ appellant ] made an independent investigation of the values of the various
properties of the parties.
2
Generally, a plaintiff making an independent investigation will
be charged with knowledge of facts which reasonable diligence would have disclosed. Such a
plaintiff is deemed to have relied on his own judgment and not on the defendant's
representations. Id. at 211, 719 P.2d at 803 (citing Freeman v. Soukup, 70 Nev. 198, 265
P.2d 207 (1953)). However, we also recognize that an independent investigation will not
preclude reliance where the falsity of the defendant's statements is not apparent from the
inspection, where the plaintiff is not competent to judge the facts without expert assistance,
or where the defendant has superior knowledge about the matter in issue. Id. at 211-12, 719
P.2d at 803 (emphasis added) (citations omitted). Moreover, the issue of whether an
independent investigation was made presents a question of fact which may not be dispensed
of as a matter of law. See id. at 212, 719 P.2d at 803.
[Headnote 6]
Respondent claims that appellant could have easily investigated the title of the Florida
property and the respective values of the other disputed property assets without the aid
of an expert.
__________

1
Paragraph 2 provides the following:
2. Financial Statement. Attached hereto and incorporated herein by this reference is a copy of the
most recent financial statement (balance sheet) prepared by Don Pitchford, CPA, on behalf of [Rene].
[Rene] represents that this statement contains a complete description of the parties' assets, community and
separate, and acknowledges that it forms the basis for this agreement. The value attached to each asset,
as contained in the financial statement, has not been relied upon by the parties, but [Rene's]
representation that all of the assets have been disclosed has been relied upon by [Lee]. (Emphasis
added.)
Paragraph 12 provides the following:
12. Disclosure: Each of the parties expressly certifies that each of them has entered into this
agreement upon mature consideration and upon the advice of separate counsel; that no representations of
fact have been made by either party to the other except as herein expressly set forth; and that this
agreement is fair and reasonable.

2
We note, however, that the record does not reveal any evidence of the appellant's involvement in an
independent investigation.
the title of the Florida property and the respective values of the other disputed property assets
without the aid of an expert. However, the marital estate was comprised of many assets and
the record strongly suggests that respondent had superior knowledge and control of those
assets.
3
In addition, it is not at all clear whether appellant was competent to judge the facts
without the assistance of experts. Thus, appellant is still capable of showing justifiable
reliance despite respondent's claim that she made a reasonable investigation.
A party is not under a duty to make a reasonable investigation unless the recipient has
information which would serve as a danger signal and a red light to any normal person of his
intelligence and experience. Collins, 103 Nev. at 397, 741 P.2d at 821 (citations omitted).
The record is void of any obvious facts which would place a reasonable person on notice that
respondent may have withheld information or otherwise made erroneous representations to
appellant. Specifically, there is no evidence which might indicate that appellant had reason to
suspect that the Florida property was no longer a part of the marital estate. Since appellant
accepted the Florida property as part of the property settlement, she clearly relied on
respondent's representation that it was part of the marital estate and was damaged as a result.
We have studied the complaint and conclude that it is sufficient to defeat a NRCP 12(b)(5)
motion to dismiss. Appellant is entitled to argue before a trier of fact that the representations
or omissions by respondent were calculated to mislead her into accepting marital property
with little or no value.
Accordingly, we reverse the judgment, with direction that respondent assert his defenses
by a responsive pleading.
__________

3
Respondent prepared the financial statement and the agreement appears to have been prepared primarily, if
not entirely, by respondent as well. Appellant was apparently completely unaware of the status of the Florida
property or the values of the other assets in dispute. [I]n cases of doubt or ambiguity, a contract must be
construed most strongly against the party who prepared it, and favorably to a party who had no voice in the
selection of its language.' Williams v. Waldman, 108 Nev. 466, 836 P.2d 614 (1992) (quoting Jacobson v.
Sassower, 489 N.E.2d 1283, 1284 (N.Y. 1985)).
____________
108 Nev. 914, 914 (1992) Nevada Savings & Loan v. Hood
NEVADA SAVINGS AND LOAN ASSOCIATION, Now Known as PRIMERIT SAVINGS
BANK, Appellant, v. BARBARA M. HOOD, KATHRYN J. GREEN and
JACQUELINE NEWMAN, n/k/a JACQUELINE ALTER, as Guardian of the Person
and Estate of KATHRYN B. CLAYCOMB, Respondents
No. 22017
NEVADA SAVINGS AND LOAN ASSOCIATION, Now Known as PRIMERIT SAVINGS
BANK, Appellant, v. BARBARA M. HOOD, KATHRYN J. GREEN, and
JACQUELINE NEWMAN, n/k/a JACQUELINE ALTER, as Guardian of the Person
and Estate of KATHRYN B. CLAYCOMB, Respondents.
No. 22661
October 23, 1992 839 P.2d 1324
Consolidated appeals from an amended judgment in favor of respondents Hood and Green
(Case No. 22017) and a judgment against appellant Nevada Savings and Loan Association on
a third-party claim (Case No. 22661). Eighth Judicial District Court, Clark County; Earle W.
White, Jr., Judge.
Daughter brought action against bank alleging negligence, breach of contract, and
negligent misrepresentation in connection with advice received by daughter from bank's
representative as to how daughter could best protect savings of manic-depressive mother. The
district court entered judgment in favor of daughter, and bank appealed. The supreme court,
Steffen, J., held that bank's payment of deposited funds to mother constituted release and
discharge of bank.
Reversed.
Jimmerson, Davis & Santoro and Chrispin Rivera, Las Vegas, for Appellant.
Dyer & McDonald and Valerie J. Cooney, Carson City, for Respondents Barbara M. Hood
and Kathryn J. Green.
Israel L. Kunin, Las Vegas, for Respondent Jacqueline Newman n/k/a Jacqueline Alter.
Daughter could not bring action in tort against bank who paid out to mother funds in money market account vested in names of
both mother and daughter, even though bank's representative, ignorant of current state of law, had advised
daughter that manic-depressive mother could not withdraw funds without surrendering certificates of
deposit; payment by bank to any person authorized to draw against deposited funds constitutes release
and discharge of bank, unless bank has been made aware of adjudication of incompetence.
and daughter, even though bank's representative, ignorant of current state of law, had advised daughter that manic-depressive mother
could not withdraw funds without surrendering certificates of deposit; payment by bank to any person authorized to draw against
deposited funds constitutes release and discharge of bank, unless bank has been made aware of adjudication of incompetence. NRS
100.085, subd. 1.
Daughter lacked standing to bring action in tort against bank that paid out to mother funds held in money market account vested in
names of both mother and daughter, even though bank's representative, ignorant of applicable law, assured daughter that
manic-depressive mother would be unable to withdraw funds without physically surrendering certificates of deposit, where funds at
issue belonged to mother, and daughter asserted no claim of entitlement to funds other than bare expectancy that she might one day
inherit whatever remained.
OPINION
By the Court, Steffen, J.:
Respondents Barbara Hood and Kathryn J. Green (hereinafter collectively Hood)
1
filed
an action against appellant Nevada Savings and Loan Association, now known as Primerit
Savings Bank (Nevada Savings), alleging negligence, breach of contract, and negligent
misrepresentation. The primary thrust of the action was that Hood acted upon negligent
representations of an agent of Nevada Savings in determining how to protect her mother's
money. Kathryn B. Claycomb (Claycomb or mother) was given access to her money by
Nevada Savings and proceeded quickly to squander the entire sum. After a jury trial,
Claycomb's money was restored through Hood, who received a money judgment equalling the
amount of the misspent funds. For reasons noted hereafter, we conclude that Hood could not
prevail in her action as a matter of law, and therefore reverse.
2

Facts
Viewing, as we must, the record in a light most favorable to the prevailing parties, the
operative facts disclose that Hood, Claycomb's daughter, sought to protect her elderly,
manic-depressive mother from the possibility of an improvident spending spree attributable to
a maniacal episode. As a result of a discussion with a new accounts representative at Nevada
Savings, Hood elected to invest her mother's funds in money market accounts evidenced by
two certificates of deposit {CDs).
__________

1
It is not essential to include Hood's sister, Kathryn J. Green, in our analysis of this appeal. Her involvement
in the operative facts of the action filed below was minimal or non-existent.

2
In view of our disposition of this appeal, it is unnecessary to address the issues in Case No. 22661
involving Nevada Savings' third-party subrogation claim against Claycomb.
evidenced by two certificates of deposit (CDs). Hood decided on that course of action
because she was told by the new accounts representative that the money could not be
withdrawn without surrendering the CDs. Hood felt safe in the described transaction because
she intended to maintain physical possession of the CDs, thereby effectively denying her
mother access to the funds without first consulting with her daughter.
Although Hood had not sought to place her mother under a guardianship prior to the time
relevant to this case, in 1978 Hood had received a power of attorney from her mother in order
to facilitate Hood's management of her mother's financial affairs. There is nothing in the
record to suggest that Hood acted in any way other than to protect and care for her mother.
Importantly, it is uncontroverted that the money invested in the money market accounts
(approximately $34,000) belonged to the mother. Both accounts were opened with signature
cards vesting the accounts in the names of Kathryn B. Claycomb or Barbara M. Hood or
Kathryn J. Green. Notwithstanding the three names on the account, Hood emphasized at trial
that the money was her mother's and that it was to be used for her benefit. It was also
apparent from Hood's testimony concerning the longevity of her mother's family that she
expected her mother to live a long life.
Prior to settling on the money market accounts, Hood had questioned the new accounts
representative about the desirability of requiring two signatures for the withdrawal of any of
her mother's funds. Hood was dissuaded from using the two-signature requirement because of
the assurance given her by the Nevada Savings representative that any withdrawal of funds
placed in the money market accounts would require surrender of the CDs.
3
Hood did retain
possession of the certificates in reliance upon the efficacy of the representation made to her.
Unfortunately, Claycomb met a scoundrel by the name of Bye T. Moore who talked her
into matrimony as a prelude to absconding with her money. Predictably, Claycomb went to
Nevada Savings, closed her accounts, and opened a new interest-bearing checking account
under the name of Kathryn B. Claycomb A/T/F [as trustee for] Bye T. Moore. Two days
later, Claycomb and the scoundrel were married and shortly thereafter they presented the
certificate of marriage to Nevada Savings as a basis for having the checking account changed
to a joint account vesting in the names of Kathryn B. Claycomb or Bye T. Moore. Within
six weeks, Claycomb's funds were depleted and the scoundrel had left for parts unknown.
Understandably, Hood was distressed to discover that her mother had been able to
withdraw her funds and close the money market accounts without presenting the
certificates of deposit.
__________

3
The new accounts representative was apparently unaware that the law regarding CDs had changed the
previous year and no longer required the presentation of the CD to withdraw funds.
discover that her mother had been able to withdraw her funds and close the money market
accounts without presenting the certificates of deposit.
Discussion
[Headnote 1]
Unfortunately, Nevada Savings had no alternative other than to deliver the mother's funds
to her upon her demand and Hood should not have received the benefit of a judgment for
money damages since, in legal contemplation, she sustained no damage. Moreover, since the
money belonged to Claycomb, who actually received the funds from Nevada Savings and
thereafter used them, there is no legal basis for requiring Nevada Savings to pay out the
money twice.
The first reason why the judgment should not be allowed to stand is dictated by statute.
When a deposit has been made in the name of the depositor and one or more other
persons, and in form to be paid or delivered to any one of them, or the survivor or
survivors of them, the deposit is the property of the persons as joint tenants. The money
or property shall be held for the exclusive use of the persons named, and may be paid or
delivered to any of them during the lifetime of all, or to the survivor or survivors after
the death of the depositor, and payment or delivery is a valid and sufficient release and
discharge of the depository.
(Emphasis added.) NRS 104.4405(1) provides:
A payor or collecting bank's authority to accept, pay or collect an item or to account
for proceeds of its collection if otherwise effective is not rendered ineffective by
incompetence of a customer of either bank existing at the time the item is issued or its
collection is undertaken if the bank does not know of an adjudication of incompetence.
Neither death nor incompetence of a customer revokes such authority to accept, pay,
collect or account until the bank knows of the fact of death or of an adjudication of
incompetence and has reasonable opportunity to act on it.
(Emphasis added.)
Within the context of the instant case, the thrust of the above statutes is clear. When a
deposit has been made in the name of the depositor (in this case Kathryn Claycomb) and
other persons who are also authorized to draw against the deposited funds, payment by the
bank to any of the authorized persons constitutes a release and discharge of the bank.
and discharge of the bank. Moreover, the bank's release and discharge is unaffected by the
incompetence of the depositor or other authorized signatories on an account unless the bank
is made aware of an adjudication of incompetence. Here, Claycomb, the depositor and
authorized signatory on the bank's signature card, actually, received her money from the bank
and she had not been adjudicated incompetent. Nevada Savings was released and discharged
from liability as a matter of law. No verbal misrepresentation by a bank employee to someone
other than Claycomb concerning how the money could be withdrawn serves to deprive
Nevada Savings of the protection of the referenced statutes where the money was lawfully
paid over to the depositor.
4

[Headnote 2]
The second reason we will address that supports reversal of the judgment is Hood's lack of
standing to maintain an action against Nevada Savings. The record unequivocally establishes
that the funds at issue belonged to Kathryn Claycomb, the mother. Hood asserted no claim of
entitlement to the funds and indeed had nothing more than a bare expectancy that she might
one day inherit whatever may have remained of the deposited funds. Hood testified that she
expected her mother to live a long time and that she intended only to manage the money for
the care of her mother. Although it is extremely unfortunate that the mother squandered her
money under the influence of the scoundrel who married her, it is nevertheless clear that
Claycomb actually received it from Nevada Savings at her own lawful insistence.
Despite the fact that the new accounts representative at Nevada Savings negligently
advised Hood, no damage was sustained by Hood as a result. Claycomb had not been
adjudicated an incompetent and Hood elected to have Claycomb listed on the account in a
manner that would allow her to withdraw her funds. Although Claycomb did not spend her
money wisely, as Hood had planned, it was still Claycomb's money, and it is strictly a matter
of conjecture whether, upon the mother's demise, any of the funds would have remained for
Hood.
Nevada Savings lawfully delivered Claycomb's money to her upon demand and we are
unaware of any legal principle that would justify a judgment requiring Nevada Savings to pay
out the money a second time to Claycomb or to Hood on her mother's behalf.
We consider the points discussed above to be dispositive of this appeal and therefore
elect not to address other issues raised.
__________

4
Although Hood actually purchased the money market certificates from Nevada Savings with Claycomb's
money, and in one sense is the depositor, this fact is of no legal significance to our analysis.
appeal and therefore elect not to address other issues raised. Considering the financial
hardship that Claycomb will suffer, and perhaps Hood as well if she feels compelled to use
some of her own resources to help compensate for the wasted funds, we are especially
reluctant to overturn the jury's verdict and the judgment entered pursuant thereto. However, as
observed previously, there are no principles of law or equity revealed by our research that
would sanction the imposition of liability against Nevada Savings under the circumstances of
this case.
For the reasons discussed above, the judgment entered pursuant to the jury verdict is
reversed.
Springer and Rose, J J., concur.
Young, J., with whom Mowbray, C. J., joins, dissenting:
Because I believe that the majority opinion does not do justice in this case, I feel that I
must dissent.
Originally, Mrs. Hood approached Nevada Savings intending to buy a treasury bill.
However, the new accounts representative informed Mrs. Hood that treasury bills were not
available through Nevada Savings and advised her to purchase CDs through Nevada Savings
instead.
Mrs. Hood expressed concern over having her mother's name on the accounts and
specifically inquired whether she should set up the accounts to require two signatures in order
to withdraw the funds. Mrs. Hood informed Nevada Savings that she wanted to protect her
elderly manic-depressive mother from the possibility of improvidently dissipating her funds
during an emotional episode. She was assured that the certificates were required to withdraw
money from the account. Mrs. Hood also expressed concern regarding the discrepancy
between the terms of the signature card and her understanding that the CDs must be presented
in order to withdraw the funds. Again, she was assured that the CD was required to make a
withdrawal and that the signature card was simply a standard form which Nevada Savings
kept on file for verification.
Relying on this information, Mrs. Hood purchased the CDs upon these express
representations by Nevada Savings. This court has consistently held that where a bank
customer makes a specific inquiry, she is entitled to rely on the representations made by bank
personnel. Nevada Nat'l Bank v. Gold Star Meat Co., 89 Nev. 427, 431, 514 P.2d 651, 654
(1973); see also Bank of Nevada v. Butler Aviation, 96 Nev. 763, 616 P.2d 398 (1980). Mrs.
Hood was continually reassured that her mother could not withdraw the funds without the
certificate itself.
It is unconscionable that Nevada Savings now argues that Mrs. Hood was not justified in
relying on its representations due to the discrepancy between its repeated assurances and
the language of the signature card.
discrepancy between its repeated assurances and the language of the signature card. In
support of its argument, Nevada Savings cites to Jones v. Chiado Corp., 670 P.2d 403
(Ariz.Ct.App. 1983). This case, upon which Nevada Savings relies so heavily, has been
severely limited by Lubin v. Johnson, 820 P.2d 328 (Ariz.Ct.App. 1991). There, the court
stated that Chiado Corp. may no longer be the law and went on to say: We are unwilling to
endorse the idea that victimization of the ignorant has legal sanction. Id. at 328-29.
I am unwilling to endorse the idea that victimization of the innocent and mentally afflicted
has legal sanction in the State of Nevada. I believe that todays opinion will permit banks to
act as they please and dispense inaccurate advice without concern for the effect it may have
on an innocent customer. For that reason alone, I believe that the majority's opinion is fatally
flawed.
The standard for justifiable reliance in Nevada is whether the person had information
which would serve as a danger signal. Collins v. Burns, 103 Nev. 394, 397, 741 P.2d 819,
821 (1987). Here, Mrs. Hood specifically asked about the wording of the signature card and
was assured that the CDs must be presented along with a signature to withdraw funds from
the accounts. Mrs. Hood acted as a reasonably prudent person who, when she saw cause for
concern, communicated her worries and was given a plausible answer. Clearly, Mrs. Hood
justifiably relied on Nevada Savings' representations.
On the Nevada Savings CDs was the bank's logoBig. Safe. Friendly. By convincing
Mrs. Hood that the bank could meet her needs and by enticing her to purchase CDs from it,
instead of going elsewhere to buy a treasury bill, Nevada Savings showed that it was friendly.
There is no question that the bank was big. However, Mrs. Hood might be pardoned if she
now questions whether the bank was safe. The evidence would seem to suggest that
Nevada Savings was anything but safe for Mrs. Hood and her mother, Mrs. Claycomb. I am
aware that a slogan of PriMerit Bank, which has taken over Nevada Savings, is The Bank
That Listens. Hopefully, this portends a new awareness of customer needs and a more
lasting concern for client protection.
On December 6, 1985, Nevada Savings allowed Mrs. Claycomb to withdraw all the money
in the CD accounts on the basis of her signature alone. Nevada Savings knew something was
amiss in the series of events which took place after Mrs. Claycomb withdrew the funds from
the CD accounts. For some unexplained reason, when Mrs. Claycomb changed her new
account, on which she was listed as trustee for Mr. Moore, to a joint account in the names of
Mr. Moore and herself, she presented their recently acquired marriage license. It was not the
policy of the bank to ask for a marriage certificate upon adding a name to an account.
policy of the bank to ask for a marriage certificate upon adding a name to an account. Nevada
Savings was apparently suspicious of the circumstances because it made a special note on the
record of the transaction that the marriage license had been presented.
One can only speculate as to why Nevada Savings took such special care to note the
presentation of the marriage license when the license was not required to change the names
on the account. Presumably, Nevada Savings was apprehensive about the turn of events and
wanted additional documentation to insulate it from any accusations of impropriety.
Nevada Savings was rightly concerned about its conduct. It had no business allowing Mrs.
Claycomb to withdraw the funds because it had expressly promised Mrs. Hood, who was
watching over these funds because of her mother's manic-depressive condition, not to allow
such an event to occur. At the very least, it could have communicated with Mrs. Hood to let
her know what was occurring. It would have been both simple and expedient to have called
Mrs. Hood on the telephone to let her know that she had been misinformed. Mrs. Hood would
than have had time before funds were disbursed to take appropriate steps.
In my opinion, Nevada Savings is estopped from asserting the defense that it was bound by
law to release the funds to Mrs. Claycomb. The elements of estoppel are:
(1) the party to be estopped must be apprised of the true facts; (2) he must intend that
his conduct shall be acted upon, or must so act that the party asserting estoppel has the
right to believe it was so intended; (3) the party asserting the estoppel must be ignorant
of the true state of facts; (4) he must have relied to his detriment on the conduct of the
party to be estopped.
Cheqer, Inc. v. Painters & Decorators, 98 Nev. 609, 614, 655 P.2d 996, 998-99 (1982)
(citations omitted). Clearly, all the elements are met here. Nevada Savings knew the true facts
regarding whether the CDs must be presented to withdraw the funds. Indeed, at trial Nevada
Savings personnel repeatedly testified that the CDs were not required to withdraw funds from
the accounts. Nevada Savings intended its representations to be acted upon; if Mrs. Hood did
not purchase the CDs, Nevada Savings would have lost the investment. It goes without saying
that Mrs. Hood was ignorant of the true facts; if she had known that Nevada Savings could
not safeguard the funds as it promised her that it could, she would have taken her business
elsewhere.
There is no question that Mrs. Hood relied on the representations to her detriment. Mrs.
Hood was the de facto trustee for her mother. She had a fiduciary duty to safeguard and
manage her mother's money.
mother's money. When the bank, without so much as a telephone call, precipitantly released
the funds to Mrs. Claycomb and Bye T. Moore, who artfully persuaded her to marry him, the
result was predictable. In a few short weeks, both Moore and the money were gone. This
predatory lothario drove off into the sunset, disappearing not only with the newly purchased
Cadillac but the remaining monies as well. Mrs. Claycomb was apparently left nearly
penniless.
Arguably, Mrs. Hood did not fulfill her duty to safeguard the funds and could be liable for
that breach. Additionally, Mrs. Hood will presumably be forced to spend her own money to
assist in supporting her mother. Mrs. Hood testified at trial that after the funds were
dissipated, her mother was forced to take in a roommate at the residential hotel where she was
living because there simply was not enough money to allow her mother to live alone. Mrs.
Hood inferred that she assists her mother financially.
I would therefore hold that Nevada Savings is estopped from asserting its defenses in the
face of its unconscionable conduct.
____________
108 Nev. 923, 923 (1992) Angell v. District Court
STEVE ANGELL, JANET WESTERFIELD, Individually and as Heir of LEROY
WESTERFIELD, AUDREY JOHNSON, STATE INDUSTRIAL INSURANCE
SYSTEM, SOUTHWEST GAS CORPORATION, THE HOME INSURANCE
COMPANY, AETNA CASUALTY & SURETY COMPANY, SUN INSURANCE
COMPANY OF NEW YORK AND UNITED TECHNOLOGIES CORPORATION,
Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA, In and for the County of Clark, THE HONORABLE DONALD M.
MOSLEY, DISTRICT JUDGE, AND THE HONORABLE JACK LEHMAN, CHIEF
DISTRICT JUDGE, Respondents, CLARK COUNTY, NEVADA, Real Party in
Interest.
No. 23015
PACIFIC ENGINEERING & PRODUCTION COMPANY OF NEVADA, AMERICAN
PACIFIC CORPORATION, WESTERN ELECTRICAL COMPANY, PEPCON
SYSTEMS, INC., PEPCON PRODUCTION, INC., FRED D. GIBSON, JR., C.
KEITH ROOKER, THOMAS A. TURNER AND NATIONAL UNION FIRE
INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, Petitioners, v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, In
and for the County of Clark, THE HONORABLE DONALD M. MOSLEY,
DISTRICT JUDGE, AND THE HONORABLE JACK LEHMAN, DISTRICT
JUDGE, Respondents, THE COUNTY OF CLARK, NEVADA, Real Party in
Interest.
No. 23016
THIOKOL CORPORATION AND NATIONAL UNION FIRE INSURANCE COMPANY
OF PITTSBURGH, PENNSYLVANIA, Petitioners, v. THE EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, In and for the County of Clark,
THE HONORABLE CHIEF JUDGE JACK LEHMAN, AND THE HONORABLE
DONALD M. MOSLEY, DISTRICT JUDGE, Respondents, CLARK COUNTY, Real
Party in Interest.
No. 23109
October 23, 1992 839 P.2d 1329
Consolidated original petitions for writs of mandate or writs of prohibition. Eighth Judicial
District Court, Clark County; Jack Lehman, Chief Judge, and Donald M. Mosley, Judge.
Litigants petitioned for writs of prohibition and mandamus in response to order of the
district court requiring litigants to pay for facility to accommodate litigation and salaries of
court personnel. The supreme court held that litigants were entitled to writ prohibiting district
court from requiring litigants to pay for court facility and personnel.
Petition for writ of prohibition granted; petition for writ of mandate denied.
Cherry & Bailus, Las Vegas, for Angell, Westerfield & Johnson.
Riley M. Beckett, Carson City, for State Industrial Insurance System.
Beckley, Singleton, DeLanoy, Jemison & List, and Daniel F. Polsenberg, Las Vegas, for
Southwest Gas Corporation.
Cobb, Gugino & Williamson, Las Vegas, for Home Insurance Company, Aetna Casualty &
Surety and Sun Insurance Company of New York.
Thomas D. Beatty, Las Vegas, for United Technologies Corporation.
Galatz, Earl, Catalano & Smith, Las Vegas, for Subrogated Carriers and Armstrong.
Rawlings, Olson & Cannon, and Mary P. Groesbeck, Las Vegas, for Clark County,
Nevada, Real Party in Interest.
Barker, Gillock, Koning, Brown & Earley, Las Vegas, for Pacific Engineering &
Production Company of Nevada; American Pacific Corporation; Western Electrical
Company; Pepcon Systems, Inc.; Pepcon Production, Inc.; Fred D. Gibson, Jr.; C. Keith
Rooker; and Thomas A. Turner.
Pico & Mitchell, Las Vegas, for Thiokol Corporation and National Union Fire Insurance
Company of Pittsburgh, Pennsylvania.
1. Mandamus; Prohibition.
Petitions for writs of prohibition and mandamus are appropriate vehicle for challenging contested orders entered by district court.
NRS 34.330; NRAP 3(a).
2. Counties.
Although court may, under circumstances necessitating protection of its capacity to perform its constitutional functions, require
funds from county for office equipment, secretarial aid, furnishings, and related items, such inherent powers
must be exercised with discernment and circumspection.
county for office equipment, secretarial aid, furnishings, and related items, such inherent powers must be exercised with discernment
and circumspection.
3. Counties.
Trial court could not order litigants to pay for construction, reconstruction, remodeling, improving, or leasing of suitable trial
facility and salary of judge pro tem, even though county's courtroom was unsuitable for conducting mass tort litigation; no rule or
statute allows trial court to order litigants to pay county for providing court facilities and court personnel, there was no indication that,
absent order, trial court could not perform its constitutional functions as part of judicial branch of government, and there had been no
showing that existing county facilities were inadequate or could not, with comparatively minor expense and effort, be made adequate.
OPINION
Per Curiam:
1

Pending before this court are consolidated petitions for a writ of prohibition (docket
number 23019) and for writs of prohibition and mandamus (docket numbers 23015 and
23016). These petitions concern the litigation resulting from the May 4, 1988 fire and
explosion at the Pacific Engineering and Production Company plant in Henderson, Nevada
(Pepcon Litigation).
Eighth Judicial District Court Judge Donald M. Mosley entered orders requiring Clark
County to negotiate a contract for a facility to accommodate the Pepcon Litigation, and
requiring the litigants to reimburse the County for any and all costs related to the
construction, remodeling, and leasing of a trial facility. In addition, Chief Judge Jack Lehman
orally ruled that the Honorable James A. Brennan, retired judge, acting as a judge pro tem,
would be assigned to preside over Judge Mosley's calendar, and that the Pepcon litigants
would be required to reimburse this court for the costs of Judge Brennan's salary.
2
[Headnote 1]
__________

1
On June 23, 1992, this court entered an order in the above-entitled matter granting petition for a writ of
prohibition and denying petition for a writ of mandamus. Pursuant to a motion filed by petitioners Steve Angell,
Janet Westerfield, Audrey Johnson, Southwest Gas Corporation, United Technologies Corporation and Thiokol
Corporation, we have determined that our decision should be issued in a published opinion. Accordingly, we
hereby issue this opinion in place of our order entered June 23, 1992.

2
At a point antedating the orders at issue in the instant petition, this court had been informed by the district
court that at least certain of the parties involved in the Pepcon litigation desired to voluntarily assume the burden
of paying for the costs of an adequate court facility and court personnel, including a judge pro tem, in order to
facilitate an expeditious trial of the issues. Having been so informed, we expressed our willingness to approve
such an arrangement. At no time did we suggest or infer that we would
[Headnote 1]
Because no statute or court rule provides for an appeal from the contested orders entered
by the district court, the instant petitions are the appropriate vehicle for challenging such
orders. See NRAP 3(a); NRS 34.330.
[Headnote 2]
Although a court may, under circumstances necessitating the protection of its capacity to
perform its constitutional functions, require funds from a county for office equipment,
secretarial aid, furnishings, and related items, Sun Realty v. District Court, 91 Nev. 774, 776,
542 P.2d 1072, 1073 (1975), such inherent powers must be exercised with discernment and
circumspection. Moreover, directly apropos to the instant matter is a prior ruling of this court
stating that [i]t is well settled in this jurisdiction that a court may only tax costs against a
party in situations which have been specifically authorized by the legislature. Flangas v.
State, 97 Nev. 626, 627, 637 P.2d 1212, 1213 (1981); see also Sun Realty, 91 Nev. at 776,
542 P.2d at 1074; Dearden v. Galli, 71 Nev. 199, 200, 284 P.2d 384, 385 (1955).
[Headnote 3]
No rule or statute allows the district court to order parties to specific litigation to pay a
county the costs of providing court facilities and the salaries of court personnel. Moreover,
such an order could not be sustained under the inherent powers doctrine, as there is no
showing that absent the order, the district court could not perform its constitutional functions
as part of the judicial branch of government. Furthermore, without concluding that such an
order could never be constitutionally validated, we note that it would generally be viewed as
inimical to our system of justice to make the accessibility of courts to any of our citizens
dependent upon the capacity of the immediate litigants to underwrite the costs of providing
court facilities and personnel. Accordingly, relief in the form of prohibition is warranted.
Two of the petitioners also request that this court issue a writ of mandamus directing the
district court to require Clark County to provide a sufficient courtroom and court personnel
for the Pepcon Litigation. NRS 3.100 provides as follows:
1. If a room for holding court be not provided by the county, together with
attendants, fuel, lights and stationery, suitable and sufficient for the transaction of
business, the court may direct the sheriff to provide such room, attendants, fuel,
lights and stationery, and the expenses thereof shall be a county charge.
__________
permit the parties to be coerced into paying for such costs. Moreover, we would most emphatically disapprove
of an involuntary arrangement where the Pepcon litigants would be ordered to pay the salary of a judge pro tem
who would be sitting on entirely different matters in order to enable a district judge to devote his or her time to
the Pepcon litigation.
suitable and sufficient for the transaction of business, the court may direct the sheriff to
provide such room, attendants, fuel, lights and stationery, and the expenses thereof shall
be a county charge.
2. Offices shall be provided and furnished by and at the expense of the several
counties for the several district judges. Whenever the county commissioners of any
county shall neglect or refuse to provide and furnish an office for the use of the district
judge, it shall be lawful for such district judge to make an order, which order shall be
entered upon the minutes of the court, requiring the sheriff to provide and furnish such
office. The necessary expenses incurred therein shall become a legal and valid claim
against the county.
Clark County concedes the Judge Mosley's courtroom is not suitable for purposes of
conducting the Pepcon Litigation. However, the parties have failed to demonstrate, and the
record does not indicate, that existing County facilities are inadequate or could not, with
comparatively minor expense and effort, be made adequate.
3
We therefore conclude that
Clark County should, with reasonable haste, determine what facilities may exist within the
county that may be appropriately utilized to accommodate the trial of the Pepcon Litigation.
Although we agree that Clark County is generally responsible for providing a suitable and
sufficient trial facility and necessary court personnel, the County may not be burdened with
the cost of providing what certain of the parties may desire in the form of unduly comfortable
and convenient trial facilities. Moreover, the County may wish to seek an accommodation for
the Pepcon Litigation within existing judicial facilities by suggesting alternative trial methods
that have been used elsewhere to accommodate mass tort litigation. Of course, any such
suggestions would have to receive the approval of the district court judge who will preside
over the litigation. We express no opinion as to whether, and to what extent, such alternative
trial methods may be adaptable to the Pepcon Litigation.
4
In any event, for the reasons
stated, we deny all petitions seeking relief in the form of a writ of mandamus.
__________

3
We deem it unnecessary at this point to interpret the intent and scope of NRS 3.100. It does appear
obvious, however, that the statute in question, enacted early within the latter half of the 19th century, was
designed as a foundation for implementing the court system in Nevada. It is not essential to our ruling that we
determine the extent to which the statute should be viewed as a basis for requiring counties to provide new or
expanded judicial facilities in lieu of those that already exist, especially in order to accommodate inordinate
requirements of comparatively rare and specific litigation.

4
Whether the district court determines, with the parties, to proceed with special facilities furnished by the
County, or to make special trial adaptations within existing judicial facilities, we would strongly expect that the
district court will take whatever measures are necessary to avoid a postponement of the presently scheduled trial
date.
seeking relief in the form of a writ of mandamus. See State ex rel. Dep't of Transp. v.
Thompson, 99 Nev. 358, 361, 662 P.2d 1338, 1340 (1983) (issuance of a writ of mandamus is
at this court's discretion).
In accordance with the foregoing, the clerk of this court shall forthwith issue a writ of
prohibition which prohibits the district court from requiring the Pepcon litigants to pay for the
construction, reconstruction, remodeling, improving, or leasing of a trial facility, and the
salaries of court personnel.
____________
108 Nev. 928, 928 (1992) Shaw v. Continental Ins. Co.
EDWARD R. SHAW, LEEANDRA J. SHAW, RAYMOND SHAW, WESLEY SHAW, and
QUINCY SHAW, Appellants, v. CONTINENTAL INSURANCE COMPANY, Respondent.
No. 22832
October 29, 1992 840 P.2d 592
Appeal from an order of the district court granting a countermotion for summary
judgment. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Automobile insurer filed complaint requesting judgment declaring that it had no obligation
to pay any sums to insureds pursuant to uninsured/underinsured motorist (UIM) provision in
policy. The district court granted summary judgment for insurer, and insureds appealed. The
supreme court held that insurer was required to pay UIM benefits for insureds' damages
exceeding $1,000,000 liability limit of other driver's automobile policy, even though insureds
had settled claim against other driver for $750,000, and UIM provision in insureds' policy
required them to exhaust policy limits of other driver's insurance as condition precedent to
making claim.
[Rehearing pending]
James E. Wilson, Jr., Carson City, for Appellants.
Michael F. Bohn, Las Vegas, for Respondent.
1. Insurance.
Uninsured/underinsured motorist (UIM) provision in automobile policy, requiring insureds to exhaust policy limits of other
driver's insurance as condition precedent to making claim, violated public policy.
2. Insurance.
When other driver's vehicle was insured with $1,000,000 liability limit, but insureds settled their claim with that driver for
$750,000, insureds were entitled to recover pursuant to uninsured/underinsured motorist (UIM) provision in their automobile policy for
damages exceeding $1,000,000, notwithstanding UIM provision requiring insureds to exhaust policy limits of other driver's insurance
as condition precedent to making claim.
OPINION
Per Curiam:
On November 7, 1989, appellants Edward and Leeandra Shaw and their three children
were injured in an automobile accident when they were struck from behind by Scott Stafford,
an intoxicated driver. All of the Shaws suffered personal injuries as a result of the collision.
The vehicle driven by Stafford was insured with a $1,000,000.00 liability limit. The Shaws
had $500,000.00 in coverage under an uninsured/underinsured motorist (UIM) provision in
an automobile insurance policy purchased from respondent Continental Insurance Company
(Continental). The UIM provision required the Shaws to exhaust the policy limits of the
other driver's insurance as a condition precedent to making a claim.
1

The Shaws filed a civil complaint against Stafford in the Second Judicial District Court on
November 21, 1989. Continental was advised of the litigation and the Shaws' potential UIM
claim. Continental did not intervene. Stafford subsequently filed a motion to stay the civil
proceedings until the criminal proceedings against him were concluded.
2
The motion was
denied. The civil case was set for trial on March 1, 1991. On January 25, 1991, Stafford filed
a motion to continue the trial, which was again denied.
On February 12, 1991, Stafford filed an emergency petition for a writ of mandamus from
this court in an effort to stay the civil proceedings. The following day, the parties met for a
settlement conference. The judge presiding over the conference advised the Shaws that if this
court granted Stafford's petition, it might be years before they would be able to try their
case. Thereafter, Stafford's insurer offered the Shaws a settlement of $750,000.00, which
the Shaws accepted because they desperately needed the money.3 The parties
subsequently signed a settlement agreement and a stipulation for dismissal.
__________

1
The Continental exhaustion clause specifically provides as follows: We will pay under this coverage only
after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by
payment of judgments or settlements. (Emphasis added.)

2
Stafford ultimately pled guilty to felony DUI on September 4, 1991, and was sentenced on October 4,
1991.
Stafford's insurer offered the Shaws a settlement of $750,000.00, which the Shaws accepted
because they desperately needed the money.
3
The parties subsequently signed a settlement
agreement and a stipulation for dismissal.
Following the settlement, the Shaws demanded that Continental pay $500,000.00 under
their UIM coverage. The Shaws asserted that their total damages are in excess of
$1,500,000.00 and that they are entitled to UIM coverage under their policy to compensate
them for all damages above the $1,000,000.00 policy limit of Stafford's policy. Continental
subsequently filed a complaint with the district court requesting a judgment declaring that
Continental has no obligation to pay any sums to the Defendants pursuant to the UIM
coverage for any damages allegedly incurred in the November 7, 1989 accident. On January
6, 1992, the district court granted summary judgment in favor of Continental.
[Headnotes 1, 2]
Summary judgment is appropriate where there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. American Federal Savings v.
Washoe County, 106 Nev. 869, 871, 802 P.2d 1270, 1272 (1990) (citing NRCP 56(c); Leven
v. Wheatherstone Condominium Corp., 106 Nev. 307, 309, 791 P.2d 450, 451 (1990)). In
Mann v. Farmers Ins. Exchange, 108 Nev. 648, 836 P.2d 620 (1992), we held that an
identical exhaustion clause in a UIM policy violates public policy. Thus, we hold that
Continental is not entitled to judgment as a matter of law.
The Shaws, out of financial necessity, settled for an amount less than Stafford's policy
limit. NRS 687B.145(2), strictly construed in favor of the insured, requires Continental to pay
benefits for any damages exceeding $1,000,000.00. In Mann, we recognized the inequitable
burden placed upon insureds who are forced to forego all settlement offers and go to trial in
order to obtain (or attempt to obtain) compensation up to the tortfeasor's policy limitjust to
qualify for [UIM] benefits under his or her own policy. Mann, 108 Nev. at 650, 836 P.2d at
621 (1992). The Third Circuit Court of Appeals has noted the following: we do not perceive
how, in most cases, underinsured endorsement carriers actually will be prejudiced if they
receive credit for the full limits of the tortfeasor's policy. Aetna Cas. & Sur. Co. v. Farrell,
855 F.2d 146, 150 (3rd Cir. 1988). We agree.
The exhaustion clause in the UIM coverage provided by Continental is in direct conflict
with this court's interpretation of NRS 6S7B.145{2), as pronounced in Mann.
__________

3
The Shaws' medical expenses exceeded $100,000.00 at the time this motion was considered by the district
court. Mr. and Mrs. Shaw received varying degrees of permanent disability as a result of the collision.
nental is in direct conflict with this court's interpretation of NRS 687B.145(2), as pronounced
in Mann. The majority of other courts considering this issue have held in favor of the insured.
4
For reasons set forth above and in Mann, we hold that Continental is not entitled to
judgment as a matter of law.
We have considered all remaining issues on appeal and conclude that they lack merit.
Accordingly, we reverse the district court order granting summary judgment and remand
this case for further proceedings consistent with this opinion.
____________
108 Nev. 931, 931 (1992) Western States Constr. v. Michoff
WESTERN STATES CONSTRUCTION, INC., and MAX MICHOFF, an Individual,
Appellants, v. LOIS MICHOFF, Respondent.
No. 19793
November 5, 1992 840 P.2d 1220
Appeal from the findings of fact and conclusions of law and judgment. Third Judicial
District Court, Lyon County; David R. Gamble, Judge.
Former cohabitant brought action seeking one-half of parties' assets. The district court
entered judgment against defendant and against corporation formed by the parties during their
relationship, and appeal was taken. The supreme court, Young, J., held that: (1) defendant
was given sufficient notice that complaint stated cause of action for breach of express and
implied contract to acquire and hold property as though parties were married; (2) unmarried
cohabiting adults may agree to hold property that they acquire though it were community
property; {3) evidence did not support finding of express agreement, but supported
finding that parties impliedly agreed to hold the property as though they were married;
and {4) corporation was not party to contract and therefore could not be liable for
defendant's breach.
__________

4
See e.g., Matter of the Estate of Rucker, 442 N.W.2d 113, 116 (Iowa 1989) (UIM exhaustion clause
violates public policy and will not be enforced); Bogan v. Progressive Cas. Ins. Co., 521 N.E.2d 447, 453
(Ohio 1988) (The exhaustion clause must be construed as . . . a threshold requirement and not a barrier to
[UIM] coverage); Longworth v. Van Houten, 538 A.2d 414, 424 (N.J.Super.Ct.App.Div. 1988) (exhaust
means that the insured will be credited with the full amount of the liability insurance available); Mulholland v.
State Farm Mut. Auto. Ins. Co., 527 N.E.2d 29, 40 (Ill.App.Ct. 1988) ([i]f the insurer is not required to pay
until after all other possible sources of recovery have been exhausted, [repayment rights] would be
meaningless); Schmidt v. Clothier, 338 N.W.2d 256, 261 (Minn. 1983) (The insured has the right to accept
what he or she considers the best settlement available and to proceed to arbitrate the [UIM] claim for a
determination of whether the damages do indeed exceed the tortfeasor's liability limits); Weinstein v. American
Mutual Ins. Co. of Boston, 376 So.2d 1291, 1220 (Fla.Dist.Ct.App. 1979) (exhaustion clauses are violative of
the intent of the [Florida UIM] statute).
unmarried cohabiting adults may agree to hold property that they acquire as though it were
community property; (3) evidence did not support finding of express agreement, but
supported finding that parties impliedly agreed to hold the property as though they were
married; and (4) corporation was not party to contract and therefore could not be liable for
defendant's breach.
Affirmed in part, reversed in part and remanded.
Crowell, Susich, Owen & Tackes, Carson City, for Appellants.
Aebi & McCarthy, Carson City, for Respondent.
1. Pleading.
Complaint need only set forth sufficient facts to demonstrate necessary elements of claim for relief so that defending party has
adequate notice of nature of claim and relief sought.
2. Marriage.
Under notice pleading rule, cohabitant was given sufficient notice that other cohabitant's complaint stated cause of action for
breach of express and implied contract to acquire and hold property as though parties were married; plaintiff alleged that she and
defendant had held themselves out as though they were married, and that she performed valuable services based on defendant's
representations that she was co-equal owner of their business.
3. Marriage.
Allowing unmarried cohabiting parties to hold their property as though they were married does not violate Nevada's strong public
policy of encouraging legal marriages.
4. Marriage.
Nevada's strong public policy interest in encouraging legally consummated marriages is reaffirmed.
5. Marriage.
Nevada's public policy interest in encouraging legally consummated marriages is not furthered by allowing one participant in
meretricious relationship to abscond with bulk of couple's acquisitions.
6. Marriage.
Unmarried couples who cohabit have same rights to lawfully contract with each other regarding their property as do other
unmarried individuals.
7. Marriage.
Unmarried couples are not precluded from holding their property as though they were married; in such a case, community property
law can apply by analogy. NRS 123.220.
8. Marriage.
Unmarried cohabiting adults may agree to hold property that they acquire as though it were community property. NRS 123.220.
9. Marriage.
Finding that unmarried cohabitants expressly agreed to hold their property as though they were married was not supported by
evidence in action for breach of contract.
10. Marriage.
Substantial evidence in breach of contract action supported finding that unmarried cohabitants impliedly agreed to hold their
property as though they were married; evidence included proof that couple held themselves out to be married, filed federal tax returns
as husband and wife, and designated that they held stock of their business as community property in their Subchapter S election, and
that defendant insisted that plaintiff sign consent of spouse to effectuate partnership he wanted to enter.
11. Contracts.
Corporation formed by unmarried cohabitants was not party to contract between cohabitants to acquire and hold property as
though parties were married and therefore could not be liable for one cohabitant's breach of that contract.
OPINION
By the Court, Young, J.:
Appellant Max Michoff (Max) and respondent Lois Michoff (Lois) cohabitated for
approximately nine years, although they were never married. They formed Western States
Construction, Inc. during their relationship. Lois provided valuable services in the operation
of the business based on Max's representations that she was co-equal owner. When they
terminated their relationship, Lois brought this action seeking one-half of the parties' assets.
The district court entered judgment in favor of Lois and against Max and Western States
Construction, Inc. For the reasons discussed herein, we affirm the judgment against Max but
reverse it against the corporation.
Facts
In 1977, Lois and Max became romantically involved, even though Max was already
married. At the time, Lois was employed as a prototype technician,
1
working forty hours per
week and earning eleven dollars per hour. Their relationship continued, and Max divorced his
wife. Lois and Max then decided to, and did, live together.
In 1979, Lois and Max moved from California to Carson City, Nevada. That same year,
Lois legally changed her name to Lois Michoff.
2
The parties started a construction
equipment rental business called L&M Rentals {named for Lois and Max).
__________

1
A prototype technician builds printed circuit boards from scratch.

2
Lois claimed that she changed her name at Max's request; he believed that if they had a woman-owned,
construction-type business, they would fare better in getting jobs. For example, according to Lois, they could
bid five percent over the low bid and nevertheless be classified as the low bidder. It is noteworthy that Max's
attorney handled the name change.
business called L&M Rentals (named for Lois and Max). Lois obtained the business license
and paid the licensing fees. The business license listed Lois as the sole owner. Max wanted
Lois to be the sole owner so that his ex-wife could not make a claim against the business.
3
Although Max contributed a large portion of the funds to start L&M Rentals, Lois and Max
had agreed that they were co-equal owners of the business. Consequently, Lois devoted her
efforts and time toward running the business, including such integral functions as
bookkeeping and maintaining the equipment.
Approximately six months after starting L&M Rentals, Lois and Max discovered that they
needed a contractor's license to operate the business. Lois therefore applied for such a license
but listed the name of the business as Western States Construction. Lois was listed as the
owner of the business and Max was listed as the qualified employee. Lois testified that they
had agreed that it was their company; thus, again, Lois provided much of the skill and labor
necessary for the business' success. Her services included doing all of the office work
(bookkeeping, payroll, and paperwork) and assisting in the maintenance, service, and running
of the equipment. The profits from the business were either invested into the business or
retained as savings.
In 1983, Lois and Max incorporated the business, naming it Western States Construction,
Inc. (Western States). Lois testified that they agreed to hold the company as co-equal
owners, each owning fifty percent of the company. The articles of incorporation listed Lois
and Max as the Board of Directors and the Incorporators. Also, they were the sole officers of
the corporation: Lois was treasurer, and Max was president and secretary. They opened
checking and payroll accounts for Western States, and both Lois and Max had authority to
withdraw funds from these accounts.
Lois continued to do the bookkeeping, and she also updated the records, reviewed bids,
negotiated contracts and labored in the fieldperforming such jobs as flagging and running
heavy equipment. Whenever Western States sought a license increase, it was Lois who
applied for the increase. In order to obtain the necessary contractor's bonds from the
Contractor's Board, Lois personally guaranteed the bonds.
__________

3
It is uncontroverted that Max had concealed $50,000 from his former wife and the court in which he
obtained his divorce. The record, however, does not indicate whether Max had defrauded his former wife out of
other assets. In any case, Max was seized with an irresistible impulse to hide some of his assets. Thus, when Lois
and Max first moved to Carson City, Max formed a partnership with a local contractor and immediately placed
all of his assets into this business. Thereafter, when the parties started L&M Rentals, Max transferred all of his
assets to L&M Rentals. Most of the cash was then used to purchase a certificate of deposit in the name of L&M
Rentals.
sary contractor's bonds from the Contractor's Board, Lois personally guaranteed the bonds.
During their relationship, Max held Lois out as his wife. In fact, in 1984, Max entered a
partnership agreement with Robert Frybarger and requested that Lois sign a consent of
spouse.
4
Max and Lois filed joint tax returns as husband and wife commencing in 1980 and
continuing through 1986. For the years 1983 through 1986, they also filed tax returns under
Western States, showing Lois as an officer and owner of the corporation. Moreover, Western
States elected to file a sub-chapter S election on March 24, 1983. The election was signed by
Lois and Max and designated the holdings of the corporation as community property.
After Lois and Max terminated their relationship (Lois apparently left Max because he had
been physically abusing her), she brought this action, seeking a declaration and judgment that
she owns one-half of the parties' assets, including Western States. She alleged that she had
performed valuable services based on Max's representations that she owned one-half of the
corporation. Specifically, the complaint provided:
That at all times pertinent herein, Defendant, MAX MICHOFF, represented to [Lois]
that she was entitled to one-half (1/2) of the assets held by Defendant, Western States
Construction, Inc. In accordance with the representations, [Lois] has performed
valuable services over many years last past, including those as set forth above.
. . . .
That based upon the representations as aforestated, [Lois] requests a determination
by this Court that she is entitled to one-half (1/2) of the assets of the parties whether
held solely in the name of MAX MICHOFF, Defendant Corporation, or [Lois].
After a trial, the district court found that there existed an express and an implied agreement
between the parties to acquire and hold the properties as if they were married. The court ruled
that the community property laws should apply by analogy and thus entered judgment in favor
of Lois and against Max and Western States for one-half of the net assets of the parties less
the value of the property already taken.
5
Discussion
Discussion
__________

4
This provision provided: We, the undersigned, being the respective wives to the parties to the foregoing
partnership agreement, have read and understand said agreement executed by our husbands. Each of us hereby
approves and consents to the said partnership agreement and agrees to be bound by all of its provisions.

5
The judgment also set aside in trust the sum of $22,500, representing one-half of the potential liability
facing Western States in a pending lawsuit and ordered each party to pay one-half of the debt owed for a medical
bill.
Discussion
[Headnotes 1, 2]
Max contends that Lois did not plead any contractual claims against him. We disagree.
Nevada is a notice-pleading state; thus, our courts liberally construe pleadings to place into
issue matters which are fairly noticed to the adverse party. Hay v. Hay, 100 Nev. 196, 198,
678 P.2d 672, 674 (1984). A complaint need only set forth sufficient facts to demonstrate the
necessary elements of a claim for relief so that the defending party has adequate notice of the
nature of the claim and relief sought. Id.; see also Ravera v. City of Reno, 100 Nev. 68, 70,
675 P.2d 407, 408 (1984) (test for determining whether the allegations of a cause of action
are sufficient to assert claim is whether allegations give fair notice of nature and basis of
claim and relief requested).
We have previously held that allegations similar to those contained in this case were
sufficient to state a cause of action for breach of an implied-in-fact contract to acquire and
hold property as if the parties were married or general partners. See Hay, 100 Nev. at 198,
678 P.2d at 674. In that case, Virginia Hay alleged that she and Tom Hay had held themselves
out as husband and wife, although they were not married. Id. at 197, 678 P.2d at 673. She
further alleged that they had pooled their money as though they were a marital community or
a general partner. Id. at 198, 678 P.2d at 674. Likewise, here, Lois alleged that she and Max
had held themselves out as though they were married. Lois also alleged that based on Max's
representations that she was a co-equal owner of Western States, she performed valuable
services. Lois' complaint adequately apprised Max that Lois pursued an ownership interest in
the assets accumulated during their relationship based on an implied contract action. See
Smith v. Recrion Corp., 91 Nev. 666, 668, 541 P.2d 663, 664 (1975) (the terms of an implied
contract are manifest by conduct).
Indeed, Max's pretrial pleadings acknowledged that he understood the grounds on which
Lois based her complaint. In his answer to the complaint, Max contended, as an affirmative
defense, that the complaint should fail for lack of consideration. Moreover, Max submitted a
hearing and a trial date questionnaire, and on each one, he stated that the nature of the action
was one of contract.
Lois even confirmed her position in her trial statement:
[Lois], for the next several years, continued to act as an officer of the corporation and
generally handled the corporate paperwork, bid documents, and bookkeeping for the
corporation. On occasion, she even handled and operated the heavy equipment of the
corporation. [Lois] was held out by [Max] as his wife to the parties, acquaintances, and
friends, and she virtually acted as a co-owner of the business with [Max] providing
valuable services to the business with no substantial compensation.
and she virtually acted as a co-owner of the business with [Max] providing valuable
services to the business with no substantial compensation. All of the above was done on
the basis of an agreement between the parties and the representations of [Max] that the
MICHOFFS were and would be equal co-owners of [Western States].
(Emphasis added.) Max recognized in his trial statement that Lois based her claim on a
contract action, stating: In her Second Cause of Action Lois is apparently asserting a
contractual right.
Therefore, we conclude that under Nevada's notice pleading rule, Max was given sufficient
notice that Lois' complaint stated a cause of action for breach of an express and an implied
contract to acquire and hold property as though the parties were married.
[Headnotes 3-5]
Max also contends that to allow unmarried cohabiting parties to hold their property as
though they were married violates Nevada's strong public policy of encouraging legal
marriages. We strongly disagree and emphasize that this court by no means seeks to
encourage, nor does this opinion suggest, that couples should avoid marriage. Quite to the
contrary, we reaffirm this state's strong public policy interest in encouraging legally
consummated marriages. However, this policy is not furthered by allowing one participant in
a meretricious relationship to abscond with the bulk of the couple's acquisitions. Hay, 100
Nev. at 199, 678 P.2d at 674.
[Headnote 6]
Unmarried couples who cohabit have the same rights to lawfully contract with each other
regarding their property as do other unmarried individuals. Id. Thus this court must protect
the reasonable expectations of unmarried cohabitants with respect to transactions concerning
their property rights. We therefore adopted, in Hay, the rule that unmarried cohabitants will
not be denied access to the courts to make property claims against each other merely because
they are not married. Id.
In Hay, we cited with approval the holding in Marvin v. Marvin, 557 P.2d 106 (Cal. 1976),
which provided:
The courts should enforce express contracts between non-marital partners except to
the extent that the contract is explicitly founded on the consideration of meretricious
sexual services. . . . In the absence of an express contract, the courts should inquire into
the conduct of the parties to determine whether that conduct demonstrates an implied
contract, agreement or partnership or joint venture, or some other tacit understanding
between the parties. The courts may also employ the doctrine of quantum meruit, or
equitable remedies such as constructive trust or resulting trusts, when warranted
by the facts of the case.
may also employ the doctrine of quantum meruit, or equitable remedies such as
constructive trust or resulting trusts, when warranted by the facts of the case.
Hay, 100 Nev. at 199, 678 P.2d at 674 (quoting Marvin, 557 P.2d at 110). We then expressly
held that the remedies in Marvin are available to unmarried cohabitants. Id. As stated in
Marvin, adults who voluntarily live together may agree to pool their earnings to hold all
property acquired during the relationship in accord with the law governing community
property. Marvin, 557 P.2d at 116 (emphasis added).
[Headnotes 7, 8]
Our brother Springer believes that the district court was misled by our statement in Hay
that if unmarried cohabiting adults agree to hold their property as if they are married, the
community property laws of the state will apply by analogy. Justice Springer concludes that
[u]nmarried persons cannot own community property, by analogy or otherwise. Marvin,
however, strongly supports our statement in Hay that the community property law may apply
by analogy. While unmarried couples cannot actually own community property, this is so
only because community property is a creature of statute which arises after a couple is legally
married. See NRS 123.220. Yet unmarried couples are not precluded from holding their
property as though they were married. See Marvin, 557 P.2d at 116. In such a case, the
community property law can apply by analogy. Hay, 100 Nev. at 199, 678 P.2d at 674. Thus
we hold that unmarried cohabiting adults may agree to hold property that they acquire as
though it were community property.
Max next argues that Lois failed to prove the existence of a contractual agreement because
she failed to show the basic elements of the contract, namely, that she did not allege a
meeting of the minds and harmonious understanding as to the tenor and provisions of the
agreement. As stated in Recrion Corp., 91 Nev. at 668, 541 P.2d at 664, the terms of an
express contract are stated in words while those of an implied contract are manifested by
conduct.
[Headnotes 9, 10]
There is no evidence that the parties expressly agreed to hold their property as though they
were married. The district court erred in so finding. Nevertheless, we conclude that there is
substantial evidence to support the district court's finding that Lois and Max impliedly agreed
to hold their property as though they were married. In addition to living together and holding
themselves out to be a married couple, this evidence included the parties filing federal tax
returns as husband and wife, the parties designating that they held the Western States
stock as community property in their Subchapter S election, and Max's insistence that
Lois sign a consent of spouse to effectuate a partnership he wanted to enter.
designating that they held the Western States stock as community property in their
Subchapter S election, and Max's insistence that Lois sign a consent of spouse to effectuate a
partnership he wanted to enter. The district court's judgment against Max is therefore
affirmed.
6
Pandelis Constr. Co. v. Jones-Viking Assoc., 103 Nev. 129, 130, 734 P.2d 1236,
1237 (1987).
[Headnote 11]
However, the district court erred when it entered judgment against Western States, for
Western States was not a party to the contract and therefore could not be liable for Max's
breach thereof. Thus, we reverse the judgment against Western States and remand for further
proceedings as to the disposition of the parties' property.
7

Mowbray, C. J., Rose and Steffen, JJ., concur.
Lois and Max are not married; yet the trial court treated them as though they were married.
The trial court heard and decided this case under our divorce statute (NRS Chapter 125,
Marriage and Dissolution). The trial court disposed of the property owned by each party as
though it were community property, calling it community property by analogy. The final
decree in this case was entered in accordance with the divorce statute, NRS 125.150, which
provides that [i]n granting a divorce, the court . . . [s]hall make such disposition of . . . [t]he
community property of the parties . . . as appears just and equitable. I am so bold as to say
that unmarried people cannot be treated by the courts like married people, that unmarried
people do not have the legal capacity to hold community property, and that unmarried
people are not entitled to property disposition decrees under our divorce statute.
__________

6
With regard to Max, we commend the district court for its handling of this case. This case involved the
sensitive area of property rights between unmarried cohabiting adults (an area which traditionally has been
judicially tempered by moral views) and where the parties perhaps did not have the cleanest hands. The
district court fairly applied the law of this state to reach an equitable result.
Lois wanted to formalize their relationship with a marriage ceremony, but Max balked. He apparently felt
that his financial interests would be better served with a more informal arrangement. However, when the trial
court sided with Lois, Max found that he had jumped from the frying pan of a prior marriage into perhaps the
hotter fire of a contractual relationship. With hindsight, he may have fared better financially if he had been
married. However, Max was, as the poet says, The captain of [his] fate. We cannot see any benefitexcept
possibly to the lawyersin remanding this action to be repled with the parties rehashing the same facts before
the trial court.

7
In the event the district court determines that the parties are to have equal ownership in Western States, the
judgment would have to require that Max transfer one-half of his shares of Western States stock to Lois since all
stock was issued in Max's name. We intimate no view as to whether the district court should appoint a receiver
for Western States.
courts like married people, that unmarried people do not have the legal capacity to hold
community property, and that unmarried people are not entitled to property disposition
decrees under our divorce statute. I almost stopped there; but then it occurred to me that the
majority opinion might be taken seriously and that unmarried people like Lois and Max might
start knocking on the doors of our divorce courts. This though prompted me to write at some
length on the novel legal principles announced by this court today, family law principles that I
will refer to as the Michoff Doctrine.
1

The Michoff Doctrine permits unmarried cohabiting adults to enter into a kind of
informal marriage contract which entitles them to have property that they acquire treated like
community property and distributed by the divorce courts as though they had been formally
married. These Michoff Marriages will henceforth be governed by our Marriage and
Divorce statutes.
The Michoff Doctrine is comprised of two principles:
1. The As-Though-Married Principle. This principle sanctions an informal
marriage-by-agreement which permits unmarried cohabitants to sue and recover under
the divorce statute.
2. The Community-Property-by-Analogy Principle. This principle allows unmarried
cohabiting adults
2
to hold property . . . as though it were community property and
in accord with the law governing community property. (Majority Opinion at 938).
__________

1
My not wanting unmarried persons to come to our divorce courts seeking a just and equitable division of
their supposed community property by analogy certainly does not mean that I have any quarrel with the
well-established law in Nevada that permits people like Lois and Max to sue each other, not for divorce, but for
contractual or equitable claims that they might have against each other. See, e.g., Hay v. Hay, 100 Nev. 196, 678
P.2d 672 (1984).

2
All of the marital privileges conferred upon unmarried persons by the Michoff Doctrine appear to be given
to the rather large class of unmarried cohabiting adults. I note that the majority places no restriction on the
number or gender of these adults. I assume that application of the doctrine is not restricted to two cohabitants of
opposite sex in order to avoid conflict with Nevada's prohibition against common-law marriages; still, the
thought of a band of unmarried cohabiting adults suing each other under our Marriage and Dissolution chapter is
not a pretty one. I can envision roommates Larry, Moe and Curly, unmarried cohabiting adults, deeply involved
in divorce litigation. Any one of the three would be in a legal position to move out and sue the others claiming
that the three had an implied agreement to share, per Michoff, property that they acquire as though it were
community property. Larry could then take advantage of the community property laws and NRS Chapter 125 so
that he could ask a divorce court to divide their CPBA interests, pursuant to NRS 125.150. This problem and the
problem of creating community property rights by implied agreement through some
In adopting the first principle of the Michoff Doctrine (applicability of the divorce statute
(NRS Chapter 125) to unmarried persons), the trial court not only held that all of the property
acquired by Max and Western States and Lois was presumed to be community property (or
something very much like it), the trial court went further and divided the property in
accordance with the divorce statute. Citing to NRS 125.150, the trial court ruled that the
statute requires that in making the disposition of community property the court shall divide
the property in a just and equitable manner. After dividing the property in accordance with
the mentioned divorce statute the court expressly ruled that, said division is fair, just and
equitable. For some reason, the divorce court did not attend to the remaining provisions of
NRS 125.150, which require that community property division be made, having regard to
the respective merits of the parties and to the condition they will be left by the divorce, and to
the party through whom the property was acquired, and to the burdens, if any, imposed upon
it, for the benefit of the children. I am not sure why the trial court did not follow all of the
provisions of NRS 125.150. If NRS 125.150 is to be applied to the dissolution of informal
living arrangements (which, of course, it should not), then I would think that the entire statute
should apply.
With regard to the second principle of the Michoff Doctrine, the principle of
community-property-by-analogy (CPBA), I note that Lois has made no claim, in contract or
otherwise, to any specific property owned by Max. Her claim is general and arises solely out
of the status she claims to have attained because Lois and Max had held themselves out as
though they were married. (Majority Opinion at 936.) Lois' claim is not that Max agreed to
give her a portion of any property that he acquired in his name after they started living
together; rather, her claim is based on what she sees as the rights of two parties with respect
to beneficial ownership of the property held by them irrespective of the existence of
marriage. (Lois' Trial Statement.) Lois admits in her trial testimony that she had no interest
in the business per se and goes on to explain her position in this way: for example, your
wife may not have an interest in your law firm but yet she still has an interest in yourin
you, that is to say, in Max himself. Lois appears to me to be claiming a status very similar to
that of a common law wife, or maybe a commonlaw-wife-by-analogy"; and it is by virtue
of this status, not contract, that she claims to be entitled to "an interest" in Max and in
anything of value that Max might have acquired during their "marriage by analogy."
__________
undefined conduct on the part of cohabiting adults are problems enough; but the real problem in this case
stems from its encouragement of informal marriage and in letting unmarried people create community property
interests by merely agreeing to do so. Community property by nature and definition is created by operation of
law. No other jurisdiction that I know of recognizes community property by agreement of unmarried parties.
law-wife-by-analogy; and it is by virtue of this status, not contract, that she claims to be
entitled to an interest in Max and in anything of value that Max might have acquired during
their marriage by analogy. It is very clear to me that Lois makes no contractual claims to
Max's property; she claims an interest in him arising out of their informal marriage. I insist
that this is contrary to the letter and spirit of Nevada family law.
Community property in the State of Nevada is defined in NRS Chapter 123 (Rights of
Husband and Wife) as all property which is acquired after marriage by either husband or
wife. NRS 123.220. The legal community of property arises only by operation of law upon the
solemnization of marriage. NRS 122.010; NRS 123.220. [N]o agreement between
cohabiting parties can create community property or any other legal relationship similar to
marriage. W. Bassett, California Community Property Handbook, 2.03[A], at 2-22 (2d ed.
1990). How then did Lois, and then the trial court, and now this court, ever get the outlandish
idea that unmarried persons could acquire and hold the significant rights inherent in the law
of marriage and community property merely by agreeing that they should have such rights?
Unfortunately, the answer to this question lies in one of our cases, Hay v. Hay, 100 Nev. 196,
678 P.2d 672 (1984). Here is the problematical language from Hay:
Where it is alleged . . . and proven that there was an agreement to acquire and hold
property as if the couple was married, the community property laws of the state will
apply by analogy.
Id. at 199, 678 P.2d at 674.
The quoted analogy language is pure dictum and certainly has nothing to do with the
holding in Hay. The only question decided in Hay was whether the plaintiff had stated a
claim upon which relief could be granted, that is, whether her complaint set forth facts to
establish the elements of a contract claim for relief. The issue had already been decided in
Warren v. Warren, 94 Nev. 309, 579 P.2d 772 (1978); but we again held in Hay (1) that
unmarried cohabitants had the capacity to contract and (2) that such a contract must have a
lawful subject matter. In Hay, we held specifically that unmarried cohabitants have the same
rights [capacity] to lawfully [sic] contract with each other regarding their property as do other
unmarried individuals. 100 Nev. at 199, 678 P.2d at 674. Concerning the lawfulness of the
subject matter, we merely said that such parties could not legally contract for meretricious
sexual services, but that all other contractual arrangements were permissible. Id. No more
need to have been said, for neither party in Hay claimed to a right to community property
interests.
I have been able to find only one other case that has ever used the strange,
community-property-by-analogy language in question. Omer v. Omer, 523 P.2d 957
(Wash.Ct.App. 1974). In Omer, a Washington intermediate appellate court toyed with a novel
theory that has been called the relationship approach to settling disputes relating to property
acquired by parties during unmarried cohabitation. The three-judge Omer panel awarded
property to Helen Omer on a constructive trust theory but at the same time, in dicta, discussed
another possible theory (that) . . . has so far not been adopted in this state. Id. at 960. The
theory mentioned but rejected by the Omer court was that certain relationships of long and
durable standing may give rise to community property rights similar to those which prevail
between unmarried persons. Id. The Omer court went on to comment, gratuitously, that it
might be a better approach to let proof of the relationship itself . . . determine the merits of
the claim and then, if warranted by the facts, hold that the community property laws be
applied by analogy to determine the rights of the parties. Id.; (my emphasis). The Omer
court, of course, did not hold that proof of the [unmarried] relationship could create legally
enforceable community property interests and recognized that it was constrained by precedent
in Washington not to follow what it thought might possibly be a better approach. Id. The
Omer court was, consequently, compelled to employ traditional theories in determining the
property rights of the unmarried parties and could not rely on the party's relationship or on
the theoretical approach of community property by analogy. Id. I find no case other than
Michoff in which the property of unmarried persons has been treated like community property
and divided by the courts in a divorce or divorce-like action.
The Omer relationship theory became visible in California in the case of In re Marriage
of Cary, 109 Cal.Rptr. 862 (Cal.Ct.App. 1973). In Cary, the California Court of Appeal
theorized that where there was something resembling a family relationship (whatever that is),
the courts should be required to divide property of putative spouses equally.
3
Cary's
relationship theory was very similar to that mentioned in Omer.
__________

3
The concept of a putative spouse, which is distinct from a common law spouse, is derived from the Spanish
civil law of community property, which was adopted by California and by Nevada. See William Q. DeFuniak &
Michael J. Vaughn, Principles of Community Property, 52, at 88, 56, at 96, (2d ed. 1971). A putative spouse
is defined in California as one who believed in good faith that the marriage was valid. Cal. Civ. Code 4452
(West Supp. 1992). Upon termination of a void or voidable marriage, property which would have been
community or quasi-community property if the union had not been void or voidable, is divided in accordance
with the California statute, Cal. Civ. Code 4800 (West Supp. 1992), which provides for the division of
community property. Id. at 4800. The Nevada Revised
was very similar to that mentioned in Omer. Cary was strongly criticized as effecting judicial
endorsement of common law marriages. In re CaryA Judicial Recognition of Illicit
Cohabitation, 25 Hastings L.J., 1226, 1246-1247 (1974). The California Supreme Court in
Marvin v. Marvin, 557 P.2d 106, 116 (1976) (relied on so heavily by the majority), expressly
reject[ed] the reasoning of Cary, observing that [i]f Cary is interpreted as holding that the
Family Law Act requires an equal division of property accumulated in nonmarital actual
family relationships,' then we agree with Beckman v. Mayhew that Cary distends the act.
Marvin, 557 P.2d at 120. Marvin expressly held that the provisions of the Family Law Act
do not govern the distribution of property acquired during a nonmarital relationship. Id. at
110. Similarly, NRS Chapter 125 does not govern the distribution of property acquired during
a nonmarital relationship in Nevada. Other jurisdictions agree with the Marvin principle that
property claims among unmarried persons are established not by any purported status created
by cohabitation but by the intent of the parties to contract. See, e.g., Schafer v. Superior
Court, 225 Cal.Rptr. 513, 515 (Cal.Ct.App. 1986); Kozlowski v. Kozlowski, 395 A.2d 913
(N.J. 1978), judgment affirmed by 403 A.2d 902 (N.J. 1979); Watts v. Watts, 405 N.W.2d
303 (Wis. 1987).
4

In sum, then, Lois was wrong when she asserted that the courts recognize the rights of
two [cohabiting] parties with respect to beneficial ownership of the property held by [the
parties] irrespective of the existence of marriage. (Lois' Trial Statement.) It is the existence
of marriage that informs the beneficial ownership known as community property.
Community property is marital property, and without marriage the term is meaningless. Our
laws define community property only in connection with and as an incident of marriage.
Community property thus has no meaning or existence other than in the context of the formal
relationship of marriage.
__________
Statutes are distinguishable. There is no statutory provision with respect to a division of property between parties
that acknowledges that even a putative spouse, i.e., one who held a good faith belief that the marriage was
valid, is to be afforded any entitlements which approximate those of a married person. Compare NRS 125.150;
NRS 125.290 et seq. Even if we had such a statute, clearly Lois is not a putative spouse.

4
Community property is a legal community of property which, without any agreement between the spouses, is
arbitrarily imposed and takes effect upon the marriage of the parties. Community property arises only by
operation of law upon the solemnized marriage of the parties. NRS 123.220 states that community property is
[a]ll property . . . acquired after marriage by either husband or wife; NRS 122.010(1) defines marriage as a
civil contract requiring consent and solemnization. There can be no community property (CPBA) by agreement
alone.
relationship of marriage. To think that marriage is not the indispensable essence of
community property and that community property or some novel analogue of community
property could exist outside of marriage is completely out of harmony with conventional
family law jurisprudence in community property jurisdictions. To hold that unmarried
persons can hold community property (or as-though community property) and avail
themselves of our marriage dissolution laws is to exhume the long-dead body of law relating
to common law marriage, an institution abolished in Nevada almost fifty years ago. Consent
alone will not constitute marriage; it must be followed by solemnization as authorized and
provided by this chapter. NRS 122.010. To allow community property (or its analogue,
CPBA) to be created by consent alone is clearly contrary to the statute and contrary to
Nevada's strong public policy interest in encouraging legal marriage. Hay, 100 Nev. at 199,
678 P.2d at 674.
5

Permitting community property to be created by cohabitation or contract is a disincentive
to marriage; it gives unmarried persons the rights of community property without imposing
upon them the mutual assumption of duties that is attendant to the marital status. Unmarried
persons will now be in a position to choose whether or not they wish to be governed by
community property law; whereas, community ownership is thrust upon married persons at
the time of their marriage unless they agree in writing not to hold property as community. See
NRS 123.190; NRS 123.220. The necessary result of today's judicial acceptance of
as-though marriages and CPBA will be that married couples will automatically be
controlled by community property laws unless they decide to opt out; whereas unmarried
couples will now have the odd privilege of being able to choose (impliedly or expressly,
orally or in writing) whether they wish to hold property regularly or as community property
by analogy. Such an arrangement is not only incongruous and disadvantageous to married
persons, it is entirely inconsistent with the design and purpose of community property law.
__________

5
Permitting the mentioned kinds of informal marriage is fraught with apparently unforeseen difficulties. I
cannot help but wonder what would happen when a real spouse challenges the distribution of
community-property-by-analogy: I know he has acquired property since he has been living with the other
person(s); but I am his real wife, and I think what he has acquired is real community property. There is so
much uncertainty inherent in these new kinds of relationships, and in CPBA itself, that I would anticipate a lot of
litigation related to the Michoff Doctrine.
Another problem I see relates to the right to jury trial. If Lois had sued in contract, she or Max could have
demanded a jury trial. This would not be true in the NRS Chapter 125, divorce-like action we have going here. I
wonder in this case how the trial court would have reacted to a jury demand by Max.
purpose of community property law. The legislature has accorded benefits, obligations, and
protections to persons who have complied with the formal requirements of marriage. As
noted by the California Supreme Court: Formally married couples are granted significant
rights and bear important responsibilities toward one another which are not shared by those
who cohabit without marriage. Elden v. Sheldon, 758 P.2d 582, 587 (Cal. 1988). I believe
that we are constrained by our legislature's clear policy favoring formal marriage not to
accord the same (or greater) protections to unmarried cohabitants that are accorded married
individuals and that to do so constitutes judicial overreaching of a clear legislative purpose.
I am strongly opposed to opening up our divorce courts to unmarried persons. The trial
court was absolutely wrong to decide this case under our Marriage and Dissolution statute
and, in a divorce-like decree, to divide a judicially-created, new species of property,
community-property-by-analogy. My disposition of this case would be to reverse the trial
court decree and return the case to the trial court where, because of the strange way that this
case has been handled, I would allow Lois to file a new complaint to state a contract claim if
she has one. Lois is entitled to recover under Hay if she can prove, by a preponderance of
evidence, that Max agreed to share with her the income and property that he acquired while
he and Lois were living together.
____________
108 Nev. 946, 946 (1992) Marion Properties, Ltd. v. Goff
MARION PROPERTIES, LTD., a Nevada Limited Partnership, by Its General Partner,
LOYAL CROWNOVER, Appellant, v. WILLIAM G. GOFF, JR., KAREN Z. GOFF,
and RICHARD A. McCARTY, Respondents.
No. 21835
November 5, 1992 840 P.2d 1230
Appeal from an order of the district court dismissing appellant's complaint. Eighth Judicial
District Court, Clark County; Carl J. Christensen, Judge.
Property owner sued corporation it had hired to construct several condominiums. After
stipulation and order for dismissal with prejudice of owner's claims against corporation,
owners sued officers, directors, shareholders, or owners of corporation, alleging that they
were liable because they had executed personal guaranty agreements. The district court
dismissed complaint.
Owner appealed. The supreme court held that discharge of corporation's obligation to owner,
without consent of defendants, discharged obligation of defendants as guarantors and as
sureties.
Affirmed.
Morton & Associates and Eric Dobberstein, Las Vegas, for Appellant.
Deaner, Deaner & Scann and Douglas R. Malan, Las Vegas, for Respondents.
1. Judgment.
Judgment pursuant to stipulation of parties does not have res judicata effect.
2. Stipulations.
Plaintiff's stipulation to dismiss with prejudice its claims against corporation, without consent of corporation's officers, also
discharged officers' obligations as guarantors and as sureties; completely extinguishing debt as between plaintiff and corporation
altered officers' obligations as guarantors and as sureties.
3. Guaranty; Principal and Surety.
Guarantors and sureties are exonerated if creditor alters obligation of principal without consent of guarantor or surety.
OPINION
Per Curiam:
In May of 1988, American Development Group, Inc., dba Americana Construction
(Americana) agreed with Marion Properties, Ltd. (Marion) to construct several
condominiums on Marion's property. Eventually, after several disputes arose, Marion filed a
complaint in the district court against Americana. Marion alleged that Americana had failed
to complete the project on time and had wrongfully recorded a lien against the project.
Americana thereafter filed a lien foreclosure action against Marion and other owners. Both
actions were consolidated. Americana later declared bankruptcy.
An attorney for Americana's bankruptcy trustee and Marion's attorney entered into a
stipulation in which Marion dismissed its claim against Americana with prejudice and
Americana dismissed its claim against Marion with prejudice. The stipulation was filed in the
district court, and the district court approved it. The stipulation and order for dismissal stated
that Marion's claims against Americana were dismissed with prejudice, [Marion] reserving
all rights to bring claims against the principals, incorporators or indemnitors of Americana
Construction Company. In a stipulation filed in the bankruptcy court, Americana also
agreed to release its lien on the real property upon payment by Marion to Americana's
bankruptcy trustee of $2,500.
cana also agreed to release its lien on the real property upon payment by Marion to
Americana's bankruptcy trustee of $2,500.
Marion subsequently filed a complaint against respondents. Marion alleged that
Americana had breached its contract with Marion and that individual liability should be
imposed on respondents who were the officers, directors, shareholders, or owners of
Americana. Marion alleged that respondents were liable because they had executed personal
guaranty agreements in which they had agreed to indemnify the creditors of Americana.
1
Marion's complaint also stated a claim for relief under NRS 78.625.
Respondents moved to dismiss Marion's complaint. Respondents argued, among other
things, that the earlier judgment of the district court was res judicata and therefore barred
Marion's claim. Following a hearing, the district court dismissed the complaint. The district
court's order of dismissal did not state the court's reasons.
Marion argues on appeal that the district court erred in dismissing the complaint.
Specifically, Marion asserts that the first judgment of the district court was not res judicata
and therefore did not bar its complaint against respondents.
[Headnote 1]
In Giessel v. Galbraith, 105 Nev. 101, 104, 769 P.2d 1294, 1296 (1989), this court held
that a judgment pursuant to stipulation of the parties does not have a res judicata effect.
Thus, because the judgment in the previous case was entered pursuant to a stipulation
between Marion and Americana, Marion correctly argues that it does not have a res judicata
effect.
[Headnotes 2, 3]
Nevertheless, the district court correctly dismissed Marion's complaint. It is well-settled
that guarantors and sureties are exonerated if the creditor alters the obligation of the principal
without the consent of the guarantor or surety. Williams v. Crusader Disc. Corp., 75 Nev. 67,
70
__________

1
The agreements provided in part as follows:
For value received, the undersigned, jointly and severally, do hereby personally indemnify the
creditors of Americana Development Group, Inc. as guarantors and as sureties, against any loss or
damage the said creditors may suffer as a result of Americana Development Group, Inc. to promptly pay
obligations incurred by it in the ordinary course of construction business within the State of Nevada.
It is further agreed that the undersigned, as sureties, are firmly bound unto Americana Development
Group, Inc. for the benefit of the said creditors; and it is further agreed that this Agreement as a guaranty
is separate and absolute, and that the undersigned are obligated hereunder as guarantors in addition to
their obligation as sureties. No election of remedies is intended and the obligations hereunder are
cumulative, joint and several.
Crusader Disc. Corp., 75 Nev. 67, 70-71, 334 P.2d 843, 846 (1959); Howard v. Associated
Grocers, 601 P.2d 593, 595 (Ariz. 1979) (discharge of the debtor's obligation to the creditor
without consent of the guarantor discharges the obligation of the guarantor).
In this case, the debt has been completely extinguished as between Marion and Americana.
The discharge of Americana's obligation to Marion, without the consent of respondents,
discharged the obligation of respondents as guarantors and as sureties. We therefore conclude
that the district court correctly dismissed Marion's complaint,
2
and we affirm the order of the
district court.
____________
108 Nev. 949, 949 (1992) Whitman v. Whitman
MARK ALAN WHITMAN, Appellant, v. SANDRA DARLENE WHITMAN, Respondent.
No. 23252
November 5, 1992 840 P.2d 1232
Proper person petition for rehearing. First Judicial District Court, Carson City; Michael E.
Fondi, District Judge.
Wife moved to divest husband of his title in property which had been previously awarded
to wife by divorce decree. The district court granted wife's motion. Husband appealed. The
supreme court held that husband could not challenge award of property in divorce decree.
Rehearing granted; appeal dismissed.
Mark Alan Whitman, In Proper Person, for Appellant.
Peter B. Jacquette, Carson City, for Respondent.
Untimely notice of appeal fails to vest jurisdiction in supreme court. NRAP 4(a).
When clerk of district court received timely notice of appeal unaccompanied by filing fee, but accompanied by motion for leave to
proceed on appeal in forma pauperis and unsigned affidavit in support of that motion, clerk acted improperly in returning notice of
appeal to appellant, and should instead have retained notice of appeal in record and informed appellant by
letter of any perceived deficiencies in document.
__________

2
We further conclude that Marion's complaint failed to state a claim for relief under NRS 78.625. See
Kellner v. Saye, 331 F.Supp. 846 (D.Nev. 1971).
lant, and should instead have retained notice of appeal in record and informed appellant by letter of any perceived deficiencies in
document.
Where appellant timely submitted to clerk of district court notice of appeal from appealable order of district court, and appellant's
timely notice of appeal was not contained in record due to inappropriate action of district court clerk, supreme court would address
merits of appeal.
4. Divorce.
On husband's appeal from district court order divesting him of title to real property which had been previously awarded to wife in
divorce decree, husband could not challenge award of that property, as husband did not appeal from divorce decree.
OPINION
Per Curiam:
This is a proper person appeal from an order of the district court divesting appellant of title
to real property.
1
On February 14, 1991, the district court entered a decree of divorce in this
matter. In the decree, the district court awarded certain real property to respondent. Appellant,
who is currently an inmate at the Nevada State Prison, refused to execute a quitclaim deed to
that property. On November 21, 1991, respondent filed in the district court a motion to divest
appellant of his title in the property. The district court granted respondent's motion, and this
appeal followed.
[Headnote 1]
The district court entered its order divesting appellant of his title to the real property on
December 11, 1991. Notice of entry of that order was served on appellant on December 13,
1991. The only notice of appeal from this order contained in the record was filed by the clerk
of the district court on April 23, 1992, well after the expiration of the thirty-day appeal period
prescribed by NRAP 4(a).
2
An untimely notice of appeals fails to vest jurisdiction in this
court. See Rust v. Clark Cty. School District, 103 Nev. 686, 747 P.2d 1380 (1987).
Accordingly, on July 21, 1992, we dismissed this appeal.
__________

1
Appellant also appealed from an order of the district court denying appellant's motion to dismiss, motion
to vacate or set aside, motion to disqualify judge and application for injunction pending appeal, and from an
order of the district court denying appellant's motion for rehearing, motion to vacate or set aside judgment,
motion for transcripts and motion for appointment of counsel. In our order of July 21, 1992, we concluded that
we lacked subject-matter jurisdiction to entertain appellant's appeal with respect to these orders. Appellant has
not challenged this conclusion in his petition for rehearing.

2
The record contains four notices of appeal from various separate orders of the district court.
we dismissed this appeal. Appellant has submitted a proper person petition for rehearing.
3

[Headnote 2]
On rehearing, appellant has submitted documents that conclusively demonstrate that
appellant submitted a timely notice of appeal to the clerk of the district court. Although the
clerk of the district court stamped the notice of appeal received on December 30, 1991, the
clerk did not file the notice of appeal. Instead, the clerk of the district court returned
appellant's notice of appeal to appellant because it was not accompanied by a filing fee and,
although the notice was accompanied by a motion for leave to proceed on appeal in forma
pauperis, appellant's affidavit in support of that motion was apparently not signed.
Consequently, there is no record of the submission of appellant's timely notice of appeal. We
note that the clerk of the district court filed appellant's motion for leave to proceed on appeal
in forma pauperis on the date of receipt, December 30, 1991, and that the district court
eventually granted that motion.
We have previously stated that it is extremely important that the clerk of the district court
keep an accurate record of the date of receipt of every document submitted to the clerk,
regardless of whether the document is in the appropriate form. Indeed, it is a gross dereliction
of duty for the clerk of the district court to neglect this ministerial duty. Huebner v. State,
107 Nev. 328, 330, 810 P.2d 1209, 1211 (1991) (footnote omitted). In this case, the clerk of
the district court has failed to keep any record of the date of receipt of appellant's notice of
appeal; instead, the clerk stamped the document received and returned it to appellant. The
clerk of the district court had no authority to take such action.
Although the clerk of the district court had no duty to file appellant's notice of appeal
before appellant paid the requisite filing fee or was relieved of the duty to pay the filing fee
by order of the district court, see NRS 19.013(2), the clerk had a duty to receive the document
and to keep an accurate record of the case pending before the district court. Particularly in this
case it was essential that the notice of appeal be retained in the record, because we have held
that a notice of appeal is effective on the date of receipt by the district court clerk. See
Huebner v. State, 107 Nev. 32S,
__________

3
Appellant's proper person document is entitled: Petition for rehearing [or] writ of error. Although
appellant has not been granted permission to file documents in this matter in proper person, see NRAP 46(b), we
have received and considered appellant's proper person documents. We deny appellant's motions for leave to
proceed in proper person, for the appointment of counsel, and for an injunction pending appeal.
107 Nev. 328, 810 P.2d 1209 (1991). Rather than returning the notice of appeal to appellant,
the clerk of the district court should have retained the notice of appeal in the record, and
should have informed appellant by letter of any perceived deficiencies in the document.
4
Appellant could then have taken whatever action was appropriate to pursue his appeal.
[Headnote 3]
In light of the foregoing, we conclude that appellant timely submitted to the clerk of the
district court a notice of appeal from an appealable order of the district court, and that
appellant's timely notice of appeal is not contained in the record due to the inappropriate
action of the district court clerk. Accordingly, we grant appellant's petition for rehearing, and
we proceed to address the merits of this appeal.
[Headnote 4]
As noted previously, on February 14, 1991, the district court entered a decree of divorce in
this matter. Formal notice of entry of this decree was served on appellant by mail on February
15, 1992. Appellant did not appeal from the decree of divorce. In the decree, the district court
awarded the real property at issue in this appeal to respondent. That award is now final, and
cannot be challenged by appellant in this appeal.
When appellant refused to execute a quitclaim deed to the property in favor of respondent,
respondent sought and obtained an order of the district court divesting appellant of any
interest in the property. Appellant's challenge to the district court's order divesting him of the
subject property is the only matter now properly before this court. In pleadings before this
court, appellant alleges that respondent did not properly serve him with a copy of certain
documents and certain other matters which appellant feels are irregularities in this matter.
Nevertheless, appellant has no interest in the subject property as a result of the decree of
divorce. Because the decree was not challenged on appeal, it is now final and appellant
cannot demonstrate that any alleged irregularity in the proceedings in the district court that
resulted in the order divesting him of title prejudiced him.
5
Having reviewed the record on
appeal, and for the reasons set forth above, we conclude that appellant cannot
demonstrate error in this appeal, and that briefing and oral argument are unwarranted.
__________

4
It does not appear that there was any deficiency in the notice of appeal itself. The only deficiency appears
to have been in appellant's affidavit in support of his motion for leave to proceed in forma pauperis. This
document was also returned to appellant, making it impossible for the district judge or this court to determine
whether the document was indeed defective.

5
We do not suggest that appellant has demonstrated any improprieties with respect to the proceedings
below. We merely determine that it is unnecessary to resolve appellant's claims in light of the fact that he has no
interest in the subject property as a matter of law.
Having reviewed the record on appeal, and for the reasons set forth above, 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 dismiss this appeal.
____________
108 Nev. 953, 953 (1992) Jefferson v. State
FRANK PHILLIP JEFFERSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22521
November 5, 1992 840 P.2d 1234
Appeal from a judgment of conviction, upon a jury verdict, of one count of robbery of a
person sixty-five years of age or older. Eighth Judicial District Court, Clark County; Donald
M. Mosley, Judge.
Defendant was convicted in the district court of robbery of person sixty-five years of age
or older. Defendant appealed. The supreme court held that: (1) court properly refused guilty
plea, and (2) evidence supported finding that defendant obtained victim's purse by using
force.
Affirmed.
Morgan D. Harris, Public Defender and Victor J. Austin, Deputy Public Defender, Clark
Tufteland and James Miller, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
District court properly refused to accept defendant's guilty plea to larceny from person as lesser-included offense of robbery of
person; there was no plea agreement in case, prosecutor requested that court refuse guilty plea, and defendant had no right to enter plea
at any particular stage. NRS 174.035, subd. 1.
2. Criminal Law.
District court may properly refuse to give proposed instruction on defense theory of case where offered instruction is substantially
covered by instruction that is given.
3. Robbery.
In prosecution for robbery of person sixty-five years of age or older, evidence supported finding that defendant obtained victim's
purse by using force; victim testified that she resisted when defendant grabbed her purse, and that, although struggle for purse did not
last long, she received two bruises while struggling with defendant.
received two bruises while struggling with defendant. NRS 200.380, subd. 1.
4. Criminal Law.
It is for jury to determine weight and credibility to give conflicting testimony, and jury's verdict will not be disturbed on appeal
where substantial evidence supports verdict.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, upon a jury verdict, of one count of
robbery of a person sixty-five years of age or older. See NRS 200.380; NRS 193.167. The
district court sentenced appellant to serve nine years in the Nevada State Prison, enhanced by
a consecutive term of nine years because the victim was sixty-five years of age or older.
Appellant was charged with one count each of larceny from the person and robbery, both
with the enhancement for a victim sixty-five years of age or older. Appellant tendered a guilty
plea to the count of larceny from the person. The district court, at the request of the
prosecutor, refused to accept the guilty plea, and entered pleas of not guilty to both counts.
Appellant contends that the district court abused its discretion when it refused to accept his
guilty plea to larceny from the person.
[Headnote 1]
The district court is specifically granted discretion to refuse a guilty plea, NRS 174.035(1).
There was no plea agreement in this case, and appellant had no right to enter a guilty plea to
any particular charge. Under the facts of this case, larceny from the person is a lesser included
offense of robbery. See Lisby v. State, 82 Nev. 183, 187, 414 P.2d 592, 594 (1966). Under
these circumstances, the district court did not abuse its discretion by refusing to accept
appellant's guilty plea to larceny from the person.
[Headnote 2]
Appellant contends that the district court denied him the right to instruct the jury on his
theory of the case when it refused to give a proposed jury instruction defining the element of
force in the crime of robbery. A district court may properly refuse to give a proposed
instruction on the defense theory of the case, however, where, as here, the offered instruction
is substantially covered by an instruction that is given. See Shannon v. State, 105 Nev. 782,
787, 783 P.2d 942, 945 (1989); Buckner v. State, 95 Nev. 117, 120, 590 P.2d 628, 630
(1979).
[Headnote 3]
Appellant contends that insufficient evidence that he used force when he snatched the
victim's purse was presented to support his conviction for robbery. See NRS 200.380(1). 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). In particular, we note that appellant's victim testified that she resisted
when appellant grabbed her purse, and that although the struggle for the purse did not last
long, she received two bruises while struggling with appellant. Further, the victim's husband
testified that he noticed a struggle for the purse.
[Headnote 4]
The jury could reasonably infer from the evidence presented that appellant obtained the
victim's purse by using force. It is for the jury to determine the weight and credibility to give
conflicting testimony, and the jury's verdict will not be disturbed on appeal where, as here,
substantial evidence supports the verdict. See Bolden v. State, 97 Nev. 71, 624 P.2d 20
(1981). Accordingly, we affirm the judgment of conviction.
____________
108 Nev. 955, 955 (1992) 950 Ryland, Inc. v. Daane
950 RYLAND, INC., dba SIERRA EYE ASSOCIATES, Appellant, v. DELORES K.
DAANE, Respondent.
No. 21721
November 10, 1992 840 P.2d 1236
Appeal from a judgment, pursuant to a jury verdict, assessing damages against appellant in
the amount of $52,194.00 for unlawful employment practices in violation of Nevada's
maternity leave statute. Second Judicial District Court, Washoe County; Robin Anne Wright,
Judge.
Employee whose job was no longer available upon return from maternity leave brought
action against employer alleging violation of maternity leave statute. The district court
entered judgment on jury verdict for employee and employer appealed. The supreme court
held that evidence did not support the finding that statute was violated.
Reversed.
Jones, Jones, Close & Brown and Douglas A. Sloane, Reno, for Appellant.
Digesti & Peck, Reno, for Respondent.
Civil Rights.
Employer did not violate maternity leave statute absent showing that it had granted leave to other employees for medical condition
without extending same benefit to pregnant employee; only evidence offered to show disparate treatment was based on case of healthy
employee granted leave of absence to attend sick mother. NRS 613.335.
OPINION
Per Curiam:
Respondent, Delores Daane (Daane), had worked for appellants, 950 Ryland, Inc., dba
Sierra Eye Associates (Sierra), for more than four years when she became pregnant with
twins and was advised by her doctor to take a medical leave of absence. Sierra had an
unwritten policy of granting maternity leave for a period of six to eight weeks to its
employees; however, Sierra agreed to grant Daane a leave of absence for four to six months.
Daane commenced her leave on May 31, 1988.
On September 12, 1988, Daane informed Sierra that she would be returning to work on
November 2, 1988. Sierra then advised Daane that her former position was no longer
available.
1
Consequently, Daane brought suit against Sierra for violation of the Nevada
maternity leave statute, NRS 613.335. Under NRS 613.335, employers who grant leave to
their employees for a medical condition must grant the same benefits to their female
employees who are pregnant.
2

At trial, the parties disputed whether Sierra had given a former employee, Karen Parlane
(Parlane), an indefinite leave of absence to care for her sick mother. Parlane testified that
she informed Sierra she would be gone for approximately three or four weeks; however, after
remaining absent for three months, Parlane contacted Sierra and stated that she would not be
returning to work. It is not clear how long Sierra held Parlane's job open.
At the conclusion of the trial, the jury found that Sierra had violated the Nevada
maternity leave statute.
__________

1
The parties disputed whether Daane was offered a different position. Sierra claimed that it offered Daane a
different position but that she turned it down; Daane claimed she was not offered a different position.

2
NRS 613.335 provides, in part:
If an employer grants leave with pay, leave without pay, or leave without loss of seniority to his [or her]
employees for sickness or disability because of a medical condition, it is an unlawful employment
practice to fail or refuse to extend the same benefits to any female employee who is pregnant.
violated the Nevada maternity leave statute. As a result, Daane was awarded $52,194.00 in
damages.
On appeal, Sierra contends that the jury improperly found that Sierra violated the
maternity leave statute. We agree. Under the statute, Daane was required to show that Sierra
refused to grant the same medical leave benefits to her that Sierra extended to other
employees. The only evidence that Daane produced to show disparate treatment was based on
the leave granted to Parlane. Parlane, however, was neither sick nor disabled because of a
medical condition as required by the statute. Instead, she was given a leave of absence in
order to leave the country and be with her sick mother in New Zealand. Parlane indicated that
she would be gone for only three or four weeks, but in fact, she never returned to work. It is
thus clear that there was no basis for the jury's determination that Sierra had violated the
maternity leave statute. First, the statute applies only to employees who are sick or disabled
because of a medical condition. Sierra's willingness to grant a leave of absence to Parlane, a
healthy employee, in order to visit her sick mother thus constituted no historical basis for a
comparison with the maternity leave benefits extended to Daane. Second, Parlane's failure to
return to work provided no evidentiary basis for a finding of disparate treatment concerning
Daane in any event.
We have held that a jury verdict should be overturned only if it is not supported by
substantial evidence. Bally's Employees' Credit Union v. Wallen, 105 Nev. 553, 779 P.2d 956
(1989). For the reasons cited above, we conclude that the jury verdict was not supported by
substantial evidence.
We thus conclude that the finding of a violation of the maternity leave statute was
improper. We therefore reverse the judgment of the district court.
Springer, Rose, Steffen and Young, JJ., and Fondi, D. J.,
3
concur.
__________

3
The Honorable Michael E. Fondi, Judge of the First Judicial District Court, was designated by the
____________
108 Nev. 958, 958 (1992) Bell & Gossett Co. v. Oak Grove Investors
BELL & GOSSETT COMPANY, an Illinois Corporation, Appellant, v. OAK GROVE
INVESTORS, a California Corporation, Respondent.
No. 21288
December 3, 1992 843 P.2d 351
Order pursuant to NRAP 5 certifying questions of law from the United States District
Court for determination of state law issues. United States District Court, District of Nevada;
Bruce R. Thompson, Judge.
The United States District court certified a cause to the Nevada Supreme Court for
determination of twelve questions. The supreme court held that no valid action remained for
plaintiff to pursue against defendant.
Questions answered.
Hibbs, Roberts, Lemons, Grundy & Eisenberg, Reno, for Appellant.
Robison, Belaustegui, Robb & Sharp, Reno, for Respondent.
When summary judgment on apartment building owner's direct product liability claim against plumbing system manufacturer was
reversed, owner had three years from filing of remittitur in which to bring to trial both the direct claim and contribution claim against
manufacturer, which had been assigned to owner pursuant to settlement with another party. NRCP 41(e).
Stay of proceeding imposed by supreme court while petition for writ of mandamus was being considered tolled limitations period
applicable to cross-claim. NRCP 41(e).
When assignee of contribution cross-claim in products liability action failed to bring cross-claim to trial within three-year period
following filing of remittitur on direct claim, assigned cross-claim should have been dismissed. NRCP 41(e).
4. Contribution.
Apartment building owner which brought products liability action against subcontractors who had supplied hot water plumbing
system and which had taken assignment of contribution cross-claim from subcontractor against fittings manufacturer could no longer
enforce its assigned claim against manufacturer by separate action, where such an action had not been commenced within one year
after final judgment, or by enforcing original judgment, where original judgment had not been entered against two or more tortfeasors,
including defendant, and current action pending in federal court was not the same action as jury trial in state court more than eleven
years earlier which issued original judgment. NRS 17.285.
OPINION
Per Curiam:
This lingering controversy arose from problems with a hot water plumbing system
installed in a large Reno apartment complex. Various subcontractors contributed to the
plumbing system that improperly combined the domestic hot water system with the hot water
heating system and utilized monoflow plumbing fittings manufactured by appellant Bell &
Gossett Company. Allegedly, the fittings supplied by Bell & Gossett were inappropriate for
the apartment complex plumbing system, and increased the water velocity beyond safe limits,
causing erosion and corrosion. The hot water pipes began to leak, and it became necessary to
redesign and replace the hot water plumbing system.
Respondent Oak Grove Investors purchased the apartment complex in January, 1979, and
soon discovered extensive water damage caused by the problems with the plumbing and
heating system. On February 15, 1980, Oak Grove brought suit in Nevada state court against
several companies which participated in the project, alleging negligence, breach of warranty
and strict products liability. The defendants filed various cross-claims against each other,
including a July 1, 1980 cross-claim by Raypak, Inc. seeking contribution from Bell &
Gossett.
Before trial, the district court granted Bell & Gossett's motion for summary judgment and
dismissed all claims against it based on the determination that no defect existed in the Bell &
Gossett product that was used in the apartment complex plumbing system. Raypak later
obtained an amended summary judgment order which dismissed Oak Grove's direct claim
against Bell & Gossett, but reinstated Raypak's cross-claim.
With the exception of Raypak, the remaining defendants settled with Oak Grove and
obtained releases in exchange for a combined payment of $1.1 million. Oak Grove proceeded
to trial against Raypak alone in November, 1981. The jury returned a verdict against Raypak
for $2,750,896.60 on December 16, 1981. Later, the district court added costs and interest to
the judgment, bringing the total judgment against Raypak to $3,156,487.46. In the March 19,
1982 final judgment, Raypak received credit for the $1.1 million paid by the settling
defendants.
On September 21, 1983, Oak Grove received $1,600,000 on behalf of Raypak. Oak Grove
in turn released Raypak and Raypak's seven insurance carriers (but specifically excluded Bell
& Gossett from the release). In the same release, Raypak assigned to Oak Grove its
cross-claim against Bell & Gossett. On May 30, 1984, Oak Grove filed a satisfaction of
judgment.
Meanwhile, Oak Grove appealed the summary judgment in favor of Bell & Gossett. We
determined that summary judgment had been improperly granted and reversed the district
court's order. Oak Grove Inv. v. Bell & Gossett Co., 99 Nev. 616, 668 P.2d 1075 (1983). We
concluded that even if Bell & Gossett's product was not manufactured defectively, a question
remained as to whether the product was defective due to lack of a proper warning about
hazards which could result from its improper use. Id. at 624, 668 P.2d at 1080. Our opinion
was issued on August 31, 1983, and the remittitur was filed in the district court on October
12, 1983.
After remand, Oak Grove attempted to prosecute a direct claim against Bell & Gossett.
However, on October 15, 1985, the district court dismissed Oak Grove's claim on the basis
that it had been extinguished in 1984 when Oak Grove filed its satisfaction of judgment. See
NRS 17.235.
1
The court's order did, however, allow Oak Grove to pursue Raypak's
cross-claim for contribution against Bell & Gossett as Raypak's assignee.
Bell & Gossett subsequently moved to dismiss the assigned cross-claim for failure to bring
the matter to trial within five years. The district court denied the motion on August 20, 1986,
concluding that under NRCP 41(e), Oak Grove had three years from the date of the filing of
the remittitur within which to bring the assigned cross-claim to trial.
Thereafter, Bell & Gossett filed a petition in this court for a writ of mandamus,
challenging the district court's denial of its motion to dismiss. We stayed the proceedings on
September 30, 1986 (twelve days before the three-year statutory period in which to bring the
action to trial after remittitur expired) in order to consider Bell & Gossett's position. On
December 4, 1986, we denied the petition and lifted the stay, based upon our decision in State
ex rel. Department of Transportation v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983), to no
longer entertain petitions for extraordinary relief challenging district court orders denying
motions to dismiss.
On December 10, 1986, the case was set for trial to commence on December 17, 1986.
However, the three-year statutory period expired on December 16, 1986. On December 17,
1987, in open court, Bell & Gossett filed a motion to dismiss for want of prosecution. The
district court denied the motion and began the trial on the assigned cross-claim over Bell &
Gossett's objection.
__________

1
NRS 17.235 states:
The recovery of a judgment for an injury or wrongful death against one tortfeasor does not of itself
discharge the other tortfeasors from liability for the injury or wrongful death unless the judgment is satisfied.
The satisfaction of the judgment does not impair any right of contribution. (Emphasis added.)
trial on the assigned cross-claim over Bell & Gossett's objection. After one witness was
sworn and briefly examined, the trial was continued to an unspecified future date.
On February 22, 1989, Oak Grove filed a complaint for declaratory judgment in federal
court. On October 2, 1989, the federal district court entered an order certifying twelve
questions to this court, which we have entertained.
2
For the reasons discussed below, we
advise the federal court that under Nevada law, no cause of action remains to be pursued
against Bell & Gossett.
[Headnote 1]
We deal first with the timeliness issue. NRCP 41(e) requires a cause of action not brought
to trial within five years after it is filed to be dismissed. The provisions of Rule 41 are
applicable to cross-claims. NRCP 41(c); Great W. Land & Cattle Corp. v. District Court, 86
Nev. 282, 284, 467 P.2d 1019, 1021 (1970). The December 17, 1986 trial date was well
beyond the five-year limit. However, we agree with the district court that when Oak Grove
obtained a reversal of the summary judgment granted to Bell & Gossett, a new three-year
time limit within which to bring the action to trial commenced.
NRCP 41(e) provides in part:
When in an action after judgment, an appeal has been taken and judgment reversed with
cause remanded for a new trial . . . , the action must be dismissed by the trial court on
motion of any party after due notice to the parties, or of its own motion, unless brought
to trial within three years from the date upon which remittitur is filed by the clerk of the
trial court.
The above language specifically addresses the situation when a cause is remanded for a new
trial, but we have held that a district court may accord the same three-year limit in which to
bring an action to trial in the first instance after remand. McGinnis v. Consolidated Casinos
Corp., 97 Nev. 31, 623 P.2d 974 (1981). Oak Grove, then, had three years after the remittitur
was filed with the district court in which to pursue its direct action against Bell & Gossett.
We conclude that the reversal of summary judgment also created a new three-year time limit
in which to bring the assigned cross-claim. See Massey v. Sunrise Hospital, 102 Nev. 367,
370, 724 P.2d 208, 210 (1986).
In this instance it was not unreasonable for Raypak to wait to pursue its contribution claim
until we reversed the district court's determination that Bell & Gossett was without fault.
Therefore, Oak Grove, as assignee of the cross-claim, was entitled to the three-year period
upon filing of the remittitur.
__________

2
Two of the certified questions have not been briefed on appeal, and are therefore considered abandoned.
Oak Grove, as assignee of the cross-claim, was entitled to the three-year period upon filing of
the remittitur.
[Headnotes 2, 3]
However, this determination does not end the inquiry of timeliness. Bell & Gossett
contends, and we agree, that Oak Grove failed to bring the cross-claim to trial within three
years of the filing of the remittitur. The remittitur was filed on October 12, 1983. Therefore,
the matter should have been brought to trial by October 12, 1986. However, the time for
bringing the matter to trial under NRCP 41(e) was tolled during the period of September 30,
1986 through December 4, 1986 while our stay of the proceedings was in effect. See Boren v.
City of North Las Vegas, 98 Nev. 5, 638 P.2d 404 (1982). At the time the stay was issued,
Oak Grove had twelve days remaining before the three-year period expired. Thus, when the
stay was lifted on December 4, 1986, the three-year period again began to run and expired
twelve days later on December 16th, the day before trial began. We have consistently held
that the language of NRCP 41(e) requiring dismissal of actions not brought to trial within the
prescribed time frame is mandatory. See, e.g., Massey; Johnson v. Harber, 94 Nev. 524, 582
P.2d 800 (1978); Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969); Smith v. Garside, 81
Nev. 312, 402 P.2d 246 (1965). Accordingly, Bell & Gossett's motion to dismiss the assigned
cross-claim on December 17, 1986, for failure to bring it to trial within three years of the
filing of the remittitur should have been granted.
3

[Headnote 4]
Even in the absence of the timeliness problem, we are unaware of any legal ground upon
which Oak Grove could legitimately enforce the cross-claim at this point. In Nevada,
enforcement of a tortfeasor's right to contribution from other tortfeasors is governed by NRS
17.285, which (in relevant part) provides:
1. Whether or not judgment has been entered in an action against two or more
tortfeasors for the same injury or wrongful death, contribution may be enforced by
separate action.
2. Where a judgment has been entered in an action against two or more tortfeasors
for the same injury or wrongful death, contribution may be enforced in that action by
judgment in favor of one against other judgment defendants by motion upon notice to
all parties to the action.
__________

3
Oak Grove makes several arguments why it should have received additional days in which to bring the
matter to trial, all of which we find meritless.
3. If there is a judgment for the injury or wrongful death against tortfeasor seeking
contribution, any separate action by him to enforce contribution must be commenced
within 1 year after the judgment has become final by lapse of time for appeal or after
appellate review.
The above statute indicates that two methods exist to enforce a tortfeasor's right to
contribution. Contribution may be enforced by a separate action commenced within one year
after the judgment has become final by lapse of time for appeal or after appellate review. It is
undisputed that a separate action specifically for contribution was not commenced within one
year.
The second method is to enforce the right to contribution in the same action in which
judgment is entered against two or more tortfeasors. NRS 17.285(2). However, judgment was
not entered against two or more tortfeasors in the original actiononly against Raypak. Also,
Bell & Gossett, having never been found liable, cannot be a judgment defendant for purposes
of NRS 17.285(2). Furthermore, it is difficult to accept that the action now pending in federal
court eleven years after the jury trial is the same action. Since neither method of enforcing a
right to contribution was pursued here, Oak Grove retains no right to enforce its acquired
cross-claim against Bell & Gossett.
Accordingly, because the cross-claim against Bell & Gossett is no longer enforceable, we
advise the federal district court that under Nevada law, no valid action remains for Oak Grove
to pursue against Bell & Gossett. Our disposition of this case makes it unnecessary to discuss
the remaining certified questions.
____________
108 Nev. 963, 963 (1992) Fernandez v. Admirand
VIRGINIA T. FERNANDEZ, ROMAN P. FERNANDEZ, JR., EVELYN FERNANDEZ and
ALLEN FERNANDEZ, Sole Heirs of ROMAN P. FERNANDEZ, Decedent,
Appellants, v. WILLIAM H. ADMIRAND, M.D. and MICHAEL K. DAINES, M.D.,
Respondents.
No. 21620
December 3, 1992 843 P.2d 354
Appeal from an order of the district court dismissing a wrongful death action for medical
malpractice pursuant to NRCP 41(b). Second Judicial District Court, Washoe County; Robert
L. Schouweiler, Judge.
Heirs of patient who died of colon cancer brought wrongful death action against
physicians for medical malpractice.
death action against physicians for medical malpractice. The district court dismissed for
failure to prove sufficient case for jury. Heirs appealed. The supreme court held that: (1) heirs
produced sufficient evidence to establish standard of care concerning recognition of bright
red blood as indication of colon cancer and steps necessary to diagnose it; (2) issue of primary
physician's negligence was for jury; (3) issue of legal cause of patient's death was for jury;
and (4) issue of consulting physician's negligence was for jury.
Reversed and remanded; vacated in part.
Peter J. Sferrazza, Reno, for Appellants.
Eugene J. Wait, Jr., Reno, for Respondent Admirand.
Osborne & Gamboa, Reno, for Respondent Daines.
Because appellants' appeal from trial court's dismissal on ground that upon facts and law plaintiffs failed to prove sufficient case
for court or jury, respondents' motion for involuntary dismissal admits truth of appellants' evidence and all inferences that can
reasonably be drawn therefrom, and evidence must be interpreted in light most favorable to appellants and most strongly against
respondents. NRCP 41(b).
2. Trial.
Prima facie case is sufficiency of evidence to send question to jury.
3. Evidence.
Credibility of witnesses and weight of evidence are immaterial to presentation of prima facie case.
4. Physicians and Surgeons.
To prove medical malpractice, plaintiffs must first establish accepted standard of medical care or practice, and then must show
that doctors' conduct departed from that standard and legally caused injuries suffered.
Medical malpractice plaintiffs produced sufficient evidence to establish standard of care concerning recognition of red blood as
indication of colon cancer and steps necessary to diagnose it, although plaintiffs' experts were not specialists in internal medicine;
recognition of red blood bleeding from rectum as indication of potential colon cancer is something within ken of all physicians.
Generally, expert testimony must be used to establish medical malpractice, unless propriety of treatment, or lack of it, is matter of
common knowledge of laymen.
7. Evidence.
Once physician is qualified as expert, he or she may testify to all matters within his or her experience or training, and expert is
generally given reasonably wide latitude in opinions and conclusions he or she can state, being subject only to general exercise of
discretion by district court concerning whether expert is truly qualified to render such testimony. NRS 50.275.
Issue of physician's negligence was for jury in wrongful death action for medical malpractice where heirs of patient who died of
colon cancer presented evidence that blood in stool signifies presence of colon cancer, physician was aware of blood in patient's stool,
physician neither performed nor requested any lower gastrointestinal studies on behalf of patient, and that colon cancer would have, in
all probability, been detectable had such studies been performed.
Issue of legal cause of patient's death was for jury in wrongful death action for medical malpractice where heirs of patient who
died of colon cancer showed that physician's omissions had foreseeable consequence to reasonable medical probability of substantially
reducing patient's chances of survival, and that patient probably died from cancer because he had only fourteen percent chance of
surviving cancer once it was discovered.
Standard in medical malpractice case concerning causation of death is reasonable medical probability.
Issue of consulting physician's negligence was for jury in wrongful death action for medical malpractice where heirs of patient who
died of colon cancer presented evidence that, although physician claimed he had no knowledge that patient was discharging red blood
from his rectum, physician should have reviewed patient's history or taken one himself, and that physician should have found that
patient was bleeding from rectum, which was consistent with colon cancer.
12. Costs.
On appeal of medical malpractice case dismissed for failure to prove sufficient case for jury, entire record should not have been
designated record on appeal; appellants were obligated to transmit only those portions of record they considered necessary and
relevant, and they should not have been required to pay for transmission of portions that were unnecessary and irrelevant and,
therefore, respondents would be required to reimburse appellants for costs of additional transcripts.
OPINION
Per Curiam:
Facts
In June, 1983, Roman P. Fernandez (Fernandez) first sought medical treatment from
Michael K. Daines, M.D. (Dr. Daines), a physician who was board certified in internal
medicine. Fernandez was a forty-nine year old Filipino male with a three-year history of
peptic ulcer disease and gastrointestinal (G.I.) bleeding.
On January 24, 1984, Fernandez returned to Dr. Daines and told him that, when he had a
bowel movement, he had black, tarry stools along with bright red blood. That same day, Dr.
Daines had Fernandez admitted to St. Mary's Hospital, and the nursing progress notes
indicated that Fernandez reported having a "reddish stool" that morning and the day before.
reddish stool that morning and the day before. The presence of black, tarry stools indicates
upper G.I. blood loss which is often associated with an active ulcer. The black
colorreferred to as melenacan only occur when the blood contacts acids which are found
in the upper intestinal tract. On the other hand, the presence of red blood in a patient's stool
indicates a source of bleeding in the lower G.I. tract, a symptom of colon cancer.
Although Fernandez's stool was maroon, Dr. Daines diagnosed it as having been formed
by a bleeding ulcer from the upper G.I. tract. For confirmation, Dr. Daines consulted with Dr.
Admirand, a specialist in internal medicine with a board certified subspecialty in
gastroenterology. At the hospital on the same day, Dr. Admirand examined Fernandez's upper
G.I. tract with an endoscope, an instrument for visual inspection of the inside of a hollow
organ of the body, which showed a benign-appearing, deep duodenal ulcer that was not
bleeding. Dr. Admirand did not normally review the nurse's notes before performing any
procedure, and he had no recollection of reviewing the notes prior to performing the
endoscopy on Fernandez.
Dr. Daines' progress notes for January 24, 1984, show black tarry stools along with bright
red blood. Although the presence of bright red blood in stools indicates colon cancer in the
lower G.I. tract, neither of the respondents ordered or performed any procedures to examine
the lower G.I. tract. On March 2, 1984, Dr. Daines asked Dr. Admirand to perform a
follow-up endoscopy to determine the condition of the ulceration, and the endoscopy
confirmed that the ulcer had healed. Five months later, on August 7, 1984, Fernandez was
admitted to the emergency room at St. Mary's Hospital, where he reported melena for the
preceding four days. In his report after the rectal examination, Dr. Daines wrote, No masses.
Stool is maroon and strongly positive for occult blood.
1

Dr. Admirand performed another endoscopic examination of Fernandez on August 8,
1984, and found a small ulceration but no bleeding. Once again, no doctor examined the
lower G.I. tract. During his hospital stay, Fernandez's stools returned to a normal brown color.
After discussion of the possibility of ulcer surgery with Fernandez, Dr. Daines and Dr.
Admirand decided that if there were another episode of G.I. bleeding or failure of the ulcer to
heal, the next step would be surgery on the ulcer. Fernandez was released from the hospital
on August 10, 1984, and did not see Dr. Daines again. On September 4, 1984, Fernandez
returned to see Dr. Admirand for the last time, for a followup endoscopic exam. Dr.
Admirand's post-operative diagnosis stated that the previous ulcer had healed.
__________

1
Occult blood is blood in the feces in amounts too small to be seen but detectable by chemical tests.
up endoscopic exam. Dr. Admirand's post-operative diagnosis stated that the previous ulcer
had healed.
More than three months later, on December 20, 1984, Fernandez consulted Leandro M.
Queniahan, M.D. (Dr. Queniahan), a surgeon, and complained of back pain resulting from a
fall at work. At trial, Dr. Queniahan denied that Fernandez complained about his ulcer during
this visit. Dr. Schultz, a surgeon, saw Fernandez on March 29, 1985, and recognized signs of
colon cancer in the bright red blood as well as in the figures for hemoglobin and hematocrit,
2
so he arranged for an examination with a sigmoidoscope and a barium enema. Fernandez did
not appear for the confirmatory diagnostic examination, but on April 3, 1985, he returned to
Dr. Queniahan and reported the same symptoms. Dr. Queniahan decided to perform surgery.
While performing the ulcer surgery on April 15, 1985, Dr. Queniahan identified a cyst on
Fernandez's liver and sent it to the laboratory for a biopsy. The laboratory analysis revealed
colon cancer that had advanced to the level of Duke's D, which meant that statistically
Fernandez had a five year survival rate of approximately fourteen percent. This was fifteen
months after Fernandez first told Dr. Daines about blood in his stools. At trial, a doctor
testified that the tumor must have begun by 1983 or before, and that if the cancer had been
discovered when Fernandez first told Dr. Daines about blood in his stools, Fernandez's five
year survival rate would have been approximately sixty-seven percent, an increase of
fifty-three percent over the survival rate fifteen months later.
On October 17, 1986, Fernandez died of complications from his colon cancer. The original
medical malpractice action was filed on December 31, 1985, prior to Fernandez's death,
against Dr. Admirand and Dr. Daines. On January 1, 1986, a new Nevada statute went into
effect that required the review of medical malpractice actions by a medical screening panel
before a cause of action could be filed.
3
On November 16, 1987, Fernandez's heirs (the
heirs) filed an action for wrongful death before the medical screening panel. The panel was
unaware that the presence of red blood was indicated in Fernandez's stool on January 24,
1984 and August 7, 1984. On April 22, 1988, the heirs substituted themselves as party
plaintiffs in place of Fernandez. On September 8, 1988, the medical screening panel found
that there was no reasonable probability of medical malpractice by Dr. Daines and Dr.
Admirand.
__________

2
Hematocrit is the proportion of red blood cells to a volume of blood. Webster's New World Dictionary
(3d college ed. 1989).

3
A.B. 696, 63rd Leg., 1985 Nevada Laws 2009, 2013. See NRS 41A.016.
On August 18, 1989, the heirs filed a second amended complaint, and a jury trial was held
from July 16 to July 20, 1990. On July 20 and 31, 1990, the district court entered orders
pursuant to NRCP 41(b) that dismissed the cause of action for failure to prove a sufficient
case for the jury. On August 17, 1990, the heirs filed a notice of appeal. In two orders, both
dated August 27, 1990, the court awarded attorney's fees of $46,218.00 and costs of
$5,828.29 to Dr. Daines, and awarded $82,355.00 in attorney's fees and costs of $8,614.54 to
Dr. Admirand. In a second amended designation of the record on appeal filed on August 30,
1990, the heirs designated the orders that were filed on August 27, 1990. In an amended
notice of appeal filed on October 22, 1990, the heirs appealed the awards of attorney's fees
and costs. On November 15, 1990, against opposition from the heirs, the district court
ordered that the entire transcript be included in the record on appeal.
Discussion
Standard of Review
[Headnotes 1-3]
NRCP 41(b) provides that the defendant may move for a dismissal on the ground that
upon the facts and the law the plaintiff has failed to prove a sufficient case for the court or
jury. Because the heirs appeal from a dismissal pursuant to NRCP 41(b), respondents'
motion for involuntary dismissal admits the truth of appellants' evidence and all inferences
that can reasonably be drawn therefrom, and the evidence must be interpreted in the light
most favorable to the appellants and most strongly against the respondents. Vancheri v.
GNLV Corp., 105 Nev. 417, 420, 777 P.2d 366, 368 (1989); Corn v. French, 71 Nev. 280,
289 P.2d 173 (1955). To defeat a 41(b) motion the plaintiff must have presented a prima
facie case upon which the trier of fact can grant relief. Nevada Industrial Dev. v. Benedetti,
103 Nev. 360, 362-63, 741 P.2d 802, 804 (1987). A prima facie case is sufficiency of
evidence in order to send the question to the jury. Vancheri, 105 Nev. at 420, 777 P.2d at
368. The credibility of the witnesses and the weight of the evidence are immaterial to the
presentation of a prima facie case. Id.
[Headnote 4]
NRS 41A.009 defines medical malpractice as the failure of a physician, hospital or
employee of a hospital, in rendering services, to use the reasonable care, skill or knowledge
ordinarily used under similar circumstances. To prove medical malpractice, the appellants
must first establish the accepted standard of medical care or practice, and then must show that
the doctors' conduct departed from that standard and legally caused the injuries suffered.
conduct departed from that standard and legally caused the injuries suffered. Orcutt v. Miller,
95 Nev. 408, 411, 595 P.2d 1191, 1193 (1979); see NRS 41A.100;
4
Beattie v. Thomas, 99
Nev. 579, 584, 668 P.2d 268, 271-72 (1983); Stevens v. Duxbury, 97 Nev. 517, 634 P.2d
1212 (1981).
Medical Testimony to Establish Standard of Care
[Headnotes 5, 6]
This court has recognized the general rule that expert testimony must be used to establish
medical malpractice, unless the propriety of the treatment, or the lack of it, is a matter of
common knowledge of laymen. See NRS 41A.100(1); Beattie, 99 Nev. at 584, 668 P.2d at
271; Stevens, 97 Nev. at 519, 634 P.2d at 1214; Orcutt, 95 Nev. at 414, 595 P.2d at 1195;
Corn v. French, 71 Nev. 280, 294, 289 P.2d 173, 180 (1955). Dr. Queniahan, a surgeon, and
Dr. Tripoli, a pathologist, testified for Fernandez in his case-in-chief. Neither practiced as
specialists in internal medicine. Dr. Admirand and Dr. Daines assert that neither of these
doctors can testify to the standard of care for their specialty, internal medicine.
[Headnote 7]
Once a physician is qualified as an expert, he or she may testify to all matters within his or
her experience or training, and the expert is generally given reasonably wide latitude in the
opinions and conclusions he or she can state, being subject only to the general exercise of
discretion by the district court concerning whether the expert is truly qualified to render such
testimony. See NRS 50.275;
5
Brown v. Capanna, 105 Nev. 665, 671, 782 P.2d 1299, 1303
(1989) (a proposed medical expert should not be scrutinized by an excessively strict test of
qualifications); Freeman v. Davidson, 105 Nev. 13, 15, 768 P.2d 885, 886 (1989) ([a]n
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"); Wright v. Las Vegas Hacienda, 102 Nev. 261, 263, 720 P.2d 696, 697 {19S6) {"[a]
witness need not be licensed to practice in a given field . . . to be qualified to testify as an
expert").
__________

4
NRS 41A.100(1) provides in part:
Liability for personal injury or death is not imposed upon any provider of medical care based on
alleged negligence in the performance of that care unless evidence consisting of expert medical
testimony, material from recognized medical texts or treatises or the regulations of the licensed medical
facility wherein the alleged negligence occurred is presented to demonstrate the alleged deviation from
the accepted standard of care in the specific circumstances of the case and to prove causation of the
alleged personal injury or death.

5
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill,
experience, training or education may testify to matters within the scope of such knowledge.
as long as he or she possesses special knowledge, training and education, or in this case,
knowledge of the standard of care); Wright v. Las Vegas Hacienda, 102 Nev. 261, 263, 720
P.2d 696, 697 (1986) ([a] witness need not be licensed to practice in a given field . . . to be
qualified to testify as an expert).
Within the field of medicine, many matters are common knowledge to all physicians and
recognized as truisms by the medical profession. This would include such things as pain in
the lower right quadrant, coupled with loss of appetite and a low grade fever, as indicative of
appendicitis. The recognition of red blood bleeding from the rectum as an indication of
potential colon cancer is something within the ken of all physicians. Dr. Queniahan made this
clear in his testimony:
Q Dr. Queniahan, are medical doctors trained to recognize symptoms and
specifically with respect to the GI bleeding?
A Yes.
Q Is that true for all medical doctors?
A Yes.
Dr. Tripoli, a pathologist, supported this position:
Q And what I'm asking you about, is that something that is common knowledge to
all physicians?
A [Dr. Tripoli] As a medical doctor, and in my training as a physician in medical
school, we are made aware that it is a concern when a patient has red blood at the
rectum or in the stool, it is a concern for a very serious condition that can be treatable if
caught early enough. . . .
Admittedly, some diagnoses or operational procedures are unique to a medical specialty, and
only a specialist in that medical area would be able to testify to the standard of care to be met.
This is not the case with the diagnosis for bright red blood bleeding from the rectum.
The heirs produced evidence that the appropriate standard of care for the diagnosis and
treatment of a male over fifty years of age with suspected lower G.I. bleeding is a
colonoscopy, a sigmoidoscopy, and a barium enema. These procedures ascertain whether the
patient is suffering from colorectal cancer. Dr. Quehiahan testified that the use of screening to
detect colon cancer was recommended by the medical profession in 1982 and was a method
that all medical doctors should have known about in 1984. In his own testimony, Dr. Daines
criticized a doctor for failure to order a lower G.I. diagnostic workup when the stool had
bright red blood, and Dr. Daines noted that Dr. Schultz determined that a sigmoidoscopy and
a barium enema should have been performed when Dr. Schultz found a trace of
marooncolored blood on his examining glove. Dr. Queniahan testified that two lesions can
co-exist, and that when a patient has rectal bleeding, the doctor should investigate the
condition with an anoscopy, a sigmoidoscopy, and a barium enema.
colored blood on his examining glove. Dr. Queniahan testified that two lesions can co-exist,
and that when a patient has rectal bleeding, the doctor should investigate the condition with
an anoscopy, a sigmoidoscopy, and a barium enema. Thus, we conclude that the heirs
presented sufficient evidence to establish the standard of care, concerning the recognition of
bright red blood as an indication of colon cancer and the steps necessary to diagnose it.
Breach of the Standard of Care by Dr. Daines
[Headnote 8]
Fernandez advised Dr. Daines on January 24, 1984, that he had bright red blood along
with his black, tarry stools. In addition, the nursing notes for the same date indicated that
Fernandez had reddish stools, and Dr. Tripoli testified that a physician should review a
nurse's notes. Dr. Daines' progress notes for that date showed black tarry stools along with
bright red blood. Finally, Dr. Daines' report of August 7, 1984, stated, No masses. Stool is
maroon and strongly positive for occult blood. Thus, the heirs presented evidence that Dr.
Daines was aware of blood in the stool.
The heirs also presented evidence that blood in the stool signifies the presence of colon
cancer. Dr. Tripoli testified that red blood in a stool is a symptom of colon cancer. Dr. Daines
himself criticized Dr. Queniahan's treatment of Fernandez because Dr. Queniahan failed to do
lower G.I. diagnostic work when there was bright red blood in the stools. Dr. Daines neither
performed nor requested any lower G.I. studies on behalf of Fernandez. His own testimony
indicated that a lower G.I. workup was appropriate due to the presence of bright red blood in
the stools.
Drs. Daines and Admirand assert that no physician testified that if an anoscopy, a
sigmoidoscopy, or a barium enema had been performed on Fernandez in January, 1984, the
cancerous lesion in his colon would have been detected. A few well-phrased questions at trial
by Fernandez's attorney would have removed any doubt about the ability of a physician to
detect such a condition at that time. But even without those questions and responses, there is
sufficient evidence in the record to permit us to draw the reasonable inference that the colon
cancer would have, in all probability, been detectable in 1984.
Dr. Koldinger testified that colon cancer is common and is readily diagnosed by barium
enema or colonoscope or both:
Q Can you tell me what diagnostic tool was used to confirm that a lesion existed in
the colon in this case from your review of the records? A Yes.
A Yes. That was in, I think, April of 1985 and it wasthe lesion in the colon was
demonstrated on a barium enema.
Q So, in this particular case, barium enema was sufficient to diagnose the
A The colon cancer, yes.
. . . .
Q . . .Neoplasms do not often produce exsanguinating hemorrhage but rather tend
to present with chronic occult bleeding or with intermittent bouts of acute, self-limited
bleeding. Small bowel tumors are rare and relatively inaccessible. Arteriograph is
needed in many cases. Colon cancer is common and is readily diagnosed by barium
enema or colonoscope or both.
Do you agree with that statement?
A Yes.
Dr. Queniahan testified that a barium enema ultimately was used to detect the colon cancer
and was available and in use in January, 1984:
Q In fact, what diagnostic tool in this particular case was used to diagnose the colon
cancer?
A It was a proctosigmoidoscopy and a barium enema. The barium enema confirmed
that there was a lesion.
Q And they did have [a] barium enema on January 24, 1984?
A I'm sure that's available. . . .
Consequently, we conclude that the heirs presented sufficient evidence to show breach of the
standard of care.
Legal Cause of Damage to Fernandez
[Headnotes 9, 10]
To show that the actual cause of death was colon cancer, the heirs produced the death
certificate, which listed colon cancer as the cause of death. However, a prima facie case of
medical malpractice is not demonstrated upon the presentation of evidence that a patient died
after a doctor breached an established standard of care. The heirs also had to show that Dr.
Daines' conduct was the legal cause of Fernandez's death. In Sims v. General Telephone &
Electric, 107 Nev. 516, 524-25, 815 P.2d 151, 156 (1991), this court stated that [e]ven where
it has been established that defendant's conduct has been one of the causes of plaintiff's
injury, there remains the question of whether defendant will be legally responsible for the
injury, the main consideration in such circumstances being foreseeability. The standard in a
medical case concerning the causation of death is reasonable medical probability."
medical probability. Perez v. Las Vegas Medical Center, 107 Nev. 1, 6, 805 P.2d 589, 592
(1991). See Brown v. Capanna, 105 Nev. 665, 671-72, 782 P.2d 1299, 1304 (1989).
The heirs presented testimony that to a reasonable medical certainty the colon cancer
was at Duke's C in 1984, when Dr. Daines had the opportunity to discover it, and that Duke's
C has a five-year predicted survival rate of approximately sixty-seven percent. When the
cancer was finally discovered on April 15, 1985, it had advanced to Duke's D, where patients
have a five-year predicted survival rate of only fourteen percent, a reduction of fifty-three
percent. Thus, the heirs showed that Dr. Daines' omissions had the foreseeable consequence
to a reasonable medical probability of substantially reducing Fernandez's chances of survival;
and that he probably died from the cancer because he had only a fourteen percent chance of
surviving the cancer once it was discovered. Viewed in the light most favorable to the heirs, a
reasonable inference from these facts is that Dr. Daines' negligence substantially diminished
Fernandez's chances of survival and was the legal cause of Fernandez's death.
The Standard of Care Concerning Dr. Admirand
[Headnote 11]
Dr. Admirand attempts to disclaim responsibility for the treatment of Fernandez on the
basis that he was a consulting physician whose only task was to perform an endoscopy
examination. He claims he had no knowledge that Fernandez was discharging red blood from
his rectum. But as previously noted, Dr. Tripoli testified that a physician should review the
nurse's notes, and he did not limit this observation to the primary treating physician. Since
reasonable inferences must be drawn in Fernandez's favor, the evidence suggests that Dr.
Admirand should have reviewed the patient's history or taken one himself. A physician
should be observant and seek all relevant information when treating a patient. Furthermore,
Dr. Daines' testimony contradicts Dr. Admirand's position that he was to perform only an
endoscopy because Dr. Daines testified that, after consultation with Dr. Admirand, they
agreed on a particular medication for Fernandez. The doctors also agreed that one more trial
of medication would be used before resorting to surgery.
During his deposition, Dr. Admirand stated that it was impossible to have bright red blood
and black tarry stools. However, at trial he testified that such a condition is possible.
Although Dr. Admirand claimed that this condition is consistent with upper G.I. bleeding,
other testimony asserted that it was consistent with colon cancer, which is a lower G.I.
condition. A jury could reasonably infer from Dr.
reasonably infer from Dr. Admirand's contradictory testimony that he had learned or
remembered additional facts about this medical condition between the time of his deposition
and the time of trial, and that he had neglected to order additional tests to be performed on
Fernandez because of his ignorance or forgetfulness of some commonly known medical facts.
Thus, with all inferences made in favor of Fernandez, we conclude that Dr. Admirand
should have found that Fernandez was bleeding from the rectum, and Dr. Admirand's duties
at that time included more than the performance of an endoscopy examination.
Dr. Admirand claims that the heirs did not establish a standard of care for him because no
gastroenterologist testified to the appropriate standard of care. As discussed with respect to
Dr. Daines, however, the standard of care when a patient is discharging bright red blood from
his rectum is common knowledge to all physicians. Likewise, the breach of the standard of
care follows our reasoning in discussing Dr. Daines' performance. With all factual inferences
made in favor of Fernandez, there is sufficient evidence to establish the standard of care for
Dr. Admirand and that his conduct fell below it in his consultation on the Fernandez case.
Designation of the Entire Record on Appeal
[Headnote 12]
Against opposition from the heirs, the district court ordered that the entire record be
designated the record on appeal. The primary issue on appeal is whether evidence in the
record could support a finding by the jury that the doctors committed medical malpractice.
Only those portions of the transcript that are essential to the questions on appeal need be
designated. NRAP 10(f)(1) states: Except as otherwise herein required, all matters not
essential to the decision of issues presented by the appeal shall be omitted. Brevity of the
record is encouraged; and the court may impose costs upon parties or attorneys who
unnecessarily enlarge the record on appeal. In Beattie v. Thomas, 99 Nev. 579, 589, 668
P.2d 268, 274 (1983), this court stated: NRAP 10 does not invest the party who prevailed in
the lower court with the unqualified right to require the appellant to file a full trial transcript.
In Beattie, this court noted that the appellant has a duty to omit from the record on appeal all
non-essential material, and further stated that: We hold that the district court erred in
requiring appellant to bear the cost of adding the requested portions of transcript. Id. at 589,
668 P.2d at 275. See Driscoll v. Erreguible, 87 Nev. 97, 482 P.2d 291 (1971) (appellant has a
duty to omit all matter from transcript not essential to decision of questions presented on
appeal).
from transcript not essential to decision of questions presented on appeal).
On review of a dismissal pursuant to NRCP 41(b) in a medical malpractice case, this court
does not weigh the evidence of medical malpractice versus the evidence of no medical
malpractice. Instead, we search the record to determine whether the evidence most favorable
to the plaintiff is sufficient to establish medical malpractice. Therefore, we conclude that
under NRAP 10 and Beattie the heirs were obligated to transmit only those portions of the
record that they considered necessary and relevant, and that they should not have been
required to pay for transmission of portions that were unnecessary and irrelevant, including
direct testimony by witnesses for the defense and the arguments by counsel. Further, since an
NRCP 41(b) motion requires the court to consider the evidence in a light most favorable to
the non-moving party, it is irrelevant for the purpose of this review whether other portions of
the record favor the defense. Consequently, we conclude that it was improper for the
respondents to require the heirs to file and pay for a full trial transcript. Therefore, we
conclude that the respondents should be required to reimburse the heirs for the costs of the
additional transcripts.
Conclusion
For the reasons stated above, we conclude the heirs presented a prima facie case against
both doctors and the district court erroneously dismissed the case pursuant to NRCP 41(b).
We therefore reverse and remand to the district court for a new trial. Since we reverse and
remand, we do not reach the heirs' other contentions of error with respect to the trial and the
involuntary dismissal. Because the heirs made a prima facie case, we hereby vacate the
awards of attorney's fees and costs to both doctors. Finally, the district court shall order the
reimbursement of the appellants' costs of the additional, unnecessary transcripts of the record
on appeal.
6

__________

6
The Honorable Thomas L. Steffen, Justice, voluntarily recused himself from participation in the decision of
this appeal.
____________
108 Nev. 976, 976 (1992) Arajakis v. State
WILLIAM SAKIE ARAJAKIS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21725
December 3, 1992 843 P.2d 800
Appeal from a judgment of conviction on two counts of embezzlement after a jury trial
and from the district court's imposition of two consecutive life sentences. Eighth Judicial
District Court, Clark County; Earle W. White, Jr., Judge.
The supreme court held that: (1) defendant's waiver of counsel was knowingly and
intelligently made subsequent to adequate canvass; (2) defendant was not entitled to counsel
at sentencing hearing due to defendant's previous waiver of counsel; and (3) imposition of
two consecutive life sentences without possibility of parole was not excessive.
Affirmed.
Rose, J., and Springer, V. C. J., dissented in part.
David C. Polley, Las Vegas, for Appellant.
James Tufteland, Chief Deputy District Attorney, and David B. Barker, Deputy District
Attorney, Clark County, for Respondent.
1. Criminal Law.
Defendant's waiver of counsel was intelligently and voluntarily made subsequent to adequate canvass; both justice court, at
preliminary hearing, and district court, before trial, canvassed defendant and advised him about habitual criminal punishment which
state was seeking, and defendant signed form which stated that he could not claim after trial that he did not have adequate
representation of counsel. U.S.C.A.Const. amend. 6.
2. Criminal Law.
While accused must understand dangers and disadvantages of self-representation, trial court need not explain elements of charged
offense or possible defenses when canvassing defendant regarding waiver of counsel. U.S.C.A.Const. amend. 6.
3. Criminal Law.
Defendant was not entitled to counsel at sentencing hearing where defendant previously waived counsel by signing statement that
he understood state was pursuing habitual criminal charges which permitted imposition of life sentence without possibility of parole,
and defendant did not request counsel for his sentencing until day of sentencing hearing, almost one and one-half months after
conclusion of trial. U.S.C.A.Const. amend. 6.
4. Criminal Law.
Defendant's prior convictions were valid and, thus, properly utilized in finding that he was habitual criminal; defendant admitted
previous convictions and state's exhibits showed that in prior convictions defendant was represented by counsel or validly waived right
to counsel. U.S.C.A.Const. amend. 6.
5. Criminal Law.
Consecutive life sentences without possibility of parole imposed on defendant convicted of embezzlement was not excessive;
evidence showed that defendant was career criminal who specialized in fraud with motor vehicles. NRS 207.010, subd. 1.
6. Criminal Law.
Habitual criminal statute makes no special allowance for nonviolent crimes or for remoteness of convictions; instead, these are
considerations within discretion of district court. NRS 207.010, subd. 1.
7. Embezzlement.
Defendant was bailee, for purposes of embezzlement statute; victims gave money to defendant based upon his representations that
they would become partners, and defendant diverted funds entrusted to him from their intended use. NRS 205.300, 205.300, subd. 1.
8. Embezzlement.
Trial court sufficiently instructed on intent in embezzlement prosecution, in instructing jury that diversion of funds from their
intended use was sufficient to infer crime of embezzlement. NRS 205.300, subd. 3.
OPINION
Per Curiam:
Facts
In June, 1988, Barbara Goldfreed (Goldfreed) was playing video poker at the Palace
Station casino when she met William Arajakis (Arajakis). The two began discussing
automobiles. Goldfreed owned a Cadillac station wagon, and Arajakis told her that he
repaired automobiles and also sold classic cars. She complained that her car needed repairs,
and that because her automobile was rare, finding parts was difficult for her. Arajakis
repaired her Cadillac and later worked on her Chevrolet Blazer. When she was at Arajakis's
business, he suggested that he and Goldfreed form a partnership and that each put up half of
the money needed to purchase and resell a 1960 Rolls-Royce Silver Cloud at a profit. He also
suggested that they purchase a 1963 Mercedes Benz 220, also for the purpose of reselling it at
a profit.
Goldfreed hoped that her teenage son, Steffan, might be inspired by classic cars, because
her late husband had been in the automobile insurance business. When Arajakis promised to
employ Steffan, Goldfreed allowed Steffan to invest $15,000.00 from his savings account to
enter into a partnership with Arajakis to purchase the automobiles, and Arajakis drafted a
partnership agreement.
agreement. Dated July 7, 1988, and signed by both Arajakis and Steffan, the document read
as follows:
This partnership agreement by and between William Arajakis and Steffan Goldfreed
is entered into on the 7th day of July 1988. The purpose of the partnership is to buy,
restore and sell classic and other automobiles with the intent of making a profit. The
initial stock will consist of a 1963 Mercedes Benz 220 SE Coupe and a 1960
Rolls-Royce Silver Cloud. The profits of this partnership shall be divided equally
between William Arajakis and Steffan Goldfreed.
Steffan and Goldfreed gave Arajakis a cashier's check for $15,000.00.
Shortly after this agreement was signed, Goldfreed agreed to purchase a 1985 Chrysler
Fifth Avenue from Arajakis for $5,725.00 and to pay $954.85 to ship the vehicle to her older
son in Chicago. When Goldfreed took Steffan to see the Chrysler, Arajakis told her that he
had shipped the car on Caravan Nationwide. At trial, however, Dan Holloway, the custodian
of records for the Nevada Department of Motor Vehicles, testified that his department had no
record of the existence of Caravan Nationwide, and that Arajakis did not have a license to sell
automobiles in Nevada.
In September, 1988, approximately one month after paying Arajakis for the Chrysler,
Goldfreed began asking Arajakis to return her son's $15,000.00. In October, she went to the
police. Shortly thereafter, Arajakis told her that in a month he would pay her $5,000.00. The
Goldfreeds never received the money or the papers to either of the cars. Later, Goldfreed
learned that a Mr. Mullen owned the Rolls-Royce and that Cashman Cadillac owned the
Chrysler.
On November 13, 1989, the State filed an information that charged Arajakis with
embezzlement and grand larceny. The State subsequently filed a supplemental information on
March 8, 1990, which included a habitual criminal allegation. A jury trial was conducted on
May 14 and 15, 1990. At his request, Arajakis represented himself. The jury returned a guilty
verdict on two embezzlement charges. At the sentencing hearing on June 27, 1990, about one
and one-half months after the verdict, Arajakis asked the district court to appoint counsel for
him. The district court refused, stating that Arajakis had waived this right when he elected to
proceed in proper person. The district court stated, The court canvas[s]ed you in this matter
and I believe that your waiver is waived for all of these proceedings and I think we covered
that as part of the canvas[s]. The Department of Probation and Parole recommended an
eight-year sentence on each count, to run consecutive to one another.
count, to run consecutive to one another. The district court proceeded to sentence Arajakis
under the habitual criminal statute to two consecutive life sentences without the possibility of
parole, $21,679.85 in restitution, an $8,000.00 fine, and a $20.00 administrative assessment.
Arajakis filed a notice of appeal in proper person on July 12, 1990. On February 5, 1991, the
district court appointed counsel for Arajakis's appeal.
Discussion
The justice court denied Arajakis's application to proceed in proper person and appointed
the public defender to represent Arajakis at the preliminary hearing. At the arraignment on
November 15, 1989, the public defender represented Arajakis. However, Arajakis,
dissatisfied with his attorney's performance at the preliminary hearing, stated that the public
defender would no longer represent him. Arajakis filed a request for substitution of attorney
on January 3, 1990, substituting himself for the public defender, who filed a motion to
withdraw. The court questioned Arajakis about proceeding in proper person. At a hearing on
January 17, 1990, the prosecutor informed the district court that the justice court judge had
doubted Arajakis's ability to defend himself. Arajakis stated that one of his reasons for
self-representation was that his only communication with the public defender had been to
answer ten questions. Arajakis claimed that when he had asked a question, he was told to
shut up and answer the questions. However, the court observed at the preliminary hearing
that Arajakis had refused to let the public defender interview him, and the public defender
stated before trial that Arajakis had not co-operated with him.
A canvass on January 22, 1990, revealed the State's intent to seek habitual criminal
punishment. Arajakis signed a Faretta form, which showed that he understood the
consequences of waiving his right to counsel under guidelines established by the United
States Supreme Court in Faretta v. California, 422 U.S. 806 (1975). From that date until
counsel was appointed for this appeal on February 5, 1991, Arajakis proceeded in proper
person without standby counsel. The district court denied his last-minute request at the
sentencing hearing for a continuance to obtain counsel.
[Headnote 1]
Arajakis argues that his waiver of counsel was not intelligently and voluntarily made
subsequent to a comprehensive and penetrating canvass. He contends that the court's canvass
was inadequate and that because his self-representation was ineffective, he has been denied
his constitutional right to effective representation.
[Headnote 2]
The United States Supreme Court has held that the State may not compel a defendant to
accept a lawyer he does not want. Faretta, 422 U.S. at 833. See U.S. Const. amend. VI; Nev.
Const. art. 1, 8; see also Baker v. State, 97 Nev. 634, 637 P.2d 1217 (1981). The purpose of
a canvass is to ascertain whether the defendant understands the consequences of his decision
to proceed without counsel. Faretta addressed the instance where the defendant waived his
right to counsel, represented himself at trial, and then argued he had ineffective assistance of
counsel. In Faretta, the court stated:
Thus, whatever else may or may not be open to him on appeal, a defendant who elects
to represent himself cannot thereafter complain that the quality of his own defense
amounted to a denial of effective assistance of counsel.
Faretta, 422 U.S. at 835 n.46. See Hollis v. State, 95 Nev. 664, 665, 601 P.2d 62, 63 (1979).
While Faretta requires that the accused understand the dangers and disadvantages of
self-representation, it does not require the trial court to explain the elements of the charged
offense or possible defenses. In People v. Bloom, 774 P.2d 698 (Cal. 1989), cert. denied, 449
U.S. 1039 (1990), the court stated:
The test of a valid waiver of counsel is not whether specific warnings or advisements
were given but whether the record as a whole demonstrates that the defendant
understood the disadvantages of self-representation, including the risks and
complexities of the particular case.
Id. at 716. See Wayne v. State, 100 Nev. 582, 691 P.2d 414 (1984); see also People v.
Salazar, 141 Cal.Rptr. 753, 761 (1977) (the right . . . to represent oneself is guaranteed not
because it is essential to a fair trial but because the defendant has a personal right to be a
fool).
Both the justice court, at the preliminary hearing, and the district court, before the trial,
canvassed Arajakis and advised him about the habitual criminal punishment which the State
was seeking. The Faretta form that Arajakis signed contained a sentence which stated that he
could not claim after trial that he did not have adequate representation of counsel. We
conclude that Arajakis's choice of self-representation was made knowingly and intelligently,
and that he elected to exercise his constitutional right to represent himself despite the trial
court's warnings, under the criteria set forth in Faretta, that self-representation could impair
the presentation of his case. We therefore conclude that Arajakis's post-conviction claims of
an inadequate canvass and ineffective assistance of counsel lack merit.
[Headnote 3]
Arajakis also argues that because he was deprived of his constitutional right to counsel at
sentencing, the enhanced penalty for habitual criminal status is void. The jury returned the
guilty verdict on May 15, 1990. At the sentencing hearing, on June 27, 1990, about one and
one-half months after the verdict, Arajakis for the first time requested that the court appoint
counsel on his behalf. Stating that Arajakis had waived this right for all proceedings when he
elected to proceed on his own behalf, the district court denied the request.
Prior Nevada cases have established guidelines regarding the right to self-representation.
In Ross v. State, 97 Nev. 40, 623 P.2d 980 (1981), the defendants waived their right to
representation by counsel. One month prior to the date set for trial, they retracted their
waivers and requested that counsel be appointed. This court held that under those
circumstances the district court had no discretion to refuse the appointment of counsel. We
further noted: We need not decide at what point the district court would have discretion to
refuse to appoint counsel when a defendant seeks to terminate his propria persona status. Id.
at 42, 623 P.2d at 981. In Baker v. State, 97 Nev. 634, 637 P.2d 1217 (1981), we stated that
a defendant may not be permitted to employ a delaying tactic by abuse of this rule [of the
right to self-representation]. Id. at 636, 637 P.2d at 1218. In Lyons v. State, 106 Nev. 438,
796 P.2d 210 (1990), we observed that a request for self-representation may be denied upon
a showing of dilatory intent. Id. at 444, 796 P.2d at 214. We further stated:
[A] district court should be permitted, in its discretion, to deny a request for
self-representation on the ground of untimeliness alone, if the request is not made
within a reasonable time before commencement of trial or hearing and there is no
showing of reasonable cause for the lateness of the request. . . . There need not be a
specific finding of dilatory intent, which is a separate and distinct basis for denial of the
request. The district courts should set forth in the record the reasons for denying a
defendant's request to represent himself.
Id. at 445-46, 796 P.2d at 214-15.
In a California case, People v. Hamilton, 753 P.2d 1109 (Cal. 1988) (en banc), the
defendant was tried for murder. After the jury returned its verdicts in the guilt phase, the
defendant moved to represent himself during the penalty phase. The trial court refused, and
the California Supreme Court upheld the ruling, stating:
[T]he court's denial of the motion in question was not error.
Because defendant's request was filed in the midst of the jury's guilt phase
deliberations, it was not timely for purposes of invoking an absolute right of
self-representation under [Faretta]. Accordingly, it was within the court's discretion to
grant the request or not.
Id. at 1120-21 (citations omitted).
The facts in Baker, Lyons, and Hamilton are the converse of the circumstances in the
instant case because Arajakis requested counsel after having waived his right to counsel and
proceeded to represent himself. However, the analysis is no different because in both cases
the question is whether the defendant has made a voluntary, intelligent, and timely decision to
change the nature of his representation. Faretta v. California, 422 U.S. 806 (1975); Block v.
State, 95 Nev. 933, 604 P.2d 338 (1979). Despite the district court's admonishment, Arajakis
elected to represent himself in all of the proceedings. He signed a statement that he
understood the State was pursuing habitual criminal charges which permit the imposition of a
life sentence without the possibility of parole. More than five weeks after the jury verdict, for
the first time he asked the district court to retract his waiver of counsel. We conclude that
Arajakis failed to act with sufficient diligence when he requested counsel for his sentencing
on the day of the sentencing hearing, almost one and one-half months after the conclusion of
the trial, and that therefore the district court acted within its discretion when it denied his
motion for a continuance to obtain counsel.
[Headnote 4]
Next, Arajakis argues that the records of his California, Texas, and Colorado convictions
were invalid and that the district court should not have utilized them in finding that he was a
habitual criminal because [t]he burden is upon the state to prove that, in the prior criminal
proceedings, an attorney was either present or that the defendant validly waived his right to
counsel. Cohen v. State, 97 Nev. 166, 169, 625 P.2d 1170, 1172 (1981). Arajakis contends
that the State's failure to demonstrate that he was either represented by counsel or validly
waived his right to counsel should have precluded the trial court from considering the
aforementioned convictions. Arajakis, however, did not object to the use of these convictions
at the sentencing hearing. Furthermore, during his allocution statement, Arajakis
acknowledged that he had three prior convictions, including one conviction for a violation of
the Dyer Act (National Motor Vehicle Theft Act).
NRS 207.010(6) states, in pertinent part, that:
If a defendant charged under this section is found guilty of . . . the primary
offense, but denies any previous conviction charged, the court shall determine the
issue of the previous conviction after hearing all relevant evidence presented on
the issue by the prosecution and the defendant.
charged, the court shall determine the issue of the previous conviction after hearing all
relevant evidence presented on the issue by the prosecution and the defendant.
(Emphasis added.) [A]n unexcused failure to object in the trial court to the State's failure to
make an affirmative showing of the validity of the prior convictions relied upon to enhance a
penalty under NRS 207.010 preclude[s] the raising of this objection for the first time on
appeal. Baymon v. State, 94 Nev. 370, 372, 580 P.2d 943, 944 (1978). See Halbower v.
State, 96 Nev. 210, 606 P.2d 536 (1980); Thomas v. State, 93 Nev. 565, 571 P.2d 113 (1977).
Because Arajakis admitted to his previous convictions, we conclude that his contentions as to
the invalidity of the prior convictions are meritless. Furthermore, even if he had not admitted
to his prior convictions, the exhibits reveal that Arajakis either had counsel or represented
himself after a knowing and intelligent waiver. Because Arajakis admitted to his previous
convictions and because the State's exhibits show that in his prior convictions Arajakis was
represented by counsel or validly waived the right to counsel, we conclude that Arajakis's
contention lacks merit.
[Headnotes 5, 6]
Arajakis next argues that even if these were valid convictions, they were for nonviolent
crimes and were remote, and therefore the enhanced penalty was an abuse of discretion. NRS
207.010(1) provides the statutory definition of a habitual criminal as follows:
Every person convicted in this state of any crime of which fraud or intent to defraud
is an element, or of petit larceny, or of any felony, who has previously been twice
convicted, whether in this state or elsewhere, of any crime which under the laws of the
situs of the crime or of this state would amount to a felony, or who has previously been
three times convicted, whether in this state or elsewhere, of petit larceny, or of any
misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, is
an habitual criminal and shall be punished by imprisonment in the state prison for not
less than 10 years nor more than 20 years.
NRS 207.010 makes no special allowance for non-violent crimes or for the remoteness of
convictions; instead, these are considerations within the discretion of the district court.
French v. State, 98 Nev. 235, 645 P.2d 440 (1982). In Sims v. State, 107 Nev. 438, 814 P.2d
63 (1991), this court upheld the trial court's decision to impose a life sentence without the
possibility of parole under the habitual criminal statute. The defendant was convicted of
grand larceny for the unlawful taking of a purse and wallet containing $476.00.
containing $476.00. The trial court, at sentencing, found that the defendant was a habitual
criminal and imposed a sentence of life imprisonment without the possibility of parole. This
court recognized that although it may disagree with the district court's determination, we
deem it presumptively improper for this court to superimpose its own views on sentences of
incarceration lawfully pronounced by our sentencing judges. Id. at 440, 814 P.2d at 64.
Arajakis's prior convictions all involved some degree of fraud. State's Exhibit 1 showed a
conviction for embezzlement. State's Exhibit 2, besides showing a Texas conviction in 1977
for theft and theft of an automobile, reflects that Arajakis violated probation and failed to pay
a fee and full restitution. State's Exhibit 3 also shows a felony conviction for auto theft.
During his sentencing, Arajakis admitted to his previous convictions. The record also shows
that he served time in a federal prison in Michigan for auto theft. Because the evidence shows
that Arajakis is a career criminal who specializes in fraud with motor vehicles, we conclude
the district court did not abuse its discretion in imposing consecutive life sentences on
Arajakis under the Nevada habitual criminal statute.
[Headnote 7]
Next, Arajakis contends the judgment of embezzlement should be reversed because he was
not a fiduciary. He admits that the facts establish a bailment. NRS 205.300(1) provides in
part:
Any bailee of any money . . . who converts it to his own use, with the intent to steal
it or to defraud the owner or owners thereof and any agent, manager or clerk of any . . .
partnership, or any person with whom any money . . . [shall] have been deposited or
entrusted, who uses or appropriates the money . . . or any part thereof in any manner or
for any other purpose than that for which they were deposited or entrusted, is guilty of
embezzlement.
(Emphasis added.) NRS 205.300 only requires the State to establish a bailment; it does not
require the State to show that an embezzler was a fiduciary.
In reliance on Arajakis's promise to employ her son, Goldfreed allowed her son to invest
his savings to buy the classic automobiles. Also, the Goldfreeds gave money to Arajakis
based upon his representations that they would become partners, and Goldfreed paid Arajakis
the money for the Chrysler. These facts demonstrate that Arajakis was a bailee, one to whom
goods are entrusted. Black's Law Dictionary 141 (6th ed. 1990). He diverted the funds
entrusted to him from their intended use, a violation of NRS 205.300(1). Therefore, we
conclude that Arajakis's assertion that he had to be a fiduciary is meritless.
[Headnote 8]
Finally, Arajakis contends that his conviction of embezzlement is reversible because the
State did not prove he had an intent to steal, and the district court should have instructed the
jury that such an intent was an element of the crime. In Rose v. State, 86 Nev. 555, 471 P.2d
262 (1970), this court expanded upon the inference permissible from the act of diversion by
stating that:
The act of diverting carries its built-in intent that speaks for itself, that is, the
performance of the act, such as using money of an employer for a reason other than for
which it was designated, makes the crime. Only the intent to do the act, even though not
to steal, is important.
Id. at 557, 471 P.2d at 263 (emphasis added). In the instant case, the district court instructed
the jury that the diversion of funds from their intended use was sufficient to infer the crime of
embezzlement. See NRS 205.300(3). We conclude that the jury instruction was correct and
that the issue Arajakis raises with respect to his intent to steal lacks merit.
For the reasons set forth above, we hereby affirm the judgment.
Rose, J., with whom Springer, V. C. J., joins, concurring in part and dissenting in part:
I concur with the majority in upholding the jury verdicts returned against Arajakis but
believe that because his request for the assistance of counsel at the sentencing hearing was
not honored, the sentences should be vacated and a new sentencing hearing held.
A defendant has a right to terminate his self-representation and request the assistance of
counsel at any critical stage in a criminal proceeding, and a sentencing hearing is such a
critical stage. Beals v. State, 106 Nev. 729, 802 P.2d 2 (1990).
At the beginning of the sentencing hearing, Arajakis requested that an attorney be
appointed to assist him. The sentencing hearing was the first time Arajakis returned to court
after the verdicts were returned against him at the end of the jury trial. His request for counsel
was clear and unequivocal:
Your Honor, this is a critical point in this proceeding and I've been very inadequate
as far as representing myself. I'm talking to a lawyer and trying to get somebody to
cover sentencing with me. I have a case in September in No. X and I'm in custody so if
we could postpone this long enough that I could get counsel here to represent me.
The district court denied this request because it believed any waiver of the assistance of
counsel made prior to trial was irrevocable for the entire trial and sentencing proceeding,
and it could not be withdrawn.
waiver of the assistance of counsel made prior to trial was irrevocable for the entire trial and
sentencing proceeding, and it could not be withdrawn. This conclusion by the district court
was incorrect. The majority believes the denial of counsel to Arajakis at the sentencing
hearing can nevertheless be justified by the fact that his request, which came at the beginning
of the sentencing hearing, was untimely.
We should reach the same result in this case as we reached in the Beals case. In that case,
Beals, while represented by counsel, pleaded guilty to a felony. At the sentencing hearing,
Beals' attorney sought to withdraw from further representation of Beals because of an alleged
conflict of interest, and Beals requested a new attorney. The court refused to grant counsel's
motion to withdraw, and the court declined to continue the sentencing hearing. Rather, the
court gave Beals the choice of proceeding with his present counsel or representing himself.
Faced with this dilemma, Beals chose to represent himself at the sentencing hearing. After
Beals was sentenced, he appealed. We reversed the case and remanded it to the district court
with instructions to reconsider Beals' motion to withdraw his guilty plea; and we instructed
the district court that if Beals were to be sentenced, the sentencing hearing must likewise
comport with Beals' right to be assisted by counsel. Id. at 732, 802 P.2d at 4. The request
made in Beals was similar to the one made in this case by Arajakis, and the result reached
should be the same in both cases.
The majority places great reliance on Lyons v. State, 106 Nev. 438, 796 P.2d 210 (1990),
but it is misplaced. Lyons permits a request for self-representation to be denied where the
request is untimely or is made for improper purposes. Lyons, 106 Nev. at 444-46, 796 P.2d at
214-15 (emphasis added). Lyons does not address the issue at handwhere a self-represented
defendant makes a request for counsel. Lyons is further distinguishable because we were
dealing with a request for self-representation at the beginning of a complex jury trial rather
than a request for counsel at a sentencing hearing. Lyons' jury trial was lengthy, and there
were many witnesses subpoenaed to testify. A sentencing hearing is brief and usually no
witnesses are called. At Arajakis's sentencing hearing, no witnesses were called and the entire
hearing is transcribed on eleven pages; it could not have taken five minutes to conduct.
Sentencing hearings are often continued to accommodate the probation department, which
prepares the pre-sentence report and appears at the sentencing, the attorneys involved in the
case, or the defendant. A minimum of inconvenience is caused by rescheduling a sentencing
hearing. That part of Lyons which is relevant to this case is our direction: [W]e encourage
district courts to accommodate [a defendant's] requests where this can be done without
undue disruption or delay." Id. at 446, 796 P.2d at 215.
courts to accommodate [a defendant's] requests where this can be done without undue
disruption or delay. Id. at 446, 796 P.2d at 215.
Arajakis asserted a right guaranteed by the United States Constitution, and a minimum of
inconvenience would have been caused by continuing the sentencing hearing and appointing
counsel for him. I would vacate the harsh sentences imposed in this case and remand to the
district court for the appointment of counsel and a new sentencing hearing.
____________
108 Nev. 987, 987 (1992) Siragusa v. Siragusa
VINCENT SIRAGUSA, Appellant, v. JOANNE M. SIRAGUSA, Respondent.
No. 22043
December 3, 1992 843 P.2d 807
Appeal from an order of the district court modifying the alimony provisions of a divorce
decree subsequent to the supporting spouse's filing for bankruptcy and the supporting spouse's
making his final alimony payment. Eighth Judicial District Court, Clark County; Michael J.
Wendell, Judge.
Wife moved to modify alimony award. The district court granted the motion, and husband
appealed. The supreme court held that: (1) district court's order adopting domestic relations
referee's recommendation is appealable; (2) district court had jurisdiction to modify alimony
award; and (3) husband's property settlement obligation that had been discharged in
bankruptcy could be considered as changed circumstances in ruling on motion for
modification of alimony.
Affirmed.
[Rehearing pending]
Graziadei & Cantor, Las Vegas, for Appellant.
Shinehouse & Duesing, Las Vegas; Joshua Landish, Las Vegas, for Respondent.
1. Divorce.
Although failure to file timely challenge to domestic relations referee's findings precludes any later challenge before district court,
challenge before supreme court to district court's order adopting referee's findings is not precluded. NRS 125.005, 125.005, subd. 4
2. Divorce.
District court's jurisdiction is co-existent with alimony order itself, and alimony award may not be modified after
order has expired of its own terms; court cannot modify that which no longer exists.
and alimony award may not be modified after order has expired of its own terms; court cannot modify that which no longer exists. NRS
125.150, subd. 7.
3. Divorce.
Husband's prepayment of alimony obligation did not deprive district court of jurisdiction to modify the award; district court
retained jurisdiction until expiration of period for which original alimony award was decreed to run. NRS 125.150, subd. 7.
4. Divorce.
District court maintained jurisdiction over alimony award when original alimony period expired and supporting spouse was
heavily in arrears; supporting spouse could not take advantage of his own failure to comply with alimony obligations by claiming that
obligation was nonmodifiable judgment for alimony arrearages rather than alimony award.
5. Divorce.
Judgment for alimony arrearages extends supporting spouse's alimony obligations for period of judgment, and these alimony
obligations are modifiable until expiration of term specified in judgment.
6. Bankruptcy.
Determination of whether obligation is dischargeable in bankruptcy is matter of federal law.
7. Bankruptcy.
Although alimony, maintenance, and support obligations are not dischargeable in bankruptcy, property division obligations are
dischargeable. Bankr.Code, 11 U.S.C.A. 523(a)(5).
8. Bankruptcy.
State and federal courts have concurrent jurisdiction to determine whether obligation is for property settlement or for alimony and
support. Bankr.Code, 11 U.S.C.A. 523(a)(5).
9. States.
Supremacy Clause prevents states from enacting laws which do major damage to clear and substantial federal program.
U.S.C.A.Const. art. 6, cl. 2.
10. Bankruptcy; Divorce.
District court may consider spouse's discharged property settlement obligation as changed circumstance in ruling on motion for
modification of alimony; modification of alimony award based on discharged property settlement obligation does not re-create debt
discharged under federal bankruptcy laws. Bankr.Code, 11 U.S.C.A. 523(a)(5).
OPINION
Per Curiam:
Upon their divorce in 1983, appellant Vincent Siragusa (Vincent) and Respondent Joanne
Siragusa (Joanne) entered into a property settlement agreement which provided that Vincent
would make alimony payments to Joanne and Vincent would purchase Joanne's community
property interest in Vincent's medical practice. After Vincent's property settlement obligations
were discharged in bankruptcy, Joanne obtained a judgment for alimony arrearages, to be
paid in monthly installments until the judgment was satisfied.
alimony arrearages, to be paid in monthly installments until the judgment was satisfied. On
August 1, 1990, Vincent made his final alimony payment, which included the prepayment of
a small sum that would have been due in September, 1990. On August 31, 1990, Joanne filed
a motion to modify the alimony award, which the district court granted. We conclude that the
district court maintained jurisdiction to modify the alimony award and that it properly
considered Vincent's discharged property settlement obligation as a changed circumstance
justifying modification of the alimony award, and therefore we affirm the district court's
order.
Facts
Vincent and Joanne were married on June 21, 1968. During the marriage and thereafter,
Vincent was a prominent Las Vegas cardiologist and a partner in a number of professional
business entities related to his medical practice. Joanne worked intermittently during the
marriage as a school teacher. On September 22, 1983, Joanne filed for divorce.
On September 23, 1983, a decree of divorce was entered in the district court which
incorporated the parties' property settlement agreement. That agreement provided in pertinent
part that Vincent would make alimony payments of $3,000.00 per month for sixty
consecutive months, commencing fifteen days from the date of the agreement (August 19,
1983), until either all of the sixty payments were made, Joanne remarried, or either party died.
The agreement also provided that Vincent would purchase Joanne's community property
interest in Vincent's medical practice for the sum of $1,250,000.00, to be paid over a period
of fifteen years in increasing monthly installments.
By mid-1987, Vincent had fallen into default on both the alimony and property settlement
obligations. On November 5, 1987, the district court had orally announced it would enter
judgment in favor of Joanne in the amount of $1,300,000.00 in property settlement
arrearages. On November 10, 1987, Vincent, who was solvent, filed a voluntary Chapter 7
petition for bankruptcy, under which his property settlement obligation was discharged but
his alimony obligation was not. On November 23, 1988, Joanne obtained a judgment for
$126,000.00 in alimony arrearages, and the district court ordered Vincent to make alimony
payments to Joanne of $3,000.00 on November 1, 1988, and $7,500.00 on the first day of
December 1988 and continuing on the like day of each and every month thereafter until all
sums due under the Judgment shall have been paid in full. In addition, the order awarded to
Joanne interest on the judgment at the rate of twelve percent per annum from November 10,
1987.
On August 1, 1990, Vincent made his last alimony arrearage payment. This payment of
$8,187.80 consisted not only of the $7,500.00 monthly balance due, but also the $687.80
residue of the $126,000.00 judgment, which would have been due on September 1, 1990, had
Vincent not prepaid it. On August 31, 1990, Joanne filed a motion to modify the alimony
provisions of the parties' divorce decree. This motion was based upon the fact that Vincent's
income had increased substantially since the original divorce decree and that the discharge of
the property settlement obligation in bankruptcy profoundly affected the parties' relative
financial positions, to Joanne's detriment. The domestic relations referee heard Joanne's
motion for modification and recommended that Vincent continue alimony payments of
$7,500.00 per month until Joanne remarried or either party died. The referee specifically
found that the court had jurisdiction to modify the alimony award, which was determined to
be nondischargeable in bankruptcy, and that the parties' circumstances had significantly
changed, to the benefit of Vincent, at least in part because of Vincent's bankruptcy and
discharged property settlement obligation. Because Vincent failed to object to the referee's
recommendation, the district court adopted the recommendation and issued the appropriate
order. Vincent now appeals that order.
Discussion
1. Appealability of the Order.
Joanne challenges this court's jurisdiction over Vincent's appeal. Joanne contends that,
because Vincent failed to file a timely objection to the referee's recommendation in the
district court, NRS 125.005(4)
1
prohibits Vincent from challenging the order on appeal.
NRS 125.005, enacted in 1985, empowered the district court to appoint referees in
domestic relations cases. NRS 125.005(1). The statute was intended to alleviate some of the
burden on the district courts by allowing domestic relations referees to share the workload.
Hearings on S.B. 87 Before the Nevada Assembly Judiciary Committee, 63rd Session
{March 2S, 19S5).
__________

1
NRS 125.005 provides for the appointment of a referee in domestic relations cases. NRS 125.005(1). NRS
125.005(4) states:
The report of the referee must be furnished to each party or his attorney at the conclusion of the
proceeding or as soon thereafter as possible. Within 10 days after receipt of the report, either party may
file and serve upon the other party written objections to the report. If no objection is filed, the court shall
accept the findings of fact unless clearly erroneous, and judgment may be entered thereon. If an objection
is filed within the 10-day period, the court shall review the matter and enter such order, judgment or
decree as is just, equitable and appropriate.
Judiciary Committee, 63rd Session (March 28, 1985). Senate Bill 87, now codified as NRS
125.005, provided that, if a referee's findings were not challenged in a timely manner, they
would be adopted by the district court, and they would not be open to challenge at a later
date. Id. This procedure was designed to reduce the burden on the district court. Id.
[Headnote 1]
Where a party fails to file a timely challenge to the referee's findings in the district court,
NRS 125.005(4) precludes any later challenge before the district court; it does not preclude a
challenge before this court of the referee's findings adopted by the district court. In enacting
NRS 125.005, the legislature did not mean to foreclose a party from all avenues of appeal
from a referee's decision. On the contrary, the Assembly Judiciary Committee hearings reveal
that some legislators were concerned that the statute would give referees too much judicial
authority. Id. In these legislative hearings, it was stated that NRS 125.005 does not delegate
judicial power; it delegates certain fact finding and recommending power and, in any event, it
takes a judge to do anything. Id. In light of the Legislature's expressed concern with limiting
the powers of the domestic relations referee, we decline to interpret NRS 125.005(4) in a
manner that would often make the referee the final arbiter and the highest legal authority over
many legal disputes. Although Vincent failed to make a timely objection to the referee's
report recommending alimony modification, and therefore Vincent was foreclosed from
challenging the referee's report in the district court, NRS 125.005(4) does not bar Vincent's
appeal to this court of the district court's order adopting the findings and recommendations of
the domestic relations referee.
2. Jurisdiction to Modify Alimony.
[Headnotes 2, 3]
Vincent contends the district court had no jurisdiction to modify the alimony award
because he had made his final alimony payment before Joanne filed her motion, so there were
no unaccrued alimony payments remaining to modify.
If a decree of divorce, or an agreement between the parties which was ratified,
adopted or approved in a decree of divorce, provides for specified periodic payments of
alimony, the decree or agreement is not subject to modification by the court as to
accrued payments. Payments pursuant to a decree entered on or after July 1, 1975,
which have not accrued at the time a motion for modification is filed may be modified
upon a showing of changed circumstances, whether or not the court has expressly
retained jurisdiction for the modification.
modified upon a showing of changed circumstances, whether or not the court has
expressly retained jurisdiction for the modification.
See Hildahl v. Hildahl, 95 Nev. 657, 660, 601 P.2d 58, 60 (1979) (alimony payments once
accrued are non-modifiable). The district court's jurisdiction, therefore, is co-existent with the
alimony order itself, and the alimony award may not be modified after the order has expired
of its own terms, since a court cannot modify that which no longer exists. See Brown v.
Brown, 507 P.2d 157, 158-59 (Wash.Ct.App. 1973); Russell G. Donaldson, J.D., Annotation,
Power to Modify Spousal Support Award for a Limited Term, Issued in Conjunction with
Divorce, So As to Extend the Term or Make the Award Permanent, 62 A.L.R. 4th 180,
186-87, 216-19 (1988).
In Schryver v. Schryver, 108 Nev. 190, 826 P.2d 569 (1992), we shed light on the meaning
of accrued payments in NRS 125.150(7). In Schryver, husband and wife were divorced and
husband was ordered to pay wife $1,200.00 per month in alimony beginning on October 1,
1982, and continuing for a period of eight years. Id. at 190, 826 P.2d at 569-70. September of
1990 was the last month husband was required to make alimony payments under the divorce
decree, and husband paid the last payments of $1,200.00 in full at the beginning of the month.
Id. at 190, 826 P.2d at 570. In the middle of the month, wife, seeking an increase and
extension of the alimony payments, filed a motion to modify the alimony portion of the
divorce decree. Id. at 190-91, 826 P.2d at 570. The district court dismissed the motion for
modification, and although it did not state its grounds for the dismissal, both the litigants and
this court assumed the dismissal was for lack of jurisdiction. Id. at 191, 826 P.2d at 570.
Wife contended on appeal that, although husband had made his final alimony payment
prior to her motion for modification, the term of support, and thus the court's jurisdiction, did
not terminate until the last day of the month. Id. In a case of first impression in Nevada, we
accepted wife's contentions and found the district court had jurisdiction to consider wife's
motion for modification. Id. We found that [t]o hold otherwise would allow a payor spouse
to deprive the court of jurisdiction simply by making advance payments. Id. Thus, in
Schryver, we held the time when alimony payments accrue is determined not only by
whether the payments have been made, but also by the period of the alimony award. Where
the period of the alimony award has not elapsed, the district court has jurisdiction to modify
the alimony portion of a divorce decree, regardless of whether the supporting spouse has
made all required alimony payments. In other words, a district court retains jurisdiction to
modify an award of alimony until the expiration of the period for which the original
alimony award was decreed to run.
award of alimony until the expiration of the period for which the original alimony award was
decreed to run.
We conclude that Schryver is dispositive of the instant case. The district court ordered
Vincent to pay Joanne alimony arrearages of $3,000.00 on November 1, 1988, and $7,500.00
on the first day of December 1988 and continuing on the like day of each and every month
thereafter until all sums due under the Judgment shall have been paid in full. The district
court also ordered Vincent to pay interest on the $126,000.00 judgment at the rate of twelve
percent per annum from November 10, 1987. In effect, the district court ordered specified
periodic payments of alimony, each and every month, for a period which, though not
explicitly stated, could easily be calculated. When calculated, the period of the district court's
award of alimony is found to be more than twenty months, and therefore, the period of the
award extended through September, 1990. Since Joanne brought her motion to modify the
alimony award on August 31, 1990, well before the period for the payment of monthly
alimony installments expired, we hold that the district court maintained jurisdiction to modify
the alimony award.
[Headnote 4]
Vincent alternatively argues that the order which Joanne seeks to modify is a
non-modifiable judgment for alimony arrearages, rather than an alimony award, and that the
district court lacks jurisdiction to consider Joanne's motion for modification because the
original periodic alimony award expired in September, 1988. We find Vincent's argument to
be unpersuasive. At the time the original alimony award expired, Vincent was heavily in
arrears in his alimony obligations, and because of this, Joanne sought and obtained a
judgment for $126,000.00 in alimony arrearages. As a supporting spouse may not deprive the
court of jurisdiction by making advance alimony payments, Schryver v. Schryver, 108 Nev.
190, 191, 826 P.2d 569, 570 (1992), neither may a supporting spouse deprive the court of
jurisdiction by failing to make alimony payments. Where the supporting spouse is in arrears
at the expiration of the original alimony term, modification of the alimony award is proper
after the expiration of the original alimony term. Brown v. Brown, 338 S.2d 916, 918-19
(Fla.Dist.Ct.App. 1976). The Brown court stated:
A spouse who is behind in the payment of alimony can hardly be heard to complain that
his wilful failure to carry out his original alimony obligations has had the effect of
extending the period of time within which the court is entitled to consider a request for
further alimony . . . .
Id. at 919.
[Headnote 5]
We hold that a supporting spouse, such as Vincent, cannot take advantage of his own
failure to comply with his alimony obligations to shield him from subsequent modification of
the alimony award, and that the district court maintained jurisdiction over the alimony award
when the original alimony period expired while Vincent was heavily in arrears. A judgment
for alimony arrearages extends the supporting spouse's alimony obligations for the period of
the judgment, and these alimony obligations are modifiable until the expiration of the term
specified in the judgment.
3. The Discharged Property Settlement Obligation.
[Headnotes 6-8]
Vincent contends the district court, in modifying the alimony award, substituted an
alimony obligation in place of a debt validly discharged in bankruptcy, in contravention of
supreme federal law. The determination of whether an obligation is dischargeable in
bankruptcy is a matter of federal law. Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir. 1984);
Martin v. Martin, 108 Nev. 384, 386, 832 P.2d 390, 391 (1992). While obligations for
alimony, maintenance, and support are not dischargeable in bankruptcy, 11 U.S.C.
523(a)(5) (1979 & supp. 1992), property division obligations are dischargeable. Matter of
Coil, 680 F.2d 1170, 1171 (7th Cir. 1982); In re Marriage of Clements, 184 Cal.Rptr. 756,
759 (Cal.Ct.App. 1982); Martin, 108 Nev. at 386, 832 P.2d at 391. State and federal courts
have concurrent jurisdiction to determine whether an obligation is one for property settlement
or one for alimony and support. In re Aldrich, 34 B.R. 776, 780 (Bankr. 9th Cir. 1983); In re
Reak, 92 B.R. 804, 807 (Bankr.E.D.Wis. 1988); Hopkins v. Hopkins, 487 A.2d 500, 503 (R.I.
1985).
The bankruptcy court in the instant case discharged Vincent's $1,300,000.00 property
settlement obligation, but not his alimony obligation. The district court adopted the referee's
findings that, due in part to Vincent's bankruptcy and the discharge of his property settlement
obligations, both Joanne's and Vincent's financial circumstances had sufficiently changed, to
the advantage of Vincent, such that modification of the alimony award in the divorce decree
was appropriate. The issue thus becomes whether it is proper for a district court to consider a
discharge of property equalization debts in bankruptcy as a changed circumstances
2
which
would merit the modification of an alimony award.
While we have never addressed the issue, both state and federal courts in other
jurisdictions have uniformly determined that the discharge of a property settlement
obligation in bankruptcy may be taken into account in determining whether the parties'
circumstances have changed sufficiently to justify a modification of alimony.
__________

2
NRS 125.150(7) authorizes the modification of alimony upon a showing of changed circumstances.
courts in other jurisdictions have uniformly determined that the discharge of a property
settlement obligation in bankruptcy may be taken into account in determining whether the
parties' circumstances have changed sufficiently to justify a modification of alimony. See In
re Danley, 14 B.R. 493, 495 (Bankr.D.N.M. 1981); In re Reak, 92 B.R. at 806; In re
Marriage of Clements, 184 Cal.Rptr. at 760-61; Foster v. Childers, 416 N.W.2d 781, 786
(Minn.Ct.App. 1987); Coakley v. Coakley, 400 N.W.2d 436, 441 (Minn.Ct.App. 1987);
Hopkins, 487 A.2d at 504-05; In re Marriage of Myers, 773 P.2d 118, 120-22 (Wash.Ct.App.
1989); Eckert v. Eckert, 424 N.W.2d 759, 760, 763 (Wis.Ct.App.); review denied, 430
N.W.2d 351 (Wis. 1988). The uniformity of decisions does not mean that the question is not a
close one, and two strong competing interests must be weighed. The court in In re Marriage
of Clements, 184 Cal.Rptr. 756 (Cal.Ct.App. 1982), stated:
Through discharge, the bankruptcy court attempts to provide a new opportunity in life
and a clear field for future effort, unhampered by the pressure and discouragement of
preexisting debt. On the other hand, the family law court has a strong interest in
requiring the bankrupt to fulfill obligations that are an indivisible part of the equal
division of community property.
Id. at 759 (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934)). See Wetmore v.
Markoe, 196 U.S. 68, 77 (1904) ([s]ystems of bankruptcy are designed to relieve the honest
debtor from the weight of indebtedness which has become oppressive and to permit him to
have a fresh start in business or commercial life). Thus, the mandates of the Supremacy
Clause
3
of the United States Constitution compete with the equitable interest in preventing
one spouse from unilaterally acting to deprive the other spouse of marital assets.
[Headnote 9]
The Supremacy Clause prevents states from enacting laws which do major damage to
clear and substantial federal interests or sufficiently injure the objectives of the federal
program. Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 583 (1979), superseded in part, 45
U.S.C. 231m (1986). See Rose v. Rose, 481 U.S. 619, 625 (1987). Under the Supremacy
Clause, U.S. Const., Art. VI, cl. 2, state laws which are contrary to, or which interfere with,
the laws of Congress are invalid.
__________

3
Article VI of the United States Constitution states: This Constitution, and the Laws of the United States . .
. shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.
Davidson v. Velsicol Chemical, 108 Nev. 591, 593, 834 P.2d 931, 932 (1992), reh'g denied.
However, the whole subject of the domestic relations of husband and wife, parent and child,
belongs to the laws of the States and not to the laws of the United States. Popovici v. Agler,
280 U.S. 379, 383 (1930) (quoting Ex parte Burrus, 136 U.S. 586, 593, 594 (1890)).
State courts deciding the issue have resolved the tension between federal and state
objectives in favor of the state interest in resolving domestic relations disputes. In In re
Marriage of Myers, 773 P.2d 118 (Wash.Ct.App. 1989), the Washington Court of Appeals
determined that, although it could not recharge husband with debts he discharged in
bankruptcy, federal law did not preempt state procedures for modifying alimony to
compensate the wife for the discharged obligations. Id. at 120. The court found that issues of
support and maintenance are generally left to the states and [c]onsidering post-bankruptcy
changes in financial relationships does not necessarily result in or frustrate the Bankruptcy
Code's fresh start policy. Id. at 121. See Eckert, 424 N.W. 2d at 762 ([t]he exercise of
judicial power modifying spousal support post-bankruptcy is not antagonistic to the federal
fresh start' policy of bankruptcy relief). In In re Marriage of Clements, the California Court
of Appeal recognized the tension between state family law and federal bankruptcy law, but
found [a]s a matter of policy, domestic relations is considered a field particularly suited to
state control, and federal courts have traditionally been inclined to respect the power of state
courts to make, modify, and terminate provisions for spousal support. In re Marriage of
Clements, 184 Cal.Rptr. at 760.
[Headnote 10]
We find these authorities to be persuasive and therefore conclude that a district court may
consider a spouse's discharged property settlement obligation as a changed circumstance in
ruling upon a motion for modification of alimony. Modification of an alimony award based
upon a discharged property settlement obligation does not re-create a debt discharged under
federal bankruptcy laws, and therefore the district court in the instant case properly
considered Vincent's discharged property settlement obligation in ruling upon the motion for
modification of alimony.
We have considered Vincent's other contentions of error, and we conclude they are without
merit. Accordingly, we affirm the judgment of the district court.
____________
108 Nev. 997, 997 (1992) Transaero Land & Dev. v. Land Title
TRANSAERO LAND & DEVELOPMENT CO. fka TRANSAMERICA LAND &
DEVELOPMENT CO., a Nevada Corporation, Appellant/Cross-Respondent, v.
LAND TITLE OF NEVADA, INC., a Nevada Corporation,
No. 22176
December 3, 1992 842 P.2d 716
Appeal and cross-appeal from judgment and order granting in part a motion to alter or
amend judgment in a dispute over payment under a deed of trust. Eighth Judicial District
Court, Clark County; Addeliar D. Guy, Judge.
Purchaser sued vendor's trustee seeking, inter alia, injunction enjoining trustee from
conducting trustee's sale. The district court entered judgment requiring trustee to convey
entire parcel to purchaser, but awarded trustee $40,000 resulting from its successful efforts to
quiet title to easement which burdened parcel. Appeal and cross appeal were taken. The
supreme court held that: (1) trial court erroneously reformed parties' agreement; (2) purchaser
was not entitled to punitive damages; and (3) purchaser's late tender of final judgment plus
interest stopped running of interest.
Affirmed in part; reversed in part and remanded.
Greenman, Goldberg, Raby & Martinez, Las Vegas, for Appellant/Cross-Respondent.
Richard McKnight, Las Vegas, for Respondent/Cross-Appellant.
1. Reformation of Instruments.
In light of vendor's trustee's actions, trial court erroneously reformed vendor's agreement with purchaser providing that vendor
would either acquire and convey easement burdening land within 120 days of agreement or reduce principal amount of note by
$40,000, which reformation eliminated 120-day time provision; vendor's trustee's delay in filing quiet title action to clear title to
easement resulted in cloud on title not being removed until over one year after agreement was executed, during which time purchaser
was unable to convey clear title to entire property.
2. Damages.
Plaintiff is never entitled to punitive damages as matter of right.
Purchaser was not entitled to punitive damages from vendor's trustee, even though court found that trustee maliciously slandered
purchaser's title to land.
4. Tender.
Where both parties are under duty to perform concurrently, valid tender is made if one party is ready, willing and able to perform
and gives notice to other party of his readiness.
5. Interest.
Where vendor's trustee was obligated to reconvey deed of trust upon purchaser's tender of final payment on note, purchaser's
tender of $150,000 payment plus interest more than 16 days after due date, coupled with trustee's refusal of tender and counter-demand
for $190,000, stopped running of interest.
OPINION
Per Curiam:
FACTS
On November 1, 1977, Charles Stewart conveyed title to 40 acres of undeveloped land
located in Clark County, Nevada, to Richard Gross. The legal description attached to the deed
included a 100-foot-wide easement in favor of Stewart burdening 2.39 acres of the 40-acre
parcel.
1
This 40-acre parcel was divided into eight smaller parcels, numbered 1 through 8.
On February 10, 1978, Gross conveyed the 40-acre parcel to Ulrich Rasch acting as trustee
for a group consisting of Rasch, Arnaldo Kuestermann and Louis Arriza (Rasch Group). As
trustee, Rasch was given the power to do all acts necessary relating to the property.
Rasch and respondent Land Title of Nevada, Inc. (Land Title) executed a trust agreement
on January 3, 1983, which authorized Land Title to act as trustee for the Rasch Group and
required Land Title to comply with any written instructions submitted by Rasch. Rasch
conveyed the 40-acre parcel to Land Title on June 22, 1983.
On January 31, 1984, Land Title, as trustee for the Rasch Group, conveyed the 40-acre
parcel to appellant, Transaero Land & Development Co. fka Transamerica Land &
Development Co. (Transamerica). The land was sold to Transamerica at $20,000 per acre, for
a total purchase price of $800,000. Transamerica paid $200,000 down at the close of escrow
and secured the remaining balance by executing a note and first deed of trust on the property,
the terms of which obligated Transamerica to make four annual principal payments of
$150,000 each together with interest at ten percent per annum.
__________

1
Although the district court found that the entire parcel of land, which was ultimately conveyed to
Transamerica, consisted of 40 acres, the record also reflects a total of only 38.98 acres in the parcel. For
convenience, we will hereafter refer to the land as a 40-acre parcel since the disparity is of no relevance to the
disposition of this appeal. The source of controversy between the parties relates solely to the 2.39 acres
burdened by the 100-foot-wide easement.
the property, the terms of which obligated Transamerica to make four annual principal
payments of $150,000 each together with interest at ten percent per annum. Each annual
installment was due on the 1st day of February, commencing on February 1, 1985.
Jim Ward, president of Land Title, agreed in writing that Land Title would release from
the deed of trust parcels 1 and 2 when Transamerica made the $200,000 down payment,
parcels 3, 4 and 5, respectively, upon each of Transamerica's first three installment payments
due under the note, and parcels 6, 7 and 8 when Transamerica made the final payment on the
note. In addition, Land Title was required to reconvey the deed of trust upon receipt of the
final payment.
Transamerica paid the first two installments of $150,000 plus interest on February 12,
1985 and March 12, 1986, respectively. Because Stewart purportedly retained an ownership
interest in 2.39 acres of the 40-acre parcel, Eugene Buckley, as president of Transamerica,
and Ulrich Rasch, as trustee, executed an agreement on April 10, 1987, which provided that
Rasch would either acquire and convey Stewart's interest to Transamerica within 120 days of
the agreement or reduce the principal amount of the note by $40,000. Accordingly, the
agreement provided that Transamerica's third installment be provisionally reduced to
$110,000 plus interest, which Transamerica paid on May 8, 1987. The agreement further
provided that if Rasch conveyed the 2.39 acres to Transamerica within 120 days of the date of
the agreement, then the $40,000 obligation would be restored to the note and would be
payable in February of 1988. Finally, the agreement provided that if either party found it
necessary to enforce the terms of the agreement, the prevailing party was entitled to attorney's
fees and costs. Rasch failed to acquire or quiet title to the 2.39 acres and secure them to
Transamerica within 120 days.
The final payment of $150,000 plus interest was due February 1, 1988. On February 17,
1988, Land Title filed a notice of breach and election to sell the entire 40-acre parcel. Shortly
thereafter, Buckley, on behalf of Transamerica, attempted to make the February 1, 1988
payment of $150,000 plus interest, but Land Title refused to accept the payment, asserting
that Transamerica was obligated to pay $190,000 plus interest.
On June 8, 1988, Transamerica filed a complaint which was shortly thereafter amended,
seeking a temporary restraining order, a permanent injunction, declaratory relief, and punitive
damages. Specifically, Transamerica requested that the court issue an injunction enjoining
Land Title from conducting a trustee's sale. In addition, Transamerica requested that the court
declare that the deed of trust no longer encumbered parcels 1 through 5, and that the
amount owed under the note and deed of trust is $150,000 plus interest, rather than
$190,000 claimed by Land Title.
through 5, and that the amount owed under the note and deed of trust is $150,000 plus
interest, rather than the $190,000 claimed by Land Title. Finally, Transamerica sought
punitive damages based on Land Title's alleged malicious publication of a notice of sale
which misstated the principal amount owed on the note and improperly included parcels 1
through 5 as being encumbered by the note. On June 9, 1988, the district court issued a
temporary restraining order.
Following a bench trial, the district court entered judgment in favor of Transamerica and
confirmed a prior order requiring Land Title to convey the entire 40-acre parcel to
Transamerica.
2
In addition, the court entered judgment in favor of Land Title for $40,000
plus ten percent interest. The $40,000 award resulted from the successful efforts of Land Title
to quiet title to the 2.39 acres despite the fact that Land Title failed to do so within the 120
days specified by the parties. Finally, the court awarded Transamerica attorney's fees and
costs in the amount of $33,251.81.
On appeal, Transamerica argues that the district court erred in ordering Transamerica to
pay $40,000 plus interest to Land Title. Transamerica further contends that the district court
erred in failing to award Transamerica punitive damages after finding that Land Title
maliciously slandered Transamerica's title to the 40-acre parcel. On cross-appeal, Land Title
argues that the district court erred in finding that Transamerica tendered the $150,000 final
payment on February 18, 1988. Finally, Land Title argues that the district court erred in
awarding attorney's fees and costs to Transamerica.
DISCUSSION
[Headnote 1]
Transamerica contends that the district court erred in ordering it to pay $40,000 plus
interest to Land Title. Although the district court found that the April 10, 1987 agreement was
valid and binding, Land Title did not clear title to the 2.39 acres until May 11, 1988, rather
than August 8, 1987, as required by the agreement. Nevertheless, reasoning that Transamerica
was not entitled to both clear title to the disputed property and a $40,000 reduction in the
purchase price, the district court concluded that to uphold the 120-day time provision in the
parties' agreement would result in an unintended windfall to Transamerica. Thus, the
district court exercised its equitable powers to reform the contract to reflect what the court
concluded was the actual intent of the parties, and to prevent what the court apparently
concluded would amount to unjust enrichment.
__________

2
The district court also stated in its conclusions of law that Land Title had, in fact, conveyed the full 40
acres to Transamerica.
would amount to unjust enrichment. Consequently, the court disregarded the agreement's
120-day time provision and ordered Transamerica to pay $40,000 plus interest to Land Title.
We conclude that the district court erred in reforming the agreement and in relieving Land
Title from the 120-day time provision. It is well settled that [i]n seeking equity, a party is
required to do equity. Overhead Door Co. v. Overhead Door Corp., 103 Nev. 126, 127, 734
P.2d 1233, 1235 (1987). In the instant case, Land Title delayed filing a quiet title action to
clear the title to the 2.39 acre parcel clouded by Stewart's claim of interest until February 22,
1988. Consequently, the cloud on the title was not removed by the quiet title action until May
11, 1988, over a year after the April 10, 1987 agreement was executed. During this lengthy
time period, Transamerica was unable to convey clear title to the entire property. In addition,
Land Title failed to release parcels 1 through 5 after receiving the requisite payments from
Transamerica, and instead filed a notice of breach and election to sell that included those
parcels, thus slandering Transamerica's title. Land Title's actions preclude equitable
intervention on Land Title's behalf.
We therefore conclude that the 120-day provision in the April 10, 1987 agreement was
valid and enforceable, that Land Title failed to meet its obligations under the time provision,
and that the district court erred in disregarding the time limitation. See Watson v. Watson, 95
Nev. 495, 496, 596 P.2d 507, 508 (1979) (courts are bound by language which is clear and
cannot distort the plain meaning of an agreement). Accordingly, we reverse the judgment
awarding Land Title $40,000 plus interest.
[Headnotes 2, 3]
Transamerica further contends that the district court erred in failing to award Transamerica
punitive damages after finding that Land Title maliciously slandered Transamerica's title to
the 40-acre parcel. A plaintiff is never entitled to punitive damages as a matter of right.
Ainsworth v. Combined Ins. Co. of America, 105 Nev. 237, 244, 774 P.2d 1003, 1009, cert.
denied, Combined Ins. Co. of America v. Ainsworth, 493 U.S. 958 (1989). Having
thoroughly reviewed the record on this matter, we conclude that the district court did not
abuse its discretion by declining to award Transamerica punitive damages.
[Headnote 4]
On cross-appeal, Land Title argues that the district court erred in finding that Transamerica
tendered the $150,000 final payment on February 18, 1988. Transamerica argues that it made
a valid tender in February of 1988 and that its tender stopped the running of interest. Where
both parties are under a duty to perform concurrently, a valid tender is made if one party is
ready, willing and able to perform and gives notice to the other party of his readiness.
concurrently, a valid tender is made if one party is ready, willing and able to perform and
gives notice to the other party of his readiness. See Loveless v. Diehl, 364 S.W.2d 317, 321
(Ark. 1963); Ford Motor Credit Co. v. Goings, 527 P.2d 603, 607 (Okl.Ct.App. 1974).
[Headnote 5]
In the instant case, Land Title was obligated to reconvey the deed of trust upon
Transamerica's tender of the final payment on the note. Consequently, Transamerica's tender
of the $150,000 payment plus interest, coupled with Land Title's refusal of the tender and
counter-demand for $190,000 in February of 1988, stopped the running of interest. See Arley
v. Liberty Mut. Fire Ins., 81 Nev. 411, 414, 404 P.2d 426, 428 (1965).
We also conclude that the district court properly awarded attorney's fees to Transamerica
because of the provision in the April 10, 1987 agreement that expressly provided for
attorney's fees and costs to the prevailing party. See Sanchez v. Alonso, 96 Nev. 663, 669,
615 P.2d 934, 938 (1980).
CONCLUSION
We have carefully considered the remaining contentions of the parties and find them to be
without merit. For the reasons stated above, we reverse the district court's award of $40,000
plus interest to Land Title, we affirm the judgment of the district court with respect to
attorney's fees and punitive damages, and we remand this matter to the district court for
additional proceedings consistent with the views expressed herein.
____________
108 Nev. 1002, 1002 (1992) Evans v. Southwest Gas
SUSAN R. EVANS, Appellant, v. SOUTHWEST GAS CORPORATION, Respondent.
No. 22754
December 3, 1992 842 P.2d 719
Appeal from summary judgment. Fourth Judicial District Court, Elko County; Jack B.
Ames, Judge.
School bus driver who was injured in collision with van brought action against van driver's
employer. The district court entered summary judgment in favor of employer, and bus driver
appealed. The supreme court held that van driver was acting in course and scope of his
employment for purposes of respondeat superior liability.
Easterly & Armstrong and Laurie Yott, Elko, for Appellant.
James M. Copenhaver, Elko, for Respondent.
Denial of motion for summary judgment is not subject to appeal and will not be entertained by supreme court.
Supreme court's review of summary judgment is de novo.
3. Judgment.
In determining whether issues of material fact exist on motion for summary judgment, trial court should review record in light
most favorable to non-moving party.
Generally, whether employee was acting within scope of his or her employment for purposes of respondeat superior liability is
question to be determined by trier of fact; however, where undisputed evidence consists concerning employee's status at time of
tortious act, issue may be resolved as matter of law.
5. Automobiles.
Employee who was involved in collision while driving employer-owned van was acting in course and scope of his employment for
purposes of respondeat superior liability, although employee was en route home and was not responding to service call or running an
errand for his employer; employer required that employee, as on-call technician, take the van home to respond to emergencies and was
responsible for vehicle's gas and maintenance.
Employer may be held vicariously liable for actions of employee who was under control of employer and acting within scope of
employment.
Generally, employee who was traveling to or from work is outside scope of his or her employment unless employee is performing
errand for employer or otherwise conferring benefit upon employer.
OPINION
Per Curiam:
[Headnote 1]
Appellant Susan Evans was injured when the school bus she was driving collided with a
van owned by respondent Southwest Gas and operated by its employee, Russell Stokes.
Evans filed a complaint against Southwest Gas (Southwest) seeking recovery for her injuries.
The action never made it to trial, however, as the district court granted summary judgment to
Southwest, ruling that Stokes was not acting within the course and scope of his employment
when the accident occurred. Evans appealed.
1
FACTS
__________

1
Evans also moved for partial summary judgment on the issue of liability. Her motion was denied. Although
briefed and argued, that ruling is not
FACTS
The action underlying this appeal arose from a vehicular collision which occurred shortly
before 5:00 p.m., April 1, 1987, on the Spring Creek-Lamoille Highway (SR 227) in Elko
County, Nevada.
Stokes was a service technician for Southwest. He was a salaried employee whose regular
working hours were 8:00 a.m. to 5:00 p.m. Periodically, Stokes was on call to respond to
emergencies, as he was on April 1, 1987. He was not paid to be on call, but received a
minimum of two hours overtime compensation when he did respond to an emergency call.
Southwest required its on-call technicians to take the company van home in order to respond
to emergencies. The vehicle was equipped with tools, supplies and a radio for
communication. A hand-held radio was also provided to Stokes in order to communicate with
him when he was away from the van.
On April 1, 1987, Stokes completed his duties before 5:00 p.m. and left for home early in
his employer's van. While traveling south on SR 227, Stokes crossed the center line onto the
northbound lane. The van collided with a school bus driven by Evans and owned by the Elko
County School District. Evans suffered personal injuries and Stokes died as a result of the
accident.
Evans filed an action against Southwest, alleging vicarious liability for the actions of its
employee, Stokes. Southwest moved for summary judgment, contending that Stokes was not
acting within the course and scope of his employment at the time of the collision because he
was off duty and not furthering a company purpose. The district court agreed and entered
summary judgment in favor of Southwest. Evans appealed.
DISCUSSION
Standard of Review
[Headnote 2]
This court's review of a summary judgment is de novo. Tore, Ltd. v. Church, 105 Nev.
183, 185, 772 P.2d 1281, 1282 (1989). On appeal from an order granting summary relief, we
are required to determine whether the trial court erred in concluding that an absence of
genuine issues of material fact justified its granting of summary judgment."
__________
properly before this court because the denial of a motion for summary judgment is not subject to appeal and will
not be entertained by this court. See Taylor Constr. Co. v. Hilton Hotels Corp., 100 Nev. 207, 209, 678 P.2d
1152, 1153 (1984). Moreover, Evans has only appealed from the order granting the motion for summary
judgment filed by Southwest Gas. See NRAP 3(c).
granting of summary judgment. Bird v. Casa Royale West, 97 Nev. 67, 68, 624 P.2d 17, 18
(1981).
[Headnote 3]
Summary judgment is appropriate if no genuine issues of material fact exist and the
moving party is entitled to judgment as a matter of law. NRCP 56(c); American Fed. Sav. v.
County of Washoe, 106 Nev. 869, 871, 802 P.2d 1270 (1990). In determining whether issues
of material fact exist, the trial court should review the record in a light most favorable to the
non-moving party. Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985).
In the instant controversy, the parties are in general agreement as to the facts underlying
Stokes' employment and on-call status. The pivotal issue before us is whether those facts
compel the conclusion reached by the district court that Stokes was not acting within the
course and scope of his employment when the collision occurred.
Determination of Course and Scope of Employment
[Headnote 4]
Generally, whether an employee was acting within the scope of his or her employment for
the purposes of respondeat superior liability is a question to be determined by the trier of
fact. National Convenience Stores v. Fantauzzi, 94 Nev. 665, 659, 584 P.2d 689, 692 (1978).
However, where undisputed evidence exists concerning the employee's status at the time of
the tortious act, the issue may be resolved as a matter of law. See Molino v. Asher, 96 Nev.
814, 818, 618 P.2d 878, 880 (1980), and Connell v. Carl's Air Conditioning, 97 Nev. 436,
439, 634 P.2d 673, 675 (1981).
[Headnote 5]
In the instant case, the district court determined that Stokes was not within the course and
scope of his employment when the collision occurred because he had completed his work for
the day, was en route home, and was not responding to a service call or running an errand for
Southwest. Contrarily, Evans contends that the district court erred in its ruling because the
undisputed evidence demonstrated as a matter of law that Stokes was acting within the course
and scope of his employment when the accident occurred. Alternatively, Evans argues that
summary judgment was improper because the evidence at a minimum raised a question of
fact on the issue.
[Headnotes 6, 7]
An employer may be held vicariously liable for the actions of an employee who is under
the control of the employer and acting within the scope of employment.
within the scope of employment. Molino, 96 Nev. at 817, 618 P.2d at 879. Generally, an
employee who is traveling to or from work is outside the scope of his or her employment
unless the employee is performing an errand for the employer or otherwise conferring a
benefit upon the employer. Id.; National Convenience Stores, 94 Nev. at 658-59, 584 P.2d at
691-92. See also Burnett v. C.B.A. Security Service, Inc., 107 Nev. 787, 820 P.2d 750 (1991)
(employer was not liable for injuries caused by employee when employee's actions were not
furthering the business interests of the employer).
The record in this case demonstrates that, as a matter of law, Stokes was both under
Southwest's control and furthering a company purpose at the time of the collision. Although
Stokes was en route home, Southwest required that he, as an on-call technician, take the
Southwest vehicle home to respond to emergencies.
2
By driving the company van home,
Stokes was facilitating his ability to respond to emergency calls. Indeed, a Southwest
supervisor, Charles Harper, admitted that Stokes benefitted Southwest by leaving work in the
company van.
3

Southwest also received enhanced protection for the van and its contents when the vehicle
was driven home by Stokes. The employees were charged with the safety and security of the
van and its contents. The tools alone were said to be worth between $3,000 and $4,000.
Southwest apparently had no security at its plant other than a fenced yard, which was
considered to be an inadequate source of protection for the van.
Further, Southwest was responsible for the vehicle's gas and maintenance. Unlike other
Southwest employees who drove company cars, Stokes was not required to report any income
for his use of the company vehicle.
Southwest argues that it received no benefit from Stokes taking the van home because it
has no natural gas customers in the Spring Creek area where Stokes lived, and, therefore,
Stokes had to return to Elko to respond to an emergency call anyway. This contention is
unpersuasive as support for summary judgment.
__________

2
Southwest's policy manual for Category A employees (which applied to Stokes) provided in relevant part:
d. Employees required to take vehicle home in order to respond to emergency situations for the purpose
of restoring or maintaining gas utility and services . . . .

3
In his deposition, Harper testified as follows:
Q. What about operating the truck, driving the truck home, wasn't that a company purpose?
A. Well, yes.
Q. So even though he was going home he was still furthering the company purpose in that he was
operating a vehicle and taking it with him so that it would be available in the event of a call?
A. Right.
contention is unpersuasive as support for summary judgment. Stokes apparently passed by the
plant, which was located at the edge of Elko, when he responded to an emergency call.
However, he was not required to stop there before responding to the call as the van was
equipped with the necessary tools and supplies. Thus, by driving the van home Stokes could
respond to the calls more expeditiously, to the benefit of Southwest.
Southwest relies on Connell v. Carl's Air Conditioning to support its position that an
on-call employee is outside the scope of employment. In Connell, defendant's on-call
employee was involved in a hit-and-run accident on his way home from work. The employee
was in his personal car, but the employer was responsible for the payments and maintenance
on the car. There was no evidence that Connell's after-hour activities were in any way
restricted. And, he had apparently responded to emergency calls only twice in a three-year
period. Thus, in Connell we concluded that the employee was not, as a matter of law, within
the course and scope of his employment at the time of the accident.
Here, by contrast, Southwest continued to exercise significant control over Stokes while he
was on call, notwithstanding the fact that his regular work day had ended. Stokes' activities
were restricted when he was on call in order that he be available for emergency calls. He was
required to remain within radio distance of Elko, and had to respond to an emergency call
within a reasonable period of time. As noted previously, the van driven by Stokes was owned,
fueled and maintained by Southwest. Stokes was not permitted to use the vehicle for other
than de minimus personal use. The vehicle contained valuable Southwest property for which
Stokes was responsible. Thus, Southwest's reliance on Connell is misplaced.
The foregoing facts compel us to conclude, as a matter of law, that Stokes was acting
within the scope of his employment and furthering Southwest's business interests at the time
of the collision.
We note that our conclusion is in accord with those reached in other jurisdictions faced
with similar facts. See, e.g., McClean v. Chicago Great W. Ry. Co., 121 N.E.2d 337
(Ill.Ct.App. 1954). There, the defendant's employee injured the plaintiff while driving from
work to his place of lodging in a truck owned by the employer. The truck, which contained
tools of the employer, was operated by the employee to enable him to be on call for
emergencies. The court found that the employee was within the course of his employment as
a matter of law. It reasoned:
This is not a going to or from work case, since Coble was subject to call to work at all
times wherever he was. The truck was defendant's, carried defendant's tools and was
necessarily driven wheresoever Coble was to stay. . . .
truck was defendant's, carried defendant's tools and was necessarily driven wheresoever
Coble was to stay. . . . [P]otentially there was a constant benefit to defendant in Coble's
constant availability on call of defendant and it was virtually essential that he have the
truck and tools no matter where he was.
Id. at 341. See also Massart v. Narragansett Elec. Co., 171 A. 238, 240 (R.I. 1934) (on-call
employee driving company vehicle to respond to emergency calls was within scope of
employment when he was driving it to his home just as he would have been in leaving his
home in the vehicle to respond to such a call); State v. Gibbs, 336 N.E.2d 703, 705
(Ind.Ct.App. 1975) (state employee, who was furnished with a state-owned automobile for
transportation to and from work because of his twenty-four-hour-a-day on-call status, was
found to be acting within the scope of his employment when he crossed the center line of the
highway and collided with the plaintiff's vehicle on his way home from work); and Lazar v.
Thermal Equipment Corp., 195 Cal.Rptr. 890 (Cal.Ct.App. 1983) (on-call employee,
authorized to use a company truck to enable him to respond to emergency after-hours calls,
was within the scope of his employment when traveling to and from work; since the
employee's trip conferred a tangible benefit on the employer, the jury should have been
instructed that he was acting in the scope of his employment).
These cases draw a distinction between an employee who is simply en route to or from
work, and one who remains on-call after regular work hours for the purpose of furthering
company business. The mere fact that an employee is not responding to an emergency call at
the time the tortious act occurs is not dispositive of the course and scope of employment issue
for purposes of respondeat superior liability.
In this case, the record reflects that Southwest exercised significant control over Stokes
while he was on-call. In addition, Southwest derived a benefit from requiring Stokes to take
its vehicle home. The fact that Stokes was not responding to an emergency at the time of the
accident does not, by itself, relieve Southwest of vicarious liability for Stokes' acts. Therefore,
it was error to grant Southwest's motion for summary judgment on the issue of liability.
CONCLUSION
Because there was sufficient evidence to determine, as a matter of law, that Stokes was
acting within the course and scope of his employment at the time of the collision, we reverse
the district court's order of summary judgment and remand this matter for trial.
____________
108 Nev. 1009, 1009 (1992) Heidt v. Heidt
MARK S. HEIDT and VIRGINIA HEIDT, Individually and on Behalf of SHAYNE R.
HEIDT, a Minor, Appellants, v. BYRON E. HEIDT and YOSHI HEIDT, Respondents.
No. 20327
December 4, 1992 842 P.2d 723
Appeal from an order of the district court dismissing appellants' fourth cause of action
with prejudice. Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Parents of child who was bitten on face by dog brought action against dog's owner. The
district court dismissed parents' claim for damage to parent-child relationship, and parents
appealed. The supreme court held that cause of action for damage to parent-child relationship
would not be recognized in Nevada.
Affirmed.
David Allen & Associates and Melodie C. Swanson, Las Vegas, for Appellants.
Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, for Respondents.
Parent and Child.
Cause of action for damage to parent-child relationship would not be recognized in Nevada.
OPINION
Per Curiam:
On December 29, 1984, two-year-old Shayne R. Heidt was bitten on the face by
respondents' dog while playing in respondents' living room. Shayne's parents, appellants
herein, subsequently filed a lawsuit against respondents, the owners of the dog. The fourth
cause of action alleged in appellants' amended complaint was damage to the parent-child
relationship between appellants and Shayne.
Respondents filed a motion to dismiss appellants' fourth cause of action for failure to state
a claim upon which relief could be granted, pursuant to NRCP 12(b)(5). Appellants opposed
the motion. The district court granted respondents' motion and dismissed appellants' fourth
cause of action with prejudice, certifying its order as final pursuant to NRCP 54(b). This
appeal followed.
While acknowledging that a cause of action for damage to the parent-child relationship has
never been recognized in this state, appellants contend that the time is ripe for this court to
recognize such a cause of action.
108 Nev. 1009, 1010 (1992) Heidt v. Heidt
appellants contend that the time is ripe for this court to recognize such a cause of action.
Appellants claim that a modern trend exists to recognize a cause of action for damage to the
parent-child relationship, and cite opinions from twelve states allowing a parent to recover for
an injured child by judicial mandate.
1
Appellants also emphasize that the development of the
common law is within this court's proper sphere, and argue that a lack of precedent cannot
absolve a court from its responsibility to continually reappraise the common law in light of
changing circumstances. Finally, appellants contend that the current state of the law in this
area deprives them of their right to equal protection.
The leading Nevada case in this area of the law is General Electric Co. v. Bush, 88 Nev.
360, 498 P.2d 366 (1972). In Bush, both the wife and the children of an injured worker sought
recovery for loss of consortium arising out of the man's permanent condition. This court first
addressed the wife's claim, noting the trend in other jurisdictions to recognize a wife's claim
for loss of consortium as a separate, compensable claim, and concluded that such a claim
would henceforth be recognized in Nevada. Id. at 366-68, 498 P.2d at 370-71. This court next
addressed the children's claim, stating:
Are the children of a father injured by the negligent acts of third persons entitled to
maintain independent actions to recover damages for their loss of consortium with their
father the same as their mother?
The trial court instructed the jury that the children had a cause of action for their
individual losses occasioned by their father's injuries. The jury awarded the three minor
children the sum of $150,000.
Only one court has recognized their cause of action. Scruggs v. Meredith, 134
F.Supp. 868 (D.C. Hawaii 1955) (reversed on appeal by authority of Halberg v. Young,
41 Hawaii 634, 59 A.L.R.2d 445 (1957)). Substantial differences exist in the
consideration of the children's claim as against that of their mother, all of which have
compelled the overwhelming weight of authorities to be against an action for the
children.
__________

1
In support of their claim, appellants cite the following cases: Reben v. Ely, 705 P.2d 1360 (Ariz.Ct.App.
1985); Miller v. Subia, 514 P.2d 79 (Colo.Ct.App. 1973); Yordon v. Savage, 279 So.2d 844 (Fla. 1973);
Hayward v. Yost, 242 P.2d 971 (Idaho 1952); Dymek v. Nyquist, 469 N.E.2d 659 (Ill.App.Ct. 1984); Sizemore
v. Smock, 400 N.W.2d 706 (Mich.Ct.App. 1986), rev'd 422 N.W.2d 666 (Mich. 1988); Davis v. Elizabeth Gen.
Medical Ctr. 548 A.2d 528 (N.J.Super.Ct. Law Div. 1988); First Trust Co. v. Scheels Hardware, 429 N.W.2d 5
(N.D. 1988); Norvell v. Cuyahoga County Hosp., 463 N.E.2d 111 (Ohio Ct.App. 1983); Hall v. Birchfield, 718
S.W.2d 313 (Tex.Ct.App. 1986); Harbeson v. Parke-Davis, Inc., 656 P.2d 483 (Wash. 1983); Shockley v. Prier,
225 N.W.2d 495 (Wis. 1975).
108 Nev. 1009, 1011 (1992) Heidt v. Heidt
overwhelming weight of authorities to be against an action for the children. Halberg v.
Young, supra; Annot., 59 A.L.R.2d 454 (1958); Hayrynen v. White Pine Copper Co.,
157 N.W.2d 502 (Mich.App. 1968). We are satisfied to await legislative action, if any,
on this issue.
Bush, 88 Nev. at 368, 498 P.2d at 371.
After carefully reviewing appellants' arguments, we decline appellants' invitation to create
a cause of action for loss to the parent-child relationship. We remain unconvinced of the
wisdom of such an action by this court, particularly in light of the legislature's continuing
silence on this subject some twenty years after our decision in Bush. We find it unnecessary
to address appellants' equal protection arguments. Appellants failed to raise these arguments
below and are therefore precluded from asserting them on appeal. Peot v. Peot, 92 Nev. 388,
551 P.2d 242 (1976).
Accordingly, we affirm the order of the district court.
____________
108 Nev. 1011, 1011 (1992) State, Dep't of Mtr. Vehicles v. Hafen
STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC SAFETY,
Appellant, v. JAMES DEAN HAFEN, Respondent.
No. 22302
December 4, 1992 842 P.2d 725
Appeal from an order of the district court granting respondent's petition for judicial review
and reversing the revocation of his driver's license. Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
Motorist petitioned for judicial review of an order of the Department of Motor Vehicles
and Public Safety (the DMV) revoking his driving privileges for one year in light of his
conviction for driving under the influence (DUI) of intoxicating liquor. The district court
granted judicial review and reversed revocation of license, and the DMV appealed. The
supreme court held that: (1) juvenile DUI adjudication was not a conviction triggering a
longer period of revocation, but (2) 90-day revocation was required for first DUI violation
within seven years.
Affirmed in part; reversed in part, remanded.
Deputy Attorney General, Las Vegas, for Appellant.
Peter L. Flangas, Las Vegas, for Respondent.
1. Automobiles.
A motorist's juvenile adjudication for driving under the influence (DUI) was not a final conviction for purposes of statute
authorizing one year driver's license revocation upon second DUI violation within seven years. NRS 483.460.
2. Automobiles.
Juvenile adjudication of DUI offense was not a finding that a child had committed a minor traffic offense to be forwarded to
public safety officials, as statute specifically excluded driving under the influence (DUI) of intoxicating liquor from the definition of
minor traffic offenses. NRS 62.020, 62.216, 62.221, 483.450, 483.460.
3. Automobiles.
Although motorist's juvenile DUI adjudication was not a conviction for purposes of DUI license revocation statute, and thus he
was not subject to one-year license revocation for second DUI offense, motorist's adult DUI conviction triggered revocation of driving
privileges for 90 days for first violation within seven years. NRS 483.460, subd. 1(c).
OPINION
Per Curiam:
This is an appeal from an order of the district court granting respondent Hafen's petition
for judicial review and reversing the revocation of Hafen's driver's license.
The record on appeal contains a copy of a document which indicates that Hafen was
convicted of DUI on January 17, 1986, in the Juvenile Division of the Eighth Judicial
District Court. Hafen committed the offense on November 9, 1985, when he was seventeen
years old. Hafen was cited for DUI on August 25, 1989, and was convicted of the offense on
November 2, 1989. The Department of Motor Vehicles and Public Safety (the DMV)
subsequently revoked Hafen's driving privilege for one year.
Hafen requested an administrative hearing to contest the revocation of his driving
privilege. Hafen filed a written objection to the admission of the record of his 1986 DUI
conviction on the ground that he was a juvenile at the time of the offense. The record of his
1986 DUI conviction was admitted over Hafen's objection. After a hearing, the hearing
officer affirmed the revocation of Hafen's driving privilege by way of a written order dated
May 14, 1990.
Hafen filed a petition for judicial review on June 15, 1990. On July 9, 1990, the district
court granted Hafen's motion for a temporary stay of the revocation order. After briefing and
oral argument, the district court entered a written order vacating the revocation of Hafen's
driving privilege on April 2, 1991. This appeal by the DMV followed.
[Headnotes 1, 2]
The DMV contends that the district court erred in vacating the revocation of Hafen's
driving privilege.
revocation of Hafen's driving privilege. Specifically, the DMV contends that under the
applicable statutes, the record of Hafen's 1986 juvenile DUI violation, together with the
record of his 1989 DUI conviction, obligated the DMV to revoke Hafen's driving privilege for
one year.
1. Unless otherwise provided by statute, the department shall revoke the license,
permit or privilege of any driver upon receiving a record of his conviction of any of the
following offenses, when that conviction has become final, and the driver is not eligible
for a license, permit or privilege to drive for the period indicated:
. . . .
(b) For a period of 1 year if the offense is:
. . . .
(5) A second violation within 7 years of NRS 484.379 and the driver is not
eligible for a restricted license during any of that time.
In interpreting this statute, this court has stated:
[NRS 483.460] is clear and unambiguous. It imposes upon the department a mandatory
duty to revoke an individual's driver's license for one year upon the existence of three
factors: (1) the department must receive valid records of conviction; (2) these records
must show that the individual was convicted twice within seven years for violating
NRS 484.379 (DUI); and (3) the convictions must be final.
Yohey v. State, Dep't of Motor Vehicles, 103 Nev. 584, 586, 747 P.2d 238, 239 (1987). The
DMV's revocation of Hafen's driving privilege was proper only if the three factors set forth in
Yohey were met. The first of these factors is the receipt by the DMV of valid records of
conviction. NRS 483.450 provides in part:
4. For the purposes of NRS 483.010 to 483.630, inclusive:
(a) Conviction means a final conviction, and includes a finding by a juvenile court
pursuant to NRS 62.221.
In the instant case, Hafen's juvenile adjudication does not amount to a final conviction. See
NRS 62.216 (a juvenile adjudication is not a conviction). The only other basis for considering
Hafen's juvenile adjudication a conviction was if it was a finding by a juvenile court
pursuant to NRS 62.221. NRS 62.221 provides in part:
Whenever any child is found to have committed a minor traffic offense, the judge, or
his authorized representative, shall forward to the department of motor vehicles and
public safety, in the form required by NRS 4S3.450, a record of the violation. . . .
shall forward to the department of motor vehicles and public safety, in the form
required by NRS 483.450, a record of the violation . . . .
NRS 62.020 defines minor traffic offense as follows:
5. Minor traffic offense means a violation of any state or local law, ordinance or
resolution governing the operation of a motor vehicle upon any street, alley or highway
within the State of Nevada other than:
(a) Manslaughter;
(b) Driving a motor vehicle while under the influence of intoxicating liquor, a
controlled substance or a drug in violation of NRS 484.379; or
(c) Any traffic offense declared to be a felony.
Because NRS 62.020 specifically states that driving under the influence of intoxicating liquor
is not a minor traffic offense, Hafen's juvenile DUI adjudication is not a finding pursuant to
NRS 62.221. Because Hafen's juvenile DUI adjudication is also not a final conviction, it is
not a conviction for the purposes of NRS 483.460. Therefore the DMV was incorrect in
revoking Hafen's driving privilege for one year pursuant to NRS 483.460(1)(b)(5), and the
district court did not err in reversing the one-year revocation.
[Headnote 3]
The DMV contends that even if the juvenile adjudication is not a conviction for the
purposes of NRS 483.460, the district court erred in not revoking Hafen's driving privilege
for 90 days for the instant offense. We agree.
NRS 483.460 provides in pertinent part:
. . . .
(c) For a period of 90 days, if the offense is a first violation within 7 years of NRS
484.379.
Under NRS 483.460(1)(c), the DMV was required to revoke Hafen's driving privilege for 90
days. Accordingly, we affirm in part the order of the district court vacating the one-year
revocation of Hafen's driving privilege, but reverse the order of the district court restoring
Hafen's driving privilege. We remand this matter to the district court, and instruct the district
court to reinstate the revocation of Hafen's driving privilege for 90 days pursuant to NRS
4S3.460{1){c).
pursuant to NRS 483.460(1)(c). The district court shall credit Hafen with any time during
which his driving privilege has already been revoked.
1

____________
108 Nev. 1015, 1015 (1992) Krahn v. State, Dep't of Mtr. Vehicles
RICKIE R. KRAHN, Appellant, v. THE STATE OF NEVADA, DEPARTMENT OF
MOTOR VEHICLES AND PUBLIC SAFETY, Respondent.
No. 22766
December 4, 1992 842 P.2d 728
Appeal from order of the district court affirming a determination of a department of motor
vehicles' officer. Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Motorist sought judicial review of revocation of his driver's license. The district court
affirmed revocation, and appeal was taken. The supreme court held that conviction for
violation of federal DUI provision did not authorize revocation of motorist's Nevada driver's
license.
Reversed.
John G. Watkins, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Laurie B. Foremaster, Deputy
Attorney General, Las Vegas, for Respondent.
Automobiles.
Conviction for violation of federal DUI provision did not authorize revocation of motorist's Nevada driver's license; statute
authorized first offense revocation only for violations of state DUI statute. NRS 483.460, subd. 1(c), 484.379.
OPINION
Per Curiam:
This is an appeal from an order of the district court affirming an order of revocation of
appellant's driver's license.
Appellant Rickie Krahn was arrested in the Lake Mead Recreation Area and charged with
a violation of the federal DUI provision, 36 Code of Federal Regulation 4.6 (1986).
1
On
September 30, 19S6, appellant pleaded guilty to this offense.
__________

1
The Honorable John C. Mowbray, Chief Justice, did not participate in the decision of this appeal.

1
Amended and recodified at 36 C.F.R. 4.23 (1992).
108 Nev. 1015, 1016 (1992) Krahn v. State, Dep't of Mtr. Vehicles
30, 1986, appellant pleaded guilty to this offense. The federal magistrate sent the Department
of Motor Vehicles and Public Safety (DMV) a report of the conviction, and the DMV
revoked appellant's driving privilege. Appellant requested an administrative hearing. The
hearing officer found that the Report of Conviction was substantial evidence to sustain the
DMV's revocation pursuant to NRS 483.460. On May 18, 1987, appellant obtained an ex
parte order staying revocation of his driving privilege. The DMV did not receive a copy of the
stay until July 18, 1988. The state explains that because of the stay, appellant has not served
his 90 day revocation period. On May 20, 1987, appellant filed in the district court a petition
for judicial review. On August 29, 1991, the district court affirmed the hearing officer's
revocation order and lifted the stay. This appeal followed.
Appellant contends that the district court erred in affirming the hearing officer's decision
because there is no statutory authority for revoking his driver's license. The applicable statute,
NRS 483.460(1)(c), provides in relevant part:
. . .
(c) For a period of 90 days, if the offense is a first violation within 7 years of NRS
484.379.
Appellant contends that because his conviction is for a violation of 36 C.F.R. 4.6, and not
NRS 483.460(1)(c), the DMV lacks authority to revoke his license. We agree. In Brockett v.
State, 107 Nev. 638, 817 P.2d 1183 (1991), this court held that NRS 484.379, as it then read,
did not authorize a forcible withdrawal of a blood sample from a DUI suspect with a prior
DUI conviction in California, because the statute explicitly provided for a forcible blood
sample removal from a DUI suspect who [h]as been convicted of a violation of NRS 484.379
within the previous 7 years . . . . Brockett, 107 Nev. at 640, 817 P.2d at 1184 (emphasis in
original). [W]here there is no ambiguity in a statute, there is no opportunity for judicial
construction and the law must be followed regardless of result. Randono v. CUNA Mutual
Ins. Group, 106 Nev. 371, 374, 793 P.2d 1324, 1326 (1990). Under our conclusion, we need
not address appellant's other contentions. We reverse the order of the hearing officer and
vacate the order revoking appellant's driving privilege.
____________
108 Nev. 1017, 1017 (1992) Sellers v. State
RONALD JOSEPH SELLERS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22770
December 4, 1992 843 P.2d 362
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of first
degree murder with the use of a deadly weapon; robbery with the use of a deadly weapon;
conspiracy to commit robbery and burglary. Second Judicial District Court, Washoe County;
Jerry Carr Whitehead, Judge.
The supreme court held that jury's initial failure to designate degree of murder on verdict
form did not render guilty verdict void.
Affirmed.
Washoe County Public Defender and Jane G. McKenna, Chief Appellate Deputy, Washoe
Attorney and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Homicide.
District court was not free to consider totality of circumstances in deciding degree of murder where jury omits degree from verdict;
determination of degree was essential to efficacy of judgment and could not be imported into it by reference to information or by
conjecture or by anything of the kind. NRS 200.030, subd. 3.
2. Homicide.
Jury's initial failure to designate degree of murder on verdict form did not render guilty verdict void; court order requiring jury to
clarify its verdict, before hearing sentencing evidence and without entering into new deliberations, was sufficient remedy. NRS
200.030, subd. 3.
3. Criminal Law.
Murder defendant was not entitled to new trial on ground that he had pointed out defect in verdict form without being required to
do so, and that, had he not pointed out defect, new trial would have been warranted.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count
each of first degree murder with the use of a deadly weapon in violation of NRS 200.010,
NRS 200.030, and NRS 193.165; robbery with the use of a deadly weapon in violation of
NRS 200.380 and NRS 193.165; conspiracy to commit robbery in violation of NRS 199.480
and NRS 200.380; and burglary in violation of NRS 205.060.
and burglary in violation of NRS 205.060. Appellant entered a guilty plea to being an
ex-felon in possession of a firearm in violation of NRS 202.360. Pursuant to a jury
imposition, the district court sentenced appellant to life without the possibility of parole for
first degree murder and life without the possibility of parole for use of a deadly weapon. The
district court also sentenced appellant to fifteen years for robbery and fifteen years for use of a
deadly weapon, six years for conspiracy to commit robbery, ten years for burglary, and six
years for being an ex-felon in possession of a firearm. All sentences are to be served
consecutively.
Appellant contends that the jury's initial failure to designate the degree of murder on the
verdict form rendered the guilty verdict void. Specifically, appellant contends that, because
the jury returned a guilty verdict for murder rather than murder in the first degree, and
because the district court ordered the jury not to deliberate further, but to merely clarify its
omission of the degree of the murder, the verdict was defective and no judgment or sentence
could legally be pronounced. Because of the omission in designating the degree of the
murder, appellant contends that the jury's verdict should be considered a finding of guilt of
second degree murder only.
1
Appellant also contends that a new trial should be granted
because appellant was not required to notify the district court of the omission from the verdict
form of the degree of murder, and had appellant not raised the issue, a new trial would have
been assured.
The state responds that the first degree murder conviction is not void because (1) the
totality of the circumstances indicates that the jury intended the original verdict to be first
degree murder and (2) the jury confirmed a first degree murder verdict after the district court
instructed the jury to clarify its omission. For the reasons stated below, we conclude that the
first degree murder verdict is not void due to the district court's order for a remedial jury
clarification. Contrary to the state's contention, however, we further conclude that the district
court could not have found, based on the totality of the circumstances, that the original
verdict was sufficient to establish guilt of first degree murder.
[Headnote 1]
The jury is required to designate in its verdict whether the defendant is guilty of murder of
the first or second degree. NRS 200.030(3). The designation of the degree of guilt in a murder
verdict is as indispensable as a finding of guilt in general.
__________

1
Appellant's argument that the jury's verdict should be considered a finding of guilt of second degree murder
is necessarily inconsistent with appellant's argument that the jury's omission rendered the verdict void.
verdict is as indispensable as a finding of guilt in general. State v. Loveless, 62 Nev. 17, 25,
136 P.2d 236, 240 (1943). The district court is not free to consider the totality of the
circumstances to decide the degree of murder where the jury omits the degree from the
verdict. A fact, by statute made essential to the efficacy of the judgment, is missing from the
verdict and cannot be imported into it by reference to the information or by conjecture or
anything of the kind. Id. at 22, 136 P.2d at 238. Therefore, we reject the state's argument that
the district court could have declared the original verdict to be for first degree murder based
on the totality of the circumstances.
[Headnote 2]
Although the jury initially failed to return a verdict indicating the degree of murder, the
district court ordered the jury to clarify its verdict. This is a sufficient remedy. Cf. NRS
16.180 (in civil proceedings, if verdict is insufficient in not covering issues submitted, the
verdict may be corrected by the jury under the advice of the court); see also People v. Turner,
789 P.2d 887 (Cal. 1990), cert. denied, 111 S.Ct. 768 (1991); People v. Bonillas, 771 P.2d
844 (Cal.), cert. denied, 493 U.S. 922 (1989). The jury was still under the district court's
control and admonitions when it reconvened for the purpose of clarifying the verdict. The
jury clarified the verdict before hearing any sentencing evidence. Moreover, appellant failed
to object to the jury instruction which stated that the jury should not enter into new
deliberations. Therefore, the issue was not preserved for appeal. See Mercado v. State, 100
Nev. 535, 688 P.2d 305 (1984).
Finally, we note that the district court did not err in ordering the jury simply to reflect on
its previous decision, instead of entering into new deliberations. Each juror was polled. There
was a unanimous verdict of murder in the first degree.
[Headnote 3]
Based on the foregoing, we affirm the judgment of conviction.
2

__________

2
We further reject as without merit appellant's contention that a new trial should be granted because
appellant raised the issue of the omission of the degree of murder, and had appellant not raised this issue, a new
trial would have been assured.
___________
108 Nev. 1020, 1020 (1992) Raquepaw v. State
CHRIS DENNY RAQUEPAW, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22816
December 4, 1992 843 P.2d 364
Appeal from a judgment of conviction based on a jury verdict of one count of driving
under the influence of alcohol or driving with a blood alcohol level of 0.10% or more, third
offense. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
The supreme court held that evidence failed to establish that driving under the influence
defendant waived his right of confrontation, and, thus, affidavits of persons who calibrated
intoxilyzer machine should not have been admitted, even though defendant's counsel was
informed of prosecution's intent to use the affidavits in lieu of live testimony.
James J. Jackson, Public Defender and James P. Logan, Appellate Deputy Public
Defender, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Noel S. Waters, District Attorney
and Mark Forsberg, Deputy District Attorney, Carson City, for Respondent.
Courts should indulge every reasonable presumption against a defendant's waiver of fundamental constitutional rights and they
should not presume acquiescence in loss of fundamental rights.
It is not permissible to presume waiver of a constitutional right from silent record.
Attorney may not speak for accused client on certain fundamental decisions without consultation and may not waive certain of
client's basic trial rights over client's objection.
4. Criminal Law.
Counsel may not waive an accused client's right of confrontation over client's objection.
5. Criminal Law.
Evidence failed to establish that driving under the influence defendant waived his right of confrontation, and, thus, affidavits of
persons who calibrated intoxilyzer machine should not have been admitted, even though defendant's counsel was informed of
prosecution's intent to use the affidavits in lieu of live testimony; there was no record as to whether the defendant had personally
received notice or whether his counsel consulted him regarding his rights and record indicated that at first chance available to him,
defendant objected to his counsel's decision to waive defendant's personal, fundamental right of confrontation. U.S.C.A.Const. amend.
6.
OPINION
Per Curiam:
On March 16, 1991, appellant was arrested for driving under the influence of alcohol.
According to the Intoxilyzer 5000 breath analysis performed on appellant, his blood alcohol
level was 0.12%. Appellant was charged by criminal information with driving under the
influence of alcohol and driving with a blood alcohol level of 0.10% or more. See NRS
484.379.
Pursuant to NRS 50.325,
1
the prosecution sent appellant and appellant's counsel notice
that the prosecution intended to offer affidavits into evidence at the preliminary hearing and
trial. The affidavits were from the persons who calibrated the Intoxilyzer 5000, and prepared
the alcohol solution used in the Intoxilyzer 5000. The notices were sent at least ten days
before the preliminary hearing by certified mail. Appellant's counsel admits receiving notice.
__________

1
1. If a person is charged with an offense punishable pursuant to chapter 453 or 484 of NRS or
homicide resulting from driving a vehicle while under the influence of intoxicating liquor, a controlled
substance or a chemical, poison or organic solvent, and it is necessary to prove:
(a) The existence of any alcohol;
(b) The quantity of a controlled substance; or
(c) The existence or identity of a controlled substance, chemical, poison or organic solvent,
the prosecuting attorney may request that the affidavit of an expert or other person described in NRS
50.315 be admitted in evidence at the trial or preliminary hearing concerning the offense.
2. The request must be made at least 10 days before the date set for the trial or preliminary hearing
and must be sent to the defendant's counsel and to the defendant, by registered or certified mail by the
prosecuting attorney.
3. If the defendant or his counsel notifies the prosecuting attorney by registered or certified mail at
least 96 hours before the date set for the trial or preliminary hearing that the presence of the expert or
other person is demanded, the affidavit must not be admitted. A defendant who demands the presence of
the expert or other person and is convicted of violating NRS 484.379 or a provision of chapter 484 of
NRS for which a driver's license may be revoked shall pay the fees and expenses of that witness at the
trial or preliminary hearing.
4. If at the trial or preliminary hearing the affidavit of an expert or other person has been admitted in
evidence, and it appears to be in the interest of justice that the expert or other person be examined or
cross-examined in person, the judge or justice of the peace may adjourn the trial or hearing for a period
of not to exceed 3 judicial days to receive the testimony. Should 3 judicial days not be sufficient in a
county whose population is less than 35,000 to provide the presence of the expert or other person to be
examined or cross-examined, the judge, justice of the peace or hearing officer may extend the period of
adjournment for a period not exceeding 10 days. The time within which a preliminary hearing or trial is
required is extended by the time of the adjournment.
ing notice. However, it is unclear from the record whether appellant personally received
notice. Neither appellant nor appellant's counsel demanded the presence of the experts at least
96 hours before appellant's trial. See NRS 50.325(3).
A jury trial followed. The state offered the affidavits into evidence to lay the foundation
for the admission of appellant's breath machine results. Appellant's counsel objected to the
use of the affidavits on the ground that their admission violated appellant's constitutional
right of confrontation. The district court admitted the affidavits over appellant's objection.
Appellant was convicted of one count of driving under the influence of alcohol, and/or
driving with a blood alcohol level of 0.10 percent or more. The district court sentenced
appellant to two years in Nevada State Prison.
Appellant contends that the admission of the affidavits violated the Confrontation Clause
of the Sixth Amendment to the U.S. Constitution. The state responds that appellant waived
his right of confrontation by not demanding the presence of witnesses 96 hours prior to trial,
as required by NRS 50.325.
The Sixth Amendment right of an accused to confront the witnesses against him is
fundamental and made obligatory on the states by the Fourteenth Amendment. Pointer v.
Texas, 380 U.S. 400, 403 (1965). The admission of the affidavits at appellant's trial
implicated his right of confrontation. If affidavits are admitted in lieu of live testimony,
appellant is unable to cross-examine or confront the witnesses against him face-to-face.
[Headnotes 1, 2]
The test for the validity of a waiver of a fundamental constitutional right is whether the
defendant made an intentional relinquishment or abandonment of a known right or
privilege. Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Courts should indulge every
reasonable presumption against waiver, and they should not presume acquiescence in the loss
of fundamental rights. Barker v. Wingo, 407 U.S. 514, 525-26 (1972). Presuming waiver
from a silent record is impermissible. Boykin v. Alabama, 395 U.S. 238, 242 (1969); Carnley
v. Cochran, 369 U.S. 506, 516 (1962).
[Headnotes 3, 4]
The accused has the ultimate authority to make certain fundamental decisions regarding
the case, such as whether to plead guilty, waive a jury, testify on one's own behalf, or take an
appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). An attorney may not speak for a client on
these decisions without consultation. See Johnson v. Duckworth, 793 F.2d 898 (7th Cir.
1986), cert. denied, 479 U.S. 937 (1986). Counsel cannot waive these basic trial rights over
a client's objection.
basic trial rights over a client's objection. The right of confrontation is such a right and cannot
be waived over objection. Don v. Nix, 886 F.2d 203, 207 (8th Cir. 1989).
[Headnote 5]
The record in this case shows that appellant's counsel was informed of the prosecution's
intent to use affidavits in lieu of live testimony. However, the record is silent as to whether
appellant personally received notice, or whether his counsel consulted him regarding his
rights. As it appears from the record, it is possible that the first time appellant became aware
of the prosecution's intent to use the affidavits was at trial, and, at that point, appellant
objected.
We are unwilling to presume that appellant waived his fundamental right of confrontation
upon the record in this case. The record is silent regarding whether appellant personally
waived his right before trial. Moreover, the record at trial supports the contention that, at the
first chance available to him, appellant objected to his counsel's decision to waive appellant's
personal, fundamental right of confrontation. Therefore, the affidavits should not have been
admitted at trial.
Assuming, without deciding, that NRS 50.325 is constitutional, we hold that the statute
was unconstitutionally applied given the facts of his case. The admission of the affidavits,
upon a silent record with respect to a knowing and intentional waiver, and in the face of
appellant's objection at trial, violated appellant's fundamental right of confrontation.
Accordingly, we reverse appellant's judgment of conviction and we remand this case for a
new trial.
2

__________

2
____________
108 Nev. 1024, 1024 (1992) Cook v. Maher
DONALD J. COOK, as Reno City Clerk, MARLENE HENDERSON, as Washoe County
Registrar of Voters, and CHERYL LAU, as Nevada Secretary of State, Appellants, v.
ALFRED J. MAHER, KIM M. QUINTANA, LARRY A. QUINTANA, JANYCE E.
ROSSALL, THOMAS D. SCOGGIN, IDA A. SHAPIRO, RICHMAN L. TIDWELL
and C. O. WATSON, Individuals, Respondents.
No. 23690
December 4, 1992 842 P.2d 729
Appeal from an order of the district court granting a petition for a writ of mandamus.
Second Judicial District Court, Washoe County; James A. Stone, Judge.
Voters petitioned for writ of mandamus, seeking to compel recall election for city council
members. The district court granted the petition. Appeal was taken. The supreme court held
that the recall petitions required signatures representing twenty-five percent of the votes cast
in the preceding November statewide general election, not twenty-five percent of the votes
cast in the preceding city general election and, therefore, the voters did not collect sufficient
signatures to compel a recall election.
Reversed.
Frankie Sue Del Papa, Attorney General and Kateri Cavin, Deputy Attorney General,
Carson City; Patricia A. Lynch, Reno City Attorney and William E. Isaeff, Chief Deputy City
Attorney, Reno; Dorothy Nash Holmes, District Attorney and William A. Baker, Deputy
District Attorney, Reno, for Appellants.
Kenneth McKenna, Reno, for Respondents.
Municipal Corporations.
General election, as used in constitutional provision setting forth number of voter signatures needed to trigger recall election,
referred to statewide general election conducted in November of even-numbered years, not to general city election conducted in June of
odd-numbered years, and, therefore, recall petitions for city council members needed signatures representing twenty-five percent of
votes cast in previous November election, not twenty-five percent of votes cast in preceding city general election. Const. art. 2, 9;
Nev. Const. art. 15, 5; NRS 293.060, 293.12755.
OPINION
Per Curiam:
This is an appeal from an order of the district court granting a petition for a writ of
mandamus.
108 Nev. 1024, 1025 (1992) Cook v. Maher
petition for a writ of mandamus. The district court ordered appellants to verify signatures on
petitions seeking to compel a recall election.
1

On January 22, 1992, respondents, acting on behalf of a group called the Committee to
Save Plumas Street, filed with the Reno City Clerk four notices of intent to seek recall of
members of the Reno City Council. Respondents sought to recall council members Karen
Bryan, Gus Nunez, Grant Sims, and Kathryn Wishart. Respondents submitted revised notices
of intent to seek recall on January 28, 1992.
The city clerk thereafter informed respondents that at least 9,690 signatures, representing
twenty-five percent of the 38,760 votes cast in the general election of November 6, 1990,
would be required to trigger a recall election for each council member. See Nev. Const. art. 2,
9 (number of registered voters required to trigger a recall election is not less than
twenty-five percent of the number who actually voted in the municipality at the preceding
general election).
On March 27, 1992, respondents submitted four recall petitions. On April 1, 1992, the
registrar of voters advised the secretary of state that the petitions contained the following
numbers of signatures: 8,105 for the recall of Bryan; 8,169 for the recall of Nunez; 8,391 for
the recall of Sims; and 8,237 for the recall of Wishart.
On April 2, 1992, the secretary of state concluded that all four petitions had failed to reach
the 9,690 signature requirement. The secretary of state therefore ordered that no further action
be taken on the recall petitions.
Subsequently, respondents filed a petition for a writ of mandamus in the district court.
Respondents asserted that they had submitted a sufficient number of signatures to require the
holding of a recall election. The district court agreed and ordered the secretary of state to
proceed with the recall petitions by verifying the signatures on the petitions. The district court
concluded that instead of using the general election of November 6, 1990, as the controlling
election, the secretary of state should have used the general city election of June 4, 1991.
Under this reasoning, respondents would have been required to obtain only 6,974 signatures,
which is twenty-five percent of the number of voters who cast ballots in the city election.
__________

1
On October 20, 1992, this court issued an order staying enforcement of the order of the district court. On
October 22, 1992, respondents filed a motion requesting this court to render an immediate decision in this case.
Cause appearing, we grant this request. See NRAP 2. Although no briefs have yet been filed in this case, this
court has received and reviewed the record on appeal. Disposition of this appeal turns upon our resolution of a
single, purely legal issue. Additionally, the parties have adequately apprised this court of the uncontested facts
and their respective legal contentions.
108 Nev. 1024, 1026 (1992) Cook v. Maher
tures, which is twenty-five percent of the number of voters who cast ballots in the city
election.
We conclude that the district court erred. The Nevada Constitution provides in part as
follows:
Every public officer in the State of Nevada is subject, as herein provided, to recall from
office by the registered voters of the state, or of the county, district or municipality, from
which he was elected. For this purpose a number of registered voters not less than
twenty-five percent (25%) of the number who actually voted in the state or in the county,
district, or municipality electing said officer, at the preceding general election, shall file
their petition, in the manner herein provided, demanding his recall by the people. . . .
Nev. Const. art. 2, 9 (emphasis added).
The district court construed the term preceding general election as meaning the general
city election of June 4, 1991. This election was held pursuant to the Reno City Charter art. 5,
5.010, which provides for a general city election to be held in June in odd-numbered years.
This approach violated the express terms of the Nevada Constitution. Our constitution
expressly provides that [t]he general election shall be held on the Tuesday next after the first
Monday of November. Nev. Const. art. 15, 5. Further, NRS 293.060 provides that the term
general election means the election held pursuant to NRS 293.12755. NRS 293.12755
provides that a general election must be held throughout the state on the 1st Tuesday after
the 1st Monday of November in each even-numbered year. Thus, the term general election
has been specifically defined by our constitution and by the legislature as the election held on
the first Tuesday after the first Monday of November in even-numbered years.
The district court stated that while it recognized these dictates, it had to balance them with
the inequity of allowing an elected official to benefit from the large number of votes cast in a
general election in which the official was not elected. Nevertheless, the terms of our
constitution and statutes do not allow a court to engage in balancing. The district court
certainly had no discretion to substitute its judgment for the judgment of the people as
expressed in our constitution. Accordingly, the secretary of state correctly used the general
election of November 6, 1990, as the controlling election. We therefore reverse the order of
the district court granting the petition for a writ of mandamus.
2

__________

2
____________
108 Nev. 1027, 1027 (1992) Donoho v. District Court
DANIEL R. DONOHO, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, In and for the County of Clark, and THE HONORABLE
CARL J. CHRISTENSEN, District Judge, Respondent.
No. 23731
December 4, 1992 842 P.2d 731
Proper person petition for a writ of mandamus. Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
Petition was filed for writ of mandamus to compel clerk of district court to file and receive
petitioner's proper person documents. The supreme court held that: (1) if district court clerk
received petitioner's proper person motions and documents, clerk had absolute duty to file
motion for leave to proceed in forma pauperis and to clearly stamp the date of receipt of other
documents on them, and (2) district court had duty to consider motion for leave to proceed in
forma pauperis and, if motion was granted, to require filing of petitioner's other proper person
documents and to consider and rule on petitioner's motion.
Petition granted.
Daniel R. Donoho, In Proper Person, for Petitioner.
1. Clerks of Courts.
If district court clerk received petitioner's proper person motions and documents, clerk had absolute duty to file motion for leave to
proceed in forma pauperis and to clearly stamp the date of receipt of other documents on them.
2. Clerks of Courts.
Clerk of district court had duty to keep accurate record of case pending before district court.
3. Costs.
District court had duty to consider motion for leave to proceed in forma pauperis and, if motion was granted, to require filing of
petitioner's other proper person documents and to consider and rule on petitioner's motion.
Denial of petitioner's motion for relief from judgment is independently appealable.
OPINION
Per Curiam:
This proper person petition for a writ of mandamus challenges the alleged refusal of the
clerk of the district court to file petitioner's motion for relief from a default judgment
pursuant to NRCP 60{c).
the alleged refusal of the clerk of the district court to file petitioner's motion for relief from a
default judgment pursuant to NRCP 60(c).
On February 13, 1992, petitioner was arrested pursuant to an arrest warrant. On the same
date, pursuant to a search warrant, police officers seized from petitioner marijuana, cocaine,
drug paraphernalia and $450 in United States currency. On May 22, 1992, pursuant to a guilty
plea, the district court convicted petitioner of one count of sale of a controlled substance, and
sentenced him to four years in the Nevada State Prison.
On April 7, 1992, the state filed in the district court a complaint for forfeiture of the
currency seized from petitioner. Petitioner was not served with a copy of the complaint.
Instead, process was served on attorney Ed Hughes. Hughes had represented petitioner in his
criminal case, but was not appointed or retained to represent petitioner in the forfeiture
action. Hughes made no appearance on petitioner's behalf, nor did he inform petitioner of the
pending forfeiture action. Consequently, on June 30, 1992, the district court entered a default
judgment in favor of the state. On July 6, 1992, the state served notice of entry of the default
judgment on petitioner at his home address, even though the state knew petitioner was
incarcerated in the Nevada State Prison.
Petitioner alleges in this petition that he mailed a notice of motion and motion for relief
from the default judgment pursuant to NRCP 60(c) on July 17, 1992. Petitioner further
alleges that he mailed a motion for leave to proceed in forma pauperis with his motion for
relief from the judgment. The clerk of the district court has informed this court that the clerk's
office has no record of ever receiving these documents.
Nevertheless, petitioner's application for leave to proceed in forma pauperis is clearly
stamped received by the county clerk on August 6, 1992. Further, the secretary to the
district judge sent a letter to petitioner on August 10, 1992, returning to petitioner an order
which petitioner had prepared for the district court's signature, with the notation that the
Judge will not sign such an order without this matter being set for hearing. It therefore
appears that the clerk of the district court did receive petitioner's pleadings and failed to keep
an accurate record.
In his proper person motion for leave to proceed in forma pauperis, petitioner noted that he
is a prisoner without income. Petitioner also attached a copy of a prison account statement
which indicates that petitioner has $43.98. Thus, petitioner clearly demonstrated his
indigency.
In his motion for relief from judgment, petitioner noted that he had not been served with
process although the state knew his whereabouts.
whereabouts. Petitioner therefore sought an opportunity to answer the complaint.
Although petitioner's motion for relief from judgment was not filed, the clerk of the
district court received and filed on August 18, 1992, the state's opposition to petitioner's
motion. In that opposition, the state never argued that petitioner had been properly served, nor
could it have. See Jacobs v. Sheriff, 108 Nev. 726, 837 P.2d 436 (1992) (holding that the state
has an obligation under SCR 175 in a forfeiture action to determine whether a claimant's
attorney in an underlying criminal action intends to represent the claimant in the forfeiture
action, and to warn the claimant that he is not represented if counsel does not intend to act on
the claimant's behalf). Instead, the state merely argued that (1) the district court lacked
jurisdiction because the res of the in rem action had been lost;
1
and (2) petitioner had failed
to allege a meritorious defense.
Petitioner alleges in this petition that his wife hand delivered to the clerk of the district
court his proper person reply to the state's opposition and his proposed answer to the
complaint on or about August 20, 1992. Again, the clerk of the district court has informed
this court that there is no record of the receipt of these documents. In the answer, petitioner
alleges that the currency in question was not drug money, but was legitimately earned.
On September 15, 1992, petitioner sent a letter to the district judge indicating that he had
been unsuccessful in his attempts to get the master calendar clerk to schedule his motions for
a hearing. Petitioner indicated that he would seek a writ from this court if the district court
continued to refuse to calendar his motions.
In his petition, petitioner alleges that all of his proper person documents were returned to
him without a cover letter and without explanation on October 20, 1992. Again, the clerk of
the district court has informed this court that there is no record of the documents having been
received or returned. This petition for a writ of mandamus ensued.
[Headnotes 1-4]
Assuming, as appears very likely, that the district court clerk received petitioner's proper
person motions and documents, the clerk had an absolute duty to file the motion for leave to
proceed in forma pauperis and to clearly stamp the date of receipt of the other documents on
the documents. See Whitman v. Whitman, 108 Nev. 949, 840 P.2d 1232; Huebner v. State,
107 Nev. 328, 810 P.2d 1209 (1991). Further, the clerk had a duty to keep an accurate record
of the case pending before the district court. Id. The district court had a duty to consider
the motion for leave to proceed in forma pauperis and, assuming the motion was granted,
to require the filing of petitioner's other proper person documents and to consider and
rule on petitioner's motion.
__________

1
This argument has been specifically rejected by this court. See Sheriff v. A 1983 Datsun 280 ZX Sedan,
106 Nev. 419, 794 P.2d 346 (1990).
accurate record of the case pending before the district court. Id. The district court had a duty
to consider the motion for leave to proceed in forma pauperis and, assuming the motion was
granted, to require the filing of petitioner's other proper person documents and to consider
and rule on petitioner's motion. We note that an order denying petitioner's motion for relief
from the judgment would be independently appealable to this court. See Holiday Inn v.
Barnett, 103 Nev. 60, 732 P.2d 1376 (1987).
Accordingly, we grant this petition. The clerk of this court shall issue a writ of mandamus
compelling the clerk of the district court to file and receive petitioner's proper person
documents as required by this opinion, and compelling the district court to consider and
resolve the motions in accordance with this opinion.
2

____________
108 Nev. 1030, 1030 (1992) State of Nevada v. District Court
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 CHARLES M. McGEE, District Judge, Respondents, and JULIAN
MARTINEZ GARCIA and JOSE CELESTINO, Real Parties in Interest.
No. 23810
December 4, 1992 842 P.2d 733
Petition for writ of mandamus or prohibition. Second Judicial District Court, Washoe
County; Charles M. McGee, Judge.
State petitioned for writ of mandamus or prohibition to preclude trial court from giving
proposed instruction in drug trafficking prosecution. The supreme court held that: (1)
instruction was incorrect, and (2) writ of prohibition was appropriate.
Writ of prohibition granted.
Dorothy Nash Holmes, District Attorney and David H. T.
__________

2
We note that petitioner has attached a proof of service of this petition on the district judge. The clerk of the
district court has informed this court that the district court has received a copy of this petition. Should the clerk
of the district court find that she is not in possession of a copy of any of the documents referred to in this
petition, she may obtain a copy from the clerk of this court. The documents shall be considered to have been
received by the clerk of the district court as of the dates indicated in this opinion.
Wayment, Deputy District Attorney, Washoe County, for Petitioner.
M. Jerome Wright, Reno, for Real Parties in Interest.
1. Drugs and Narcotics.
Defendant's awareness of amount of drugs possessed and awareness of possibility of amount of drugs subjecting defendant to
charge of trafficking are not elements of trafficking in controlled substance; knowledge or intent element that state is required to prove
is that defendant knowingly or intentionally possessed, sold, manufactured, delivered, or brought into state controlled substance. NRS
453.3385.
2. Prohibition.
Writ of prohibition was appropriate to prevent trial court in drug trafficking prosecution from issuing incorrect instruction that
required state to prove defendant's awareness of amount of drugs possessed and of possibility of amount of drugs subjecting him to
charge of trafficking, even though disruption of trial had potential of creating confusion. NRS 34.320, 34.330, 453.3385.
3. Prohibition.
Supreme court is reluctant by writ of prohibition to interfere with ongoing criminal trial to determine issues of possible error with
respect to issuance of instructions.
Supreme court must, within bounds of law, foster policies that aid in conviction of those who are guilty of criminal activity.
5. Prohibition.
Although disruptive proceeding of writ of prohibition is not favored to challenge trivial differences of opinion with respect to
charging jury, when proposed instruction is manifestly incorrect as matter of law and of such nature as to mandate inappropriate
acquittal or conviction of lesser offense, interest of speedy and efficient criminal proceedings must give way to state's superior interest
in insuring that criminal process is fair and punishes guilty.
OPINION
Per Curiam:
This petition for a writ of mandamus or prohibition seeks an order from this court
precluding the district court from giving a proposed jury instruction in a criminal trial
pending below. The district court has stayed the proceeding below pending our resolution of
this petition, and has allowed the jurors, who are still under oath, to go home.
[Headnote 1]
The criminal trial is a prosecution for trafficking in a controlled substance, cocaine. The
district court has indicated its intention to give the following instruction to the jury:
If you find beyond a reasonable doubt that either Defendant, or both of the
Defendants, unlawfully possessed a controlled substance, but that the amount of
the substance, i.e.,
or both of the Defendants, unlawfully possessed a controlled substance, but that the
amount of the substance, i.e., 14 grams or more, was purely and entirely coincidental
(that is to say that either or both of the Defendants had no prior knowledge of the
trafficking volume of illegal drugs within their presence and control), then you may
find either or both Defendants guilty of the lesser included offense of unlawful
possession of a controlled substance. A form of a jury verdict which allows this result is
provided among the verdict forms.
The state contends that this proposed instruction is incorrect as a matter of law, because it
places a burden on the state of proving that the defendants knew the amount of the controlled
substance they possessed and that such an amount might subject them to a charge of
trafficking. The state argues that no such requirement exists in the statute defining the crime
of trafficking in a controlled substance. We agree.
453.3385 Trafficking in controlled substances: Schedule I substances except
marihuana. Except as authorized by the provision 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.
2. Is 14 grams or more, but less than 28 grams, by imprisonment in the state prison
for life or for a definite term of not less than 10 years and by a fine of not less than
$100,000.
3. Is 28 grams or more, by imprisonment in the state prison for life or for a definite
term of not less than 25 years and by a fine of not less than $500,000.
Pursuant to the statute, the element of knowledge or intent that the state must prove
beyond a reasonable doubt is that the criminal defendant knowingly or intentionally
possessed, sold, manufactured, delivered or brought into this state a controlled substance. The
penalty for trafficking in a controlled substance is determined from the amount of the
controlled substance involved. The state must prove the amount of the controlled substance
beyond a reasonable doubt; the state is not required to prove that the defendant was
aware of the amount of illegal drugs he possessed, or that the defendant was aware that
the amount of illegal drugs he possessed might subject him to a charge of trafficking.
substance beyond a reasonable doubt; the state is not required to prove that the defendant was
aware of the amount of illegal drugs he possessed, or that the defendant was aware that the
amount of illegal drugs he possessed might subject him to a charge of trafficking.
We conclude that the proposed jury instruction at issue in this case is incorrect as a matter
of law, and that it would be clear error for the district court to give the jury any instruction
that would place on the state a burden of proving any element of scienter on the part of the
defendants with respect to the amount of cocaine that they possessed.
[Headnote 2]
A writ of prohibition may issue to arrest the proceedings of a district court exercising its
judicial functions, when such proceedings are in excess of the jurisdiction of the district
court. NRS 34.320. A writ of prohibition may issue only where there is no plain, speedy, and
adequate remedy at law. NRS 34.330. In this case, the district court would exceed its
jurisdiction if it were to issue the above-quoted instruction, and the state has no remedy at
law. Thus, the preliminary requirements for issuance of a writ have been satisfied.
Nevertheless, the more difficult question in this case is whether this court should exercise its
discretion to issue an extraordinary writ. See, e.g., State ex rel. Dep't Transp. v. Thompson,
99 Nev. 358, 662 P.2d 1338 (1983) (the exercise of this court's extraordinary power to issue
writs is within the sound discretion of this court).
[Headnote 3]
We are reluctant to interfere with an ongoing criminal trial to determine issues of possible
error with respect to the issuance of jury instructions. The disruption of the orderly conduct of
criminal jury trials is of great concern to us, this case being a fitting example of the reasons
for that concern.
We note that the district court has released the jurors to go home, although they are still
under oath, and has instructed them that they may not be recalled for a period of thirty to sixty
days, the time in which the district judge anticipated this petition for a writ might be pending
before this court. This type of disruption of criminal trials has a potential of creating
confusion, and might even raise due process concerns under some not too hard to imagine
circumstances.
[Headnote 4]
On the other hand, we are not unmindful of the dilemma of the state in circumstances
where, as here, the giving of a clearly erroneous instruction essentially mandates a jury
verdict of acquittal or of conviction of a lesser offense where conviction of the greater
offense is clearly warranted.1 This court must, within the bounds of the law, foster
policies that aid in the conviction of those who are guilty of criminal activity.
acquittal or of conviction of a lesser offense where conviction of the greater offense is clearly
warranted.
1
This court must, within the bounds of the law, foster policies that aid in the
conviction of those who are guilty of criminal activity.
[Headnote 5]
We conclude that the balance of factors in this case favors exercise of our extraordinary
powers to issue a writ. Although we do not favor this sort of a disruptive proceeding to
challenge trivial differences of opinion with respect to the charging of a jury, when a
proposed instruction is manifestly incorrect as a matter of law and of such a nature as to
mandate an inappropriate acquittal or conviction of a lesser offense, we believe that the
interest of speedy and efficient criminal proceedings must give way to the state's superior
interest in insuring that the criminal process is fair and punishes the guilty.
The dissent's observation that staff reached the conclusion that the instruction was
erroneous is most disturbing and a breach of long-accepted standards of collegiality in
appellate courts. One would search in vain for an appellate opinion in which a member of the
court delved into the manner in which court deliberations resulted in a decision. Justice
Young's comment reveals a total lack of appreciation of the traditions and norms of the
appellate process.
Further, the dissent's implication that the conclusion reached in this opinion is that of the
staff, rather than that of the court, is a misleading characterization of the decision-making
process of this court. In this, as in many matters that come before this court, our legal staff
analyzed the legal issues presented, and recommended a disposition to the court. Each justice
was individually briefed by the staff, and the matter was then debated in some detail by the
five justices at a court conference. This process resulted in the issuance of this opinion by a
majority of the court.
As the dissent reveals, our staff prepared the draft disposition in this matter. What the
dissent does not disclose, however, is that the disposition was prepared as directed by the
justices of this court. This court has always treated the extent of our staff's participation in the
preparation of a disposition as confidential court information. We are therefore dismayed that
Justice Young, who relies so heavily on his staff for the production of his opinions, would
find any aspect of significance in revealing, contrary to established court protocol, the
participation of the court's central legal staff in producing the disposition directed by a
majority of the court.
__________

1
We express no opinion with respect to the guilt or innocence of the defendants in the action below. We
merely recognize that if the state proves beyond a reasonable doubt that the defendants possessed cocaine in an
amount greater than 14 grams but less than 28 grams, the defendants should be convicted of mid-level trafficking
pursuant to NRS 453.3385(2), regardless of whether they had prior knowledge of the trafficking volume of
illegal drugs within their presence and control.
opinions, would find any aspect of significance in revealing, contrary to established court
protocol, the participation of the court's central legal staff in producing the disposition
directed by a majority of the court.
prohibition precluding the district court from giving to the jury the proposed instruction noted
above, and further prohibiting the district court from giving the jury any instruction that
would place on the state a burden of proving any element of scienter on the part of the
defendants with respect to the amount of cocaine that they possessed.
Young, J., dissenting, with whom Mowbray, C. J., joins:
Respectfully, I dissent. In my opinion, granting relief to the petitioner may well serve the
cause of justice in this case, but will almost certainly create endless problems in the future for
a court already overburdened with an evergrowing criminal caseload. It is a clear message to
prosecutors that we will entertain petitions for extraordinary relief during the course of
proceedings if a prosecutor is dissatisfied with the decision by the trial judge on a proposed
instruction.
On Friday, November 27, 1992, the trial judge stated that he would give the contested
instruction. On Tuesday, December 1, 1992, a petition was filed for extraordinary relief in our
court.
1
The respondents were not given an opportunity to reply to the petition. I was first
advised of the petition by staff on Wednesday, December 2, 1992. An opinion granting the
petition for writ of prohibition was signed December 3, 1992. It was a commendable
demonstration of speed in the processing of the request for relief.
However, the process is fraught with danger. In most matters, the court receives input from
both partiesand sometimes hears oral arguments. This did not occur here. Staff prepared
the opinion granting petition for writ of prohibition which was briefly considered by the court
and signed.
Staff reached the conclusion that the proposed instruction was erroneous as a matter of law
notwithstanding the fact that it had been approved by a respected trial judge and considered at
some length in the trial court.
While justice may have been served in the instant case, I am fearful that the granting of
this writ will be an invitation to prosecutors throughout the state to petition for
extraordinary relief when they perceive that error has been committed.
__________

1
This petition probably had its origin in comments by this court in a criminal proceeding where we stated
that if a prosecutor believed that the trial judge was going to give an improper instruction, the prosecutor could
have timely asked the district court judge for a brief continuance of the trial to enable the district attorney to seek
relief by way of an extraordinary writ addressed to this court. Ohlson v. Holmes, Docket No. 23229 (Order
Denying Petition for Writ of Mandamus, June 24, 1992 at 4).
fearful that the granting of this writ will be an invitation to prosecutors throughout the state to
petition for extraordinary relief when they perceive that error has been committed. In this
case, it involves an instruction. However, the principle seems to have a much broader
application. If error occurs during voir dire of the jury, or in a motion in limine, or in the
admission or refusal to admit evidence, or elsewhere, can the prosecutor be denied relief?
In many cases, the error may not be as clear as the majority believes it to be in this case.
Will the respondent be given an opportunity to file a brief in opposition? Will it be necessary
to have a conference, or oral argument? If so, the disruption of the trial may be wasteful of
judicial resources at both the trial and appellate level. Our court runs the risk of being
transformed into a special appellate tribunal for prosecutors only. The majority states, [T]he
interest of speedy and efficient criminal proceedings must give way to the state's superior
interest in insuring that the criminal process is fair and punishes the guilty. On the other
hand, what about the interests of the defendant? Is not the state also interested in insuring
that the criminal process is fair for the defendant and permits the innocent to be
acquittedand freed from constraint? While petitioner argues that the state now has no right
of appeal in the event of acquittal and should be given the opportunity to prevent error, it
would seem that the defendant is entitled to no less speedy considerationand perhaps
vindication. If he must wait until a jury verdict and completion of an appellate process that
may go on for a yearit seems hardly fair that he would be confined during this period.
If there is a problem here insofar as the state is concerned, I submit this matter should be
addressed by the legislature. Presumably, it could provide that the state would have the right
of appeal after completion of the trial resulting in acquittal to secure what would in effect be
an advisory opinion and establish the law for future cases.
A similar problem has heretofore been addressed by this court in civil matters. For years
litigants had used a petition for special writ to challenge orders in civil matters denying
motions to dismiss and motions for summary judgment. Our court wisely said in State ex rel.
Dep't Transp. v. Thompson, 99 Nev. 358, 362, 662 P.2d 1338, 1340 (1983),
We conclude . . . that judicial economy and sound judicial administration militate
against the utilization of mandamus petitions to review orders denying motions to
dismiss and motions for summary judgment. Therefore, although we reaffirm the
principle that we have the power to entertain such petitions . . . in the exercise of our
discretion we will no longer utilize that power.
such petitions . . . in the exercise of our discretion we will no longer utilize that power.
In the majority opinion, we are opening a door in criminal matters that some nine years
ago was closed for civil proceedings. This seems improvident at a time when we have more
criminal cases than civil and when it is unlikely that we will receive any relief from an
intermediate appellate court for many years to come. I respectfully submit that our system of
justice would not perish if the petition were denied in the instant case, and we continue to
process criminal cases as we have for many years. For these reasons, I respectfully dissent.
____________
108 Nev. 1037, 1037 (1992) Khoury v. Maryland Casualty Co.
REBECCA J. KHOURY, Individually and on Behalf of Her Minor Children, JENNIFER
KHOURY and RYAN KHOURY; BASHIR KHOURY as Executor of the Estate of
BASSIM KHOURY, Deceased; CHARLENE CORTNEY, Individually and on Behalf
of Her Minor Children, ERIC CORTNEY and DALLAS CORTNEY; RICHARD
CLARK as Executor of the Estate of MARTIN F. CORTNEY, Deceased; and
CLIFFROSE, INC., a Nevada Corporation, Appellants, v. MARYLAND CASUALTY
COMPANY, a Maryland Corporation; BARRY JOHNSON, Respondents.
No. 22497
December 11, 1992 843 P.2d 822
Appeal from the district court's award of partial summary judgment. Eighth Judicial
District Court, Clark County; J. Charles Thompson, Judge.
Insureds brought action under automobile liability policy. The district court entered partial
summary judgment in favor of insurer, finding that it had complied with requirement that
insureds be informed that uninsured/underinsured motorist coverage was available up to
amounts of bodily injury liability coverage. Appeal was taken. The supreme court held that:
(1) insurer was required to establish by clear and convincing evidence that notice of coverage
had been given, and (2) claim that two insurance agents verbally informed insureds of
availability did not satisfy requirement.
Jolley, Urga, Wirth & Woodbury and Troy Everett Peyton, Las Vegas, for Appellants.
Pearson & Patton and George W. Foley, Jr., Las Vegas, for Respondents.
1. Statutes.
Legislator's statements are entitled to consideration in construing statute when they are reiteration of events leading to adoption of
proposed amendments, rather than expression of personal opinion.
2. Insurance.
Former statute, providing that insurers must offer uninsured motorist coverage equal to limits of bodily injury coverage sold to
policy holder, requires that notice of availability of such coverage be established by clear and convincing evidence. NRS 687B.145,
subd. 2 (1988).
3. Insurance.
Insurer which claimed that two agents had verbally informed automobile liability insured of availability of uninsured/underinsured
motorist coverage equal to amount of bodily coverage under policy, did not establish by clear and convincing evidence that required
notice had been given. NRS 687B.145, subd. 2 (1988).
OPINION
Per Curiam:
Bassim Khoury (Khoury) and Martin Cortney were killed in an automobile accident in
August 1986 that was the fault of an underinsured driver. Khoury was an owner of Cliffrose,
Inc., dba Sure Electric (Sure Electric), and was individually named as an insured on Sure
Electric's insurance policy covering four company automobiles. This insurance policy was
provided by Northern Insurance Company (Northern), which is commonly owned with the
respondent, Maryland Casualty Insurance Company (Maryland Casualty). Although the
liability coverage limit of Sure Electric's policy was $1,000,000, the uninsured motorist
coverage for each automobile covered was only $30,000. Pursuant to the corporation's
insurance policy, Northern paid Khoury's heirs $120,000, representing the total amount of
uninsured motorist coverage on each of the four company vehicles.
Khoury's heirs initiated a lawsuit against Maryland Casualty, requesting, among other
things, that Khoury's insurance policy be reformed to increase the amount of
uninsured/underinsured motorist coverage to the full $1,000,000 amount of Khoury's liability
coverage. The heirs argued that they were entitled to this reformation because Maryland
Casualty's agents had failed to comply with the requirement of NRS 687B.145(2) that
uninsuredJunderinsured motorist coverage be offered to insureds up to the limits of their
liability coverage.
uninsured/underinsured motorist coverage be offered to insureds up to the limits of their
liability coverage. It is not disputed that a written offer of additional coverage was not
provided in this case. However, Maryland Casualty submitted the depositions of two of its
agents, alleging that although the offer of additional coverage was never set forth in writing,
both agents recalled that a verbal offer was made to Khoury.
Maryland Casualty filed a motion for summary judgment on a number of issues, and the
district court granted partial summary judgment in favor of Maryland Casualty on the issue of
whether the insurance company had met the requirements of NRS 687B.145(2). The judge
reasoned that: (1) a verbal offer is sufficient under NRS 687B.145(2) as a matter of law, and
(2) appellants had failed to raise a genuine issue of material fact with respect to whether a
verbal offer had been made. The district court certified its order as final pursuant to NRCP
54(b), and this appeal followed.
This court has not previously addressed the issue of whether the version of NRS
687B.145(2) in effect at the time Khoury purchased his insurance required that insureds be
informed in writing of the availability of additional uninsured/underinsured motorist
coverage. This version of NRS 687B.145(2) provided:
Insurance companies doing business in this state must offer uninsured motorist
coverage equal to the limits of bodily injury coverage sold to the individual
policyholder. Uninsured motorist coverage must include a provision which enables the
insured to recover up to the limits of his own coverage any amount of damages for
bodily injury from his insurer which he is legally entitled to recover from the owner or
operator of the other vehicle to the extent that those damages exceed the limits of the
bodily injury coverage carried by that owner or operator.
(Emphasis added.) Maryland Casualty argues that the plain language of former NRS
687B.145(2) does not specify the type of notice required, and that therefore, any type of
notice is sufficient. Khoury argues to the contrary, and a consideration of the term must
offer is necessary.
In Quinlan v. Mid Century Ins., 103 Nev. 399, 741 P.2d 822 (1987), the meaning of the
words must offer was considered by this court with respect to the adequacy of notification
provisions in insurance renewal notices. Quinlan consolidated two companion cases, the first
of which involved an insured who had received notice of the availability of additional
uninsured/underinsured motorist coverage through written flyers included with two of his
renewal notices. Id. at 401, 741 P.2d at 823. The insured in the second case received similar
notification through two mailings and was also informed of the additional coverage option
during a telephone conversation with her agent. Id. at 402 n.1, 742 P.2d at S24 n.1.
insured in the second case received similar notification through two mailings and was also
informed of the additional coverage option during a telephone conversation with her agent.
Id. at 402 n.1, 742 P.2d at 824 n.1. We concluded that the statute required some type of
affirmative notification, and that the notice provided in the two companion cases was
sufficient to satisfy this requirement. Id. at 403, 741 P.2d at 825.
Although the scope of Quinlan was limited, and we did not address whether the verbal
notification provided in one of the companion cases would have been sufficient without the
written notices that accompanied it, the legislature reacted to Quinlan by passing an amended
version of NRS 687B.145(2) in 1989.
1
This version stipulates, among other things, that the
offer of additional insurance must be made on a form approved by the insurance
commissioner. In discussing the amendments to the provision, Commerce Committees of
both the State Assembly and State Senate expressed dissatisfaction with our Quinlan
decision, apparently interpreting it to mean that we had held that the only thing an insurance
company needed to do to comply with the provision was to include a small notice at the
bottom of the renewal form using language such as, You now have the right to buy
uninsured coverage equal to bodily injury coverage. Contact your agent for more details.
Hearing on A.B. 404 Before the Assembly Commerce Committee, April 7, 1989, p. 2-3; see
also Hearing on A.B. 404 Before the Senate Committee on Commerce and Labor, May 11,
1989, p.8.
[Headnotes 1, 2]
Legislators' statements are entitled to consideration in construing a statute when they are a
reiteration of events leading to the adoption of proposed amendments, rather than an
expression of personal opinion. See A-NLV Cab Co. v. State, Taxicab Authority, 108 Nev.
92, 95, 825 P.2d 585, 587 (1992) (citing Cal. Tchrs. Ass'n v. San Diego Com. College, 621
P.2d 856, 860 (Cal. 1981)). From the legislature's expressed dissatisfaction with our
interpretation of pre-1989 NRS 687B.145(2) and from their subsequent amendment of the
statute, we infer that their goal in enacting the amendment to NRS 6S7B.145{2) was to
clarify, rather than alter, the degree of notice required.
__________

1
The amended version of NRS 687B.145(2) states:
Insurance companies transacting motor vehicle insurance in this state must offer, on a form approved
by the commissioner, uninsured and underinsured vehicle coverage in an amount equal to the limits of
coverage for bodily injury sold to an insured under a policy of insurance covering the use of a passenger
car. The insurer is not required to reoffer the coverage to the insured in any replacement, reinstatement,
substitute or amended policy, but the insured may purchase the coverage by requesting it in writing from
the insurer. Each renewal must include a copy of the form offering such coverage.
goal in enacting the amendment to NRS 687B.145(2) was to clarify, rather than alter, the
degree of notice required. Therefore, we conclude that the intent of the legislature in enacting
pre-1989 NRS 687B.145(2) was to require a reasonably thorough explanation of the available
coverage. While we refrain from determining that the Legislature meant this notice or
explanation of available additional coverage must be in writing, it is obvious that it was
intended to place the burden on the insurance company to make a full and complete
explanation. Accordingly, we conclude that NRS 687B.145(2) requires an insurance company
to prove that the notice of uninsured/underinsured motorist coverage be established by clear
and convincing evidence. In determining whether an insurance company has met the burden
of establishing the must offer requirement under NRS 687B.145(2) as effective in 1986, the
four-part test we approved in Quinlan v. Mid Century Ins., 103 Nev. 399, 741 P.2d 822
(1987), as modified for this case, should be as follows: (1) notification must be in a
commercially reasonable manner; (2) the limits of the optional coverage must be specified
and not set forth in general terms; (3) the insured must be intelligibly advised by the insurer
of the nature of the option; and (4) the insurer must advise the insured that the optional
coverage is available for relatively modest premium increases.
[Headnote 3]
Maryland Casualty has shown that while no written notice was given, two employees of
the insurance agency remember explaining the availability of uninsured motorist coverage.
This evidence is insufficient, as a matter of law, to establish by clear and convincing evidence
that notice was given, and we remand this case to the district court for the trial of this and any
other factual issues that remain.
Mowbray, C. J., Springer, Rose and Young, JJ., and Carnahan, D. J.
2

__________

2
Governor to sit in place of The Honorable Thomas L. Steffen, Justice. Nev. Const. art. VI, 4.
____________
108 Nev. 1042, 1042 (1992) Ramirez v. Galioto
ESTELLA RAMIREZ, Appellant, v. CARLO GALIOTO, Respondent.
No. 22868
December 11, 1992 843 P.2d 367
Appeal from an order refusing to compel arbitration. Eighth Judicial District Court, Clark
County; Donald M. Mosley, Judge.
Passengers and driver filed personal injury action after they were injured in a collision.
The district court denied a motion to compel arbitration. Driver appealed. The supreme court
held that the amount in issue, as used in the statute requiring arbitration of personal injury
claims arising out of automobile usage if claims do not exceed $15,000, applies to each
individual plaintiff's separate and distinct cause of action, not to the aggregate amount of
claims.
Edward M. Bernstein & Associates and James R. Cox, Las Vegas, for Appellant.
Gentile & Associates and Barbara I. Johnston, Las Vegas, for Respondent.
Arbitration.
Amount in issue, as used in statute requiring arbitration of personal injury claims arising out of automobile usage if claims do
not exceed $15,000, applies to each individual plaintiff's separate and distinct cause of action, not to aggregate amount of claims;
legislature intended for arbitration of multiple small claims, even if aggregate amount exceeds cap. NRS 38.215 (1990).
OPINION
Per Curiam:
On December 26, 1990, Estella Ramirez (Ramirez) and two passengers were traveling
on Pecos Road in an automobile driven by Ramirez. An automobile driven by Carlo Galioto
(Galioto) collided with Ramirez' car. The collision resulted in personal injuries to Ramirez
and her passengers. On July 9, 1991, they filed suit in Nevada district court against Galioto.
Ramirez and her passengers filed a motion to compel arbitration pursuant to NRS 38.215.
1
Galioto opposed the motion on the ground that the then existing NRS 3S.215 required
arbitration only if the "amount in issue" did not exceed $15,000.2 Although each
individual claim was below the cap, the aggregate far exceeded it, damages being
estimated at $40,000.
__________

1
NRS 38.215 (1989) provided in relevant part:
Arbitration required when amount in issue does not exceed $15,000; exception.
1. Except as otherwise provided in subsection 2, all civil actions for
ground that the then existing NRS 38.215 required arbitration only if the amount in issue
did not exceed $15,000.
2
Although each individual claim was below the cap, the aggregate
far exceeded it, damages being estimated at $40,000. The district court ordered that for NRS
38.215 to apply, the claims collectively could not exceed the cap. Ramirez alone appeals.
The sole issue on appeal is whether NRS 38.215 requires arbitration where multiple
claims, each less than the cap, are brought in one action, the aggregate of which exceeds the
cap. We hold that it does.
Ramirez argues that she is entitled to arbitration under NRS 38.215 because each
individual claim is less than the cap. Each individual having a claim for damages has a cause
of action separate, distinct and different from any other individual who also has a claim for
damages arising out of the same incident. Ramirez concludes that the amount in issue refers
to the damages claimed by each individual plaintiff pursuant to their individual cause of
action, rather than the aggregate. We agree.
NRS 38.215 is clear. Where a statute is clear on its face, a court may not go beyond the
language of the statute in determining the legislature's intent. McKay v. Board of
Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986). The 1989 version of NRS 38.215
stated clearly that where the cause of action arises in the State of Nevada and the amount in
issue does not exceed $15,000, the dispute must be submitted to arbitration.
We believe that amount in issue refers to each individual plaintiff's separate and distinct
cause of action. This is consistent with Nevada's policy favoring arbitration, as well as the
legislature's obvious intent of reducing court loads by requiring arbitration in certain cases.
The legislature's express intent in passing NRS 38.215 was to promote the speedy
resolution of small claims. Minutes of the Senate Standing Committee on Commerce 2
(March 30, 1971). This is harmonious with the intent we would discern were we to look at
the statute in its entirety in light of its purpose. Thus, we see no reason to adopt Galioto's
restrictive view that amount in controversy is controlling and is determined by aggregating
all claims. Galioto's interpretation would defeat the very purpose of the statute in those
instances, where, as here, multiple claimants have relatively small claims, the aggregate of
which exceeds the cap.
__________
damages for personal injury, death or property damage arising out of the ownership, maintenance or use
of a motor vehicle, where the cause of action arises in the State of Nevada and the amount in issue does
not exceed $15,000, must be submitted to arbitration, in accordance with the provisions of NRS 38.015
to 38.205, inclusive.

2
The $15,000 limit is herein referred to as the cap.
have relatively small claims, the aggregate of which exceeds the cap. Accordingly, we
conclude that the order refusing to compel arbitration was incorrect. We therefore reverse the
judgment of the district court and remand for proceedings consistent with this opinion.
____________
108 Nev. 1044, 1044 (1992) Polson v. State
KYLE DEAN POLSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22207
December 11, 1992 843 P.2d 825
Appeal from a judgment of conviction based upon a guilty plea of one count of driving
under the influence, third offense, a felony. Ninth Judicial District Court, Douglas County;
David R. Gamble, Judge.
Defendant was convicted of driving under the influence and sentenced to prison as
third-time offender in the district court. Defendant appealed. The supreme court held that: (1)
prior conviction required in order to impose prison sentence was valid, even though initiated
by traffic citation which did not expressly provide that it was executed by officer under
penalty of perjury; (2) prior convictions were valid, even though court clerk's date stamp did
not appear on their faces; and (3) convictions for either driving under the influence or driving
with blood alcohol level in excess of 0.10 was sufficient to support prison sentence.
Affirmed.
James J. Jackson, State Public Defender and Janet S. Bessemer, Deputy, Carson City, for
Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Scott W. Doyle, District Attorney
and Daniel J. Greco, Deputy District Attorney, Douglas County, for Respondent.
1. Statutes.
When statute is capable of being understood in two or more senses by reasonably informed persons, statute is ambiguous and plain
meaning rule has no application.
2. Automobiles.
Statute allowing police officer in misdemeanor traffic cases to prepare traffic citation in form of complaint was ambiguous;
complaint was required to be made upon declaration subject to penalty of perjury, and statute provided only that complaint was
required to be signed. NRS 484.799.
3. Automobiles.
Statute authorizing police officer in misdemeanor traffic case to prepare written traffic citation in form of complaint was not
subject to rule restricting strict construction of penal statutes; it was not a penal statute, as it did not define any offense or prescribe a
penalty. NRS 484.799.
4. Statutes.
An ambiguous statute can be construed in line with what reason and public policy would indicate legislature intended.
5. Automobiles.
Statute under which police officer handling misdemeanor traffic cases could prepare written traffic citation in form of complaint
would be interpreted to mean that officer made declaration under penalty of perjury, even though statute did not expressly so state;
other statutes required that complaints be sworn or executed under penalty of perjury. NRS 171.102, 484.799, 484.817.
6. Automobiles.
Prior convictions for drunk driving could be considered in support of prison sentence for third violation, even though defendant
claimed that prior convictions could not be used because they had not been shown as entered by clerk; even though clerk's stamp did
not appear on documents setting forth judgments, it was sufficient that judgments were included within packets of court papers, first
pages of which were stamped. NRS 484.3792, subd. 2.
7. Automobiles.
Conviction for either driving under influence or having blood alcohol level of 0.10 or more was sufficient to serve as predicate for
imposition of prison sentence for third alcohol-related driving offense. NRS 484.3792, subd. 1.
OPINION
Per Curiam:
On July 11, 1990, appellant Kyle Dean Polson was arrested for driving under the influence of alcohol. A Douglas County sheriff
observed Polson pull his pickup into a parking lot, get out of the vehicle, fall down, get up, and start urinating in a place in public view.
Polson was unresponsive to a request to produce his driver's license, had slurred speech, bloodshot and watery eyes, and was having trouble
maintaining his balance. Upon arrest Polson promptly passed out in the back seat of the patrol car, and was unable to be awakened. A blood
sample was drawn registering a blood alcohol level of .332.
Polson pleaded guilty to one count of driving under the influence of alcohol, a violation of NRS 484.379. At sentencing, the district
court admitted evidence of two prior convictions of violations of NRS 484.379, and sentenced Polson to one year in prison, the minimum
sentence allowable for a third DUI conviction under NRS 484.3792.
Appellant contends that his second prior conviction was inadmissible because a citation
that was filed in lieu of a formal complaint was insufficient to confer jurisdiction on the
municipal court that entered the second prior conviction.
A citation may serve as a complaint in DUI cases if the form of citation includes
information whose truthfulness is attested as required for a complaint. NRS 484.817.
1
The
attestation of truthfulness required of a complaint is an oath before a magistrate or notary
public, or a declaration subject to the penalty of perjury. NRS 171.102.
2
The citation in
question contained language above the arresting officer's signature stating that he was signing
under penalty of perjury.
Appellant contends, however, that the language was irrelevant because an officer is not
required to make such an affirmation under NRS 484.799(1), which only requires that a
citation be signed, not that it be attested.
3
Appellant argues that because the oath on the
citation is not required by NRS 484.799(1), a conviction for perjury regarding the arresting
officer's statements on the citation could not stand. See White v. State, 102 Nev. 153, 717
P.2d 45 (1986); Licata v. State, 99 Nev. 331, 661 P.2d 1306 (1983). Thus, appellant
concludes that the citation does not contain an attestation of truthfulness as required for a
complaint because the citation is not really written under penalty of perjury, and, therefore,
the municipal court never acquired valid jurisdiction.
__________

1
If the form of citation includes information whose truthfulness is attested as required for a complaint
charging commission of the offense alleged in the citation to have been committed, then the citation when
filed with a court of competent jurisdiction shall be deemed to be a lawful complaint for the purpose of
prosecution under this chapter.

2
The complaint is a written statement of the essential facts constituting the public offense charged. It must
be made upon:
1. Oath before a magistrate or notary public; or
2. Declaration which is made subject to the penalty for perjury.

3
NRS 484.799(1) provides in part:
Whenever a person is halted by a peace officer for any violation of this chapter punishable as a
misdemeanor and is not taken before a magistrate . . . the peace officer may prepare a written traffic
citation in the form of a complaint issuing in the name of The State of Nevada, containing a notice to
appear in court, the name and address of the person, the state registration number of his vehicle, if any,
the number of his driver's license, if any, the offense charged, including a brief description of the offense
and the NRS citation, the time and place when and where the person is required to appear in court, and
such other pertinent information as may be necessary. The citation must be signed by the peace officer.

[Headnote 1]
When a statute is capable of being understood in two or more senses by reasonably
informed persons, the statute is ambiguous, and the plain meaning rule has no application.
McKay v. Bd. of Supervisors, 102 Nev. 644, 649, 730 P.2d 438, 442 (1986).
[Headnote 2]
NRS 484.799 is ambiguous. It allows a peace officer in misdemeanor traffic cases to
prepare a written traffic citation in the form of a complaint. The form of a complaint as
defined in NRS 171.102 is a written statement of the essential facts . . . made upon . . .
[d]eclaration which is made subject to the penalty for perjury. However, NRS 484.799
merely states that [t]he citation must be signed by the peace officer. It does not expressly
require the citation to be signed under penalty of perjury. The statute is capable of being
understood by reasonably informed persons either to require a declaration under penalty of
perjury, or not to require a declaration under penalty of perjury.
[Headnotes 3, 4]
An ambiguous statute can be construed in line with what reason and public policy would
indicate the legislature intended. McKay, 102 Nev. at 649, 730 P.2d at 442. The legislature's
intent in enacting a statute is the factor which controls its interpretation.
4
Thompson v.
District Court, 100 Nev. 352, 354, 683 P.2d 17, 19 (1984).
NRS 484.817 and NRS. 171.102 were amended in 1983 to allow for citation-complaints to
be made upon declarations that are subject to the penalty of perjury. 1983 Nev. Stats. ch. 188,
1, 3, at 446-47. Prior to amendment, a complaint required a sworn oath before a
magistrate. Id. The legislature clearly intended that in misdemeanor traffic cases arising under
NRS chapter 484, the filing of a citation could replace the more burdensome procedure
required for the filing of a complaint. It follows reasonably that the legislature intended for
an officer to be able to make the required declaration on the face of the citation.
__________

4
This court is aware of the salutary rule requiring strict construction of penal statutes. See Sheriff v. Hanks,
91 Nev. 57, 60, 530 P.2d 1191, 1193 (1975). However, the three statutes in question are not penal because they
do not define an offense or prescribe a penalty. See State v. Webster, 102 Nev. 450, 454, 726 P.2d 831, 833-34
(1986). Thus, strict construction in favor of the defendant is unwarranted.
We note that even if the statute were of a penal nature, a different result would not follow. See U.S. v.
Raynor, 302 U.S. 540, 552 (1938) (no rule of construction requires that a penal statute be strained and distorted
to exclude conduct clearly intended to be within its scope). When NRS 484.799, NRS 484.817, and NRS
171.102 are read together, it is clear that the legislative intent was to require that citation-complaints be signed
upon a declaration subject to the penalty of perjury. Any other construction would do violence to the clear
legislative intent.
follows reasonably that the legislature intended for an officer to be able to make the required
declaration on the face of the citation. Any other interpretation of the statutes would require
the officer to make a separate oath or affirmation, exactly what was required under the
previous statute, and would defeat the apparent purpose of the amendment.
[Headnote 5]
Thus, it appears that: (1) the legislature intended to allow the use of citation-complaints in
misdemeanor traffic cases; (2) misdemeanor citations must be made in the form of a
complaint; and (3) complaints may be made upon declaration under penalty of perjury. The
logical and reasonable conclusion is that citation-complaints issued for NRS chapter 484
misdemeanors require a declaration under penalty of perjury. We, therefore, hold that NRS
171.102 requires a complaint to be sworn or attested, NRS 484.817 allows
citation-complaints, and NRS 484.799 requires citation-complaints to be made upon
declarations subject to the penalty of perjury.
Appellant's reliance on White v. State, 102 Nev. 153, 717 P.2d 45 (1986) is misplaced. In
White, this court noted that a perjury charge may be sustained only where a false statement
was made in a setting where an oath or affirmation is legally required, not merely authorized
or permitted. White, 102 Nev. at 157, 717 P.2d at 48. White signed a sworn affidavit in
support of a motion to elect participation in an alcohol abuse program where no Nevada
statute required White to support his claim for eligibility under oath. Contrarily, as noted
above, the statutory scheme in this case can only be interpreted to require a declaration under
penalty of perjury in order for a citation to function as a complaint.
The citation at issue in this case was signed with a declaration that it was issued under
penalty of perjury. It therefore meets the statutory requirements for a complaint under NRS
484.817 and 171.102. Consequently, we conclude that the municipal court had jurisdiction
over appellant, and appellant's conviction was properly admitted at sentencing for
enhancement purposes.
[Headnote 6]
Appellant also contends that neither prior conviction was admissible under NRS
484.3792(2), which requires that prior offenses be evidenced by a conviction. Specifically,
appellant argues that his prior judgments of conviction were never entered because,
although they were signed by the judge, they were never filed by the clerk. Appellant's
contention lacks merit.
As evidence of appellant's prior offenses, the state presented seven and eight page
documents numbered 1 of 7, 2 of 7, 3 of 7, etc.
etc. The front page of each document is file-stamped. The last page of each document is the
court's judgment of conviction and order. Although the judgments of conviction in appellant's
prior proceedings are not separately file-stamped, this court is mindful 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.' Jones v. State, 105 Nev. 124, 126, 771 P.2d 154, 155
(1989) (quoting Koenig v. State, 99 Nev. 780, 789, 672 P.2d 37, 43 (1983)).
Each document presented to the sentencing judge included the citation or complaint, plea,
sentence, judgment, and docket sheet. We consider this sufficient evidence of conviction,
when taken as a whole and in consideration of the realities of misdemeanor prosecutions. See
Pettipas v. State, 106 Nev. 377, 794 P.2d 705 (1990) (formal, written judgment of conviction
not required if other documents, such as docket sheets, evidence the conviction); Isom v.
State, 105 Nev. 391, 776 P.2d 543 (1989) (citation and plea are sufficient evidence of
conviction; complaint, plea, and sentence are sufficient evidence of conviction).
[Headnote 7]
Appellant's final contention is that with respect to his second prior offense, he pleaded
guilty to driving with a blood alcohol level of 0.10 or more, not to DUI. Appellant complains
that, nevertheless, the municipal court adjudged appellant guilty of DUI. Further, appellant
argues that plea agreements should be scrupulously honored. Appellant considers these two
separate offenses, and concludes that he should have one prior conviction for DUI, and one
prior conviction for driving with a blood alcohol level of 0.10 or more. We disagree.
NRS 484.3792(1) provides for an enhanced penalty for: [a]ny person who violates the
provisions of NRS 484.379 . . . [f]or a third or subsequent offense within 7 years. . . . Both
DUI and driving with greater than a blood-alcohol level of 0.10 are violations of NRS
484.379. Thus, regardless of whether appellant's plea was improperly recorded, he is subject
to being sentenced as a third offender.
Accordingly, we affirm the judgment of conviction and sentence in all respects.
____________
108 Nev. 1050, 1050 (1992) Brewery Arts Ctr. v. State Bd. Examiners
BREWERY ARTS CENTER; CARSON CITY CHILDREN'S MUSEUM; STEWART
INDIAN MUSEUM ASSOCIATION, INC.; CARSON VALLEY HISTORICAL
SOCIETY; WESTERN FOLKLIFE CENTER; CITY OF WINNEMUCCA; CITY OF
CALIENTE; LINCOLN COUNTY; YERINGTON GRAMMAR SCHOOL NO. 9
RESTORATION GROUP INC.; STOREY COUNTY FOURTH WARD SCHOOL
BOARD OF TRUSTEES; WHITE PINE HISTORICAL FOUNDATION, INC.;
WHITE PINE PUBLIC MUSEUM; AND THE LEGISLATIVE COMMISSION,
Petitioners, v. THE STATE BOARD OF EXAMINERS, Respondent.
No. 23321
December 11, 1992 843 P.2d 369
Original petition for writ of mandamus to compel issuance of bonds to preserve and
promote cultural resources in Nevada.
Petition for writ of mandamus was filed ordering State Board of Examiners to issue
general obligation bonds to fund cultural projects. The supreme court held that: (1) Board's
vote to defer issuance of bonds was an appropriate exercise of discretion which did not
warrant issuance of writ of mandamus; (2) general obligation bonds to fund cultural projects
were not exempt from constitutional debt limit; and (3) invalid subsection of bill stating that
issuance of general obligation bonds to fund cultural projects would be pursuant to exemption
from constitutional debt limitation could not be severed from rest of bill.
Petition for writ of mandamus denied.
Rose, J., dissented.
Lorne Malkiewich, Legislative Counsel, and Brenda Erdoes, Chief Deputy Legislative
Counsel, Carson City, for Petitioners.
Frankie Sue Del Papa, Attorney General, Brooke A. Nielsen, Assistant Attorney General,
and Jonathan L. Andrews, Chief Deputy Attorney General, Carson City, for Respondent.
1. Mandamus.
Mandamus is an extraordinary remedy, and decision as to whether petition for mandamus will be entertained lies within sound
discretion of supreme court. NRS 34.160.
2. Mandamus.
Writ of mandamus will not be granted in anticipation of supposed omission of duty, however strong presumption may be that
persons whom it is sought to coerce by writ will refuse to perform their duty when proper time arrives. NRS 34.160.
3. Mandamus.
State Board of Examiners' two-year delay in issuing general obligation bonds to fund cultural projects was reasonable and its
decision discretionary; therefore, Board's vote to defer issuance of bonds was an appropriate exercise of discretion which did not
warrant issuance of writ of mandamus. NRS 349.071, subd. 1.
4. Mandamus.
Mandamus may not be used to compel a discretionary act.
Supreme court will not decide a constitutional issue unless necessary to determination of case.
6. States.
General obligation bonds to fund cultural projects were not exempt from constitutional debt limit where state did not own, or
propose to own, any of property which would benefit from bonds, only one of seven funding criteria specifically addressed preservation
of property while much of criteria involved programming element of cultural resources and programming was not exempt from debt
limit. NRS 233C.220, subd. 3: Const. art. 9, 3; St. 1990, c. 455, 5, 5, subd. 5.
7. Statutes.
Invalid subsection of bill stating that issuance of general obligation bonds to fund cultural projects would be pursuant to
exemption from constitutional debt limitation could not be severed in absence of indication that legislature intended the bill to stand
alone without the subsection. St. 1990, c. 455, 5, 5, subd. 5.
8. Statutes.
Supreme court cannot sever provision from a bill unless remaining provisions, standing alone, meet two-pronged test under which:
(1) provisions have legal effect, and (2) it appears legislature intended provisions to stand alone even if another section in same act is
held invalid.
OPINION
Per Curiam:
The 1991 Nevada Legislature created the Commission for Cultural Affairs (the
Commission) and required it, within one year of its formation, to establish a ten-year plan to
preserve and promote Nevada's cultural resources and to develop a network of cultural
centers and activities. The Legislature directed the respondent, the State Board of Examiners
(the Board), to issue general obligation bonds to fund the projects identified in the ten-year
plan. Pursuant to the provisions of Assembly Bill No. 590 (A.B. 590),
1
for the first year of
the ten-year plan, the Commission awarded $2,000,000 in grants to fifteen local
governments and non-profit organizations.
__________

1
A.B. 590, 5 provides:
1. The state board of examiners shall issue general obligation bonds of the State of Nevada, in a face
amount of not more than $20,000,000, to provide the money necessary to carry out the provisions of
sections 1 to 4, inclusive, of this act.
2. The money raised by the issuance of the bonds authorized by this
sion awarded $2,000,000 in grants to fifteen local governments and non-profit organizations.
The purpose of the grants was to renovate and restore historical sites in Nevada.
2

On May 14, 1992, bond counsel for the State declined to render an unqualified approving
opinion on the issuance of these bonds. Bond counsel withheld approval because of the
language of A.B. 590 5(5), which stated that the bonds are exempt from the constitutional
debt limit because the bonds are necessary for the protection and preservation of the cultural
resources of this state and for the purpose of obtaining the benefits thereof. (Emphasis
added.) The second paragraph of Article 9, 3 in the Nevada Constitution
3
does not
expressly exempt cultural resources" from the debt limitation.
______________
section must be deposited with the state treasurer and credited to the fund for the preservation and
promotion of cultural resources.
3. The bonds may be issued at one time or from time to time.
4. The provisions of the State Securities Law, contained in chapter 349 of NRS, apply to the issuance
of bonds pursuant to this section.
5. The legislature finds and declares that the issuance of bonds pursuant to this section is necessary
for the protection and preservation of the cultural resources of this state and for the purpose of obtaining
the benefits thereof, and constitutes an exercise of the authority conferred by the second paragraph of
section 3 of article 9 of the constitution of the State of Nevada.
1991 Nev. Stat. Ch. 455 at 1347-48 (1991) (emphasis added). See NRS 233C.230 (reviser's note).

2
Letters to the various recipients of the grants contained the following qualifications:
This letter does not represent a formal commitment on the part of the state, nor does it give you authority
to initiate your project. The State cannot provide you with a funding agreement until the Bonds have been
sold and the Commission can be assured that it is appropriate to initiate a formal commitment.

3
Article 9, 3 of the Nevada Constitution provides in part:
The state may contract public debts; but such debts shall never, in the aggregate, exclusive of interest,
exceed the sum of two per cent of the assessed valuation of the state, as shown by the reports of the
county assessors to the state controller, except for the purpose of defraying extraordinary expenses, as
hereinafter mentioned. . . .
The state, notwithstanding the foregoing limitations, may, pursuant to authority of the legislature,
make and enter into any and all contracts necessary, expedient or advisable for the protection and
preservation of any of its property or natural resources, or for the purposes of obtaining the benefits
thereof, however arising and whether arising by or through any undertaking or project of the United
States or by or through any treaty or compact between the states, or otherwise. The legislature may from
time to time make such appropriations as may be necessary to carry out the obligations of the state under
such contracts, and shall levy such tax as may be necessary to pay the same or carry them into effect.
(Emphasis added.)
resources from the debt limitation. Bonds that are not exempt from the State's debt limit are
counted against the debt limit and negatively impact the ability of the State to borrow money
for other projects. The unqualified approving opinion of bond counsel is necessary before the
bonds are issued, for without such an opinion, the bonds are not marketable. Bond counsel
recommended either obtaining a judicial decision that severed subsection 5 from A.B. 590
5, or having the 1993 Legislature amend the bill.
On June 18, 1992, the Board voted unanimously to accept the recommendation of Judy
Matteucci (Matteucci), the State of Nevada Budget Director and the Clerk of the Board, to
defer the issuance of the bonds until this court interprets, or the Legislature clarifies, the
language of subsection 5 concerning the exemption of the bonds from the constitutional debt
limitation. Matteucci's recommendation was based on the questionable constitutionality of
A.B. 590 and on the need to review all of the remaining bond authorizations.
Petitioners argue that the Board has a non-discretionary legal duty to issue the general
obligation bonds to fund the grants. Also, petitioners argue that they have no plain, speedy,
and adequate remedy at law, and they request that this court issue a peremptory writ of
mandamus commanding the Board to issue the bonds. In the alternative, petitioners request
that this court issue a peremptory writ of mandamus compelling the Board to issue general
obligation bonds, either exempt or nonexempt from the constitutional debt limitation, for
$2,000,000. Petitioners argue that, if action is not taken soon, some of the historic sites that
A.B. 590 is intended to preserve may be lost.
[Headnote 1]
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, or to control an arbitrary or
capricious exercise of discretion. See NRS 34.160; Round Hill Gen. Imp. Dist. v. Newman,
97 Nev. 601, 637 P.2d 534 (1981). Mandamus is not available where the petitioner has a
plain, speedy, and adequate remedy in the ordinary course of the law. NRS 34.170; NRS
34.330. Mandamus is an extraordinary remedy, and the decision as to whether a petition will
be entertained lies within the sound discretion of this court. See Poulos v. District Court, 98
Nev. 453, 455, 652 P.2d 1177, 1178 (1982).
[Headnote 2]
However, a writ of mandamus will not be granted in anticipation of a supposed omission
of duty, however strong the presumption may be that the persons who it is sought to coerce by
the writ will refuse to perform their duty when the proper time arrives."
writ will refuse to perform their duty when the proper time arrives. State v. Public Service
Com., 44 Nev. 102, 112, 190 P. 284, 286-87 (1920). It is incumbent on the relator to show,
not only that the respondent has failed to perform the required duty, but that the performance
thereof is actually due from him at the time of the application. State of Nevada v. Gracey, 11
Nev. 223, 233 (1876).
[Headnote 3]
The petition for the writ of mandamus alleges that the Board voted to defer the issuance
of the bonds required by A.B. 590. However, the Board has not failed or refused to act, and
it has only voted to delay the issuance of the bonds. Because the Legislature did not designate
a precise time in A.B. 590 for the issuance of the bonds, we infer that reasonable time and
reasonable diligence were intended. Fuller v. Knight, 2 So.2d 605, 609 (Ala. 1941);
Bremerton Municipal League v. City of Bremerton, 124 P.2d 798, 800 (Wash. 1942). No
rule can be laid down as to within what time bonds must be issued after they have been voted
for or their issuance directed. . . . Fuller, 2 So.2d at 610. See Chickaming v. Carpenter, 106
U.S. 663 (1882) (even where statute provides that bonds shall be issued within certain
number of days after election authorizing the issuance, valid bonds may be issued after time
specified). Courts have found it is not unreasonable to have delays of five and nine years
following the authorization to issue bonds. Perl-Mack Civil Ass'n v. Board of Directors, Etc.,
344 P.2d 685 (Colo. 1959) (en banc) (five years); Missouri Electric Power Co. v. Smith, 155
S.W.2d 113 (Mo. 1941) (nine years). In Petition of City of St. Louis, 363 S.W.2d 612 (Mo.
1963) (en banc), the court held that a delay of eighteen years did not bar issuance of
previously unissued bonds. Based on these cases, we conclude the Board's delay, which has
been less than two years, is within a reasonable time.
[Headnote 4]
NRS 349.071(1) provides in part: The state board of examiners may issue and redeem
securities on behalf of the state, when such issue is authorized by law. (Emphasis added.) In
S.N.E.A. v. Daines, 108 Nev. 15, 824 P.2d 276 (1992), this court stated: [I]n statutes, may'
is permissive and shall' is mandatory unless the statute demands a different construction to
carry out the clear intent of the legislature. Id. at 19, 824 P.2d at 278. Mandamus may not be
used to compel a discretionary act. Building & Constr. Trades v. Public Works, 108 Nev.
605, 609, 836 P.2d 633, 636 (1992); Young v. Board of County Comm'rs, 91 Nev. 52, 530
P.2d 1203 (1975). Therefore, because the Board has not failed to issue the bonds within a
reasonable time and its decision was discretionary, we conclude the Board's vote was an
appropriate exercise of discretion which does not warrant the issuance of a writ of
mandamus.
decision was discretionary, we conclude the Board's vote was an appropriate exercise of
discretion which does not warrant the issuance of a writ of mandamus.
[Headnotes 5, 6]
Petitioners next argue that the bonds are exempt from the constitutional debt limitation
because they concern a natural resource of Nevada. This court will not decide a constitutional
issue unless necessary to the determination of a case. Williams v. State, 97 Nev. 1, 5 n.4, 620
P.2d 1263, 1266 n.4 (1981). Because the Board's exercise of discretion depended in part on
our interpretation of A.B. 590 5(5) under the Nevada Constitution, we address this issue.
In Marlette Lake Co. v. Sawyer, 79 Nev. 334, 383 P.2d 369 (1963), this court held that the
Nevada Constitution permitted the Legislature to authorize the State to exceed the debt
limitation by purchasing private water rights and a distribution system. Relying on Marlette,
petitioners contend that the Legislature has the power to decide what State actions protect and
preserve its property and natural resources. However, in Marlette, the State itself was
purchasing the water system from a private company. The issue was whether the fact that the
system was still privately owned prevented a natural resources exemption under Article 9,
3 of the Nevada Constitution. Id. at 338, 383 P.2d at 370-71. Unlike Marlette, in the instant
case, the State does not own, or propose to own, any of the property which will benefit from
the bonds. Furthermore, NRS 233C.220(3)
4
specifies the criteria that the Commission
should use in awarding grants, and these same criteria are listed in the Commission's ten-year
plan. However, only one of the seven funding criteria specifically addresses the preservation
of property. Much of the criteria involves the programming element of cultural resources, and
programming is not exempt from Nevada's debt limit. In sum, the property in question is not
State-owned and it does not constitute "natural resources," nor are some of the bond
funds designated for the preservation of property.
__________

4
NRS 233C.220(3) provides that the Commission may:
Specify the criteria by which proposed projects will be judged. The criteria must include, but not be
limited to, a consideration of the degree to which a proposed project:
(a) May become a recurring event without the necessity of future state financial support;
(b) Will be accessible to the community;
(c) Will promote tourism in the state;
(d) Will promote or preserve some historic or prehistoric feature of Nevada;
(e) Will have multiple uses for many types of cultural organizations;
(f) Will supplement training in the classroom in the arts and the humanities; and
(g) Incorporates the various disciplines directly associated with cultural resources.
tion is not State-owned and it does not constitute natural resources, nor are some of the
bond funds designated for the preservation of property. Therefore, we conclude that the
cultural resources in A.B. 590 5(5) are not exempt from the constitutional debt limitation
under Article 9, 3 of the Nevada Constitution, and therefore, the bonds in question are also
not exempt from the constitutional debt limitation.
[Headnote 7]
Alternatively, petitioners argue that this court should sever subsection 5 from 5 of A.B.
590. Subsection 5 states that the issuance of the bonds shall be pursuant to the exemption
from the constitutional debt limitation. Petitioners contend that: (1) this court has the power
and the duty to sever subsection 5 because the remaining provisions of the bill are complete
with the subsection excised, and (2) the 1991 Nevada Legislature intended that the cultural
resource bonds be issued regardless of the constitutional debt limitation. See County of Clark
v. City of Las Vegas, 92 Nev. 323, 335-40, 550 P.2d 779, 787-91 (1976).
[Headnote 8]
This court cannot sever a provision from a bill unless the remaining provisions, standing
alone, meet a two-pronged test under which: (1) the provisions have legal effect, and (2) it
appears the Legislature intended the provisions to stand alone even if another section in the
same act is held invalid. Id. at 336, 550 P.2d at 788. In the instant case, the first prong of the
test is satisfied because, without A.B. 590 5(5), the remaining sections of A.B. 590
nevertheless have legal effect. However, unlike the statute in County of Clark, A.B. 590 has
no severability clause. Therefore, because it does not appear the Legislature intended A.B.
590 to stand alone without subsection 5 of section 5, we decline to sever it.
In conclusion, the Board's decision to defer issuing the bonds was an appropriate exercise
of discretion, and the bonds are not exempt from the constitutional debt limitation. The
subject cultural resources may never become state property. We decline to set a precedent
which would furnish a basis for writing the debt limit out of the constitution, particularly
when the taxpayers have no assurance that the bond funds will not inure to the benefit of
private parties rather than to the state. Moreover, mandamus is an extraordinary remedy.
Houston Gen. Ins. Co. v. District Court, 94 Nev. 247, 578 P.2d 750 (1978). Petitioners have
other adequate legal remedies available to them, including legislative clarification from the
1993 Nevada Legislature. Accordingly, we deny the petition for a writ of mandamus.
Rose, J., dissenting:
The Legislature's clear intent was to appropriate the funds to renovate and preserve historic
and cultural treasures and to exempt the funds from the State's constitutional debt limit. The
fact that the Legislature did not designate some of the funds for the programming element of
cultural resources is not problematic. The State's desire to preserve the properties and benefit
from them requires some expenditures to cover the costs of furnishings, operations, and
programming. Display cases necessitate windows, tourists require places to sit, and staff
members need salaries for their services. These are reasonable expenditures within the broad
purpose of restoring the structures to benefit the State.
In Marlette Lake Co. v. Sawyer, 79 Nev. 334, 383 P.2d 369 (1963), this court stated:
[T]he second paragraph of Nev. Const. art. 9, 3, enables the legislature (without
regard to the debt ceiling established by the first paragraph thereof) to enter into any
contract (with the United States, another state, or with anyone having the capacity to
contract) which the legislature deems necessary, expedient or advisable for the purpose
of securing the benefits of or protecting and preserving property or natural resources
located within the geographical limits of Nevada.
Id. at 338, 383 P.2d at 371 (footnote omitted). Thus, when Article 9, 3 of the Nevada
Constitution refers to its property or natural resources, the term its has a geographical
rather than a proprietary connotation. As long as property is within the geographical limits of
the State of Nevada, the Legislature may exempt it from the debt ceiling. In the instant case,
the Legislature has plainly deemed it advisable to preserve the property. Because the
structures designated for protection and preservation are within the geographical limits of the
State of Nevada, I would hold that the bonds are exempt from the constitutional debt
limitation.
The Legislature knew that specific structures were the subject of the bill, and all of the
structures are of significant historical value. See A.B. 590 2(2)(c). Almost one and one-half
years have elapsed since A.B. 590 was passed. I doubt the Legislature envisioned a delay of
eighteen years, or even five years, before the State would issue the bonds to finance the
preservation and restoration of the structures. The length of the delay thus far sufficiently
warrants the extraordinary remedy of mandamus directed toward issuing the bonds to
preserve the structures. Each additional day of postponement allows the natural elements,
vandalism, and accidents to contribute to the deterioration of these irreplaceable
properties.
additional day of postponement allows the natural elements, vandalism, and accidents to
contribute to the deterioration of these irreplaceable properties. In fact, in A.B. 590
2(2)(c)(2), the Legislature designated some of these funds to restore and improve the Nixon
Opera House in Winnemucca so that it would meet the requirements of the fire code, and that
structure has unfortunately burned to the ground since the Legislature passed A.B. 590. If the
Legislature did not intend to appropriate the funds at once and exempt them from the debt
limit, the Legislature may clarify that in the 1993 session. In the meantime, I would grant the
writ so that the work of restoration may begin forthwith.
____________
108 Nev. 1058, 1058 (1992) State v. Crist
THE STATE OF NEVADA, Appellant, v. MICHAEL DAVID CRIST, Respondent.
No. 23235
December 11, 1992 843 P.2d 368
Appeal from district court order suppressing an out-of-state DUI conviction. Fourth
Judicial District Court, Elko County; Thomas L. Stringfield, Judge.
The supreme court held that state could not use defendant's prior out-of-state DUI
conviction that was plea bargained as first offense to enhance pending Nevada DUI charge to
a felony.
Affirmed.
Frankie Sue Del Papa, Attorney General, Carson City; Marshall S. Smith, District
Attorney, John S. McGimsey, Deputy District Attorney, and Robert J. Lowe, Deputy District
Attorney, Elko County, for Appellant.
Matthew J. Stermitz, Elko, for Respondent.
Automobiles.
State could not use defendant's prior out-of-state driving under the influence (DUI) conviction that was plea bargained as first
offense to enhance pending Nevada DUI charge to a felony. NRS 474.3792, subd. 1(c).
OPINION
Per Curiam:
Appellant Michael Crist was arrested in Elko, Nevada, on January 2, 1992, for driving
under the influence of alcohol. A breath test disclosed a blood-alcohol level of .1S.
108 Nev. 1058, 1059 (1992) State v. Crist
breath test disclosed a blood-alcohol level of .18. Crist was charged with felony DUI pursuant
to NRS 484.3792(1)(c)
1
because he had two prior DUI convictions. The prior offenses
occurred in Idaho in February and July of 1991. On both occasions, Crist pleaded guilty to
first-offense DUI pursuant to plea bargains.
The district court granted Crist's motion to suppress the prior DUI conviction, thereby
eliminating the basis for a felony prosecution. The lower court ruled that Nevada law
precluded using the plea bargained first offenses to enhance the pending DUI charge to a
felony.
On appeal, the State contends that the legislature intended the phrase third or subsequent
offense to mean any three offenses irrespective of their designation. We are thus urged by
the State to reconsider our holdings in State v. Smith, 105 Nev. 293, 774 P.2d 1037 (1989)
and Perry v. State, 106 Nev. 436, 794 P.2d 723 (1990). This we decline to do.
In both Smith and Perry, we held that a second DUI conviction plea bargained to a
first-offense status must be treated as a first-offense DUI for all purposes, including penalty
enhancement. Perry, 106 Nev. at 438, 794 P.2d at 725; Smith, 105 Nev. at 299, 774 P.2d at
1041. In so ruling, we upheld the integrity of plea bargains and the reasonable expectations of
the parties relating thereto. Smith, 105 Nev. at 229, 774 P.2d at 1041, citing Van Buskirk v.
State, 102 Nev. 241, 720 P.2d 1215 (1986).
We are persuaded that the Smith-Perry rules applies with equal force to out-of-state plea
bargains. To hold otherwise would erode Nevada's public policy in favor of honoring and
enforcing plea bargains, and promote confusion among defendants allowed to enter such
pleas.
For the reasons stated above, we affirm the order of the district court.
2

__________

1
NRS 484.3792(1)(c) provides in pertinent part:
Any person who violates the provisions of NRS 484.379 . . . 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
The Honorable John Mowbray, Chief Justice, did not participate in the decision of this appeal.
____________
108 Nev. 1060, 1060 (1992) Imperial Palace v. State, Dep't Taxation
IMPERIAL PALACE, INC., a Nevada Corporation, Appellant, v. THE STATE OF
NEVADA, by and Through Its Department of Taxation; COUNTY OF CLARK,
NEVADA; and JEAN DUTTON, Clark County Assessor, Respondents.
No. 22490
IMPERIAL PALACE, INC., a Nevada Corporation, Appellant, v. THE STATE OF
NEVADA by and Through Its Department of Taxation; COUNTY OF CLARK,
NEVADA; and JEAN DUTTON, Clark County Assessor, Respondents.
No. 22909
December 11, 1992 843 P.2d 813
Appeals, consolidated for decision, from judgments of the district court upholding the
State Board of Equalization's denial of appellant's petitions for reductions of assessed
valuations. Eighth Judicial District Court, Clark County; Addeliar D. Guy, III, Judge; Eighth
Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Hotel/casino owner appealed from judgment of the district court upholding valuations for
tax purposes of multimillion dollar structural improvements to motel, hotel towers, and
parking structure. The supreme court held that: (1) State Board of Equalization did not apply
fundamentally wrong principle in using Marshall and Swift calculator method to determine
replacement cost of improvements and did not have to use actual replacement cost; (2)
assessor, state and county boards did not blindly apply Marshall and Swift standards and
therefore refuse to exercise their best judgment; and (3) members of state and county boards
could inquire into and consider fair market value of hotel casino, even though taxpayer
conceded that taxable value did not exceed full cash value of disputed improvements.
Affirmed.
Nitz, Walton & Hammer, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Jeffrey R. Rodefer, Deputy Attorney General,
Carson City; Rex Bell, District Attorney and Zev E. Kaplan, Deputy District Attorney, Clark
County, for Respondents.
1. Taxation.
In reviewing petitions for judicial review, determinations of State Board regarding assessment are presumed valid, and to prevail
taxpayer must show by clear and convincing evidence that valuation established by State Board is unjust and
inequitable.
must show by clear and convincing evidence that valuation established by State Board is unjust and inequitable. NRS 361.430.
2. Taxation.
State Board of Equalization did not apply a fundamentally wrong principle in valuing improvements to hotels and casino for tax
purposes when it applied Marshall and Swift calculator method authorized by statute to determine cost of replacement of those
improvements; aside from administrative difficulties resulting from assessor's use of actual cost of replacement, such use would cause
unequal taxation. NRS 361.227, subd. 1(b).
3. Statutes.
Courts afford great deference to administrative body's interpretation of statute that is within language of statute.
4. Taxation.
There was no evidence that Assessor, County Board and State Board blindly applied Marshall and Swift standards and therefore
refused to exercise their best judgment in valuing improvements to hotel and casino for tax purposes. NRS 361.227.
5. Taxation.
Members of State and County Boards could inquire into and consider fair market value of hotel and casino, even though taxpayer
conceded that taxable value set by assessor did not exceed full cash value of disputed improvements; comparison of taxable value to
full cash value aided in determining whether assessment was equitable. NRS 361.227, subd. 5.
OPINION
Per Curiam:
This is a dispute over the taxable value
1
of several multi-million dollar structural
improvements to the Imperial Palace Hotel and Casino. The Clark County Board of
Equalization, the State Board of Equalization, and the district court upheld the Clark County
Assessor's valuations of the improvements. Appellant contends that the Clark County
Assessor overvalued the improvements in the 1990-91 and 1991-92 tax years by over thirty
million dollars.
THE FACTS
2

Appellant Imperial Palace (Imperial) is the owner of an 8.59 acre parcel of land, with
improvements consisting of a casino, a warehouse, a clubhouse, a motel, five hotel towers,
and a parking structure (the Palace) in Las Vegas, Nevada. In late 1989, the Clark County
Assessor (the Assessor) determined the 1990-91 taxable value of the Palace to be
$151,S10,290.00.
__________

1
NRS 361.043(2) defines taxable value as the value of property, other than property of an interstate and
intercounty nature, determined in the manner provided in NRS 361.227.

2
The statement of facts only details the 1990-91 dispute. The relevant facts of the 1991-92 dispute are
virtually identical. The legal issues raised in the two disputes are precisely the same.
the 1990-91 taxable value of the Palace to be $151,810,290.00. This figure consists of
$7,201,940.00 assessed land value, $136,720,260.00 assessed value of the improvements to
the land, and $7,848,090.00 assessed personal property value.
On January 16, 1990, Imperial filed a petition for review of the assessed valuation with the
Clark County Board of Equalization (the County Board). In the petition, Imperial asked the
County Board to review the Assessor's valuation of the motel, the five towers, and the
parking structure, arguing that the Assessor had overvalued them by more than thirty million
dollars. In determining the taxable value of the Palace improvements, the Assessor had
proceeded pursuant to NRS 361.227, utilizing the Marshall and Swift standards (Marshall
and Swift) mandated by NAC 361.128(2). Marshall and Swift provides three methods of
calculating replacement costs: the calculator method, the segregated cost method, and the
comparative cost indexes and multipliers.
3
Marshall Valuation Service, 1, at 12. In
calculating the taxable value of Imperial's improvements, the Assessor used a Marshall and
Swift computer program based on the calculator method. Imperial submitted two alternative
assessments for the disputed improvements: $62,889,605.00 and $58,256,805.00.
4
In
calculating its assessments, Imperial utilized the Marshall and Swift multipliers to inflate the
actual audited
__________

3
The calculator method contains average square and cubic foot and square meter costs for various classes,
occupancy types, and qualities of buildings together with modifiers for common deviations from the descriptions
of the typical buildings listed. Marshall Valuation Service, 1, at 12. The segregated cost method provides the
cost per square foot of the major building components. Id. The comparative cost tables contain indexes and
multipliers by which known historical costs may be converted directly to present-day costs or current costs may
be taken back in time. Id.

4
Imperial arrived at its $62,889,605.00 figure in the following manner: It took the actual audited costs of
construction of the disputed improvements, added 10% for contractor's profit and overhead, and then applied
trending factors derived from Marshall and Swift to inflate the adjusted historical costs to a present day
equivalent. Imperial increased the resulting figure by an additional 4% as required by NRS 361.260(5), and
then deducted applicable depreciation in accordance with NRS 361.227(1)(b). Imperial used a different
methodology in arriving at the $58,256,805.00 figure: It took the recent (1988-89) actual cost of construction for
tower 5, again increased the amount by 10% for contractor's profit and overhead, and again applied Marshall and
Swift trending factors. Imperial then allocated the resulting figure to the total area of tower 5 on the basis of
square footage. By so doing, Imperial determined that the current cost of construction of tower 5 was $40.40 per
square foot. In a similar manner, Imperial derived a current cost of approximately $10.15 per square foot for the
parking structure. Imperial multiplied the square footage of the disputed improvements by these cost figures and
then deducted depreciation. Imperial calculated the figures that it submitted for the 1991-92 valuation in an
identical fashion, except that it increased the 10% and 4% adjustments to 10.5% and 4.5%.
multipliers to inflate the actual audited costs of construction to their present day equivalents.
After a hearing, the County Board denied Imperial's petition but, because of a mistaken
classification by the Assessor, accepted the Assessor's recommendation to reduce the assessed
value of the improvements to $125,655,200.00.
5
Accordingly, the County Board reduced the
total taxable value of the Palace to $140,705,230.00. The disputed improvements (the motel,
the five towers, and the parking structure) constitute $96,524,866.00 of the total taxable value
of the Palace, as determined by the Assessor.
6

Imperial appealed the County Board's decision to the State Board of Equalization (the
State Board). After a hearing, the State Board upheld the County Board's decision denying
Imperial's petition. The State Board found, among other things, that the taxable value of the
Palace improvements falls within the mid-range of comparable properties in Las Vegas.
On June 28, 1990, Imperial filed a petition for judicial review in the Eighth Judicial
District Court. The district court upheld the State Board's decision,
7
and this appeal
followed.
DISCUSSION
Under Article 10, Section 1 of the Nevada Constitution, the legislature shall provide by
law for a uniform and equal rate of assessment and taxation, and shall prescribe such
regulations as shall secure a just valuation for taxation of all property . . . except mines and
mining claims. The legislature enacted NRS 361.227 for determining the taxable value of
real property. With respect to improvements on real property, NRS 361.227(1)(b) provides
that an assessor shall appraise them by subtracting from the cost of replacement of the
improvements all applicable depreciation and obsolescence. (Emphasis added.) NRS
361.227(5) mandates that [t]he computed taxable value of any property must not exceed its
full cash value.
8
NRS 361.227(5) is inapplicable in the instant case because Imperial
does not contend that the taxable value of the Palace improvements exceeded their full
cash value.
__________

5
At the hearing, the Assessor's representative acknowledged that the Assessor had mistakenly classified the
improvements as Class B instead of Class C and recommended that the County Board reduce the 1990-91
taxable value of the improvements accordingly.

6
For the 1991-92 valuation, the Assessor valued the Palace at $143,786,059.00, of which the disputed
improvements constitute $97,007,490.00.

7
The County Board, the State Board, and the district court subsequently affirmed the Assessor's 1991-92
assessment.

8
NRS 361.025 defines full cash value as the most probable price which property would bring in a
competitive and open market under all conditions requisite to a fair sale.
the instant case because Imperial does not contend that the taxable value of the Palace
improvements exceeded their full cash value.
NRS 361.227(6)(a) requires the Nevada tax commission to establish standards for
determining the cost of replacement of improvements.
9
Accordingly, in 1982 the tax
commission adopted NAC 361.128, which provides:
1. The cost of replacement of an improvement must include all costs for labor,
materials, supervision, contractor's profit and overhead, architects's plans and
specifications, sales taxes and insurance.
2. In determining the costs of an improvement, the county assessor shall:
(a) For rural buildings, use the standards in the assessor handbook entitled Rural
Building Costs adopted by the commission.
(b) For other improvements, use the standards in the cost manuals, including
modifiers of local costs, published through or furnished by the Marshall and Swift
Publication Company, as they existed on October 1 of the year preceding the current
assessment year, if the executive director approves it for use by county assessors in
determining the costs of improvements. A computer program for determining cost
furnished by the Marshall and Swift Publication Company may also be used. Other
computer programs for determining cost which are based on costs published by the
Marshall and Swift Publication Company may be used with prior approval of the
executive director.
3. If these manuals are not applicable, the county assessor may use the other
recognized cost manuals or subscription services with the prior approval of the
executive director of the department.
4. The executive director shall review the standards and modifiers published or
furnished by the Marshall and Swift Publication Company as soon as practicable after
they become available, to determine their suitability for use by county assessors. If he
finds it to be suitable, the executive director shall approve the use of the standard or
modifier and notify each county assessor of that approval.
(Emphasis added.) Under NRS 233B.040(1), regulations "[a]dopted and filed in accordance
with the provisions of [NRS Chapter 233B]" have the force of law.
__________

9
6. The Nevada tax commission shall by regulation establish:
(a) Standards for determining the cost of replacement of improvements of various kinds.
[a]dopted and filed in accordance with the provisions of [NRS Chapter 233B] have the
force of law.
Finally, NRS 361.345(1), which governs the powers of the county board of equalization,
provides:
[T]he county board of equalization may determine the valuation of any property
assessed by the county assessor, and may change and correct any valuation found to be
incorrect either by adding thereto or by deducting therefrom such sum as is necessary to
make it conform to the taxable value of the property assessed, whether that valuation
was fixed by the owner or the county assessor.
10

The dispute here centers on the County and State Boards' method of determining cost of
replacement. As previously mentioned, Marshall and Swift provides three methods of
calculating replacement costs: the calculator method, segregated cost method, and
comparative cost indexes and multipliers. Marshall Valuation Service, 1, at 12. Imperial
does not specifically dispute the Assessor's use of Marshall and Swift valuation methods. In
fact, in determining the taxable value of its improvements, Imperial employed Marshall and
Swift multipliers to update its actual audited costs of construction. However, Imperial
generally contends that NRS 361.227(1)(b) and NRS 361.345(1) require the County and State
Boards to adjust the assessed valuations for improvements to reflect the actual cost of
replacement, less depreciation, and that the district court erred in failing to require the County
and State Boards to adjust the Assessor's valuations. Specifically, Imperial disputes the
Assessor's use of the calculator method instead of the actual cost of replacement. The State,
on the other hand, contends that the Assessor properly calculated the taxable value of the
Palace's improvements by utilizing the calculator method in the cost manuals published by
Marshall and Swift. According to the State, the calculator method, which is based on average
construction costs of typical buildings within the applicable classification, ensures a uniform
and equal rate of assessment as
__________

10
The State argues that if an assessor computes the taxable value by a method prescribed by law and if the
taxable value does not exceed the property's full cash value, the taxpayer cannot challenge the valuation. We
disagree with this position. If an assessor utilizes a correct method pursuant to NRS 361.227 but inaccurately
calculates the taxable value, a taxpayer may challenge an assessor's incorrect valuation under NRS 361.345
regardless of whether the erroneously calculated taxable value exceeds the full cash value. If, for some reason,
the State Board fails to correct an assessor's error in calculation pursuant to NRS 361.345 and the result is highly
inequitable, this court would, in the interests of justice and fundamental fairness, remand the case to the district
court for further remand to the county board of equalization for reconsideration of its decision.
and equal rate of assessment as mandated by Article 10, Section 1 of the Nevada
Constitution.
NRS 361.227(1)(b)
[Headnote 1]
In reviewing petitions for judicial review under NRS 361.430, determinations of the State
Board are presumed valid. Washoe County v. John A. Dermody, Inc., 99 Nev. 608, 611, 668
P.2d 280, 282 (1983). To prevail, Imperial must show by clear and convincing evidence that
the 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.
11
Imperial does not
satisfy this burden unless the court finds that the [S]tate [B]oard 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. Weiss, 96 Nev. at 467, 611 P.2d
at 214.
Imperial does not suggest in the instant case that the assessments were so excessive as to
give rise to an implication of fraud and bad faith. Imperial does contend that the Board
applied a fundamentally wrong principle and that the Board refused to exercise its best
judgment.
[Headnote 2]
Imperial first contends that the State misconstrued NRS 361.227(1)(b) and, in doing so,
applied a fundamentally wrong principle. According to Imperial, taxable value, as used in
NRS 361.227(1)(b), refers to the actual replacement cost of the improvements, as opposed to
the estimates of replacement cost used in the Marshall and Swift calculator method. Thus,
Imperial contends that although the Assessor may initially use the Marshall and Swift
calculator method to estimate the replacement cost of an improvement, where the taxpayer
establishes by clear and convincing evidence that the Assessor's estimate is materially
inaccurate, unjust, and inequitable, the Assessor's estimate must yield to the taxpayer's
documented actual replacement cost. Imperial notes that NRS 361.345(1) authorizes the
County and State Boards to change and correct erroneous valuations by the Assessor.
Imperial argues that the Assessor's estimates in the instant case are inaccurate, unjust and
inequitable, and that the evidence submitted by Imperial clearly and convincingly
established the actual replacement cost of the Palace improvements.
__________

11
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.
instant case are inaccurate, unjust and inequitable, and that the evidence submitted by
Imperial clearly and convincingly established the actual replacement cost of the Palace
improvements.
Imperial asserts that its interpretation accords with the legislative intent underlying NRS
361.227(1)(b). The legislature amended NRS 361.227 in 1981 by passing Senate Bill 69 (SB
69). See 1981 Nev. Stat. 788-89. On April 11, 1981, the Senate and Assembly Taxation
Committees held a joint hearing to discuss, among other things, SB 69. At this hearing,
copies of a handout explaining SB 69 were distributed. This handout states, in relevant part:
1. Homes, buildings and other improvements to realty are to be appraised only by
the actual labor and material costs to replace the existing structures. The appraiser must
also reduce that replacement cost value by any depreciation or obsolescence factors that
are applicable to the existing structure due to its age and condition. Comparable sales in
the vicinity will no longer be considered in the determination of value and property
owners will not see their values escalate merely because a neighbor sells his home for
an inflated price.
(Emphasis added.) Based on the language in this handout, Imperial contends that actual
replacement cost is the correct method of valuation of its improvements.
When the language of a statute is plain and unambiguous, a court should give that
language its ordinary meaning and not go beyond it. City Council of Reno v. Reno
Newspapers, 105 Nev. 886, 891, 784 P.2d 974, 977 (1989). Notwithstanding the actual cost
language in the SB 69 handout, NRS 361.227(1)(b) refers only to cost of replacement; there
is simply no express language in NRS 361.227 or NAC 361.128 which suggests that an
assessor must only use the Marshall and Swift calculator method if the actual costs incurred
by the taxpayer in constructing improvements are unavailable. Moreover, in authorizing the
Nevada tax commission to establish standards for determining the cost of replacement of
improvements in NRS 361.227(6)(a), the legislature did not require the tax commission to
use actual cost of replacement as the standard for valuing improvements.
[Headnote 3]
Courts afford great deference to an administrative body's interpretation of a statute that is
within the language of the statute. Clark Co. Sch. Dist. v. Local Gov't, 90 Nev. 442, 530 P.2d
114 (1974). In the instant case, the State's interpretation of cost of replacement conforms to
the language of NRS 361.227. Additionally, NRS 361.227 took its current form in 1981; the
legislature enacted NAC 361.12S in 19S2.
ture enacted NAC 361.128 in 1982. In subsequent years, the legislature has not changed the
methodology set forth in this statute and regulation. This legislative acquiescence in the
State's reasonable interpretation of NRS 361.227 indicates that the interpretation is consistent
with legislative intent. Oliver v. Spitz, 76 Nev. 5, 348 P.2d 158 (1960).
Imperial's position fails for yet another reason. Aside from the administrative difficulties
that would result from adopting this position (among other things, assessors would need to
investigate and verify the figures submitted by thousands of taxpayers), an assessor's use of
the actual cost of replacement would cause unequal taxation. As the State observes, cost of
replacement can vary widely depending on the contractor and whether an owner-builder
performed the construction. Consequently, otherwise comparable properties could have
significantly unequal property tax burdens. The Marshall and Swift calculator method ensures
the uniform and equitable application of Nevada's taxing statutes.
On several previous occasions, this court has reviewed cases involving taxpayers' appeals
of State Board valuations pursuant to NRS 361.227. In Weiss v. State of Nevada, 96 Nev.
465, 611 P.2d 212 (1980), a taxpayer appealed the district court's order affirming the State
Board's determination of real property value. The taxpayer, who owned several apartment
buildings, purchased additional apartment buildings, which were contiguous and identical to
the ones that he already owned. Id. at 466, 611 P.2d at 213. The purchase price of the
additional buildings was $300,000. Id. The assessor determined that the additional buildings
had a taxable value of $373,000. Id. Using this figure as a basis, the assessor reassessed the
apartment buildings that the taxpayer previously owned at the same value as the recently
purchased buildings. Id. The taxpayer argued to the State Board that the recent purchase price
conclusively established the full cash value for tax purposes. Id. The district court decided
that the State Board had utilized accepted methods for determining value, and that the
[taxpayer] had not proven by clear and satisfactory evidence that the valuations were unjust
and inequitable. Id., 611 P.2d at 214.
The 1980 version of NRS 361.227(1) directed the assessor to compute taxable value by
using three methodscosts, market, and income approaches.
12
Id. at 467, 611 P.2d at 214.
The statute commanded the assessor to utilize these methods if he or she possessed the
pertinent information. Id. This court noted that the State Board considered the three
approaches to value because sufficient information was available.
__________

12
The 1980 version of NRS 361.227(1) provided for the taxation of real property and its improvements
based upon the full cash value using cost, market and income approaches. Weiss, 96 Nev. at 467 n.1, 611 P.2d at
214 n.1. The current version of NRS 361.227(1)(b) requires that an assessor determine the taxable value of
improvements by subtracting applicable depreciation and obsolescence from the cost of replacement.
commanded the assessor to utilize these methods if he or she possessed the pertinent
information. Id. This court noted that the State Board considered the three approaches to
value because sufficient information was available. Because the statute authorized the
assessor to consider other approaches to value than merely the recent purchase price if the
information was available, this court concluded that the Board had not applied a
fundamentally wrong principle in determining the value of the apartments. Id.
In Washoe County v. Golden Road Motor Inn, 105 Nev. 402, 777 P.2d 358 (1989), this
court addressed the issue of whether the recent sale price of the subject property was prima
facie evidence of the property's taxable value. This court found that as long as the State Board
used an appropriate method of valuation pursuant to NRS 361.227, it did not apply a
fundamentally wrong principle. Id. at 406, 777 P.2d at 360-61.
In contrast to the Weiss and Golden Road Motor Inn cases, the instant case does not
involve an assessor's use of a recent purchase or sale price of property to determine taxable
value. Moreover, Weiss involved the 1980 version of NRS 361.227(1), which set forth a
different scheme for valuing improvements than that prescribed in the current form of the
statute. In Golden Road Motor Inn, the dispute involved the taxable valuations of real
property rather than improvements, and NRS 361.227 treats the two types of property
differently.
Although these case can be distinguished from the instant case on the facts, their holdings
are instructive. Specifically, these cases are based on the proposition that the State Board is
permitted to use any method to determine taxable value that is prescribed by law. In the
instant case, NAC 361.128(2) required the State Board to use the Marshall and Swift
standards to determine the cost of replacement of the improvements. Accordingly, the
Assessor used the calculator method from the Marshall and Swift cost manuals to determine
the taxable value of Imperial's improvements. The Assessor had the option of calculating the
value of the improvements using the multipliers in the Marshall and Swift cost manuals to
update historical actual costs of construction. However, the Assessor chose the calculator
method. In Washoe Co. v. John A. Dermody, Inc., 99 Nev. 608, 612, 668 P.2d 280, 282
(1983), this court stated:
the district court shall not substitute its judgment for that of the administrative agency
as to the weight of evidence on questions of fact. Further, the district court should not
foreclose the exercise of the administrative agency's independent judgment on matters
within its competence. This is particularly true in light of the circumstances of the
instant case, given that there is a specific statutory requirement that the State Board
be composed of members with a particular expertise in valuing property.
case, given that there is a specific statutory requirement that the State Board be
composed of members with a particular expertise in valuing property.
(Citations omitted.) This court has held that as long as the State Board used an appropriate
method of valuation pursuant to NRS 361.227, it did not apply a fundamentally wrong
principle. Golden Road Motor Inn, 105 Nev. at 406, 777 P.2d at 360-61. In the instant case,
the Assessor properly applied the Marshall and Swift calculator method, which is authorized
pursuant to NRS 361.227, to determine the cost of replacement of Imperial's improvement.
13

Exercise of judgment
[Headnote 4]
Imperial next contends that the Assessor, the County Board, and the State Board blindly
applied the Marshall and Swift standards, and therefore refused to exercise their best
judgment. According to Imperial, these State entities should have discarded the Marshall and
Swift calculator method in favor of the actual audited construction figures supplied by
Imperial's witnesses, a contractor and an accountant.
According to the Marshall and Swift classification system, the Palace improvements are
categorized as Class C.
14
Imperial's contractor testified that significant cost differentials
exist within the Class C category of construction, and that the Assessor completely ignored
these differentials in applying Marshall and Swift. Specifically, the contractor testified that
the cost of construction of a Class C improvement can be substantially reduced if the height
of the structure is limited to approximately nineteen stories, as is the case with the Palace
improvements.
Imperial's argument fails because the calculator method takes into account the cost
differentials arising from varying number of stories. The Marshall and Swift cost manuals
state that the calculator method specifically addresses the cost differentials arising from the
number of stories as follows: The number of stories in a high-rise building will make some
difference in cost.
__________

13
The district court found that [t]he Nevada statutes and regulations do not provide for the alternative
method of using the actual owner's cost of replacement to determine taxable value. This finding of fact is
incorrect because NAC 361.128(2) provides for an assessor's use of Marshall and Swift standards, which
includes a method for updating actual historical costs to present day equivalents. However, in the instant case,
the Assessor used the calculator method. Based on the above discussion, we find that the Assessor correctly used
this method.

14
Marshall and Swift groups improvements into one of five classifications, depending upon the type of
construction.
The number of stories in a high-rise building will make some difference in cost. As the
number of stories increase, additional cost is incurred in raising materials, equipment
and personnel to upper levels, and in some cases, wages will have a high rise
increment. Also as the number of stories increases, structural frame members become
larger to support the higher loads and stresses inherent in a taller building. Both the
Calculator and the Segregated Cost Methods have appropriate modifications to adjust
the basic costs for differences caused by the number of stories.
Marshall Valuation Service, 3, at 5 (emphasis added). Furthermore, Imperial has failed to
point out any specific errors in the Assessor's calculations of the taxable value of the
improvements under the Class C category.
15
Thus, there is no evidence that the Assessor,
the County Board, and the State Board blindly applied the Marshall and Swift standards, and
therefore refused to exercise their best judgment.
Fair market value
[Headnote 5]
Finally, according to Imperial, although NRS 361.227(1)(a) permits assessors to use a full
cash value analysis in determining the taxable value of land,
16
this analysis may be applied
to improvements only when a taxpayer challenges his or her assessment under NRS
361.227(5), which states:
The computed taxable value of any property must not exceed its full cash value.
Each person determining the taxable value of property shall reduce it if necessary to
comply with this requirement. A person determining whether taxable value exceeds full
cash value or whether obsolescence is a factor in valuation may consider:
(a) Comparative sales, based on prices actually paid in market transactions.
__________

15
In its findings of fact, the State Board found: The evidence presented indicates that the assessor properly
calculated the improvement valuation using the Marshall and Swift calculator method, pursuant to NRS
361.227(1)(b) and NAC 361.128.

16
1. Any person determining the taxable value of real property shall appraise:
(a) The full cash value of:
(1) Vacant land by considering the uses to which it may lawfully be put, any legal or physical
restrictions upon those uses, the character of the terrain, and the uses of other land in the vicinity.
(2) Improved land consistently with the use to which the improvements are being put.
(b) A summation of the estimated full cash value of the land and contributory value
of the improvements.
(c) Capitalization of the fair economic income expectancy or fair economic rent.
A county assessor is required to make the reduction prescribed in this subsection if the
owner calls to his attention the facts warranting it, if he discovers those facts during
physical reappraisal of the property or if he is otherwise aware of those facts.
Imperial contends that because it never claimed that the taxable value of the Palace
improvements exceeded their full cash value, the County and State Boards applied a
fundamentally wrong principle by allowing fair market value, or full cash value,
considerations to influence their determination of the taxable value of the improvements in
issue.
Again Imperial's argument is unconvincing. Although members of the State and County
Boards did inquire into and consider the fair market value of the Palace, we conclude that the
members were obligated to do so to ensure that the taxable value set by the Assessor did not
exceed the full cash value of the disputed improvements. See NRS 361.227(5). Moreover,
even where, as here, a taxpayer concedes that the taxable value does not exceed the full cash
value, we conclude that a comparison of taxable value to full cash value aids in determining
whether an assessment is equitable.
CONCLUSION
In summary, we conclude that appellant has failed to show by clear and convincing
evidence that the valuations of the Palace improvements are unjust and inequitable; that is to
say, appellant has failed to show that the State Board applied a fundamentally wrong principle
or refused to exercise its best judgment, or that the valuation was so excessive as to create an
implication of fraud and bad faith. Washoe County v. Golden Road Motor Inn, 105 Nev. 402,
405, 777 P.2d 358, 360 (1989). As long as the State Board used an appropriate method of
valuation pursuant to NRS 361.227, it did not apply a fundamentally wrong principle. Golden
Road Motor Inn, 105 Nev. at 406, 777 P.2d at 360-61. In the instant case, the Assessor
properly applied the Marshall and Swift calculator method, which is authorized pursuant to
NRS 361.227, to determine the cost of replacement of Imperial's improvements.
Accordingly, we affirm the judgment of the district court.
____________
108 Nev. 1073, 1073 (1992) Attorney General v. District Court
ATTORNEY GENERAL OF THE STATE OF NEVADA, Petitioner, v. THE EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the
County of Clark, and THE HONORABLE DONALD J. MOSLEY, District Judge,
Respondents, and TABITHA LADALE MORRIS, Real Party in Interest.
No. 23699
December 22, 1992 844 P.2d 124
Original petition for writ of mandamus and prohibition. Eighth Judicial District Court,
Clark County; Donald J. Mosley, Judge.
Defense counsel moved to disqualify district attorney's office from prosecuting murder
defendant based upon alleged conflict of interest. The district court granted motion without
evidentiary hearing and assigned case to attorney general. Attorney general petitioned for writ
of prohibition. The supreme court held that: (1) district court should not have disqualified
district attorney's office without conducting evidentiary hearing; (2) district court should not
have based disqualification on appearance of impropriety without first determining whether
case presented extreme situation; (3) district court exceeded its jurisdiction when it
assigned case to attorney general for prosecution; and (4) district court's appointment of
attorney general to prosecute case could not be rectified by appointing attorney general as
special prosecutor.
Petition granted.
Frankie Sue Del Papa, Attorney General, and Paul S. Lychuk, Deputy Attorney General,
Carson City, for Petitioner.
Rex Bell, District Attorney, Clark County, for Respondents.
Sgro & Perry, Las Vegas; Michael J. Amador, Las Vegas, for Real Party in Interest.
1. Criminal Law.
District court should not have disqualified district attorney's office in criminal prosecution based upon alleged conflict of interest
without conducting evidentiary hearing.
2. Criminal Law.
District court should not have based disqualification of district attorney's office on appearance of impropriety without first
determining whether case presented extreme situation where appearance was so great that public trust and confidence in criminal
justice system could not be maintained without such action.
3. Attorney General; Criminal Law.
District court exceeded its jurisdiction when it disqualified district attorney's office and assigned case to attorney
general for prosecution; district court was not empowered, by statute or state constitution, to assign
prosecution to attorney general upon disqualification of district attorneys.
attorney's office and assigned case to attorney general for prosecution; district court was not empowered, by statute or state
constitution, to assign prosecution to attorney general upon disqualification of district attorneys.
4. Attorney General; District and Prosecuting Attorneys.
Attorney general lacked authority to act as special prosecutor, and thus, district court's employment of attorney general to
prosecute case after disqualifying district attorney's office could not be rectified by appointing attorney general as special prosecutor.
OPINION
Per Curiam:
This petition for writ of prohibition challenges an order of the district court disqualifying
the Clark County District Attorney's Office based on a potential conflict of interest, and
appointing the Attorney General's Office to prosecute the case instead.
1
The Clark County
District Attorney's Office has charged the real party in interest, Tabitha Ladale Morris, with
murder. On June 1, 1992, the date her trial was to begin, defense counsel made an oral motion
to disqualify the Clark County District Attorney's Office based on an alleged conflict of
interest. Defense counsel stated that an investigator for the district attorney's office had
worked for the defense prior to taking employment with Clark County. Defense counsel
argued a conflict existed because the investigator had interviewed defendant as well as
sixteen other potential witnesses.
Despite the district attorney's office's assurances that the investigator had been completely
screened from the case, the district court granted defense counsel's motion without holding an
evidentiary hearing. The court granted the motion based on its concern of an appearance of
impropriety. The court was also concerned that failing to disqualify the district attorney might
create an appealable issue if defendant were convicted.
On June 4, 1992, the district court signed an order disqualifying the Clark County District
Attorney's Office from the case and appointing the attorney general to proceed with the
prosecution. The attorney general objected to the district court's appointment, arguing that the
district court cannot disqualify the district attorney absent an evidentiary hearing. The
attorney general argued further that the district court lacked authority to assign a prosecution
to the attorney general upon the disqualification of the district attorney.
The district court received briefs from the parties concerning the attorney general's
arguments but refused to hold an evidentiary hearing.
__________

1
Although petitioner has requested only a writ of prohibition, we elect to treat this petition as seeking relief
in both prohibition and mandamus.
the attorney general's arguments but refused to hold an evidentiary hearing. The district court
ruled that an evidentiary hearing was unnecessary because a hearing would reveal no new
evidence. The court also ruled that it had authority to assign cases to the attorney general
upon the disqualification of the district attorney's office. The attorney general responded by
filing this petition with this court.
[Headnote 1]
This court has held that disqualifying the district attorney's office without holding an
evidentiary hearing amounted, in essence, to a failure to exercise discretion. Collier v.
Legakes, 98 Nev. 307, 311, 646 P.2d 1219, 1221 (1982). Under Collier, district courts may
only disqualify district attorney's offices after conducting a full evidentiary hearing and
considering all the facts and circumstances. Id. This court also held that disqualification
based on an appearance of impropriety is warranted only in extreme cases where the
appearance is so great that the public trust and confidence in our criminal justice system
could not be maintained without such action. Id. at 310, 646 P.2d at 1221.
[Headnote 2]
Accordingly, the district court should not have disqualified the district attorney's office
without conducting an evidentiary hearing. The district court also should not have based the
disqualification on an appearance of impropriety without first determining whether this case
presented an extreme situation as described in Collier.
[Headnote 3]
Further, the district court exceeded its jurisdiction when it assigned the case to the attorney
general for prosecution. District courts in Nevada are not empowered, by statute or the state
constitution, to assign prosecutions to the attorney general upon disqualification of the district
attorney. See, e.g., Smith v. Superior Court, 422 P.2d 123, 124 (Ariz. 1967). Instead, the
legislature has directed district courts to appoint a special prosecutor to assume the
prosecutorial duties of a disqualified district attorney. NRS 252.100.
[Headnote 4]
We also note that the attorney general lacks authority to act as a special prosecutor. The
legislature defines the powers and duties of the attorney general, Ryan v. District Court, 88
Nev. 638, 642, 503 P.2d 842, 844 (1972), and it has not given the attorney general power to
act as a special prosecutor. Thus, the district court's appointment of the attorney general to
prosecute this case cannot be rectified by appointing the attorney general as special
prosecutor.
cannot be rectified by appointing the attorney general as special prosecutor.
mandamus and prohibition directing the district court to vacate its order and to conduct an
evidentiary hearing consistent with our decision in Collier to determine whether the district
attorney's office should be disqualified. The writ shall also prohibit the district court from
assigning this case to the attorney general should the district court disqualify the district
attorney's office.
____________
108 Nev. 1076, 1076 (1992) Dutt v. Kremp
VIRGIL D. DUTT, Appellant and Cross-Respondent, v. RICHARD E. KREMP, M.D.;
RAYMOND L. SWARTS, M.D.; PAUL S. CLARK, M.D.; and DAVID C.
JOHNSON, M.D., Respondents and Cross-Appellants.
No. 22329
December 22, 1992 844 P.2d 786
Appeal and cross-appeal from an amended judgment of the district court. Second Judicial
District Court, Washoe County; Charles M. McGee, Judge.
Physicians brought abuse of process and malicious prosecution action against patient and
attorney. The district court directed verdict in favor of patient but entered judgment on jury
verdict in favor of physicians against attorney, and attorney appealed. The supreme court,
Mowbray, C. J., held that: (1) determination of probable cause for instituting prior action is a
determination of law; (2) attorney had probable cause for filing medical malpractice action;
(3) attorney acted without malice; and (4) attorney did not act out of any improper purpose.
Steffen and Rose, JJ., dissented.
Opinion withdrawn, Dutt v. Kremp, 109 Nev., Advance Opinion 60 (April 6, 1993).
[Rehearing granted]
Wait & Shaffer, Reno and Lillick & Charles and Tristam B. Brown and James J. Corbelli,
San Francisco, for Appellant/Cross-Respondent.
108 Nev. 1076, 1077 (1992) Dutt v. Kremp
Carl M. Hebert, Reno, for Respondents/Cross-Appellants.
1. Malicious Prosecution.
Elements that must be proved in a malicious prosecution action are a lack of probable cause to commence the prior action, malice,
favorable termination of the prior action, and damages.
When there is no dispute as to the facts upon which the attorney acted in filing prior action, question of whether there was
probable cause to institute the prior action is purely legal question to be answered by the court.
Although trial court erred in submitting issue of probable cause to the jury in malicious prosecution action, where material facts
had been fully developed at trial and were undisputed, remand was not required and the supreme court could resolve that legal question
on appeal.
When facts known by attorney are not in dispute, court considering malicious prosecution action against them must determine
whether, on the basis of those facts, any reasonable attorney would have thought that the institution on the prior action was legally
tenable; standard is an objective one and does not permit the court to consider whether the attorney subjectively believed that the prior
action was legally tenable.
Adequacy of attorney's research prior to bringing prior action is not relevant to determination of probable cause in subsequent
malicious prosecution action, and the attorney is entitled to rely entirely on what his client told him when deciding whether there was
probable cause to file the lawsuit.
Reasonable attorney, relying upon facts learned from reviewing patient's medical records, researching medical literature, and
interviewing patient and his son could have concluded that there was a tenable claim of medical malpractice against physicians, so that
filing of action was not malicious prosecution.
Person may be held liable for malicious prosecution for wrongfully continuing a civil proceeding without probable cause.
Attorney could not be held liable for malicious prosecution for continuing malpractice action where, after receiving letter from
defendant stating that the claim was groundless, attorney submitted the claim to an evaluation service and, after receiving the report,
discontinued the proceedings.
Malice element of malicious prosecution relates to subjective intent or purpose with which defendant acted in initiating the prior
action, and the defendant's motivation is question of fact to be determined by the jury.
Attorney did not act with malice in initiating medical malpractice action where he reviewed the client's file, conducted research,
dismissed the case soon after discovering that it lacked merit, and had interviewed patient's family members and spoken
with an attorney experienced in medical malpractice litigation before instituting the action.
108 Nev. 1076, 1078 (1992) Dutt v. Kremp
patient's family members and spoken with an attorney experienced in medical malpractice litigation before instituting the action.
11. Process.
Abuse of process consists of ulterior purpose other than resolving legal dispute and wilful act in the use of process not proper in
the regular conduct of proceeding; ulterior purpose is any improper motive underlying the issuance of legal process.
12. Process.
Desire to avoid paying fees for what are perceived to be negligent medical services is not an improper motive for filing a lawsuit
and does not give rise to claim for abuse of process.
Finding that attorney filed medical malpractice action for the improper motive of coercing a nuisance settlement was not supported
in view of evidence that attorney dismissed the action shortly after receiving report from evaluation service indicating that the claim
lacked merit and that he made no formal demand for settlement and presented no specific monetary figures.
OPINION
THE FACTS
In the winter of 1985, respondents, physicians affiliated with Saint Mary's Hospital in
Reno, treated Jack Rentnelli for a brain illness. Believing that he had not received proper
medical care from respondents, Rentnelli contacted appellant Virgil Dutt, an attorney, about
bringing a medical malpractice lawsuit.
Appellant and his legal assistant evaluated Rentnelli's claim, interviewing Rentnelli and
his family members, obtaining and reviewing Rentnelli's medical records, and researching
pertinent medical and legal authorities. Appellant also spoke with another attorney,
experienced in medical malpractice litigation, who told him that Rentnelli's claim had merit.
Ultimately concluding that there were grounds to bring a medical malpractice action,
appellant filed a complaint against respondents.
In response to the complaint, appellant received a letter from respondent Dr. David C.
Johnson in which Dr. Johnson vigorously defended the medical treatment given to Rentnelli
and opined that the malpractice claim was groundless. Dr. Johnson also warned appellant that
if Rentnelli should further pursue the claim, he would consider such action to be an abuse of
process and unreasonable litigation.
Appellant answered Dr. Johnson with a letter of his own, in which he replied, I have
become aware that there exist several services which analyze a medical malpractice case
and advise whether or not we are completely off base.
108 Nev. 1076, 1079 (1992) Dutt v. Kremp
services which analyze a medical malpractice case and advise whether or not we are
completely off base. I am in the process of selecting one of these organizations and will be
more than happy to abide by their advice. In accordance with this letter, appellant submitted
the records of Rentnelli's treatment to the Medical Quality Foundation.
On September 11, 1986, the Medical Quality Foundation produced a report concluding
that no provable negligence could be found in respondents' treatment of Rentnelli.
Appellant, with the consent of Rentnelli, then voluntarily dismissed the complaint.
In spite of this dismissal, respondents filed a complaint for malicious prosecution and
abuse of process against appellant and Rentnelli. After a flurry of pre-trial motions, trial
began on August 20, 1990. At the close of respondents' case in chief, Rentnelli and appellant
moved for involuntary dismissals; the trial court granted Rentnelli's motion but denied
appellant's. On August 29, 1990, the jury returned a verdict for respondents, and the district
court entered judgment accordingly.
1
After denying several post-trial motions brought by the
parties, the district court entered an amended judgment on March 7, 1991. This appeal and
cross-appeal followed.
DISCUSSION
I. MALICIOUS PROSECUTION
A. Probable Cause
[Headnote 1]
The elements that must be proved in a malicious prosecution action are the following: (1)
a lack of probable cause to commence the prior action; (2) malice; (3) favorable termination
of the prior action; and (4) damages. See Chapman v. City of Reno, 85 Nev. 365, 455 P.2d
618 (1969). The first question presented in this appeal is whether, as appellant contends, the
trial court erred by refusing to rule on the issue of probable cause.
[Headnote 2]
When there is no dispute as to the facts upon which an attorney acted in filing the prior
action, the question whether there was probable cause to institute the prior action is purely a
legal question to be answered by the court. Bonamy v. Zenoff, 77 Nev. 250, 362 P.2d 445
(1961). In Sheldon Appel Co. v. Albert & Oliker, 765 P.2d 498, 504 (Cal. 1989), the
California Supreme Court offered a persuasive rationale for the requirement that the
court, rather than the jury, determines the existence of probable cause:
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1
The jury awarded $15,000.00 to Dr. Swarts, $5,000.00 to Dr. Johnson, $15,000.00 to Dr. Kremp, and
$5,000.00 to Dr. Clark.
108 Nev. 1076, 1080 (1992) Dutt v. Kremp
Court offered a persuasive rationale for the requirement that the court, rather than the jury,
determines the existence of probable cause:
The question whether, on a given set of facts, there was probable cause to institute an
action requires a sensitive evaluation of legal principles and precedents, a task generally
beyond the ken of lay jurors, and courts have recognized that there is a significant
danger that jurors may not sufficiently appreciate the distinction between a merely
unsuccessful and a legally untenable claim. To avoid improperly deterring individuals
from resorting to the courts for the resolution of disputes, the common law affords
litigants the assurance that tort liability will not be imposed for filing a lawsuit unless a
court subsequently determines that the institution of the action was without probable
cause.
Here, because the facts upon which appellant relied in filing the prior action are undisputed,
the existence of probable cause was a purely legal question which should have been answered
explicitly by the district court. Yet, despite appellant's repeated requests that it rule on the
existence of probable cause, the district court refused to take the issue from the jury. Instead,
the district court submitted the issue to the jury, as evidenced by the following jury
instruction:
In a malicious prosecution action against an attorney, the test for probable cause is
an objective one. Significant issues include what facts were known to the attorney, and
whether those facts made the lawsuit tenable. The attorney's subjective belief as to the
merits of the case is relevant and admissible on the issue of malice.
We hold that the district court erred in submitting the issue of probable cause to the jury.
[Headnote 3]
Nevertheless, because the existence of probable cause is a purely legal question and the
material facts have been fully developed in the trial court and are undisputed, we need not
remand this matter to the district court for a determination. See Nyberg v. Kirby, 65 Nev. 42,
67-68, 188 P.2d 1006, 1018 (1948), reh'g denied, 65 Nev. 78, 193 P.2d 850 (1948). Instead,
we shall resolve the determinative legal question here on appeal. See Pink v. Busch, 100 Nev.
684, 691 P.2d 456 (1984).
[Headnotes 4, 5]
This court has not yet enunciated a test for determining whether the facts known to the
attorney constitute probable cause for filing the underlying action.
108 Nev. 1076, 1081 (1992) Dutt v. Kremp
for filing the underlying action. After considering the approaches of other jurisdictions, we
have concluded that the test set forth by the California Supreme Court in Sheldon Appel Co.
is most appropriate. Under this test, when the facts known by the attorney are not in dispute,
the court must determine whether, on the basis of these facts, any reasonable attorney would
have thought that the institution of the prior action was legally tenable. Sheldon Appel Co.,
765 P.2d at 511 (emphasis added). The standard is an objective one; it does not permit the
court to consider whether the attorney subjectively believed that the prior action was legally
tenable. Moreover, the adequacy of an attorney's research is not relevant to the probable cause
determination, id. at 510, and an attorney is entitled to rely entirely on what his client told
him when deciding whether there is probable cause to file a lawsuit. Lucero v. Stewart, 892
F.2d 52, 54 (9th Cir. 1989) (construing Sheldon Appel Co.). We adopt the Sheldon Appel Co.
test for our jurisdiction, and, in doing so, we reaffirm the principle that an attorney's role is to
facilitate access to our judicial system for any person seeking legal relief.
[Headnotes 6-8]
We conclude that, under the Sheldon Appel Co. test, a reasonable attorney, relying upon
facts learned from reviewing Rentnelli's medical records, researching medical literature, and
interviewing Rentnelli and his son, could have concluded that a tenable claim of medical
malpractice existed against respondents.
2

B. Malice
As noted above, malice is an element of a cause of a malicious prosecution action.
Although the existence of probable cause is fatal to respondents' malicious prosecution claim,
we believe that a discussion of malice would be useful to the parties, our lower courts and our
practitioners.
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2
A person may also be held liable for malicious prosecution for wrongfully continuing a civil proceeding
without probable cause. Nelson v. Miller, 607 P.2d 438, 443 (Kan. 1980). This theory was presented to the jury
below, and respondents contend that the jury's verdict can be sustained on the basis of this theory.
We disagree. The evidence adduced below does not support a finding against appellant on this theory.
Appellant received the Medical Quality Foundation's report on September 16, 1986, and the very next day, he
prepared a stipulation for dismissal. Moreover, after receiving the report, appellant neither initiated further
proceedings in the case nor conveyed any formal settlement demands to respondents. In our view, this evidence
conclusively shows that appellant discontinued the proceedings once he learned that there was no probable cause
for Rentnelli's malpractice claim.
108 Nev. 1076, 1082 (1992) Dutt v. Kremp
Appellant contends that there was insufficient evidence to support the jury's findings that
he acted with malice and that therefore his motion for judgment notwithstanding the verdict
should have been granted. According to appellant, the record contains no evidence suggesting
that he sought anything other than a full adjudication of Rentnelli's claim. Moreover,
appellant submits, the absence of malice is demonstrated by his dismissal of the malpractice
action when he became convinced that there was no basis for the lawsuit. We are persuaded
by appellant's argument.
[Headnote 9]
The malice element of malicious prosecution relates to the subjective intent or purpose
with which the defendant acted in initiating the prior action; and the defendant's motivation is
a question of fact to be determined by the jury. Sheldon Appel Co., 765 P.2d at 503. The
Restatement (Second) of Torts 676 (1977) defines the malice element as propriety of
purpose:
To subject a person to liability for wrongful civil proceedings, the proceedings must
have been initiated or continued primarily for a purpose other than that of securing the
proper adjudication of the claim on which they are based.
Under the Sheldon Appel Co. formula, the extent of a defendant attorney's investigation and
research is relevant to the question of whether the attorney acted with malice. Sheldon Appel
Co., 765 P.2d at 510.
We find the record bereft of direct evidence from which the jury could conclude that
appellant acted with malice. As respondents correctly observe, however, malice may be
inferred from proof showing a lack of probable cause. See Chapman, 85 Nev. at 369, 455
P.2d at 620. Even so, we believe that to infer malice from the evidence showing a lack of
probable cause, the defendant's pre-filing behavior must have been clearly unreasonable. See
Grindle v. Lorbeer, 242 Cal.Rptr. 562 (Cal.Ct.App. 1987).
In Grindle, before filing the underlying lawsuit for negligent operation of a golf cart, the
defendant attorney reviewed a file and a memo prepared by a law clerk summarizing the facts
of the case; the attorney also relied on his own knowledge of golf carts. Although the court
concluded that the attorney might have been careless, it also concluded that the research was
adequate and that there was no evidence of indifference or malice. Id. at 566. In addition, the
court declined to infer malice because the attorney dismissed the case almost immediately
after determining that it lacked merit. The court concluded that the attorney's conduct was
consistent with a finding that he filed the lawsuit in the good faith belief that it had merit, and
discontinued it upon realizing that it lacked merit. Id.
108 Nev. 1076, 1083 (1992) Dutt v. Kremp
[Headnote 10]
Like the defendant attorney in Grindle, appellant in the present case reviewed his client's
file, conducted research and dismissed the case soon after discovering that it lacked merit.
Appellant also interviewed Rentnelli's family members and spoke with an attorney
experienced in medical malpractice litigation. If anything, appellant's investigation was more
thorough than that of the attorney in Grindle. Thus, we hold that the evidence does not
support an inference that appellant acted with malice.
II. Abuse of Process
At the close of trial, appellant moved for a directed verdict and for judgment
notwithstanding the verdict or, in the alternative, for a new trial on the grounds that there was
no evidence to support a verdict in favor of respondents on their abuse of process claim. The
trial court denied these motions, and appellant contends that the court erred in doing so. We
agree with appellant.
[Headnote 11]
An abuse of process claim consists of two elements: (1) an ulterior purpose other than
resolving a legal dispute, and (2) a willful act in the use of process not proper in the regular
conduct of the proceeding. Kovacs v. Acosta, 106 Nev. 57, 787 P.2d 368 (1990). An ulterior
purpose is any improper motive underlying the issuance of legal process. Laxalt v.
McClatchy, 622 F.Supp. 737, 751 (D.Nev. 1985). At trial, respondents assigned two improper
motives to appellant.
[Headnote 12]
Respondents first argued that appellant and Rentnelli filed the malpractice action in an
effort to avoid paying the bill for medical services provided by respondents. In our view,
however, the evidence marshalled by respondents in support of this argument is not
persuasive. Moreover, as appellant correctly contends, a desire to avoid paying fees for what
are, at the time, perceived to be negligent medical services is not an improper motive. Finally,
this improper motive, if it existed at all, was more Rentnelli's than appellant's and, as noted
above, the trial court granted Rentnelli's motion for involuntary dismissal.
[Headnote 13]
Respondents also asserted that appellant filed the malpractice action to coerce a nuisance
settlement. See Bull v. McCuskey, 96 Nev. 706, 615 P.2d 957 (1980), overruled in part on
other grounds by Ace Truck v. Kahn, 103 Nev. 503, 746 P.2d 132 (1987). According to
respondents, this improper motive was demonstrated by appellant's attempt, after obtaining
the Medical Quality Foundation's report, to negotiate a settlement with the lawyer for one of
the respondents.
108 Nev. 1076, 1084 (1992) Dutt v. Kremp
lawyer for one of the respondents. Again, however, we find respondents' evidence
unconvincing. Unlike the defendant attorney in Bull, appellant made no formal demand for
settlement and presented no specific monetary figures. Indeed, appellant dismissed the
complaint shortly after receiving the Medical Quality Foundation's report. Thus, we conclude
that there is insufficient evidence to support a finding that appellant filed the malpractice
action to coerce a nuisance settlement.
Because we hold that appellant harbored no ulterior purpose other than resolving
Rentnelli's apparent malpractice dispute with respondent, we need not consider the second
element of an abuse of process claim, namely, whether appellant engaged in a willful act in
the use of process not proper in the regular conduct of the proceeding.
3

The dissenting author's advocacy on behalf of the medical establishment, while
characteristically turgid, is laudable, as are his past efforts on behalf of gaming concerns,
business and industry, and assorted insurance companies. One is nigh moved to tears by these
chronicles of destitution, misery and exploitation of the privileged few by the wicked little
people.
Mr. Justice Steffen, the world is not as you see it. I remind you that all personsnot just
society's winnersare equal before the judicial courts of this land. I also urge you to open
your eyes to the practical consequences of your rarefied legal analysis; People suffer unjustly
when they are fired from their jobs for little or no reason or when they are denied insurance
coverage based on an arcane reading of some hidden policy exclusion. With respect to the
rule you advocate today, it would undoubtedly discourage ordinary citizens from bringing a
civil wrong to a court's attention or, for that matter, reporting criminal conduct. Finally, I
suggest to you that the judicial task requires far more than sterile analytic skill; one needs
compassion, humility, grace and, at times, mercy and the ability to forgive. In short, the
judicial craft, as well as the law itself, demands a heart.
CONCLUSION
For the reasons set forth above, we reverse the judgment entered below, and we remand
this case to the district court for entry of judgment in favor of appellant.
Young, J., concur.
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3
On the cross-appeal, respondents contend that the district court erred both in denying their motion to pass
Rentnelli's costs on to appellant and in rejecting their amended memorandum of costs. These contentions are
now moot, given that respondents, because of our reversal of the judgment entered below, are no longer the
prevailing parties.
108 Nev. 1076, 1085 (1992) Dutt v. Kremp
I have heretofore filed an order, ordering that the clerk strike my name from the majority
opinion filed in this case because Chief Justice Mowbray altered the original without my
knowledge and inserted offensive material critical of Justice Thomas Steffen with which I
strongly disagree. I agree with the decision of the plurality of Justices Mowbray and Young;
hence, I concur in the result of that opinion only and not with the opinion itself.
Steffen, J., with whom Rose, J., agrees, dissenting:
I am persuaded that the trial evidence supports the verdict reached by the jury and that the
result and substance of the majority opinion are incorrect. I am therefore constrained to
dissent.
If we were reviewing a judgment against a member of the medical profession for medical
malpractice on equivalent facts, I have no doubt that the judgment would be upheld. Consider
our hypothetical physician who, after listening to the complaints of a patient, reaches a
diagnosis in an area outside his or her area of expertise without even performing a meaningful
medical evaluation. Moreover, our hypothetical physician disdains a consultation, deciding to
forge ahead on the basis of an unconfirmed suspicion derived almost entirely from the
verbalized complaints of the patient. Finally, the uninformed physician performs unnecessary
and unsuccessful surgery. Accountability for medical malpractice under those circumstances
would be both predictable and justified.
In the instant case, attorney Dutt filed a thoroughly inadequate complaint against numerous
doctors and a hospital two days before the effective date of a statute that would have required
Dutt to file a complaint with a medical-legal screening panel.
1
The purpose for which the
screening panel procedure was enacted is to discourage or minimize the filing of medical
malpractice actions that are lacking in merit. The benefits of such a screening procedure are
obvious: lower medical malpractice insurance rates (insurance costs are always passed on to
the patients), less diversion of limited medical resources to defend against unwarranted
litigation, enlightenment to attorneys inexperienced in complex medical malpractice cases,
and a decreased toll on physicians and their reputations that would otherwise result from
unmeritorious malpractice actions, to name but a few. According to attorney Dutt, the instant
action was the first time he had ever filed a civil complaint for medical malpractice.
__________

1
Dutt was not faced with a statute of limitations problem at the time he filed Rentnelli's complaint.
108 Nev. 1076, 1086 (1992) Dutt v. Kremp
Prior to filing the complaint, Dutt assigned a law school graduate who worked for him to
read the medical records and evaluate them with him. Dutt testified that he relied on the law
school graduate's opinions and recommendations as to what was in the [medical] records and
how to interpret them.
2
Dutt contacted no physicians prior to filing the complaint. He did
not even bother to contact the physicians who succeeded the respondent physicians in caring
for his client. Moreover, at no time prior to filing the complaint did he have a qualified health
care provider or physician review the medical records to determine whether a cause of action
for medical malpractice existed. In short, there had been no responsible preparation
undertaken to determine whether malpractice had occurred before Dutt filed the complaint.
Additionally, Dutt was irresponsible in his response to discovery, denying requests for
admissions instead of forthrightly admitting the truth of the requests. As a result, respondent
physicians' counsel was forced to depose a California physician, Dr. Domz, whom Dutt
identified as having information concerning the respondent physicians' negligence. Dutt did
not even bother to appear at the taking of Dr. Domz's deposition. Moreover, Dr. Domz, who
testified during his deposition that he had no criticism of respondent physicians' treatment of
Dutt's client, had never been contacted by Dutt, either before Dutt prepared the answer to
interrogatory noted above for his client's signature, or at any time thereafter. Furthermore,
almost two months after Dr. Domz was deposed, Dutt wrote Al Pagni, attorney for three of
the respondent physicians, and informed him that he had told Dr. Kremp's attorney that he
would not dismiss the action until after the depositions came back in the event that Dr.
Domz did suggest that the treatment did not meet the standard of care that one should expect
from this area. Although Dutt did not have sufficient belief that Dr. Domz would testify
negatively about the respondent physicians to prompt him to undertake the expense of
attending the California physician's deposition, he clearly hoped that something might turn up
that would provide a liability peg on which to hang his hat.
Finally, with no medical evidence, testimony or evaluation that would support his cryptic
complaint against the Reno team of physicians, Dutt still attempted to effectuate a
nuisance settlement with attorney Osborne, counsel for Dr.
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2
The majority opinion states that Dutt spoke with an attorney experienced in medical malpractice
litigation, prior to filing the action, who told him that Rentnelli's claim had merit. I find no evidence in the
record to support such an assumption. The record simply reflects testimony by Dutt, over his counsel's objection,
that he talked to an attorney (the name of the attorney was given, but there was no testimony concerning his
experience, if any, in the area of medical malpractice) who told him Rentnelli's case had merit.
108 Nev. 1076, 1087 (1992) Dutt v. Kremp
would support his cryptic complaint against the Reno team of physicians, Dutt still attempted
to effectuate a nuisance settlement with attorney Osborne, counsel for Dr. Kremp.
Doubly troubling in this case is the fact that it appears from the record that the respondent
doctors were especially vigilant and effective in their treatment and care of Dutt's client
despite Dutt's flippant testimony at trial ascribing their successful and difficult diagnosis to
luck. In fine, it appears that the physicians sued by Dutt effectively and skillfully applied their
expertise and care in treating Dutt's client, and were rewarded by the filing of Dutt's
ill-advised and desultory complaint.
On these facts, it is little wonder that the respondent physicians insisted on having their
efforts and their reputations vindicated in a trial against their uninformed, precipitant
tormentor, attorney Dutt. I suggest that there is also little cause to wonder why the jury
provided the respondent physicians with the vindication they sought from the civil justice
system.
If society is to have any confidence in the legal system and the administration of justice
within our courts, there must be an accountability for derelict lawyers that is equal to the level
of accountability we impose on derelict physicians and other professionals. As I view this
record, the evidence strongly supports the jury's findings against Dutt. Plainly stated, the jury,
by its verdict, announced that lawyers are not privileged to assail the reputation of physicians
in court and subject them to the trauma and cost of a lawsuit with its concomitant attenuation
of professional standing without reasonable cause.
Turning not to certain aspects of the majority's legal analysis, I note first my disagreement
with the majority's conclusions regarding probable cause and the role it played in this case.
The majority endorses for adoption in Nevada the probable cause rule announced in Sheldon
Appel Co. v. Albert & Oliker, 765 P.2d 498 (Cal. 1989). With due respect to the California
Supreme Court, I do not find its reasoning either sound or persuasive on the point. In
adopting an objectively tenable standard for determining probable cause, the Sheldon Appel
Co. court concluded that the adequacy of an attorney's research is not relevant to the
probable cause determination. Id. at 510. In so ruling, the California court disapproved
dictum in Tool Research & Engineering Corp. v. Henigson, 120 Cal.Rptr. 291 (Ct.App.
1975), to the effect that an attorney's reasonable investigation and industrious search of legal
authority is an essential component of probable cause. Id. at 509.
It appears to me that the Sheldon Appel Co. rule is in essence a rule of happenstance. In
other words, if, in evaluating the issue of probable cause, a court concludes that the action
was objectively tenable when filed, then there is a proper basis for finding probable cause
for filing the action despite a provable condition of complete ignorance on the part of the
plaintiff's attorney regarding the merits of the action when the complaint was filed.
108 Nev. 1076, 1088 (1992) Dutt v. Kremp
probable cause, a court concludes that the action was objectively tenable when filed, then
there is a proper basis for finding probable cause for filing the action despite a provable
condition of complete ignorance on the part of the plaintiff's attorney regarding the merits of
the action when the complaint was filed. I am of the opinion that the objectively tenable
rule adopted in Sheldon Appel Co. tends to reward indolence, ignorance, indifference or
exploitiveness by focusing on the ability of the defendant attorney and his counsel to produce,
after the fact, a semblance of objective tenability that would satisfy the probable cause
standard of the California court.
I am persuaded that the rule embraced by the Supreme Court of Arizona in Bradshaw v.
State Farm Mut. Auto. Ins., 758 P.2d 1313 (Ariz. 1988), is more appropriate. Holding that the
test for probable cause is both subjective and objective, the Bradshaw court stated that [t]he
initiator of the action must honestly believe in its possible merits; and, in light of the facts,
that belief must be objectively reasonable. Id. at 1319 (citing Haswell v. Liberty Mutual
Insurance Co., 557 S.W.2d 628, 633 (Mo. 1977)); Restatement 675 comment c; PROSSER
& KEETON ON THE LAW OF TORTS (5th ed. 1984) 120, at 893 (emphasis in original
text).
Under the Bradshaw view, an inexperienced attorney's failure to research, consult,
interview and meaningfully prepare before filing a complaint would be relevant in
determining whether the attorney could have entertained an honest belief in the possible
merits of his or her client's cause of action. Moreover, the second prong of the Bradshaw test
requires that the attorney's honest belief be objectively reasonable. The latter test thus
becomes a form of validation of the former. Assuming the attorney has a modicum of legal
ability that has been adequately focused on meaningful research and evaluation, it is logical to
expect that the attorney's honest belief regarding the merits of the client's cause of action will
be endowed with an aspect of objective reasonability.
3

Moreover, at least in the more esoteric and complex areas of litigation, such as medical
malpractice, I disagree with both the majority and the Sheldon Appel Co. court in concluding
that an attorney is entitled to rely entirely on what the client has said in determining
whether there is probable cause to file an action.
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3
I note, as did the Bradshaw court with regard to the Arizona rule, that the subjective-objective test is
consonant with NRCP Rule 11 which forbids the filing of groundless actions by requiring an attorney to certify,
by his or her signature, that he or she has read the pleading . . . [and] that to the best of his or her knowledge,
information and belief, formed after reasonable inquiry under the circumstances obtaining at the time of the
signature, that it is well grounded in fact and is warranted by existing law . . . and that it is not interposed for
any improper purpose. . . .
108 Nev. 1076, 1089 (1992) Dutt v. Kremp
attorney is entitled to rely entirely on what the client has said in determining whether there is
probable cause to file an action. A client may, without any knowledge of the adequacy of his
or her medical treatment, tell the attorney that the physician negligently treated him,
describing the basis for his or her opinion. An attorney inexperienced in medical malpractice
litigation may be as ignorant as the client with respect to the quality of the medical services
provided by the client's physician. Under the view espoused by the majority, the uninformed
attorney need not look beyond the client's perspective in determining whether there is
probable cause to file a lawsuit. I believe such a view denigrates both the legal profession and
the lawyers within the profession who are expected to apply enlightened understanding and
analysis to a client's problems and concerns. See Nelson v. Miller, 607 P.2d 438, 448 (Kan.
1980).
If a client describes a simple battery to his or her attorney, it could be argued that the
attorney may have probable cause to file an action against the alleged tortfeasor on the basis
of what appears to be an honest factual recital by the client. In such a case, it is at least
arguable that the rule adopted by the majority might be justified. In most medical malpractice
cases, however, research and diligent inquiry and preparation are essential to an honest
conclusion that probable cause exists for the filing of a complaint. I therefore take issue with
the blanket rule adopted by the majority in the instant case.
4

I fully agree with both the Sheldon Appel Co. and Bradshaw courts that when the operative
facts are not in dispute, the issue of probable cause is an issue of law to be decided by the
court. I also agree with the Bradshaw ruling that when the operative facts are in dispute, the
trial court may, by special verdict form or by a hypothetical jury instruction, provide guidance
to the jury as to what facts will constitute probable cause. Bradshaw, 758 P.2d at 1321.
The majority concludes, and I agree, that the operative facts in this case are not in dispute
and that the district court should have ruled on the issue of probable cause as a matter of law.
Based upon my review of the record, however, I must agree with respondents that the district
court impliedly ruled in their favor on the issue of probable cause. The issue was fully
discussed by the parties at trial, and the trial judge refused to grant an NRCP 41{b) motion
to dismiss at the conclusion of plaintiffs' case, ruling that plaintiffs had "made out a prima
facia case."
__________

4
NRS 41A.016 now requires all medical malpractice complaints to be filed in the first instance with a
screening panel for a determination on the merits. The complaint so filed must contain a clear and concise
statement of the facts and other circumstances relevant to the alleged malpractice. As a salutary consequence, the
prospects for recurring actions of the type presented by the instant case should be minimized.
108 Nev. 1076, 1090 (1992) Dutt v. Kremp
the parties at trial, and the trial judge refused to grant an NRCP 41(b) motion to dismiss at the
conclusion of plaintiffs' case, ruling that plaintiffs had made out a prima facia case. The
trial judge also rejected Dutt's motion for a directed verdict at the conclusion of the evidence.
In any event, my review of the record leads me to conclude, contrary to the majority's
determination, that as a matter of law, Dutt did not have probable cause to file the lawsuit
even under the Sheldon Appel Co. standard. I have previously recounted the numerous
derelictions surrounding the filing of the complaint and will only observe here that if, as the
majority concludes, there was probable cause for Dutt's lawsuit, there would appear to be
little basis for ever holding attorneys legally accountable for the filing of frivolous medical
malpractice claims.
Needless to say, I also disagree with the majority's ruling on the issue of malice. A jury
may infer malice from an absence of probable cause, Nelson, 607 P.2d at 445, and as
previously observed, I find ample evidence in the record undermining the majority's
recognition of probable cause. Moreover, I again emphasize that in my view, there is no basis
for concluding that Dutt's pre-filing behavior and preparation were reasonable. In any event,
the record as I read it, provides ample support for the jury's finding of malice.
I suggest that the record also provides a factual basis for liability resulting from abuse of
process. Dutt's attempt to secure a settlement after he was thoroughly disabused of the
possibility of negligence on the part of respondents is discounted by the majority because the
settlement attempt was unadorned by a formal demand or a specific monetary figure. I
am unable to discern in the majority's characterization of the evidence any basis for casting
aside the jury's verdict.
For the reasons abbreviated above, I would endorse the jury's verdict and affirm the
judgment entered pursuant thereto. I therefore respectfully dissent.
____________
108 Nev. 1091, 1091 (1992) Hinegardner v. Marcor Resorts
FORREST DEAN HINEGARDNER, Appellant, v. MARCOR RESORTS, L.P. V., a Nevada
Limited Partnership d/b/a RIO SUITE HOTEL & CASINO; RIO SUITE HOTEL &
CASINO; THE MIRAGE CASINO-HOTEL, a Nevada Corporation d/b/a THE
MIRAGE CASINO-HOTEL; THE MIRAGE CASINO-HOTEL; P & W, INC., d/b/a
EDDIE'S; and EDDIES, Respondents.
No. 22764
December 22, 1992 844 P.2d 800
Appeal from an order of the district court granting respondents' motion to dismiss. Eighth
Judicial District Court, Clark County; John S. McGroarty, Judge.
Automobile passenger who was injured in collision with automobile driven by intoxicated
minor brought negligence action against vendors who sold alcohol to minor. The district
court granted vendors' motion to dismiss, and passenger appealed. The supreme court, Young,
J., held that: (1) act of selling intoxicating beverage is too remote to serve as proximate cause
of an injury resulting from the negligent conduct of the purchaser of the drink, and (2) in the
absence of evidence of a legislative intent to impose civil liability, a violation of a penal
statute is not negligence per se.
Affirmed.
Steffen, J., and Mowbray, C. J., dissented.
Brent A. Leavitt, Las Vegas, for Appellant.
Vargas & Bartlett, and Christopher Kaempfer, Las Vegas, for Respondents Marcor and
L.P. V.
Carolyn Ellsworth and William Werner, Las Vegas, for Respondent Mirage.
Barker, Gillock, Koning, Brown & Earley, and Bruce S. Dickinson, Las Vegas, for
Respondents P & W and Eddies.
Act of selling intoxicating beverage is too remote to serve as proximate cause of injury resulting from negligent conduct of
purchaser of drink.
2. Courts.
State's status as minority jurisdiction on issue of whether act of selling intoxicating beverage can serve as proximate
cause of injury resulting from negligent conduct of purchaser of drink does not constitute rational basis to
overturn long line of supreme court precedent.
selling intoxicating beverage can serve as proximate cause of injury resulting from negligent conduct of purchaser of drink does not
constitute rational basis to overturn long line of supreme court precedent.
3. Negligence.
In absence of evidence of legislative intent to impose civil liability, violation of penal statute is not negligence per se.
4. Action; Intoxicating Liquors.
Legislature's failure to add civil liability component to penal statute dealing with selling alcohol to minors indicates that legislature
did not intend to impose civil liability for violations of statute. NRS 202.055.
Only legislative mandate should create civil liability for vendors who serve alcohol to minors.
OPINION
By the Court, Young, J.:
THE FACTS
On the evening of February 24, 1990, Lyndon J. Thomason (Thomason), a minor,
consumed alcohol at respondents' establishmentsThe Mirage Casino-Hotel; Rio Suite Hotel
& Casino, and Eddie's, a bar. Appellant, Forrest Dean Hinegardner (Hinegardner), alleged
that respondents, Marcor Resorts, L.P. V., a Nevada Limited Partnership d/b/a Rio Suite
Hotel & Casino; Rio Suite Hotel & Casino; The Mirage Casino-Hotel, a Nevada Corporation
d/b/a/ The Mirage Casino-Hotel; The Mirage Casino-Hotel; P & W, Inc., d/b/a Eddie's; and
Eddies (Vendors) allowed Thomason to loiter, occupy and remain in their establishments
and that Vendors' employees served Thomason alcohol without asking him for a valid
identification.
Thereafter, Thomason, under the influence of alcohol, drove his car on U.S. Highway 95
in Las Vegas. Near the intersection of Rainbow Boulevard, Thomason's car collided with a
car in which Hinegardner was a passenger. The accident injured Hinegardner and several
others.
On June 11, 1991, Hinegardner filed an amended complaint alleging negligence and
negligence per se claims against Vendors. In the amended complaint, Hinegardner alleged
that shortly before the accident, Vendors negligently sold or offered alcoholic beverages to
Thomason, a minor. Hinegardner maintains that as a result of Vendors' illegal and negligent
acts, Thomason drove his car while intoxicated and, thus, caused the automobile accident.
Vendors filed a motion to dismiss pursuant to NRCP 12(b)(5) on the grounds that Nevada
case law provided no redress against sellers or furnishers of alcoholic beverages for
resulting injuries or damages caused by the acts of intoxicated persons.
sellers or furnishers of alcoholic beverages for resulting injuries or damages caused by the
acts of intoxicated persons. The district court, without writing an opinion, granted the
12(b)(5) motion. Hinegardner appealed.
The issue on appeal is whether this court should change existing Nevada case law to
recognize a claim for relief against one furnishing liquor to a minor in favor of those injured
as a consequence of the minor's intoxication.
DISCUSSION
[Headnote 1]
At common law, courts refused to recognize a cause of action arising out of the sale or
furnishing of intoxicating beverages. The rationale underlying this refusal was that
individuals, drunk or sober, were responsible for their own torts. The courts held that drinking
the intoxicant, not furnishing it, was the proximate cause of the injury. In other words, the
common law considers the act of selling the intoxicating beverage as too remote to serve as
the proximate cause of an injury resulting from the negligent conduct of the purchaser of the
drink. Nevada subscribes to the common law rule.
In 1969, we addressed this issue in Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450
P.2d 358 (1969). In Hamm, heirs of pedestrians who were killed by a drunken driver brought
an action against the alcohol provider. We affirmed the district court's summary judgment in
favor of the alcohol provider.
In Hamm we adopted the common law rule of non-liability after carefully considering the
law in other jurisdictions, the arguments on both sides and the serious social policy concerns
inherent in this issue. Id. at 100-02, 450 P.2d at 359-60. This court concluded that if civil
liability were to be imposed upon commercial alcohol vendors, it should be accomplished by
legislative act after appropriate surveys, hearings, and investigations. Id. at 101, 450 P.2d at
359. In Hamm, we also rejected the argument that the violation of penal statute NRS 202.055,
regulating the sale of alcohol to minors, constituted negligence per se. Id. at 102, 450 P.2d at
360.
We reaffirmed Hamm in Yoscovitch v. Wasson, 98 Nev. 250, 645 P.2d 975 (1982); Bell v.
Alpha Tau Omega, 98 Nev. 109, 642 P.2d 161 (1982); Van Cleave v. Kietz-Mill Minit Mart,
97 Nev. 414, 633 P.2d 1220 (1981); Davies v. Butler, 95 Nev. 763, 602 P.2d 605 (1979);
Mills v. Continental Parking Corp., 86 Nev. 724, 475 P.2d 673 (1970).
On appeal, Hinegardner forwards several arguments to support his contention that this
court should no longer adhere to the common law rule of non-liability for commercial
alcohol vendors.
common law rule of non-liability for commercial alcohol vendors.
First, Hinegardner argues that the modern trend in other jurisdictions is to allow an
injured party to assert a claim against a vendor. Hinegardner also produces a laundry list of
eighteen cases representing fifteen different jurisdictions that purportedly adopted the
modern trend.
Second, Hinegardner argues that the modern trend of authorities also recognize [sic] a
negligence per se claim against a vendor for violation of penal statutes regulating the sale of
alcohol to minors. He states that Vendors violated a penal statute when they furnished
Thomason with alcohol. Hinegardner further contends that violation of the penal statute
constituted negligence per se. Hinegardner then provides another list of twenty-four cases
representing twenty different jurisdictions that allegedly provide a negligence per se cause of
action for violations of penal statutes prohibiting the sale of alcohol to minors.
Third, Hinegardner contends that the change in Nevada case law can be accomplished by
this court, rather than the legislature because the common law rule was court created.
Vendors counter with several arguments to persuade the court to adhere to the common
law rule.
First, Vendors reject the argument that a new trend favoring vendor liability has
emerged in other jurisdictions. Vendors state that of all the jurisdictions Hinegardner cites as
representing the new trend, seventeen of those jurisdictions reached decisions prior to 1982.
Thus, Vendors conclude that this court was cognizant of each of these decisions when
Yoscovitch was handed down and [the court] declined to follow them.
Second, Vendors assert that we should not create a negligence per se action because this
court in Hamm, Davies, Bell, and Yoscovitch, continually declined to recognize the violation
of a penal statute as negligence per se.
Third, Vendors assert that the issue of commercial alcohol vendor liability is better left to
the legislature. The legislature, Vendors maintain, is more suitably equipped to discuss,
debate and analyze the political, economic and social concerns inherent in this topic.
After an independent evaluation of the law, we feel constrained to affirm the district
court's ruling. We are not convinced by Hinegardner's new trend argument.
First, Hinegardner's new trend analysis is somewhat overstated. An independent
examination of the cases that Hinegardner includes in his new trend analysis demonstrates
that only Arizona, Colorado, North Carolina, Oklahoma, Pennsylvania, Wisconsin, and
Wyoming abandoned the common law position after 19S2.1 All of the other cases
Hinegardner cites were either decided before 19S2, reaffirmed pre-19S2 precedent, or
applied civil liability statutes.2 As vendors correctly point out, a number of states such as
Alabama, Arkansas, Delaware, Kansas, Maryland, Nebraska, and Virginia still continue to
adhere to the common law rule.
after 1982.
1
All of the other cases Hinegardner cites were either decided before 1982,
reaffirmed pre-1982 precedent, or applied civil liability statutes.
2
As Vendors correctly point
out, a number of states such as Alabama, Arkansas, Delaware, Kansas, Maryland, Nebraska,
and Virginia still continue to adhere to the common law rule.
[Headnote 2]
Therefore, we conclude that although a majority of jurisdictions no longer follows the
common law rule, Nevada's status as a minority jurisdiction does not constitute a rational
basis to overturn a long line of Nevada Supreme Court precedent. Indeed, the fact that other
jurisdictions continue to follow the common law reminds us of the observation we made in
Hamm: Whatever choice we make for Nevada is supportable by case authority elsewhere.
Hamm, 85 Nev. at 100, 450 P.2d at 359.
[Headnotes 3, 4]
Second, we note that in the absence of evidence of legislative intent to impose civil
liability, a violation of a penal statute is not negligence per se.
__________

1
The new trend cases Hinegardner cites include: Brannigan v. Raybuck, 667 P.2d 213 (Ariz. 1983)
(Brannigan was superseded by a dramshop statute in 1989. See Ariz.Rev.Stat.Ann. 4-311-12 (1989 & Supp.
1990)); Largo Corp. v. Crespin, 727 P.2d 1098 (Colo. 1986); Freeman v. Finney, 309 S.E.2d 531 (N.C. 1983);
Brigance v. Velvet Dove Restaurant Inc., 756 P.2d 1232 (Okla. 1988); Matthews v. Konieczny, 527 A.2d 508
(Pa. 1987); Sorenson v. Jarvis, 350 N.W.2d 108 (Wis. 1984) (Sorenson was superseded by a dram shop statute
in 1985. See Wis.Stat.Ann. 125.035 (West 1985)); McClellan v. Tottenhoff, 666 P.2d 408 (Wyo. 1983).

2
Cases decided before 1982: Alesna v. LeGrue, 614 P.2d 1387 (Alaska 1980); Vesley v. Sager, 486 P.2d
151 (Cal. 1971); Marusa v. District of Columbia, 484 F.2d 828 (D.C. Cir. 1973); Ono v. Applegate, 612 P.2d
533 (Haw. 1980); Elder v. Fisher, 217 N.E.2d 847 (Ind. 1966); Lewis v. State, 356 N.W.2d 181 (Iowa 1977);
Pike v. George, 434 S.W.2d 626 (Ky. 1968); Trail v. Christian, 213 N.W.2d 618 (Minn. 1973); Munford v.
Peterson, 368 So.2d 213 (Miss. 1979); Rappaport v. Nichols, 156 A.2d 1 (N.J. 1959); Mason v. Roberts, 294
N.E.2d 884 (Ohio 1973); Campbell v. Carpenter, 566 P.2d 893 (Or. 1977); Jardine v. Upper Darby Lodge No.
1973, 198 A.2d 550 (Pa. 1964); Brookins v. Round Table, Inc., 624 S.W.2d 547 (Tenn. 1981); Yost v. State,
640 P.2d 1044 (Utah 1981); Callan v. O'Neil, 578 P.2d 890 (Wash. 1978).
Cases that reaffirmed pre-1982 precedent: Morris v. Farley Enters., Inc., 661 P.2d 167 (Alaska 1983)
reaffirming Nazareno v. Urie, 638 P.2d 671 (Alaska 1981); Bryant v. Alpha Entertainment Corp., 508 So.2d
1094 (Miss. 1987), reaffirming Munford v. Peterson, 368 So.2d 213 (Miss. 1979); Purchase v. Meyer, 737 P.2d
661 (Wash. 1987), reaffirming Callan v. O'Neil, 578 P.2d 890 (Wash. 1978).
Cases that applied civil statutes: Floyd v. Bartley, 727 P.2d 1109 (Colo. 1986); Saint Hill v. Tabor, 542
So.2d 499 (La. 1989); Longstreth v. Gensel, 377 N.W.2d 804 (Mich. 1985); Bissett v. D.M.I., Inc., 717 P.2d
545 (Mont. 1986); Huston v. Konieczny, 556 N.E.2d 505 (Ohio 1990).
negligence per se. Bell v. Alpha Tau Omega, 98 Nev. 109, 642 P.2d 161 (1982). In 1987, the
legislature amended the penal statute which Vendors allegedly violated, NRS 202.055. As
Vendors properly assert, in 1987 the legislature could have added a civil liability component
to NRS 202.055. We infer from the legislature's inaction that it did not intend to impose civil
liability for violations of this penal statute.
[Headnote 5]
Third, we will also continue to follow the Hamm ruleonly legislative mandate should
create civil liability for vendors who serve alcohol to minors. Clearly, a decision whether to
abrogate such a fundamental rule as the one under consideration is the function of the
legislative, not the judicial, branch of government. Where, as here, the issue involves many
competing societal, economic, and policy considerations, the legislative procedures and
safeguards are well equipped to the task of fashioning an appropriate change, if any, to the
settled rule. See Blanton v. North Las Vegas Mun. Ct., 103 Nev. 623, 748 P.2d 494 (1987).
Indeed, in an effort to annul this common law rule, we are confronted with numerous
issues that this court admittedly may be ill-equipped to address at this time. For example,
should casinos, tavern owners and other commercial vendors alone be subject to liability or
should social hosts be liable too? If social hosts are liable, will minors be accountable as
well? Should the intoxicated purchaser also have a cause of action against the vendor or
social host? Must the injured plaintiff prove that the purchaser was visibly intoxicated at the
time he or she was served? And, should any new rule be retroactive or prospective in its
application? If this court, as the dissent would suggest, ruled for Hinegardner, we must then
prepare to answer these and a sundry of other multifarious questions for the flood of injured
litigants that will inevitably crowd the Nevada courts. Notwithstanding the moral indignation
and emotional angst that this issue rightfully arouses, we must resist opening those
floodgates.
Finally, we acknowledge that Nevada has a legitimate interest in preventing the injuries,
death and carnage which are caused every day on Nevada highways by drunken drivers. We
feel sympathetic and sensitive to the plight of Mr. Hinegardner. Civil liability, or an
accountability akin to it, which imposes some responsibility on a vendor who willfully or
carelessly serves alcohol to an intoxicated patron or a minor has much to commend it.
However, such a measure should be the result of legislative action rather than judicial
interpretation.
We have carefully considered the other issues on appeal and conclude that they lack
merit.
conclude that they lack merit. Accordingly, we affirm the district court's order granting
Vendors' motion to dismiss.
Springer and Rose, JJ., concur.
Steffen, J., with whom Mowbray, C. J., agrees, dissenting:
For many moons, common law courts have been improving the lot of humankind by
recognizing and implementing, through legitimate common-law processes, accepted social
standards and mores. Progressively greater emphasis has been placed on the value, quality,
and security of a human life rather than the financial rewards of human enterprise. The
protective umbrella of tort law has especially benefitted from the judiciary's incisive
expansion of the common law.
In the celebrated case of MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916), the
venerable Cardozo wrote: Precedents drawn from the days of travel by stagecoach do not fit
the conditions of travel today. The principle that the danger must be imminent does not
change, but the things subject to the principle do change. They are whatever the needs of life
in a developing civilization require them to be. Id. at 1053. The product at issue in
MacPherson was an automobile that was capable of traveling at the speed of 50 miles per
hour. The dissent in MacPherson would have adhered to the prevailing, traditional view that
liability could not extend beyond the parties who were in contractual privity. Thus, the
manufacturer of the automobile could be liable only to the retailer who purchased it from the
manufacturer. Cardozo, however, speaking for the court, observed:
If the nature of a thing is such that it is reasonably certain to place life and limb in peril
when negligently made, it is then a thing of danger. If to the element of danger there is
added knowledge that the thing will be used by persons other than the purchaser, and
used without new tests, then, irrespective of contract, the manufacturer of this thing of
danger is under a duty to make it carefully.
Id.
Today, of course, highway vehicles are capable of speeds well over twice that of concern
to the MacPherson court. Highway deaths and injuries have reached a magnitude that is both
a national tragedy and disgrace. The role of alcohol in the death and maiming of countless
numbers of men, women and children each year is well and indisputably attested. The
shattered concourses of victims of alcohol-related accidents have combined with a restive and
angry society to create a responsive, solid majority of courts that have recognized a cause of
action against negligent vendors of alcohol.
It is instructive to note the development of the common law in its response to the growing
menace of inebriated drivers on the highways. Justice Erickson, writing for the Supreme
Court of Colorado in Largo Corp. v. Crespin, 727 P.2d 1098 (Colo. 1986), recounted:
The modern era of dramshop liability began in 1959, when two courtsthe Seventh
Circuit in Waynick v. Chicago's Last Department Store, 269 F.2d 322 (7th Cir. 1959),
cert. denied, 362 U.S. 903, 80 S.Ct. 611, 4 L.Ed.2d 554 (1960), and the New Jersey
Supreme Court in Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959)held that a
third party injured by an intoxicated person may bring a negligence action against the
commercial vendor who sold liquor to the intoxicated person. Both decisions rejected
the defendants' contention that the sale or service of an alcoholic beverage could not, as
a matter of law, be the proximate cause of injury to a third party. The Rappaport court
said: Where a tavern keeper sells alcoholic beverages to a person who is visibly
intoxicated or to a person he knows or should know from the circumstances to be a
minor, he ought to recognize and foresee the unreasonable risk of harm to others
through action of the intoxicated person or the minor. 156 A.2d at 8. The court
concluded that the danger was particularly evident in current times when traveling by
car to and from the tavern is so commonplace and accidents resulting from drinking are
so frequent. Id.
The Largo court recognized the clear foreseeability of injury resulting from drivers whose
abilities and judgment are impaired by intoxicants. Moreover,the court described as outdated
and ill-reasoned, the old common law rule that the person who consumed alcohol became a
superseding cause of the injury and broke the causal relation between the vendor's conduct
and the plaintiff's injuries. Id. at 1103.
The majority in the instant case perpetuate the outdated and ill-reasoned decisions of the
past on the gossamery rationale that any change in the law should emanate from the
legislature. I suggest that the majority's deference to the legislative branch of government is
neither justified nor responsive to the public policy of this state. The majority's intransigence
is unjustified because, in the finest tradition of the common law, the overwhelming majority
of courts have abandoned the old common-law rule and allowed negligence actions against
commercial vendors of alcoholic beverages. Largo, 727 P.2d at 1101.
Today's majority opinion is also unresponsive to Nevada's public policy as reflected by
ever increasing criminal sanctions against persons who drive under the influence of
alcohol.
against persons who drive under the influence of alcohol. Unfortunately, criminal sanctions
against offending drivers accomplished little by way of discouraging purveyors of intoxicants
from serving persons already numbed by the effects of alcohol.
Moreover, today's head-in-the-sand ruling fails to recognize the facts of life. I intend no
disrespect for our legislators, but the realities of political life in a state heavily financed by
establishments that benefit economically from the sales and inducements of alcoholic
beverages leave small reason to believe that dramshop legislation will soon materialize. In a
state that relies so extensively on odds, I suggest that the prospects for dramshop legislation
are about the same as they were for voluntary legislative redistricting when judicial rescue
was necessitated in the form of Baker v. Carr, 369 U.S. 186 (1962).
Although placing economic considerations above ongoing human sacrifice to alcohol is
sufficiently distressing of itself, I suggest that the majority's tacit fears of economic ruin from
embracing the majority rule are unfounded. Again, the Largo decision is instructive on the
point:
[A]s to the consequences of imposing such a burden upon tavern owners, we reject
Largo's claim that civil liability for the negligent sale of alcohol would impose
insurmountable proof problems on tavern owners. Whatever problems of proof exist,
the plaintiff will be confronted with the same obstacles in reconstructing the facts, and
the plaintiff, not the defendant, will bear the burden of proving a breach of duty.
Largo, 727 P.2d at 1103.
The enormous perils to which our citizens are constantly exposed on the highways of our
state and nation from intoxicated drivers demand resourceful, effective, and humane
solutions. The judicial branch of government should be at the vanguard in protecting society
from this pervasive menace. In recognizing the inherent power of the judiciary to decide the
common law questions of duty, breach of duty and proximate cause, the Largo court
cogently declared, [i]t is the province of the judiciary to develop, interpret, and apply the
common law. We do not go beyond the proper sphere of the judiciary, nor do we encroach
upon legislative prerogatives, by reevaluating common-law rules in light of present
circumstances. Id. at 1104.
The majority framed the issue of the instant case in terms of whether this court should
change existing Nevada case law to recognize a claim for relief against one furnishing liquor
to a minor in favor of those injured as a consequence of the minor's intoxication. This court
could have seized the moment to provide a significant step forward in the war against the
contagion of havoc thrust upon our highways by human time bombs activated by alcohol.
vide a significant step forward in the war against the contagion of havoc thrust upon our
highways by human time bombs activated by alcohol.
For the reasons abbreviated above, I respectfully register my disappointment and
dissenting vote over the majority's refusal to embrace the eminently wise position adopted by
the overwhelming majority of courts in our sister states.
____________
108 Nev. 1100, 1100 (1992) SIIS v. Campbell
STATE INDUSTRIAL INSURANCE SYSTEM, an Agency of the State of Nevada,
Appellant, v. JOHN CAMPBELL, Respondent.
No. 22409
December 22, 1992 844 P.2d 795
Appeal from a district court order affirming a decision by an appeals officer to reinstate
respondent's compensation benefits. Eighth Judicial District Court, Clark County; Myron E.
Leavitt, Judge.
State Industrial Insurance System appealed from order of the district court which reversed
order suspending workers' compensation benefits while worker was incarcerated. The
supreme court held that provision for suspension of temporary total disability benefits when
the claimant obstructs the completion of a required examination refers to volitional acts with
intent to hinder a required examination.
Affirmed.
Opinion withdrawn, SIIS v. Campbell, 109 Nev., Advance Opinion 61 (April 6, 1993).
[Rehearing ordered]
R. Scott Young, General Counsel and William A. Zeigler, Associate General Counsel,
Carson City, for Appellant.
Marvin S. Gross, Las Vegas, for Respondent.
In reviewing decision by administrative officer, appellate court may not substitute its judgment for that of the officer as to the
weight of evidence on questions of fact, but court may undertake independent review of the administrative construction of a statute.
NRS 233B.135, subd. 3.
Term obstruct as used in statute providing for suspension of workers' compensation benefits if the worker obstructs a required
examination means a volitional act with intent to hinder a required examination. NRS 616.535, subd. 4.
Provision for suspension of temporary disability benefits for a claimant who voluntarily refuses to receive or obstructs the
completion of a required examination does not provide for suspension of benefits while claimant is incarcerated. NRS 616.535, subd.
4.
OPINION
Per Curiam:
The sole issue on appeal is whether temporary total disability benefits may be suspended
during the time in which a claimant is incarcerated. Absent legislation to the contrary, we
hold that they may not.
THE FACTS
The facts in this case are undisputed. John Campbell sustained a compensable industrial
injury on August 11, 1988, while working as a brick layer at Cedco, Inc. Campbell qualified
for temporary total disability benefits and was referred to the Jean Hanna Clark Rehabilitation
Center for treatment. On August 4, 1989, Campbell's treating physician, William Harris,
M.D., recommended that Campbell be discharged from the rehabilitation center and given a
comprehensive integrated work-up (CIW) to evaluate the extent of his disability.
The State Industrial Insurance System (SIIS) notified Campbell by letter, dated October
12, 1989, that a CIW had been scheduled for him on October 30, 1989, in Reno, Nevada.
Shortly thereafter, SIIS was advised that Campbell would be unable to attend the CIW
because he had recently been incarcerated.
1
SIIS subsequently advised Campbell that his
temporary total disability benefits would be suspended pending completion of the CIW.
On May 1, 1990, a hearing officer entered a decision affirming the suspension of
Campbell's benefits. Campbell was released from prison on September 17, 1990, and testified
as the only witness at the hearing before the appeals officer on October 8, 1990.
__________

1
Campbell had previously been sentenced to four and one-half years of probation following a burglary
committed in 1983. Campbell was charged with violating his probation in September of 1989 following a
domestic dispute. Consequently, Campbell was sent to the state penitentiary for a period of one year.
1990. On November 9, 1990, the appeals officer reversed, and ordered SIIS to retroactively
pay Campbell all suspended benefits. The district court agreed and denied a SIIS petition for
judicial review.
DISCUSSION
[Headnote 1]
In reviewing a decision by an administrative officer, an appellate court may not substitute
its judgment for that of the officer as to the weight of evidence on questions of fact. Nevada
Indus. Comm'n v. Hildebrand, 100 Nev. 47, 52, 675 P.2d 401, 404 (1984); NRS 233B.135(3).
However, this court may undertake independent review of the administrative construction of
a statute. American Int'l Vacations v. McBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302
(1983) (citations omitted); see also NRS 233B.135(3)(a).
[Headnote 2]
This is a matter of first impression for this court. Chapter 616 of Nevada Revised Statutes
does not address the issue of whether disability benefits may be suspended when a claimant is
incarcerated. Nevada statutes provide only one specific condition whereby temporary total
disability benefits may be suspended by SIIS: where a claimant voluntarily refuses to receive,
or obstructs the completion of, a required examination. NRS 616.535(4).
2
And the only
circumstances provided by Nevada law allowing for the permanent discontinuance of
disability benefits is when any physician or chiropractor determines that the employee is
capable of any gainful employment. NRS 616.585(4)
3
; see also Chappaz v. Golden Nugget,
107 Nev. 93S
__________

2
NRS 616.535 provides in pertinent part:
1. Any employee who is entitled to receive compensation under this chapter shall, if:
(a) Requested by the insurer; or
(b) Ordered by an appeals officer or a hearing officer,
submit himself for medical examination at a time and from time to time at a place reasonably convenient
for the employee, and as may be provided by the regulations of the department.
. . .
4. If the employee refuses to submit to any such examination or obstructs it, his right to
compensation is suspended until the examination has taken place, and no compensation is payable
during or for the period of suspension.
(Emphasis added.)

3
4. For purposes of the payment of benefits for a temporary total disability under this section, the
period of temporary total disability ceases when any physician or chiropractor determines that the
employee is capable of any gainful employment.
(Emphasis added.)
v. Golden Nugget, 107 Nev. 938, 822 P.2d 1114 (1991). The appeals officer concluded that
Campbell had neither obstructed nor refused to submit to a CIW, and that no physician had
discharged Campbell to return to gainful employment.
SIIS suggests that the term obstruct, as used in NRS 616.535(4), means any voluntary
act which results in a claimant failing to submit to a required examination. However, we
interpret obstruct as meaning a volitional act with intent to hinder a required examination.
Such an interpretation is in harmony with our policy of construing workers' compensation
statutes liberally for the protection of the worker. Ransier v. SIIS, 104 Nev. 742, 746, 766
P.2d 274, 276 (1988) (citing Dep't Ind. Relations v. Circus Circus, 101 Nev. 405, 411-12, 705
P.2d 645, 649 (1985)).
The general rule of liberal construction of the workers' compensation statutes does not
justify the inclusion or the exclusion of a substantive right that cannot be supported by any
fair reading of the statutory scheme. Weaver v. SIIS, 104 Nev. 305, 306, 756 P.2d 1195,
1196 (1988). We have consistently held that where a policy consideration advocates
exclusion of coverage, the legislature is perfectly capable of implementing such policy.
Goldstine v. Jensen Pre-Cast, 102 Nev. 630, 631, 729 P.2d 1355, 1356 (1986) (emphasis
added) (citing SIIS v. Conner, 102 Nev. 335, 721 P.2d 384 (1986)). The purpose of the
[workers' compensation] system is to provide compensation for industrial injuries. Id. at
631, 729 P.2d at 1356 (citing Breen v. Caesars Palace, 102 Nev. 79, 715 P.2d 1070 (1986)).
[Headnote 3]
SIIS further argues that the phrase capable of any gainful employment in NRS
616.585(4) clearly implies a legislative intent to grant benefits for the replacement of lost
wages. As a prisoner, Campbell's daily necessities were provided for by the State at no cost to
him. Consequently, SIIS maintains that since Campbell could not enter the work force while
incarcerated he did not lose any wages. While we are sympathetic to this argument, the
simple fact is that Chapter 616 of the Nevada Revised Statutes does not provide for the
withholding of disability benefits while a claimant is incarcerated, and we will not attempt to
create such a disability.
4
The dissent relies solely on Hansen v. Harrah's, 100 Nev. 60
__________

4
SIIS maintains that its position is supported, by analogy, by the July 3, 1990 amendment to the Nevada
Administrative Code entitled Modified Program for Offenders in Prison Industry Program. NAC 616.722
provides:
1. An offender is not entitled to accrue or be paid any compensation
The dissent relies solely on Hansen v. Harrah's, 100 Nev. 60, 675 P.2d 394 (1984), for the
proposition that public policy dictates an outcome in favor of SIIS. The circumstances herein,
however, are clearly distinguishable from Harrah's. In Harrah's, we adopted a remedy for
employees discharged in retaliation for filing workers' compensation claims. Harrah's did
not, as the dissent is well aware, involve the exclusion of workers' compensation benefits.
Our decision in favor of the employees in Harrah's was in accord with our long-standing
policy . . . to liberally construe [Nevada's workers' compensation laws] to protect injured
workers and their families. Id. at 63, 675 P.2d at 396. We are not persuaded by the dissent to
depart from that policy today.
The rule of exclusion proposed herein by SIIS, so zealously and religiously embraced by
the dissent, is simply not properly adopted by the courts. Goldstine, 102 Nev. at 632, 729
P.2d at 1357 (1986) (footnote omitted). A clear majority of other jurisdictions considering
this identical issue agree. See Matter of Injury to Spera, 713 P.2d 1155 (Wyo. 1986)
(emphasis added); United Riggers Erectors v. Industrial Com'n, 640 P.2d 189, 191
(Ariz.Ct.App. 1981); Crawford v. Midwest Steel Company, 517 So.2d 918, 923-924
(La.Ct.App. 1987); DeMars v. Roadway Express, 298 N.W.2d 645 (Mich.Ct.App. 1980).
While we are sympathetic to the dissenter's view and applaud his enthusiasm, we, as judges,
are constrained to follow the law.
__________
for temporary total disability, temporary partial disability, permanent partial disability or permanent
total disability while he is incarcerated.
2. Payment of compensation begins upon the release of the offender from incarceration on:
(a) Parole;
(b) Final discharge; or
(c) Discharge from custody by order of a court of competent jurisdiction.
3. Compensation will be discontinued during any subsequent period of incarceration in:
(a) A facility of the department of prisons; or
(b) Any other federal, state or local prison system.
(Emphasis added.) While the above language is persuasive at first blush, the scope of this section is limited to
those injured or killed in the course and scope of . . . employment in the prison industry program. . . . The
program does not include coverage for an injury which occurred before the offender was confined at a facility
operated by the department of prisons. NAC 616.710 (emphasis added). Therefore, this section specifically
excludes those in Campbell's position.
While we applaud Justice Steffen's stirring dissent, we must remain true to the sanctity of our oath of office
and the doctrine of the separation of powers upon which this Great Republic is founded. The Nevada Legislature
will convene in a few days. The Legislature will, in its infinite wisdom, take appropriate action to alleviate the
fears which today torture the heart and mind of Brother Steffen.
The dissent's insinuation that this court is somehow responsible for the financial trials of
our state and our nation is bewildering and alarmingly nonsensical. While we share the
dissent's concern over the state treasury, it is clearly not within our province to remedy the
state's fiscal problems as the dissent absurdly implies. For example, how long must a
recipient of workers' compensation benefits be incarcerated before benefits may be denied?
One year? One month? One week? Twenty-four hours? The dissent offers nothing but useless
and unsupported rhetoric, which only reinforces our view that this issue is clearly one for the
legislature to resolve. Since we share the dissent's opposition to judicial intrusion on the
realm of the legislative branch of government, we must affirm the decision in favor of
Campbell's receipt of suspended benefits.
Mowbray, C. J.
I have heretofore filed an order, ordering that the clerk strike my name from the majority
knowledge and inserted offensive material critical of Justice Thomas Steffen with which I
strongly disagree. I agree with the decision of the majority of Justices Mowbray, Rose and
Young; hence, I concur in the result of that opinion only and not with the opinion itself.
Rose, J., concurring, with whom Young, J. agrees:
I have filed an order directing the clerk of this court to strike my name from the majority
knowledge and inserted offensive material critical of Justice Steffen with which I strongly
disagree. Justice Mowbray's actions did not come to my attention until January 4, 1993, the
day following the end of Justice Mowbray's tenure on this court. I agree with the decision
reached in the per curiam opinion, now bearing only the signature of Chief Justice Mowbray;
and, therefore, concur in the result of that opinion only and not with the opinion itself.
I dissent.
In Hansen v. Harrah's, 100 Nev. 60, 675 P.2d 395 (1984), we properly filled a legislative
void and provided public policy relief for an injured workman who was terminated in
retaliation for filing a workmen's compensation claim. In Goldstine v. Jensen Pre-Cast, 102
Nev. 630, 729 P.2d 1355 (1986), we improperly (I suggested in dissent) allowed a worker
to recover compensation, notwithstanding his fraud on the employer, because the
legislature had not provided for such a contingency.
suggested in dissent) allowed a worker to recover compensation, notwithstanding his fraud on
the employer, because the legislature had not provided for such a contingency. Today we
conclude that an incarcerated felon may collect workmen's compensation insurance because
the legislature failed to deny coverage to such persons.
I am strongly opposed to judicial intrusion on the realm of the legislative branch of
government. And yet, many times the courts are called upon to apply a rule of reason to
legislative voids or lacunae in order to facilitate the purpose and intent of a statute.
I am awed at the ability of this court to find a public policy basis for granting relief to an
injured workman who is fired in retaliation for filing a workmen's compensation claim (as we
did in Harrah's) and to find no public policy basis for refusing a double recovery of scarce
public resources to an incarcerated felon. It is little wonder that our state and nation are
experiencing such financial trials.
I have no difficulty discerning a public policy as strongly against the result reached by the
majority today as the public policy we so readily discerned in favor of the injured workman
who suffered retaliatory discharge in Harrah's.
Although I dissented in Goldstine because of the strong legal principle against rewarding
persons for their own wrongdoing, at least in Goldstine we had an injured workman who was
presumably in need of his daily subsistence. Here we have a claimant who, as a result of his
own criminal conduct, received a prison sentence which, of necessity, required the furnishing
of his daily food, clothing and lodging at taxpayers' expense. The majority contends in effect
that because the legislature did not deny incarcerated persons workmen's compensation
benefits during their periods of confinement, we must assume the dubious proposition that the
legislature intended that such persons receive what is tantamount to a double recovery.
1
I am
unable to endorse such a rule of profligacy.
I find equally unacceptable the majority's affirmation of the appeals officer's position that
because Campbell was incarcerated, he neither obstructed nor refused to submit to a CIW
[comprehensive integrated work-up].
2
Who must we presume obstructed Campbell's
submission to the required comprehensive integrated work-upthe criminal justice system,
the prison officials, or perhaps the inanimate facilities that restrained his ability to travel?
integrated work-upthe criminal justice system, the prison officials, or perhaps the
inanimate facilities that restrained his ability to travel? I suggest that when Campbell used his
free agency to commit a crime against society, thus subjecting himself to a potential loss of
his personal freedom, he and he alone frustrated the performance of the CIW, thus suspending
his right to compensation. Unfortunately, the appeals officer and this court's majority
impliedly conclude that someone, something, or some force other than Campbell obstructed
performance of the CIW.
SIIS reasonably and understandably insists that the statutory phrase capable of gainful
employment
3
clearly implies a legislative intent to grant benefits for the replacement of
lost wages. SIIS thus concludes that since the prison system provided Campbell's daily bread
and lodging, and since Campbell was not available for entry into the work force, he did not
lose any wages.
Disregarding the System's reasoning, the majority simply concludes that it prefers to
leave such decisions to the discretion of the legislature. I have little hesitation in agreeing
with SIIS. Campbell, by his own deliberate act, removed himself from the work force, and
should not be rewarded at the expense of the solvency of the System during his period of
incarceration.
4

For the reasons specified above, I respectfully dissent.
__________

1
There is no contention that Campbell needed his disability benefits in order to care for dependents.
Presumably, if Campbell had family dependent upon him during his incarceration, welfare assistance would have
been available to assist with their needs.

2
See NRS 616.535 as set forth and highlighted in majority opinion, footnote 2.
____________
108 Nev. 1107, 1107 (1992) Lewis v. Hicks
DENA MARIE LEWIS, nka DENA MARIE SMISEK, Appellant, v. PHILLIP RAY HICKS,
Respondent.
No. 22835
December 22, 1992 843 P.2d 828
Appeal from an order of the district court, affirming the domestic referee's
recommendation as to the amount of child support awarded. Eighth Judicial District Court,
Clark County; Jack Lehman, Judge.
Mother brought action to increase father's child support obligation. The district court
affirmed recommendation of domestic referee setting support at less than half of the
statutorily prescribed amount, and mother appealed. The supreme court held that: (1) trial
court failed to set forth sufficient factual findings to support deviation from statutory child
support formula; {2) formulating award based on "net surplus" income was improper; and
{3) reducing support obligation based on obligations to new family should be exception
rather than rule.
__________

3
See majority opinion, footnote 3.

4
I must assume under the majority's reasoning, that if Campbell had committed a crime resulting in a life
sentence, he would have received compensation from the System indefinitely.
108 Nev. 1107, 1108 (1992) Lewis v. Hicks
support deviation from statutory child support formula; (2) formulating award based on net
surplus income was improper; and (3) reducing support obligation based on obligations to
new family should be exception rather than rule.
[Rehearing denied April 21, 1993]
William R. Phillips & Associates and Bruce I. Shapiro, Las Vegas, for Appellant.
L. Earl Hawley, Las Vegas, for Respondent.
When deviating from statutory formula for determining child support, trial court must set forth findings of fact as to basis for
deviation; basis for deviation must be found in unfairness or injustice which may result to secondary custodian. NRS 125B.080, subds.
6, 9.
Under revised child support laws, legislature has limited exercise of trial court's discretion to formulate award to confines of
present statutory scheme; although trial judge's discretion will continue to play important role within confines of statutes, it cannot go
beyond them. NRS 125B.080, subds. 6, 9.
Trial court failed to set forth sufficient factual findings to support deviation from statutory formula in child support case; trial
judge affirmed referee's decision, which contained only one finding, without making additional findings, and referee's finding revealed
little about father's ability to pay, or injustice of requiring him to pay statutory amount. NRS 125B.080, subd.6.
Increasing father's child support obligation to only $242 per month, based on adding $92 surplus of father's total net income over
expenses to prior support obligation of $150 per month, was not supported by record; formula used by referee to calculate obligation
represented significant deviation from statutory scheme, in that referee examined father's net income rather than gross income, and too
much reliance was placed on father's obligations to new family. NRS 125B.080, subds. 5, 6, 9(e).
Net surplus of income over expenses is not income within meaning of statutory provision authorizing consideration of relative
income of both parents in setting child support obligation. NRS 125B.080, subd. 9(1).
Although application of statutory provision authorizing court to consider responsibility of parents for support of others is within
sound discretion of trial court, trial court should apply it cautiously; by weighing this factor too heavily, trial courts could allow
substantial percentage of child support cases to fall outside statutory formula, thus undermining legislation's purpose of promoting
adequate and uniform support laws; decision to reduce support based on new family obligations should be
exception rather than rule.
108 Nev. 1107, 1109 (1992) Lewis v. Hicks
support laws; decision to reduce support based on new family obligations should be exception rather than rule. NRS 125B.080, subd.
9(e).
OPINION
Per Curiam:
In an action by Dena Lewis to increase Phillip Hicks' child support obligation, the trial
court affirmed a recommendation of the domestic referee setting support at less than half of
the statutorily prescribed amount. For the reasons set forth below, we find that the trial court
erred.
In 1984, Dena Lewis and Phillip Hicks had a child, Tiffanie Hicks, out of wedlock. Both
parents subsequently married others. In 1986, Lewis and Hicks stipulated to paternity and
joint legal custody of Tiffanie. The parties further agreed that Lewis would take physical
custody when Tiffanie entered kindergarten, and that Hicks would pay $150 per month in
child support. In April, 1991, Lewis filed a motion for primary physical custody of the child,
and for an increase in child support. Hicks conceded primary physical custody, but contested
the increase in support.
Hicks submitted an affidavit of financial conditions showing that he had net assets of
$12,797, a total net income
1
of $3,614 per month, and total expenses of $3,522 per month.
Hicks' gross monthly income was $3,069. Lewis submitted an affidavit showing that she had
net assets of $20,500, a total net income of $2,750 per month, and total expenses of $1,921
per month. Lewis' gross monthly income was $900.
The domestic referee recommended increasing the child support obligation to $242 per
month. In support of this recommendation, the referee made only one finding of fact: the
surplus of Hicks' total net income over his expenses was $92. The referee formulated an
award by adding this surplus to the prior support obligation of $150 per month. The referee
further recommended that the court increase the support obligation to $392 by July 1, 1993.
The trial court affirmed the referee's recommendation without making any additional findings
of fact.
Nevada imposes upon both parents the duty to provide a child necessary maintenance,
health care, education, and support. NRS 125B.020. This duty extends to all children,
whether or not legitimated. NRS 125B.010. Government and private researchers have amply
documented the deficient support that children receive upon dissolution of a family unit.
__________

1
Total net income includes the income of the parent's spouse and deductions for federal income tax, social
security and retirement withholdings. Because the parent's total net income includes the earnings of the
parent's spouse, it may exceed the parent's gross income, which is based solely upon the earnings of the parent.
108 Nev. 1107, 1110 (1992) Lewis v. Hicks
have amply documented the deficient support that children receive upon dissolution of a
family unit. Traditionally, judges exercised broad discretion in awarding child support. This
judicial discretion resulted in support awards so low that they left children and their usually
female caretakers at poverty or near-poverty levels. Marianne Takas, U.S. Dep't of Health
and Human Services, The Treatment of Multiple Family Cases under State Child Support
Guidelines 1 (1991). Judicial discretion also led to great variations in awards from court to
court, and from case to case, undermining respect for orders. Id. As a response to this
growing problem, the Congress passed the Child Support Enforcement Amendments of 1984,
Pub. L. No. 98-378, 98 Stat. 1305 (1984), which encouraged states to develop numerical
guidelines for setting child support awards. Id.
Nevada responded to this entreaty with NRS 125B.070, which sets a parent's obligation
for support of one child at the lesser of $500 or 18% of his gross monthly income. NRS
125B.070(1)(b).
The percentage of income approach reflects a public policy that after a family
separation, parents should spend on their children the approximate percentage of
income that they would have had the family stayed together. At the same time, it
reflects a judgment that support amounts should be easily determined for maximum
predictability and judicial economy.
Treatment of Multiple Family Cases, at 6.
NRS 125B.070(1)(a) defines gross monthly income as the total amount of income from
any source of a wage-earning employee . . . after deduction of all legitimate business
expenses, but without deduction for personal income taxes, contributions for retirement
benefits, contributions to a pension or for any other personal expenses. (Emphasis added.)
Gross monthly income is relatively easy to calculate because it allows for few deductions.
Nevada's Senate Judiciary Committee considered alternatives to gross monthly income but
decided against them. A spokeswoman for the attorney general testified:
The concern is that if you allow deductions for other expenses . . . unless you put
something in there like the term reasonable,'. . . the court is going to have to decide
what is reasonable in every case. What you have done if you do this, is throw more
discretion to the court and you have thrown the percentages out of whack.
Child Support, 1987: Hearings on A.B. 424 Before the Senate Committee on the Judiciary,
64th Leg.
108 Nev. 1107, 1111 (1992) Lewis v. Hicks
Committee on the Judiciary, 64th Leg. Sess. (1987) (statement of Nancy Angres, Deputy
Attorney General, Welfare Division).
Nevada's statute follows the national trend in treating parental income and the number of
children supported as the basic factors for calculating the award. Treatment of Multiple
Family Cases, at 2. The sum calculated is presumed to be appropriate. NRS 125B.080(5).
However, Nevada has also followed the national trend in a second and continuing wave of
guideline development which increases The responsiveness of guidelines to a variety of
factors once viewed as exceptional, but which are, in fact, common. Id.; see NRS
125B.080(9). In deciding the amount of a child support award, a court may deviate from the
formula based upon explicit findings of fact related to these factors. NRS 125B.080(6), (9).
In the present case, the trial court deviated from the statutory formula. Eighteen percent of
Hicks' gross monthly income exceeded the $500 statutory cap. Therefore, under the formula,
the court should have awarded child support of $500 per month.
[Headnote 1]
[A]pplication of the formula must be the rule, and deviation from the formula for the
benefit of the secondary custodian must be the exception. Barbagallo v. Barbagallo, 105
Nev. 546, 552, 779 P.2d 532, 536 (1989); see NRS 125B.080(4). When deviating from the
formula, the trial court must set forth findings of facts as to the basis for the deviation . . . .
The basis for the deviation' must be found in the unfairness, the injustice, which may result
to the secondary custodian . . . . Id.
[Headnotes 2-4]
The referee made only one finding, that the surplus of Hicks' total net income over his
expenses was ninety-two dollars per month. The trial judge affirmed the referee's decision
without making any additional findings. This finding reveals little about Hicks' ability to pay,
or the injustice of requiring him to pay the statutory amount. Thus, the trial court erred by
failing to set forth sufficient factual findings to support a deviation from the formula. NRS
125B.080(6).
Respondent contends that the trial court properly exercised its discretion by formulating an
award based upon Hicks' surplus income. Traditionally, this court recognized that the trial
court had broad discretion in setting child support awards. Atkins v. Atkins, 50 Nev. 333,
337, 259 P.288, 289 (1927). The Atkins court based this broad discretion upon a statute which
directed the trial judge to make the most expedient award under the circumstances. Id. at
336-37, 259 P. at 289 (citing Act of Nov. 28, 1S61, First Regular Session of the Legislative
Assembly of the Territory of Nevada, reprinted in Nevada Revised Laws, 5S40, 24
{1912)).
108 Nev. 1107, 1112 (1992) Lewis v. Hicks
1861, First Regular Session of the Legislative Assembly of the Territory of Nevada, reprinted
in Nevada Revised Laws, 5840, 24 (1912)). However, under the revised child support laws,
the legislature has limited the exercise of this discretion to the confines of the present
statutory scheme. Although the trial judge's discretion will continue to play an important role
within the confines of the statutes, it cannot go beyond them.
In accordance with this principle, we have consistently found error where the trial court
invented its own formula for calculating support awards. See Hoover v. Hoover, 106 Nev.
388, 389, 793 P.2d 1329, 1330 (1990); Barbagallo, 105 Nev. at 550, 779 P.2d at 535.
In the present case, the referee devised, and the trial judge approved, a new formula. The
referee summed Hicks' net monthly salary and his spouse's income, then subtracted his total
expenses. The referee added this surplus to the prior support obligation of $150 per month,
for a total child support obligation of $242 per month. This formula represents a significant
departure from the statutory scheme.
The formula relies on Hicks' net income rather than his gross income. Hicks' net income
includes deductions for federal income tax, social security, and retirement benefits. However,
under NRS 125B.070(1)(a), child support awards must be calculated from gross monthly
income, which specifically excludes these deductions.
The referee's formula also includes the income of the parent's spouse. The statutory
scheme does not authorize consideration of spousal income. In fact, the Nevada Legislature
rejected a proposal to include spousal income. A.B. 424, 64th Leg. Sess. of 1987, Legislative
History, Child Support, 1987, at 76 (1987). Although no state requires courts to consider
spousal income, [s]ome states allow consideration of new spouse income in the exercise of
judicial discretion, in certain circumstances, or in an indirect manner. Treatment of Multiple
Family Cases, at 21. A trial judge might properly consider spousal contributions where they
have a significant impact on recognized statutory factors, such as the parents' standards of
living or their relative financial means. However, Nevada law does not authorize using
spousal income directly.
The most troubling aspect of the referee's formula is its consideration of all of Hicks'
expenses. The statute specifically requires that child support awards be calculated from gross
income and exclusive of any other personal expenses. NRS 125B.070(1)(a). The
legislature's purpose in using gross monthly income was to avoid judicial examination of
the minutiae of a parent's finances. The referee's approach has reintroduced the evils which
the legislature had attempted to avoid.2 The expense-based approach requires a court to
investigate the reasonableness of a parent's expenses, and it encourages a parent to
increase his expenses prior to a support hearing.
108 Nev. 1107, 1113 (1992) Lewis v. Hicks
duced the evils which the legislature had attempted to avoid.
2
The expense-based approach
requires a court to investigate the reasonableness of a parent's expenses, and it also
encourages a parent to increase his expenses prior to a support hearing.
In his brief, Hicks indicates that his marriage has broken down. Hicks may also be having
financial problems. The referee may have felt sympathy for Hicks' plight and attempted to
moderate his burden by raising the child support payments slowly.
3
The referee's decision
would thus be a result of her own balancing of the equities.
The referee's balancing suffers from the same deficiencies which prompted federal and
state legislation imposing formulas. Hicks is paying much less child support than the statute
requires. In her decision, the referee acknowledged that Hicks should pay more in the future
when he is able. Because Lewis appeared able to cover for Hicks' deficient support, the
referee allowed him to partially avoid his duty to Tiffanie.
[Headnote 5]
Hicks contends that this court should affirm the trial court's decision because Lewis is
capable of assuming the added financial burden. In effect, he argues that so long as the needs
of the child are met the trial court should have unfettered discretion in determining how to
supplement the income of the custodial parent. Hicks' contention lacks merit.
Child support is not calculated as a supplement to the presumably inadequate means of the
custodial parent. NRS 125B.070 specifies a parent's duty of child support according to the
parent's means rather than according to the child's needs. Although the ultimate policy
objective may be the welfare of the child, the legislative scheme implements this policy by
focusing the court's attention upon a parent's statutory duty to provide a fixed percentage of
his income as support. Barring special circumstances, the legislature has shifted the focus of
the courts from a general inquiry into the best interests of the child to a specific inquiry of
whether the noncustodial parent is satisfying the statutory support obligation.
__________

2
This case illustrates the problems which can arise. In her motion for reconsideration, Lewis was forced to
argue the minutiae of Hicks' expenses, including the legitimacy of long distance calls, his food and dry cleaning
bills, his utilities and credit card debts. Neither judicial economy nor the best interests of the parties are served
by a formula which requires that the parties litigate $77 dry cleaning bills.

3
The referee stated that Lewis could reapply for the full $500 in 1993. Hicks argued before the trial court
that, given his reliance on the continued $150 obligation for support, it was within the trial court's discretion to
raise the support obligation in increments. Hicks has not made this argument on appeal.
In the present case, we would still find that the trial court abused its discretion because, even after two years,
Lewis would receive only $317 per month with no assurance that the court would subsequently increase the
obligation to $500.
108 Nev. 1107, 1114 (1992) Lewis v. Hicks
inquiry into the best interests of the child to a specific inquiry of whether the noncustodial
parent is satisfying the statutory support obligation. Where no special circumstances exist,
courts must focus exclusively upon the noncustodial parent's duty to pay a fixed percentage of
income.
When judges balance the equities, it may be too easy for them to relieve a parent of his
duty if the other parent is capable of taking the extra burden. Hicks contends that the referee
must balance the interests of the child against the interests of the noncustodial parent, but that
the large surplus of the mother does not weigh the issue in favor of the child. Such an
analysis is appropriate only after the trial court has found special circumstances as listed in
NRS Chapter 125B. In the instant case, the trial court could not deviate from the formula
because it failed to explicitly find such circumstances. NRS 125B.080(6).
Furthermore, on this record the trial court could not make findings sufficient to rebut the
statutory presumption in favor of the formula. In determining whether an injustice is present
[so as to justify deviation from the formula] the trial court should make reference to the
factors and considerations in [NRS 125B.080(9)] . . . , with principal concern being given to
the standard of living of the parties, their earning capacity and their relative financial means.
4
Barbagallo, 105 Nev. at 552, 779 P.2d at 536-37.
1. Earning capacity and relative financial means.
Lewis has net assets totalling $20,500. Hicks has net assets of $12,700. Although Lewis
has slightly greater assets, Hicks' income of $3,069 per month is much greater than Lewis'
income of $900 per month. These facts favor raising Hicks' child support obligation, rather
than reducing it.
Hicks contends that NRS 125B.080(9)(1), which lists as a factor the relative income of
both parents, authorizes the kind of formula which the referee employed. Hicks argues that,
under this provision, the referee and trial court properly considered the disparity between his
net surplus of $92 per month and Lewis' net surplus of $800 per month. However, net
surplus is not income within the meaning of NRS 125B.080(9)(1). Hicks' argument is
persuasive only if the court examines his net income, an analysis which represents a
significant departure from the statutory scheme.5 Because Hicks' gross monthly income is
more than three times Lewis' income, the trial court could not rely on NRS
125B.0S0{9){1) to support a reduction in his support obligation.
__________

4
With the repeal of NRS 125B.060, the courts no longer have explicit statutory authorization to consider the
parents' standard of living or their financial means other than from income. As noted in Barbagallo, these factors
can be derived from other provisions in Chapter 125B. Barbagallo, 105 Nev. at 551 n.4.
108 Nev. 1107, 1115 (1992) Lewis v. Hicks
statutory scheme.
5
Because Hicks' gross monthly income is more than three times Lewis'
income, the trial court could not rely on NRS 125B.080(9)(1) to support a reduction in his
support obligation.
2. Standard of living.
The record indicates no great disparity between the parents' standards of living. Lewis'
house has a market value of $83,000. Hicks' house has a market value of $93,000. Aside from
two automobiles each, neither parent holds significant personal property. There is no other
evidence in the record that would indicate disparity in their living standards. Thus, this factor
could not support the trial court's judgment.
3. Other factors listed in NRS 125B.080(9).
[Headnote 6]
In addition to these principal factors, Hicks relies on NRS 125B.080(9)(e), which
authorizes the court to consider the responsibility of the parents for the support of others.
The legislature has not yet resolved the question of how courts should apply NRS
125B.080(9)(e) in multiple family cases. See Report of Family Law Section of State Bar of
Nevada, Child Support Statute Review Committee Report, 26-31 (August 1, 1992). While
declining to impose any formulaic adjustment, this court has acknowledged that trial courts
may exercise their discretion to modify support awards based upon the noncustodial parent's
prior or subsequent family obligations. Hoover v. Hoover, 106 Nev. 388, 389, 793 P.2d 1329,
1330 (1990), Scott v. Scott, 107 Nev. 837, 840-41, 822 P.2d 654, 656 (1991).
Although application of NRS 125B.080(9)(e) is within the sound discretion of the trial
court, the trial court should apply it cautiously. "An estimated 75% of divorced persons
remarry, most within a few years of their divorce.
__________

5
Where a noncustodial parent has high, unavoidable expenses (e.g., continuing medical treatments which are
not covered by insurance), the parent might not be able to meet the support obligation even though he or she has
a substantial income. NRS 125B.080(4) implicitly recognizes the court's power to set a lesser support obligation
based upon the noncustodial parent's inability to pay. Hicks' financial affidavit does not set forth any unusually
large, unavoidable expenses.
NRS 125B.080(4) states:
Notwithstanding the formulas set forth in paragraph (b) of subsection 1 of NRS 125B.070, the minimum
amount of support that may be awarded by a court in any case is $100 per month per child, unless the
court makes a written finding that the obligor is unable to pay the minimum amount. Willful
underemployment or unemployment is not a sufficient cause to deviate from the awarding of at least the
minimum amount.
108 Nev. 1107, 1116 (1992) Lewis v. Hicks
cautiously. An estimated 75% of divorced persons remarry, most within a few years of their
divorce. Divorced men in particular tend to remarry quickly, and often go on to have other
children, or at least to provide day-to-day support to a family with stepchildren. Treatment of
Multiple Family Cases, at 2-3. By weighing this factor too heavily, trial courts could allow a
substantial percentage of child support cases to fall outside of the statutory formula, thus
undermining the legislation's purpose of promoting adequate and uniform support awards.
The present case is typical in that both Lewis and Hicks started new families. Hicks has a
spouse and a four year old son. Offsetting the burden of supporting a new family, Hicks also
has the benefit of his wife's income of $1,089 per month. Because every case presents a
unique combination of circumstances and concerns, we cannot say that a trial court's decision
to reduce support based upon family obligations like those of Hicks would invariably rise to
the level of abuse of discretion. However, such a decision should be the exception rather than
the rule.
Accordingly, we vacate the order entered below and remand the case for a determination
of Hicks' child support obligation which is consistent with NRS Chapter 125B.
____________
108 Nev. 1117, 1117 (1992) Alsenz v. Twin Lakes Village, Inc.
ELIZABETH J. ALSENZ, Individually and as Special Administratrix of the Estate of MISTY
ALEXANDER, Deceased; VIRGINIA DAVIS; GINGER McKELL; GLENNA J.
ALSENZ; and JOSE ALSENZ, Appellants, v. TWIN LAKES VILLAGE, INC.;
BOYLE ENGINEERING CORPORATION, a California Corporation; WALTER F.
ZICK & HARRIS P. SHARP ARCHITECTS-ENGINEERS, INC., a Nevada
Corporation, dba HSA ARCHITECTS, INC.; and RICHARD J. BAUGHMAN, Civil
Engineer, Respondents.
No. 22724
STEPHEN BARBER; PATRICIA BARBER; DANIELLE BARBER, JOHN J. LYNCH;
NANCY J. LYNCH; LOUIS E. MASSETT; VIRGINIA M. MASSETT; LINDA S.
NIELSON; BOBBI NEWMAN; CAROL WILMINGTON; TED ZUBA; JAMES
COPPOLA; JAMES W. KISLING; R. SUE KISLING; RICHARD EDWARD
JOSEPH, JR.; ELAINE JOSEPH; and JAMES A. AABY, Appellants, v.
BAUGHMAN AND TURNER, INC., a Nevada Corporation; HALCO, INC., a
Nevada Corporation; DELTA SURVEYING, INC., dba DELTA ENGINEERING,
INC.; FALCON HOMES, fka YOUNG AMERICAN HOMES, INC., a Nevada
Corporation; BRUCE E. ADDIS; PRIMERIT BANK, FEDERAL SAVINGS BANK
fka NEVADA SAVINGS & LOAN ASSOCIATION, Respondents.
No. 22912
December 22, 1992 843 P.2d 834
Consolidated appeals from judgments of the Eighth Judicial District Court granting
respondents' motions to dismiss for failure to state a claim upon which relief may be granted.
Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge (Case No. 22724);
Gerard Bongiovanni, Judge (Case No. 22912).
In first action the state filed wrongful death action against developers. In second suit,
homeowners brought action against same developers, alleging various claims of deficient
construction. In each case the district court granted summary judgment for defendants,
holding that statutes of repose barred claims. Plaintiffs appealed. The supreme court held that:
(1) current versions of statutes of repose could not be applied retroactively to bar claims
based on construction substantially completed prior to 19S3, and {2) statute providing that
periods of repose for actions for deficient construction apply retroactively to actions in
which substantial completion of improvement to real property occurred before July 1,
19S3, is unconstitutional in that it does not provide a grace period in which a claimant
may file an existing cause of action.
1983, and (2) statute providing that periods of repose for actions for deficient construction
apply retroactively to actions in which substantial completion of improvement to real
property occurred before July 1, 1983, is unconstitutional in that it does not provide a grace
period in which a claimant may file an existing cause of action.
Brent E. Leavitt, Las Vegas, for Appellants (Case No. 22724 and Case No. 22912).
Thompson & Harper, Las Vegas, for Respondent Twin Lakes Village, Inc. (Case No.
22724).
Lionel, Sawyer & Collins, Las Vegas, for Respondent Boyle Engineering Corp. (Case No.
22724).
Rawlings, Olson & Cannon, and Richard E. Desruisseaux, Las Vegas, for Respondents
Zick & Harris P. Sharp Architects-Engineers, Inc. (Case No. 22724) and Halco, Inc. (Case
No. 22912).
Wells, Kravitz, Schnitzer, Sloane & Lindsey, Las Vegas, for Respondent Baughman (Case
No. 22724).
Hafen & Mayor, and William B. Palmer, Las Vegas, for Respondent Baughman and
Turner, Inc. (Case No. 22912).
Robison, Belaustegui, Robb and Sharp, and Barry L. Breslow, for Respondent Delta
Surveying, Inc. (Case No. 22912).
Parnell & Associates, and Joseph J. Purdy, Las Vegas, for Respondent Falcon Homes
(Case No. 22912).
Beckley, Singleton, DeLanoy, Jemison & List, and Steven B. Williams and Daniel F.
Polsenberg, Las Vegas, for Respondent Addis (Case No. 22912).
LeFebvre, Barron & Oakes, Las Vegas, for Respondent Primerit Bank (Case No. 22912).
Statutes of repose bar causes of action after certain period of time, regardless of whether damage or injury had been discovered;
in contrast, statutes of limitation foreclose suits after fixed period of time following occurrence or discovery of injury.
Statutes of repose barring actions for deficient construction after certain number of years from date construction was
substantially completed could not be applied retroactively to bar claims based upon construction
substantially completed prior to 19S3.
certain number of years from date construction was substantially completed could not be applied retroactively to bar claims based upon
construction substantially completed prior to 1983. NRS 11.203-11.205.
Statute of limitations may be applied retroactively to actions which have accrued, but which have not been filed, only if there is
reasonable amount of time after effective date of new limitation period in which claimants may bring action.
Statute providing that periods of repose for actions for deficient construction apply retroactively to actions in which substantial
completion of improvement to real property occurred before July 1, 1983, is unconstitutional in that it does not provide grace period in
which claimant may file existing cause of action. NRS 11.203-11.205.
OPINION
Per Curiam:
Case No. 22724 involves an action for wrongful death. On June 10, 1990, Misty
Alexander (Misty) drove her car into a flooded intersection in Las Vegas. Respondents had
constructed allegedly defective flood control channels in the intersection. The flood waters
swept Misty's vehicle into one of the channels. She drowned. On September 25, 1990, Misty's
estate filed a wrongful death action against respondents.
Case No. 22912 involves an action for damages to real property. On June 10, 1990,
rainstorms caused flooding in Las Vegas. Appellant homeowners suffered damages to their
real and personal property as a result of the flooding. On July 26, 1990, the homeowners
brought suit against the respondent developers, alleging various claims of deficient
construction.
In both cases respondents moved to dismiss the actions for failure to state a claim upon
which relief could be granted, pursuant to NRCP 12(b)(5). Because the district court in each
case considered matters outside the pleadings, each motion was treated as one for summary
judgment. In each case the district court granted summary judgment for respondents, holding
that NRS 11.202-11.205 barred the claims.
The district court in both cases ruled that the statutes of repose enacted in 1983 barred the
actions. See NRS 11.203-11.205. The single issue in these consolidated appeals is whether
the district court erred in applying the statutes of repose. For the reasons stated below, we
conclude that the district court erred in both cases. We therefore reverse both district court
judgments and remand these matters for further proceedings consistent with this opinion.
NRS 11.203-11.205
[Headnote 1]
A statute of repose is distinguishable from a statute of limitations. As we stated in Allstate
Ins. Co. v. Furgerson, 104 Nev. 772, 775 n.2, 766 P.2d 904, 906 n.2 (1988):
Statutes of repose bar causes of action after a certain period of time, regardless of
whether damage or an injury has been discovered. In contrast, statutes of limitation
foreclose suits after a fixed period of time following occurrence or discovery of an
injury.
The legislature enacted the statutes of repose to protect persons engaged in the planning,
design and construction of improvements to real property who otherwise would endure
unending liability, even after they had lost control over the use and maintenance of the
improvement. Nevada Lakeshore Co. v. Diamond Elec., Inc., 89 Nev. 293, 295-96, 511 P.2d
113, 114 (1973).
[Headnote 2]
Nevada's statutes of repose, NRS 11.203-11.205, bar actions for deficient construction
after a certain number of years from the date construction was substantially completed. NRS
11.203(1) provides that an action based on a known deficiency may not be brought more
than 10 years after the substantial completion of such an improvement. . . . NRS 11.204(1)
provides that an action based on a latent deficiency may not be commenced more than 8
years after the substantial completion of such an improvement . . . . NRS 11.205(1) provides
that an action based on a patent deficiency may not be not commenced more than 6 years
after the substantial completion of such an improvement . . . .
In 1983, we held that the then-existing version of NRS 11.205 was unconstitutional. State
Farm v. All Electric, Inc., 99 Nev. 222, 229, 660 P.2d 995, 1000 (1983), modified, Wise v.
Bechtel Corp., 104 Nev. 750, 754, 766 P.2d 1317, 1319 (1988). The legislature responded in
1983 by enacting the current versions of the statutes. We subsequently noted that our holding
in All Electric, Inc. rendered NRS 11.205 void ab initio. Nevada Power v. Metropolitan Dev.
Co., 104 Nev. 684, 686, 765 P.2d 1162, 1164 (1988). Since that time, we have held that the
current versions of the statutes of repose may not be applied retroactively to bar any claim
based upon construction substantially completed prior to 1983. See Lotter v. Clark Co. Bd. of
Commissioners, 106 Nev. 366, 793 P.2d 1320 (1990); Tahoe Village Homeowners v.
Douglas Co., 106 Nev. 660, 799 P.2d 556 (1990). In those cases, we premised our holdings
on the absence of legislative directive or intent to apply the 1983 statutes retroactively.
In the cases at hand, appellants assert that the district court erred in applying the statutes of
repose because respondents substantially completed the construction prior to 1983. We agree.
Respondents in both cases unconvincingly assert that because the appellants' injuries
occurred after the 1983 statutes of repose became effective, the statutes serve to bar
appellants' claims.
We conclude that respondents misconstrue the application of the statutes of repose. The
date of injury does not trigger the time periods set forth in the statutes of repose. Instead, the
statutes are activated by the construction's date of substantial completion. Indeed, the
language of NRS 11.203-11.205 clearly states that no actions may be commenced more than a
certain number of years after the substantial completion of such an improvement . . . . As
we held in Nevada Lakeshore Co., the statutes of repose period commences on substantial
completion of such an improvement'regardless of when any injury or damages might occur
or be discovered. Nevada Lakeshore Co., 89 Nev. at 296, 511 P.2d at 114 (quoting NRS
11.205). (Emphasis added.)
Even though appellants did not bring suit within the ten-year time limit elucidated in NRS
11.203(1), the statute does not bar the action. The 1983 statutes of repose do not apply
retroactively to actions commenced before the effective date of the recent amendment to the
statutes of repose, Senate Bill (SB) 105.
1

Nevertheless, SB 105 retains importance for a few appellants. On April 10, 1991, a new
plaintiff
2
joined Case No. 22912 and three new defendants were named: Halco, Inc.
(Halco), Delta Surveying, Inc. (Delta), and PriMerit Bank (PriMerit). On August 23, 1991,
five new plaintiffs
3
joined Case No. 22912. Respondents argue that the new plaintiffs' claims
are barred by retroactive application of the statutes and that all claims against Halco, Delta
and PriMerit are barred as well because the additional plaintiffs filed against the
additional defendants after the effective date of SB 105.
__________

1
On April 10, 1991, the legislature enacted SB 105, which directs the retroactive application of NRS
11.203-11.205. The bill provides:
Section 1. 1. Except as otherwise provided in subsection 2, the periods of limitation on actions set
forth in NRS 11.203, 11.204, and 11.205 apply retroactively to actions in which the substantial
completion of the improvement to real property occurred before July 1, 1983.
2. The provisions of subsection 1 do not limit an action:
(a) That was commenced before the effective date of this act; or
(b) If so doing would constitute an impairment of the obligation of contracts under the Constitution of
the United States or the [C]onstitution of the State of Nevada.
Sec. 2. This act becomes effective upon passage and approval.
1991 Nev. Stat. Ch. 70 at 132 (emphasis added).

2
The new plaintiff was James Coppola.

3
The new plaintiffs were James W. Kisling, R. Sue Kisling, Richard Edward Joseph, Jr., Elaine Joseph and
James A. Aaby.
Halco, Delta and PriMerit are barred as well because the additional plaintiffs filed against the
additional defendants after the effective date of SB 105.
In response, appellants argue that SB 105 is unconstitutional in that it does not provide a
grace period so that those parties who have a viable claim may file their actions. We concur.
As the federal district court for the Eastern District of Louisiana stated:
[T]here are constitutional restrictions on the impairment of vested rights which can
limit retroactive application of statutes of limitation. However, [a] statute of
limitations that allows a reasonable time for the assertion of a right or the enforcement
of an obligation is not violative of the constitutional prohibition against divesting a
vested right or impairing the obligation of a contract.
Currie v. Schon, 704 F.Supp. 698, 701 (E.D.La. 1989) (quoting Cooper v. Lykes, 49 So.2d 3,
5 (La. 1950)) (citations omitted).
[Headnote 3]
A statute of limitations may be applied retroactively to actions which have accrued, but
which have not been filed, only if there is a reasonable amount of time after the effective date
of the new limitations period in which claimants may bring the action. Pucci v. Santi, 711
F.Supp. 916, 924 (N.D.Ill. 1989). The Ninth Circuit has stated that it is unfair and illogical to
expect claimants to foresee a new limitations period. Kelly v. Burlington Northern R. Co.,
896 F.2d 1194, 1198 (9th Cir. 1990). There, the Ninth Circuit stated:
The same considerations that make it inequitable and prejudicial to apply a new,
shortened statute of limitations to a claim filed prior to the announcement of the new
rule also make it unfair to apply such a rule to a cause of action which accrued prior to
the rule without affording the plaintiff a reasonable period in which to file his claim
after the announcement of the new limitations period. In both instances, the plaintiff's
cause of action accrued at a time when he had a more extended period of time to file
suit and the adoption of a shorter time limit was unforeseeable. Whether the plaintiff
actually filed his action prior to the time the new, shortened rule was announced is
largely irrelevant, if the application of that rule would serve to cut off his rights before
he was informed of the new rule and had a reasonable time to file under it.
Id. at 1198-99.
[Headnote 4]
The case at hand is analogous. While the prescriptive period in the present case has not
been shortened, SB 105 has cut off a claimant's right to file suit for a cause of action which
has accrued. Therefore, the legislature must allow a grace period for a claimant to file an
existing cause of action. Without such a grace period, SB 105 is unconstitutional. Thus, SB
105 does not affect the six appellants that joined in Case No. 22912 after the effective date of
SB 105.
We conclude that NRS 11.203-11.205 does not bar the appellants' actions. We therefore
reverse the summary judgments entered below and remand these matters for further
____________
108 Nev. 1123, 1123 (1992) Nevada Ins. Guaranty v. Sierra Auto Ctr.
NEVADA INSURANCE GUARANTY ASSOCIATION, Appellant, v. SIERRA AUTO
CENTER, Respondent.
No. 22882
December 23, 1992 844 P.2d 126
Appeal from a judgment for respondent. Second Judicial District Court, Washoe County;
Deborah A. Agosti, Judge.
Insured brought tort and contract action against Nevada Insurance Guaranty Association
(NIGA) based on NIGA's refusal to pay in the shoes of insolvent insurer. The district court
entered judgment for insured, and NIGA appealed. The supreme court held that: (1) NIGA
improperly denied its obligations to insured, but (2) insured was not entitled to bad faith
damages.
Affirmed in part and reversed in part.
White, Guinan & Kahan, Reno, for Appellant.
Lionel Sawyer & Collins and Pat Lundvall, Reno, for Respondent.
1. Insurance.
Pedestrian's uninsured motorist (UM) policy provisions were not triggered by insolvency of insurer of insured whose employee
struck pedestrian while driving insured's automobile as insurer was not insolvent within meaning of policy, so that Nevada Insurance
Guaranty Association (NIGA) improperly refused to continue in defense of insured in place of insolvent insurer until pedestrian's heir
fully exhausted UM coverage; UM policy only became effective if uninsured driver's insurer became insolvent within one year of
accident, and insurer was judicially declared insolvent more than two years after accident. NRS 687A.100, subd. 1.
Supreme court will not disturb trial court's findings of fact unless they are clearly erroneous and not based on substantial evidence.
3. Insurance.
Pursuant to statute which states that no cause of action shall arise against Nevada Insurance Guaranty Association (NIGA) for any
reasonable action taken by it, NIGA may lose its statutory immunity and, thus, incur bad faith liability for unreasonable actions.
NRS 687A.150.
4. Insurance.
Nevada Insurance Guaranty Association (NIGA) did not owe duty of good faith and fair dealing to insured of insolvent insurer,
even though NIGA assumed obligations of insurer under policy; implied covenant of good faith and fair dealing can arise only out of
contractual relationship, and NIGA's relationship with insured was purely statutory. NRS 687A.010 et seq.
5. Insurance.
Regardless of terms of insurance agreement between insured and insolvent insurer, Nevada Insurance Guaranty Association's
(NIGA) relationship with insured is primarily governed by Nevada Insurance Guaranty Association Act; Act will control over any
contrary provisions of policy. NRS 687A.010 et seq.
6. Insurance.
In context of bad faith allegations against insurer, attorney fees are inappropriate when contested issue involves question of first
impression.
7. Insurance.
Question of whether statute which requires exhaustion of remedies of insured before pursuing covered claim against its insurer
applied to uninsured motorist (UM) coverage of pedestrian killed when struck by automobile owned by insured whose insurer
subsequently became insolvent presented complex statutory issues of first impression, so that insured was not entitled to bad faith
damages against Nevada Insurance Guaranty Association (NIGA) for NIGA's erroneous statutory interpretation. NRS 687A.060,
687A.100, subd. 1, 687A.150.
OPINION
Per Curiam:
THE FACTS
On March 16, 1985, an employee of respondent Sierra Auto Center (Sierra), while
driving a Sierra-owned automobile, struck and killed a pedestrian, Douglas J. Fellom
(Fellom). Fellom's heir filed suit against Sierra and the employee.
Mission Insurance Company (Mission) insured Sierra. Mission defended Sierra and the
employee in the action. On February 24, 1987, Mission was declared insolvent. Mission's
insolvency triggered the Nevada Insurance Guaranty Association Act (the Act). Under the
Act, appellant Nevada Insurance Guaranty Association (NIGA), a non-profit
statutorily-created association of Nevada insurers, assumed the obligations of Sierra's
insurance policy.
NIGA assumed Sierra's defense in the Fellom action. However, NIGA discovered that
Fellom possessed an uninsured motorist {"UM") insurance policy with the California State
Automobile Association {"CSAA").
ever, NIGA discovered that Fellom possessed an uninsured motorist (UM) insurance policy
with the California State Automobile Association (CSAA). NIGA believed that Mission's
insolvency triggered the coverage provisions of Fellom's UM policy. In turn, pursuant to its
interpretation of NRS 687A.100(1), NIGA refused to continue in Sierra's defense until
Fellom's heir fully exhausted the coverage of the CSAA UM policy. NRS 687A.100 provides,
in pertinent part:
Exhaustion of remedies of insured.
1. Any person having a claim against his insurer, under any provision in his
insurance policy, which is also a covered claim shall be required to exhaust first his
right under the policy. Any amount payable on a covered claim under this chapter shall
be reduced by the amount of the recovery under the claimant's insurance policy.
After NIGA refused its obligation on the Fellom claim and before trial in the Fellom
litigation, Sierra settled with Fellom's heir.
On November 29, 1989, Sierra filed this tort and contract action against NIGA. Sierra
alleged that it personally paid $50,000 to settle the Fellom claim. Sierra argued that NIGA
tortiously refused to pay in the shoes of Sierra's insolvent insurer Mission. Sierra prayed for
reimbursement of the $50,000 plus attorney fees. NIGA asserted an affirmative defense that
NRS 687A.100(1) precluded it from paying on the Fellom claim.
After a bench trial, the district court rendered judgment for Sierra, finding that NIGA
relied on an erroneous interpretation of NRS 687A.100(1) in order to disclaim its obligation
on the Fellom claim. The district court also found that Mission's insolvency did not trigger
the coverage of CSAA's UM policy, and thus, NRS 687A.100(1) did not condition NIGA's
duty to Sierra on the exhaustion of Fellom's UM policy. In turn, the district court ordered
NIGA to reimburse Sierra the $50,000 Fellom settlement. The district court also ruled that
NIGA's interpretation of NRS 687A.100(1) constituted bad faith, justifying an award of
attorney fees as consequential damages. This appeal ensured.
On appeal, NIGA argues that the district court's judgment constituted error.
DISCUSSION
Mission's Insolvency
[Headnote 1]
We hold that NRS 687A.100(1) does not apply to this case, and hence NIGA improperly
invoked the statute in order to disclaim liability on the Fellom claim.
liability on the Fellom claim. We base our conclusion on the district court's findings
regarding Mission's insolvency.
The district court made sound factual findings on this issue. The district court properly
found that the CSAA UM policy became effective only if the other driver's insurer became
insolvent within one year after the accident. However, the court also found that Mission was
judicially declared insolvent more than two years after the accident. In turn, the district court
ruled that Mission's insolvency more than a year after the accident should never have
triggered the coverage provisions of Fellom's UM policy. Thus, the court concluded that NRS
687A.100(1) did not apply to the Fellom litigation because neither Sierra nor Fellom's heir
possessed an insurance policy to exhaust pursuant to NRS 687A.100(1). Therefore, the court
refused to relieve NIGA of its obligation on the Fellom claim.
[Headnote 2]
Substantial evidence in the record supports the district court's findings on this issue.
Indeed we will not disturb a trial court's findings of fact unless they are clearly erroneous and
not based on substantial evidence. Beverly Enterprises v. Globe Land Corp., 90 Nev. 363,
365, 526 P.2d 1179, 1180 (1974).
Thus, we affirm the district court's ruling on this issue. Mission's insolvency should not
have activated Fellom's UM policy provisions because Mission was not insolvent within
the meaning of the UM policy. Thus, irrespective of the interpretation of NRS 687A.100(1),
that statute did not apply to the case. Therefore, NIGA improperly denied its obligations on
behalf of Sierra.
Bad Faith
The district court determined that NIGA's interpretation of NRS 687A.100(1) constituted
bad faith and, thus, awarded Sierra consequential damages in the form of attorney fees.
[Headnote 3]
The district court found that NIGA's bad faith emanated in two forms. First, the district
court reasoned that NIGA inherited Mission's implied covenant of good faith and fair dealing.
The court concluded that NIGA breached this covenant when it failed to settle the Fellom
claim on Sierra's behalf. Second, the district court ruled that NIGA acted in bad faith in a
manner impliedly prohibited by NRS 687A.150 because NIGA's interpretation of NRS
687A.100(1) was unreasonable.
1
We disagree.
__________

1
NRS 687A.150 provides, in part: There is no liability, and no cause of action of any nature shall arise
against . . . the association . . . for any
[Headnote 4]
We hold that NIGA did not owe Sierra a duty of good faith and fair dealing.
In Isaacson v. California Ins. Guar. Ass'n, 750 P.2d 297 (Cal. 1988), the California
Supreme Court noted that the implied covenant of good faith and fair dealing cannot arise out
of the statutorily-created relationship between the guaranty association and the insured. Id. at
306. The Isaacson court held that the guaranty association and the insurer lacked privity of
contract, and thus the insured's common law bad faith claim failed. Id.
[Headnote 5]
Isaacson persuades us. The implied covenant of good faith and fair dealing can only arise
out of a contractual relationship. However, NIGA's relationship with Sierra is purely
statutory. Indeed, regardless of the terms of the insurance agreement between Sierra and
Mission, NIGA's relationship with Sierra is primarily governed by the Act. For example, even
though Sierra's policy with Mission provided Sierra with $500,000 of insurance coverage,
NRS 687A.060 limits NIGA's liability on that same policy to $300,000. Thus, the Act will
control over any contrary provisions of the policy.
Therefore, we conclude that NIGA did not act in bad faith because it did not owe Sierra a
duty of good faith and fair dealing.
[Headnotes 6, 7]
Additionally, NIGA's interpretation of NRS 687A.100(1) was not unreasonable pursuant
to NRS 687A.150. Indeed, in the context of bad faith allegations, attorney fees are
inappropriate when the contested issue involves a question of first impression. Am. Excess
Ins. Co. v. MGM, 102 Nev. 601, 606, 729 P.2d 1352, 1355 (1986). Indisputably, this case
presents complex statutory issues of first impression. Therefore, we reverse the district court's
grant of bad faith damages to Sierra.
We have carefully considered the other issues raised and conclude that they lack merit or
need not be addressed given our disposition of this appeal. Accordingly, we affirm the district
court's order granting Sierra reimbursement for the Fellom settlement, and we reverse the
district court's order granting Sierra bad faith consequential damages and attorney fees.
2

__________
reasonable action taken by them in the performance of their duties and powers under this chapter. (Emphasis
added.) Pursuant to this statute, NIGA may lose its statutory immunity and, thus, incur bad faith liability for
unreasonable actions.

2
The Honorable John C. Mowbray, Chief Justice, did not participate in the decision of this matter.
____________

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108 Nev.

The Second Loretta Bowman Incident

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