Nevada Reports 2004 (120 Nev.) PDF

120 Nev.
1, 1 (2004)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 120
____________
120 Nev. 1, 1 (2004) Aftercare of Clark County v. Justice Ct.
AFTERCARE OF CLARK COUNTY, a Nevada Corporation; AFTERCARE OF NEVADA,
INC., a Nevada Corporation; and MICHAEL MULLINS, Appellants, v. THE
JUSTICE COURT OF LAS VEGAS TOWNSHIP in and for THE COUNTY OF
CLARK; THE HONORABLE JENNIFER TOGLIATTI, Justice of the Peace; and
ERIC LEHY, Respondents.
No. 38625
WILLIAM ROPER, Appellant, v. THE JUSTICE COURT OF LAS VEGAS TOWNSHIP in
and for THE COUNTY OF CLARK; THE HONORABLE JENNIFER TOGLIATTI,
Justice of the Peace; SOLIDAD RAMIREZ and IMELDA IZQUIERDO,
Respondents.
No. 38626
January 23, 2004 82 P.3d 931
Consolidated appeals from district court orders denying petitions for writs of
mandamus or prohibition. Eighth Judicial District Court, Clark County; Valorie Vega (No.
38625) and Mark R. Denton (No. 38626), Judges.
Defendants, who appeared in separate tort actions filed against them as result of two
different automobile accidents, sought extraordinary relief from policy adopted in the
Justice Court of Las Vegas Township, allowing jury trials in civil matters only when the
plaintiff's alleged special damages are $5,000 or more.
traordinary relief from policy adopted in the Justice Court of Las Vegas Township, allowing
jury trials in civil matters only when the plaintiff's alleged special damages are $5,000 or
more. The district court denied relief. Defendants appealed. The supreme court held that the
justice's court's policy violated Nevada constitutional guaranty of trial by jury.
Reversed and remanded with instructions.
Gibbons, J., dissented.
Lemons Grundy & Eisenberg and Robert L. Eisenberg and Tiffinay Barker Pagni,
Reno; William C. Turner & Associates and Michael P. Golden, Las Vegas, for Appellants.
Albert D. Massi, P.C., and Allen A. Cap and Donald C. Kudler, Las Vegas, for
Respondents Solidad Ramirez and Imelda Izquierdo.
David J. Roger, District Attorney, and Robert J. Gower, Deputy District Attorney,
Clark County, for Respondent Justice Court.
Mainor Harris and W. Randall Mainor, Las Vegas, for Respondent Eric Lehy.
1. Jury.
The Nevada constitutional guaranty of trial by jury covers justice's court civil actions
even when small amounts are in controversy, although a different conclusion may be
warranted for justice's court small claims actions. Const. art. 1, 3.
2. Mandamus.
Mandamus, rather than prohibition, is the appropriate remedy to compel the
performance of an act that the law especially enjoins as a duty resulting from an office,
trust or station. NRS 34.160.
3. Jury.
Nevada's jury trial right is defined by English common law as modified at the time of
the Nevada Constitution's adoption. Const. art. 1, 3.
4. Jury.
The Seventh Amendment guarantee of trial by jury does not apply to the states.
Consequently, most states look to the jury trial practice in their own territory or colony
prior to statehood, in addition to the English practice, recognizing that the course of the
common law may have been modified by territorial or colonial statute. U.S. Const.
amend. 7.
Before the Court En Banc.
1

____________________

1
This matter was submitted for decision by the seven-justice court. the Honorable Myron E. Leavitt, Justice,
having died in office on January 9, 2004, this matter was decided by a six-justice court.
OPINION
Per Curiam:
[Headnotes 1, 2]
In these consolidated appeals, we consider whether justices of the peace may deny
jury trials to litigants who have filed a civil action in justice's court, rather than a small claims
action, and seek less than $5,000. The Las Vegas Township Justice's Court has implemented
a policy denying jury trials to litigants unless $5,000 or more is at stake. The district court
declined to issue extraordinary relief compelling justice's court jury trials for the appellants,
who are the defendants in two justice's court civil actions, both involving less than $5,000.
Because we conclude that the justice's court's policy violates the Nevada constitutional
guaranty of trial by jury, we reverse the district court's orders denying extraordinary relief,
and we remand these matters to the district court for the issuance of writs of mandamus,
compelling justice's court jury trials in these cases.
2

FACTS
In 1999, the Las Vegas Township Justice's Court adopted a policy allowing jury trials
only when the plaintiff's alleged special damages are $5,000 or more.
3
The district court
approved the policy, stating that the policy would preserve judicial resources.
4

In 2000, respondents Solidad Ramirez and Imelda Izquierdo filed a justice's court civil
action against appellant William Roper for damages arising from an automobile accident. In
2001, respondent Eric Lehy commenced a justice's court civil action against appellants
Aftercare of Clark County, Aftercare of Nevada, Inc.
____________________

2
Mandamus, rather than prohibition, is the appropriate remedy to compel the performance of an act which
the law especially enjoins as a duty resulting from an office, trust or station. NRS 34.160; see also NRS 34.320
(providing that a writ of prohibition is available to stop extra-jurisdictional judicial proceedings).

3
The respondent Justice's Court and Justice of the Peace assert in their answering brief that the policy allows
jury trials only when special damages are more than $5,000rather than $5,000 or moreand that the policy
complements NRS 73.010's limitation of small claims actions to $5,000 or less. But that assertion is belied by
the record. At least four documents in the record, including the 1999 policy declaration, provide that the
threshold amount for the granting of a jury trial will be the amount of Five Thousand Dollars ($5,000.00) or
more.

4
Watier v. Justice's Court, No. A397046 (8th Jud. Dist. Ct. Sept. 8, 1999) (Order Denying Petition for Writ
of Prohibition).
pellants Aftercare of Clark County, Aftercare of Nevada, Inc., and Michael Mullins for
damages arising from a separate automobile accident. The appellants filed jury trial demands
and deposited the required jury fees.
5
Nevertheless, the justice's court scheduled bench trials
in both cases because the respondents each sought less than $5,000 in special damages. The
appellants then sought extraordinary relief from the district court. Unsuccessful, appellants
then appealed.
DISCUSSION
[Headnote 3]
The Nevada Constitution secures to all the right of trial by jury, and provides that the
right shall remain inviolate forever.
6
This court has consistently stated that the constitutional
right applies as it did under the common law in existence when the Nevada Constitution was
adopted in 1864.
7
Although this statement is technically correct, it does not completely
depict Nevada's jury trial right. Our case law suggests a more precise definition, in line with
federal and out-of-state case law, as well as scholarly commentary. We now clarify our
statement: Nevada's jury trial right is defined by English common law as modified at the time
of the Nevada Constitution's adoption. With the statement clarified, we conclude that the
district court abused its discretion in denying writ relief from the justice's court's policy
requiring bench trials in civil actions under $5,000.
8

[Headnote 4]
A historical approach to construing the jury trial right appears to be universal in
federal and state courts.
9
To determine the reach of the Seventh Amendment right to a jury
trial,
10
federal courts look to jury trial practice in 1791 England, the year in which the
amendment was ratified.
11
The Seventh Amendment does not, however, apply to the states.
____________________

5
See JCRCP 38.

6
Nev. Const. art. 1, 3.

7
E.g., Hudson v. City of Las Vegas, 81 Nev. 677, 409 P.2d 245 (1965); Wainwright v. Bartlett, Judge, 51
Nev. 170, 271 P. 689 (1928).

8
See DR Partners v. Bd. of County Comm'rs, 116 Nev. 616, 621, 6 P.3d 465, 468 (2000) (stating that [a]
district court's decision to grant or deny a writ petition is reviewed by this court under an abuse of discretion
standard).

9
See Margreth Barrett, The Constitutional Right to Jury Trial: A Historical Exception for Small Monetary
Claims, 39 Hastings L.J. 125, 130-33 (1987).

10
The Seventh Amendment provides that [i]n Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved. U.S. Const. amend VII.

11
In re Air Crash Disaster near Roselawn, Ind., 96 F.3d 932, 943 (7th Cir. 1996).
ever, apply to the states.
12
Consequently, most states look to the jury trial practice in their
own territory or colony prior to statehood, in addition to the English practice, recognizing that
the course of the common law may have been modified by territorial or colonial statute.
13

A slightly broader approach is found within our case law. For instance, in State v.
Steward,
14
the issue was whether Steward's jury trial right was infringed when he was tried
in a county other than the county in which the crime was actually committed. We concluded
that the jury trial right was not connected to ancient [English] common law, but rather, to
English common law as modified by English or state statute prior to the Nevada
Constitution's adoption.
15
And in Ex Parte Sloan,
16
we looked favorably to a Colorado
case, McInerney v. City of Denver,
17
and held that adoption of the Nevada Constitution did
not change the practice in this country and in England' that violations of municipal
ordinances could be tried without a jury.
18
Significantly, the McInerney court indicated that
the practice in this country and in England was based on the common or statutory law
[existing] before the adoption of the Colorado Constitution.
19
As recently as 1965, in
Hudson v. City of Las Vegas,
20
we invoked McInerney to again tie Nevada's jury trial right
to the jury trial practice " 'in this country and in England.
____________________

12
Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 432 (1996).

13
See Barrett, supra note 9, at 131; e.g., Kirkland v. Blaine County Medical Center, 4 P.3d 1115, 1118
(Idaho 2000); People ex rel. Daley v. Joyce, 533 N.E.2d 873, 878 (Ill. 1988); Bell v. State, 176 N.W. 544, 544
(Neb. 1920); Gonzales v. Lopez, 52 P.3d 418, 422 (N.M. Ct. App. 2002); Unemployment Comp. Com'n v. J. M.
Willis B. & B. Shop, 15 S.E.2d 4, 7 (N.C. 1941); Greist v. Phillips, 906 P.2d 789, 796-97 (Or. 1995); White v.
White, 196 S.W. 508, 512 (Tex. 1917); Sofie v. Fibreboard Corp., 771 P.2d 711, 718 (Wash. 1989). But see
Keeter v. State, 198 P. 866, 872 (Okla. 1921) (declaring that Oklahoma's jury trial right was not predicated
upon the statutes existing in the territory at [the time of the Oklahoma Constitution's adoption], but upon the
right of the citizen, as the same was guaranteed under the federal Constitution and according to the course of the
common law).

14
74 Nev. 65, 323 P.2d 23 (1958).

15
Id. at 73, 323 P.2d at 26.

16
47 Nev. 109, 217 P. 233 (1923), abrogated on other grounds by Waller v. Florida, 397 U.S. 387 (1970).

17
29 P. 516 (Colo. 1892), abrogated on other grounds by Waller v. Florida, 397 U.S. 387 (1970).

18
Ex Parte Sloan, 47 Nev. at 119, 217 P. at 237 (quoting McInerney, 29 P. at 519).

19
29 P. at 520.

20
81 Nev. 677, 409 P.2d 245 (1965) (determining that a defendant could be tried in municipal court without
a jury trial even though a similar charge in justice's court required a jury trial).
again tie Nevada's jury trial right to the jury trial practice in this country and in England.'
21

Thus, Nevada's jury trial right is based on an 1864 version of the English common law
as statutorily modified in this country. This view is consistent with the framers' use of shall
remain inviolate to perpetuate the jury trial right as it was understood when the Nevada
Constitution was adopted.
22

Regarding the 1864 English common law, the parties disagree regarding the minimum
threshold amount for jury trials and whether that amount is subject to inflation.
23
But we
need not reach those issues. In 1861, Nevada's first territorial legislature removed any
monetary threshold altogether, mandating a jury trial in justice's court for issues of fact,
unless waived.
24
The concern for jury-decision of fact issues was not unique to Nevada.
Seventy years earlier, the same concern prompted the addition of the Seventh Amendment to
the United States Constitution, which provides that [i]n Suits at common law, where the
value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.
25
Undoubtedly aware of that amendment, Nevada's territorial legislature crafted a jury trial
guarantee, but without the twenty-dollar threshold imposed by the Seventh Amendment. Even
the fact that Utah, from which the Nevada territory was carved, copied the Seventh
Amendment's monetary threshold into a statute
26
was not enough to sway our territorial
legislature from designing a jury trial right unencumbered by a monetary threshold.
____________________

21
Id. at 681, 409 P.2d at 247 (quoting McInerney, 29 P. at 519).

22
See Kirkland, 4 P.3d at 1118 (stating that, by employing the phrase shall remain inviolate,' the [Idaho
Constitution's] Framers must have intended to perpetuate the right as it existed at the common law and under
the territorial statutes when the Idaho Constitution was adopted (internal quotation marks and citation
omitted)).

23
English practice around the year 1791 focused on the sum of forty shillings. Barrett, supra note 9, at
145-49. By the early 1800s, the threshold for juryless trials in England had increased to five pounds. Id. at 161
n.172.

24
See 1861 Nev. Laws, ch. 103, 155, at 339 (stating generally that [a]n issue of fact shall be tried by a
jury, unless a jury trial is waived); id. 527, at 404 (stating that, in justice's court, [a] jury trial shall be
demanded at the time of joining issue); id. 648-50, at 424 (authorizing justice's court jury trials in
landlord-tenant disputes).

25
U.S. Const. amend VII; see Jonathan T. Molot, An Old Judicial Role for a New Litigation Era, 113 Yale
L.J. 27, 67-69 (2003) (noting the Anti-Federalist concern that, without a constitutional jury-trial guarantee,
federal judges would emulate the English example and invade the rights of litigants to present their cases to
juries); United States v. Wonson, 28 F. Cas. 745, 750 (C.C.D. Mass. 1812) (At the time when the constitution
was submitted to the people for adoption, one of the most powerful objections urged against it was, that in civil
causes it did not secure the trial of facts by a jury.).

26
1852 Utah Laws, ch. 3, 11, at 134 (withholding jury trials unless the sum in question exceed[ed] twenty
dollars).
The territorial legislature's statutory design endured throughout the Constitutional
Convention of 1864, as the jury trial guarantee emerged without discussion of a minimum
monetary threshold.
27
Even the specific constitutional provision governing justice's court
jurisdiction survived scrutiny by delegates without mention of any monetary minimum for
jury trials.
28
In fact, when debating whether justices' courts should have jurisdiction over
claims up to $300 in value or involving real property, one of the delegates, who was in favor
of justice's court jurisdiction limited only by the sum of $300, suggested that the right of trial
by jury and appeal would ensure the proper treatment of real property claims up to the value
of $300:
Now the question resolves itself into this: Is it safe, or is it not, for a man to go before
a Justice of the Peace, with the right of trial by jury, which men will certainly have in
all cases, to have anything tried in his court affecting either real or personal property,
where the value does not exceed three hundred dollars? . . . If we can feel safe in going
into a Justice's Court to try an amount of three hundred dollars, with the right of trial by
jury, and the subsequent right of appeal, then in my opinion, this proposed amendment
[providing justices' courts with jurisdiction over all claims up to $300, including real
property claims] is a good one.
29

Although the delegates ultimately excluded from justice's court jurisdiction claims involving
title to real property, they did so because real property might quickly appreciate beyond the
$300 jurisdictional limit and require the resolution of difficult issues, but not because of any
perceived limitation on the jury trial right in justice's court.
30

The delegates' omission of a minimum monetary threshold for justice's court jury
trials was consistent with the territorial legislature's edict and with statutes in other states. For
instance, California, which provided the predicate for the Nevada Constitution,
31
had not
imposed a threshold amount for jury trials in justice's court.
____________________

27
See Debates & Proceedings of the Nevada State Constitutional Convention of 1864, at 53-59 (Andrew J.
Marsh off. rep., 1866).

28
See id. at 678-92.

29
Id. at 684-85 (emphasis added) (statement of delegate Lloyd Frizell).

30
Id. at 685 (statement of delegate Cornelius M. Brosnan, stating that one of the most complicated branches
of legal science is that which relates to the investigation of title to real property, and it makes no difference
whether such property be of small or of great value); id. at 687 (statement of delegate Charles E. DeLong,
questioning the procedure to be followed when real property in litigation has appreciated beyond $300 during an
appeal from the justice's court and the appellate court intends to remand for a new trial).

31
Id. at 17 (statement of delegate Neely J. Johnson, observing that the Constitution of California was
adopted as the basis of action of the [1863 Constitutional] Convention); id. at 24 (providing that the
Constitution framed by the Convention of 1863 was adopted as a basis for consideration at the 1864
Constitutional Convention); see also Michael W. Bowers, The Nevada State Constitution 7 (1993) (stating that
most of the 1864 delegates were from California).
imposed a threshold amount for jury trials in justice's court.
32
And New York, which
influenced the drafters of the California Constitution,
33
uniformly . . . allow[ed] a jury trial
even in causes under forty shillings [the eighteenth century English common-law threshold
for juryless proceedings].
34

Thus, we conclude that the Nevada constitutional guaranty of trial by jury covers
justice's court civil actions even when small amounts are in controversy. A different
conclusion may be warranted, however, for justice's court small claims actions. But the
instant actions were not commenced as small claims actions. And the Iowa case cited by the
respondent Justice's Court and Justice of the Peace in support of the $5,000 jury trial
threshold, Iowa National Mutual Insurance Co. v. Mitchell,
35
involved a proceeding
commenced under Iowa's Small Claims Act. In contrast to Nevada, an Iowa plaintiff who
seeks recovery of a small monetary sum ($5,000 or less) is confined to seeking relief in a
small claims proceeding.
36
But in Nevada, the same plaintiff could commence in justice's
court either a small claims action or a civil action.
37
Mitchell's reasoning that a jury trial may
be withheld in a small claims proceeding in the interests of cost to the parties, time
constraints, and judicial resources
38
is not entirely convincing in a Nevada justice's court
civil action, which is not designed to be "simple and informal.
____________________

32
See Cal. Const. art. 1, 3 (1849) (The right of trial by jury shall be secured to all, and remain inviolate
forever . . . .); id. art. 6, 9 (The Legislature shall determine the number of justices of the peace to be elected
in each city and township of the State, and fix by law their powers, duties and responsibilities . . . .); 1851 Cal.
Laws, ch. 5, 155, at 74 (stating generally that an issue of fact shall be tried by a jury, unless waived); id. 587,
at 144 (providing that a jury trial in justice's court is waived unless demanded at the time of joining issue);
1863 Cal. Laws, ch. 405, 29, at 638 (providing that either party to a justice's court action may demand a jury
before the trial's commencement); see also Leuschen v. Small Claims Court, 215 P. 391, 393 (Cal. 1923) (stating
that, under California's Small Claims Act of 1921, a plaintiff with a claim less than $50 may either proceed to a
trial before the justice of the peace or follow the customary procedure and demand a jury (quotation marks
and citation omitted) (emphasis added)).

33
Golden Gateway v. Tenants Association, 29 P.3d 797, 804 (Cal. 2001).

34
Comment, Legislation: Small Claims Courts, 34 Colum. L. Rev. 932, 939 n.58 (1934); see also 3 N.Y.
Rev. Stat., Part 3, ch. 2, title 4, art. 7, 83 (1859) (After issue joined, and before the justice shall proceed to an
investigation of the merits of the cause, by an examination of a witness or the hearing of any other testimony,
either of the parties, or the attorney of either of them, may demand of the justice that the cause be tried by a
jury.).

35
305 N.W.2d 724 (Iowa 1981).

36
Iowa Code Ann. 631.1(1) & 631.8(3) (West Supp. 2003).

37
See JCRCP 2 (designating three forms of action in justice's court: civil actions, small claims actions, and
summary eviction actions).

38
305 N.W.2d at 728.
Nevada justice's court civil action, which is not designed to be simple and informal.
39
Withholding a jury trial in a civil action pursuant to the justice's court's policy merely creates
a hybrid small claims court, which conducts juryless proceedings like its 1923
legislatively-created relative,
40
but which maintains most of the litigation formalities
customary in regular civil proceedings, such as pleading practice and discovery.
41
Such a
hybrid court bears little resemblance to common-law small claims courts, which traded
valuable, but often complex and expensive practices, including the right to trial by jury, in
exchange for cheap and efficient legal solutions to minor monetary disputes.
42

CONCLUSION
Because the Las Vegas Township Justice's Court's policy violates the Nevada
constitutional guaranty of trial by jury, we reverse the district court orders that denied
appellants' petitions for writ relief, and we remand these cases to the district court for the
issuance of writs of mandamus, compelling justice's court jury trials in these cases.
Gibbons, J., dissenting:
The district courts did not abuse their discretion in denying the petitions for writs of
prohibition or, in the alternative, writs of mandamus.
Pursuant to NRS 73.010, under certain criteria, the justices' courts may treat actions
where the amount claimed does not exceed $5,000 as a small claims action. NRS 73.060
further provides that general provisions of law applicable to proceedings in justices' courts
not in conflict with NRS Chapter 73 shall apply. Therefore, we must examine whether there
is a constitutional right in Nevada to jury trials for small or minor claims.
Article 1, Section 3 of the Nevada Constitution provides that [t]he right of trial by
Jury shall be secured to all and remain inviolate forever. We have previously concluded that
this provision refers to the right of trial by jury as it existed at the time of the adoption of the
Nevada Constitution, and does not confer any right thereto where it did not exist at that
time.
____________________

39
Id. at 725 (citing Iowa Code Ann. 631.11(1)).

40
1923 Nev. Stat., ch. 149, 1, at 260-64.

41
Compare JCRCP 88 (stating that a small claims action is commenced by affidavit), and JCRCP 96
(providing for informal resolution of small claims actions), with JCRCP 7(a) (designating civil action
pleadings, including complaints and answers), and JCRCP 26(a) (listing civil action discovery mechanisms,
including depositions, interrogatories and physical and mental examinations).

42
See Barrett, supra note 9, at 125-27.
right thereto where it did not exist at that time.
1
The provision does not extend the right to a
jury trial, but merely preserves the right to trial by jury as it existed at common law.
2
Therefore, the types of cases in which a party was entitled to a jury trial before the Nevada
Constitution's adoption remain subject to a jury trial right; other cases in which a party was
not entitled to a jury trial do not become subject to that right through the constitutional
provision.
3

Courts utilize a historical analysis to determine whether a jury trial is required.
4
First, the court must determine if the present cause of action was tried at law at the time of
the founding or is at least analogous to one that was.'
5
Next, the court must determine
whether the nature of the relief sought is legal or equitable.
6

Under the common law, tort actions were brought under the writs of trespass and
trespass on the case.
7
Trespass remedied direct, forcible tortious injuries, while the later
developed trespass on the case remedied indirect or consequential harms.
8
Tort actions
involving a claim for money damages were generally triable to a jury at common law.
9
However, if the amount of the claim was insignificant, a jury trial was not required.
10

It had been a well established practice in England, and in our early colonial times,
that actions for small demands were triable before certain officers having a limited
jurisdiction, without a jury . . . . The sum of forty shillings was fixed upon, then and for
many years subsequently, as the dividing line between what was petty and insignificant,
and what was of importance in point of value.
11

Therefore, cases involving minor claims do not have a right to a jury trial under either
the United States Constitution or the Nevada Constitution because no such right existed
under the common law.
____________________

1
Hudson v. City of Las Vegas, 81 Nev. 677, 680, 409 P.2d 245, 246-47 (1965).

2
Id.

3
Howard v. State, 83 Nev. 53, 57, 422 P.2d 548, 550 (1967).

4
See Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 708 (1999).

5
Id. (quoting Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996)).

6
Id. at 723 (Scalia, J., concurring).

7
Id. at 729 (Scalia, J., concurring).

8
Id. (Scalia, J., concurring).

9
Id. (Scalia, J., concurring).

10
Iowa Nat. Mut. Ins. Co. v. Mitchell, 305 N.W.2d 724, 727 (Iowa 1981).

11
Id. (quoting J. Profatt, A Treatise on Trial by Jury 99, at 142 (1877)); see also Capital Traction
Company v. Hof, 174 U.S. 1, 16-17 (1899).
Nevada Constitution because no such right existed under the common law. The Seventh
Amendment of the United States Constitution adopted this distinction between petty,
insignificant claims and important claims.
12
The Seventh Amendment of the United States
Constitution provides that [i]n Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved.
13

The question becomes whether the constitutional right to a jury trial is confined to a
strict equivalent of forty shillings under English common law or whether the determination of
what is a minor claim, not requiring a jury trial, is flexible, allowing for changing social and
economic conditions.
14

The common law,' expressly referred to in the federal clause and implicitly
preserved in [Nevada's Constitution] is not a fixed and immutable body of unchanging rules,'
but was and is characterized by occasional flexibility and capacity for growth in order to
respond to changing social pressures.'
15
Even in colonial times, the jurisdictional limitation
for nonjury trials was altered by the legislatures.
16
Further, the United States Supreme Court
has stated, It never could be the intention of the constitution to tie up the hands of the
legislature, so that no change of jurisdiction could be made, and no regulation even of the
right of trial by jury could be had.
17

The Legislature set $7,500 as the jurisdictional limit for personal injury claims heard
in the justices' court.
18
The Legislature also established guidelines for jury trials in the
justices' courts.
19
Justices' Courts Rule of Civil Procedure (JCRCP) 38(a) provides that
[t]he right of trial by jury as declared by the Constitution of the State or as given by a statute
of the State shall be preserved to the parties inviolate. This indicates an intent for jury trials
to be available in the justices' courts, while at the same time limiting the right to a jury trial
where the claim is $5,000 or less.
____________________

12
See Mitchell, 305 N.W.2d at 727.

13
[S]tate courts are never subject to the Seventh Amendment, no matter the nature of the claim . . . .
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 79 n.5 (1989) (White, J., dissenting).

14
See Mitchell, 305 N.W.2d at 728-29.

15
Id. at 728 (quoting Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn.
L. Rev. 639, 736 (1973)).

16
Id. (citing Profatt, supra note 11, 100, at 143-44).

17
Capital Traction Company, 174 U.S. at 27.

18
NRS 4.370(1)(b). Effective January 1, 2005, the jurisdictional limit for justices' courts civil cases will
increase from $7,500 to $10,000. 2003 Nev. Stat., ch. 160, 2, 7, at 849, 853. Legislation also provides for the
establishment of a mandatory short trial program for civil cases in the justices' courts, with exceptions for certain
circumstances, including small claims actions. Id. 3, at 850-51.

19
See NRS 67.010-050.
In response to an order from the district court, the justices' courts, in 1999, established
a jurisdictional threshold amount of more than $5,000 in provable damages
20
for holding
jury trials. The district court ruled that this jurisdictional limit for jury trials in the justices'
courts was a reasonable limit since $5,000 is the limit for small claims actions. This
limitation is based on an objective criterion, the amount set by the Legislature for small
claims.
The justices' courts determined on their own initiative that the right to a jury trial
should be restricted to cases involving provable damages of more than $5,000. JCRCP
39(a) adopted by this court states in pertinent part:
When trial by jury has been demanded as provided in Rule 38, the action shall be
designated as a jury action. The trial of all issues so demanded shall be by jury, unless .
. . (2) the court upon motion or of its own initiative finds that a right of trial by jury of
some or all of those issues does not exist under the Constitution or statutes of the State.
Similarly, in criminal cases, when the Sixth Amendment of the United States
Constitution applies directly to state court actions,
21
the right to a trial by jury depends on
whether the offense is characterized as petty or serious.
22
In recent decisions, the
United States Supreme Court has increasingly relied upon the objective criterion of the
maximum possible penalty in deciding whether to characterize an offense as petty' or
serious.'
23
The Court has concluded that whenever the maximum authorized prison term
for an offense is greater than six months, the defendant is entitled to a jury trial.
24
The Court
stated that the disadvantages of such a sentence, onerous though they may be, may be
outweighed by the benefits that result from speedy and inexpensive nonjury adjudications.'
25

In Blanton v. North Las Vegas Municipal Court, this court relied upon policy
considerations to limit when jury trials are required in criminal cases.
26
These policy
considerations included the fact that nonjury trials are speedy and inexpensive, jury trials
impose burdens on jurors, and there are administrative problems involved in providing
jury trials.
____________________

20
Provable damages is defined as earnings, medical expenses, property damages and similar tangible
expenses (i.e., out-of-pocket expenses).

21
Blanton v. North Las Vegas Mun. Ct., 103 Nev. 623, 633, 748 P.2d 494, 500 (1987), aff'd sub nom.
Blanton v. City of North Las Vegas, 489 U.S. 538 (1989).

22
State v. Smith, 99 Nev. 806, 809, 672 P.2d 631, 633 (1983).

23
Id. (citations omitted).

24
Blanton, 489 U.S. at 542 (citing Baldwin v. New York, 399 U.S. 66, 69 (1970) (plurality opinion)).

25
Id. at 543 (quoting Baldwin, 399 U.S. at 73 (plurality opinion)).

26
103 Nev. at 634-35, 748 P.2d at 501.
nonjury trials are speedy and inexpensive, jury trials impose burdens on jurors, and there are
administrative problems involved in providing jury trials.
27
Jury trials in small civil matters
should be limited, based on these same policy considerations. Civil litigants in minor cases
must be able to present their arguments in a forum which does not require formal knowledge
of procedures such as selecting jurors and presenting jury instructions.
The justices of the peace in Las Vegas Township had the right to consider these
actions as small claims. The Supreme Court of Iowa agreed with this premise by finding that
parties are not entitled to jury trials when the relief sought is $5,000 or less.
28
The justices of
the peace should have the right to adopt the same policy in Nevada.
____________
120 Nev. 13, 13 (2004) Firestone v. State
RONALD E. FIRESTONE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 38269
January 30, 2004 83 P.3d 279
Appeal from a district court order denying a post-conviction petition for a writ of
habeas corpus. Eighth Judicial District Court, Clark County; Joseph T. Bonaventure, Judge.
Driver was convicted in the district court on multiple counts of leaving scene of single
accident with multiple victims. Driver appealed. The supreme court dismissed appeal. Driver
then petitioned for a writ of habeas corpus. The district court denied petition. Driver
appealed. The supreme court, Shearing, C. J., held that: (1) driver may not be convicted of
multiple counts of leaving the scene of an accident when there is more than one victim in a
single accident, and (2) trial and appellate counsel rendered ineffective assistance by failing to
raise meritorious challenge to multiple convictions.
Affirmed in part, reversed in part, and remanded.
Gibbons, J., dissented.
Gary E. Gowen, Las Vegas, for Appellant.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney,
James Tufteland, Chief Deputy District Attorney, and Thomas M.
____________________

27
Id.

28
Iowa Nat. Mut. Ins. Co. v. Mitchell, 305 N.W.2d 724 (Iowa 1981).
and Thomas M. Carroll, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
A driver may not be convicted of multiple counts of leaving the scene of an accident
when there is more than one victim in a single accident. The statute allows only one
charge of leaving the scene of a single accident, regardless of the number of victims.
NRS 484.219.
2. Criminal Law.
To establish ineffective assistance of counsel, a petitioner must demonstrate that
counsel's performance fell below an objective standard of reasonableness and that
counsel's deficient performance prejudiced the defense. U.S. Const. amend. 6.
3. Criminal Law.
To establish prejudice based on the deficient assistance of appellate counsel, the
petitioner must show that the omitted issue would have a reasonable probability of
success on appeal. U.S. Const. amend. 6.
4. Criminal Law.
Trial and appellate counsel rendered ineffective assistance by failing to raise
meritorious challenge to multiple convictions for leaving the scene of a single accident
with multiple victims. U.S. Const. amend. 6; NRS 484.219.
5. Criminal Law.
Statutory interpretation is a question of law reviewed de novo.
6. Statutes.
When a statute is unambiguous, it should be given its plain meaning.
7. Sentencing And Punishment.
A court should normally presume that a legislature did not intend multiple
punishments for the same offense absent a clear expression of legislative intent to the
contrary.
8. Statutes.
Criminal statutes must be strictly construed and resolved in favor of the defendant.
1

OPINION
By the Court, Shearing, C. J.:
[Headnote 1]
This appeal raises the issue of whether a defendant may be convicted of multiple
counts of leaving the scene of an accident when there is more than one victim in a single
accident. We conclude that NRS 484.219 allows only one charge of leaving the scene of a
single accident, regardless of the number of victims.
____________________

1
This matter was submitted for decision by the seven-justice court. The Honorable
Myron E. Leavitt, Justice, having died in office on January 9, 2004, this matter was decided
by a six-justice court.
Therefore, we vacate two of Ronald Firestone's convictions for leaving the scene of an
accident.
FACTS
The State charged Firestone with three felony counts of leaving the scene of an
accident. Firestone pleaded not guilty, and the case went to jury trial.
At the jury trial, the Werly family testified that around 10:30 p.m. on July 29, 1996,
they were returning home to Boulder City, Nevada, from Nelson, Nevada, in two Toyota
trucks. One truck was driven by the father, Tony, with his daughter, Jill, as a passenger. The
second truck was driven by the mother, Susan, with Roxanne and Joel, Susan and Tony's
daughter and son, as passengers. Approximately seven miles east of Nelson, Tony and Jill
encountered a Buick coming toward them in their lane. Tony managed to swerve into the
desert to avoid a collision. Susan, driving behind Tony in the second vehicle, failed to see the
oncoming Buick due to the hilly terrain and collided with the oncoming Buick. Susan,
Roxanne, and Joel sustained numerous injuries.
Both Jill and Tony testified that at the accident scene, they saw a middle-aged man
with a scruffy appearance emerge from the Buick and approach Susan's truck. Tony
recognized the driver as Ronald Firestone. Firestone asked both Jill and Tony if they were
okay. Tony refused Firestone's offer to help and pushed Firestone away. Firestone then
walked into the desert, leaving his Buick at the accident scene.
The jury found Firestone guilty of three counts of leaving the scene of an accident.
The district court sentenced Firestone to a maximum term of 180 months with parole
eligibility after 72 months in the Nevada Department of Prisons on each of the three counts,
to be served consecutively. Firestone appealed that conviction. This court dismissed
Firestone's direct appeal.
2
Firestone's counsel failed to raise the issue of duplicitous
convictions at trial or on appeal.
3

Firestone filed a timely post-conviction petition for a writ of habeas corpus alleging
that his trial and appellate counsel was ineffective for a number of reasons, including failing
to object at trial and raise on direct appeal the issue that Firestone's three counts of leaving the
scene of the accident resulted in duplicitous convictions. The district court denied Firestone's
petition for post-conviction relief. Firestone filed a timely notice of appeal.
____________________

2
Firestone v. State, Docket No. 30330 (Order Dismissing Appeal, December 20, 1999).

3
Firestone was represented by the same attorney at trial and on direct appeal.
DISCUSSION
Firestone's only meritorious allegation of ineffective assistance of counsel is his
argument that his counsel should have raised the issue of duplicitous convictions.
[Headnotes 2-4]
To establish ineffective assistance of counsel, a petitioner must demonstrate that
counsel's performance fell below an objective standard of reasonableness
4
and that
counsel's deficient performance prejudiced the defense.
5
To establish prejudice based on
the deficient assistance of appellate counsel, the [petitioner] must show that the omitted issue
would have a reasonable probability of success on appeal.
6
We conclude that Firestone's
trial and appellate counsel was ineffective for failing to challenge the multiple counts of
leaving the scene of an accident. Counsel's performance was deficient and prejudiced the
defense by omitting an issue that, as explained below, clearly has merit and undermines two
of the convictions.
Firestone argues that his constitutional right against double jeopardy has been violated
because the district court convicted Firestone of three counts of leaving the scene of the
accident. We disagree with Firestone that this case requires a double jeopardy analysis; we
conclude that the issue is one of statutory interpretation.
[Headnotes 5-8]
Statutory interpretation is a question of law reviewed de novo.
7
When a statute is
unambiguous it should be given its plain meaning.
8
[A] court should normally presume that
a legislature did not intend multiple punishments for the same offense absent a clear
expression of legislative intent to the contrary.
9
Criminal statutes must be strictly
construed and resolved in favor of the defendant.
10

Firestone was convicted of three counts of leaving the scene of the accident pursuant
to NRS 484.219. NRS 484.219 provides:
1. The driver of any vehicle involved in an accident on a highway or on premises to
which the public has access resulting in bodily injury to or the death of a person shall
immediately stop his vehicle at the scene of the accident or as close thereto as
possible, and shall forthwith return to and in every event shall remain at the scene
of the accident until he has fulfilled the requirements of NRS 4S4.223.
____________________

4
Strickland v. Washington, 466 U.S. 668, 688 (1984).

5
Id. at 687.

6
Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996).

7
Construction Indus. v. Chalue, 119 Nev. 348, 351, 74 P.3d 595, 597 (2003).

8
Id.

9
Talancon v. State, 102 Nev. 294, 300, 721 P.2d 764, 768 (1986).

10
Anderson v. State, 95 Nev. 625, 629, 600 P.2d 241, 243 (1979); see also City Council of Reno v. Reno
Newspapers, 105 Nev. 886, 894, 784 P.2d 974, 979 (1989).
ing in bodily injury to or the death of a person shall immediately stop his vehicle at the
scene of the accident or as close thereto as possible, and shall forthwith return to and in
every event shall remain at the scene of the accident until he has fulfilled the
requirements of NRS 484.223.
2. Every such stop must be made without obstructing traffic more than is necessary.
3. A person failing to comply with the provisions of subsection 1 is guilty of a
category B felony and shall be punished by imprisonment in the state prison for a
minimum term of not less than 2 years and a maximum term of not more than 15 years
and by a fine of not less than $2,000 nor more than $5,000.
NRS 484.223 provides:
1. The driver of any vehicle involved in an accident resulting in injury to or death of
any person or damage to any vehicle or other property which is driven or attended by
any person shall:
(a) Give his name, address and the registration number of the vehicle he is driving,
and shall upon request and if available exhibit his license to operate a motor vehicle to
any person injured in such accident or to the driver or occupant of or person attending
any vehicle or other property damaged in such accident;
(b) Give such information and upon request manually surrender such license to any
police officer at the scene of the accident or who is investigating the accident; and
(c) Render to any person injured in such accident reasonable assistance, including the
carrying, or the making of arrangements for the carrying, of such person to a physician,
surgeon or hospital for medical or surgical treatment if it is apparent that such treatment
is necessary, or if such carrying is requested by the injured person.
2. If no police officer is present, the driver of any vehicle involved in such accident
after fulfilling all other requirements of subsection 1 and NRS 484.219, insofar as
possible on his part to be performed, shall forthwith report such accident to the nearest
office of a police authority or of the Nevada highway patrol and submit thereto the
information specified in subsection 1.
Only NRS 484.219 includes a provision making the failure to remain at the scene of
an accident a crime. NRS 484.223 merely describes the duties of one involved in an accident,
but the statute does not provide a sanction for failing to fulfill those duties. The only sanction
is for leaving the scene of an accident before those duties are fulfilled.
only sanction is for leaving the scene of an accident before those duties are fulfilled.
Violation of NRS 484.219 does not depend on the number of people injured. The Legislature
has stated that the violation is simply leaving the scene of an accident. Since there was only
one accident, and one leaving, the statute allows only one charge of leaving the scene of an
accident, regardless of the number of people involved. Counsel clearly should have raised this
meritorious issue, and the failure to do so provided Firestone with ineffective assistance of
counsel.
We therefore affirm the district court's order in part and reverse it in part. We remand
this matter to the district court to vacate two of the convictions for leaving the scene of an
accident and for any further proceedings consistent with this opinion.
Agosti, Rose, Becker and Maupin, JJ., concur.
I respectfully disagree with the majority. In accidents involving drunk driving, we
have long established the rule that a course of conduct resulting in harm to multiple victims
gives rise to multiple charges of the offense.
1
Although this case does not involve the drunk
driving statute, NRS 484.3795, it involves the same societal interests. The Legislature was
concerned with minimizing the injuries in drunk driving accidents when it enacted NRS
484.3795.
2
The same is true for violations of NRS 484.219. The Legislature's motive for
enacting both statutes was to protect citizens. This is evidenced by the reference in NRS
484.219 to NRS 484.223, which places a duty on the driver to provide information and give
aid.
Since we have upheld multiple convictions based on multiple victims in a drunk
driving accident, we should uphold multiple convictions based on multiple victims here as
well.
3
Because the Legislature enacted NRS 484.219 for the purpose of protecting the public
in the same manner as NRS 484.3795, there should be a separate count for each victim. We
should follow established precedent and use the same analogy in this case. Firestone caused a
head-on collision which directly injured three individuals. NRS 484.219(1) requires that
[t]he driver of any vehicle involved in an accident on a highway . . . resulting in bodily
injury . . . shall remain at the scene of the accident. NRS 484.219 also requires the driver to
comply with NRS 484.223 to give information and render aid. Firestone did not comply with
the statute because he immediately left the scene of the accident.
____________________

1
Galvan v. State, 98 Nev. 550, 555, 655 P.2d 155, 157 (1982).

2
Id.

3
Woods v. State, 114 Nev. 468, 478, 958 P.2d 91, 97 (1998).
mediately left the scene of the accident. Firestone did not give the victims any information,
nor did he provide needed aid to those suffering from injuries that he caused. A jury found
him guilty on three counts of violating NRS 484.219. Firestone's convictions should be
upheld in the interest of protecting the public and serving justice. Therefore, I would affirm
the order of the district court denying post-conviction relief.
____________
120 Nev. 19, 19 (2004) State, Dep't of Transp. v. PERS
THE STATE OF NEVADA ex rel. DEPARTMENT OF TRANSPORTATION, Appellant, v.
PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF NEVADA, a Public Agency,
Respondent.
No. 38388
January 30, 2004 83 P.3d 815
Appeal from a district court order granting a petition for a writ of mandamus. First
Judicial District Court, Carson City; Michael R. Griffin, Judge.
Public Employees' Retirement System of Nevada (PERS) filed a petition for a writ of
mandamus for order directing state agency to pay PERS for back employee and employer
contributions to the retirement system plus interest on behalf of five archeologists whom
agency treated as independent contractors instead of employees. The district court issued the
writ of mandamus. Agency appealed. The supreme court, Shearing, C. J., held that: (1) the
cause of action accrued when PERS Board determined that the archeologists were employees
and not independent contractors, (2) doctrine of laches did not bar action, and (3) substantial
evidence supported finding that the agency was obligated to pay PERS $345,284.62 for back
employee and employer contributions plus interest.
Affirmed.
Brian Sandoval, Attorney General, and Brian R. Hutchins, Chief Deputy Attorney
General, Carson City; Easterly Armstrong & Lambert and John E. Lambert, Elko, for
Appellant.
Woodburn & Wedge and W. Chris Wicker, Reno, for Respondent.
1. Limitation of Actions.
Cause of action for collection of back employee and employer contributions to Public
Employees' Retirement System of Nevada (PERS) accrued, and three-year limitations
period began to run, when PERS Board determined that certain archeologists
employed by state agency were employees and not independent contractors, not
when agency first contracted with the archeologists.
determined that certain archeologists employed by state agency were employees and not
independent contractors, not when agency first contracted with the archeologists. NRS
11.190(3)(a).
2. States.
Public Employees' Retirement System of Nevada (PERS), rather than archeologists
hired by state agency, was real party in interest, for purposes of petition for writ of
mandamus directing agency to pay PERS for back employee and employer
contributions on archeologists' behalf; PERS Board was required to seek contributions
from the agency, as part of its statutory duty, if state agency failed to properly enroll any
employee in the retirement system, regardless of whether employee wanted PERS to
pursue the action. NRS 286.190(1), 286.220, 286.290, 286.421(4), 286.460(6).
In determining whether a statute of limitations has run against an action, the time must
be computed from the day the cause of action accrued.
A cause of action accrues when a suit may be maintained thereon.
5. Officers and Public Employees.
Public Employees' Retirement System of Nevada (PERS) has a duty to manage the
retirement system according to the statutes and is not bound by options selected by the
employees. NRS 286.190.
6. States.
Doctrine of laches did not bar action of the Public Employees' Retirement System of
Nevada (PERS) for order directing state agency to pay PERS for back employee and
employer contributions on behalf of five archeologists whom agency treated as
independent contractors instead of employees, where PERS had no knowledge of the
relationship between agency and the subject archeologists until it audited the
relationship, and agency did not show that any delay caused it prejudice.
7. States.
Substantial evidence supported findings of the Public Employees' Retirement System
of Nevada (PERS) that state agency was obligated to pay PERS $345,284.62 for back
employee and employer contributions to retirement system, plus interest on behalf of
five archeologists whom agency treated as independent contractors instead of
employees, where PERS' audit was supported by interviews with agency's other
employees, applicable law and policies, documentation provided by agency, cultural
resource use permits, training certificates received by workers, and numerous
memoranda from agency's staff.
1

OPINION
This is an appeal from a district court order granting a petition for a writ of
mandamus, directing the Nevada Department of Transportation {NDOT) to pay the Public
Employees' Retirement System of Nevada {PERS) $345,2S4.62 for back employee and
employer contributions plus interest on behalf of five archeologists whom NDOT treated
as independent contractors instead of employees.
____________________

1
This matter was submitted for decision by the seven-justice court. The Honorable Myron E. Leavitt,
Justice, having died in office on January 9, 2004, this matter was decided by a six-justice court.
Transportation (NDOT) to pay the Public Employees' Retirement System of Nevada (PERS)
$345,284.62 for back employee and employer contributions plus interest on behalf of five
archeologists whom NDOT treated as independent contractors instead of employees. We
affirm the judgment of the district court.
During the period from March 1982 to September 1991, NDOT contracted with five
archeologists for services. NDOT treated the archeologists as independent contractors and,
therefore, paid no contributions to the retirement system on their behalf. In 1997 and 1998,
after one of the archeologists inquired of PERS about his status, PERS conducted an audit to
determine whether the archeologists were employees or independent contractors. The auditors
concluded that the terms under which the archeologists worked met the twenty-point test used
by the Internal Revenue Service for classifying workers as employees rather than as
independent contractors. The auditors recommended that NDOT be responsible for paying the
full cost of the five archeologists' retroactive enrollment in the retirement system.
The audit report and NDOT's response was provided to the Public Employees'
Retirement Board (the Board). After a hearing, the Board accepted the audit report and its
recommendations and assessed NDOT $206,475.14 for unpaid employee/employer
contributions, plus $138,809.49 in interest.
When NDOT failed to pay, PERS filed a petition for a writ of mandamus in the
district court. NDOT filed a motion to dismiss the petition, arguing that the statute of
limitations and laches bar recovery and that the archeologists were not employees during the
contested period. The district court held that the statute of limitations had not run, laches was
not applicable, and PERS's determination of the archeologists' status was not arbitrary and
capricious, and issued the writ of mandamus. NDOT appeals.
Statute of limitations
[Headnotes 1, 2]
The parties agree that the applicable statute of limitations is NRS 11.190(3)(a), which
provides that the statute of limitations for [a]n action upon a liability created by statute is
three years. The issue disputed by the parties is when the statute of limitations began to run.
NDOT argues that the statute of limitations began to run in 1981 when NDOT first contracted
with the five archeologists, because the archeologists are the real parties in interest.
[Headnotes 3-5]
In determining whether a statute of limitations has run against an action, the time
must be computed from the day the cause of action accrued.
tion accrued. A cause of action accrues' when a suit may be maintained thereon.
2
Nevada
law mandates that the Board determine who are employees for purposes of enrollment in the
retirement system.
3
The Board is responsible for managing the retirement system
4
and
maintaining the public employees' retirement fund.
5
All public employers must participate in
the retirement system and their employees must be members of the system.
6
Public
employers must deposit all contributions into the retirement fund.
7
If a public employer fails
to properly enroll an employee, the Board must seek contributions from the public employer
as part of its statutory duty,
8
regardless of whether the employee wants PERS to pursue the
action. For instance, even if the archeologists had agreed not to seek credit towards
retirement, PERS would still have had to collect employer contributions from NDOT. PERS
has a duty to manage the retirement system according to the statutes, and is not bound by
options selected by the employees. Thus, PERS was the real party in interest for the
underlying writ petition.
The cause of action against NDOT arose when the Board determined that the
archeologists were employees, which occurred on April 14, 1999. Until that determination
was made, there was no cause of action. After various attempts by PERS to collect from
NDOT failed, PERS filed a petition with the district court on February 25, 2000, well within
the three-year statute-of-limitations period.
Doctrine of laches
[Headnote 6]
NDOT argues that PERS's cause of action is barred by laches. The district court found
that laches does not apply because PERS had no knowledge of the relationship between
NDOT and the subject archeologists until it audited the relationship. Knowledge on the part
of the entity against whom laches is sought is an essential element of laches. We agree.
Furthermore, NDOT did not show that any delay caused it prejudice. NDOT cannot avoid its
statutory obligation by asserting the equitable doctrine of laches.
9

____________________

2
Clark v. Robison, 113 Nev. 949, 951, 944 P.2d 788, 789 (1997) (citations omitted).

3
NRS 286.040(3).

4
NRS 286.190(1).

5
NRS 286.220.

6
NRS 286.290. Chapter 286 does contain exceptions to this provision, however, this case does not fall into
any of those exceptions.

7
NRS 286.421(4). An exception does exist for police officers and firefighters. Id.

8
See NRS 286.460(6).

9
See NRS 286.290(2) (stating that all public employers must participate in the retirement system and their
employees must be members of the system).
Standard of review
[Headnote 7]
NRS 286.040(3) provides that [t]he board shall determine who are employees. No
trial de novo in district court is allowed.
10
The decisions of the PERS Board are reviewable
by the courts on the basis of the same standard of review applied to other administrative
actions.
11
In this case, NDOT argues that PERS's finding is clearly erroneous and arbitrary
and capricious. We disagree. The audit was based on interviews with NDOT employees,
applicable law and policies, documentation provided by NDOT, cultural resource use permits,
training certificates received by workers, and numerous memoranda from NDOT staff.
Substantial evidence supports the PERS findings. This court will not substitute its judgment
of the evidence for that of the administrative agency.
12

The order of the district court is affirmed. NDOT must pay the amount assessed for
unpaid employee/employer contributions plus interest.
13

Agosti, Rose, Becker, Maupin and Gibbons, JJ., concur.
____________
120 Nev. 23, 23 (2004) Beckwith v. State Farm Fire & Cas. Co.
JOSHUA L. BECKWITH and WILLIAM MARTIN RECCELLE, Appellants, v. STATE
FARM FIRE AND CASUALTY COMPANY, Respondent.
No. 39084
January 30, 2004 83 P.3d 275
Appeal from a district court order granting summary judgment in a declaratory
judgment action. Second Judicial District Court, Washoe County; Janet J. Berry, Judge.
Homeowners' insurer sought a declaratory judgment that policy provided no liability
coverage for voluntarily intoxicated insured's act of striking victim in face. The district court
entered summary judgment in favor of insurer. Insured appealed. The supreme court, Maupin,
J., held that: (1) the act was not an occurrence within the meaning of the liability
coverage, and {2) intentional-acts exclusion applied.
____________________

10
See NRS 233B.135(3).

11
Id.

12
United Exposition Service Co. v. SIIS, 109 Nev. 421, 423, 851 P.2d 423, 424 (1993).

13
Although NDOT is responsible for paying both employee and employer contributions under NRS
286.460(6), the statute also provides [t]he public employer is entitled to recover from the employee the
employee contributions and interest thereon.
the meaning of the liability coverage, and (2) intentional-acts exclusion applied.
Affirmed.
Rose, J., with whom Shearing, C. J., agreed, dissented.
Law Offices of Joe E. Colvin and Joe E. Colvin, Reno, for Appellant Reccelle.
Laxalt & Nomura, Ltd., and Robert A. Dotson and Devon T. Reese, Reno, for
Appellant Beckwith.
Burton Bartlett & Glogovac and Scott A. Glogovac and Gregory J. Livingston, Reno,
for Respondent.
1. Insurance.
Regardless of the insured's intoxicated state, the act of striking another is intentional,
is not a covered occurrence under liability insurance coverage, and is subject to a
properly drafted intentional acts exclusion clause.
2. Appeal And Error.
Orders granting summary judgment are reviewed de novo.
3. Judgment.
Summary judgment is appropriate when, after a review of the record viewed in a light
most favorable to the non-moving party, there remain no genuine issues of material
fact, and the moving party is entitled to judgment as a matter of law. NRCP 56.
4. Insurance.
Voluntarily intoxicated insured's act of striking victim in face during hallucination
was not an occurrence within the meaning of the liability coverage of a homeowners'
insurance policy; whether the insured thought that the victim was God or the insured's
evil master was irrelevant because the insured admittedly struck the victim in the eye
with the desire of getting away, and this was a non-accidental intentional act even if the
insured did not intend to harm the victim.
5. Insurance.
Liability coverage for voluntarily intoxicated insured's act of striking victim in face
during hallucination was barred by homeowners' insurance policy exclusion of
coverage for injury which was expected or intended by the insured or resulted from
malicious acts. Even though the insured claimed that he did not intend to injure the
victim and acted in self-defense, the exclusion properly dovetailed with the policy
requirement of an accidental event.
1

____________________

1
OPINION
By the Court, Maupin, J.:
[Headnote 1]
In this appeal, we consider whether the intentional misconduct of an intoxicated
insured is covered under a homeowner's personal third-party liability policy. We conclude
that, regardless of the insured's intoxicated state, the act of striking another is intentional, that
such an act is not a covered occurrence under the policy in question here, and that such
incidents are subject to a properly drafted intentional acts exclusion clause. Consequently,
we hold that the liability insurer in this instance is under no duty to defend or indemnify its
insured in connection with an action seeking damages stemming from the insured's
intentional infliction of bodily injury, even when the insured was intoxicated or believed he
acted in self-defense.
FACTS
On July 7, 2000, appellant Joshua L. Beckwith ingested alcohol, LSD, and marijuana
during a party at a friend's residence. While walking home, he experienced hallucinations,
disrobed, and entered a trailer park near the Truckee River in downtown Reno. Shortly
thereafter, appellant William Martin Reccelle confronted Beckwith because children were
playing in the area. In response, Beckwith began screaming and writhing on the ground,
asking Reccelle if he was God. Apparently, Beckwith also believed that he was a dog and
Reccelle was his evil master. Although Reccelle attempted to reassure Beckwith, Beckwith
struck Reccelle in the face, rupturing Reccelle's eye.
Beckwith pleaded nolo contendere to criminal charges stemming from the assault.
Subsequently, Reccelle filed a civil complaint against Beckwith, alleging assault and battery,
and negligence. Beckwith requested that respondent State Farm Fire and Casualty Company
defend and indemnify him with respect to the civil action, pursuant to his homeowner's
insurance policy. State Farm initially agreed, but then filed a declaratory judgment action
seeking a judicial declaration of non-coverage in connection with the incident.
State Farm ultimately moved for summary judgment on the coverage issues, arguing
that the incident was not a covered occurrence as defined in the policy, and that the policy's
intentional-acts exclusionary clause precluded coverage. Beckwith and Reccelle filed separate
cross-motions for summary judgment, arguing that due to his intoxication, Beckwith could
not have acted intentionally when he struck Reccelle.
ing that due to his intoxication, Beckwith could not have acted intentionally when he struck
Reccelle. Beckwith also argued that, at the time he struck Reccelle, he believed he was acting
in self-defense and, thus, his actions were not intentional.
The district court granted State Farm's motion for summary judgment, concluding that
the insurance policy did not cover Beckwith's intentional act of striking Reccelle. Beckwith
and Reccelle appeal jointly.
DISCUSSION
[Headnotes 2, 3]
We review orders granting summary judgment de novo.
2
Summary judgment is
appropriate when, after a review of the record viewed in a light most favorable to the
non-moving party, there remain no genuine issues of material fact, and the moving party is
entitled to judgment as a matter of law.
3

The insurance agreement in this case obligates State Farm to defend and indemnify
Beckwith in connection with actions brought against him for damages caused by an
occurrence. The policy defines the term occurrence as an accident resulting in bodily
injury. Although the policy does not define the term accident, a common definition of the
term is a happening that is not expected, foreseen, or intended.
4
In addition, the policy
contains exclusionary language precluding coverage for bodily injury or property damage (1)
which is either expected or intended by the insured; or (2) which is the result of willful and
malicious acts of the insured.
This court dealt with a similarly worded insurance policy in Mallin v. Farmers
Insurance Exchange.
5
In Mallin, this court observed that 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.
6
Applying this definition of intent, we
concluded that a homeowner's liability insurance policy did not cover the insured's actions of
fatally shooting his wife and two of her friends, despite a claim that the insured did not intend
his actions because he acted in a psychotic fit of rage.
7
We also noted that the insured's
supposed inability to control his acts [was] not the same as an inability to intend his
acts.
____________________

2
Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989).

3
Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985).

4
Webster's New World Dictionary 8 (3d ed. 1988).

5
108 Nev. 788, 790, 839 P.2d 105, 106 (1992) (reviewing an insurance policy providing coverage for
damages from an accident and exempting damages resulting from intentional acts of the insured).

6
Id. at 791, 839 P.2d at 107.

7
Id. at 789, 839 P.2d at 106.
posed inability to control his acts [was] not the same as an inability to intend his acts.
8

[Headnotes 4, 5]
We take this opportunity to extend our holding in Mallin and reject appellants'
argument that Beckwith was unable to act intentionally as a result of his voluntary
intoxication.
9
Whether Beckwith thought Reccelle was God or his evil master is of no matter
because he admittedly struck Reccelle in the eye with the desire of getting away from him.
This is a non-accidental intentional act even if Beckwith did not intend to harm Reccelle.
Thus, we conclude that Beckwith's act of striking Reccelle is not an occurrence under the
insurance policy
10
and is excluded from coverage under the policy language concerning
intentional misconduct.
11
In this, we recognize Beckwith's claims that the intentional-acts
exclusion does not apply because, given his advanced state of intoxication, he did not intend
to injure Reccelle and that, because he believed he acted in self-defense, his conduct was not
malicious. We reject this line of argument because the exclusion properly dovetails with the
reasonable construction of the policy that an occurrence requires an accidental event.
12
Accordingly, State Farm is not obligated to defend or indemnify Beckwith with respect to any
judgment obtained against him by Reccelle.
____________________

8
Id. at 792, 839 P.2d at 107.

9
See, e.g., Wessinger v. Fire Ins. Exchange, 949 S.W.2d 834, 840 (Tex. App. 1997) (concluding that
voluntary intoxication cannot be used to defeat the intent requirement in an insurance policy).

10
See Hooper v. State Farm Mut. Auto. Ins. Co., 782 So. 2d 1029, 1033 (La. Ct. App. 2001) (observing that
summary judgment was properly granted in favor of the insurance company because an insured acts intentionally
when he strikes another in the face with a closed fist, despite a claim that the act was not intentional); Royal
Indem. Co. v. Love, 630 N.Y.S.2d 652, 654 (Sup. Ct. 1995) (concluding that intentional assault is an intentional
act, and thus, cannot constitute an accident); Wessinger, 949 S.W.2d at 841 (concluding that the act of striking
another is not an occurrence because such an act is voluntary and intentional, not accidental).

11
See Ohio Cas. Ins. Co. v. Henderson, 939 P.2d 1337, 1343 (Ariz. 1997) (concluding that an
intentional-acts exclusionary clause applies when the nature and circumstances of the insured's acts are such that
harm is substantially certain to result); Hanover Ins. Co. v. Newcomer, 585 S.W.2d 285, 289 (Mo. Ct. App.
1979) (concluding that the act of swinging a machete is an intentional act from which an injury could be
expected, hence, evidence that the insured was under the influence is of no consequence in determining whether
coverage is precluded by the intentional-acts exclusionary clause); Ludwig v. Dulian, 579 N.W.2d 795, 799
(Wis. Ct. App. 1998) (concluding that an intentional-acts exclusionary clause precludes insurance coverage
where a purposeful act is substantially certain to produce injury, despite an insured's claim that he did not intend
any harm).

12
See supra note 10.
CONCLUSION
Applying this court's holding in Mallin, we conclude that Beckwith's act of striking
Reccelle was intentional; and thus, the act was not an occurrence under the insurance policy.
Likewise, notwithstanding Beckwith's claim that he was too intoxicated to intend the acts and
resulting injuries to Reccelle, the intentional-act exclusionary clause applies to negate
coverage.
We therefore affirm the district court's order granting summary judgment in favor of
State Farm.
Becker and Gibbons, JJ., concur.
Agosti, J., concurring:
I concur with the majority because under the circumstances presented here, the
insured's intoxication was voluntary. I do not believe that one who voluntarily intoxicates or
drugs oneself and then relinquishes all responsibility for one's acts, claiming them to be
negligent or accidental, ought to obtain the protection from personal liability that a policy of
insurance affords. I believe, however, that if one's intoxication or drugged state is imposed
upon him or her, the coverage result would be far different. In that case, I would agree with
the dissent that public policy considerations ought to favor coverage.
Rose, J., with whom Shearing, C. J., agrees, dissenting:
I disagree with the majority's conclusion that an insured's intoxication should not be
considered in determining whether he acted intentionally. Additionally, I do not believe that
this court's holding in Mallin v. Farmers Insurance Exchange
1
requires us now to dismiss
the possibility that intoxication may vitiate intent. Indeed, in Mallin, this court observed that
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.
2
I believe that intoxication may present such a circumstance.
Several courts have held that intoxication may negate an insured's intent.
3
These
courts have based their decisions on public policy considerations, namely:
____________________

1
108 Nev. 788, 839 P.2d 105 (1992).

2
Id. at 793-94, 839 P.2d at 108.

3
See, e.g., Republic Ins. Co. v. Feidler, 875 P.2d 187, 192 (Ariz. Ct. App. 1993) (observing that a
voluntarily intoxicated insured may lack the mental capacity to form the intent required to invoke a policy
exclusion for intentional acts of the insured); State Farm Fire & Cas. Co. v. Morgan, 364 S.E.2d 62, 64 (Ga. Ct.
App. 1987) (same); Allstate Ins. Co. v. Carioto, 551 N.E.2d 382, 389 (Ill. Ct. App. 1990) (same); Hanover Ins.
Co. v. Talhouni, 604 N.E.2d
With respect to voluntary intoxication, the public policy considerations applicable to a
criminal prosecution are not decisive as to liability insurance coverage. In criminal
matters there is reason to deal cautiously with a plea of intoxication, and this [sic] to
protect the innocent from attack by drunken men. . . .
But other values are involved in the insurance controversy. The exclusion of
intentional injury from coverage stems from a fear that an individual might be
encouraged to inflict injury intentionally if he was assured against the dollar
consequences. Pulling the other way is the public interest that the victim be
compensated, and the victim's rights being derivative from the insured's, the victim is
aided by the narrowest view of the policy exclusion consistent with the purpose of not
encouraging an intentional attack. And the insured, in his own right, is also entitled to
the maximum protection consistent with the public purpose the exclusion is intended to
serve.
4

I agree with the policy behind allowing an insured to argue that intoxication vitiated
his intent. Based on the facts presented in this case, the question of whether Beckwith's
intoxication vitiated his intent should be a factor for the trier of fact to consider when
determining whether State Farm has a duty to defend and indemnify Beckwith.
5
Accordingly, I would reverse the district court's order granting summary judgment in State
Farm's favor.
____________________
689, 692 (Mass. 1992) (same); Safeco Ins. Co. v. McGrath, 817 P.2d 861, 864 (Wash. Ct. App. 1991) (same);
Morris v. Farmers Ins. Exchange, 771 P.2d 1206, 1215 (Wyo. 1989) (same).

4
Burd v. Sussex Mutual Insurance Company, 267 A.2d 7, 15 (N.J. 1970) (citations omitted).

5
See McGrath, 817 P.2d at 864 (concluding that whether an insured may be so intoxicated as to be unable to
form an intent to commit an act is a question for the trier of fact).
____________
120 Nev. 30, 30 (2004) Crowley v. State
JOHN CROWLEY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 39513
January 30, 2004 83 P.3d 282
Appeal from a judgment of conviction pursuant to a jury verdict of sexual assault of a
child under fourteen, sexual assault of a child under sixteen, lewdness with a child under
fourteen, and two counts of open or gross lewdness. First Judicial District Court, Carson City;
William A. Maddox, Judge.
The supreme court, Gibbons, J., held that: (1) convictions for sexual assault and
lewdness with a minor were redundant, and (2) testimony of investigator that defendant's wife
told her that her husband acted inappropriately when intoxicated was admissible as prior
inconsistent statement.
Affirmed in part, reversed in part and remanded.
Robert B. Walker, Carson City, for Appellant.
Brian Sandoval, Attorney General, Carson City; Noel S. Waters, District Attorney,
and Jason D. Woodbury, Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
Convictions for sexual assault and lewdness with a minor were redundant, requiring
reversal of lewdness conviction. Defendant's act of rubbing victim's penis on outside of
his pants was a prelude to touching victim's penis inside his underwear and performing
fellatio on him. By touching and rubbing victim's penis, defendant sought to arouse
victim and create willingness to engage in sexual conduct, and thus, defendant's actions
were not separate and distinct but were part of the same episode. NRS 200.366(1),
201.230.
2. Criminal Law.
Reversal is required for redundant convictions that do not comport with legislative
intent.
3. Indictment and Information.
Lewdness with a child under the age of fourteen is not an included offense of the
crime of sexual assault. NRS 200.366(1), 201.230.
4. Criminal Law.
Testimony of investigator from Division of Child and Family Services that
defendant's wife told her that, when her husband drank, he [did] those kind of things,
was admissible as a prior inconsistent statement, in prosecution for sex offenses.
Defendant's wife denied telling investigator that her husband acted inappropriately
when intoxicated, indicating that she did not remember ever having told investigator
this, and thus, wife's failure to recall what she had said constituted prior inconsistent
statement. NRS 51.035(2)(a).
5. Criminal Law.
Trial courts have considerable discretion in determining the relevance and
admissibility of evidence.
6. Criminal Law.
An appellate court should not disturb the trial court's evidentiary ruling absent a clear
abuse of discretion.
7. Criminal Law.
When a trial witness fails, for whatever reason, to remember a previous statement
made by that witness, the failure of recollection constitutes a denial of the prior
statement that makes it a prior inconsistent statement pursuant to statute providing that
a statement is not hearsay if it is inconsistent with declarant's testimony. In this
circumstance, the previous statement is not hearsay and may be admitted both
substantively and for impeachment. NRS 51.035(2)(a).
1

OPINION
By the Court, Gibbons, J.:
Appellant John Crowley contends that (1) sexual assault and lewdness with a minor
are redundant convictions requiring a reversal of the lewdness conviction, (2) consecutive
sentences for sexual assault and lewdness with a minor constitute cruel and unusual
punishment, and (3) the district court improperly admitted a hearsay statement made by
Crowley's wife. We agree with Crowley's contention that his sexual assault and lewdness with
a minor convictions are redundant, but we find Crowley's other arguments inapposite.
Therefore, we reverse the conviction for lewdness with a minor under fourteen and remand
the case to the district court for a new sentencing in accordance with this opinion.
FACTS
The thirteen-year-old male victim and Allan Perkett, the boyfriend of the male
victim's mother, went to Crowley's room at the Downtowner Motor Inn in Carson City to
watch wrestling on television. At some point, Perkett left the room. Crowley called the male
victim's mother to ask if the male victim could spend the night. The male victim testified he
felt uncomfortable about spending the night with Crowley, but stayed for a while to watch
television and eat dinner.
The male victim testified that Crowley approached him as he sat on the bed eating.
Crowley then rubbed the male victim's penis with his hand on the outside of his pants, pulled
down the male victim's pants, and performed fellatio on him.
____________________

1
Crowley testified that although the male victim and Perkett came to his room, he was
never alone with the male victim and did not molest him. Further, he testified that the male
victim declined his invitation to spend the night and departed with Perkett.
Crowley's thirteen-year-old stepdaughter also accused Crowley of sexual molestation.
She testified that Crowley touched her inappropriately with his hand and tongue on several
occasions, mostly when her mother was asleep. Specifically, Crowley fondled his
stepdaughter's breasts underneath her clothing and also placed his hand and tongue on her
vagina.
The State charged Crowley with sexual assault and lewdness with a minor under
fourteen years of age for his conduct with the male victim. Additionally, the State charged
Crowley with two counts of sexual assault and two counts of open or gross lewdness for his
conduct involving his stepdaughter. The district court dismissed one count of sexual assault
involving the stepdaughter.
At trial, Crowley's wife testified for the State. On direct examination, she admitted to
a conversation with Dot Brownfield, a Division of Child and Family Services investigator,
regarding accusations that Crowley molested his stepdaughter. Crowley's wife testified that
she did not recall details of the conversation. She also did not recall saying, It's just
something he does when he gets drunk.
The State then called Brownfield to testify about her conversation with Crowley's
wife. Crowley objected on hearsay grounds when the State asked Brownfield what Crowley's
wife said about the accusations. The State argued the statement was a prior inconsistent
statement and thus non-hearsay testimony. The district court allowed Brownfield to testify
that [Crowley's wife] indicated that when her husband drinks occasionally, he,
quote-unquote, does those kind of things, and it's just part of his behavior when he drinks.
A jury found Crowley guilty on all counts. The district court, pursuant to statutory
guidelines, sentenced Crowley to two consecutive life sentences with the possibility of parole
on the sexual assault and lewdness convictions involving the male victim. The district court
imposed concurrent sentences for the crimes against the stepdaughter. This appeal followed.
DISCUSSION
Redundant convictions
[Headnote 1]
NRS 200.366(1) provides:
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
will of the victim 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.
the victim 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.
NRS 201.230 defines lewdness, in relevant part, as the willful and lewd commission
of
any lewd or lascivious act, other than acts constituting the crime of sexual assault, upon
or with the body, or any part or member thereof, of a child under the age of 14 years,
with the intent of arousing, appealing to, or gratifying the lust or passions or sexual
desires of that person or of that child.
[Headnotes 2, 3]
In Braunstein v. State,
2
we concluded that [t]he crimes of sexual assault and
lewdness are mutually exclusive and convictions for both based upon a single act cannot
stand. Reversal is required for redundant convictions that do not comport with legislative
intent.'
3
Our decision in Braunstein is consistent with our holding in Townsend v. State
4
that it is clear that lewdness with a child under the age of fourteen cannot be deemed an
included offense of the crime of sexual assault. The express language of the lewdness statute
precludes this.
Crowley argues his conduct immediately preceding the sexual assault on the male
victim was incidental. Therefore, his conviction for lewdness with a minor was redundant and
should be reversed. We agree.
Although the facts of a case may support convictions on separate charges even
though the acts were the result of a single encounter and all occurred within a relatively short
time,
5
the case at bar does not warrant separate convictions. In Wright v. State,
6
the
accused attempted to sexually assault the victim, but stopped when a car passed the area of
the assault. After the car passed, the accused resumed his assault.
7
We affirmed convictions
for both attempted sexual assault and sexual assault despite the short time period between
both acts.
8
In Townsend, we affirmed separate convictions for fondling a victim's breasts
and digitally penetrating the victim.
____________________

2
118 Nev. 68, 79, 40 P.3d 413, 421 (2002).

3
Id. (quoting Albitre v. State, 103 Nev. 281, 283, 738 P.2d 1307, 1309 (1987)).

4
103 Nev. 113, 120, 734 P.2d 705, 710 (1987).

5
Wright v. State, 106 Nev. 647, 650, 799 P.2d 548, 549-50 (1990).

6
Id. at 650, 799 P.2d at 549.

7
Id.

8
Id. at 650, 799 P.2d at 549-50; see also Wicker v. State, 95 Nev. 804, 806, 603 P.2d 265, 267 (1979)
(explaining that, statutorily, the accused performed separate acts and could be convicted of a separate offense for
each act notwithstanding the short period of time between acts).
tions for fondling a victim's breasts and digitally penetrating the victim.
9
We held that
because Townsend stopped that activity [fondling the child's breasts] before proceeding
further, separate acts of lewdness occurred.
10

The facts of this case are distinguishable from both Wright and Townsend. The State
charged Crowley with sexual assault and lewdness with a minor for his actions involving the
male victim. The victim testified that Crowley rubbed [his] private parts with his hand on
the outside of his pants. Crowley then put his hand inside the male victim's underwear and
touched his penis. Finally, Crowley pulled [the male victim's] pants down, and used his
mouth and sucked [his] private parts.
Unlike Wright and Townsend, Crowley never interrupted his actions. Crowley's act of
rubbing the male victim's penis on the outside of his pants was a prelude to touching the
victim's penis inside his underwear and the fellatio. By touching and rubbing the male
victim's penis, Crowley sought to arouse the victim and create willingness to engage in sexual
conduct. Crowley's actions were not separate and distinct; they were a part of the same
episode. Because Crowley intended to predispose the victim to the subsequent fellatio, his
conduct was incidental to the sexual assault and cannot support a separate lewdness
conviction.
11
Therefore, we conclude that Crowley's convictions for sexual assault and
lewdness with a minor are redundant, and we reverse the conviction for lewdness with a
minor.
12

Prior inconsistent statements
[Headnotes 4-6]
Trial courts have considerable discretion in determining the relevance and
admissibility of evidence. An appellate court should not disturb the trial court's ruling absent
a clear abuse of that discretion.
13

____________________

9
103 Nev. at 121, 734 P.2d at 710.

10
Id.

11
NRS 200.364(2) defines sexual penetration, as used in NRS 200.366, as cunnilingus, fellatio, or any
intrusion, however slight, of any part of a person's body or any object manipulated or inserted by a person into
the genital or anal openings of the body of another, including sexual intercourse in its ordinary meaning.

12
Given our conclusion that the lewdness with a minor conviction must be reversed, we need not consider
Crowley's argument that the district court violated the constitutional proscription against cruel and unusual
punishment by ordering that the sentences for the lewdness and sexual assault of a child under fourteen be served
consecutively.

13
Atkins v. State, 112 Nev. 1122, 1127, 923 P.2d 1119, 1123 (1996) (citation omitted).
NRS 51.035 defines hearsay as a statement offered in evidence to prove the truth of
the matter asserted. Under subsection 2 of that statute, a statement is not hearsay if it is
inconsistent with the declarant's testimony and the declarant is subject to cross-examination
concerning the statement. Further, NRS 50.135(2) precludes admission of [e]xtrinsic
evidence of a prior contradictory statement by a witness unless [t]he statement fulfills all
the conditions required by subsection 3 of NRS 51.035; or . . . [t]he witness is afforded an
opportunity to explain or deny the statement and the opposite party is afforded an opportunity
to interrogate him thereon.
14

Crowley contends the district court erred by admitting his wife's statement under the
prior inconsistent statement exception. Crowley argues the statement was consistent with her
testimony and should have been excluded. We disagree.
Crowley's wife testified about a conversation she had with Brownfield, an investigator
with the Division of Child and Family Services. She denied telling the investigator that her
husband acted inappropriately when intoxicated. Specifically, she stated that she did not
remember ever saying anything like that. The State then called Brownfield as a witness.
Brownfield, over Crowley's objection, testified about the comments made by Crowley's wife.
[Headnote 7]
We conclude that when a trial witness fails, for whatever reason, to remember a
previous statement made by that witness, the failure of recollection constitutes a denial of the
prior statement that makes it a prior inconsistent statement pursuant to NRS 51.035(2)(a).
The previous statement is not hearsay and may be admitted both substantively and for
impeachment.
This conclusion is in harmony with our prior decisions. In Atkins v. State,
15
we held
that a witness's failure to recall might be construed as a denial of a prior statement. As such, a
district court may admit a prior statement as inconsistent with the presumed lack of memory
at trial.
16
The United States Court of Appeals for the Ninth Circuit similarly upheld the
admission of a prior inconsistent statement when the witness was allowed at some point to
explain or deny the prior inconsistent statement.
17
Therefore, we conclude the district court
properly admitted Brownfield's testimony.
____________________

14
NRS 50.135(2).

15
112 Nev. 1122, 1129-30, 923 P.2d 1119, 1124 (1996).

16
See id.; see also 3 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual 613-1 to 613-29 (8th ed.
2002).

17
See U.S. v. Young, 86 F.3d 944, 949 (9th Cir. 1996).
CONCLUSION
Having considered each of Crowley's arguments, we conclude that his challenge to the
lewdness conviction has merit, but that his other arguments lack merit. We therefore affirm
the convictions for sexual assault of a child under fourteen, sexual assault of a child under
sixteen, and open or gross lewdness, but we reverse the conviction for lewdness with a child
under fourteen and remand the case to the district court for resentencing.
Shearing, C. J., Agosti, Rose and Becker, JJ., concur.
Maupin, J., concurring:
I concur with the result reached by the majority in this appeal. I write separately to
note my view that, separate and apart from the majority's analysis of NRS 51.035(2)(a),
admission of Mrs. Crowley's out-of-court statement to Dot Brownfield, the Division of Child
and Family Services investigator, did not violate the basic prohibitions against admission of
hearsay evidence.
Hearsay, as defined in the Nevada evidence code, means a statement offered in
evidence to prove the truth of the matter asserted [in the statement].
1
Thus, aside from NRS
51.035(2)(a), which defines prior inconsistent statements of a testifying witness as
non-hearsay, Mrs. Crowley's out-of-court statements to Ms. Brownfield would technically
fall within the statutory definition of hearsay. In my view, notwithstanding the statutory
definition, any out-of-court statement is admissible as non-hearsay when the hearsay
declarant appears in court and subjects himself or herself to confrontation by the parties.
To explain, the traditional formulation of the hearsay rule is more elaborate than the
simple statutory formulation embraced by the Nevada Legislature in NRS 51.035. Under the
traditional formulation, hearsay is an out-of-court statement offered to prove the truth of its
contents, the probative value of which is dependent upon the credibility of a witness that
cannot be cross-examined.
2
By way of history, while the short formulation was adopted for
ease of use in the courtroom, the traditional formulation has never been abandoned as a real
matter because the essence of the hearsay rule is the guarantee of due process
confrontation of witnesses.
____________________

1
NRS 51.035.

2
See Ohio v. Roberts, 448 U.S. 56, 62 n.4 (1980) (quoting E. Cleary, McCormick on Evidence 246, at 584
(2d ed. 1972)):
With the caveat, [s]implification has a measure of falsification, McCormick defines hearsay evidence
as testimony in court, or written evidence, of a statement made out of court, the statement being offered
as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the
credibility of the out-of-court asserter.
abandoned as a real matter because the essence of the hearsay rule is the guarantee of due
process confrontation of witnesses.
3

Here, Mrs. Crowley was in court, was competent to testify, and was subject to
cross-examination. The right of confrontation inherent in the hearsay rule was thus not
violated. Accordingly, I would hold that no substantive hearsay violation occurs when the
hearsay declarant is in court and subject to cross-examination.
____________
120 Nev. 37, 37 (2004) Thomas v. State
MARLO THOMAS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 40248
February 10, 2004 83 P.3d 818
habeas corpus. Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge.
Defendant was convicted in the district court of capital murder arising from burglary
and robbery, and he received two death sentences. Defendant appealed, and the supreme
court, 114 Nev. 1127, 967 P.2d 1111 (1998), affirmed. Defendant then filed post-conviction
petition for a writ of habeas corpus. The district court denied petition, and defendant
appealed. The supreme court held that: (1) defendant failed to comply with appellate rule
requiring adequate record and citation to specific portions of record to support claims, (2)
trial counsels' failure to correct erroneous instruction regarding Board of Pardons' ability to
modify sentence of life without possibility of parole stated claim for ineffective assistance,
(3) defendant was not entitled to relief on other claims of alleged ineffective assistance of
trial or appellate counsel, (4) case that disapproved of instruction regarding premeditation did
not apply retroactively to allow challenge to same instruction, (5) defendant was not entitled
to instruction that robbery did not occur if intent to rob was formed after murder, {6) trial
court was not precluded from considering aggravating circumstances that murders were
committed in course of robbery and that they were committed in course of burglary, and
{7) prosecutor's comments during penalty phase exceeded bounds of permissible
argument.
____________________

3
See 5 John Henry Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common
Law 1362, at 7 (3d ed. 1940) (It is thus apparent that the essence of the Hearsay rule is a requirement that
testimonial assertions shall be subjected to the test of cross-examination.); Carl C. Wheaton, What is Hearsay?,
46 Iowa L. Rev. 210, 224 (1961) ([T]he only purpose served by confrontation is that it provides an opportunity
for cross-examination.). Cf. California v. Green, 399 U.S. 149, 155-56 (1970) (while protections afforded by
hearsay rules and Confrontation Clause overlap and generally protect similar values, their protections are not
exactly congruent).
(6) trial court was not precluded from considering aggravating circumstances that murders
were committed in course of robbery and that they were committed in course of burglary, and
(7) prosecutor's comments during penalty phase exceeded bounds of permissible argument.
David M. Schieck, Las Vegas, for Appellant.
and Clark A. Peterson, Chief Deputy District Attorney, Clark County, for Respondent.
1. Habeas Corpus.
Counsel's mere citation to habeas corpus petition in support of claims of error in
capital murder trial did not comply with appellate rule requiring that every assertion in
brief be supported by reference to specific part of transcript where matter relied upon
was to be found and that court be provided with portions of record essential to
determination of issues. NRAP 28(e).
2. Criminal Law.
A claim of ineffective assistance of counsel presents a mixed question of law and fact,
subject to independent review. U.S. Const. amend. 6.
3. Criminal Law.
To establish ineffective assistance of counsel, a claimant must show both that
counsel's performance was deficient and that the deficient performance prejudiced the
defense. U.S. Const. amend. 6.
4. Criminal Law.
To show prejudice for counsel's allegedly deficient performance in support of a claim
for ineffective assistance, the claimant must show a reasonable probability that but for
counsel's errors the result of the trial would have been different. U.S. Const. amend. 6.
5. Criminal Law.
In considering a claim of ineffective assistance of counsel, judicial review of a
lawyer's representation is highly deferential, and a claimant must overcome the
presumption that a challenged action might be considered sound strategy. U.S. Const.
amend. 6.
6. Criminal Law.
The constitutional right to effective assistance of counsel extends to a direct appeal.
U.S. Const. amend. 6.
7. Criminal Law.
To establish prejudice from appellate counsel's failure to present an issue, as grounds
for a claim of ineffective assistance of appellate counsel, the claimant must show that
the omitted issue would have had a reasonable probability of success on appeal. U.S.
Const. amend. 6.
8. Criminal Law.
A petitioner for post-conviction relief is entitled to an evidentiary hearing only if he
supports his claims with specific factual allegations that if true would entitle him to
relief.
9. Criminal Law.
A post-conviction petitioner is not entitled to an evidentiary hearing if the factual
allegations are belied or repelled by the record.
10. Criminal Law.
The post-conviction petitioner has the burden of establishing the factual allegations in
support of his petition in order to be entitled to an evidentiary hearing on his claims.
11. Criminal Law; Pardon and Parole.
State Board of Pardons did not have power to commute sentence of life in prison
without parole to sentence allowing for possibility of parole, and thus, counsel's failure
to object to erroneous penalty phase instruction that Board could, under certain
circumstances, modify sentence, constituted deficient performance that prejudiced
defendant, as required to support claim of ineffective assistance of counsel, in capital
murder trial. Jury could have reasonably believed that death sentence was necessary to
prevent possibility that defendant could eventually receive parole if they returned
sentence of life without possibility of parole, and prejudice was exacerbated by
prosecutor's comments regarding future danger that defendant posed. U.S. Const.
amend. 6; NRS 213.085.
12. Criminal Law.
Counsel's failure to object to victim impact evidence was not deficient performance
that prejudiced defendant, as required to support claim for ineffective assistance of
counsel, in sentencing for capital murder, absent any showing that victim impact
evidence rendered proceeding fundamentally unfair, that probative value of evidence
was substantially outweighed by danger of unfair prejudice or confused or misled jury,
or that evidence was impalpable or highly suspect. U.S. Const. amend. 6.
Victim impact evidence must be excluded if it renders the proceeding fundamentally
unfair or if its probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues or of misleading the jury. NRS 48.035.
Victim impact evidence is inadmissible if it is impalpable or highly suspect.
15. Courts.
Case that disapproved of instruction that premeditation could be as instantaneous as
successive thoughts of the mind did not apply retroactively to allow challenge to same
instruction in capital murder trial that took place three years earlier.
16. Homicide.
Defendant was not entitled to instruction that robbery, which was predicate offense
for felony murder, did not occur if intent to rob was formed after murders; when intent
to rob was formed was irrelevant to prosecution for robbery, and in any case, evidence
that defendant pointed gun at manager and demanded he open safe showed that intent
to rob restaurant preceded murders of restaurant employees.
17. Criminal Law.
Counsels' failure to request trial court admonish jury with respect to unsolicited
testimony referring to defendant's prior time in jail did not constitute deficient
performance that prejudiced defendant, as required to support claim for ineffective
assistance of counsel, in capital murder trial; admonishment might have reinforced the
effect of the testimony, and there was no probability that admonishment would have
produced different result. U.S. Const. amend. 6.
Trial court was not precluded from consideration of aggravating circumstances that
murders were committed in course of robbery and that murders were committed in
course of burglary, in capital sentencing hearing, despite defendant's contention
that the aggravators were overlapping.
murders were committed in course of burglary, in capital sentencing hearing, despite
defendant's contention that the aggravators were overlapping.
19. Criminal Law.
To determine if prejudicial prosecutorial misconduct occurred during closing
argument, the relevant inquiry is whether a prosecutor's statements so infected the
proceedings with unfairness as to make the results a denial of due process. U.S. Const.
amend. 14.
20. Criminal Law.
In reviewing a claim of prosecutorial misconduct during argument, the statements
should be considered in context, and a criminal conviction is not to be lightly
overturned on the basis of a prosecutor's comments standing alone.
21. Criminal Law; Sentencing and Punishment.
Prosecutor's comments during sentencing hearing for capital murder, that this is not a
rehabilitation hearing, and that there is no program we know of that rehabilitates
killers, constituted improper comments on facts or inferences not supported by
evidence, and were not invited by any argument by defense counsel, and thus, counsels'
failure to object to comments constituted deficient performance, for purposes of claim
of ineffective assistance at sentencing. U.S. Const. amend. 6.
Prosecutor's comment during closing argument that jury should show defendant same
mercy he showed murder victims exceeded bounds of permissible argument, in
sentencing for capital murder, in that comment was calculated to incite unreasonable
and retaliatory sentencing decision, rather than decision based on reasoned moral
response to evidence presented, and comment was not in response to any plea by
defense counsel for mercy.
23. Criminal Law.
Merely conclusory allegation that counsel failed to conduct adequate investigation,
that they did not confer with defendant before trial, and that they were responsible for
too many other cases, without more, did not state claim for ineffective assistance of
counsel, in trial for capital murder. U.S. Const. amend. 6.
24. Criminal Law.
Defendant could not incorporate by reference supplemental petition listing potential
witnesses for guilt phase of capital murder trial in brief on appeal from denial of
post-conviction relief. NRAP 28(e).
25. Criminal Law.
Allegation that counsel did not call any witnesses during guilt phase did not state
claim for ineffective assistance of counsel, in capital murder trial; affidavit named only
witnesses allegedly relevant to penalty phase, and defendant failed to explain what
witnesses' testimony might have been or how it would have altered outcome of trial.
26. Criminal Law.
Defendant was not prejudiced by appellate counsel's alleged failure to include
transcripts of hearing on motion to dismiss trial counsel in record on appeal in order to
substantiate claims of ineffective assistance of trial counsel, as required to support
claim of ineffective assistance of appellate counsel, insofar as supreme court generally
declines to address claims of ineffective assistance of counsel on direct appeal. U.S.
Const. amend. 6.
27. Criminal Law; Homicide.
Instruction allowing jury to imply malice when no considerable provocation appears
or when circumstances of killing show abandoned and malignant heart," was not
erroneous, and therefore, appellate counsel's failure to challenge instruction did not
constitute ineffective assistance.
malignant heart, was not erroneous, and therefore, appellate counsel's failure to
challenge instruction did not constitute ineffective assistance. U.S. Const. amend. 6.
28. Habeas Corpus.
Defendant was procedurally barred from asserting on appeal from denial of habeas
corpus relief claims challenging appellate review of capital murder cases and death
sentences and alleging underrepresentation of African-Americans in jury pools, where
he failed to show cause for failure to raise claim earlier, and he failed to show how he
was prejudiced.
OPINION
Per Curiam:
In April 1996, appellant Marlo Thomas robbed a manager and killed two employees at
a restaurant where he formerly worked. He was convicted of two counts of first-degree
murder and four other felonies and received two sentences of death. Thomas appealed, and
this court affirmed his conviction and sentence.
1
He filed a post-conviction petition for a
writ of habeas corpus, and the district court denied the petition. He appeals. We conclude that
Thomas's counsel were ineffective in failing to object to an incorrect instruction on sentence
commutation at the penalty phase of his trial and that a new penalty hearing is required.
FACTS
2

At about 7:30 a.m. on April 15, 1996, Thomas drove with his wife Angela and
Angela's fifteen-year-old brother, Kenya Hall, to the Lone Star Steakhouse in Las Vegas. The
month before, Thomas had lost his job as a dishwasher at the restaurant. Angela waited in the
car while Thomas and Hall went to the back door. Stephen Hemmes, a Lone Star employee,
was leaving and spoke briefly with Thomas. Thomas then knocked on the back door, and
another employee, Matthew Gianakis, let him and Hall enter. Thomas and Hall went to the
office of the manager, Vincent Oddo. Thomas pulled out a .32-caliber revolver, pointed it at
Oddo, and ordered him to open the safe and give them money. Thomas handed the gun to
Hall and told him to take the money from Oddo. Hall remained in the office, took two or
three bags of money from Oddo, and allowed Oddo to run out of the building. Hall then
returned to the car.
____________________

1
Thomas v. State, 114 Nev. 1127, 967 P.2d 1111 (1998).

2
See id. at 1132-36, 967 P.2d at 1115-17.
Thomas left the office, obtained a meat-carving knife, and sought out the two
employees who were at the restaurant that morning, Gianakis and Carl Dixon. Thomas
stabbed Dixon to death in the bathroom. He then chased Gianakis down and stabbed him
twice. Gianakis staggered to a gas station next door before dying. After returning to the car
and learning that Oddo had escaped, Thomas told Hall you're not supposed to leave
witnesses.
Thomas, Hall, and Angela returned to the house in Las Vegas where they were
staying, the home of Thomas's aunt, Emma Nash, and cousin, Barbara Smith. Thomas told
Nash and Smith that if anyone asked they should say that they had not seen him. Smith
noticed that Thomas's clothes and shoes were bloody. Thomas told Smith that he had to get
rid of two people and gave her $1,000 to give to his mother. He gave the .32-caliber revolver
to Nash. He then changed clothing and took his bloody clothes and shoes and the knife used
in the murders to the desert behind the house. The police later recovered the items, and the
blood on the clothes was determined to be consistent with Dixon's.
Thomas, Hall, and Angela drove home to Hawthorne, where they were soon arrested.
In a videotaped statement, Thomas admitted to police that he had killed the two men but
claimed that he had acted in self-defense. He and Hall were charged with two counts of
murder with use of a deadly weapon and one count each of robbery with use of a deadly
weapon, first-degree kidnapping with use of a deadly weapon, conspiracy to commit murder
and/or robbery, and burglary while in possession of a firearm. Hall pleaded guilty to robbery
with use of a deadly weapon and testified against Thomas at Thomas's preliminary hearing.
Before Thomas's trial, however, Hall moved to withdraw his guilty plea and moved to prevent
the State from calling him to testify against Thomas. In response, the State moved to use
Hall's preliminary hearing testimony at Thomas's trial. The trial began in June 1997, and the
district court granted Hall's motion not to testify and the State's motion to use Hall's earlier
testimony.
The jury found Thomas guilty on all charges. It then returned two verdicts of death,
finding no mitigating circumstances and finding the following six aggravating circumstances
for each murder: Thomas had been previously convicted of a felony involving the use or
threat of violence, an attempted robbery in 1990; he had been previously convicted of a
felony involving the use or threat of violence, a battery causing substantial bodily harm in
1996; the murder was committed during the commission of a burglary; the murder was
committed during the commission of a robbery; the murder was committed to avoid or
prevent a lawful arrest; and Thomas had been convicted of more than one murder in the
immediate proceeding.
ing. Thomas was further sentenced to serve consecutive prison terms for the robbery,
kidnapping, conspiracy, and burglary.
Thomas appealed, and this court affirmed his conviction and sentence. He filed a
timely habeas petition, and the district court held an evidentiary hearing on some of his
claims before denying the petition.
DISCUSSION
[Headnote 1]
As a preliminary matter, we note that Thomas's counsel did not adequately cite to the
record in his briefs or provide this court with an adequate record. In support of factual
assertions, counsel simply cites the supplemental habeas petition filed below. This is
improper.
3
Additionally, counsel failed to include many necessary parts of the record in the
Appellant's Appendix. We are able to address the merits of a number of claims only because
the State provided a seven-volume appendix that includes necessary parts of the record.
4

[Headnotes 2-7]
Thomas claims that his trial and appellate counsel were ineffective in a number of
ways. These claims are properly presented because this is a timely, first post-conviction
petition for a writ of habeas corpus.
5
A claim of ineffective assistance of counsel presents a
mixed question of law and fact, subject to independent review.
6
To establish ineffective
assistance of counsel, a claimant must show both that counsel's performance was deficient
and that the deficient performance prejudiced the defense.
7
To show prejudice, the claimant
must show a reasonable probability that but for counsel's errors the result of the trial would
have been different.
____________________

3
NRAP 28(e) provides: Every assertion in briefs regarding matters in the record shall be supported by a
reference to the page of the transcript or appendix where the matter relied on is to be found. The rule also
prohibits a brief to this court from incorporating by reference briefs or memoranda filed in district court.

4
In the reply brief, Thomas's counsel states his belief that this court has the direct appeal record and
chastises the State for wasting paper in its appendix. Counsel is mistaken. The clerk of this court does not retain
the direct appeal record. Rather, SCR 250(7)(b) provides that the clerk of the district court shall retain the
original record . . . and shall not transmit a record on appeal to the supreme court. Appellant has the ultimate
responsibility to provide this court with portions of the record essential to determination of issues raised in
appellant's appeal. NRAP 30(b)(3); see also Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980);
Jacobs v. State, 91 Nev. 155, 158, 532 P.2d 1034, 1036 (1975).

5
See, e.g., Feazell v. State, 111 Nev. 1446, 1449, 906 P.2d 727, 729 (1995).

6

7
Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
counsel's errors the result of the trial would have been different.
8
Judicial review of a
lawyer's representation is highly deferential, and a claimant must overcome the presumption
that a challenged action might be considered sound strategy.
9
The constitutional right to
effective assistance of counsel extends to a direct appeal.
10
To establish prejudice, the
claimant must show that an omitted issue would have had a reasonable probability of success
on appeal.
11

[Headnotes 8-10]
supports his claims with specific factual allegations that if true would entitle him to relief.
12
The petitioner is not entitled to an evidentiary hearing if the factual allegations are belied or
repelled by the record.
13
The petitioner has the burden of establishing the factual allegations
in support of his petition.
14

Thomas asserts that the district court erred in holding an evidentiary hearing on only
some of his claims rather than all of them. We conclude that the court did not err in denying
those claims implicating the validity of Thomas's conviction. We conclude, however, that the
record shows that Thomas's counsel were ineffective in regard to the penalty phase of his
trial. We therefore reverse the district court's order in part and remand for a new penalty
hearing.
Instruction regarding the power of the Pardons Board to modify sentences
[Headnote 11]
We agree with Thomas that his trial counsel should have objected to the following
penalty phase instruction: Although under certain circumstances and conditions the State
Board of Pardons Commissioners has the power to modify sentences, you are instructed that
you may not speculate as to whether the sentence you impose may be changed at a later date.
This instruction was incorrect in regard to sentences of life in prison without possibility of
parole. This court originally required the instruction in capital cases in 1985 in Petrocelli v.
State.
15
However, we also expressly stated in Petrocelli that the instruction was to be used
unless and until the law on the subject is modified.
____________________

8
Id. at 988, 923 P.2d at 1107.

9
Strickland, 466 U.S. at 689.

10
Kirksey, 112 Nev. at 998, 923 P.2d at 1113.

11
Id. at 998, 923 P.2d at 1114.

12
Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984).

13
Id. at 503, 686 P.2d at 225.

14
Bejarano v. Warden, 112 Nev. 1466, 1471, 929 P.2d 922, 925 (1996).

15
101 Nev. 46, 56, 692 P.2d 503, 511 (1985), modified by Sonner v. State, 114 Nev. 321, 955 P.2d 673
(1998).
law on the subject is modified.
16
Such a modification occurred in 1995 with the enactment
of NRS 213.085. Under that statute, for offenses committed on or after July 1, 1995, the
Pardons Board cannot commute either a death sentence or a prison term of life without
possibility of parole to a sentence allowing parole.
17
Thomas committed his crimes in April
1996, and his trial was in June 1997. Consequently, if he had received sentences of life in
prison without possibility of parole, there was no circumstance or condition under which the
Pardons Board would have been able to modify those sentencescontrary to the Petrocelli
instruction. There is therefore a reasonable probability that jurors mistakenly believed that
Thomas could eventually receive parole even if they returned sentences of life in prison
without parole and that this belief contributed to their decision to render verdicts of death.
In Sonner v. State, we stated that in certain circumstances a jury could occasionally
be misled by the Petrocelli instruction, but there we were referring to cases involving crimes
committed before July 1, 1995, where a sentence of life in prison without possibility of parole
could still be modified to one allowing parole.
18
But for cases like Thomas's, where NRS
213.085 categorically precludes commuting life in prison without possibility of parole to a
sentence allowing parole, the instruction misstates the law and is always misleading.
Moreover, in concluding that the defendant in Sonner was not prejudiced, we stressed that the
prosecutor did not argue to the jury that the defendant posed a future danger.
19
Here, by
contrast, the prosecution strongly emphasized the future danger that Thomas posed. Although
the prosecution spoke only of Thomas's danger in a prison setting, jurors would also have
considered the future danger he posed outside prison if they were concerned that a term of life
in prison without parole might be modified to allow parole.
Because Thomas has established ineffectiveness of counsel in regard to this issue, a
new penalty hearing is required. Consequently, most of Thomas's claims regarding the
penalty phase of his trial require no discussion, but we address all of his claims relevant to the
guilt phase.
Other claims
[Headnotes 12-16]
Thomas alleges ineffective assistance by trial counsel in regard to certain claims
raised on direct appeal after trial counsel failed to preserve them. On direct appeal, this court
determined that no plain error existed and declined to consider the issues.
____________________

16
Id.

17
Sonner, 114 Nev. at 326-27, 955 P.2d at 677.

18
Id. at 327, 955 P.2d at 677.

19
Id. at 325, 955 P.2d at 676.
plain error existed and declined to consider the issues.
20
Thomas raises some of these issues
again, arguing that if trial counsel had preserved them, full appellate review by this court
would have led to relief. First, he complains that counsel did not object to victim impact
evidence. He asserts that the Nevada capital statutory scheme imposes no limits on the
presentation of victim impact testimony and . . . can result in the arbitrary and capricious
imposition of the death penalty. This assertion is unfounded. Victim impact evidence must
be excluded if it renders the proceeding fundamentally unfair
21
or if its probative value is
substantially outweighed by the danger of unfair prejudice, of confusion of the issues or of
misleading the jury.
22
It is also inadmissible if it is impalpable or highly suspect.
23
Thomas does not explain how the victim impact evidence in his case was improper. Second,
he claims that a number of jury instructions were erroneous. He challenges the instruction
stating that premeditation may be as instantaneous as successive thoughts of the mind. He
cites Byford v. State,
24
where we disapproved of this instruction and set forth new
instructions. However, Byford applies prospectively
25
and was decided in 2000, while
Thomas was tried and convicted in 1997. Thomas asserts next that the instructions should
have stated that if the intent to rob was not formed until after the murders, then a robbery did
not occur and the felony-murder rule did not apply. But the facts here clearly showed that the
intent to rob preceded the murders. Moreover, in robbery cases it is irrelevant when the
intent to steal the property is formed.
26
Thomas challenges the instruction that directed
jurors to do equal and exact justice between him and the State, claiming that it violated his
presumption of innocence. This challenge is meritless.
27
Also meritless is his challenge to
the instruction that a verdict may never be influenced by sympathy.
28
He challenges the
instruction on reasonable doubt as well, but the instruction is required by statute and has been
upheld by this court.
29
Finally, we reject his challenge to the instructtion informing the jury
that it did not need to agree unanimously on a theory of first-degree murder as long as its
verdict of first-degree murder was unanimous.
____________________

20
See Thomas, 114 Nev. at 1149 n.5, 967 P.2d at 1125 n.5.

21
Floyd v. State, 118 Nev. 156, 174, 42 P.3d 249, 261 (2002), cert. denied, 123 S. Ct. 1257 (2003).

22
NRS 48.035(1); Floyd, 118 Nev. at 175, 42 P.3d at 261.

23
Leonard v. State, 114 Nev. 1196, 1215, 969 P.2d 288, 300 (1998).

24
116 Nev. 215, 233-37, 994 P.2d 700, 712-15 (2000).

25
Garner v. State, 116 Nev. 770, 789, 6 P.3d 1013, 1025 (2000), overruled on other grounds by Sharma v.
State, 118 Nev. 648, 56 P.3d 868 (2002).

26
Chappell v. State, 114 Nev. 1403, 1408, 972 P.2d 838, 841 (1998).

27
See Leonard, 114 Nev. at 1209, 969 P.2d at 296.

28
See Wesley v. State, 112 Nev. 503, 519, 916 P.2d 793, 803-04 (1996).

29
NRS 175.211; Bollinger v. State, 111 Nev. 1110, 1114-15, 901 P.2d 671, 674 (1995).
tion informing the jury that it did not need to agree unanimously on a theory of first-degree
murder as long as its verdict of first-degree murder was unanimous.
30
Thomas fails to
establish ineffective counsel in regard to any of these issues.
[Headnote 17]
Thomas claims that his trial counsel were ineffective in response to his aunt's
testimony referring to his prior time in jail. On direct appeal, Thomas argued that the district
court should have granted a mistrial because of the remark.
31
We concluded that the error
was harmless because the evidence against Thomas was overwhelming, the comment was
unsolicited by the prosecutor and inadvertently made, and Thomas declined the court's offer
to admonish the jury.
32
Thomas now maintains that his trial counsel should have had the
court admonish the jury. Although the district court did not allow an evidentiary hearing on
this claim, it is apparent that counsel reasonably feared that an admonishment might have
reinforced the effect of the aunt's statement. Further, we see no probability of a different
result if an admonishment had been given.
[Headnote 18]
Thomas asserts that his trial and appellate counsel should have challenged the
aggravating circumstances involving robbery, burglary, and avoiding lawful arrest as
improperly overlapping. This assertion has no merit. Thomas offers little analysis and cites
none of our caselaw regarding duplicative aggravators.
33
We have specifically held that the
use of robbery and burglary as separate aggravators is proper.
34

[Headnotes 19, 20]
Thomas claims that his trial and appellate counsel failed to challenge numerous
improper remarks by the prosecutors. To determine if prejudicial prosecutorial misconduct
occurred, the relevant inquiry is whether a prosecutor's statements so infected the proceedings
with unfairness as to make the results a denial of due process.
35
The statements should be
considered in context, and a criminal conviction is not to be lightly overturned on the basis
of a prosecutor's comments standing alone.
36
We conclude that two of the remarks in
question, made in the closing argument of the penalty phase, were improper and that
counsel unreasonably failed to challenge them.
____________________

30
See Evans v. State, 113 Nev. 885, 894-96, 944 P.2d 253, 259-60 (1997).

31
Thomas, 114 Nev. at 1142, 967 P.2d at 1121.

32
Id.

33
E.g., Hernandez v. State, 118 Nev. 513, 529-30, 50 P.3d 1100, 1111 (2002), cert. denied, 537 U.S. 1197
(2003).

34
Homick v. State, 108 Nev. 127, 137-38, 825 P.2d 600, 607 (1992).

35
Darden v. Wainwright, 477 U.S. 168, 181 (1986).

36
United States v. Young, 470 U.S. 1, 11 (1985).
of the remarks in question, made in the closing argument of the penalty phase, were improper
and that counsel unreasonably failed to challenge them. We need not decide whether this
failure was prejudicial since we have already determined that a new penalty hearing is
necessary.
[Headnote 21]
First, the prosecutor asserted, This is not a rehabilitation hearing. There is no
program that we know of that rehabilitates killers. This argument was improper. This court
has held that prosecutors may not argue facts or inferences not supported by the evidence.
37
The State has not pointed to any defense argument that justified the assertion or to any
evidence that supported it. The State relies on Collier v. State, where this court recognized
that counsel may properly discuss general theories of penology.
38
But the prosecutor's
claim here was stated as fact, not theory, and in Collier this court specifically concluded that
the prosecutor improperly referred to facts outside the record in arguing that the defendant
could not be rehabilitated.
39
Thus, trial and appellate counsel should have challenged these
remarks.
[Headnote 22]
Second, the prosecutor argued: The defendant is deserving of the same sympathy and
compassion and mercy that he extended to Carl Dixon and Matt Gianakis. Don't let justice be
robbed in the name of mercy. Thomas cites Lesko v. Lehman,
40
where the Third Circuit
concluded that a prosecutor who implored a jury to make a death penalty determination in the
cruel and malevolent manner shown by the defendants toward their victims exceeded the
bounds of permissible advocacy. The comments were calculated to incite an unreasonable
and retaliatory sentencing decision, rather than a decision based on a reasoned moral response
to the evidence.
41
In Williams v. State,
42
this court distinguished Lesko and concluded that
it was permissible for the prosecutor to ask the jury to show a capital defendant the same
mercy that he showed his victim because the prosecutor was responding to a comment by
defense counsel raising the issue of mercy. Even though Thomas's counsel did not invoke
mercy or sympathy or compassion in closing argument, the State cites Williams and
maintains that the prosecutor's argument was justified because counsel said: "I would ask
you to spare his life and to impose the severe punishment of imprisonment without the
possibility of parole.
____________________

37
Williams v. State, 103 Nev. 106, 110, 734 P.2d 700, 703 (1987).

38
101 Nev. 473, 478, 705 P.2d 1126, 1129 (1985), modified on other grounds by Howard v. State, 106 Nev.
713, 800 P.2d 175 (1990).

39
Id.

40
925 F.2d 1527, 1545 (3d Cir. 1991).

41
Id.

42
113 Nev. 1008, 1019, 945 P.2d 438, 445 (1997), receded from on other grounds by Byford, 116 Nev. 215,
994 P.2d 700.
prosecutor's argument was justified because counsel said: I would ask you to spare his life
and to impose the severe punishment of imprisonment without the possibility of parole.
Under the State's view, anytime a defense counsel asks the jury not to impose deathi.e., in
every capital penalty hearingthe State can urge the jury to treat the defendant as mercilessly
as the defendant treated the victim. Our ruling in Williams was not this broad. The remark
here was improper, and counsel should have challenged it.
[Headnote 23]
Thomas claims that his trial counsel were not prepared for critical proceedings and did
not conduct adequate investigation. He complains that they did not confer with him before the
trial and were responsible for too many other cases. This claim remains largely conclusory
and fails to demonstrate prejudice. Thomas does claim specifically that his counsel was not
prepared to cross-examine Hall, Thomas's codefendant, at the preliminary examination;
Thomas contends that better cross-examination would have revealed that Hall was lying and
had been forced to testify. The record as a whole belies this contention.
[Headnotes 24, 25]
Thomas claims that his trial counsel were ineffective because they made no opening
statement and called no witnesses in the guilt phase. He states that his affidavit attached to
the Supplemental Petition spells out the witnesses that should have been called. As noted
above, NRAP 28(e) prohibits a brief to this court from incorporating by reference briefs or
memoranda filed in district court. Furthermore, this claim has no merit: the affidavit names
only witnesses allegedly relevant to the penalty phase and fails to explain what the witnesses'
testimony would have been or how it might have altered the outcome of the trial.
[Headnote 26]
Thomas claims that his appellate counsel failed to file a complete record on appeal.
Thomas specifies only that the record filed did not include transcripts of the hearing on his
motion to dismiss his attorneys. He says that the transcripts would have substantiated his
claim that he did not receive effective assistance of counsel. No prejudice is apparent,
however, because this court generally declines to address claims of ineffective assistance of
counsel on direct appeal.
43

[Headnote 27]
Thomas also asserts that his appellate counsel was ineffective in failing to challenge
the jury instruction on implied malice, which stated: "Malice may be implied when no
considerable provocation appears, or when all the circumstances of the killing show an
abandoned and malignant heart.
____________________

43
See Pellegrini v. State, 117 Nev. 860, 883, 34 P.3d 519, 534 (2001).
stated: Malice may be implied when no considerable provocation appears, or when all the
circumstances of the killing show an abandoned and malignant heart. He contends that the
instruction is erroneous because it establishes a presumption of malice and uses terms that are
archaic, without rational content, and merely pejorative. This court has previously rejected
these contentions.
44

[Headnote 28]
The remaining claims are procedurally barred. Thomas asserts that this court's review
of capital cases is unconstitutional because our opinions are arbitrary, unprincipled, and
result-oriented. He offers no cause for failing to raise this claim earlier and does not establish
prejudice: the claim lacks specific supporting facts, authority, or analysis to indicate that it
has any merit. He also claims that the statutory mechanism for review of capital cases is
faulty because this court is not required to consider whether mitigating circumstances exist
and to weigh them against aggravating circumstances. Again he provides no cause for not
raising this claim earlier. He also cannot establish prejudice. NRS 177.055(2)(e)
45
requires
this court to consider on direct appeal: Whether the sentence of death is excessive,
considering both the crime and the defendant. We have already held that this provision
requires us to consider any mitigating evidence;
46
it also necessarily requires us to assess the
weight of mitigators and aggravators. Finally, Thomas alleges that African-Americans were
underrepresented on his jury and that Clark County systematically excludes
African-Americans from criminal jury pools. He does not argue that his counsel were
ineffective in any way, and he offers no cause for failing to raise this claim at trial or on direct
appeal. Thomas also fails to articulate prejudice.
47

CONCLUSION
We affirm the judgment of the district court insofar as it upholds Thomas's conviction.
We reverse the judgment insofar as it upholds Thomas's death sentences and remand this
matter to the district court for a new penalty hearing.
48

____________________

44
See Cordova v. State, 116 Nev. 664, 666-67, 6 P.3d 481, 482-83 (2000); Leonard v. State, 117 Nev. 53,
78-79, 17 P.3d 397, 413 (2001).

45
This provision was formerly in subsection (d) of NRS 177.055(2). See 2003 Nev. Stat., ch. 137, 6, at
770.

46
Hollaway v. State, 116 Nev. 732, 741-42, 6 P.3d 987, 994 (2000).

47
See Evans v. State, 112 Nev. 1172, 1186, 926 P.2d 265, 274-75 (1996) (setting forth the standard for a
claim of systematic exclusion).

48
Justice, having died in office on January 9, 2004, a six-justice court decided this matter.
____________
120 Nev. 51, 51 (2004) Chachas v. Miller
GEORGE CHACHAS, Appellant, v. ROBERT B. MILLER, Respondent.
No. 41461
February 11, 2004 83 P.3d 827
Appeal from a district court order dismissing an election contest and request for
declaratory judgment challenging the qualifications of a mayor. Seventh Judicial District
Court, White Pine County; Andrew J. Puccinelli, Judge.
The supreme court, Rose, J., held that: (1) mayor was not a bona fide resident of city,
and (2) mayor did not substantially comply with statute requiring both legal domicile and
actual residency.
Reversed and remanded.
Patricia D. Cafferata, Reno, for Appellant.
Goicoechea, DiGrazia, Coyle & Stanton, Ltd., and Gary E. DiGrazia, Elko, for
Respondent.
Brian Sandoval, Attorney General, and Matthew L. Jensen, Deputy Attorney General,
Carson City, for Amicus Curiae Secretary of State.
Keith Loomis, Carson City, for Amicus Curiae Nevada Association of County Clerks
and Election Officials.
1. Municipal Corporations.
Candidate for mayor who purchased home outside city limits and resided there, but
considered rented room within city limits as his legal domicile, was not a bona fide
resident of city for purposes of statute requiring that candidates reside in city for at least
one year prior to their election, given that candidate admitted he slept in rented room
only one night during time he rented it. NRS 266.170, 281.050(1), (4).
Statute setting forth qualifications for mayoral candidates requires not only legal
domicile within city, but also requires actual residency in the city for one year prior to
being elected. NRS 266.170.
Mayoral candidate whose legal domicile was within city limits did not substantially
comply with statute requiring both legal domicile and actual residency for one-year
period prior to election, where candidate only resided in city one night during required
period. NRS 266.170.
Statute providing that if a person absents himself from the jurisdiction of his residence
with the intention in good faith to return without delay and continue his residence, the
period of absence must not be considered in determining the question of residence, only
applied when determining legal domicile, not actual residency for purposes of
eligibility to stand as candidate for mayoral election.
legal domicile, not actual residency for purposes of eligibility to stand as candidate for
mayoral election. NRS 281.050(1).
1

OPINION
By the Court, Rose, J.:
In this appeal, we consider whether Robert B. Miller, who was re-elected mayor of the
City of Ely, satisfied the residency requirements to hold the office of mayor. The district court
concluded that in order to be eligible to serve as mayor, Miller must have been legally
domiciled in Ely for one year prior to being elected. After concluding that Miller satisfied this
requirement, the district court dismissed the election contest and complaint for declaratory
judgment.
We conclude that the district court erred because not only did Miller have to be legally
domiciled in Ely one year prior to his election, he also must have actually resided in Ely for
one year prior to being elected mayor. Because Miller did not actually reside in Ely for the
required time period, we reverse the district court's order.
FACTUAL AND PROCEDURAL HISTORY
On February 3, 2003, Miller filed his declaration of candidacy for re-election as mayor
of the City of Ely. On April 8, 2003, Miller received fifty-two percent of the vote in the
primary election, as a result of which Miller was the only candidate placed on the ballot for
the general election.
On April 22, 2003, George Chachas filed an election contest, or in the alternative, a
complaint for declaratory judgment regarding Miller's qualifications to be mayor, arguing that
Miller did not satisfy the residency requirements for mayoral candidates.
The district court held a hearing on May 6, 2003. Miller testified that he was born in
Ely in 1945, and that he had not left the city for any significant period during his lifetime.
Miller explained that his mother was having health problems and difficulty paying her bills,
so he moved her from St. George, Utah, to Ely in 2000. According to Miller, he was unable to
find a suitable residence for his mother and himself in Ely. Thus, in June 2000, Miller and his
mother purchased a home in Mineral Heights, an area abutting, but outside, the Ely city line.
____________________

1
The Honorable Michelle Leavitt, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable Myron E. Leavitt, Justice. Nev. Const. art. 6, 4.
During this time, Miller also rented a room above Carol's Country Store in Ely.
Although Miller had previously resided in an apartment in Ely, he explained that he rented
the room instead of keeping the apartment because he could not afford to pay rent for the
apartment and pay the mortgage on the Mineral Heights residence. Miller stated that he
initially intended to split time between the room in Ely and the Mineral Heights residence, but
that it became impractical to do so due to his mother's health. Miller admitted that he only
spent one night in the room in Ely. Nevertheless, Miller testified that he always considered
Ely his legal residence, and that he planned to return to living in the city when he no longer
needed to care for his mother. Miller received his mail at a post office box in Ely, owned
commercial property in the city, kept his bank accounts in the city, and went to work in the
city every day.
In February 2002, Miller's mother was hospitalized after a severe fall and was later
admitted to an assisted care facility. In December 2002, Miller purchased a home in Ely, and
he moved out of the Mineral Heights residence in early January 2003.
Donna Bath, the White Pine County Clerk, Court Clerk, and Registrar of Voters,
explained that Mineral Heights is in White Pine County, but it is not part of the City of Ely.
Bath stated that in 2001, Miller changed his voter registration address to the address of the
room he rented in Ely, and then in February or March 2003, Miller requested a change of
address for his voter registration to the address of the home he had purchased in Ely in 2002.
However, Bath had to deny the request because Miller was a challenged voter following
Chachas' complaint that Miller's actual address was not the same address as the one on his
voter registrationthe room he rented in Ely. When Miller tried to vote in the primary
election, Bath asked Miller to swear that his actual address was the one listed on his voter
registration, but Miller refused to do so.
The district court concluded that, based on the evidence presented, Miller met the
residency requirements of NRS 266.170, as he did not relinquish his legal domicile when he
moved to Mineral Heights. Additionally, the district court concluded that Miller had satisfied
NRS 293C.185's thirty-day residency requirement, a prerequisite for filing for candidacy in
city elections.
DISCUSSION
[Headnote 1]
NRS 266.170 provides: Mayors shall be qualified electors within their respective
cities and shall have been actually bona fide residents thereof for a period of at least 1 year
next preceding their election. In addition, NRS 281.050(1) explains that [t]he residence of a
person with reference to his eligibility to office is his actual residence," and NRS
2S1.050{4) defines the term "actual residence" as "the place where a person is legally
domiciled and maintains a permanent habitation.
actual residence, and NRS 281.050(4) defines the term actual residence as the place
where a person is legally domiciled and maintains a permanent habitation.
In Williams v. Clark County District Attorney,
2
this court addressed the meaning of
the residency requirement of a similar statute, NRS 293.1755. NRS 293.1755(1) provides that
a candidate must have, in accordance with NRS 281.050, actually, as opposed to
constructively, resided in the area where he plans to hold office for thirty days prior to the
close of filing for candidacy. This court held that a candidate must meet both actual
residency requirements as well as legal domicile requirements in order to run for a particular
office.
3
This court explained that its interpretation of the residency requirement as
necessitating both physical presence and intent to remain at a residence gives effect to the
Legislature's intent to prevent sham' residences, and avoids absurd results because if
candidates with more than one residence could simply choose from among them for purposes
of actual residence, then they could declare as their primary residence a place where they
spend relatively little time.
4

In this case, the district court concluded that the residency requirement in NRS
266.170 only required legal domicile for the year prior to being elected mayor. The district
court found that Miller had significant contacts with Ely for over thirty yearshe was the
mayor of the city, owned property and rented a room in the city, maintained a mailing address
in the city in the form of a post office box, retained his bank accounts in the city, and
maintained a driver's license with a mailing address in the city. The district court also found
that Miller never intended to change his legal domicile from Ely when he moved to Mineral
Heights. Therefore, the district court concluded that Miller satisfied the one-year residency
requirement in NRS 266.170.
We agree with the district court's conclusion that Miller did not relinquish his legal
domicile in Ely. This court has observed that legal domicile requires both the fact of living
at a place and the intention to remain there; if one leaves a domicile temporarily, one must
have the intention to return.
5
Further, once a legal domicile is fixed, the fact of living
elsewhere, the intention to remain in the other residence and the intention to abandon the
former domicile must all exist before the legal domicile can change.
6

Miller moved to Mineral Heights to care for his ailing mother after being unable to
find a suitable home in Ely. The evidence shows that Miller always intended to return to Ely,
and that he maintained significant contacts with the city.
____________________

2
118 Nev. 473, 50 P.3d 536 (2002).

3
Id. at 482, 50 P.3d at 542.

4
Id. at 486, 50 P.3d at 544.

5
Id. at 482, 50 P.3d at 542.

6
Id.
Miller always intended to return to Ely, and that he maintained significant contacts with the
city. As a result, we conclude that Miller's legal domicile for the relevant time period was Ely.
[Headnote 2]
However, applying our holding in Williams, we conclude that NRS 266.170 also
requires actual residency in the city for one year prior to being elected. Accordingly, the
district court should have determined whether Miller was both legally domiciled in and an
actual resident of Ely.
This court has explained that actual residence is the place of actual living, of physical
presenceit does not require an intent to remain or return.
7
In addition, this court has noted
that a person could have an actual residence in one place and a legal domicile in another.
8
Although Miller rented a room in Ely, he admitted that he slept there only one night during
the time he rented it. Miller lived at the Mineral Heights residence with his mother and his
pets; therefore, it appears that Miller was an actual resident of Mineral Heights, while his
legal domicile remained in Ely.
9
[Headnote 3]
Miller argues that he substantially complied with NRS 266.170, since he was a
long-time resident of Ely and merely moved to an area abutting the city for a temporary
period. We reject this argument because NRS 266.170 requires both legal domicile and actual
residency. Miller only actually resided in Ely for one night during the required period and,
thus, did not substantially comply with the actual residency requirement of NRS 266.170.
[Headnote 4]
Miller also argues that NRS 281.050(1), which states that if a person absents himself
from the jurisdiction of his residence with the intention in good faith to return without delay
and continue his residence, the period of absence must not be considered in determining the
question of residence, supports his claim that the time he spent living in Mineral Heights did
not affect his residency for purposes of NRS 266.170. We conclude that NRS 281.050(1)
only applies when determining legal domicile, not actual residency.
10
Given that Miller had to
demonstrate both legal domicile and actual residency in Ely for one year prior to the mayoral
election, his reliance on NRS 281.050(1) is misplaced.
____________________

7
Id.

8
Id. at 482-83, 50 P.3d at 542.

9
See id. at 486, 50 P.2d at 545 (Rose, J., concurring in part and dissenting in part) (suggesting that a person's
actual residence is where his pets reside).

10
See id. at 482, 50 P.2d at 542 (noting that if a person temporarily leaves a legal domicile and does not take
up a permanent residence somewhere else, then his legal domicile has not changed, while actual residence is the
place of actual living and does not require an intent to remain or return).
CONCLUSION
Because actual residency and legal domicile in a city for one year prior to being
elected mayor of that city is necessary, we conclude that the district court erred in ruling that
Miller satisfied the residency requirement of NRS 266.170. Having so concluded, we need
not address whether Miller satisfied the thirty-day residency requirement provided in NRS
293C.185.
11
Accordingly, we reverse the district court's order and remand for further action
consistent with this opinion.
Shearing, C. J., Agosti, Becker, Maupin, Gibbons, JJ., and Leavitt, D. J., concur.
____________
120 Nev. 56, 56 (2004) Trustees v. Developers Surety
TRUSTEES OF THE PLUMBERS AND PIPEFITTERS UNION LOCAL 525 HEALTH
AND WELFARE TRUST PLAN; and TRUSTEES OF THE PLUMBERS AND
PIPEFITTERS UNION LOCAL 525 PENSION PLAN, Appellants, v.
DEVELOPERS SURETY AND INDEMNITY COMPANY, Respondent.
No. 40060
February 17, 2004 84 P.3d 59
Appeal from a post-judgment order denying attorney fees on a surety bond dispute.
Eighth Judicial District Court, Clark County; Nancy M. Saitta, Judge.
Union benefits trustee filed lawsuit against surety to recover bond amount after
principal, employer of union workers, failed to pay requisite contributions and filed for
bankruptcy. After principal rejected trustee's offer of judgment and during pendency of
mandatory arbitration, both trustee and surety sought summary judgment. The district court
granted summary judgment to trustee for bond's penal amount, but refused to award attorney
fees to trustee. Trustee appealed. The supreme court held that when secured entity incurs
attorney fees in direct litigation with the surety over the bond, attorney fees may be awarded
under offer of judgment statute, attorney fees statute, and rule of civil procedure governing
offers of judgment.
Maupin, J., dissented in part.
____________________

11
NRS 293C.185 requires that a candidate declare that he has actually, as opposed to constructively, resided
in a city at least thirty days immediately preceding the date of the close of filing of declarations of candidacy.
Schreck Brignone Godfrey and Andrew S. Brignone, Michael V. Infuso and Adam P.
Segal, Las Vegas, for Appellants.
Alverson Taylor Mortensen Nelson & Sanders and David J. Mortensen and Christian
Z. Smith, Las Vegas, for Respondent.
1. Appeal and Error.
Supreme court reviews a district court's attorney fees award for abuse of discretion.
2. Costs; Principal and Surety.
If a secured entity becomes obligated to pay attorney fees in third-party litigation, the
surety is not liable for these fees if they exceed the bond amount; however, when the
secured entity incurs attorney fees in direct litigation with the surety over the bond,
attorney fees may be awarded under offer of judgment statute, attorney fees statute, and
rule of civil procedure governing offers of judgment. NRS 17.115(4)(d)(3), 18.010;
NRCP 68(f)(2).
3. Statutes.
For purposes of statutory interpretation, words in a statute should be given their plain
meaning unless this violates the spirit of the act.
4. Costs.
The purpose of offer of judgment statute is to place the risk of loss on the offeree who
fails to accept the offer, thus encouraging both offers and acceptance of offers. NRS
17.115.
1

OPINION
Per Curiam:
This case arises from a surety bond dispute involving union worker benefits. The
district court denied the request of the union trustees (the Joint Trust) for attorney fees
because the award would exceed the bond's penal limit. The district court reasoned that our
decision in Basic Refractories v. Bright
2
precluded such recovery. The Joint Trust appeals,
contending that Basic Refractories is distinguishable from the case at bar. We agree. In Basic
Refractories, we determined that a surety could not be ordered to pay attorney fees that, in
addition to the judgment, exceeded the bond amount when those fees were incurred in a
separate action between the secured entity and a third party.
Here, the surety may be ordered to pay attorney fees even if a fees award, in
conjunction with the judgment, would exceed the bond amount because the surety engaged
in direct litigation over the bond.
____________________

1
The Governor designated the Honorable Janet J. Berry, Judge of the Second Judicial District Court, to sit in
place of The Honorable Myron E. Leavitt, Justice. Nev. Const. art. 6, 4.

2
72 Nev. 183, 298 P.2d 810 (1956).
bond amount because the surety engaged in direct litigation over the bond. Therefore, we
reverse the district court's order and remand this case for an attorney fees determination.
FACTS AND PROCEDURAL HISTORY
The Joint Trust is a group of non-profit organizations formed to provide pension,
health, and other benefits to the plumbers of Pipefitters Union Local No. 525 (Pipefitters). P
& P Plumbing, a plumbing company employing union workers, entered into a contract with
Pipefitters requiring P & P to make contributions to the Joint Trust for the employees'
pension, health, and welfare benefits. Pursuant to the contract, P & P posted a bond with
Developers Surety, an indemnity company, to protect the workers' interests in the event that P
& P failed to make the requisite benefit contributions. The bond covered all reasonable
expense incurred by [Pipefitters] . . . in the collection of any of the sum due under the terms
and provisions of said labor agreement, including accounting, bookkeeping, clerical, and
professional fees related to collecting on the bond. The initial bond amount was for $5,000.
On October 8, 1999, the Joint Trust and P & P, allegedly without Developers Surety's
consent, raised the bond's value to $20,000.
P & P failed to pay the requisite employee contributions in the amount of $30,853.57
and filed bankruptcy. After the bankruptcy, Pahor Air Conditioning assumed some of P & P's
general contractor projects and accounts receivable. However, P & P's general contractors
refused to remit the accounts receivable until Pahor provided releases for the delinquent
employee benefit contributions. The Joint Trust refused to issue the releases until it received
payment for the benefit contributions. To resolve the problem, Pahor agreed to pay
$10,853.57, the portion of P & P's delinquencies exceeding the bond's $20,000 value. In
exchange, the Joint Trust promised to provide the releases and litigate on the bond.
On May 21, 2001, the Joint Trust filed a complaint against Developers Surety to
recover the $20,000 bond amount. On June 19, 2001, the Joint Trust made an offer of
judgment in the amount of $19,200, including fees and costs. Developers Surety rejected the
offer and answered the complaint. The district court assigned the case to the mandatory,
court-annexed arbitration program.
Before the arbitration hearing, the Joint Trust noticed the deposition of Roger Smith,
Developers Surety's Person Most Knowledgeable. Developers Surety unsuccessfully moved
for an emergency protective order. Developers Surety also unsuccessfully challenged the
arbitrator's decision to deny the motion. Allegedly, Developers Surety intentionally precluded
the Joint Trust from obtaining any substantive testimony at the deposition.
While arbitration was still ongoing, the Joint Trust filed a motion for summary
judgment with the district court to recover the bond's face amount.
3
Developers Surety filed
an opposition/countermotion for summary judgment. The trial court granted the Joint Trust's
motion and entered judgment in its favor for $20,000, the bond's penal amount. The court
denied Developers Surety's summary judgment motion.
The Joint Trust then requested attorney fees and costs on the following grounds: (1) as
a prevailing party under NRS 18.010(2)(a); (2) for Developers Surety's alleged bad faith
litigation under NRS 18.010(2)(b); and (3) for making an offer of judgment and later
obtaining a more favorable judgment under NRS 17.115 and NRCP 68. The district court
granted the Joint Trust's request for interest and costs, but refused to award attorney fees. The
court declined to address the merits of the Joint Trust's recovery claims and stated that Basic
Refractories precluded an attorney fees award above the bond's penal limit. This appeal
followed.
DISCUSSION
Standard of review
Developers Surety contends that the district court properly applied the law and that we
should review the district court's decision not to award attorney fees for abuse of discretion.
We disagree.
[Headnote 1]
While we review a district court's attorney fees award for abuse of discretion,
4
the
district court in this case never addressed the merits of the Joint Trust's attorney fees claim.
Instead, the district court essentially ruled that NRS 17.115, NRCP 68 and NRS 18.010 do
not apply to surety bond disputes. This ruling involved a question of law, which we review de
novo.
5
Basic Refractories
The Joint Trust argues that the district court erred in determining that Basic
Refractories prohibited attorney fees because that case is distinguishable. We agree and
conclude that in cases like the instant one, when the surety is directly involved in litigation
over the bond, attorney fees are available under NRS 17.115, NRCP 6S, NRS 1S.010{2){a),
and NRS 1S.010{2){b).
____________________

3
Although NAR 4(E) prevents the parties to an ongoing arbitration proceeding from bringing non-dispositive
motions before the district court, the court may still dispose of a case by hearing and ruling upon a motion for
summary judgment. U.S. Design & Constr. v. I.B.E.W. Local 357, 118 Nev. 458, 464, 50 P.3d 170, 174 (2002).

4
Sandy Valley Assocs. v. Sky Ranch Estates, 117 Nev. 948, 956, 35 P.3d 964, 969 (2001).

5
State, Bus. & Indus. v. Granite Constr., 118 Nev. 83, 86, 40 P.3d 423, 425 (2002).
over the bond, attorney fees are available under NRS 17.115, NRCP 68, NRS 18.010(2)(a),
and NRS 18.010(2)(b).
In Basic Refractories, Standard Slag Company subcontracted with Long Construction
Company for the construction of residential dwellings. Under the subcontract, Long promised
to surrender the dwellings free and clear and posted a bond for fifty percent of the contract
price. Globe Indemnity Company issued the bond. Long constructed the residential units, but
failed to pay certain labor and material claims. Consequently, several lien claimants filed
actions against Standard to foreclose on their liens.
6
The lien claimants obtained judgment
against Standard in the amount of $29,077.22, $2,004.41 in costs and interest, and $6,188.62
in attorney fees.
7
Standard then obtained a judgment on its third-party complaint against
Globe and recovered the bond's penal limit. After Globe admitted on appeal responsibility for
costs and interest, even though these amounts exceeded the bond's penal sum, we increased
Standard's award to include such costs and interest.
8
Nevertheless, we rejected Standard's
claim on appeal that it was also entitled to recover the attorney fees that it owed on the lien
claimants' judgment.
9

Although Basic Refractories involved attorney fees that the secured entity was
obligated to pay in a third-party dispute, the Basic Refractories' holding included broad
language that arguably could apply to attorney fees that the secured party sustains in direct
litigation with the surety:
An attorney's fee is a part of the loss sustained by an obligee when compelled to sue on
a bond. . . . [I]t partakes of the nature of the damages sustained, and the agreement to
pay same makes it a part of such damages. But the bond does not provide for protection
against damages beyond the amount of the penalty. As to such damages in excess of the
penalty, the obligee must stand the loss himself or at least look elsewhere than to the
surety.
10

[Headnote 2]
This language understandably led the district court to conclude that attorney fees were
impermissible in the instant case. We therefore take this opportunity to expressly limit Basic
Refractories' holding to the procedural posture of that case. If a secured entity becomes
obligated to pay attorney fees in third-party litigation, the surety is not liable for these fees if
they exceed the bond amount.
____________________

6
Basic Refractories, 72 Nev. at 188-90, 298 P.2d at 812-13.

7
Id. at 198, 298 P.2d at 817.

8
Id. at 198-201, 298 P.2d at 817-19.

9
Id. at 200-01, 298 P.2d at 818.

10
Id.
When the secured entity incurs attorney fees in direct litigation with the surety over the bond,
attorney fees may be awarded under NRS 17.115, NRCP 68, and NRS 18.010.
(1) NRS 17.115 and NRCP 68
NRS 17.115(4)(d)(3) permits the district court to award attorney fees against a party
who rejects an offer of judgment and later fails to obtain a more favorable judgment. Pursuant
to NRCP 68(f)(2), the offeree who rejects an offer and later fails to obtain a more favorable
judgment must pay the offeror such attorney fees as the district court allows. Here, the Joint
Trust submitted an offer of judgment in the amount of $19,200 to Developers Surety, but
Developers Surety rejected the offer. Subsequently, the district court awarded $20,000 to the
Joint Trust. Because Developers Surety rejected the Joint Trust's offer and the Joint Trust
later obtained a more favorable judgment, the district court could have awarded the Joint
Trust attorney fees under NRS 17.115 and NRCP 68.
[Headnote 3]
Under NRS 17.115(4)(d)(3), [i]f a party who rejects an offer of judgment fails to
obtain a more favorable judgment, the court . . . [m]ay order the party to pay to the party who
made the offer . . . [r]easonable attorney's fees. (Emphasis added.) NRCP 68(f)(2) directs the
offeree who rejects the offer to pay the offeror such attorney fees as the district court might
award. [W]ords in a statute should be given their plain meaning unless this violates the spirit
of the act.
11
The plain language of NRS 17.115 and NRCP 68 refers to a party, meaning
any party, and an offeree, meaning any offeree. Developers Surety falls within the purview
of NRS 17.115 because the statutory language contains no exception for sureties. If the
Legislature intended to create such an exception, it would have done so. Our interpretation is
consistent with the spirit of NRS 17.115 and NRCP 68 because the Nevada Legislature aimed
to promote settlement and avoid litigation.
12

[Headnote 4]
Also, precluding attorney fees recovery in surety bond disputes contradicts legislative
intent because it removes the incentive to settle. By enacting NRS 17.115, the Legislature
intended to speed up cases in the courts.
13
The purpose of NRS 17.115 is to place the risk
of loss on the offeree who fails to accept the offer, thus encouraging both offers and
acceptance of offers.
____________________

11
McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986), quoted in White v.
Continental Ins. Co., 119 Nev. 114, 117, 65 P.3d 1090, 1091-92 (2003).

12
Matthews v. Collman, 110 Nev. 940, 950, 878 P.2d 971, 978 (1994); Fleischer v. August, 103 Nev. 242,
245, 737 P.2d 518, 520 (1987).

13
Hearing on A.B. 587 Before the Assembly Comm. on Judiciary, 56th Leg. (Nev., March 25, 1971)
(statement of Assemblyman Howard F. McKissick).
the risk of loss on the offeree who fails to accept the offer, thus encouraging both offers and
acceptance of offers.
14
Limiting attorney fees recovery to the bond's remaining penal limit
when the secured party engages in direct litigation with the surety over the bond would
decrease the surety's potential litigation loss. From an attorney fees standpoint, it would
generally not matter whether the surety litigated the claim or settled before trial.
Consequently, the surety would not be stimulated to make or accept settlement offers and this
would attenuate Nevada's policy to encourage pretrial dispute resolution.
Limiting attorney fees in all surety bond disputes against the surety would not only
remove the incentive to settle, it would create an incentive to litigate. Sureties that can invest
at rates higher than the legal interest rate might prefer to litigate regardless of the litigation
outcome. This result would contradict Nevada's policy to encourage pretrial settlement.
Consequently, we conclude that NRS 17.115 and NRCP 68 apply to direct actions between
the secured entity and the surety. Thus, the district court should have considered awarding
attorney fees to the Joint Trust under these provisions.
(2) NRS 18.010(2)(a)
The Joint Trust also argues that the district court should have granted its attorney fees
request under NRS 18.010(2)(a) because it recovered $20,000. NRS 18.010(2)(a) authorizes
the court to award attorney fees to a prevailing party who has recovered no more than
$20,000. The amendments to NRS 18.010(2)(a) over the years support the Joint Trust's
argument.
In 1957, one year after the Basic Refractories decision, NRS 18.010 authorized an
attorney fees award to a prevailing party when the party had not sought recovery in excess of
$3,000.
15
In 1967, the Legislature increased the prevailing party's permitted recovery to
$10,000.
16
In 1985, the Legislature amended NRS 18.010 to authorize attorney fees awards
when the prevailing party had recovered no more than $20,000.
17
While the Legislature may
have been partially concerned with inflation,
18
the statute's 2003 amendment unambiguously
reflects the Legislature's intent to liberalize attorney fee awards. In 2003, Senate Bill 250
added the following language to NRS 1S.010: "The court shall liberally construe the
provisions of this paragraph in favor of awarding attorney's fees in all appropriate
situations.
____________________

14
Matthews, 110 Nev. at 950, 878 P.2d at 978.

15
1957 Nev. Stat., ch. 91, 1, at 129-30.

16
1967 Nev. Stat., ch. 466, 1, at 1254.

17
1985 Nev. Stat., ch. 83, 1, at 327.

18
One dollar in 1860 corresponded to $2.68 in 1951, $3.02 in 1957, $3.61 in 1967, and $11.58 in 1985. See
The Value of a Dollar: Prices and Incomes in the United States 1860-1999, at 2 (Scott Derks ed., 1999).
following language to NRS 18.010: The court shall liberally construe the provisions of this
paragraph in favor of awarding attorney's fees in all appropriate situations.
19
The statutory
language is clear; it encourages the district court to award attorney fees and it makes no
exemptions for sureties. The district court should have considered awarding attorney fees
under NRS 18.010(2)(a).
(3) NRS 18.010(2)(b)
The Joint Trust also asserts that the district court should have considered its attorney
fees request under NRS 18.010(2)(b) because Developers Surety acted in bad faith by
defending the claim without reasonable grounds and by unlawfully obstructing the Joint
Trust's access to evidence.
Prior to 1985, NRS 18.010 did not contain the bad faith basis for attorney fees
recovery.
20
In 1985, the Legislature authorized the district court to award attorney fees
[w]ithout regard to the recovery sought, when the court finds that the claim, counterclaim,
cross-claim or third-party complaint or defense of the opposing party was brought without
reasonable ground or to harass the prevailing party.
21
The concern with decreasing
groundless litigation echoed in the 2003 amendment when the Legislature added the
following language to NRS 18.010:
It is the intent of the Legislature that the court award attorney's fees pursuant to this
paragraph and impose sanctions pursuant to Rule 11 of the Nevada Rules of Civil
Procedure in all appropriate situations to punish for and deter frivolous or vexatious
claims and defenses because such claims and defenses overburden limited judicial
resources, hinder the timely resolution of meritorious claims and increase the costs of
engaging in business and providing professional services to the public.
22

The Legislature's express policy of discouraging frivolous litigation applies when the
surety is involved in direct bond litigation with the secured entity. Consequently, the district
court should have considered whether NRS 1S.010{2){b) warranted an attorney fees
award.
____________________

19
S.B. 250, 72d Leg. (Nev. 2003) (emphasis added); 2003 Nev. Stat., ch. 508, 153, at 3478.

20
See Civil Practice Act of 1911 434, reprinted in Nev. Rev. Laws 5376 (1912); 1951 Nev. Stat., ch. 54,
1, at 59; 1957 Nev. Stat., ch. 91, 1, at 129; 1967 Nev. Stat., ch. 466, 1, at 1254; 1969 Nev. Stat., ch. 247,
1, at 435; 1971 Nev. Stat., ch. 115, 1, at 165; 1975 Nev. Stat., ch. 243, 10, at 309; 1977 Nev. Stat., ch. 401,
4, at 774.

21
1985 Nev. Stat., ch. 83, 1, at 327.

22
S.B. 250, 72d Leg. (Nev. 2003); 2003 Nev. Stat., ch. 508, 153, at 3478.
considered whether NRS 18.010(2)(b) warranted an attorney fees award.
We further note that when two or more claims exceed a surety bond's penal limits, the
surety may initiate an interpleader proceeding under NRCP 22 to avoid exposure to double or
multiple liability. The claims do not have to be identical or have a common origin.
23
The
court has the discretion to approve the interpleader and permit the surety to deposit the bond's
remaining penal limits with the court. The court may then discharge the surety from any
further liability and equitably distribute the proceeds among the various claimants.
CONCLUSION
We conclude that the Joint Trust is eligible to recover attorney fees under NRS
17.115, NRCP 68 or NRS 18.010.
24
Therefore, we reverse the district court's order and
remand the case for an attorney fees determination.
Maupin, J., concurring in part and dissenting in part:
I concur in the result reached by the majority. I write separately to note my concern
with the majority's speculations regarding a bonding company's investment strategies. There
is no support in this record for the proposition that sureties might withhold settlement
commitments based upon their abilities to invest reserved funds at a rate of return greater than
the legal rate of interest.
____________________

23
NRCP 22; Rutherford v. Union Land and Cattle Co., 47 Nev. 21, 213 P. 1045 (1923).

24
The issue of interest and costs is not before us because the lower court granted the Joint Trust's interest
and costs request and Developers Surety has not challenged that decision.
____________
120 Nev. 65, 65 (2004) Attorney General v. NOS Communications
THE STATE OF NEVADA ex rel. OFFICE OF THE ATTORNEY GENERAL, BUREAU
OF CONSUMER PROTECTION; FRANKIE SUE DEL PAPA, in Her Capacity as
the Attorney General of the State of Nevada; and TIMOTHY HAY, in His Capacity as
the Consumer Advocate, Appellants, v. NOS COMMUNICATIONS, INC., a
Maryland Corporation; and AFFINITY NETWORKS INCORPORATED, a
California Corporation, Respondents.
No. 40348
February 25, 2004 84 P.3d 1052
Appeal from an order denying injunctive relief. First Judicial District Court, Carson
City; Michael R. Griffin, Judge.
Provider of telecommunications services sought declaratory and injunctive relief
against Office of the Attorney General, Bureau of Consumer Protection (BCP), alleging
provider was not violating state deceptive trade practices act. The district court denied BCP's
motion for preliminary injunction under the act, to enjoin provider from engaging in allegedly
deceptive trade practices. BCP appealed. The supreme court held that: (1) BCP's motion was
procedurally defective, and BCP therefore was not entitled to injunctive relief; and (2) BCP
was not required to show irreparable injury or inadequate legal remedy, to obtain injunctive
relief under the act.
Affirmed.
Brian Sandoval, Attorney General, and John R. McGlamery, Deputy Attorney
General, Carson City, for Appellants.
Lionel Sawyer & Collins and Laura K. Granier and Dan R. Reaser, Reno, for
Respondents.
1. Injunction.
Whether a preliminary injunction should be granted is a question addressed to the
district court's discretion.
The denial of a preliminary injunction will be reversed only where the district court
abused its discretion or based its decision on an erroneous legal standard or on clearly
erroneous findings of fact.
3. Consumer Protection; Declaratory Judgment.
Motion brought by Office of the Attorney General, Bureau of Consumer Protection
(BCP), seeking preliminary injunction under state deceptive trade practices act to enjoin
telecommunications provider from violating the act, was procedurally defective, and
BCP therefore was not entitled to injunctive relief; BCP did not assert an affirmative
claim for injunctive relief in its answer to telecommunications provider's declaratory
judgment complaint or assert an affirmative claim through a counterclaim, and BCP did
not attach to the motion affidavits containing admissible statements or admissible
documents. NRS 598.0963(3).
4. Injunction.
A state or government agency seeking injunctive relief based on an enforcement
action need not plead or prove irreparable injury or an inadequate remedy at law;
instead, the state or government agency is required only to show that the statute was
violated and that the statute relied upon specifically allows injunctive relief.
5. Consumer Protection.
For Office of the Attorney General, Bureau of Consumer Protection (BCP), to obtain
preliminary injunction under state deceptive trade practices act enjoining
telecommunications provider from violating the act, BCP was required only to
demonstrate a reasonable likelihood that telecommunications provider was engaging in
deceptive trade practices; it was not required to show irreparable injury or inadequate
legal remedy. NRS 598.0963(3).
Before Shearing, C. J., Becker and Gibbons, JJ.
OPINION
Per Curiam:
This appeal involves determination of the standards that govern the issuance of a
preliminary injunction when a government agency seeks injunctive relief under a consumer
protection statute. To obtain injunctive relief, the state or government agency must
demonstrate a reasonable likelihood that the statutory conditions authorizing injunctive relief
exist. No showing of irreparable injury or inadequate legal remedy is necessary. Although in
this case the district court applied an incorrect standard in reviewing the request for injunctive
relief, we affirm the district court order on other grounds.
FACTS
Respondents NOS Communications, Inc., and Affinity Networks Incorporated
(collectively, the Company) provide intrastate and interstate telecommunication services to
business and residential customers throughout the nation, including Nevada.
Based on numerous customer complaints filed against the Company, appellant Office
of the Attorney General, Bureau of Consumer Protection (BCP) determined that the Company
was engaging in deceptive trade practices in violation of NRS 598.0963. NRS 598.0963(3)
provides that the Attorney General's Office may bring an action for injunctive relief against a
person engaging in a deceptive trade practice.
Before the BCP filed an enforcement action under NRS 598.0963, the Company filed
a complaint for declaratory judgment and injunctive relief against the BCP. The Company
sought a declaration that it was not engaging in deceptive trade practices.
Shortly after filing an answer, but without filing a counterclaim, the BCP filed a
motion for a preliminary injunction. The BCP sought to enjoin the Company from engaging
in allegedly deceptive trade practices. The Company denies that it engaged in deceptive trade
practices.
The district court denied the BCP injunctive relief, concluding that an existing
administrative hearinga Nevada Public Utility Commission (PUC) rulemaking workshop
involving enactment of a consumers' bill of rights involving some of the disputed
practiceswas an adequate remedy at law. This appeal followed.
DISCUSSION
[Headnotes 1, 2]
Whether a preliminary injunction should be granted is a question addressed to the
1
The denial of a preliminary injunction will be reversed only
where the district court abused its discretion or based its decision on an erroneous legal
standard or on clearly erroneous findings of fact.
2

I. Procedural defect
[Headnote 3]
NRS 598.0963(3) allows the BCP to obtain injunctive relief when it bring[s] an
action in the name of the State of Nevada. Pursuant to the statute, the BCP is required to
assert an affirmative claim to obtain injunctive relief. Because the BCP did not assert an
affirmative claim for injunctive relief in its answer or through a counterclaim and did not
attach affidavits containing admissible statements or admissible documents to the motion, we
conclude that the motion for preliminary injunction was procedurally defective. Therefore, we
conclude that the district court did not abuse its discretion by denying the BCP injunctive
relief.
3
However, we address the merits of the district court's ruling to clarify our
jurisprudence in this area.
II. Preliminary injunction standard for statutory enforcement action
The BCP urges this court to follow Nevada Real Estate Commission v. Ressel
4
and
caselaw from other jurisdictions that presume irreparable injury in a statutory enforcement
action.
____________________

1
Nevada Escrow Service, Inc. v. Crockett, 91 Nev. 201, 202-03, 533 P.2d 471, 472 (1975).

2
U.S. v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir. 1992).

3
See Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 403, 632 P.2d 1155, 1158 (1981) (stating that appellate
court will uphold lower court decision even if it relied on wrong grounds so long as it reached correct result).

4
72 Nev. 79, 294 P.2d 1115 (1956).
presume irreparable injury in a statutory enforcement action. The Company argues that the
district court applied the proper traditional standard for injunctive relief, requiring a showing
of irreparable injury and an inadequate remedy at law.
5
We agree with the BCP.
In Ressel, a government agency sought injunctive relief in a statutory enforcement
action. Unlike the case at bar, the respondents in Ressel admitted that the statutory conditions
had been satisfied. This court concluded that the government agency was not required to
prove irreparable harm in an enforcement action when the statutory conditions were met.
6

[Headnote 4]
Like Nevada, other jurisdictions presume irreparable injury when the statutory
conditions of an enforcement action have been satisfied.
7
It is well settled that a state or
government agency seeking injunctive relief based on an enforcement action need not plead
or prove irreparable injury or an inadequate remedy at law.
8
Instead, the state or government
agency must only show that the statute was violated and that the statute relied upon
specifically allows injunctive relief.
9

[Headnote 5]
In this case, in order to obtain injunctive relief, the BCP was required to show a
reasonable likelihood that the statute was violated.
____________________

5
See Number One Rent-A-Car v. Ramada Inns, 94 Nev. 779, 780-81, 587 P.2d 1329, 1330 (1978).

6
See Ressel, 72 Nev. at 80-81, 294 P.2d at 1115-16 (concluding that, where a state's policy is declared by
statute allowing a government agency to seek injunctive relief, the sole conditions for the issuance of such an
injunction are those fixed by the act itself).

7
See, e.g., U.S. v. Odessa Union Warehouse Co-op, 833 F.2d 172, 175 (9th Cir. 1987) (noting that a court's
function in deciding whether to issue an injunction authorized by statute to enforce and implement congressional
policy is different than when weighing claims of two private litigants); Vill. of Riverdale v. Allied Waste Transp.,
777 N.E.2d 684, 688 (Ill. App. Ct. 2002) (concluding that the principle underlying the willingness of courts to
issue an injunction based on a statutory enforcement action is that harm to the public at large can be presumed
from the statutory violation alone); Ackerman v. Tri-City Geriatric & Health Care, 378 N.E.2d 145, 148-49
(Ohio 1978) (concluding that a statutory action granting a government agent the right to sue for injunctive relief
has a different history and purpose than an equitable action for injunctive relief); 42 Am. Jur. 2d Injunctions
23 (2000) (explaining that when permanent injunctive relief is sought pursuant to statutory authority, no showing
of irreparable injury is necessary and courts should not seek to apply their equitable discretion to grant an
injunction).

8
Vill. of Riverdale, 777 N.E.2d at 688.

9
Id.
Specifically, the BCP was required to demonstrate a reasonable likelihood that the Company
was engaging in deceptive trade practices in order to obtain injunctive relief. The district
court, however, analyzed the motion using traditional standards for granting equitable, rather
than statutory, injunctive relief. It found that the PUC hearings constituted an adequate legal
remedy and that the BCP failed to show irreparable harm. The district court then denied the
motion for injunctive relief.
By considering whether the BCP had an adequate legal remedy, the district court erred
because equitable considerations, such as irreparable harm and an inadequate legal remedy,
are presumed in a statutory enforcement action. Thus, the only issue before the district court
was whether the BCP presented admissible evidence establishing a reasonable likelihood that
the Company was engaging in deceptive trade practices.
10
Once such a showing is made, an
injunction should issue.
CONCLUSION
To obtain injunctive relief in a statutory enforcement action, a state or government
agency need only show, through competent evidence, a reasonable likelihood that the statute
was violated and that the statute specifically allows injunctive relief. Because the BCP did not
assert a counterclaim or properly support its request, we conclude that the motion for
preliminary injunction was procedurally defective and was properly denied. Therefore, we
affirm the district court order denying the BCP injunctive relief.
11

____________________

10
The Company argued below, and on appeal, that the BCP was prohibited from seeking injunctive relief on
other grounds, including: (1) the filed rate doctrine, (2) preemption by PUC regulatory authority, (3)
unconstitutional impairment on interstate commerce, (4) limitation of statutory provisions to unauthorized
transfers of telecommunication provider or unauthorized charges, (5) preemption by Federal Communications
Commission, and (6) equal protection violations. The district court rejected these contentions and we affirm.

11
Nothing in this opinion is intended to prohibit the BCP from seeking to amend its pleadings and filing a
new motion for injunctive relief.
____________
120 Nev. 70, 70 (2004) Diaz v. Ferne
RAYMOND D. DIAZ and MARY JANE DIAZ, Appellants, v. LEN FERNE, Respondent.
No. 40358
February 25, 2004 84 P.3d 664
Appeal from a district court order granting a motion for permanent injunction
prohibiting installation of a manufactured home on a lot designated for single-family homes.
Fifth Judicial District Court, Nye County; John P. Davis, Judge.
Neighbor brought action seeking injunctive relief against lot owners, asserting that
manufactured home that was being constructed violated requirements of subdivision's
conditions, covenants, and restrictions (CC&Rs). The district court issued permanent
injunction. Lot owners appealed. The supreme court held that for purposes of provision of
CC&Rs prohibiting mobile homes on lots designated for single-family homes, manufactured
home was not a mobile home.
Reversed.
[Rehearing denied May 5, 2004]
[En banc reconsideration denied May 27, 2004]
Jones Vargas and Melvin D. Close Jr. and Elizabeth M. Ghanem, Las Vegas, for
Appellants.
Law Offices of Jay Hampton & Associates and Jay R. Hampton, Henderson, for
Respondent.
1. Covenants.
For purposes of provision of subdivision's conditions, covenants, and restrictions
(CC&Rs) prohibiting mobile homes on lots designated for single-family homes,
manufactured home was not a mobile home; statutes drawing distinction between
manufactured and mobile homes were in effect when CC&Rs were filed, and thus
drafters of CC&Rs were presumed to have been aware of that statutory distinction.
NRS 278.02095, 461.030, 461.080, 489.113, 489.120.
2. Covenants.
Rules of construction governing the interpretation of contracts apply to the
interpretation of restrictive covenants for real property.
When there is no dispute of fact, a contract's interpretation is a legal question subject
to de novo review.
4. Covenants.
Words in a restrictive covenant, like those in a contract, are construed according to
their plain and popular meaning.
120 Nev. 70, 71 (2004) Diaz v. Ferne
OPINION
Per Curiam:
The district court issued a permanent injunction prohibiting Raymond and Mary Jane
Diaz from installing a manufactured home on their lot in the Calvada Valley subdivision. The
Diaz family appeals. The principal issue on appeal is whether the subdivision's Conditions,
Covenants and Restrictions (CC&Rs) prohibit installation of manufactured homes on lots
designated for single-family residences. We conclude that the CC&Rs do not prohibit
installation of manufactured homes on these lots. We, therefore, reverse the district court's
order enjoining the Diaz family from installing a manufactured home on their property.
FACTS
In June 1987, the CC&Rs were recorded for unit fourteen of the Calvada Valley
subdivision in Pahrump, Nye County, Nevada. The CC&Rs included limitations on the use of
land within unit fourteen. The subdivision lots' classifications included Single-Family Lots
and Mobile Home Lots. The CC&Rs also restricted the placement, alteration, or erection of
buildings without the approval of the Architectural Review Committee
1
(architectural
committee). These restrictions were to remain in force until the year 2027.
The CC&Rs provide, in pertinent part:
Lots in the subdivision shall be classified by permitted uses, building requirements
and limitations, set-backs and parking requirements for each permitted use
classification are as follows:
. . . .
A. Single-Family Lots
1. Lots of this classification shall be used only for
single-family homes, including accessory buildings.
. . . .
F. Mobile Home Lots
1. Lots of this classification shall be used only for
single-family dwellings or mobile homes.
The CC&Rs continue:
No building shall be erected, placed or altered on any lot until the construction plans
and specifications and a plan showing the location of the structure have been
approved in writing by the Developer or Architectural Control Committee as may be
formed by Declarant, or its duly authorized agent as to quality of workmanship and
materials, harmony of external design with existing structures and location with
respect to topography and finished grade elevation.
____________________

1
Although CC&Rs refer to the Architectural Control Committee, this committee actually refers to itself as
the Architectural Review Committee.
120 Nev. 70, 72 (2004) Diaz v. Ferne
showing the location of the structure have been approved in writing by the Developer or
Architectural Control Committee as may be formed by Declarant, or its duly authorized
agent as to quality of workmanship and materials, harmony of external design with
existing structures and location with respect to topography and finished grade elevation.
In December 2000, the Diaz family purchased property designated as a
Single-Family Lot in the Calvada Valley subdivision. The Diaz family submitted an
application to the Pahrump Regional Planning District, requesting permission to build a
manufactured home on their lot. The Diaz family subsequently received a letter from the
Calvada Valley Homeowners Protection Corporation denying their request. The letter stated,
in pertinent part:
[T]he current use of your property is in direct violation of Calvada's C.C. & R.'s and/or
Deed Restrictions. These violations are described below:
1. You are under some kind of construction on lot 6, block 12, unit 14, without the
approval or disapproval, of the Architectural Review Committee.
2. You must cease any and all construction until your plans are submitted to the ARC.
In a letter to the Calvada Homeowners Protection Corporation, the Diaz family
explained their plans to build a triple-wide modular home with an attached two-car garage
on the property, and again requested approval. The architectural committee denied the Diaz
family's request. The Diaz family proceeded with construction of the manufactured home. An
owner of another lot in the same area brought suit to enjoin further construction of the
manufactured home.
After trial, the district court found that [a]ll property located in Calvada Valley, Unit
14, including Defendant's Lot, is subject to [the CC&Rs] recorded on June 3, 1987. The
district court also found that the CC&Rs provide that the use of certain lots is limited, and
mobile homes are not allowed on the lot owned by the Diaz family. The district court
concluded that [t]he term mobile home as used in the [CC&Rs] unambiguously includes a
manufactured home and [t]he [CC&Rs] prohibit Defendants from placing a manufactured
home on their Lot. The district court permanently enjoined the Diaz family from
constructing a manufactured home on their lot. The Diaz family appealed.
DISCUSSION
[Headnote 1]
The Diaz family contends that the district court erred in permanently enjoining them
from installing a manufactured home on their property.
120 Nev. 70, 73 (2004) Diaz v. Ferne
their property. They maintain that the district court incorrectly found that the term mobile
home includes manufactured homes and that manufactured homes cannot be placed on the
lots designated for single-family dwellings.
[Headnotes 2, 3]
This court must interpret the Calvada Valley subdivision CC&Rs. The rules of
construction governing the interpretation of contracts apply to the interpretation of restrictive
covenants for real property.
2
When there is no dispute of fact, a contract's interpretation is a
legal question subject to de novo review.
3

[Headnote 4]
We have held that [r]estrictive covenants are strictly construed
4
and enforceable, if
the original purpose for the covenant continues to result in a substantial benefit to the
restricted subdivision.
5
Words in a restrictive covenant, like those in a contract, are
construed according to their plain and popular meaning.
6

The problem here is that the subdivision's CC&Rs do not mention the term
manufactured home. The Diaz family argues that a manufactured home is not a mobile
home. Although the district court concluded that the term mobile home unambiguously
includes a manufactured home, we cannot agree. We conclude that a manufactured home
is distinct from a mobile home, both in popular meaning and in the Nevada statutes.
Nevada statutes clearly draw a distinction between a manufactured home and a mobile
home. NRS 489.113 provides, in pertinent part:
1. Manufactured home means a structure which is:
(a) Built on a permanent chassis;
(b) Designed to be used with or without a permanent foundation as a dwelling when
connected to utilities;
(c) Transportable in one or more sections; and
(d) Eight feet or more in body width or 40 feet or more in body length when
transported, or, when erected on site, contains 320 square feet or more.
2. The term includes:
(a) The plumbing, heating, air-conditioning and electrical systems of the structure.
____________________

2
Tompkins v. Buttrum Constr. Co., 99 Nev. 142, 144, 659 P.2d 865, 866 (1983).

3
Lorenz v. Beltio, Ltd., 114 Nev. 795, 803, 963 P.2d 488, 494 (1998).

4
Dickstein v. Williams, 93 Nev. 605, 608, 571 P.2d 1169, 1171 (1977).

5
Valley Motor v. Almberg, 106 Nev. 338, 339, 792 P.2d 1131, 1132 (1990); see also Meredith v. Washoe
Co. Sch. Dist., 84 Nev. 15, 19, 435 P.2d 750, 753 (1968).

6
Tompkins, 99 Nev. at 144, 659 P.2d at 866.
120 Nev. 70, 74 (2004) Diaz v. Ferne
(b) Any structure:
(1) Which meets the requirements of paragraphs (a) to (c), inclusive, of
subsection 1, and with respect to which the manufacturer voluntarily files a certification
required by the Secretary of Housing and Urban Development and complies with the
standards established under the National Manufactured Housing Construction and
Safety Standards Act of 1974, 42 U.S.C. 5401 et seq.; or
(2) Built in compliance with the requirements of chapter 461 of NRS.
In contrast, NRS 489.120 defines a mobile home, in pertinent part, as follows:
1. Mobile home means a structure which is:
(a) Built on a permanent chassis;
(b) Designed to be used with or without a permanent foundation as a dwelling when
connected to utilities; and
(c) Transportable in one or more sections.
. . . .
3. The term does not include a recreational park trailer, travel trailer, commercial
coach or manufactured home or any structure built in compliance with the
requirements of chapter 461 of NRS.
(Emphasis added.)
In addition, the subject matter and title of NRS chapter 461 is Manufactured
Buildings and the chapter sets forth the standards for construction. NRS 461.080 defines
factory-built housing as follows:
Factory-built housing means a residential building, dwelling unit or habitable room
thereof which is either wholly manufactured or is in substantial part manufactured at an
off-site location to be wholly or partially assembled on-site in accordance with
regulations adopted by the Division pursuant to NRS 461.170, but does not include a
mobile home or recreational park trailer.
(Emphasis added.) Furthermore, NRS 461.030, which sets forth the policy of the state,
provides, in pertinent part:
2. The legislature further finds and declares that by minimizing the problems of
standards and inspection procedures, it is demonstrating its intention to encourage the
reduction of housing construction costs and to make housing and home ownership more
feasible for all residents of the State.
These legislative provisions were in effect in 1987 when the CC&Rs were filed.
Therefore, we must presume that the drafters of the CC&Rs were aware of the distinction
between manufactured homes and mobile homes recognized by the Nevada Legislature and
its express policy.
120 Nev. 70, 75 (2004) Diaz v. Ferne
homes and mobile homes recognized by the Nevada Legislature and its express policy. If the
drafters of the CC&Rs had intended to exclude manufactured homes from lots designated for
single-family residences, they would have explicitly done so.
In 1999, the Nevada Legislature emphasized the state policy of encouraging the use of
manufactured homes by enacting NRS 278.02095, which requires that in any ordinance
relating to the zoning of land, the definition of single-family residence must include a
manufactured home that has been built in compliance with the Uniform Building Code's
standards for single-family residential dwellings. NRS 278.02095(5) does provide that
recorded restrictive covenants may prohibit manufactured homes, but the Calvada Valley
CC&Rs do not specifically contain such a provision.
We have held that a grantee can only be bound by what he had notice of, not the
secret intentions of the grantor.'
7
Since the CC&Rs are silent on the issue of manufactured
homes, the CC&Rs cannot be used to prohibit the installation of manufactured homes on lots
designated as Single-Family Lots.
CONCLUSION
The order of the district court permanently enjoining the Diaz family from installing a
manufactured home on their subdivision lot is reversed.
____________
120 Nev. 75, 75 (2004) Redl v. Secretary of State
HARRY REDL, Petitioner, v. DEAN HELLER, SECRETARY OF STATE OF THE STATE
OF NEVADA, Respondent, and 411 NEW YORK OWNERS CORP., a Nevada
Corporation, Real Party in Interest.
No. 40610
March 12, 2004 85 P.3d 797
Original petition for a writ of mandamus challenging the Secretary of State's issuance
of a certificate of revival for real party in interest.
The supreme court held that: (1) revival was not limited to five-year period contained
in reinstatement statute, (2) revival statute applied to existing as well as dissolved
corporations, and (3) revival of corporate charter was not abuse of discretion.
Petition denied.
Watson Rounds and Kenneth N. Caldwell, Reno, for Petitioner.
____________________

7
Caughlin Homeowners Ass'n v. Caughlin Club, 109 Nev. 264, 268, 849 P.2d 310, 312 (1993) (quoting
Lakeland Property Owners Ass'n v. Larson, 459 N.E.2d 1164, 1170 (Ill. App. Ct. 1984)).
Brian Sandoval, Attorney General, and George G. Campbell, Deputy Attorney
General, Carson City, for Respondent.
White Law Chartered and John A. White Jr., Reno; Sharp & Brown, LLP, and John E.
Sharp, San Rafael, California, for Real Party in Interest.
1. Statutes.
Supreme court reads each sentence, phrase, and word in statute to render it
meaningful within the context of the purpose of the legislation.
2. Corporations.
Statute that prohibited reinstatement of corporate charter after five consecutive years
of revocation did not prohibit revival of revoked corporate charter, where separate
statute specifically governed revival process and contained no five-year limit. NRS
78.180(4), 78.730.
3. Corporations; Courts.
Revival statute permitted dissolved and existing corporations to apply for revival of
corporate charter, even though Attorney General previously issued opinion that revival
process only applied to dissolved corporations. Attorney General opinions are not
precedent, and current version of revival statute specifically permitted revival of
dissolved and existing corporations. NRS 78.730.
4. Corporations.
Secretary of State lacked discretion to review merits of corporation's application for
revival of corporate charter due to corporation's substantial compliance with filing
requirements, and thus, Secretary of State did not abuse its discretion in deciding to
revive corporation's previously revoked charter where corporation's application
included names of officers and met all other statutory requirements but failed to include
directors, and corporation fulfilled essential elements necessary to ensure every
reasonable objective of revival statute was met. NRS 78.730.
Before Becker, Agosti and Gibbons, JJ.
OPINION
Per Curiam:
In this petition for a writ of mandamus, petitioner challenges the Secretary of State's
revival of a revoked corporate charter after a five-year period. We conclude that under NRS
78.730, the Secretary of State has discretion to revive a corporate charter that has been
revoked for a period of five or more years. We therefore deny the petition.
FACTS
Approximately five years ago, petitioner Harry Redl entered into a land purchase
agreement with real party in interest 411 New York Owners Corp. (New York Owners). New
York Owners is a Nevada Corporation.
Nevada Corporation. Redl agreed to sell eleven lots of land in Marin County, California, to
New York Owners. When Redl failed to acquire title to three of the eleven lots, New York
Owners sued Redl in California for breach of contract. On October 6, 2002, Redl requested a
certificate of revocation of New York Owners' corporate charter from the Nevada Secretary of
State to prove that it was not a corporation in good standing at the time of the contract. Redl
later discovered that the Secretary of State had revived New York Owners' corporate charter.
Redl claims that the revival of the corporate charter compromised his position in the
breach-of-contract litigation.
New York Owners incorporated in Nevada on September 23, 1994. After 1995, New
York Owners failed to file a list of officers and directors and designate a resident agent with
the Nevada Secretary of State. New York Owners also failed to pay the appropriate fees and
subsequent penalties. As a result, on July 1, 2001, the Nevada Secretary of State permanently
revoked New York Owners' charter. Then, on November 6, 2002, New York Owners filed a
list of officers and directors and designated a resident agent. New York Owners also paid
$1,555 in fees and penalties along with an application for a certificate of revival. The
application for revival and the list of officers and directors did not contain any directors; it
contained only officers. The Secretary of State accepted New York Owners' application and
revived its corporate charter.
Redl petitions for a writ of mandamus, challenging the Secretary of State's issuance of
a certificate of revival for New York Owners.
DISCUSSION
Redl petitions this court to issue a writ of mandamus to compel the Secretary of State
to revoke New York Owners' revived corporate charter. We have original jurisdiction to issue
writs of mandamus.
1
The extraordinary remedy of mandamus is available to compel the
performance of an act which the law especially enjoins as a duty resulting from office'
2
or
to control an arbitrary or capricious exercise of discretion.
3
A writ of mandamus will not
issue, however, if the petitioner has a plain, speedy and adequate remedy in the ordinary
course of law.
4
Further, mandamus is an extraordinary remedy, and it is within this court's
discretion to determine if a petition will be considered.
____________________

1
Nev. Const. art. 6, 4; NRS 34.160.

2
City of Reno v. Nevada First Thrift, 100 Nev. 483, 487-88, 686 P.2d 231, 234 (1984) (quoting Board of
Comm'rs v. Dayton Dev. Co., 91 Nev. 71, 75, 530 P.2d 1187, 1189 (1975)).

3
Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981).

4
NRS 34.170.
120 Nev. 75, 78(2004) Redl v. Secretary of State
traordinary remedy, and it is within this court's discretion to determine if a petition will be
considered.
5

Reinstatement and revival of a corporate charter are duties resulting from the office of
the Secretary of State;
6
and as discussed below, the Secretary of State has discretion to
accept applications for revival that substantially comply with pertinent statutory provisions.
Moreover, Redl has no adequate remedy in the ordinary course of law to challenge the
Secretary of State's decision. It therefore appears that an original writ proceeding is the
appropriate method for challenging the Secretary of State's decision.
Redl contends that the Secretary of State lacked authority to revive New York
Owners' revoked corporate charter. Redl bases his contention in part on the reinstatement
provisions of NRS 78.180(4),
7
which does not mention the process of revival. Redl argues,
however, that reinstatement and revival are the same.
[Headnote 1]
We have stated that words in a statute should be given their plain meaning unless
this violates the spirit of the act.
8
We read each sentence, phrase, and word to render it
meaningful within the context of the purpose of the legislation.
9
To determine whether
reinstatement and revival are distinguishable, we will analyze each in turn.
Corporate reinstatement
[Headnote 2]
Under NRS 78.180, the Secretary of State shall reinstate a corporation if the
corporation files its list of officers and directors and pays the fees and any penalties.
10
If the
corporate charter has been revoked . . . for a period of 5 consecutive years, the charter must
not be reinstated.
11

New York Owners applied for revival of its corporate charter. It did not apply for
reinstatement. NRS 78.180 only provides the conditions and procedures for reinstatement; it
does not mention revival.
____________________

5
Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982); see also Smith v. District Court,
107 Nev. 674, 677, 818 P.2d 849, 851 (1991).

6
NRS 78.180; NRS 78.730.

7
NRS 78.180(4) states: If a corporate charter has been revoked pursuant to the provisions of this chapter
and has remained revoked for a period of 5 consecutive years, the charter must not be reinstated.

8
McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986), quoted in White v. Continental
Ins. Co., 119 Nev. 114, 117, 65 P.3d 1090, 1091-92 (2003).

9
Bd. of County Comm'rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983).

10
NRS 78.180.

11
NRS 78.180(4).
revival. Because there is another statute specifically governing the revival process, the plain
meaning of reinstatement under NRS 78.180 cannot include revival. Since each word should
have meaning within the statute, the word reinstatement must be different from the word
revival.
12
Therefore, NRS 78.180 does not apply to New York Owners.
Corporate revival
NRS 78.730(1) states that [a]ny corporation which did exist or is existing under the
laws of this state may . . . procure a renewal or revival of its charter for any period. The
corporation must comply with the provisions of NRS 78.180,
13
which requires the
corporation to pay any fees and penalties and file a list of officers and directors and
designation of a resident agent.
14
The corporation must also file a certificate with the
Secretary of State setting forth: (1) the name of the corporation; (2) the name and address of
the resident agent; (3) the date when revival is to be effective, which may be before the date
of the certificate; (4) whether the revival is to be perpetual; and (5) that the corporation is, or
has been, organized and carrying on the business authorized by its charter.
15
Finally, the
certificate must be signed by a person representing the majority of the stockholders.
16
Upon
complying with these procedures, the Secretary of State has the discretion to revive a
corporate charter. The reinstatement statute does not contain any of these provisions.
17

The process for revival differs substantially from reinstatement in several ways. First,
a corporation seeking reinstatement does not need to file a certificate with the Secretary of
State.
18
Second, a corporation seeking reinstatement does not have to sign a certificate
representing the majority of the stockholders.
19
Third, a corporation seeking revival may
choose the date that the charter becomes effective, which may be any date between the
original date of default to the date when the certificate is filed.
20
A corporation seeking
reinstatement cannot choose an effective date.
21
Fourth, a corporation seeking
reinstatement cannot be reinstated if its charter has remained revoked for a period of five
consecutive years.
____________________

12
See Bd. of County Comm'rs, 99 Nev. at 744, 670 P.2d at 105.

13
NRS 78.730(1).

14
NRS 78.180.

15
NRS 78.730(1).

16
NRS 78.730(3).

17
NRS 78.180.

18
Compare id., with NRS 78.730(1).

19
Compare NRS 78.180, with NRS 78.730(3).

20
NRS 78.730(1)(a)(3).

21
NRS 78.180.
corporation seeking reinstatement cannot be reinstated if its charter has remained revoked for
a period of five consecutive years.
22
There is no similar restriction on revival.
23

By its plain terms, NRS 78.730 allows any Nevada corporation now existing or that
did exist to apply for revival of its charter. The Legislature, by putting a limit on
reinstatement and not on revival, knew that it could limit revival and chose not to. In the
instant case, New York Owners applied for revival under NRS 78.730 and was a corporation
at the time of revival. Therefore, it existed as required by statute. New York Owners provided
the Secretary of State with its list of officers and paid the fees and penalties. It complied with
all other procedures that NRS 78.730 requires, and the Secretary of State accepted New York
Owners' certificate of revival.
Corporate revival after five years
New York Owners applied for a revival of its corporate charter under NRS 78.730. It
did not apply under NRS 78.180. Since New York Owners did not apply for reinstatement, it
is not subject to the five-year limitation. The plain meaning of the statute is that the five-year
limitation applies only to reinstatement, not revival.
24
Although a corporation cannot be
reinstated after five years, there is no provision under NRS 78.730 that prevents a corporate
revival after five years. The Secretary of State has the discretion to revive a revoked corporate
charter after any amount of time.
Corporate revival after dissolution
Redl also argues that the Secretary of State can revive only a dissolved corporation.
Redl relies on a 1951 opinion from the Nevada Attorney General that discusses the statutes
preceding NRS 78.730.
25

[Headnote 3]
The Attorney General opined that the revival provision could apply only to a
dissolved corporation because the statute refers to stockholders instead of a president or
secretary.
26
We note that the Attorney General's opinions are not precedent.
27
Moreover, the
current statute specifically states that it applies to any corporation that did exist or is now
existing.
____________________

22
NRS 78.180(4).

23
NRS 78.730.

24
NRS 78.180(4).

25
51-119 Op. Att'y Gen. 269 (1951).

26
Id. at 270.

27
University System v. DR Partners, 117 Nev. 195, 203, 18 P.3d 1042, 1048 (2001).
rent statute specifically states that it applies to any corporation that did exist or is now
existing.
28
Consequently, we conclude that the plain meaning of NRS 78.730 must include
all Nevada corporations, both those that existed and those that now exist. New York Owners
incorporated in Nevada and qualified as an existing corporation because it had not been
dissolved. New York Owners would have also qualified for revival if it had no longer existed
at the time of revival.
Failure to file list of directors
Redl contends that because New York Owners failed to file its list of directors with
the Secretary of State, the corporation should not have been revived. New York Owners
claims that it did file its list of directors, as evidenced by the certificate of revival. However,
the certificate of revival contains only the names and addresses of the corporate officers. The
areas indicated for names and addresses of directors are blank.
[Headnote 4]
Under NRS 78.730(1)(b), the corporation must file a certificate with the Secretary of
State that includes [a] list of its president, secretary and treasurer and all of its directors. We
agree with the 1951 Attorney General's opinion to the extent that [w]hen papers are
presented to the Secretary of State for filing and such papers substantially comply with the
statutes, his discretion does not extend to the merits of the application.
29
The Secretary of
State thus has the discretion to accept applications that substantially comply with NRS
78.730.
30
We have defined substantial compliance as compliance with essential matters
necessary to ensure that every reasonable objective of the statute is met.
31
For the reasons
set forth below, the Secretary of State's decision to revive New York Owners' corporate
charter was not a manifest abuse of discretion.
On November 6, 2002, New York Owners filed a certificate of revival pursuant to
NRS 78.730. New York Owners paid the fees and penalties assessed by the Secretary of
State. The certificate listed the names and addresses of New York Owners' president,
secretary, and treasurer. It also listed the name and address of its resident agent; however, it
did not list any directors. Since the directors must be listed under NRS 78.730(1)(b) for the
purpose of revival, and no directors were listed on New York Owners' certification, Redl
argues that New York Owners' corporate charter should not have been revived.
____________________

28
NRS 78.730(1).

29
51-119 Op. Att'y Gen. 269, 271 (1951).

30
Id.

31
Williams v. Clark County Dist. Attorney, 118 Nev. 473, 480, 50 P.3d 536, 541 (2002).
revival, and no directors were listed on New York Owners' certification, Redl argues that
New York Owners' corporate charter should not have been revived. However, the Secretary
of State stated that it does not validate the information in the document, only that the
information requisite for filing is present. [New York Owners'] documents clearly contain the
information necessary for filing by this office.
By listing its president, secretary, treasurer, and resident agent along with their
addresses, New York Owners has fulfilled the essential elements necessary to ensure that
every reasonable objective of NRS 78.730 has been met. New York Owners omitted only the
list of directors, but met all other statutory requirements. Because New York Owners
substantially complied with NRS 78.730, the Secretary of State lacked the discretion to
review the merits of New York Owners' revival application. The Secretary of State made the
decision to revive New York Owners' charter because New York Owners filed the necessary
information. The Secretary of State's decision to revive New York Owners' corporate charter
was not an arbitrary or capricious exercise of discretion. Accordingly, we deny the petition
for a writ of mandamus.
____________
120 Nev. 82, 82 (2004) Ringle v. Bruton
EDWARD RINGLE, an Individual, and STAGECOACH CASINO AND HOTEL, a Sole
Proprietorship, Appellants, v. ALPHEUS C. BRUTON, II, Respondent.
No. 38931
April 1, 2004 86 P.3d 1032
Appeal from a final judgment in an employment contract case and from an order
denying a motion for a new trial. Fifth Judicial District Court, Nye County; John P. Davis,
Judge.
Former general manager of casino, as former employee, brought claims for breach of
contract and breach of implied covenant of good faith and fair dealing against casino owner,
as former employer, relating to termination of employment. The district court entered
judgment on jury's verdict awarding former employee $131,814.83, and denied former
employer's post-trial motion for new trial. Former employer appealed. The supreme court,
Agosti, J., held that: (1) as a matter of first impression, terms of a written employment
contract, other than the contract's duration, are presumptively renewed if an employment
relationship continues after the written contract's stated duration; (2) sufficient evidence
established former employee's entitlement to bonus pay; (3) sufficient evidence established
former employee's entitlement to severance pay; and {4) former employer did not preserve
appellate review of a claim that calling a witness a liar was improper.
ance pay; and (4) former employer did not preserve appellate review of a claim that calling a
witness a liar was improper.
Affirmed.
Carmine J. Colucci & Associates and Carmine J. Colucci, Las Vegas, for Appellants.
Law Office of Daniel Marks and Adam Levine and Daniel Marks, Las Vegas, for
Respondent.
1. Judgment.
Summary judgment is proper only if no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. NRCP 56(c).
2. Master And Servant.
At-will employment is presumed, in the absence of a written employment contract.
3. Master and Servant.
When an employee and employer continue an employment relationship after the term
of duration contained in a written employment contract, the original contract is
presumed to renew automatically under the same terms and conditions until either party
terminates the contract. However, the contract's duration does not presumptively renew.
4. Evidence.
Parol evidence rule did not preclude admission of evidence of oral agreement
regarding terms of employment, in employee's action against employer for breach of
contract and breach of implied covenant of good faith and fair dealing relating to
termination of employment, where employer and employee agreed that the written
employment contract did not incorporate all the terms of their employment agreement.
5. Appeal and Error; Trial.
The district court has broad discretion to settle jury instructions, and a district court's
decision to give a particular instruction will not be overturned absent an abuse of
discretion or judicial error.
6. Evidence.
The parol evidence rule does not permit the admission of evidence that would change
the contract terms, when the terms of a written agreement are clear, definite, and
unambiguous. However, parol evidence is admissible to prove a separate oral
agreement regarding any matter not included in the contract or to clarify ambiguous
terms so long as the evidence does not contradict the terms of the written agreement.
A jury verdict will not be overturned if it is supported by substantial evidence, unless,
from all the evidence presented, the verdict was clearly wrong.
8. Evidence.
Substantial evidence is evidence that a reasonable mind might accept as adequate to
support a conclusion.
9. Evidence.
Bonus-pay provision of employment contract for casino's general manager, under
which general manager would receive bonuses if quarterly or annual gross operating
profits for casino exceeded stated thresholds, was ambiguous, and thus, parol
evidence was admissible; accountant testified that "gross operating profits" was not
an accounting term, and the accountant equated the term to gross operating
income.
was ambiguous, and thus, parol evidence was admissible; accountant testified that
gross operating profits was not an accounting term, and the accountant equated the
term to gross operating income.
Casino's general manager was entitled to bonuses, pursuant to employment contract
providing for bonuses if casino's quarterly or annual gross operating income exceeded
stated thresholds, though casino's income did not exceed those thresholds and general
manager did not demand bonuses when they became due; general manager testified that
bonus provision was agreed to as means for paying the balance of the salary he had
required in order to leave his previous employment, and that he did not demand
immediate payment because casino owner was experiencing financial difficulties with
other endeavors, profits from casino were being diverted elsewhere by owner, and
owner had acknowledged the debt to general manager and had said he would make
things right.
11. Contracts.
In determining the parties' intent, the trier of fact must construe the contract as a
whole, including consideration of the contract's subject matter and objective, the
circumstances of its drafting and execution, and the parties' subsequent conduct.
12. Contracts.
Ambiguous terms of a contract should be construed against the party who drafted
them.
Evidence established that casino owner terminated the employment contract for
casino's general manager, for purposes of contractual provision entitling general
manager to $25,000 severance payment if employment contract was terminated by
owner rather than by general manager; casino manager testified that owner fired him
without the sixty days' written notice of termination required under the contract,
rebuffed general manager's offer to remain for another sixty days, and attempted to
issue him a check for one month's wages as severance pay.
An order denying a motion for judgment notwithstanding the verdict (JNOV) or a
motion for remittitur is not appealable. NRAP 3A(b)(2).
A district court's order granting a new trial, based on a prevailing party's misconduct,
will not be disturbed on appeal absent an abuse of discretion. NRCP 59(a)(2).
16. New Trial.
To warrant a new trial, on grounds of attorney misconduct, the flavor of misconduct
must sufficiently permeate an entire proceeding to provide conviction that the jury was
influenced by passion and prejudice in reaching its verdict. NRCP 59(a)(2).
Opposing counsel's failure to object to attorney misconduct at trial generally precludes
appellate review.
Timely and appropriate trial court objections to instances of attorney misconduct, as
requirement for preserving appellate review, serve at least two purposes: they
demonstrate that the objecting party takes issue with the conduct, and they conserve
judicial resources by providing the trial court with an opportunity to correct any
potential prejudice and avoid a retrial or an appeal.
In civil cases, the supreme court will consider arguments of egregious but
unobjected-to misconduct at trial by counsel only in those rare circumstances where the
counsel's comments are of such sinister influence as to constitute irreparable and
fundamental error, which is error that, if not corrected, would result in a substantial
miscarriage of justice or denial of fundamental rights and which is present only when it
is plain and clear that no other reasonable explanation for the verdict exists.
Employer's objection at trial in employee's action for breach of employment
agreement, that closing argument of employee's counsel implied that employer's
counsel helped employer fabricate employer's testimony, did not preserve appellate
review of a claim that calling a witness a liar was improper.
1

OPINION
By the Court, Agosti, J.:
This is an appeal from a final judgment in an employment contract case and an order
denying a motion for a new trial. Appellant Edward Ringle contends that (1) the district court
erroneously denied his motion for summary judgment or partial summary judgment because
the employment contract had expired and was unenforceable, (2) the district court abused its
discretion by giving erroneous jury instructions concerning the contract's continuation and the
parol evidence rule, and (3) the jury's compensatory damages were not supported by
substantial evidence. Ringle also contends that it was an abuse of discretion for the district
court to deny his motion for a new trial based on a claim that opposing counsel engaged in
blatant misconduct during closing argument.
We affirm the judgment because we perceive no error in the district court's decision
concerning the jury instructions and also because our review of the record reveals the
existence of substantial evidence to support the jury's damages awards. We have not
previously decided whether an employee who continues to work for an employer after the
expiration of a contract of employment becomes an at-will employee. We do so now. We
conclude that when an employee continues to work after his contract of employment expires,
it is presumed that all the terms of the employment contract continue to govern the conduct of
the employer and the employee until the parties properly amend or terminate the contract or
until the employee ceases working for the employer.
____________________

1
until the employee ceases working for the employer. The contract duration, however, does not
renew.
We also affirm the order denying Ringle's motion for a new trial. Although, at trial,
opposing counsel improperly and more than once accused Ringle of lying, Ringle did not
timely and properly object to these comments. We also today clarify our recent holding in
DeJesus v. Flick
2
concerning the necessity of making a timely and appropriate objection to
improper argument in order to preserve the issue on appeal. We hold that allegedly improper
argument, not properly objected to at trial, will not be considered on appeal absent
extraordinary circumstances which we describe in this opinion.
FACTUAL BACKGROUND
Ringle was the owner of the Stagecoach Casino and Hotel in Beatty, Nevada. In June
1992, Ringle hired Alpheus Bruton to work as the facility's general manager. Ringle and
Bruton executed a written employment contract drafted and then revised by Bruton to
incorporate Ringle's suggestions. The contract provided that [t]his agreement is for a period
of two years from the date of signing. The contract also incorporated a General
Understanding that a permanent mutually beneficial business relationship be established
and that [Bruton] will endeavor to assist [Ringle] in the growth of his organization. The
contract provided for Bruton's compensation by providing that Bruton would receive a
$44,990.00 base annual gross salary and a $1,800.00 monthly bonus if certain goals were met.
Other provisions specified that vacation time accrued at the rate of one day per month of
employment and that Ringle would reimburse Bruton's reasonable business expenses. Finally,
the contract permitted either partner to cancel the agreement on the condition of sixty days'
written notice. If Ringle canceled, Bruton was entitled to receive $25,000.00 net, any salary
and bonus accrued for the year, and all bonuses owed at the end of the sixty-day notice
period. If Bruton canceled, he received less money.
Bruton was employed at the Stagecoach for four years. The parties' contract was never
amended in writing or terminated pursuant to a writing. Nor did the parties execute a new
written contract. In 1994, Bruton received a company car for both business and personal use.
In March 1995 and again in March 1996, Ringle raised Bruton's salary by five percent on his
own initiative without negotiating with Bruton. In June 1996, however, Ringle and Bruton
argued. As a result, Bruton's employment at the Stagecoach ended.
____________________

2
116 Nev. 812, 7 P.3d 459 (2000).
The parties dispute whether Bruton resigned or whether Ringle terminated him, but neither
party provided the other with any advance notice.
In March 1997, Bruton sued Ringle, alleging several contract and tort claims. After
answering the complaint and asserting a counterclaim, Ringle moved for summary judgment
or alternatively for partial summary judgment, arguing that Bruton had no contract claims
because after the contract expired in June 1994, Bruton became an at-will employee. The
district court denied the motion. Bruton abandoned his tort claims, Ringle abandoned his
counterclaim, and the parties proceeded to a jury trial on Bruton's claims for breach of
contract and breach of the implied covenant of good faith and fair dealing.
During closing argument, Bruton's counsel asserted on six occasions that Ringle either
had lied or had motive to lie during his testimony. The incidents are as follows:
The evidence that he told you, oh, we had a new deal, I intended a new deal, that was a
lie, that was a bald faced lie that he told you here in Court. His deposition testimony
which he was able to give without working with his attorney, without prompting,
without listening and figuring out, how can I rebut this, how can I get around this, he
didn't even think about it.
. . . .
Let me reiterate, it was Mr. Ringle [who] sat up here and lied to you. He lied here at
trial.
. . . .
One of the other big lies that was told in this case was what happened to Alpheus
Bruton's employment.
. . . .
So let's ask, who has the incentive to lie? Mr. Ringle has the incentive to lie . . . .
. . . .
Mr. Ringle lied about the termination. If you simply listen to his testimony, while much
or all of it was untrue . . . .
. . . .
Again I'll reiterate, it is Mr. Ringle that has the incentive to lie.
Ringle's counsel objected to the first excerpt above and moved for a mistrial on the basis that
Counsel is asserting to the jury that I would take place in fabricating a lie, taking part, . . . in
preparing a lie to present to the jury. He said with prompting and working with the attorney.
That is absolutely improper. The district court took the matter under advisement, and
Bruton's counsel continued with his argument, including making the additional improper
remarks excerpted above.
marks excerpted above. These remarks drew no objection from Ringle.
After the jury retired, Ringle again moved for a mistrial, arguing that DeJesus
3
required a mistrial, claiming that Bruton's closing argument was improperly inflammatory.
Specifically, Ringle cited the comments to the jury by Bruton's counsel that Ringle's counsel
was engaged in fabricating a lie and getting [his] witness to testify to it and that Ringle was
a liar.
Bruton's counsel denied accusing opposing counsel of improper behavior and argued
it was proper to call Ringle a liar based upon the evidence which included changes in Ringle's
testimony. Bruton's counsel asserted, for example:
I did not state a personal opinion. I didn't say I believe Mr. Ringle lied. Mr. Ringle did
lie. He changed his testimony. Quite frankly, accusing a party of lying, it's never been
my understanding that is error, much less reversible error, that is fairly standard,
particularly, in employment cases, somebody is not telling the truth.
Ringle asserted that DeJesus
indicates that attorneys have a certain responsibility and one of them is not to call
somebody a bald faced liar. If that isn't appealing to the passions and prejudice and
violating the decorum of this entire procedure, I don't know what the devil is.
While the district court agreed that it was absolutely wrong for Bruton's counsel to
call Ringle a liar, it denied Ringle's motion, finding that the improper arguments were not
sufficiently pervasive or prejudicial to require a mistrial.
The jury returned a $131,814.83 verdict for Bruton. The district court denied Ringle's
motions for judgment notwithstanding the verdict, for a new trial, and for remittitur. Ringle
appealed.
DISCUSSION
We first address Ringle's argument that the district court erred in denying his motion
for summary judgment.
4
Ringle asserts that no material issues of fact exist regarding
Bruton's employment status because when the contract term expired, Bruton became an
at-will employee whose employment status could be terminated at any time without prior
notice to him. Ringle argues that the contract provisions were unenforceable given Bruton's
at-will status.
____________________

3
116 Nev. 812, 7 P.3d 459.

4
See Consolidated Generator v. Cummins Engine, 114 Nev. 1304, 1312, 971 P.2d 1251, 1256 (1998)
(noting that interlocutory orders may be challenged in the context of an appeal from the final judgment).
[Headnote 1]
Summary judgment is proper only if no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law.
5
The district court properly found
that material issues of fact remained. Therefore, Ringle was not entitled to summary
judgment or partial summary judgment.
[Headnote 2]
In Nevada, at-will employment is presumed in the absence of a written employment
contract.
6
Ringle and Bruton had executed an employment contract. It is a question of first
impression as to whether or which terms and conditions of an employment contract remain to
govern the conduct of the parties when an employer/employee relationship continues after the
term of the contract expires. It is generally accepted that
[when] an employment contract for a definite term expires and the employee, without
explicitly entering into a new agreement, continues to render the same services rendered
during the term of the contract, it may be presumed that the employee is serving under a
new contract having the same terms and conditions as the original one. The
presumption may be rebutted by evidence that the contract terms were changed or that
the parties understood that the terms of the old contract were not to apply to the
continued service.
7

[Headnote 3]
Thus, when an employee and employer continue an employment relationship after the
term of duration contained in a written contract, the original contract is presumed to renew
automatically under the same terms and conditions until either party terminates the contract.
We conclude, however, that the contract's duration does not presumptively renew.
8

When Bruton began working for the Stagecoach, his employment contract with Ringle
contained a two-year term. Bruton continued his employment for two years beyond the
date the contract's duration term had ended without entering into a new written contract
and without amending the original written contract.
____________________

5
NRCP 56(c); see Dermody v. City of Reno, 113 Nev. 207, 210, 931 P.2d 1354, 1357 (1997).

6
See American Bank Stationery v. Farmer, 106 Nev. 698, 701, 799 P.2d 1100, 1101-02 (1990).

7
27 Am. Jur. 2d Employment Relationship 31 (1996) (footnote omitted); see L. I. Reiser, Annotation,
Employee's Rights with Respect to Compensation or Bonus Where He Continues in Employer's Service After
Expiration of Contract for Definite Term, 53 A.L.R.2d 384, 385 (1957); 30 C.J.S. Employer-Employee
Relationship 29 (1992).

8
See, e.g., Russell v. White Oil Corporation, 110 So. 70, 71 (La. 1926) (explaining that there is no
provision of law by which a contract for hire of services, if extended beyond the time first agreed upon, is
renewed for another like term).
tinued his employment for two years beyond the date the contract's duration term had ended
without entering into a new written contract and without amending the original written
contract. Since we conclude under these circumstances that there exists a presumption that
the terms of the contract continued to govern the parties, except for the contract's duration
term, Bruton did not necessarily become an at-will employee after the contract expired.
Absent persuasive evidence to the contrary, the contract terms continued in full force and
effect until Bruton's employment at the Stagecoach ended. The district court did not err by
denying Ringle's motion for summary judgment.
At trial, Ringle presented evidence and argued to the jury that the contract expired two
years after its execution, and that he gave Bruton raises and a company car to use in lieu of
another contract. The jury was not persuaded by Ringle's evidence, however, and found, as it
was permitted to do, that the original contract's terms and conditions continued to govern
Bruton's employment at the Stagecoach. The jury verdict demonstrates that Ringle had failed
to rebut the presumption that he and Bruton were bound by a new contract which contained
the same terms and conditions as had the original contract.
[Headnote 4]
Ringle next contends that two jury instructions given to the jury were erroneous. He
argues that Jury Instruction 31 was improper because it instructed the jury that it is presumed
that Bruton's post-contract employment continued under the original contract's terms.
9
Ringle also argues that Jury Instruction 27 violated the parol evidence rule because it stated
that the employment contract could have been partly oral.
10

[Headnote 5]
The district court has broad discretion to settle jury instructions,
11
and a district
court's decision to give a particular instruction will not be overturned absent an abuse of
discretion or judicial error.
12

[Headnote 6]
Jury Instruction 31 was not improper. It embodies the presumption we adopt today.
Jury Instruction 27 did not violate the parol evidence rule.
____________________

9
Jury Instruction 31 states, Where an employee is employed for a specified term, and after the expiration of
that term continues in the employment without any new contract, there is a presumption that the employment is
continued on the terms of the original contract.

10
Jury Instruction 27 states, A contract may be oral, written, or partly oral and partly written. An oral, or
partly oral and partly written contract is as valid and enforceable as a written contract.

11
Jackson v. State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001).

12
Id.
evidence rule. The parol evidence rule does not permit the admission of evidence that would
change the contract terms when the terms of a written agreement are clear, definite, and
unambiguous. However, parol evidence is admissible to prove a separate oral agreement
regarding any matter not included in the contract or to clarify ambiguous terms so long as the
evidence does not contradict the terms of the written agreement.
13
Both Bruton and Ringle
testified that the contract did not incorporate all the terms of their employment agreement.
The district court did not abuse its discretion by giving these instructions to the jury.
[Headnotes 7, 8]
Ringle also contends that the jury's bonus pay, vacation pay, and severance pay
awards were not supported by substantial evidence. The jury awarded Bruton $86,400.00 in
bonus pay, $5,916.50 in vacation pay, and $39,498.33 in severance pay, for a total of
$131,814.83. These are the sums Bruton requested in argument. The verdict will not be
overturned if supported by substantial evidence, unless, from all the evidence presented, the
verdict was clearly wrong.
14
Substantial evidence is evidence that a reasonable mind
might accept as adequate to support a conclusion.'
15

[Headnotes 9, 10]
First, Ringle argues that substantial evidence does not support the bonus award
because Bruton never satisfied the bonus criteria.
16
The contract provided as follows:
[Bruton's] bonus shall be considered to be a minimum payment of $1,800 a month for
all quarters where gross operating profits exceed $30,000 on a comparison basis to the
previous year. Bonus accrued after first quarter will be paid out monthly in the
following quarter. On quarters where this has not been achieved, no bonus need be paid
subject to the provision that at the end of the Calendar Year if gross operating profits
exceed $120,000 a bonus will be paid for those quarters not reached.
____________________

13
Crow-Spieker #23 v. Robinson, 97 Nev. 302, 305, 629 P.2d 1198, 1199 (1981) (holding that parol
evidence, so long as it is not inconsistent with the terms of the written contract, may be admitted to prove the
existence of a separate oral agreement as to matters on which the written contract is silent); State ex rel. List v.
Courtesy Motors, 95 Nev. 103, 107, 590 P.2d 163, 165 (1979) (stating that parol evidence is admissible to
determine intent when the written contract is ambiguous). Ringle incorrectly cites NRS 104.2202 for the parol
evidence rule. This UCC Article 2 statute exclusively governs the sale of goods. See NRS 104.2102.

14
Bally's Employees' Credit Union v. Wallen, 105 Nev. 553, 555-56, 779 P.2d 956, 957 (1989).

15
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Edison Co. v. Labor Board, 305 U.S. 197, 229
(1938)), quoted in State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986).

16
Ringle also challenges each award on the basis that the contract expired, so its terms did not apply, but that
issue has been resolved against him. He does not challenge the specific dollar amounts of the awards.
vision that at the end of the Calendar Year if gross operating profits exceed $120,000 a
bonus will be paid for those quarters not reached.
An accountant testified that gross operating profits is not an accounting term. The accountant
equated the term to gross operating income. From the testimony of Ringle and Bruton, it is
evident that the parties interpreted the term as gross operating income. The parties disagreed,
however, regarding the bonus provision's purpose and conditions.
Ringle testified that the parties intended that Bruton would earn a bonus only if he
increased the previous year's quarterly gross operating income by $30,000.00 or the previous
year's annual gross operating income by $120,000.00. Because it was undisputed that the
Stagecoach's gross operating income did not increase by these amounts, Ringle argues that
Bruton was not entitled to any bonuses. Ringle further asserts that Bruton's failure to demand
bonuses when they otherwise fell due demonstrates that he knew that he did not earn them.
According to Ringle, the bonuses were meant to motivate Bruton and reward him for
increasing operating income at the Stagecoach; since Bruton failed to show that he satisfied
the bonus criteria, the jury erred in awarding him bonus compensation.
Bruton testified that the bonus provision was agreed to as a means for paying the
balance of his $65,000.00 salary. Bruton testified, without contradiction, that he agreed to
leave his Las Vegas employment only if Ringle would pay him $65,000.00 per year. The
parties' contract provided Bruton would be paid a base annual gross salary of $44,990.00.
Adding a minimum of $1,800.00 monthly in bonuses would give Bruton an annual salary of
$66,590.00. According to Bruton, his compensation was structured this way because Ringle
did not want to live in Beatty, but wanted to ensure that the Stagecoach at least broke even
while Bruton was managing it. Thus, as long as the Stagecoach's annual gross operating
income was at least $120,000.00, Bruton was entitled to his full salary, including bonuses.
Bruton explained that he did not demand bonuses as they became due because Ringle was
experiencing financial difficulties with other endeavors and profits from the Stagecoach were
being diverted elsewhere. Bruton testified that he relied upon Ringle who had acknowledged
the debt to Bruton and had, according to Bruton, said that he would make things right. It
was undisputed that the Stagecoach's gross operating income was more than $120,000.00
every year that Bruton worked there.
[Headnotes 11, 12]
The bonus provisions were ambiguous. The district court properly admitted Ringle's
and Bruton's testimony concerning these provisions.
provisions. The district court also properly submitted the bonus issue to the jury to determine
the parties' intent. As previously stated, when a contract is clear, unambiguous, and complete,
its terms must be given their plain meaning and the contract must be enforced as written; the
court may not admit any other evidence of the parties' intent because the contract expresses
their intent.
17
When contract language is ambiguous and incomplete, however, extrinsic
evidence may be admitted to determine the parties' intent, explain ambiguities, and supply
omissions.
18
In determining the parties' intent, the trier of fact must construe the contract as a
whole, including consideration of the contract's subject matter and objective, the
circumstances of its drafting and execution, and the parties' subsequent conduct.
19
Ambiguous terms should be construed against the party who drafted them,
20
and the jury
was so instructed. The jury obviously believed Bruton's testimony as to the meaning of the
disputed provision. His testimony constitutes substantial evidence to support the bonus
award. We will, therefore, not overturn the verdict.
Second, Ringle argues that substantial evidence does not support the jury's vacation
pay award. The original contract provided that [v]acations will accrue at the rate of 1 day per
month of [e]mployment. The parties disagreed whether Bruton took any vacations and
whether Bruton lost any vacation time not used. The district court properly submitted this
issue to the jury as well, to resolve the factual question of whether Bruton took any vacations
and to interpret the unclear contract provision. The jury found that Bruton did not take any
vacations and was entitled to payment for unused vacation days. Consequently, the jury
awarded Bruton compensation for twelve days of paid vacation for each year of his four years
of employment at the Stagecoach. Substantial evidence supports the jury's award.
[Headnote 13]
Third, Ringle argues that substantial evidence does not support the severance pay
award. Bruton argues that whether he quit the Stagecoach or Ringle fired him was a question
of fact for the jury to decide. We agree. Both parties testified concerning the circumstances
surrounding Bruton's departure from the Stagecoach.
____________________

17
Sandy Valley Assocs. v. Sky Ranch Estates, 117 Nev. 948, 953-54, 35 P.3d 964, 967-68 (2001).

18
Id.

19
See id. at 954, 35 P.3d at 968; Siggelkow v. Phoenix Ins. Co., 109 Nev. 42, 44, 846 P.2d 303, 304 (1993)
(holding that a court must construe an insurance contract as a whole in order to give a reasonable and
harmonious meaning to the entire contract).

20
Dickenson v. State, Dep't of Wildlife, 110 Nev. 934, 937, 877 P.2d 1059, 1061 (1994).
stances surrounding Bruton's departure from the Stagecoach. Bruton testified that Ringle fired
him without notice, rebuffed his offer to remain for another sixty days, and attempted to issue
him a check for one month's wages as severance pay. The jury awarded Bruton $39,498.33 in
severance pay, which represents sixty days of pay Bruton lost when his employment suddenly
ended, plus $25,000.00 after taxes, in accordance with the contract's severance provision.
Bruton's testimony constitutes substantial evidence supporting the jury's severance pay award.
[Headnote 14]
Ringle next contends that the district court abused its discretion in denying his motion
for a new trial on the grounds that Bruton repeatedly argued that Ringle lied to the jury and
intimated that Ringle's counsel induced perjured testimony.
21
Ringle claims that he was
prejudiced by Bruton's comments since the jury's assessments of the parties' credibility was
crucial to the outcome of the case.
[Headnotes 15-17]
A district court may grant a new trial based on a prevailing party's misconduct,
22
and
its ruling will not be disturbed on appeal absent an abuse of discretion.
23
To warrant
reversal on grounds of attorney misconduct, the flavor of misconduct must sufficiently
permeate an entire proceeding to provide conviction that the jury was influenced by passion
and prejudice in reaching its verdict.'
24
Opposing counsel's failure to object to attorney
misconduct at trial generally precludes appellate review.
25

[Headnote 18]
Timely and appropriate objections to instances of attorney misconduct serve at least
two purposes. Objections demonstrate that the objecting party takes issue with the conduct.
____________________

21
Ringle's notice of appeal states this appeal is taken from the district court's order denying his motion for a
judgment notwithstanding the verdict or for a new trial or for a remittitur. An order denying a motion for a new
trial is expressly appealable under NRAP 3A(b)(2). An order denying a motion for a judgment notwithstanding
the verdict or a motion for remittitur is not. See Uniroyal Goodrich Tire Co. v. Mercer, 111 Nev. 318, 320 n.1,
890 P.2d 785, 787 n.1 (1995); NRAP 3A(b)(2). Thus, we will limit our review to the denial of Ringle's motion
for a new trial.

22
NRCP 59(a)(2).

23
Southern Pac. Transp. Co. v. Fitzgerald, 94 Nev. 241, 244, 577 P.2d 1234, 1236 (1978).

24
Kehr v. Smith Barney, Harris Upham & Co., Inc., 736 F.2d 1283, 1286 (9th Cir. 1984) (quoting Standard
Oil Company of California v. Perkins, 347 F.2d 379, 388 (9th Cir. 1965)), quoted in Barrett v. Baird, 111 Nev.
1496, 1515, 908 P.2d 689, 702 (1995).

25
Southern Pac. Transp. Co., 94 Nev. at 244, 577 P.2d at 1235-36 (explaining that to preserve the issue for
appeal, specific objections must be made to allegedly improper closing argument).
the objecting party takes issue with the conduct. As we recognized in Beccard v. Nevada
National Bank,
26
[t]he failure to object to allegedly prejudicial remarks at the time an
argument is made, and for a considerable time afterwards, strongly indicates that the party
moving for a new trial did not consider the arguments objectionable at the time they were
delivered, but made that claim as an afterthought.
Timely objections also conserve judicial resources. Objections provide the trial court
an opportunity to correct any potential prejudice and to avoid a retrial. This opportunity for
correction may also obviate the need for an appeal. In Horn v. Atchison, Topeka and Santa Fe
Railway Co.,
27
the California Supreme Court explained this important function of
objections:
The purpose of the rule requiring the making of timely objections is remedial in nature,
and seeks to give the court the opportunity to admonish the jury, instruct counsel and
forestall the accumulation of prejudice by repeated improprieties, thus avoiding the
necessity of a retrial. It is only in extreme cases that the court, when acting promptly
and speaking clearly and directly on the subject, cannot, by instructing the jury to
disregard such matters, correct the impropriety of the act of counsel and remove any
effect his conduct or remarks would otherwise have.
28

We reiterate the requirement in civil cases that counsel timely and specifically object
to instances of improper argument in order to preserve an issue for appeal.
29

In our recent decision in DeJesus v. Flick,
30
our conclusion that the misconduct so
permeated the proceedings that it resulted in an unreliable verdict turned on the jury's
$1,470,000.00 award.
31
The award for future special damages was not supported by any
objective evidence in the record, and it greatly exceeded the plaintiff's request and the
evidence adduced at trial.
32
The evidence in the record established that the plaintiff's future
medical expenses would be, at best, $21,000.00,
33
yet the jury awarded the plaintiff
$100,000.00 for future medical expenses. The record did support the award of general
damages for pain and suffering.
____________________

26
99 Nev. 63, 65-66, 657 P.2d 1154, 1156 (1983).

27
394 P.2d 561 (Cal. 1964).

28
Id. at 565-66 (quoting Tingley v. Times Mirror Co., 89 P. 1097, 1106 (Cal. 1907)).

29
See Beccard, 99 Nev. at 66, 657 P.2d at 1156.

30
116 Nev. 812, 817-19, 7 P.3d 459, 463-64 (2000).

31
Id. at 820, 7 P.3d at 464.

32
Id. at 820, 7 P.3d at 464-65.

33
Id. at 820 n.5, 7 P.3d at 465 n.5.
[Headnote 19]
In order to clarify our decision in DeJesus, we emphasize today that in civil cases we
will consider arguments of egregious but unobjected-to misconduct at trial by counsel only
in those rare circumstances where the comments are of such sinister influence as to
constitute irreparable and fundamental error.'
34
Irreparable and fundamental error is error
that, if not corrected, would result in a substantial miscarriage of justice or denial of
fundamental rights and is only present when it is plain and clear that no other reasonable
explanation for the verdict exists. In DeJesus, the verdict for future special damages was not
supported by any version of the evidence. The jury's verdict may be explained in light of the
sheer volume of the inflammatory arguments made by plaintiff's counsel during the closing
argument. Reversal was deemed the appropriate remedy to prevent a miscarriage of justice
and fundamental error.
[Headnote 20]
Here, Bruton's counsel mentioned several times during closing argument that Ringle
lied on the witness stand. Ringle's counsel, however, failed to object to these statements on
the now asserted claim that calling a witness a liar is improper.
35
Instead, he once objected
and moved for a mistrial because he thought Bruton's counsel implied that he, defense
counsel, had helped Ringle fabricate Ringle's testimony. This objection was insufficient to
preserve for appeal the issue of the alleged misconduct of Bruton's counsel. Since Ringle
failed to object, any error resulting from the misconduct is deemed waived. He is precluded
from now arguing that Bruton's counsel engaged in repeated instances of misconduct which
are so egregious as to warrant reversal unless he can show that the verdict is unreliable.
Further, Ringle has also failed to overcome the bar on appeal to asserting error based upon
conduct unobjected to below. Ringle has not demonstrated, in our assessment, misconduct so
permeating the record as to warrant our review to get to the point where we might inquire
whether the jury's verdict is unreliable. Perceiving no plain error, we conclude that the
judgment must be affirmed.
Shearing, C. J., Becker and Gibbons, JJ., concur.
Rose, J., with whom Maupin, J., agrees, concurring:
I concur in the result, but object to what I perceive is the resurrection of the standard
stated in DeJesus v. Flick
1
for assessing when unobjected-to, improper attorney argument
will require a reversal of a case.
____________________

34
Budget Rent A Car Systems, Inc. v. Jana, 600 So. 2d 466, 467 (Fla. Dist. Ct. App. 1992) (quoting
LeRetilley v. Harris, 354 So. 2d 1213, 1215 (Fla. Dist. Ct. App. 1978)).

35
See Rowland v. State, 118 Nev. 31, 39 P.3d 114 (2002).

1
116 Nev. 812, 7 P.3d 459 (2000).
when unobjected-to, improper attorney argument will require a reversal of a case. Four
justices have indicated their disapproval of the DeJesus standard and expressed their
agreement with the less stringent standard as set forth in the DeJesus dissent.
2
It appeared
that the DeJesus standard was rejected, only to see that the majority opinion now cites
DeJesus with approval and states that the DeJesus verdict was not supported by any version
of the evidence.
As was explained in the DeJesus opinion, medical experts testified that Flick
sustained permanent brain and nerve damage, and her continual headaches, dizzy episodes,
blackouts, memory loss, neck pain, and curling of her hands in a claw-like manner were
permanent.
3
The jury believed these witnesses, and Flick's injuries certainly supported the
future pain and suffering award of $1,000,000.00 and the loss of income award of
$300,000.00. The majority opinion acknowledges that the award for pain and suffering was
supported by the record.
The majority opinion does claim that the evidence in DeJesus did not support the
$100,000.00 awarded as future medical expenses, but only $21,000.00, as indicated by Flick's
experts.
4
This is correct, but the appropriate action in DeJesus would have been to strike the
$79,000.00 from the special damages award and let the rest of the verdict standnot strike
the entire verdict that was overwhelmingly supported by competent evidence.
Finally, the majority claims that the DeJesus verdict could only be explained by the
inflammatory language used by Flick's attorney. This simply is not true. The evidence on
damages was more than sufficient to support the verdict, with the exception of the excess
damages awarded for future medical expenses. As explained in the DeJesus dissent, Flick
was injured when DeJesus, in a rage, cut off the vehicle Flick was riding in and sent it
crashing into the highway median.
5
DeJesus then jumped onto the front hood of the car and
pounded on the windshield, demanding that the two women come out.
6
In addition to the
damages evidence, DeJesus's road rage certainly helps explain why Flick was given full
recovery for her injuries. As the DeJesus dissent began: This is a case about the road rage
conduct of Kenneth DeJesus that caused a substantial permanent brain injury to Sherry
Flick.
7
With liability admitted, it was probable that a sizeable verdict would have been
returned regardless of the arguments of Flick's attorney.
____________________

2
See Canterino v. The Mirage Casino-Hotel, 118 Nev. 191, 195, 42 P.3d 808, 810 (2002) (Maupin, J.,
concurring and agreeing with the dissent in DeJesus); DeJesus, 116 Nev. at 823, 7 P.3d at 466 (Rose, C. J.,
dissenting with Shearing and Leavitt, JJ.).

3
116 Nev. at 814, 7 P.3d at 461; id. at 824, 7 P.3d at 467 (Rose, C. J., dissenting).

4
Id. at 820, 7 P.3d at 464-65.

5
Id. at 823, 7 P.3d at 466 (Rose, C. J., dissenting).

6
Id. (Rose, C. J., dissenting).

7
Id. (Rose, C. J., dissenting).
mitted, it was probable that a sizeable verdict would have been returned regardless of the
arguments of Flick's attorney.
By now stating that the damages awarded in DeJesus were not supported by the
evidence and that the sole reason for the award was the improper remarks of counsel, the
majority is repeating the same errors made in DeJesus, giving new viability to a decision that
was thought to be rejected by a majority of the justices on this court.
I concur in all other aspects of the majority opinion.
____________
120 Nev. 98, 98 (2004) Castle v. Simmons
CAROL CASTLE, fka CAROL SIMMONS, Appellant, v. JON SIMMONS, Respondent.
No. 38989
April 1, 2004 86 P.3d 1042
Appeal from a district court order modifying child custody. Fourth Judicial District
Court, Elko County; J. Michael Memeo, Judge.
The supreme court, Maupin, J., held that: (1) clear and convincing evidence supported
finding that ex-wife had committed acts of domestic violence against children; (2) changed
circumstances doctrine does not apply when party seeking to change custody attempts to
introduce evidence of domestic violence if moving party or court was unaware of existence or
extent of conduct when court rendered its prior custody decision, overruling, McMonigle v.
McMonigle, 110 Nev. 1407, 887 P.2d 742 (1994), and Hopper v. Hopper, 113 Nev. 1138,
946 P.2d 171 (1997); (3) trial court appropriately considered ex-wife's pre-decree conduct in
determining that modification in custody of children from ex-wife to ex-husband was
warranted; and (4) ex-wife failed to rebut statutory presumption that person who has engaged
in one or more acts of domestic violence should not be given custody of a child.
Affirmed.
David D. Loreman, Elko, for Appellant.
Easterly Armstrong & Lambert and John E. Lambert, Elko, for Respondent.
1. Child Custody.
Unless there has been a clear abuse of discretion, the supreme court will not disturb,
on appeal, a district court's determination of child custody.
2. Child Custody.
Clear and convincing evidence supported finding that ex-wife had committed acts of
domestic violence against children, for purposes of statute creating rebuttable
presumption that person who has engaged in one or more acts of domestic violence
should not be given custody of a child; ex-wife conceded that one very serious
physical altercation had occurred with child, children reported instances of kicking,
punching, and administration of beatings with a hairbrush, and at least one instance
was corroborated by oldest child's companion.
statute creating rebuttable presumption that person who has engaged in one or more
acts of domestic violence should not be given custody of a child; ex-wife conceded that
one very serious physical altercation had occurred with child, children reported
instances of kicking, punching, and administration of beatings with a hairbrush, and at
least one instance was corroborated by oldest child's companion. NRS 125C.230(1).
Supreme court will not reweigh the credibility of witnesses on appeal. That duty rests
within the trier of fact's sound discretion.
4. Child Custody.
A change of child custody is warranted, when one parent has primary physical
custody, only when: (1) the circumstances of the parents have been materially altered,
and (2) the child's welfare would be substantially enhanced by the change. The first
prong is based on principle of res judicata, which prevents persons dissatisfied with
custody decrees from filing immediate, repetitive, serial motions until the right
circumstances or the right judge allows them to achieve a different result, based on
essentially the same facts.
5. Child Custody.
Although the doctrine of res judicata, as applied through the changed circumstances
doctrine, which requires circumstances of parents to have been materially altered in
order for custody modification to be warranted, promotes finality and therefore stability
in child custody cases, it should not be used to preclude parties from introducing
evidence of domestic violence that was unknown to a party or to the court when the
prior custody determination was made.
6. Child Custody.
Changed circumstances doctrine, which requires circumstances of parents to have
been materially altered in order for custody modification to be warranted, does not
apply when a party seeking to change custody attempts to introduce evidence of
domestic violence if the moving party or the court was unaware of the existence or
extent of the conduct when the court rendered its prior custody decision, overruling
McMonigle v. McMonigle, 110 Nev. 1407, 887 P.2d 742 (1994), and Hopper v.
Hopper, 113 Nev. 1138, 946 P.2d 171 (1997).
7. Child Custody.
District court has an obligation to make a sound decision on the paramount concern in
custody cases, which is the child's best interests. NRS 125.480.
8. Child Custody.
Trial court appropriately considered ex-wife's pre-decree conduct in determining that
modification in custody of children from ex-wife to ex-husband was warranted;
ex-husband was not aware of extent of ex-wife's physical abuse of children until after
decree had been entered, when two children came forward, parties had previously
stipulated to original custody arrangement, so no evidence with respect to parental
fitness had been considered, and consequently, ex-husband could not have fully
litigated issue in prior custody proceedings. NRS 125C.230(1).
9. Child Custody.
Ex-wife failed to rebut statutory presumption that person who has engaged in one or
more acts of domestic violence should not be given custody of a child, and thus
modification of custody from ex-wife to ex-husband was warranted. NRS 125C.230(1).
10. Judges.
Counsel for ex-husband did not violate one family/one judge rule set forth in local
district court rules by setting motion to modify child custody before judge who signed
parties' original divorce decree, even though intervening order for child support was
signed by another judge; ex-wife made no motion to disqualify judge who modified
custody, and, since judge who modified custody also heard original application for
divorce, no violation of local rules occurred.
tody before judge who signed parties' original divorce decree, even though intervening
order for child support was signed by another judge; ex-wife made no motion to
disqualify judge who modified custody, and, since judge who modified custody also
heard original application for divorce, no violation of local rules occurred.
1

OPINION
In this appeal, we primarily consider whether the district court, in granting a motion to
change child custody, properly considered evidence of domestic violence that occurred before
the parties' divorce decree was entered. We conclude that a party seeking to change custody
may introduce evidence of domestic violence if he or she or the district court was unaware of
the existence or extent of the conduct when the prior custody order was entered.
Consequently, in this case, the district court did not err in considering the pre-decree domestic
violence evidence.
Jon and Carol were married on June 22, 1979, and divorced August 13, 1998. The
marriage produced six children. The divorce decree incorporated a settlement agreement that
awarded full legal and physical custody of the minor children to Carol, subject to
specifically defined reasonable visitation and Jon's obligation to pay child support.
After the divorce, Jon learned from his two oldest children that Carol, before and after
entry of the original decree and award of custody, engaged in acts of domestic violence
against them and their younger siblings, the extent of which he was previously unaware.
Thereafter, Jon sought to modify the custody arrangement, relying on the alleged instances of
domestic abuse before and after the divorce. The district court granted Jon's ex parte
application for temporary custody. The parties then stipulated to share custody of the three
remaining minor children pending a final ruling on the motion to modify, and an evidentiary
hearing was scheduled.
The hearing was held over four separate court sessions in November 2001.
Independent counsel represented the children. More than twenty witnesses, including an
expert retained by Carol, presented conflicting testimony as to whether and the extent to
which Carol had engaged in acts of domestic violence before and after entry of the
divorce decree.
____________________

1
presented conflicting testimony as to whether and the extent to which Carol had engaged in
acts of domestic violence before and after entry of the divorce decree. Finally, a
court-appointed child advocate testified that, based upon interviews with the children,
custody should be transferred from Carol to Jon.
Although not mentioning the recommendations of the child advocate in its decision,
the district court found that clear and convincing evidence supported the claims of Carol's
abuse, including instances of mutual combat, physical beatings, kicking, hair pulling, and
scratching, accompanied by screaming and yelling. In concluding that a change in custody
was warranted, the district court followed NRS 125C.230(1), which creates a presumption
that when a parent engages in domestic violence, that parent's sole or joint custody of the
children is not in the children's best interest. In the court's view, Carol had not rebutted this
presumption. The district court then determined that changed circumstances were
demonstrated, i.e., changes in demeanor and problems with visitation, and that Jon was not
aware of the extent of the physical abuse until the summer of 2000, when two of the children
apprised him of the extent of the abuse. Accordingly, the district court ordered that custody of
the three minor children be changed from Carol to Jon.
Carol appeals, primarily contending that the district court abused its discretion in
considering allegations of pre-decree misconduct, in finding that instances of abuse were
shown by clear and convincing evidence, in failing to find that any showing of abuse was
rebutted, in finding that Jon satisfactorily established a change in circumstances between the
entry of the divorce decree in 1998 and the ex parte application to change custody in 2001,
and in concluding that modification was in the children's best interest.
DISCUSSION
Standard of review
[Headnote 1]
Unless there has been a clear abuse of discretion, we will not disturb, on appeal, a
district court's determination of child custody.
2

Rebuttable presumption in domestic violence cases
In light of the dangers that domestic violence poses to a child's physical, emotional
and mental health, our Legislature enacted NRS 125C.230(1), which creates a rebuttable
presumption that a person who has engaged in one or more acts of domestic violence should
not be given custody of a child:
____________________

2
Primm v. Lopes, 109 Nev. 502, 504, 853 P.2d 103, 104 (1993).
Except as otherwise provided in NRS 125C.210 and 125C.220, a determination by the
court after an evidentiary hearing and finding by clear and convincing evidence that
either parent or any other person seeking custody of a child has engaged in one or more
acts of domestic violence against the child, a parent of the child or any other person
residing with the child creates a rebuttable presumption that sole or joint custody of the
child by the perpetrator of the domestic violence is not in the best interest of the child.
Upon making such a determination, the court shall set forth:
(a) Findings of fact that support the determination that one or more acts of domestic
violence occurred; and
(b) Findings that the custody or visitation arrangement ordered by the court adequately
protects the child and the parent or other victim of domestic violence who resided with
the child.
3

Clear and convincing evidence of domestic violence
[Headnote 2]
Carol argues that clear and convincing evidence did not exist for the district court to
conclude that acts of domestic violence had been committed against any of the children. We
disagree.
We initially note that by requiring the court, under NRS 125C.230(1), to conduct a
hearing and to find by clear and convincing evidence that domestic violence occurred, the
Legislature has protected innocent parents from unfounded allegations. Here, the court heard
testimony from over twenty witnesses, including the minor children of the marriage.
Admittedly, some of the evidence given by the children was either internally inconsistent or
was contradicted in some way. Carol conceded, however, that one very serious physical
altercation occurred with one of the children, and the children reported instances of kicking,
punching, and administration of beatings with a blunt object (a hairbrush) causing significant
bleeding. At least one of these instances was corroborated by the oldest child's companion.
The district court ruled on the totality of the evidence as follows:
Based upon the testimony of [three of the children], the Court finds by clear and
convincing evidence that Carol committed acts of domestic violence against the . . .
children. The court credits the testimony of [three daughters] and Jon, and does not
credit any testimony to the contrary. To the extent that the physical altercations
implicate conditions arguably amounting to "provocation" or "mutual combat," the
Court finds that Carol was the primary aggressor.
____________________

3
The Legislature also included this rebuttable presumption provision in NRS 125.480(5), which concerns
custody determinations in divorce proceedings.
amounting to provocation or mutual combat, the Court finds that Carol was the
primary aggressor. This finding is based upon the testimony indicating a history of this
type of behavior, and self defense type actions by other persons in the family.
. . . .
. . . Most significantly, the extent of the domestic violence was revealed to Jon
post-divorce, and there have been post-divorce incidents of domestic violence. [One
daughter] has expressed her desire to live with her father. [Another daughter] has
recently experienced a change in demeanor, in which she has become withdrawn and
distant.
[Headnote 3]
While Carol makes numerous assessments of the credibility of Jon's witnesses, we
will not reweigh the credibility of witnesses on appeal; that duty rests within the trier of fact's
sound discretion.
4
We conclude that substantial evidence supports the district court's finding
of domestic violence by clear and convincing evidence.
5

Custody modification
Carol argues that the district court should not have relied upon evidence of alleged
physical abuse that occurred before the divorce. Further, Carol argues that the district court
erred in determining that Jon satisfied the analysis under Murphy v. Murphy
6
for custody
modification.
[Headnote 4]
In Murphy, we adopted a two-part test for custody changes, which applies when one
parent has primary physical custody: A change of custody is warranted only when: (1) the
circumstances of the parents have been materially altered; and (2) the child's welfare would
be substantially enhanced by the change.
7
Murphy's first changed circumstances prong is
required by most courts and is based on the principle of res judicata.
8
As we recognized in
Mosley v. Figliuzzi,
9
res judicata prevents persons dissatisfied with custody decrees [from
filing] immediate, repetitive, serial motions until the right circumstances or the right
judge allows them to achieve a different result, based on essentially the same facts.
____________________

4
See Krause Inc. v. Little, 117 Nev. 929, 933, 34 P.3d 566, 569 (2001).

5
See, e.g., Matter of Parental Rights as to N.J., 116 Nev. 790, 795, 8 P.3d 126, 129 (2000) (noting that this
court will uphold parental termination orders, which require a finding by clear and convincing evidence, if
substantial evidence in the record supports the district court's finding).

6
84 Nev. 710, 711, 447 P.2d 664, 665 (1968).

7
Id. In joint physical custody cases, the child's best interest is the only factor governing modification. NRS
125.510(2); see also Hopper v. Hopper, 113 Nev. 1138, 1142 n.2, 946 P.2d 171, 174 n.2 (1997).

8
Sally Burnett Sharp, Modification of Agreement-Based Custody Decrees: Unitary or Dual Standard?, 68
Va. L. Rev. 1263, 1265-66 (1982).

9
113 Nev. 51, 58, 930 P.2d 1110, 1114 (1997).
with custody decrees [from filing] immediate, repetitive, serial motions until the right
circumstances or the right judge allows them to achieve a different result, based on essentially
the same facts.
We utilized the Murphy test in two noteworthy subsequent cases: McMonigle v.
McMonigle
10
and Hopper v. Hopper.
11
These cases relied on an Oregon case, Stevens v.
Stevens,
12
in concluding that [t]he moving party in a custody proceeding must show that
circumstances . . . have substantially changed since the most recent custodial order. . . .
Events that took place before that proceeding [are] inadmissible to establish a change of
circumstances.'
13
In McMonigle, the custodial parent had relocated before the final decree
was entered, and the decree reflected this relocation. The noncustodial parent then moved for
a change of custody. In granting the motion, the district court was preoccupied with the
custodial parent's relocation.
14
Additionally, the court considered evidence that before the
divorce decree was entered, the custodial parent had failed to provide the non-custodial parent
with reports about the child.
15
On appeal, this court reversed the district court's order
changing custody, stating that the district court had improperly relied on inadmissible
pre-decree evidence in rendering its decision.
16

In Hopper, the parties stipulated to custody.
17
At that time, the non-custodial parent
was aware that the custodial parent had a tendency to yell at the child. In reversing the district
court's subsequent order changing custody, which was based, in part, on the custodial parent's
yelling, this court reiterated that actions preceding the prior custody determination cannot be
admitted to show a change in circumstances.
18

Our McMonigle and Hopper decisions include broad language suggesting that
important facts relevant to the child's best interests, if they existed at the time of the prior
custody determination, cannot be introduced at a later proceeding, even if these facts were
unknown to one of the parties or the court when the prior determination was made.
____________________

10
110 Nev. 1407, 887 P.2d 742 (1994).

11
113 Nev. 1138, 946 P.2d 171.

12
810 P.2d 1334 (Or. Ct. App. 1991).

13
McMonigle, 110 Nev. at 1408, 887 P.2d at 743 (quoting Stevens, 810 P.2d at 1336); see also Hopper, 113
Nev. at 1143, 946 P.2d at 174-75; see also Mosley, 113 Nev. at 58, 930 P.2d at 1115 (recognizing Stevens for
the proposition that pre-decree issues cannot be relitigated).

14
McMonigle, 110 Nev. at 1409, 887 P.2d at 744.

15
Id. at 1409, 887 P.2d at 743-44.

16
Id. at 1409, 887 P.2d at 744.

17
113 Nev. at 1140, 946 P.2d at 173.

18
Id. at 1143-44, 946 P.2d at 174-75.
nation was made. Nevertheless, this court has never expressly determined whether
generalized principles underlying the res judicata doctrine should prohibit parties from
introducing evidence of domestic violence that was not previously considered by the court in
a custody matter.
[Headnotes 5, 6]
Although the doctrine of res judicata, as applied through the changed circumstances
doctrine, promotes finality and therefore stability in child custody cases, it should not be used
to preclude parties from introducing evidence of domestic violence that was unknown to a
party or to the court when the prior custody determination was made. We recognized this
principle long ago in Abell v. District Court,
19
when we concluded that a change of custody
may be based on material facts that existed when the decree was entered but were unknown to
either the moving party or the court. Consequently, we conclude that the changed
circumstances doctrine does not apply when a party seeking to change custody attempts to
introduce evidence of domestic violence if the moving party or the court was unaware of the
existence or extent of the conduct when the court rendered its prior custody decision. To the
extent that McMonigle and Hopper can be read as inconsistent with this conclusion, they are
overruled.
20

[Headnote 7]
The district court has an obligation to make a sound decision on the paramount
concern in custody casesthe child's best interests.
21
Although the res judicata doctrine, as
articulated in Murphy's changed circumstances requirement, serves an extremely important
function in preventing dissatisfied parties from filing repetitive, serial motions in an attempt
to manipulate the judicial system, res judicata principles should not prevent a court from
ensuring that the child's best interests are served. As our Legislature has recognized, domestic
violence poses a very real threat to a child's safety and well-being. The court must hear all
information regarding domestic violence in order to determine the child's best interests.
Domestic violence, by its very nature, may be difficult to discover. Once it is discovered, the
court should not be precluded from considering it simply because it was not previously raised.
Consequently, evidence of domestic violence that was not previously discovered, or the
extent of which was unknown, when the prior custody order was entered is properly
considered by the district court in determining custody, along with any post-order
domestic violence.
____________________

19
58 Nev. 89, 96-97, 71 P.2d 111, 113 (1937).

20
Additionally, Mosley v. Figliuzzi, 113 Nev. 51, 930 P.2d 1110 (1997), is overruled to the extent that it can
be read to preclude evidence of which the moving party was unaware when the prior custody order was entered.

21
See, e.g., NRS 125.480 (providing that the court's sole consideration is the child's best interest when the
court makes custody decisions in divorce proceedings).
previously discovered, or the extent of which was unknown, when the prior custody order
was entered is properly considered by the district court in determining custody, along with
any post-order domestic violence. Even previously litigated acts of domestic violence may
need to be reviewed if additional acts occur.
22
As the North Dakota Supreme Court has
recognized, The legislature intended that courts presume that any domestic violence
negatively impacts the best interests of the children.
23

[Headnotes 8, 9]
In this case, Jon was not aware of the extent of Carol's physical abuse until the
summer of 2000, when two of the children came forward. Further, the parties had previously
stipulated to the original custody arrangement, so the district court had considered no
evidence with respect to parental fitness. Consequently, Jon could not have fully litigated this
issue in the prior custody proceedings, and thus, the district court appropriately considered
Carol's pre-decree conduct in making its most recent child custody determination.
With respect to the second prong of Murphy, whether the child's welfare would be
substantially enhanced by [a custody] change, the rebuttable presumption set forth in NRS
125C.230 subsumes this inquiry. The statute requires that the court presume that the child's
best interests are served by being placed with the non-offending parent. Consequently, in
custody cases involving alleged acts of domestic violence, Murphy's second prong plays no
role in the court's custody determination. In this case, the district court concluded that, under
NRS 125C.230, a rebuttable presumption arose that the sole or joint custody of the children
by Carol was not in the children's best interests. The court then found that Carol had not
rebutted the presumption. We conclude that the district court did not abuse its discretion in
finding that Carol had not rebutted the NRS 125C.230 presumption.
Other issues
Carol argues that the district court failed to properly take into account other issues
concerning the children's best interests. We disagree. In determining custody modification,
the district court took into account the status of Jon's employment prospects, the financial
abilities of Jon's current spouse, and the relative residential situations of the parties. Given the
district court's findings concerning the domestic violence perpetrated by Carol against the
parties' minor children, we cannot conclude that an abuse of discretion occurred with
regard to these other factual issues.
____________________

22
We note, however, that the doctrine of res judicata, as articulated in Murphy's changed circumstances
prong, would preclude parties from relitigating isolated instances of domestic violence that the court has
previously examined.

23
Heck v. Reed, 529 N.W.2d 155, 164 (N.D. 1995).
minor children, we cannot conclude that an abuse of discretion occurred with regard to these
other factual issues.
Carol also argues that under local district court rule 5(5),
24
Jeff Osmonson, the child
advocate appointed by the court, did not meet the requirements for a qualified child advocate
under NRS 433.209.
25
We conclude that while Mr. Osmonson did not meet the technical
definition of a child advocate under NRS 433.209, his qualifications were in substantial
compliance with the statute.
[Headnote 10]
Carol claims that Jon's counsel violated the One Family/One Judge policy set forth
in the local district court rules
26
by setting the motion to modify before District Judge J.
Michael Memeo. Although Judge Memeo signed the original decree, Carol claims that,
because the intervening order modifying child support was signed by District Judge Jack
Ames, the motion to modify should have been placed upon Judge Ames' calendar. First, we
note that Carol lodged no formal attempt to disqualify Judge Memeo. Second, since Judge
Memeo heard the original application for divorce, no substantial violation of the local rules
occurred.
Carol also represents that the lawyer for the children ultimately secured employment
with Judge Memeo as a judicial law clerk. However, she makes no claim as to how the
custody determination was somehow tainted by that turn of events.
____________________

24
4JDCR 5(5)(b)(5) states, A Child Advocate must be a person professionally qualified in the field of
psychiatric mental health' as defined by NRS 433.209.

25
NRS 433.209 states:
Person professionally qualified in the field of psychiatric mental health means:
1. A psychiatrist licensed to practice medicine in the State of Nevada and certified by the American
Board of Psychiatry and Neurology;
2. A psychologist licensed to practice in this state;
3. A social worker who holds a master's degree in social work, is licensed by the state as a clinical
social worker and is employed by the Division;
4. A registered nurse who:
(a) Is licensed to practice professional nursing in this state;
(b) Holds a master's degree in the field of psychiatric nursing; and
(c) Is employed by the Division.
5. A marriage and family therapist licensed pursuant to chapter 641A of NRS.

26
4JDCR 2(5) states:
It is the intent of the District Judges, to the extent reasonably possible, to implement a One
Family/One Judge assignment of domestic relations cases. The Court Clerk and attorneys practicing
within the Fourth Judicial District Court shall bring to the attention of the District Judges cases which
might be transferred between departments in order to accomplish this goal.
CONCLUSION
Unless the district court has clearly abused its discretion, we will not disturb, on
appeal, its child custody determination. In this case, the district court did not abuse its
discretion in modifying the custody arrangement concerning the minor children. Therefore,
we affirm the district court's order.
Shearing, C. J., Agosti, Rose, Becker and Gibbons, JJ., concur.
____________
120 Nev. 108, 108 (2004) State, Dep't Human Res. v. Estate of Ullmer
STATE OF NEVADA DEPARTMENT OF HUMAN RESOURCES, WELFARE
DIVISION, Appellant, v. ESTATE OF HAROLD J. ULLMER, Deceased; AGNES T.
ULLMER; ESTATE OF HELEN PARCO, Deceased; and MICHAEL F. PARCO,
SR., Respondents.
No. 40143
April 1, 2004 87 P.3d 1045
Appeal from a district court order granting a permanent injunction in a Medicaid
estate recovery lien case. Eighth Judicial District Court, Clark County; Ronald D. Parraguirre,
Judge.
Department of Human Resources recorded a notice of lis pendens and filed a verified
petition to impose a lien, which sought to place a lien upon home of deceased Medicaid
recipient. Recipient's widow filed a class action counterclaim and motion to permanently
enjoin the Department from placing liens on homes of deceased Medicaid recipients'
surviving spouses and to revoke existing liens imposed against class members. On class
certification and consolidation with a similar Medicaid estate recovery case, the district court
granted widow's motion. Department appealed. The supreme court, Becker, J., held that: (1)
imposing a lien on a deceased Medicaid recipient's interest in a home before the surviving
spouse's death does not constitute an impermissible recovery, and (2) the liens imposed on
homes of two deceased Medicaid recipients were impermissibly overbroad.
Affirmed in part and reversed in part.
[Rehearing denied May 27, 2004]
Maupin, J., with whom Gibbons, J., agreed, dissented in part.
Brian Sandoval, Attorney General, and Charles Hilsabeck, Heather E. Kemp, and
Sabrina Grindle Raetz, Deputies Attorney General, Carson City, for Appellant.
James M. O'Reilly, Las Vegas; Rochelle Bobroff, Washington, D.C., for Respondents
Estate of Harold J. Ullmer and Agnes T. Ullmer.
Patricia A. Trent, Ltd., and Elyse M. Tyrell, Las Vegas, for Amici Curiae National
Citizens' Coalition for Nursing Home Reform, National Academy of Elder Law Attorneys,
National Senior Citizens' Law Center, and National Health Law Program.
1. Parties.
Order granting injunctive relief as to the class of surviving spouses of Medicaid
recipients was improper in class action counterclaim to permanently enjoin Department
of Human Resources from placing liens on recipients' interests in their homes before
spouses' deaths, where district court prematurely considered motion for injunctive relief
before class notification period ended.
2. Health.
Imposing a lien on a deceased Medicaid recipient's interest in a home before the
surviving spouse's death for costs of Medicaid services provided to the recipient does
not constitute an impermissible recovery in violation of federal and state Medicaid
estate recovery law, provided that, to prevent spousal impoverishment, the lien provides
that the government will release the lien upon the surviving spouse's demand pursuant
to any bona fide sale or financial transaction involving the home, and that the lien,
along with any notice of lis pendens and lien proceedings, provides clear and
unequivocal notice that the lien is limited to the government's interest in the property,
and mandatory release provisions. 42 U.S.C. 1396p(b)(2); NRS 422.2935(2).
Issues of statutory construction are subject to de novo review.
4. Statutes.
When the language of a statute is plain and unambiguous, a court should give that
language its ordinary meaning and not go beyond it.
5. Statutes.
If a statute is susceptible to more than one natural or honest interpretation, it is
ambiguous, and the plain meaning rule has no application.
6. Statutes.
When a statute is ambiguous, the Legislature's intent is the controlling factor in
statutory interpretation.
7. Health.
Estate recovery acts encompass two important policy considerations relevant to the
provision of medical care: first, the government has a legitimate statutory interest in
recovering the amount of correctly paid Medicaid benefits from a deceased Medicaid
recipient's estate, which includes the recipient's ownership interest in property at the
time of death and, second, to avoid spousal impoverishment, the legislation attempts to
strike a balance between the government's statutory interest and preventing
impoverishment by limiting reimbursement efforts to situations where impoverishment
is no longer an issue. 42 U.S.C. 1396p(b)(2); NRS 422.2935(2).
8. Health.
Estate recovery provisions were initiated in light of increased demands for Medicaid,
which stemmed from the growth of the nation's aging population. 42 U.S.C.
1396p(b)(2); NRS 422.2935(2).
9. Health.
As a result of the federal legislation, Nevada created an estate recovery program.
Consistent with the federal mandate, the Nevada statutes broaden the definition of
estate to include assets conveyed to a survivor, heir or assign of the deceased
Medicaid recipient through joint tenancy, tenancy in common, survivorship, life estate,
living trust or other arrangement. 42 U.S.C. 1396p(b)(2); NRS 422.054, 422.2935(1).
10. Health.
The estate recovery statute furthers the government's legitimate interest in recovering
the amount of Medicaid benefits correctly paid from a deceased Medicaid recipient's
estate so that the government can help more people in need of assistance. NRS
422.2935(2).
11. Health.
To prevent impoverishment, the government is prohibited under the estate recovery
statute from executing its interest when the deceased Medicaid recipient has a: (1)
surviving spouse, (2) surviving child who is under 21 years old, or (3) surviving child
who is blind or permanently and totally disabled. In such circumstances, the
government must delay executing its interest until the surviving spouse's death or the
end of the dependency, so as to allow surviving spouses and qualified dependents to use
assets, including any ownership interest in a home, to support themselves while
recovery is deferred. NRS 422.2935(2).
12. Health.
Under estate recovery statutes, the government's interest in collecting costs of
Medicaid services provided to a recipient survives and continues with the recipient's
property even though the government is prohibited from executing its interest until the
surviving spouse's death. 42 U.S.C. 1396p(b)(2); NRS 422.2935(2).
13. Health.
Any individual who takes property upon the death of a Medicaid recipient, through
inheritance, assignment, joint tenancy, etc., or who acquires an interest in the property
through gift or fraudulent transfer, takes it subject to the government's interest under the
estate recovery statutes. 42 U.S.C. 1396p(b)(2); NRS 422.2935(2).
14. Health.
A lien, in and of itself, does not permit the State to regain the sums it expended for
Medicaid benefits; rather, a lien is a security device that binds property to a debt and
puts a party on notice that someone besides the owner of the property has an interest in
that property. 42 U.S.C. 1396p(b)(2); NRS 422.2935(2).
15. Liens.
A lien is a claim, encumbrance, or charge on property for the payment of some debt,
obligation or duty.
16. Estates In Property; Joint Tenancy.
An undivided estate is broadly defined and includes interests in real property that
would normally be extinguished by death, such as joint tenancies.
17. Health.
For purposes of state Medicaid estate recovery law, Congress intended surviving
spouses to be free to utilize the estate property during the spouses' lifetimes. NRS
422.2935(2).
18. Health.
For purposes of state Medicaid estate recovery law, a surviving spouse's right to be
free to utilize the estate property during the spouse's lifetime includes the bona fide
sale or financing of the property designed to provide the spouse with income from
equity; the State's interest in collecting the costs of Medicaid services would be
extinguished in such transactions.
lifetime includes the bona fide sale or financing of the property designed to provide the
spouse with income from equity; the State's interest in collecting the costs of Medicaid
services would be extinguished in such transactions. NRS 422.2935(2).
19. Health.
Liens imposed by the State on homes of two deceased Medicaid recipients for costs of
Medicaid services provided to the recipients were impermissibly overbroad so as to
violate the spirit of federal and state laws designed to prevent impoverishment of
recipients' surviving spouses, where nothing in notice of lis pendens or proposed liens
indicated that the spouses were free to use or dispose of the property through bona fide
transactions as a method of avoiding spousal impoverishment, and the lis pendens and
proposed liens did not accurately indicate that they only applied to whatever interests
the recipients had in the property prior to death. 42 U.S.C. 1396p(b)(2); NRS
422.2935(2).
20. Health.
The Medicaid estate recovery statute requires that the State's lien for costs of
Medicaid services provided to the recipient accurately reflects the State's interest in the
property. NRS 108.850(1), 422.2935(2).
1

OPINION
By the Court, Becker, J.:
In this appeal, we consider whether imposing a lien on a deceased Medicaid
recipient's interest in a home before the surviving spouse's death
2
constitutes a recovery in
violation of federal and state Medicaid estate recovery law. We conclude that imposing a lien
is not an impermissible recovery. The State may impose a lien, subject to certain
limitations, before the surviving spouse's death upon property in which it has a legitimate
interest. However, to prevent spousal impoverishment, the lien must provide that the
government release the lien upon the surviving spouse's demand pursuant to any bona fide
sale or financial transaction involving the home. We further conclude that Nevada's lien
statute requires that the notice of lis pendens, lien proceedings, and the lien itself provide
clear and unequivocal notice that the lien is limited to the government's interest in the
property, which would include mandatory release provisions.
____________________

1

2
The term surviving spouse also refers to other qualified dependents as discussed in 42 U.S.C.
1396p(b)(2)(A) (2000) and NRS 422.2935(2) (2001) (amended 2003) (current version at NRS 422.29302(2)).
This opinion applies equally to qualified dependents.
Because the State sought to impose overly broad liens, we affirm the order granting
injunctive relief for the individually named surviving spouses. However, the district court
prematurely considered injunctive relief as to the class prior to the end of the class
notification period. Accordingly, we reverse the order granting injunctive relief to the class
members as a whole.
FACTS
Appellant State of Nevada, Department of Human Resources, Welfare Division
(NSWD) provided Harold Ullmer with Medicaid benefits until his death. At the time of
Harold's death, he and his wife, respondent Agnes Ullmer, owned their home in joint tenancy.
After Harold's death, Agnes continued to reside in the home.
Thereafter, NSWD recorded a notice of lis pendens and filed a verified petition to
impose a lien, which sought to place a lien in the amount of $144,475.76 upon the home to
protect future recovery of Medicaid benefits correctly paid by NSWD on Harold's behalf. The
notice of lis pendens did not reflect that the lien would only apply to Harold's interest in the
home as it existed before his death. Moreover, although NSWD alleges it has an unwritten
policy to release liens whenever a surviving spouse seeks to sell or encumber property subject
to a lien, the notice of lis pendens and of the proposed lien did not contain language reflecting
NSWD's policy.
Agnes filed a class action counterclaim against NSWD, seeking, among other things,
to permanently enjoin NSWD from placing liens on the homes of deceased Medicaid
recipients' surviving spouses. After the district court certified the class under NRCP 23(b)(3),
the district court consolidated a similar Medicaid estate recovery case involving respondent
Michael Parco, Sr., with the class action.
Prior to class notification, Agnes, the class representative, filed a motion for issuance
of a permanent injunction seeking declaratory and injunctive relief to prevent NSWD from
obtaining liens against class members and to remove existing liens imposed against class
members. Prior to class notification, the district court granted the motion for injunctive relief.
This appeal followed.
DISCUSSION
An appeal may be taken from the grant or denial of a motion for injunctive relief.
3
We therefore have jurisdiction to consider the propriety of the injunctions issued in this case.
____________________

3
NRAP 3A(b)(2).
I. Premature class action
[Headnote 1]
Because the district court prematurely considered the motion for injunctive relief
before the class notification period ended,
4
the order granting injunctive relief as to the class
was improper. Therefore, we reverse the order granting injunctive relief entered as to the
class members as a whole. We conclude, however, that we may consider the order granting
injunctive relief as to Agnes and Parco individually.
II. Medicaid estate recovery
[Headnote 2]
The question before this court is one of statutory construction, namely, the meaning of
federal and state Medicaid estate recovery statutes, 42 U.S.C. 1396p(b)(2) and NRS
422.2935(2).
5
The phrase estate recovery statutes refers to a series of state and federal acts
designed to recoup monies expended for Medicaid care from the estates of Medicaid
recipients. The statutes limit recovery proceedings to protect surviving spouses or qualified
dependents from poverty during their lifetimes or dependency. The propriety of the district
court's order granting injunctive relief depends upon whether imposing a lien on a deceased
Medicaid recipient's interest in a home before the surviving spouse's death is an
impermissible recovery.
[Headnotes 3-6]
Issues of statutory construction are subject to de novo review.
6
It is well established
that [w]hen the language of a statute is plain and unambiguous, a court should give that
language its ordinary meaning and not go beyond it.
7
However, if a statute is susceptible to
more than one natural or honest interpretation, it is ambiguous, and the plain meaning rule
has no application.
____________________

4
See Smith v. Shawnee Library System, 60 F.3d 317, 322 (7th Cir. 1995); Gert v. Elgin Nat. Industries, Inc.,
773 F.2d 154, 159 (7th Cir. 1985); see generally Schwarzschild v. Tse, 69 F.3d 293, 295 (9th Cir. 1995)
(concluding that the purpose of the class notification requirement is to ensure that a plaintiff class receives notice
of an action well before the merits of the class are adjudicated).

5
Because the cause of action arose and the notice of lis pendens and verified petition for imposition of a lien
were filed in 2001, the estate recovery statutes in effect at that time apply. Thus, we do not consider any pending
or subsequent statutory amendments. We note, however, that the pending and subsequent statutory amendments
do not affect the issue involved here.

6

7
City Council of Reno v. Reno Newspapers, 105 Nev. 886, 891, 784 P.2d 974, 977 (1989).
ous, and the plain meaning rule has no application.
8
When a statute is ambiguous, the
legislature's intent is the controlling factor in statutory interpretation.
9

[Headnotes 7, 8]
Estate recovery acts encompass two important policy considerations relevant to the
provision of medical care. First, the government has a legitimate statutory interest in
recovering the amount of correctly paid Medicaid benefits from a deceased Medicaid
recipient's estate, which includes the recipient's ownership interest in property at the time of
death.
10
This interest arises from federal legislation mandating that states establish an estate
recovery program in order to receive federal Medicaid funding.
11
Estate recovery provisions
were initiated in light of increased demands for Medicaid, which stemmed from the growth of
the nation's aging population.
12
Congress was concerned with projections indicating that
Medicaid funding will be insufficient to meet claims within the next thirty years.
13
The
federal statutes not only condition the states' receipt of Medicaid funding on efforts seeking
recovery from a deceased recipient's probate estate,
14
but they also permit states to expand
the definition of estate to include property held in joint tenancy and various other
ownership interests at the time of death.
15

However, the federal and state statutes also reflect concern for the second policy
consideration, avoiding spousal impoverishment. Congress has long been concerned with
preventing spousal impoverishment.
____________________

8
See Randono v. CUNA Mutual Ins. Group, 106 Nev. 371, 374, 793 P.2d 1324, 1326 (1990); see also Hotel
Employees v. State, Gaming Control Bd., 103 Nev. 588, 591, 747 P.2d 878, 779 (1987).

9
Robert E. v. Justice Court, 99 Nev. 443, 445, 664 P.2d 957, 959 (1983).

10
See NRS 422.054 (2001) (amended 2003); NRS 422.2935(1) (2001) (amended 2003) (current version at
NRS 422.29302(1)).

11
Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, 13612(a)-(c), 107 Stat. 312, 627-28
(codified as amended at 42 U.S.C. 1396p(b)(1)).

12
See generally Jon M. Zieger, Note, The State Giveth and the State Taketh Away: In Pursuit of a Practical
Approach to Medicaid Estate Recovery, 5 Elder L.J. 359, 365 (1997).

13
Id. at 374-76.

14
42 U.S.C. 1396p(b)(4)(A) (2000).

15
42 U.S.C. 1396p(b)(4)(B) (2000) (providing that [a]t the option of the State, the term estate may
include any other real and personal property and other assets in which the individual had any legal title or
interest at the time of death (to the extent of such interest), including such assets conveyed to a survivor, heir, or
assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living
trust, or other arrangement).
ishment.
16
The legislation attempts to strike a balance between these policies by limiting
reimbursement efforts to situations where impoverishment is no longer an issue.
17
The
foremost consideration is enabling states to help more people in need of Medicaid get
assistance.
18

[Headnote 9]
As a result of the federal legislation, Nevada created an estate recovery program.
19
Consistent with the federal mandate, the Nevada statutes broaden the definition of estate to
include assets conveyed to a survivor, heir or assign of the deceased [Medicaid] recipient
through joint tenancy, tenancy in common, survivorship, life estate, living trust or other
arrangement.
20

[Headnotes 10, 11]
Nevada's estate recovery statute furthers the government's legitimate interest in
recovering, from a deceased Medicaid recipient's estate so that the government can help more
people in need of assistance, the amount of benefits correctly paid.
21
To prevent
impoverishment, the government is prohibited from executing its interest when the deceased
recipient has a: (1) surviving spouse, (2) surviving child who is under 21 years old, or (3)
surviving child who is blind or permanently and totally disabled.
22
In such circumstances,
the government must delay executing its interest until the surviving spouse's death or the end
of the dependency. This allows surviving spouses and qualified dependents to use assets,
including any ownership interest in a home, to support themselves while recovery is
deferred.
____________________

16
See generally Rochelle Bobroff, Judicial Deference to Federal Government Erodes Medicaid Protections
for Elderly Spouses Impoverished by the High Costs of Nursing Home Care, 29 Wm. Mitchell L. Rev. 159, 160
(2002) (The purpose of [certain provisions of the Medicare Catastrophic Coverage Act of 1988] was to protect
the community spouse . . . from being forced into poverty as a result of the overwhelming cost of nursing home
care.).

17
See generally Zieger, supra note 12, at 365 (supporting the concept of estate recovery programs as a
useful and just method of controlling Medicaid costs while maintaining the smallest possible impact on the
surviving spouse and other qualified dependents).

18
Id. (noting that the need for policies that improve the fiscal integrity of Medicaid is becoming increasingly
undeniable, in significant part, due to the rapid growth of the elderly population).

19
NRS 422.2935(1) (2001) (amended 2003) (current version at NRS 422.29302(1)).

20
NRS 422.054 (2001) (amended 2003) (providing that undivided estate includes all real and personal
property and other assets included in the estate of a deceased Medicaid recipient and any other assets in or to
which he had an interest or legal title immediately before or at the time of his death, to the extent of that interest
or title).

21
See Zieger, supra note 12, at 365.

22
See NRS 422.2935(2) (2001) (amended 2003) (current version at NRS 422.29302(2)). The term qualified
dependents is used to describe individuals in categories two and three.
surviving spouses and qualified dependents to use assets, including any ownership interest in
a home, to support themselves while recovery is deferred.
[Headnotes 12, 13]
Although the government is prohibited from executing its interest until the surviving
spouse's death, the government's interest survives and continues with the property. Any
individual who takes property upon the death of a Medicaid recipient, through inheritance,
assignment, joint tenancy, etc., takes it subject to the government's interest. For instance, in
this case, when Harold died and Agnes took Harold's interest in the home through joint
tenancy, the government's interest survived. Similarly, any person who acquires an interest in
the property through gift or fraudulent transfer, takes the property subject to the State's
interest granted by the estate recovery statutes.
23

The federal Medicaid estate recovery statute, which is the basis for Nevada's statute,
provides that any adjustment or recovery of medical assistance correctly paid to a
deceased Medicaid recipient may be made only after the surviving spouse's death.
24
Nevada's Medicaid estate recovery statute provides that the government may not recover
benefits until after the surviving spouse's death.
25
NSWD argues that imposing a lien before
the surviving spouse's death is not an impermissible recovery. We agree.
[Headnotes 14, 15]
Turning to the plain language of the estate recovery statutes, the term recovery is
not defined. In its every day use, the word recovery" means "the regaining of something
lost or taken away.
____________________

23

24
See 42 U.S.C. 1396p(b) (2000). The statute states, in pertinent part:
(1) No adjustment or recovery of any medical assistance correctly paid on behalf of an individual
under the State plan may be made, except
. . . .
(2) Any adjustment or recovery under paragraph (1) may be made only after the death of the
individual's surviving spouse, if any, and only at a time
(A) when he has no surviving child who is under age 21, or (with respect to States eligible to
participate in the State program established under subchapter XVI of this chapter) is blind or permanently
and totally disabled, or (with respect to States which are not eligible to participate in such program) is
blind or disabled as defined in section 1382c of this title . . . .

25
See NRS 422.2935(2) (2001) (amended 2003) (current version at NRS 422.29302). The statute states, in
pertinent part:
The welfare division shall not recover benefits . . . except from a person who is neither a surviving spouse
nor a child, until after the death of the surviving spouse, if any, and only at a time when the person who
received the benefits has no surviving child who is under 21 years of age or is blind or permanently and
totally disabled.
covery means the regaining of something lost or taken away.
26
A lien, in and of itself,
does not permit the State to regain the sums it expended for Medicaid benefits. Rather, a lien
is a security device that binds property to a debt and puts a party on notice that someone
besides the owner of the property has an interest in that property. It is a claim, encumbrance,
or charge on property for the payment of some debt, obligation or duty.
27
Repayment of the
debt evidenced by the lien does not occur until the property is sold or foreclosed upon.
28

[Headnote 16]
The Nevada statutes themselves support our conclusion that a lien is not a recovery.
NRS 422.29355 permits liens to be placed against the real or personal property of a Medicaid
recipient before or after the recipient's death. Moreover, after the recipient's death, a lien may
be placed upon the undivided estate of the deceased recipient.
29
As noted above, the
undivided estate is broadly defined and includes interests in real property that would normally
be extinguished by death, such as joint tenancies.
30
Finally, a Nevada statute provides that
the State may foreclose upon a lien, to the extent not prohibited by federal statute.
31
If a lien
constituted a recovery, there would be no need for these statutory provisions.
32

Additionally, the federal and state statutes place restrictions on when a lien may be
imposed during the lifetime of a Medicaid recipient, but contain no similar restrictions upon
liens imposed after the death of the recipient. The failure of Congress and the Legislature to
impose specific language on the imposition of post-death liens indicates that such liens are
not prohibited.
33
While we are aware that the procedure for establishing a governmental
interest in a deceased recipient's estate can be frightening and intimidating to the surviving
spouse, there is nothing in the congressional record to indicate that imposing a post-death lien
is an impermissible "recovery.
____________________

26
Random House Webster's College Dictionary 1087 (2d ed. 1997).

27
Black's Law Dictionary 922 (6th ed. 1990).

28
See Zieger, supra note 12, at 373.

29
NRS 422.29355(3) (2001) (amended 2003) (current version at NRS 422.29306).

30
NRS 422.054 (2001) (amended 2003).

31
NRS 108.870 (2001) (amended 2003).

32
Paramount Ins. v. Rayson & Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970) ([N]o part of a statute
should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can be properly
avoided. (internal quotation marks and citation omitted)).

33
See Coast Hotels v. State, Labor Comm'n, 117 Nev. 835, 841, 34 P.3d 546, 550 (2001) (when the
legislature has employed a term or phrase in one place and excluded it in another, it should not be implied where
excluded); Delaney v. Deere and Co., 999 P.2d 930, 936-37 (Kan. 2000); Carver v. Bond/Fayette/Effingham,
586 N.E.2d 1273, 1276 (Ill. 1992).
sible recovery. We conclude that a lien, in and of itself, is not an impermissible recovery.
Agnes also contends that even if a lien is not a recovery, it becomes an impermissible
recovery whenever the property subject to the lien is sold or encumbered by the surviving
spouse. Agnes argues that the lien itself, if not subject to certain restrictions, has an
undeniable chilling effect and becomes due and payable upon a legitimate transaction, such as
refinancing the property, which defeats the purpose of ensuring against impoverishment.
NSWD argues that the government's interest in the fiscal security of the Medicaid system is
not adequately protected if it cannot impose liens. Specifically, NSWD argues that, when a
surviving spouse transfers property for less than fair market value or as a gift, the government
is frequently unable to execute its interest because the deceased recipient's remaining estate
has insufficient assets and the property cannot be traced because the transferees have already
conveyed the property to a good faith purchaser for value.
Because the statutory language does not speak to the issue of a lien's effect upon sale
or financing of the property, we construe it according to that which reason and public policy
would indicate the legislature intended.'
34

[Headnotes 17, 18]
By delaying recovery until after the death of the surviving spouse, Congress has
evidenced an interest in ensuring fiscal security for the surviving spouse and avoiding spousal
impoverishment. By mandating that states establish estate recovery programs, Congress has
established an interest in recovering benefits correctly paid from a deceased Medicaid
recipient's estate. In balancing these two significant interests, Congress has created a system
that defers recovery until the surviving spouse's death. It is clear that Congress intended
that a surviving spouse be free to utilize the estate property during the spouse's lifetime. This
would include the bona fide sale or financing of the property designed to provide the spouse
with income from equity. A state's interest would be extinguished in such a transaction. A
state's interest is not extinguished when the deceased recipient's interest in the property is
transferred for less than fair market value.
35
Nevada's estate recovery statute is virtually
identical to the federal statute. We assume, therefore, that the Legislature also intended to
adopt a balance between recouping Medicaid benefits from a deceased recipient's estate
and preventing spousal impoverishment.
____________________

34
Nylund v. Carson City, 117 Nev. 913, 916, 34 P.3d 578, 580 (2001) (quoting State, Dep't of Mtr. Vehicles
v. Vezeris, 102 Nev. 232, 236, 720 P.2d 1208, 1211 (1986)).

35
couping Medicaid benefits from a deceased recipient's estate and preventing spousal
impoverishment.
36

[Headnotes 19, 20]
We conclude that, to ensure adequate protection of the government's legitimate
interest and help protect against fraudulent transfers, the government may impose a
post-death lien during the surviving spouse's lifetime upon property in which it has a
legitimate interest. However, we conclude that the government's right to impose a lien is not
absolute. Nevada's lien statute requires that the lien accurately reflect the State's interest in the
property.
37
The liens at issue in this case do not comply with the statute.
First, the notice of lis pendens and the lien do not correctly identify the precise legal
interest that the government is claiming, e.g., one-half interest of the property. Second, the
notice of lis pendens, lien proceedings, and the lien itself fail to provide clear and
unequivocal notice that the government will release the lien upon the surviving spouse's
demand for any bona fide transaction, including, but not limited to, selling the property,
refinancing the property, and obtaining a reverse mortgage.
38

In the instant case, the liens go beyond protecting NSWD's interest. Nothing in the
notice of lis pendens and the proposed lien contains language indicating the surviving spouses
are free to use or dispose of the property, through bona fide transactions, as a method of
avoiding spousal impoverishment. Finally, the lis pendens and proposed lien do not
accurately indicate they only apply to whatever interest the deceased Medicaid recipient had
in the property before his or her death. We conclude that, without such language, the liens are
overbroad and violate the spirit of federal and state laws designed to prevent spousal
impoverishment.
39
Accordingly, we affirm the district court's entry of a permanent
injunction prohibiting NSWD from pursuing the liens in their current form.
CONCLUSION
Because we cannot ignore the affirmative burden Congress placed on states to
establish estate recovery programs, we conclude that imposing a proper lien is not an
impermissible "recovery.
____________________

36
See Advanced Sports Info., Inc. v. Novotnak, 114 Nev. 336, 340, 956 P.2d 806, 809 (1998).

37
NRS 108.850(1) (2001) (amended 2003) (noting that the lien must comply with federal law).

38
These requirements are in addition to any existing ones pursuant to statute or regulation.

39
Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635, 637-38, 503 P.2d 457, 458-459 (1972) (noting
we consider the reason and spirit behind a law when determining legislative intent).
that imposing a proper lien is not an impermissible recovery. Therefore, the government
may impose a post-death lien, subject to certain limitations during the surviving spouse's
lifetime, upon property in which it has a legitimate interest. To prevent spousal
impoverishment, we conclude that the notice of lis pendens, lien proceedings, and the lien
itself must provide clear and unequivocal notice that the government will release the lien
upon the surviving spouse's demand for any bona fide transaction and accurately reflect the
government's interest in the property.
Because the liens that NSWD sought to impose on the Ullmer and Parco homes were
overly broad, we affirm the order granting injunctive relief entered in their favor individually.
However, we reverse the order granting injunctive relief entered as to the class members as a
whole because the district court prematurely considered the matter prior to the end of the
class notification period.
Shearing, C. J., Agosti and Rose, JJ., concur.
Maupin, J., with whom Gibbons, J., agrees, dissenting and concurring in part:
The majority has judicially legislated Medicaid lien rights into being which I believe
are at odds with state and federal law. I therefore remain of the opinion that the district court
properly granted injunctive relief, prohibiting the imposition of Medicaid liens against homes
of surviving spouses of Medicaid recipients.
1

The Nevada State Department of Human Resources, Welfare Division, enjoys a
qualified right of reimbursement of Medicaid benefits from the recipient's estate. However,
pursuant to federal law, the Nevada Legislature provides important protection for families
that receive Medicaid assistance by prohibiting the Division from effecting reimbursement
recovery until after the death(s) of the recipient's surviving spouse, minor children or children
with enumerated disabilities.
2
In my view, the imposition of Medicaid lien rights against a
recipient's statutory survivor implicates the prohibition against such recoveries.
To explain, the imposition of a lien against real property held by the survivor, but
once owned jointly with the recipient, encumbers the title to that property and works to
facilitate the ultimate statutory reimbursement recovery. Accordingly, imposition of lien
rights by the Division is inextricably related to enforcement of its right to recover against the
recipient's estate. This is underscored by the fact that, regardless of the recitations the
majority now requires to be inserted on the face of the recorded lien document, the
recorded lien would still have to be cleared to allow for completion of any legitimate inter
vivos transaction entered into by the survivor.
____________________

1
I concur in the result reached by the majority, to wit: that the injunctive relief be affirmed as to the
individual respondents, and that entry of injunctive relief to the class prior to class notification was premature.

2
See 42 U.S.C. 1396p(b) (2000); NRS 422.2935(2) (2001) (amended 2003) (current version at NRS
422.29302).
be inserted on the face of the recorded lien document, the recorded lien would still have to be
cleared to allow for completion of any legitimate inter vivos transaction entered into by the
survivor.
Because the lien rights delineated by the majority impede the ability of the survivor to
make transactions concerning his or her property, such rights constitute part of the recovery
process, a process that must await the survivor's demise.
3
I therefore conclude that the
Division has no express or implied statutory right to record liens against real property held by
the enumerated surviving members of a Medicaid recipient's family.
Although the majority has developed an imaginative and well-meaning remedy to
facilitate Medicaid reimbursement recoveries, this judicial creation improperly usurps the
Legislature's prerogatives to define Medicaid reimbursement recovery options.
4
The
balance of interests undertaken by the majority between the continuing health of the
Medicaid system and the families of Medicaid recipients should be left to the Nevada
Legislature.
____________
120 Nev. 121, 121 (2004) Rudin v. State
MARGARET RUDIN, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 38567
April 1, 2004 86 P.3d 572
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of
unauthorized surreptitious intrusion of privacy by listening device and murder with use of a
deadly weapon. Eighth Judicial District Court, Clark County; Joseph T. Bonaventure, Judge.
The supreme court, Agosti, J., held that: (1) testimony of State's blood splatter expert
was admissible; (2) defendant was not prejudiced by State's grant of immunity to her friend;
(3) State's quotation of passage from defendant's diary concerning her ability to control
her life during its opening statement did not prejudice defendant; {4) State's release of
investigative files regarding victim's murder to trustees of victim's estate did not
constitute misconduct; {5) any error that occurred as result of State's Brady violation was
harmless; {6) trial court's ex parte conversation with defendant was not improper; {7)
manifest necessity standard did not apply to defendant's motion for mistrial; and {S)
defendant was not entitled to new trial based on defense counsel's conduct of allegedly
attempting to secure media rights to defendant's story, or his alleged lack of preparation
for trial.
____________________

3
Webster's Dictionary defines a lien as
a charge upon real or personal property for the satisfaction of some debt or duty ordinarily arising by
operation of law: a right in one to control or to hold and retain or enforce a charge against the property of
another until some claim of the former is paid or satisfied.
Webster's Third New International Dictionary 1306 (1968). Recovery is defined in part in Webster's as a means
of restoration. Id. at 1898. Thus, a lien is merely a component in the enforcement of a recovery.

4
I realize that the lien rights defined by the majority work to protect the Division against bad faith transfers
of real property to the Medicaid survivor's estate beneficiaries for the purpose of avoiding reimbursement.
Again, while this is a worthwhile goal, this lien remedy is part and parcel of a prohibited recovery.
120 Nev. 121, 122 (2004) Rudin v. State
quotation of passage from defendant's diary concerning her ability to control her life during
its opening statement did not prejudice defendant; (4) State's release of investigative files
regarding victim's murder to trustees of victim's estate did not constitute misconduct; (5) any
error that occurred as result of State's Brady violation was harmless; (6) trial court's ex parte
conversation with defendant was not improper; (7) manifest necessity standard did not apply
to defendant's motion for mistrial; and (8) defendant was not entitled to new trial based on
defense counsel's conduct of allegedly attempting to secure media rights to defendant's story,
or his alleged lack of preparation for trial.
Affirmed.
Rose, J., with whom Maupin, J., agreed, dissented.
Marcus D. Cooper, Public Defender, and Craig D. Creel, Deputy Public Defender,
Clark County, for Appellant.
James Tufteland, Chief Deputy District Attorney, and Christopher J. Owens, Deputy District
Attorney, Clark County, for Respondent.
1. Criminal Law.
Testimony of State's blood splatter expert was admissible, in murder prosecution;
expert had extensive training and experience with regard to blood splatter
interpretation, testimony concerned probable trajectories of blood droplets found in
victim's former master bedroom, which was helpful to jurors, defense counsel
cross-examined expert extensively on his use of demo version of blood splatter
software program, rather than original program, and expert's consultation of literature
available on the Internet and with other experts was permitted under rule governing
expert testimony. NRS 50.275, 50.285(1), (2).
2. Criminal Law.
Expert testimony is only admissible if the individual's specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue. NRS
50.275.
3. Constitutional Law.
In determining whether prosecutorial misconduct has deprived defendant of a fair
trial, supreme court inquires as to whether the prosecutor's statements so infected the
proceedings with unfairness as to make the results a denial of due process. U.S. Const.
amend. 14.
4. Criminal Law.
Defendant is entitled to a fair trial, not a perfect one and, accordingly, a criminal
conviction is not to be lightly overturned on the basis of a prosecutor's comments
standing alone, for the statements or conduct must be viewed in context.
5. Criminal Law.
Supreme court will determine whether any prosecutorial misconduct that did occur
was harmless beyond a reasonable doubt.
120 Nev. 121, 123 (2004) Rudin v. State
6. Witnesses.
Murder defendant was not prejudiced by State's grant of immunity to her close friend,
who testified at trial, given that friend denied personal wrongdoing and refused to
implicate defendant in victim's murder.
7. Witnesses.
The granting of immunity to witnesses is traditionally a function of the prosecution.
8. Criminal Law.
State did not take inconsistent positions when, during grand jury proceedings,
prosecutor stated that State knew that murder defendant's good friend did not kill
victim, but then, at trial, proceeded to prosecute defendant on theory that her friend
aided and abetted her in killing victim, as State informed jury at trial that friend had
been granted immunity and that State believed that friend was defendant's accomplice.
9. Criminal Law.
The statement of an attorney is not evidence, nor is it admissible against the
government as a party admission.
10. Criminal Law.
State's quotation of passage from murder defendant's diary concerning her ability to
control her life during its opening statement did not prejudice defendant; passage was
consistent with State's theory that defendant was controlling and manipulative, and
there was nothing in passage that was patently, unfairly prejudicial by itself.
11. Grand Jury.
State's reference to perjury statute when questioning murder defendant's nephew
during investigative grand jury proceedings did not constitute misconduct, as State was
not prohibited from reminding witness of consequences of perjury during witness's
testimony, especially where nephew denied making certain admissions attributed to him
by police.
12. Criminal Law.
State's release of investigative files regarding victim's murder to trustees of victim's
estate did not constitute misconduct; statute governing disclosures to crime victims
permitted release of information, State revealed to trustees only names, addresses and
investigative files obtained through police investigation, and, because State released
only limited information to trustees that was obtained through police investigation of
victim's disappearance and not through evidence presented at grand jury proceedings,
State did not engage in misconduct. NRS 179A.120(1).
13. Criminal Law.
Any error that occurred as result of State's Brady violation, which consisted of its
failure to turn over statements of witness, was harmless, as trial court, to remedy
violation, permitted murder defendant to reopen her case-in-chief and present witness's
testimony to jury.
14. Criminal Law.
While the trial court must protect defendant's right to a fair trial, a trial judge is
charged with providing order and decorum in trial proceedings, and must also concern
himself with the flow of trial and protecting witnesses.
15. Criminal Law.
A majority of trial court's admonishments to defense counsel did not amount to
misconduct, in murder prosecution; admonishments were made in appropriate interests
of controlling flow of proceedings, defense counsel repeatedly attempted,
inappropriately so, to argue facts of case both during jury selection and his opening
statement, and none of trial court's comments reflected any animus towards
defense counsel.
120 Nev. 121, 124 (2004) Rudin v. State
during jury selection and his opening statement, and none of trial court's comments
reflected any animus towards defense counsel.
16. Criminal Law.
Trial court's references to past trial experiences that may have suggested its opinion
concerning murder defendant's case, while inappropriate, did not prejudice defendant;
trial court also instructed jury not to take any comments made by it as an expression of
opinion, and, given instruction, infrequent nature of comments and evidence, any
improper remarks did not prejudice defendant's right to a fair trial.
17. Criminal Law.
Trial court's ex parte conversation with murder defendant was not improper; Nevada
Code of Judicial Conduct permitted ex parte communication in certain circumstances,
trial court's meeting with defendant was initiated by defense, placed on record and
followed by lengthy discussions with counsel for both parties, and nothing in record
suggested that either side was likely to gain an advantage as a result of defendant's
meeting with trial court. NCJC Canon 3.
18. Criminal Law.
Trial court's ex parte conversation with juror was not improper, in murder
prosecution; Nevada Code of Judicial Conduct permitted ex parte communication in
certain circumstances, court recorded its discussion with juror and immediately
disclosed substance of conversation to counsel for both parties, who offered no
objections, and there was no indication of prejudice to defendant, as trial court decided
not to discharge juror, who apparently was the only juror favoring a not guilty verdict at
that time. NCJC Canon 3.
19. Criminal Law.
Trial court exercises discretion when considering a motion for new trial.
20. Criminal Law.
Murder defendant's naked allegations that trial court's decision to deny her motion for
new trial was colored by bias or lack of impartiality were insufficient to establish her
entitlement to relief; defendant had burden of setting forth such facts, but failed to do
so.
21. Double Jeopardy.
Manifest necessity standard, under which, when State moves for mistrial or court
declares mistrial on its own motion, double jeopardy bars retrial unless declaration of
mistrial was dictated by manifest necessity or ends of justice, did not apply to murder
defendant's motion for mistrial, which was based on defense counsel's lack of
preparation; defendant's request for mistrial constituted clear and deliberate election to
forgo his valued right to trial by first jury. U.S. Const. amend. 5.
22. Criminal Law.
Denial of murder defendant's motion for mistrial, based on defense counsel's alleged
lack of preparation, was proper, even though trial court applied incorrect standard to her
motion; defense counsel did have difficulty preparing for defendant's trial, but trial
court responded by alternatively admonishing counsel and accommodating defense in
order to promote fairness in proceedings, including granting defense extra time during
trial to prepare, appointing third defense attorney, and permitting defense to tell jury
about State's Brady violation, and thus defendant's right to fair trial was not prejudiced.
23. Criminal Law.
Trial court has discretion to determine whether a mistrial is warranted, and its
judgment will not be overturned absent an abuse of discretion.
120 Nev. 121, 125 (2004) Rudin v. State
When the State moves for a mistrial or the court declares a mistrial on its own motion,
double jeopardy bars retrial unless manifest necessity or the ends of justice dictated the
declaration of the mistrial. U.S. Const. amend. 5.
Even in the presence of manifest necessity, where a prosecutor is responsible for the
circumstances that necessitated declaration of a mistrial, double jeopardy will prevent
retrial of defendant. U.S. Const. amend. 5.
Defendant's request for a mistrial constitutes a clear and deliberate election to forgo
one's valued right to a trial by the first jury.
27. Criminal Law.
Defendant's request for a mistrial may be granted for any number of reasons where
some prejudice occurs that prevents defendant from receiving a fair trial.
28. Criminal Law.
In the case of allegations of ineffective assistance of counsel, counsel's ineffective
performance must be so prejudicial as to be unsusceptible to neutralizing by an
admonition to the jury. U.S. Const. amend. 6.
29. Criminal Law.
Defendant is not entitled to a perfect trial, only a fair trial.
30. Criminal Law.
Murder defendant was not entitled to new trial based on defense counsel's conduct of
allegedly attempting to secure media rights to defendant's story, or his alleged lack of
preparation for trial; record was inadequate to demonstrate that defense counsel's
alleged conflict of interest adversely affected his performance, and given fact that
defendant had two other attorneys representing her, and strength of State's case, defense
counsel's conduct did not prejudice defendant's right to fair trial. SCR 158(4).
31. Criminal Law.
A presumption of prejudice arises when an actual conflict of interest adversely affects
counsel's performance.
1

OPINION
This is an appeal from a judgment of conviction on Count I, unauthorized
surreptitious intrusion of privacy by listening device and Count II, murder with use of a
deadly weapon. Appellant Margaret Rudin argues that she is entitled to a new trial because:
(1) the district court abused its discretion by admitting unreliable expert testimony, (2) the
State deprived her of her right to a fair trial by engaging in repeated instances of prosecutorial
misconduct, {3) the district court deprived her of her right to a fair trial by engaging in
repeated instances of judicial misconduct, and {4) one of her trial counsel was unable to
adequately prepare for trial depriving her of her right to a fair trial.
____________________

1
This matter was submitted for decision by the seven-justice court. The Honorable Myron E. Leavitt, Justice,
having died in office on January 9, 2004, this matter was decided by a six-justice court.
120 Nev. 121, 126 (2004) Rudin v. State
(3) the district court deprived her of her right to a fair trial by engaging in repeated instances
of judicial misconduct, and (4) one of her trial counsel was unable to adequately prepare for
trial depriving her of her right to a fair trial. We conclude that Rudin's arguments are without
merit and, accordingly, we affirm the judgment of conviction.
FACTS
The victim, Ronald (Ron) Rudin, and the appellant, Margaret Rudin (Rudin), were
married in September 1987. Ron owned a realty company that was located in a strip mall
which he also owned. Rudin and Ron shared a private residence located directly behind the
mall.
According to Rudin's sister, Dona Cantrell, Rudin would often complain that Ron was
stingy, and that Rudin hoped he would die from his poor health. In 1991, following an
altercation between Rudin and Ron's employees, Ron forbade Rudin from entering his realty
office before 5:00 p.m. Around this same time, Ron also removed a phone line shared
between his office and his residence after his employees claimed that Rudin had been
eavesdropping on their conversations. After Ron terminated the shared phone line, Rudin and
Cantrell secretly placed hidden listening devices in Ron's office. These devices transmitted a
signal to a receiver and recorder that Rudin kept in the residence and allowed her to
eavesdrop undetected.
According to Ron's attorney, Patricia Brown, Ron had characterized Rudin, who was a
forty-percent beneficiary of his trust, as becoming increasingly vicious and violent.
Accordingly, in 1991, Ron executed a secret directive to the trustees of his estate that they
take extraordinary steps to investigate the cause of his death if he died by violent means.
The directive also provided that any beneficiary who caused his death was not to receive any
assets from his estate. In 1993, Ron increased Rudin's share in his trust to sixty percent.
In 1994, eavesdropping with the aid of her listening devices, Rudin discovered that
Ron was involved in a romantic affair with a woman who was also a former employee.
During this same time period, Rudin developed a close relationship with Yehuda Sharon.
On the evening of December 18, 1994, a tenant at Ron's strip mall stated that she
spotted Ron walking towards Rudin's antique store which was also located at the mall.
Around 8:10 p.m., a friend of Rudin's testified that she called the residence and spoke to Ron,
who told her that Rudin was not there. Rudin claims that she called Ron from her cellular
phone between 8:30 and 9:30 p.m. Her cellular phone records, however, contain no record of
this call. Rudin claims that after the call she worked late at her antique store until about
1:15 a.m.
120 Nev. 121, 127 (2004) Rudin v. State
antique store until about 1:15 a.m. on December 19, 1994. A friend of Rudin's, Jeanne
Nakashima, testified that she was with Rudin at the antique store from approximately 9:15
p.m. until 12:45 a.m.
2
At 2:20 a.m., Rudin stopped by the office of Carol Kawazoe, who was
working late with her husband at her tax preparation office, which was also located at the
strip mall. Kawazoe, who had never previously met Rudin, testified that Rudin introduced
herself and spent no less than thirty minutes making pleasant conversation with Kawazoe and
her husband. According to Rudin, she then returned home and discovered that Ron and his
vehicle were gone. Rudin claims that she was not worried because she believed that Ron was
probably upset that she had been working so much and had likely decided to go out by
himself.
On Monday morning, December 19, 1994, Ron did not appear at the realty office
although he ordinarily opened the office on Monday mornings. One of Ron's employees
called his residence and received no answer.
On the evening of December 19, 1994, Yehuda Sharon, Rudin's close friend, rented a
large passenger van from a rental car agency in Las Vegas. According to Sharon, he had
rented the van to pick up a shipment of holy oils from a business in Santa Fe Springs,
California. Sharon had directed the rental car agency to remove the back passenger seat from
the van. Sharon returned the van on December 23, 1994, with 348 miles logged. Sharon told
investigators that he drove to California on December 22, 1994, but that he never reached his
planned destination because he decided to turn around midway due to a trucker's comment
that it was raining in California.
On December 20, 1994, two of Ron's employees went to a local police station to
report Ron's disappearance. The police officer contacted Rudin and explained that she would
accept the report made by the two employees unless Rudin was going to make a report. Rudin
made a missing persons report early that afternoon.
On December 21, 1994, Rudin hired a day laborer, Augustine Lovato, to clean some
stains on the carpet in front of her washer and dryer. According to Lovato, the stains had
already been partially cleaned and appeared to be a dark brown substance.
On December 22, 1994, police detectives interviewed Rudin at her antique store and,
with Rudin's permission, performed a cursory search of the residence. The search revealed
nothing unusual. Rudin's sister, Cantrell, testified that on or about that same day she visited
Rudin at Rudin's residence. She noticed that Rudin was reviewing Ron's will and trust
documents, which Rudin had retrieved from Ron's realty office the previous Monday,
December 19, 1994.
____________________

2
Rudin never mentioned Nakashima in her original statement to the police.
120 Nev. 121, 128 (2004) Rudin v. State
On December 23, 1994, Ron's car was discovered parked in an alley behind the Crazy
Horse Too Saloon in Las Vegas. The car was locked, and the police retrieved two sets of keys
to the vehicle from the car's interior. The police also noted that dirt had been tracked onto all
four floorboards of the car. Upon further investigation, several latent fingerprints were lifted
from the vehicle, none of which belonged to Ron or Rudin.
On the evening of December 25, 1994, Rudin hired a locksmith and gained entry into
Ron's realty office. According to Cantrell, she and Rudin spent several hours in Ron's office
gathering various documents that Rudin said she would need, including numerous financial
documents, documents relating to the suicide of Ron's former wife and documents reflecting
that a family member of Ron's former wife had years earlier made a death threat against Ron.
On December 29, 1994, Cantrell was working with Rudin at her antique shop when
Detective Frank Janise entered the store and asked to speak with Rudin. After speaking with
Rudin, Detective Janise approached Cantrell in another part of the store. According to
Cantrell, she was speaking with Detective Janise when Rudin approached them and told the
detective, Ron always wears black pants and Ron always wears black boots. Cantrell
testified that Rudin later indicated to Cantrell that Rudin had caught herself talking about
Ron in the past tense and had made a point of going back to speak with the detective.
Cantrell also claimed that, around this same time, she helped Rudin gather several
documents from inside an antique desk in Rudin's antique shop. The documents included a
notebook with an entry in Rudin's handwriting itemizing Ron's total assets. Additionally,
Cantrell stated that she retrieved a certificate from a firearm safety course that Rudin had
completed in November 1993, along with a handwritten note stating that it's you or him; get
him first.
On January 12, 1995, Rudin hired Lovato to help her turn the master bedroom into an
office. Lovato dismantled the bed, which had been stripped of its bedding, and removed the
mattress and bedspring. Lovato claimed that Rudin instructed him to remove all the furniture
from the room and cut out the 9- by 12-foot area of carpeting directly underneath the bed.
According to Lovato, as he cut the carpet he noticed dark reddish brown stains and a strong
odor that he likened to the odor of his dogs after they had been chewing on rabbits. After he
began working on the carpet, Lovato claims that Rudin told him that she had gotten good
news from her attorneys and, therefore, he should remove all of the carpet because she was
going to recarpet the entire master bedroom. While removing the carpet, Lovato noticed
several reddish brown splatters on a large glamour shot of Rudin that was hanging over the
area where the bed had been.
120 Nev. 121, 129 (2004) Rudin v. State
large glamour shot of Rudin that was hanging over the area where the bed had been.
Lovato testified that when he returned to do some additional work several days later,
the master bedroom was newly carpeted, and the glamour shot portrait had been moved to the
guest room. The reddish brown splatters were no longer on the photo. Lovato also claimed
that at some point he heard a gurgling sound coming from the master bathroom, where he
observed a reddish brown blob bubbling out of the bathtub drain. Lovato testified that Rudin
returned to the residence with a U-Haul truck, into which he loaded the mattress, box spring
and a cardboard wardrobe closet. Later, at Rudin's direction, he unloaded the items in an alley
and abandoned them there.
That same day, Rudin asked Lovato to mail a package addressed to her mother.
Lovato forgot to mail the package, and ultimately turned it over to the police. After obtaining
a search warrant, police opened the package and discovered several personal items inside,
including a postcard from Israel signed Love, Yehuda, a photo of Yehuda Sharon and a
handwritten letter from Rudin to her mother containing the message, Please hold on to my
Ye.
On the night of January 21, 1995, fishermen discovered charred remains near Nelson's
Landing at Lake Mohave. Only a skull and 500 grams of bone matter remained. Police
investigators were ultimately able to positively identify the remains as Ron's by consulting his
dental records. Investigators identified the cause of death as multiple gunshot wounds to the
head. Investigators also recovered three .22 caliber bullets from inside Ron's skull as well as
two bullet fragments. Detectives met with Rudin on January 23, 1995, to notify her that they
had identified Ron's remains. According to the detectives, Rudin displayed no visible signs of
emotion other than rubbing her knuckle into her eye.
Found with Ron's remains were the burnt remnants of a large steamer trunk. Cantrell
told investigators that she had seen a similar trunk in Rudin's antique shop during the shop's
grand opening. Cantrell claimed that she never saw the trunk again after that date. Police also
interviewed an antique dealer, Bruce Honabach, who recalled selling such a trunk to Rudin in
1994.
On the evening of January 27, 1995, the police, armed with a warrant, searched
Rudin's residence and discovered in the former master bedroom, minute splatters of a
blood-like substance on the walls, the ceiling, an outlet cover and an electronic control
device. The police also discovered blood-like splatters on the box spring that had been
recovered from the alley and on the glamour shot portrait, which the police had recovered
from a frame store which, at Rudin's request, was placing new glass on the portrait.
120 Nev. 121, 130 (2004) Rudin v. State
While the police were searching Rudin's residence, Rudin was observed by police
surveillance as she drove towards her residence and then as she drove away from the area
upon her apparent observation of several police squad cars. The police followed Rudin as she
left the area. Rudin stopped at a nearby convenience store, where she made several phone
calls. Later, Rudin went to Cantrell's residence. Cantrell claims that Rudin told her that the
police were looking for a trunk, a gun and a glamour shot portrait. After visiting with
Cantrell, Rudin drove to Sharon's residence where she remained for nearly two hours. The
police then observed Rudin and Sharon leave the house and followed them to Stateline. When
Rudin and Sharon reached the California border, police officers contacted the Los Angeles
Police Department, which surveilled Rudin until the next morning when she boarded a flight
to St. Louis, Missouri. Rudin did not return to Nevada until law enforcement officers in
Massachusetts apprehended her and she was extradited to Nevada in 1999.
On July 21, 1996, a scuba diver discovered a .22 caliber Ruger handgun while diving
near Pyramid Island at Lake Mead. The gun was wrapped in several plastic bags that were
secured with rubber bands and so was well preserved. The handgun had a sound suppressor
attached to it. Police subsequently learned that the gun had been registered to Ron in 1980.
According to records obtained from the Bureau of Alcohol, Tobacco and Firearms, Ron had
reported the items missing in October 1988. In particular, Ron sent a letter to the Bureau,
stating that he suspected that his wife had packed his gun in her belongings in anticipation of
her move due to a pending divorce. Rudin and Ron had apparently separated or considered
divorce at several points during their marriage.
On April 17, 1997, Rudin was indicted by a Clark County grand jury for the crimes of
unauthorized surreptitious intrusion of privacy by listening device, murder with use of a
deadly weapon and accessory to murder. A warrant was issued for Rudin's arrest. Law
enforcement officers in Massachusetts eventually apprehended Rudin in November 1999.
After officers asked Rudin whether she knew why she was being arrested, she responded,
Yes. This is about Las Vegas, isn't it?
On March 31, 2000, Rudin was arraigned in the Eighth Judicial District Court and
pleaded not guilty to all counts. Rudin was initially represented by the Clark County Public
Defender's Office. She eventually retained the services of a private attorney, Michael
Amador, who claimed to be representing Rudin on a pro bono basis. On February 20, 2001,
the district court, in order to avoid further delays, appointed attorney Thomas F. Pitaro to
assist Amador.
Trial commenced on March 2, 2001. Following the State's opening statement, Michael
Amador delivered a lengthy opening statement which included the following remarks:
120 Nev. 121, 131 (2004) Rudin v. State
This is a great day, in a lot of different ways. Some days are difficult; some days we
hear bad news or we go through a difficult time, but every day, every day, depending on
how you look at it, with a few exceptions, can be a celebration.
. . . .
This is a great today for me. This is a culmination of a career. The people in this case,
we are not strangers; we know each other. Chris and I were sworn in as deputy DAs the
same day. And I congratulate Chris on a presentation that was organized and well
thought out, the best money can buy. It was really good.
. . . .
If you want to know an opinion about me, I guarantee you'll find some, different ones
from different people. Not many people know me. I have few close friends, like Ronald
Rudin had few close friends.
. . . .
I could be a wonderful, caring father, coaching soccer, helping kids with their
homework, which I did the first time I got married when they were young.
Then another day, I might scream at someone, yell at them forI don't knowfor
asking me some question, because I was too busy and I was thinking of something else.
. . . .
The difficulty I have at times is communicating to people. I have to look at it and talk
to other people and they will bring me back down to earth and say: Mike, what are you
trying to say? What are you trying to get across?
. . . .
I reviewed again this morning my opening statement and threw most of it away. I
don't know, maybe it's just something I do.
Over the course of Amador's opening statement, the district court sustained several objections
made by the State and admonished Amador to confine himself to what he believed the
evidence would tend to show and to avoid making arguments. The general thrust of Amador's
opening statement was an appeal to the jurors to closely scrutinize the State's evidence against
Rudin. After Amador completed his opening statement, the case proceeded. The State began
presenting its case-in-chief.
On March 5, 2001, Rudin notified the district court, outside the jury's presence, that
she was dissatisfied with her defense counsel. During an in-chambers meeting with the judge
and without the presence of either her attorneys or the prosecutors, Rudin stated that she
believed that Amador was not prepared to try the case, had not adequately investigated
witnesses and had problems in his personal life that were impairing his effectiveness.
Nonetheless, Rudin indicated that she did not desire a mistrial because she was satisfied
with Pitaro's legal representation and she did not want to replace Amador.
120 Nev. 121, 132 (2004) Rudin v. State
indicated that she did not desire a mistrial because she was satisfied with Pitaro's legal
representation and she did not want to replace Amador. Instead, she wanted Pitaro to take a
more active role on the case.
Immediately following this discussion, the district court called Pitaro, Amador and the
prosecutors into chambers to further discuss the matter. Amador indicated that he was having
difficulty preparing the case because two of his employees, his wife and his mother-in-law,
had terminated their employment one month before trial. After further questioning by the
district court, Pitaro agreed to assume a more active role in the case. Concerned that jeopardy
would attach, the State refused to request a mistrial even though it expressed the need for a
clean record. At this time, the district court, Rudin, Amador and Pitaro were put on notice
that the State was pursuing an investigation into Rudin's indigent status and Amador's alleged
acceptance of money from media enterprises. Amador denied the allegations. At the
conclusion of the meeting, the district court indicated that it was willing to give the defense
extra time during the trial to prepare its case. Rudin indicated that she was satisfied that all of
her concerns had been addressed. The State continued to present its case-in-chief.
On March 8, 2001, the district court conducted a hearing to determine if Rudin and
her counsel needed additional time to prepare. The district court was informed that the
defense was prepared and did not, as yet, need any additional time.
However, on March 15, 2001, during another in-chambers conference and after direct
examination and some cross-examination of Cantrell, Rudin, through counsel, moved for a
mistrial. Again, Rudin claimed that Amador was not adequately prepared, that he had failed
to adequately cross-examine Cantrell and that Pitaro had joined the case too late to remedy
the problem. In denying Rudin's motion for a mistrial, the district court accepted Amador's
arguments that he had used his best efforts. The district court stated that while Amador's
opening statement was ineffective, it was not evidence, and that Rudin had the benefit of
being represented by both Pitaro and Amador. The district court also noted that Amador had
just begun to cross-examine Cantrell when the court recessed over an evidentiary objection
and that there was no indication Amador was not prepared to cross-examine Cantrell or that
Amador would not be prepared to cross-examine future witnesses adequately. The district
court indicated it would not grant a mistrial based solely on Rudin's speculations and
reiterated that it would authorize additional investigative fees or continuances if counsel
needed additional time. The district court denied Rudin's motion for a mistrial, concluding
that there was not enough evidence of prejudice to support a finding that a mistrial was
manifestly necessary.
120 Nev. 121, 133 (2004) Rudin v. State
dence of prejudice to support a finding that a mistrial was manifestly necessary. Nonetheless,
on March 29, 2001, the district court appointed John Momot as an additional attorney for
Rudin.
Once again, the State continued to present its case-in-chief. Although the State called
over sixty witnesses, its case against Rudin rested primarily upon: (1) Cantrell's testimony
concerning Rudin's admissions and conduct before and after Ron's disappearance, (2)
Lovato's testimony concerning what he observed while working in Rudin's home, (3) ballistic
evidence indicating that Ron had been shot with his own .22 caliber Ruger handgun, and
(4) forensic evidence suggesting that Ron had been shot inside the master bedroom.
The defense began its case-in-chief on April 16, 2001, after being granted a five-day
recess subsequent to the State's completion of its case-in-chief. The defense rested after four
days of testimony. The defense elicited testimony from over twenty witnesses; however, the
focal points of its case were: (1) an expert's testimony that forensic evidence did not support
the conclusion that Ron was murdered in the master bedroom, and (2) that several other
people had a motive and opportunity to kill Ron.
On April 23, 2001, after the defense had rested its case, Donald Shaupeter contacted
the defense. Shaupeter allegedly consigned a steamer trunk to Honabach, which Honabach
then sold to Rudin. Contrary to Honabach's testimony, Shaupeter claimed that he consigned a
small case to Honabach, but not a steamer trunk. Since Shaupeter claimed that he had
previously supplied the State's investigator with this information, Rudin filed a motion to
dismiss the charges on the theory that the State had withheld exculpatory evidence from
Rudin. According to the State's investigator, Shaupeter did not deny that he consigned a trunk
to Honabach; rather, the investigator recalled that Shaupeter had very little recollection of any
of the individual items that had been consigned to Honabach.
The district court concluded that the State had improperly withheld Shaupeter's
statements from the defense and that it was not for the State to decide whether Shaupeter's
testimony was exculpatory or inculpatory. Nonetheless, the district court concluded that the
error was not of sufficient magnitude to justify a mistrial. As a remedy, the district court
allowed the defense to reopen its case-in-chief to elicit testimony from Shaupeter. The district
court also permitted Rudin's counsel to tell the jury that the State had improperly withheld
Shaupeter's statements.
On April 25, 2001, the parties delivered their closing arguments. During a recess, the
district court asked Juror Number Eleven to remain behind so that it could address, outside
the presence of the jury as a whole, a concern over a reported argument between Juror
Eleven and a staff person at the Golden Nugget over a smoking break.
120 Nev. 121, 134 (2004) Rudin v. State
ence of the jury as a whole, a concern over a reported argument between Juror Eleven and a
staff person at the Golden Nugget over a smoking break. Juror Eleven stated that she wanted
to remain on the jury and that she did not believe there would be a problem with smoking
breaks in the future. Both the defense and the State were present during this colloquy; neither
wished to make any comments for the record. Subsequently, the parties concluded their
closing arguments. The jury commenced deliberations.
On Monday, April 30, 2001, the district court met with the defense and the State in
chambers to address another issue that had arisen over the weekend concerning Juror Eleven.
The district judge informed the parties that he had been contacted by Alternate Juror Number
Three, who stated that Juror Eleven had contacted her. According to Alternate Three, Juror
Eleven had called Alternate Three and had told her that she was upset because she was the
only person in favor of a not guilty verdict and because she had gotten into an altercation with
the staff person at the Golden Nugget. The defense moved for a mistrial, arguing that the
improper communication between the juror and the alternate had tainted the jury. After
questioning Alternate Three and Juror Eleven in the presence of the State and the defense, the
district court denied Rudin's motion for a mistrial. The district court also decided not to
discharge Juror Eleven, concluding that the jury had not been tainted and that Rudin had not
been prejudiced by the communication.
On May 1, 2001, the district court and the parties met in chambers again to discuss a
third issue that had arisen regarding Juror Eleven. The State indicated that it had obtained
information which suggested that Juror Eleven had been untruthful during jury selection
about whether she had any close friends in law enforcement and about whether she had ever
been the victim of a crime. Accordingly, the State moved that she be discharged from the
jury. After meeting with Juror Eleven in chambers and without the parties being present, the
district court chose not to remove Juror Eleven.
On May 2, 2001, after thirty-eight days of trial, the jury returned a verdict against
Rudin of guilty on Counts I and II. Following the verdict, the jury foreman held a one-person
press conference during which he declared:
In his opening remarks on March 2, [defense attorney] Michael Amador said, This is a
great day. I submit to you that today, May 2, is a great day. Ronald Rudin, his family
and the people of the great state of Nevada can [take] comfort in the fact that justice
was served today.
On May 8, 2001, Rudin filed a motion for a new trial based on several asserted errors.
During a hearing the next day, Rudin, through Pitaro and Momot, moved to terminate
Amador's services as her defense attorney, alleging that Amador had engaged in
misconduct, including: {1) abusing drugs, {2) retaining her personal possessions without
her permission, {3) mishandling her defense, {4) secretly securing media rights to her
case while representing to the district court that he was working on a pro bono basis, and
{5) secretly releasing private information to tabloid media publications against her
wishes.
120 Nev. 121, 135 (2004) Rudin v. State
through Pitaro and Momot, moved to terminate Amador's services as her defense attorney,
alleging that Amador had engaged in misconduct, including: (1) abusing drugs, (2) retaining
her personal possessions without her permission, (3) mishandling her defense, (4) secretly
securing media rights to her case while representing to the district court that he was working
on a pro bono basis, and (5) secretly releasing private information to tabloid media
publications against her wishes. After the hearing, the district court granted Rudin's motion to
relieve Amador from further representing Rudin in her case. After a subsequent hearing on
August 24, 2001, the district court denied Rudin's motion for a new trial, finding that Rudin
had failed to present any specific evidence or argument to support a determination that she
had been prejudiced.
A judgment of conviction was entered against Rudin on September 17, 2001, on
Count I, unauthorized surreptitious intrusion of privacy by listening device, and Count II,
murder with use of a deadly weapon. She was sentenced to one year in prison for Count I, and
life in prison with the possibility of parole after ten years for Count II, plus an equal and
consecutive sentence for the deadly weapon enhancement. The court ordered the sentences
for Count II to run concurrently with Count I. Rudin timely filed her notice of this appeal.
DISCUSSION
Expert testimony
[Headnote 1]
Rudin contends that the district court abused its discretion by admitting the testimony
of the State's blood splatter expert, Michael Perkins. Rudin argues that Perkins was not
qualified to be an expert witness and that his testimony was unreliable. This court has held
that a district court has discretion to qualify a particular witness as an expert and to permit
that witness to give opinion evidence.
3
Here, the record reflects that Perkins had extensive
training and experience with regard to blood splatter interpretation, and accordingly, the
district court did not abuse its discretion in allowing Perkins to testify as an expert on this
subject.
4

[Headnote 2]
Expert testimony is only admissible if the individual's specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue.
5
Examining
the nature of blood splatter evidence at a crime scene often requires expert testimony.
____________________

3
Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 1482, 970 P.2d 98, 108 (1998), disagreed with on other
grounds by GES, Inc. v. Corbitt, 117 Nev. 265, 271, 21 P.3d 11, 15 (2001); NRS 50.275.

4
See NRS 50.275.

5
Id.
120 Nev. 121, 136 (2004) Rudin v. State
blood splatter evidence at a crime scene often requires expert testimony.
6
Certainly, opinions
concerning trajectory based upon the appearance and placement of blood splatters is beyond
the experience of lay jurors. As such, the opinions of an expert would be helpful to the jurors.
7
Perkins's testimony concerned the probable trajectories of the blood droplets found in
Rudin's former master bedroom.
Rudin also attacks Perkins's use of a demo version of a blood splatter software
program. NRS 50.285(2) provides that an expert may base an opinion on facts or data that are
of a type reasonably relied upon by experts in forming opinions or inferences upon the
subject. Perkins testified that the program is widely used by blood splatter experts. We
therefore perceive no error on the part of the district court in allowing the testimony.
Moreover, Rudin's counsel, Thomas Pitaro, cross-examined Perkins extensively on the use of
a demo program rather than the original program and on the failure of Perkins's laboratory to
test the program. The jury therefore was presented with reasons to either accept or reject
Perkins's opinions which were formed by reference to the demo version of the blood splatter
software program.
Rudin contends that it was unreasonable for Perkins to consult with other experts or
retrieve information from the Internet. Rudin offers no basis for this claim. While Perkins
may have consulted literature available through the Internet and with other experts, Perkins
also relied on his observations from other crime scenes, and conducted experiments as to
several causes of the blood splatter pattern before reaching a conclusion. All such
consultations on Perkins's part are permitted pursuant to NRS 50.285(1). Accordingly,
Rudin's argument is without merit. We conclude that the district court acted within its
discretion when it admitted Perkins's expert opinions.
Prosecutorial misconduct
[Headnotes 3-5]
Second, Rudin contends that she was deprived of her right to a fair trial as a result of
prosecutorial misconduct. In determining whether prosecutorial misconduct has deprived a
defendant of a fair trial, we inquire as to whether the prosecutor's statements so infected the
proceedings with unfairness as to make the results a denial of due process.
8
Furthermore, a
defendant is entitled to a fair trial, not a perfect one and, accordingly, [a] criminal
conviction is not to be lightly overturned on the basis of a prosecutor's comments
standing alone, for the statements or conduct must be viewed in context.
____________________

6
See People v. Clark, 857 P.2d 1099, 1142 (Cal. 1993).

7
NRS 50.285(1).

8
Greene v. State, 113 Nev. 157, 169, 931 P.2d 54, 62 (1997), overruled in part on other grounds by Byford
v. State, 116 Nev. 215, 235, 994 P.2d 700, 713 (2000).
120 Nev. 121, 137 (2004) Rudin v. State
viction is not to be lightly overturned on the basis of a prosecutor's comments standing alone,
for the statements or conduct must be viewed in context.'
9
Finally, we will determine
whether any prosecutorial misconduct that did occur was harmless beyond a reasonable
doubt.
10

Rudin argues that the State engaged in misconduct by: (1) granting immunity to
Yehuda Sharon; (2) making improper comments before and during her trial; (3) sharing
information with the trustees of Ron's estate; and (4) withholding, prior to trial, the statements
that Donald Shaupeter made to the police.
[Headnotes 6, 7]
First, while Rudin charges that the State improperly coerced Sharon's testimony, there
is no evidence of coercion in the record. Rudin also contends that the State engaged in
misconduct when it granted Sharon immunity. The granting of immunity is traditionally a
function of the prosecution . . . .
11
Upon the State's motion, NRS 178.572 empowers the
district court with discretion to grant a witness immunity.
12
Although in some
circumstances, a prosecutor's failure to grant use immunity to a defendant's witness may
constitute prosecutorial misconduct,
13
Rudin has failed to explain how the State's grant of
immunity to Sharon unfairly prejudiced her defense. More to the point, we find no prejudice
to Rudin flowing from the State's grant of immunity to Sharon given that he denied any
personal wrongdoing and he also refused to implicate Rudin in Ron's death.
[Headnotes 8, 9]
Finally, Rudin argues that the State took inconsistent positions when, during the grand
jury proceedings, Assistant District Attorney Charles Thompson stated that the State knew
that Sharon did not kill Ron but then, at trial, proceeded to prosecute Rudin on a theory that
Sharon aided and abetted Rudin in killing Ron. The district attorney's statement during grand
jury proceedings and the State's theory at trial that Sharon aided and abetted Rudin in
killing Ron are not entirely inconsistent.
____________________

9
Id. (quoting United States v. Young, 470 U.S. 1, 11 (1985)).

10
Witherow v. State, 104 Nev. 721, 724, 765 P.2d 1153, 1155 (1988).

11
McCabe v. State, 98 Nev. 604, 606, 655 P.2d 536, 537 (1982).

12
Id. NRS 178.572(1) provides that the court on motion of the State may order that any material witness be
released from all liability to be prosecuted or punished on account of any testimony or other evidence he may be
required to produce.

13
Williams v. Woodford, 306 F.3d 665, 698 (9th Cir. 2002) (stating that, to demonstrate prosecutorial
misconduct, the defendant must show that the prosecution intentionally caused a defense witness to invoke the
Fifth Amendment right against self-incrimination, or that the prosecution granted immunity to a government
witness in order to obtain that witness's testimony, but denied immunity to a defense witness whose testimony
would have directly contradicted that of the government witness).
120 Nev. 121, 138 (2004) Rudin v. State
State's theory at trial that Sharon aided and abetted Rudin in killing Ron are not entirely
inconsistent. The State informed the jury that Sharon had been granted immunity and that the
State believed that Sharon was Rudin's accomplice. Rudin also argues that, during trial, the
district court erred when it characterized the district attorney's prior statement concerning
Sharon as hearsay and, therefore, inadmissible. The statement of an attorney is not evidence,
14
nor is it admissible against the government as a party admission.
15
Rudin provides no
support for her contention that the district court should have admitted the attorney's statement
as evidence. Accordingly, Rudin's argument on this matter is without merit.
[Headnotes 10, 11]
Second, as to the State's allegedly improper comments, we conclude that the
comments did not impair Rudin's right to a fair trial. Rudin challenges the State's quotation of
a passage from her diary during the State's opening statement. The passage was written
shortly after Rudin married Ron and read as follows:
My life has always been unique, exciting, full of change, challenges and stimulus and
full of interesting casts of characters and that is okay.
It just is, and I accept that for my past, but I know that, by programming my mind, I
can now redirect any future stage plays and pick my own screen play and cast, because I
am the producer, director and star of any and all new plays on my stage called life.
I've always vaguely known these facts and lived my life accordingly, but I never
realized what controlI never realized what control I could have over every segment of
this one time stage production called Margaret's Life.
This passage was consistent with the State's theory that Rudin was controlling and
manipulative. There is nothing in the quotation that is patently, unfairly prejudicial by itself.
Similarly, Rudin's assertion that the State engaged in misconduct when it referenced the
perjury statute while questioning Rudin's nephew during the investigative grand jury
proceedings is also without merit. The State is not prohibited from reminding a witness of the
consequences of perjury during a witness's testimony, especially when a witness denies
making certain admissions attributed to him by the police.
____________________

14
County of Alameda v. Moore, 40 Cal. Rptr. 2d 18, 20 (Ct. App. 1995).

15
United States v. Kampiles, 609 F.2d 1233, 1246 (7th Cir. 1979) (holding that statements by government
employees are not admissible against the government because they are viewed as being outside the admissions
exception to the hearsay rule).
120 Nev. 121, 139 (2004) Rudin v. State
Such was the case here. Furthermore, because the State's comments were made during the
grand jury proceedings and not before the jury at Rudin's trial, the comments did not
undermine Rudin's right to a fair trial.
[Headnote 12]
Third, Rudin contends that the State committed prosecutorial misconduct when it
released the investigative files of Ron's murder to the trustees of Ron's estate. Rudin provides
no support for her contention. NRS 179A.120(1) permits the release of information to a crime
victim's relatives where that information may assist the victim in obtaining redress in a civil
action for the victim's injury or loss. In the instant case, at the request of Ron's cousin, Brenda
Woods, the State revealed to Ron's trustees only the names, addresses and investigative files
obtained through police investigation. Because the State released only limited information to
Ron's relatives that was obtained through police investigation of Ron's disappearance and not
through evidence presented at the grand jury proceedings, the State did not engage in
misconduct and Rudin's right to a fair trial was not jeopardized. Moreover, while Rudin
implies the existence of a conspiracy between the State and the trustees of Ron's estate, she
makes no specific factual allegations or arguments in support of this naked claim.
Accordingly, Rudin's arguments on this matter are without merit.
16

[Headnote 13]
Finally, while the State acted improperly in failing to disclose to Rudin's counsel the
statements of Donald Shaupeter,
17
we note that this matter was appropriately addressed by
the district court and that Rudin was permitted to remedy the State's improper act by
reopening her case and presenting Shaupeter's testimony to the jury. Moreover, the district
court permitted Rudin to let the jury know that the State had failed to provide this evidence to
the defense. Since Shaupeter's testimony and the State's misconduct were presented to the
jury, we conclude that any error that occurred as a result of the State's Brady violation was
harmless.
18

____________________

16
See Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984) (holding that mere naked'
allegations will not support a claim for relief).

17
See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the State must disclose evidence favorable to
the defense if the evidence is material either to guilt or to punishment); Lay v. State, 116 Nev. 1185, 1194, 14
P.3d 1256, 1262 (2000) (holding that a prosecutor is obligated to disclose evidence that is favorable to the
defense as long as the evidence is material to guilt or punishment).

18
See Jones v. State, 113 Nev. 454, 471, 937 P.2d 55, 65-66 (1997) (holding that if a Brady violation had
occurred, the alleged error was harmless because the substance of the withheld statements reached the jury).
120 Nev. 121, 140 (2004) Rudin v. State
Judicial misconduct
[Headnote 14]
Next, Rudin contends that she was deprived of her right to a fair trial as a result of the
district court's alleged judicial misconduct. In Oade v. State, we noted that the words and
actions of the trial judge are likely to shape the opinion of the jury members to the extent that
one party may be prejudiced.
19
While the district court must protect the defendant's right to a
fair trial, [a] trial judge is charged with providing order and decorum in trial proceedings,
20
and must also concern itself with the flow of trial and protecting witnesses.
21

[Headnotes 15, 16]
Rudin asserts that her right to a fair trial was undermined by repeated instances of
judicial misconduct, including: (1) judicial comments made before and during her trial that
belittled her attorney, Michael Amador; (2) ex parte conversations; and (3) improper conduct
in connection with the hearing on her motion for a new trial. First, we conclude that the
majority of the district court's admonishments of Amador did not amount to misconduct
because they were made in the appropriate interests of controlling the flow of the
proceedings, saving time and avoiding confusion.
22
Moreover, the record reflects that
Amador repeatedly attempted, inappropriately so, to argue the facts of the case both during
jury selection and his opening statement. Consequently, the district court was placed by
Amador in the position of balancing the need to admonish Amador with the need to protect
Rudin's right to a fair trial.
____________________

19
114 Nev. 619, 623, 960 P.2d 336, 339 (1998) (concluding that, viewed in the entirety, the district court
remarks to defense counsel may have had a prejudicial impact on the verdict); cf. Randolph v. State, 117 Nev.
970, 985, 36 P.3d 424, 434 (2001) (concluding that, where the district court's expressions of annoyance with
defense counsel in front of the jury numbered only two and were not extreme, the defendant was not
prejudiced).

20
Parodi v. Washoe Medical Ctr., 111 Nev. 365, 367, 892 P.2d 588, 589 (1995).

21
See Robins v. State, 106 Nev. 611, 624, 798 P.2d 558, 566-67 (1990) (concluding that the trial judge was
appropriately controlling the flow of the trial without prejudice to the defendant when it admonished counsel);
NRS 50.115(1)(c) (providing that a judge must exercise reasonable control over the mode and order of
interrogating witnesses . . . [t]o protect witnesses from undue harassment or embarrassment).

22
See Leonard v. State, 114 Nev. 1196, 1211, 969 P.2d 288, 298 (1998) (holding that a defendant was not
deprived of his right to a fair trial when the district court admonished defense counsel to quit wasting time by
individually greeting each juror during jury selection); Robins, 106 at 624, 798 P.2d at 566-67 (holding that a
district court's admonishment directing defense counsel to quit confusing a juror and move on was appropriate in
the interest of controlling the flow of the trial).
120 Nev. 121, 141 (2004) Rudin v. State
Rudin's right to a fair trial. Despite this difficulty, none of the district court's comments reflect
any animus towards Amador; rather, the comments reveal the district court's concern for the
orderly process of the trial. The district court, time and again, admonished Amador to refrain
from unnecessary deviations from the path of the proceedings and encouraged Amador to
return to and remain on point. As to the remaining remarks, while the district court made
inappropriate references to past trial experiences that may have suggested the district court's
opinion concerning the case, the district court also gave a standard instruction cautioning the
jury not to take any comments by the court as an expression of opinion. Given the instruction,
the infrequent nature of these comments and the evidence, we conclude that any improper
remarks by the district court did not prejudice Rudin's right to a fair trial.
[Headnotes 17, 18]
Second, we conclude that the district court's alleged improper ex parte conversations
were not improper. While the district court did have ex parte conversations with Rudin and
with a juror, Canon 3 of Nevada's Code of Judicial Conduct specifically permits ex parte
contacts when a judge reasonably believes that no party will gain a procedural or tactical
advantage as a result of the ex parte communication, and the judge promptly notifies the
parties of the substance of the ex parte communication and allows an opportunity to
respond.
23
Here, the district court's meeting with Rudin was initiated by the defense, placed
on the record and followed by lengthy discussions with counsel for both parties. Nothing in
the record suggests that either side was likely to gain an advantage as a result of Rudin's
meeting with the district court. Similarly, the district court recorded its discussion with Juror
Eleven and immediately disclosed the substance of the conversation to counsel for both
parties, who offered no objections and no further comment on the matter. Moreover, there is
no indication that Rudin was prejudiced by the district court's conversation with the juror
because the district court decided not to discharge the juror who, we observe, apparently was
the only juror favoring a not guilty verdict at that time.
[Headnotes 19, 20]
Third, the district court did not act improperly in connection with Rudin's motion for a
new trial. Rudin argues that the district court abused its discretion by limiting argument on
her motion for a new trial, but a district court exercises discretion when considering a motion
for new trial.
____________________

23
NCJC Canon 3B(7)(a)(i) & (ii).
120 Nev. 121, 142 (2004) Rudin v. State
ering a motion for new trial.
24
Here, the district court properly exercised its discretion by
considering the parties' briefs and requesting additional oral argument on the issues that the
district court believed had arguable merit. Contrary to Rudin's assertions, no facts exist in the
record to suggest that the district court's decision was colored by bias or a lack of impartiality.
Since it is Rudin's burden to set forth such facts,
25
her naked allegations are without merit.
26
Similarly, apart from Rudin's naked allegation that the district court was attempting to
undermine her defense, nothing is pointed to in the record to suggest that the district court
acted improperly when it persuaded her former trial attorney to represent her at her sentencing
on a pro bono basis. Accordingly, Rudin's bare allegations on this matter are also without
merit.
March 15th motion for mistrial
[Headnotes 21, 22]
Rudin contends that the district court erred in applying the manifest necessity standard
to her March 15, 2001, motion for mistrial based on Amador's alleged lack of preparation.
We agree, but we conclude that the district court nonetheless reached the correct result in
denying Rudin's motion.
[Headnotes 23-26]
The trial court has discretion to determine whether a mistrial is warranted, and its
judgment will not be overturned absent an abuse of discretion.
27
Where the State moves for
a mistrial or the court declares a mistrial on its own motion, double jeopardy bars retrial
unless the declaration of the mistrial was dictated by manifest necessity or the ends of
justice.
28
Even in the presence of manifest necessity, where a prosecutor is responsible for
the circumstances which necessitated declaration of a mistrial, double jeopardy will prevent
retrial of the defendant.
29
A defendant's request for a mistrial, however, constitutes a clear
and deliberate election to forgo one's valued right to a trial by the first jury.
____________________

24
See Steese v. State, 114 Nev. 479, 490, 960 P.2d 321, 328 (1998).

25
See Hogan v. Warden, 112 Nev. 553, 560, 916 P.2d 805, 809 (1996) (noting that judges are presumed to
be unbiased and that a party seeking to establish bias has the burden of setting forth sufficient facts that
demonstrate bias or the appearance thereof).

26
See Hargrove, 100 Nev. at 502, 686 P.2d at 225 (holding that mere naked' allegations will not support
a claim for relief).

27
Meegan v. State, 114 Nev. 1150, 1155, 968 P.2d 292, 295 (1998), modified on other grounds by Vanisi v.
State, 117 Nev. 330, 341, 22 P.3d 1164, 1172 (2001).

28
Hylton v. District Court, 103 Nev. 418, 422, 743 P.2d 622, 625 (1987).

29
Id. at 423, 426, 743 P.2d at 625, 627 (concluding that the prosecutor did not prevent the circumstances
for a mistrial from occurring, when the prosecutor had adequate notice that a mistrial was likely to occur and
when the
120 Nev. 121, 143 (2004) Rudin v. State
trial, however, constitutes a clear and deliberate election to forgo one's valued right to a trial
by the first jury.
30
Thus, the manifest necessity standard generally does not apply to a
defense motion for a mistrial.
31
We therefore conclude that the district court erred to the
extent that it used the manifest necessity standard to review Rudin's motion.
While the district court erroneously invoked the manifest necessity standard, we
conclude the district court did not err in denying the motion.
Rudin claimed Amador was inadequately prepared to handle his portion of the defense
and that Amador had not properly investigated the case. Rudin expressed no dissatisfaction
with attorney Pitaro but was concerned that neither Pitaro nor Amador would be able to
properly represent her as preparation for future witnesses and investigations were ongoing
while the trial continued. Solely for the purposes of addressing the motion for a mistrial, the
district court made a preliminary inquiry on Amador's preparedness using as a general
standard the test for ineffective assistance of counsel under the Strickland v. Washington
reasonably effective assistance test.
32
The district court concluded that, based on the
Strickland standard, Rudin had not been prejudiced by Amador's alleged lack of preparation.
33

____________________
prosecutor's office was expressly asked by the court to be forthcoming on that issue, therefore committing
inexcusable negligence and precluding further prosecution of the defendant on double jeopardy grounds).

30
United States v. Scott, 437 U.S. 82, 93 (1978); see also Melchor-Gloria v. State, 99 Nev. 174, 178, 660
P.2d 109, 112 (1983) (noting that, when the defense seeks a motion for a mistrial, an exception to the general
rule that the mistrial removes any double jeopardy bars to reprosecution arises where the prosecutor intended to
provoke a mistrial or otherwise engaged in overreaching' or harassment' ).

31
See Wheeler v. District Court, 82 Nev. 225, 229, 415 P.2d 63, 65 (1966) (requiring a finding of manifest
necessity before a mistrial may be declared, unless the defendant consents to the mistrial); see also Benson v.
State, 111 Nev. 692, 695-96, 895 P.2d 1323, 1326 (1995) (stating that, [t]he issue of consent by a defendant
arises most often when the trial court sua sponte declares a mistrial or, more rarely, . . . where the prosecution
moves for one, and that, generally, a defendant's motion for, or consent to, a mistrial removes any double
jeopardy bar to reprosecution' (quoting Melchor-Gloria, 99 Nev. at 178, 660 P.2d at 111)).

32
466 U.S. 668, 687-88 (1984) (requiring that the defendant demonstrate that her counsel's representation
fell below an objective standard of reasonableness and that counsel's performance prejudiced the defense); see
Warden v. Lyons, 100 Nev. 430, 432, 683 P.2d 504, 505 (1984) (adopting the reasonably effective assistance
test set forth in Strickland).

33
We recognize that Strickland identifies a post-conviction standard for reasonably effective assistance of
counsel. We do not intend for our remarks here to foreclose any potential post-conviction inquiries.
120 Nev. 121, 144 (2004) Rudin v. State
[Headnotes 27, 28]
A defendant's request for a mistrial may be granted for any number of reasons where
some prejudice occurs that prevents the defendant from receiving a fair trial.
34
In the case of
allegations of ineffective assistance of counsel, counsel's ineffective performance must be
so prejudicial as to be unsusceptible to neutralizing by an admonition to the jury.'
35
Therefore, Rudin must demonstrate that Amador's actions prejudiced her defense and that the
district court failed to neutralize Amador's performance to ensure a fair trial.
The record does reflect that Amador had difficulty preparing for Rudin's trial and that
the district court responded to this problem by alternatively admonishing counsel and
accommodating the defense in order to promote fairness in the proceedings. The district court
responded to both Amador's failings and the State's failings in a remedial fashion, granting all
requests short of declaring a mistrial. For instances, the district court granted the defense
extra time during the trial to prepare its case, Pitaro was given the leading role in trying the
case, John Momot was appointed as Rudin's third defense attorney, and the defense was
permitted to tell the jury about the State's Brady violation.
[Headnote 29]
Similarly, while Rudin alleges that Amador should have retained all experts prior to
trial, the record reflects Rudin was not prejudiced as a result of Amador's failure because the
defense presented several expert witnesses during its case-in-chief. A defendant is not entitled
to a perfect trial, only a fair trial.
36
We conclude the district court did not err in finding that
Rudin's right to a fair trial was not prejudiced and denying Rudin's motion for a mistrial.
Motion for new trial
[Headnote 30]
Rudin sought a new trial primarily on grounds relating to Amador's alleged
misconduct or lack of preparation.
37
Rudin contended that Amador improperly attempted
to secure media rights to Rudin's story and his actions deprived her of a fair trial.
____________________

34
See Randolph, 117 Nev. at 985, 36 P.3d at 434 (concluding that the district court's expressions of
annoyance with defense counsel in front of the jury did not prejudice the defense and were not grounds for a
mistrial); Lisle v. State, 113 Nev. 679, 699-700, 941 P.2d 459, 473 (1997) (concluding that any prejudice to
defendant as a result of the prosecutor eliciting improper testimony was cured by the trial court when it chastised
the prosecutor and ordered him to cure the improper testimony, and therefore, a mistrial is not warranted),
limited on other grounds by Middleton v. State, 114 Nev. 1089, 1117 n.9, 968 P.2d 296, 315 n.9 (1998).

35
Geiger v. State, 112 Nev. 938, 942, 920 P.2d 993, 995 (1996) (quoting Allen v. State, 99 Nev. 485, 490,
665 P.2d 238, 241 (1983)).

36
Manley v. State, 115 Nev. 114, 129, 979 P.2d 703, 712 (1999).

37
Rudin also asserted jury misconduct and judicial misconduct as grounds for a new trial. We have
considered these arguments and find them to be without merit.
120 Nev. 121, 145 (2004) Rudin v. State
tended that Amador improperly attempted to secure media rights to Rudin's story and his
actions deprived her of a fair trial. After conclusion of the trial, the State discovered, initially
through Amador's secretary, Annie Jackson, that Amador, during the course of representing
Rudin, had negotiated contracts with media enterprises concerning his involvement in the
case and his representation of Rudin. At an in-chambers hearing after Amador had been
removed as co-counsel, Jackson testified that she discovered three contracts pertaining to
literary and media rights, one with a production company for movie rights signed by
Amador's partners and Rudin, a book deal signed by Rudin, and a media release giving
Amador control over Rudin's media rights. Jackson also testified that Amador had been
writing a book during the course of trial, that he had leaked information on Rudin and had
given pictures of Rudin's family to the National Enquirer, and that Amador was affiliated
with a website that had covered Rudin's trial.
[Headnote 31]
SCR 158(4) provides that during the course of representation, a lawyer may not
negotiate agreements pertaining to literary or media rights based on representation of a client.
A presumption of prejudice arises when an actual conflict of interest adversely affects
counsel's performance.
38
The district court did not make a specific finding regarding the
truth of Jackson's allegations. Had the district court accepted the allegations as true, and if
Amador's conduct created a conflict with his client, the record is insufficient to demonstrate
that Amador's alleged conflict adversely affected his performance.
Based on the evidence presented by the defense and the cross-examination of
witnesses, the performance of attorneys Pitaro and Momot and the strength of the State's case,
the district court concluded that Amador's conduct did not prejudice Rudin's right to a fair
trial. We agree. Amador's mistakes were adequately addressed and remedied by the district
court, which also appointed additional attorneys to represent Rudin. While we do not approve
of Amador's alleged acts concerning Rudin's literary and media rights, the record is
insufficient to permit the conclusion that Amador's performance during trial was adversely
affected by this alleged conflict of interest or that his performance prejudiced Rudin's right to
a fair trial. Accordingly, we conclude that Rudin's argument is without merit and the district
court did not err in denying the motion for a new trial.
We note that the dissent concludes, based upon Amador's apparent conflict of interest,
that we are obligated to reverse and order a new trial. While we certainly share our
colleagues' concern for Amador's unprofessionalism, we reiterate our observation that
Rudin's claim concerning Amador's conflicts remains just thata claim.
____________________

38
Clark v. State, 108 Nev. 324, 326, 831 P.2d 1374, 1376 (1992).
120 Nev. 121, 146 (2004) Rudin v. State
Rudin's claim concerning Amador's conflicts remains just thata claim. The existing rule,
and the better rule, requires that this issue, along with the general issue concerning Amador's
ineffectiveness must be examined in a separate post-conviction proceeding at which time
Rudin's post-conviction attorney will examine the entire record, interview all relevant
witnesses and present the matter to the district court for a full and complete airing and
decision.
CONCLUSION
Based on the above, we conclude that Rudin's arguments are without merit and that
she was not prejudiced in her right to a fair trial. Accordingly, we affirm the judgment of
conviction.
Rose, J., with whom Maupin, J., agrees, dissenting:
I agree with the majority opinion, except I believe that a mistrial should have been
granted when it was obvious that the defense was not prepared to try the case. I also believe
that defense attorney Amador had a clear conflict of interest with his client and this too
requires reversal and a new trial.
Amador's lack of preparation and motion for mistrial
Concerns had been voiced about Amador's preparation to try this major case prior to
trial, but no one had anticipated what they would hear and see at the beginning of the trial.
Amador's voir dire was rambling, and he attempted to argue the facts of his case. The district
court judge repeatedly admonished him to stop trying to argue his case during voir dire and
warned Amador that he was going to keep a close eye on him. This was followed by an
equally prejudicial opening statement by Amador.
Amador began his opening statement by declaring: This is a great day. . . . [E]very
day . . . can be a celebration. . . . This is a great day for me. This is a culmination of a career.
He then declared that he had thrown away most of his prepared remarks and launched into a
disjointed argument that was interrupted numerous times by objections from the State, which
the district court sustained. Finally, after yet another sustained objection, the district court
judge stated to Amador:
Again, I keep saying thisand I let you get away with a lot, Mr. Amadorbut the
purpose for an opening statement is just to indicate what the evidence is going to tend
to show and not go into your personal beliefs and your passion and soccer dad and
yelling at the staff and whether you were a green lawyer and know all the cops and used
to be a D.A. and you communicate differently.
120 Nev. 121, 147 (2004) Rudin v. State
nicate differently. I never heard that in [an] opening statement in my life.
Amador also stated in his opening statement: During the course of the trial, there
may be objections and things like that. Don't worry about it. The district court judge
interrupted: I don't know what that means: Don't worry about objections. We have to do
other things. I have no idea what that means. If there's an objection, I'm either going to
overrule it or sustain it and that's the law.
The opening statement of a criminal case is extremely important in asserting a
successful defense.
1
In fact, studies have repeatedly shown that the impression a juror has
after opening statements usually carries with him or her to become the verdict in the case.
2
For that reason, by the end of opening statements, Rudin was already at a great disadvantage
even though no evidence had been presented.
Following opening statements, the State called as its first witnesses the two fishermen
who found Ron Rudin's remains at Lake Mohave, and then Rudin asked to see the district
court judge personally about her defense. The extraordinary in-chambers meeting occurred on
Monday morning, March 5, 2001, and was attended by the district court judge, his law clerk,
the court reporter, and Rudin. Rudin stated that several friends were appalled with Amador's
opening statement, and she felt that because of personal problems, Amador was not
prepared to try her case.
____________________

1
See Harvey J. Lewis, One Trial Lawyer's Perspective, 48 La. B.J. 93, 93 (2000) (noting the importance of
opening statements because studies have shown that, in four out of five cases, jurors at least tentatively decided a
case after hearing opening statements, and the jurors did not change their minds after hearing the evidence);
Thomas A. Mauet, The New World of Experts in Federal and State Courts, 25 Am. J. Trial Advoc. 223, 224
(2001) (noting that jury research shows that opening statements are very important because at this early stage of
a trial jurors are much more influenced by what lawyers tell them); Barry McNeil & Portia A. Robert, War
Story: An Interview with Judge Barefoot Sanders, 28 Litig. 43, 48 (2002) (observing that the opportunity to give
the jury the right impression of a case comes with the opening statement); Matthew J. O'Connor & Nicholas B.
Schopp, Opening Statement Restriction Lifted? Are the Scales of Justice Tipping Back to Even After State v.
Thompson?, 58 J. Mo. B. 35, 36 (2002) (The profound impact of opening statements in a criminal trial is
without dispute.); Shari Seidman Diamond, Scientific Jury Selection: What Social Scientists Know and Do Not
Know, 73 Judicature 178, 182-83 (1989/1990) (noting that [t]he structure provided in opening statements helps
the jury organize the evidence and guides the jury's thinking during the trial).

2
See Harry Kalven, Jr. & Hans Zeisel, The American Jury, 23 Am. J. Trial Advoc. 203, 203 (1999)
(observing that studies have shown that 80 percent of jurors make up their minds after opening statements); see
also James W. Quinn, The Mega-Case Marathon, 26 Litig. 16, 20 (2000) (Most experts agree that the jurors'
first impressions from opening statement can be powerful influences at the end of the case.).
120 Nev. 121, 148 (2004) Rudin v. State
problems, Amador was not prepared to try her case. The district court judge indicated that he
would not comment on Amador's opening statement but did admit that he did not interrupt
Amador as often as he probably should have because he was concerned about it reflecting
adversely on her. Sadly, it already had. She indicated that she did not want a mistrial, but
wished that Pitaro would take a more active role in the case. Pitaro had been appointed
shortly before trial to assist Amador with expert witness testimony so that a continuance
would not be necessary. The district court judge indicated that he recently gave her attorneys
permission to retain experts, and Rudin asked about her lay witnesses for trial. Rudin
commented, We haven't even subpoenaed my witnesses yet. And I'm getting so nervous. I
mean, I'm getting panicky. The district court judge indicated that reasonable funds would be
provided to subpoena her witnesses, and her attorneys then joined the conference.
Amador confirmed that he had substantial personal problems culminating when his
wife and mother-in-law, who were his secretary and legal assistant, walked out of his office
one month prior to trial and never came back. The district court judge then admonished
Amador that the case was not about him, although that was all he had heard about in the
pretrial motions and the opening statement. He also indicated that he had not been in favor of
Amador doing this case pro bono, and that the case must be about giving Rudin a fair trial.
Pitaro indicated that he was willing to assume a greater role in the trial, but warned the
district court judge that he and the investigators had not had a chance to review voluminous
files and financial records.
The prosecutors then joined the conference and were informed that Rudin wanted
Pitaro to assume a more active role in the case. The district court judge commented that he
was inclined to permit this to avoid a mistrial. The State was rightfully concerned that it had
not been a party to the important discussion that had just occurred, and then asked if Pitaro
could be ready to take an expanded role in the trial if the trial was continued a few days.
Pitaro indicated that he would do the best he could since the district court judge had indicated
the trial was going forward, but he did not know if he could be prepared to conduct a majority
of the rest of the trial. He unequivocally stated that he was not prepared to try the case at that
time.
The State was clearly worried about the lack of preparation by the defense team.
Already we have an appellate issue now, should they have hired a forensic accountant. And I
mean they came into this thing hiring their experts two weeks before the trial and they didn't
start looking at the evidence until the day of trial. Two days into it, we still don't have reports
back for most of them. And a little later, one prosecutor stated: "Mr.
120 Nev. 121, 149 (2004) Rudin v. State
little later, one prosecutor stated: Mr. Pitaro is coming in now, he's going to try to read the
stuff and catch up. He already feels there's certain things that should have happened that
didn't happen. . . . All I can say is we're really uncomfortable with the record here. The
district court judge opined that there was an insufficient showing of manifest necessity to
justify a mistrial.
The trial proceeded and the State called Dona Cantrell, Rudin's sister. Cantrell was
extremely important to the State's case because she had been a confidant of Rudin's and in
close physical proximity to Rudin during the days surrounding Ron Rudin's disappearance.
Cantrell told of the secret electronic device Rudin had installed in her husband's office, that
she and Rudin had entered Ron Rudin's office after his disappearance to secure some of his
financial and business documents, and of statements Rudin made indicating that she had
some knowledge of why her husband had disappeared. With only a circumstantial case facing
Rudin, diminishing Cantrell's testimony was critical to the defense, yet Amador was
unprepared to do this on cross-examination. In fact, Amador only asked Cantrell six
questions.
The State continued to present its case and it became obvious to Pitaro that the lack of
preparation made it impossible to adequately represent Rudin as lead counsel. On March 15,
2001, Rudin requested a mistrial asserting that Amador was not prepared to continue with the
case, which he admitted, and that Pitaro had joined the defense team too late to remedy the
situation. Amador admitted his opening statement was inadequate and that he could barely
keep his eyes open after giving his opening statement. He further admitted that he could have
done a better job interviewing and investigating the State's witnesses, and consulting with and
retaining expert witnesses. Pitaro agreed that the defense's case was not ready for trial and
concurred that Amador should never have agreed to try the case. Pitaro declared at the
hearing on the motion:
The fundamental problem that we have is this case is not ready to go to trial. For
whatever reason it's not ready, it's not ready. That's obvious to any observer of this case,
that for the first two weeks this is not the way you try cases and this is not the way you
try murder cases. . . . And what we are putting on in front of the world is a farce, and
that disturbs me as an attorney. . . . [T]his has become a sham, a farce and a mockery. . .
.
The State again expressed concerns about the state of the record, and the
representation that Rudin had received. But, it was the State that then led the district court to
make a critical legal error. The district court was led to believe that in order to avoid any
problem with double jeopardy attaching, Rudin had to show that declaring a mistrial was
a manifest necessity.
120 Nev. 121, 150 (2004) Rudin v. State
problem with double jeopardy attaching, Rudin had to show that declaring a mistrial was a
manifest necessity. The defense motion for a mistrial was denied because the district court
found that Rudin had not shown sufficient prejudice to establish manifest necessity.
However, a showing of manifest necessity is not required when a defendant moves for a
mistrial because double jeopardy does not attach.
3
In such a situation as Rudin presented, it
was within the district court's discretion to grant a mistrial if a fair trial could not be had.
4
Thus, the district court applied an incorrect legal standard when it denied Rudin's motion for
a mistrial.
Further, the district court prematurely used the Strickland v. Washington
5
standard to
judge the ineffectiveness of Amador; this standard is inapplicable during trial. Strickland
requires that before relief can be given, it must be shown that an attorney was deficient, and
that the result of the trial would probably have been different but for counsel's deficient
performance.
6
At this early stage of the trial, there was abundant evidence that Amador's
performance was substandard, but there was no result to assess. Therefore, the application of
the Strickland standard to this situation was another legal error made by the district court,
which the majority opinion seems to repeat. The district court was simply called upon to
determine, in its discretion, whether Rudin had been prejudiced by Amador's performance
and lack of preparation to a point where a fair trial could not be had.
If this case had been a professional prizefight, they would have stopped the contest.
Yet, the district court continued with the case and required an unprepared defense to soldier
on, investigating as the case was being presented. As investigator Tom Dillard, a former
detective for the Las Vegas Metropolitan Police Department, stated: I can say without
hesitation that we . . . literally prepared the defense for the case hour by hour and day by day.
When the defense complained that it was impossible to do the investigation while the
case was in progress, the district court appointed yet another attorney to the defense
team.
____________________

3
See Benson v. State, 111 Nev. 692, 695-96, 895 P.2d 1323, 1326 (1995) (observing that a defendant's
motion for, or consent to, a mistrial removes any double jeopardy bar to reprosecution unless the prosecutor
intended to provoke a mistrial); see also United States v. Pollack, 640 F.2d 1153, 1155 (10th Cir. 1981) (noting
that the general rule is that when a defendant in a criminal proceeding moves for a mistrial, he thereby consents
to retrial).

4
See Mortensen v. State, 115 Nev. 273, 281, 986 P.2d 1105, 1111 (1999) (noting that reversal is warranted
because the district court abused its discretion in denying a motion for a mistrial); see also People v. Silva, 21
P.3d 769, 788 (Cal. 2001) (observing that a district court should grant a mistrial when a defendant's chances of
having a fair trial have been irreparably damaged); Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App.
1996) (noting that a mistrial may be granted when prejudicial events occur during the trial process).

5
466 U.S. 668 (1984).

6
Doyle v. State, 116 Nev. 148, 154, 995 P.2d 465, 469 (2000) (citing Strickland, 466 U.S. at 687-88, 694).
120 Nev. 121, 151 (2004) Rudin v. State
defense complained that it was impossible to do the investigation while the case was in
progress, the district court appointed yet another attorney to the defense team.
Reaching the conclusion that Amador was totally unprepared to try this case did not
require any advanced legal trainingit was obvious to all. Columnist John L. Smith stated it
this way:
It was agonizing to watch.
Anyone who has felt compassion for an animal caught in a steel trap can empathize
with the painful predicament defense attorney Michael Amador found himself in
Thursday afternoon in District Judge Joseph Bonaventure's courtroom.
Metaphorically speaking, Amador was attempting to chew off his paw to escape the
trap that is the Margaret Rudin murder trial. It's a trap he had set for himself. Rudin is
accused of the December 1994 murder of her husband, real estate developer Ron Rudin.
Amador tried in the most tactful language he could muster to admit to the court that he
was hopelessly in over his head and needed Bonaventure to grant a mistrial. Courtroom
observers had seen that day coming for weeks.
Amador, once a top local prosecutor and more recently a successful defense lawyer,
appeared overwhelmed by this case, which he accepted without the usual fee
arrangement. Some of his motions to the court were riddled with typographical errors
and confusing digressions. Some of his rhetoric wandered so far off point that earlier
last week Bonaventure finally lost his patience. When Amador wasn't frustrating the
judge, he was falsely accusing a prosecutor of lying.
In an effort to protect Rudin's rights to a fair trial, a few weeks ago Bonaventure
persuaded respected criminal attorney Tom Pitaro to join Amador on the defense.
Private investigators Michael Wysocki and Tom Dillard were hired, but it was way too
late.
During trial, the attorneys had met with Bonaventure more than once to discuss
Amador's preparedness and presentation. By Wednesday, Rudin had finally heard
enough and wanted to make a change.
It was, after all, her name on the criminal docket.
Bonaventure didn't allow Amador to exit gracefully.
Do you know how much money was expended in this case, the thousands upon
thousands of dollars? Bonaventure asked. Now, all of a sudden, we have three
weeksor nine days of testimony, your client says: I want a mistrial.' And you say:
120 Nev. 121, 152 (2004) Rudin v. State
I've been doing good thus far, but I want a mistrial. I'm not prepared.'
7

No defense of an open charge of murder should be required to investigate, prepare for,
and try the case all at the same time. Basic considerations of fair play and due process require
that every defendant charged with a serious crime be provided a competent attorney who is
given sufficient time to prepare the defense.
8
When it became obvious that the defense was
not ready for trial and Rudin could not receive a fair trial, the district court judge should have
heeded the concerns of both the State and defense counsel and granted a mistrial. The
application of the wrong legal standards prevented the district court judge from doing so, and
perhaps the concerns over wasted effort and the termination of the nationally broadcasted
Court TV program were also factors. But, with this said, I do recognize and appreciate the
impossible situation in which the district judge was placed due to Amador's conduct. The
district court judge did all he could to attempt to salvage the trial and still provide an adequate
defense for Rudin. Unfortunately, the harm had already been done and this trial was not
salvageable.
The jury deliberated seven days before returning a verdict of first-degree murder.
Shortly after the verdict, a juror held an impromptu press conference on the courthouse steps
and repeated the words Amador used in his opening statement: In his opening remarks . . .
Amador said, This is a great day.' I submit to you that today . . . is a great day. Ronald Rudin,
his family and the people of the great state of Nevada can [take] comfort in the fact that
justice was served today. There can be no doubt that Amador's opening statement prejudiced
the defense, and it remained with the jury until the end of the trial.
Motion for new trial and Amador's conflict of interest
Following Rudin's trial, the defense team filed a motion for a new trial and a fuller
picture of Amador's failure to prepare this case emerged. Amador had sought the appointment
to defend Rudin without pay, pro bono, believing it would be the big case he needed to boost
his legal career. He told numerous people that this was his big break, and he even repeated
this in his opening statement.
____________________

7
John L. Smith, Attempt at a Graceful Exit from the Rudin Trial Painful to Watch, Las Vegas Review
Journal, Mar. 18, 2001.

8
See Young v. District Court, 107 Nev. 642, 649, 818 P.2d 844, 848 (1991) (Defense counsel assumes a
vital role in the preservation of a constitutional system of criminal justice that guarantees fundamental fairness to
defendants who stand in jeopardy of losing life, liberty or property.); see also Brescia v. New Jersey, 417 U.S.
921, 924 (1974) (Marshall, J., dissenting from denial of certiorari) (observing that opportunity for adequate
preparation is an absolute prerequisite for defense counsel to fulfill his constitutionally assigned role of seeing to
it that the State proves its case and raising any available defenses).
120 Nev. 121, 153 (2004) Rudin v. State
was his big break, and he even repeated this in his opening statement. He agreed to defend
Rudin in the criminal proceeding, and at the same time, filed a lawsuit on behalf of Rudin to
cancel an agreement Rudin allegedly made with an individual to write a book about the
murder case. When the district attorney's office heard rumors that Rudin and Amador might
be receiving media income from the case and that Rudin was not truly indigent, it brought
this information to the district court's attention. At the informal hearing in chambers on
March 5, 2001, Amador and Rudin assured the district court that there was no such income
being received. The district court judge seemed less concerned about the potential conflict of
interest that might be present if Amador was involved in a book deal, and more concerned
with whether anyone was receiving money from a book deal. Indeed, the district court judge
instructed Amador to inform him if Rudin received any money from a book deal.
Amador apparently did little work on the case during the months after his
appointment, except to create a website to broadcast the daily events of the upcoming trial,
and then in November 2000, he left for a one-month European vacation. A new office
assistant named Annie Jackson arrived about that time, and when Amador returned, he
instructed Jackson to put the volumes of materials the office had received about the Rudin
case in binders. It was her firm belief that Amador had not reviewed these voluminous files,
and Pitaro expressed the same feeling about the materials during trial. Additionally, review of
the records by Pitaro and the investigators became more difficult when Amador took many of
the volumes of material with him when he checked into the 4 Queens Hotel at the beginning
of trial. Besides performing little or no review of the voluminous documents, when Rudin
was transported to Amador's office for the purpose of preparing her defense, no preparation
occurred. According to Jackson:
The first time Margaret was transported to the office, Mr. Amador ordered a bunch of
food. Tom Pitaro came over and a writer from New York by the name of John Connelly
was also there. It was just a social gathering. No work whatsoever with respect to the
defense of the case was performed.
I later learned John Connelly writes for the National Enquirer, and had done an article
on Margaret Rudin back in December. This article had been done through Michael
Amador's connection with Mr. Connelly. I also learned that Michael Amador had some
sort of an affiliation with WeaselSearch.com, which is the website that covered the
entire trial.
The second week that Margaret Rudin was transported to our offices, 48 Hours was
there and all their cameras were rolling.
120 Nev. 121, 154 (2004) Rudin v. State
rolling. Nothing was accomplished with respect to preparing for the trial. 48 Hours was
interviewing Margaret Rudin the entire time.
Ms. Rudin expressed her displeasure on the second occasion, as she wanted us to start
working on her case. Mr. Amador kept telling Margaret that they would get to her case
the next week.
As I recall, the third week Margaret was transported to our offices, Mr. Amador had
arranged for a gentleman to come over to dye Margaret's hair, cut it, and do her
make-up. This was, without exaggerating, another insane free for all. Again, 48 Hours
was there and Mr. Amador appeared, at least to me, more concerned with the media
attention than with adequate preparation of Margaret Rudin's case.
Jackson also elaborated on Amador's personal problems. She confirmed that his wife and
mother-in-law left the office a month before trial and that Amador then stopped coming to the
office and apparently began cavorting with other women. Jackson explained:
Mr. Amador spent most of his evenings at strip bars, and in the company of strippers. In
fact, on many occasions, he bragged about the many strippers he was dating. Worse, the
strippers were calling and even coming over to the office during business hours when I
was there. I personally recall one occasion when Mr. Amador even allowed one such
stripper to go through and separate Margaret Rudin's documents.
Jackson indicated that while preparing for trial, she saw several media rights
agreements signed by Rudin, giving all media rights to Amador. In her testimony, Jackson
stated that the day Amador was fired and returned to the office, he demanded that Jackson get
the media contracts and put them in the safe. She indicated that she had seen the three book
and media contracts between Rudin and Amador, but that Amador eventually took them.
With regard to Amador denying that he had media contracts with Rudin, Jackson said that
was a lie:
There is no other way to say the following: when Mr. Amador told the court that he
did not have any book or movie contracts, he was lying. Michael Amador does have
book contracts and movie contracts regarding the Margaret Rudin case. When we
returned to the office after Mr. Amador made those false representations to the court, he
asked me to grab all of the contracts so that he could put them in his little safe in the
back closet. He told me, I don't want anyone to find out that I have these, then I'm sure
they'll be investigating and looking for these.
120 Nev. 121, 155 (2004) Rudin v. State
After hearing Jackson's testimony, the district court should have been convinced of
the need for a new trial. The evidence certainly indicated that Amador secured media rights
while representing Rudin, which was a violation of the Nevada Rules of Professional
Conduct.
9
Amador was clearly more interested in obtaining information for his book and
getting media attention than in developing Rudin's defense. In fact, Jackson testified that
Amador did not turn over several of Rudin's files, containing diaries, witness statements, and
pictures, to the public defender's office because he thought he might need the information in
the future. Amador's behavior made it virtually impossible for Rudin to receive a fair trial,
even with the addition of Pitaro to the defense team.
The effort Amador put into this case was largely driven by his desire for publicity and
future media revenues. Doing this case pro bono put a serious economic strain on his solo law
practice and most of his staff left the month before trial. Amador's personal life was in
shambles, and it appears as if he was having a major mid-life crisis. All of these problems
became Rudin's problems, as was so painfully shown at trial.
This court has held that a defendant is entitled to legal representation free from any
conflict of interest with his or her attorney.
10
The majority correctly notes that Amador had a
conflict of interest in this case, but then arrives at the surprising conclusion that the record
shows that Rudin was adequately represented. Coupling the inherent prejudice created by
being represented by an attorney with a conflict, along with the patent failures to prepare for a
major murder case, failures which were very obvious as the trial proceeded, I can come to no
other conclusion but that the prejudice was substantial and ongoing. The appropriate
conclusion should be similar to the one reached in Clark v. State, cited by the majority with
approval, which states that an attorney's actual and substantial conflict of interest requires a
reversal of the conviction and a new trial.
11

The majority opinion indicates that the defense team was able to provide Rudin with
the basics at trial, and that is true. The defense did make an opening statement, cross-examine
witnesses, call witnesses on Rudin's behalf, and make a final argument, but there was no way
the defense could overcome the prejudice created by Amador in the early stages of the
trial.
____________________

9
See SCR 158(4) (Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate
an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on
information relating to representation.); see also Model Rules of Prof'l Conduct R. 1.8 cmt. 3 (1998) (observing
that an agreement by which a lawyer acquires literary or media rights concerning the conduct of the
representation creates a conflict between the client's interests and lawyer's personal interests).

10
Coleman v. State, 109 Nev. 1, 3, 846 P.2d 276, 277 (1993).

11
108 Nev. 324, 326, 831 P.3d 1374, 1376 (1992).
120 Nev. 121, 156 (2004) Rudin v. State
was no way the defense could overcome the prejudice created by Amador in the early stages
of the trial. The fact that a defendant's attorney is participating in every aspect of the trial does
not necessarily mean that the representation is adequate.
In fact, it was not until during the trial that two important facts were discovered by the
defense team that countered two key points asserted by the State early in the trial. The State
presented evidence that a large trunk that Rudin possessed had been purchased from a
specific dealer and was missing from her antique shop after Ron's disappearancethe
inference being that Ron was carted off by Rudin in the trunk. The State also made much of
the fact that Rudin did not report Ron's disappearance and took no action to discover his
whereabouts when he disappeared. These two points were driven home by the State early in
the trial, and along with the other inculpating evidence, provided great momentum for the
State's case. Sometime during the trial, the defense team located the person who sold the
trunk to Rudin and established that it was not a large humpback trunk, but one that was much
too small to fit a corpse inside. The defense also located Barbara Orcutt, who indicated that
Rudin was indeed concerned about Ron's disappearance and had asked her right after his
disappearance to organize a search in the Mt. Charleston area, where she believed Ron might
have been. The State apparently had this information, but did not share it with the defense.
Toward the end of trial, this newly discovered evidence was brought to the district
court's attention, and the defense was permitted to present it. Once again, Rudin's defense was
put in a position of finding important evidence after the trial began and then belatedly
presenting it to the jury. It is unrealistic to think that the jurors could have put out of their
minds all the evidence and adverse events, including the continual admonishment of defense
counsel by the district court judge; the bizarre opening statement; the constant continuances
and delays throughout the trial, which I am sure were held against the defense; and the
belated presentation of important evidence. These harmful events resulted from Amador's
conflict of interest and lack of preparation and now require reversal of this case.
CONCLUSION
I believe there is sufficient evidence in the record, without the necessity of post-trial
proceedings, to establish that the defense was totally unprepared to try this case and that
Amador had a substantial conflict of interest with his client. This was prejudicial to Rudin,
and the result reached was unreliable.
In closing, I would like to observe that the practice of a district court judge meeting
with a defendant without her attorneys being present is a dangerous one. The first meeting the
district court judge had with Rudin is a good example.
120 Nev. 121, 157 (2004) Rudin v. State
judge had with Rudin is a good example. The district court judge asked Rudin if she wanted a
mistrial, and she said no in large part because she was afraid of being reassigned to the public
defender's office. But this decision should be made by a client after consultation with a
conflict-free attorney. Rudin also expressed concern that several favorable witnesses residing
in Mexico had not been subpoenaed, to which the district court judge responded that he had
not been contacted about expenses for lay witnesses, but would consider a reasonable request
for such expenses. Again, a conversation best conducted with her attorneys present. A judge
should only meet with a defendant without attorneys present in rare situations where an
emergency is presented.
12
Compliance with this rule should be scrupulously observed.
For the reasons expressed, I would reverse Rudin's conviction and remand the case for
a new trial.
____________
120 Nev. 157, 157 (2004) Matter of Guardianship of L.S. & H.S.
In the Matter of the Guardianship of L.S. and H.S.,
Minor Wards.
JASON S. and REBECCA S., Appellants, v. VALLEY HOSPITAL MEDICAL CENTER
and MICHELE NICHOLS, R.N., Respondents.
No. 38242
April 6, 2004 87 P.3d 521
Appeal from an order appointing respondents as temporary guardians of appellants'
minor child. Eighth Judicial District Court, Family Court Division, Clark County; Gerald W.
Hardcastle, Judge.
Hospital petitioned for temporary guardianship of parents' minor children on an
emergency basis for the purpose of administering blood transfusion and other medical care as
deemed necessary by the hospital. The district court appointed hospital and its administrator
as temporary guardians of one child. Parents appealed. The supreme court held that: (1)
situation was appropriately addressed under temporary guardianship statute, instead of child
neglect statute; and (2) as a matter of first impression, parents' substantive due process rights
were not violated.
Affirmed.
Neeman, Mills & Palacios, Ltd., and Eric O. Palacios, Las Vegas; Donald T. Ridley,
Pawling, New York, for Appellants.
____________________

12
NCJC Canon 3B(7)(a) (stating that [w]here circumstances require, ex parte communications for . . .
emergencies . . . are authorized).
Earley Savage and Nancy D. Savage and Kenneth M. Webster, Las Vegas, for
Respondents.
Jerry H. Mowbray, Reno, for Amicus Curiae Christian Congregation of Jehovah's
Witnesses.
1. Guardian and Ward.
Issues presented on appeal from district court order appointing hospital and its
administrator temporary guardians of parents' minor child were capable of repetition,
yet evaded review, and so were within the exception to the mootness doctrine; it was an
entirely reasonable prospect that parents or hospital would be confronted with the same
issue or injury again, and temporary guardianships and medical emergencies are
typically of short duration, expiring prior to the issues being fully litigated.
2. Guardian and Ward; Health; Infants.
Situation in which parents' minor child required necessary medical treatment and the
parents opposed such treatment was appropriately addressed under temporary
guardianship statute, instead of child neglect statute; only issue was parents' inability to
consent to blood transfusions for their minor child based upon their religion, and
investigation into possible neglect by parents would have intruded unnecessarily into
their personal lives. NRS 159.052, 432B.140.
3. Guardian and Ward.
Absent a showing of abuse, supreme court will not disturb the district court's exercise
of discretion concerning guardianship determinations. However, the court must be
satisfied that the district court's decision was based upon appropriate reasons.
4. Constitutional Law; Guardian and Ward; Health.
As a matter of first impression, parents' substantive due process rights were not
violated when district court awarded temporary guardianship of their minor child to
hospital and its administrator for the purpose of administering blood transfusion to
child, despite parents' religious convictions opposing such medical procedures; parents'
refusal to consent to treatment put child's life at substantial risk, and State had interest
in protecting the ethical integrity of the medical profession. U.S. Const. amend. 14;
NRS 159.052.
Substantive due process guarantees that no person shall be deprived of life, liberty, or
property for arbitrary reasons. U.S. Const. amend. 14.
Due Process Clause of the Fourteenth Amendment protects those liberty interests that
are deemed fundamental and are deeply rooted in the United State's history and
tradition. U.S. Const. amend. 14.
While a parent has a fundamental liberty interest in the care, custody, and
management of his child, that interest is not absolute.
8. Infants.
State has an interest in the welfare of children and may limit parental authority, even
permanently depriving parents of their children.
1

____________________

1
The Honorable Archie E. Blake, Judge of the Third Judicial District Court, was designated by the Governor
to sit in place of The Honorable Myron E. Leavitt, Justice. Nev. Const. art. 6, 4.
OPINION
Per Curiam:
This is an appeal from a district court order appointing respondents, Valley Hospital
Medical Center and Michele Nichols, R.N., Administrator for Valley Hospital (collectively,
Valley Hospital), as temporary guardians of the minor child H.S. Appellants Jason S. and
Rebecca S., H.S.'s natural parents, appeal, arguing that the district court erred when it
appointed Valley Hospital temporary guardian of H.S. pursuant to NRS 159.052. We
disagree. We conclude that when the parents refused to consent to medically necessary care
for H.S. based on their religious convictions, the district court did not abuse its discretion in
appointing Valley Hospital as a temporary guardian to make decisions to provide medically
necessary, life-saving treatment for H.S.
FACTS
Identical twin boys, H.S. and L.S., were prematurely born on June 11, 2001, at Valley
Hospital, to Jason and Rebecca. Prior to the birth, Rebecca had been hospitalized due to
twin-to-twin transfusion syndrome, a condition in which the babies' circulatory systems were
joined at the placenta, causing blood volume to be preferentially directed to one twin, L.S.,
and causing the other twin, H.S., to be anemic. To alleviate H.S.'s anemic condition, doctors
massaged the umbilical cord, directing blood toward H.S., thereby naturally transfusing H.S.
with blood. Although H.S. was stillborn, doctors successfully revived him seven minutes
after birth. Despite a normal blood platelet count, H.S. remained critically ill, requiring a
ventilator to assist his breathing and medications to help his circulation and heartbeat.
Because of H.S.'s chronic anemic state prior to birth, physicians monitored his blood platelet
count over the next few days. The hospital was also aware that, consistent with their religious
beliefs as Jehovah's Witnesses, Jason and Rebecca objected to the administration of blood
transfusions to their twin boys.
On June 17, 2001, H.S.'s blood platelet count had dropped to such a degree that the
attending physician, Dr. Martha Knutsen, felt that H.S.'s life was in jeopardy if a transfusion
was not immediately performed. Furthermore, a medical alternative to blood transfusion was
not available. Without parental consent, Dr. Knutsen transfused H.S. with blood platelets.
Despite the transfusion, H.S.'s condition remained critical.
On Monday, June 18, 2001, Valley Hospital petitioned the Eighth Judicial District
Court, ex parte, for temporary guardianship of both H.S. and L.S., pursuant to NRS 159.052.
ship of both H.S. and L.S., pursuant to NRS 159.052.
2
The petition was based on the
substantial and immediate risk of physical harm, potential death, and the emergency
circumstances surrounding the health and well being of both children and requested a
special guardianship to provide for the medical care of the twin children.
3
An attached
affidavit of Dr. Barry Perlin stated that a significant probability existed that H.S. and L.S.
would require a blood transfusion within the next thirty days to survive. Furthermore, if a
transfusion were needed, the transfusion would need to be initiated in less than two hours
after the emergency arose.
On Monday afternoon, June 18, 2001, the district court granted temporary
guardianship on an emergency basis for the purpose of consenting to blood transfusions and
to other medical care as deemed necessary by the hospital for both children. The order
required that Jason and Rebecca be given notice as soon as practical. The district court also
set a hearing for the next morning at 8:45 a.m. and ordered that Jason and Rebecca receive
notice of the hearing by 7:00 p.m. that evening, June 18. The parents received notice that
afternoon.
On June 19, 2001, Jason and Rebecca appeared in proper person at the hearing. Jason
expressed a concern that, while Valley Hospital was accusing him and his wife of medically
neglecting their children, no investigation was being conducted, and that neither the State nor
Child Protective Services was present. The district court, concerned with the children's health,
continued the hearing to Wednesday afternoon, June 20, 2001, so that medical experts could
be obtained and Jason and Rebecca could obtain counsel.
On June 20, 2001, Jason and Rebecca appeared with counsel. At the hearing, Dr.
Knutsen testified concerning H.S.'s critical condition and his continued need for medical
attention, with the real probability that he was at risk for immediate medical intervention,
including blood transfusions. Jason and Rebecca argued that H.S.'s condition was stable and
that an immediate medical emergency did not exist. The parents also reiterated their concern
that Valley Hospital should have brought a petition under NRS Chapter 432B (Protection of
Children from Abuse and Neglect). The district court responded that NRS 159.052 was less
intrusive for the parents, and that NRS Chapter 432B would not necessarily provide
additional protections.
____________________

2
In its petition, Valley Hospital applied for temporary guardianship pursuant to NRS 159.052 and
guardianship pursuant to NRS 159.044. To the extent that the district court relied on facts supporting an order
under NRS 159.044, we find this error harmless.

3
Special guardianship refers to a guardian of a person of limited capacity, NRS 159.026, and it is
inapplicable here, see NRS 159.022 (defining limited capacity). However, because the error does not affect
the substantial rights of the parties or the outcome of this decision, the error is harmless.
ents, and that NRS Chapter 432B would not necessarily provide additional protections.
Furthermore, the district court reasoned that when an emergency presented itself, there would
not be time to obtain a court order. The district court's final order ratified the blood
transfusion given to H.S. on June 17, 2001, and extended the temporary guardianship as to
H.S. only and for the limited purpose of providing consent for the administration of blood
and/or blood products for thirty days. The district court further ordered that H.S. was not to
be removed from Valley Hospital without the hospital's consent. Barring any unforeseen
events, L.S. would not likely require a blood transfusion, and therefore, the district court did
not extend the temporary guardianship to him.
4

Jason and Rebecca timely filed a notice of appeal of the district court's final order
concerning Valley Hospital's temporary guardianship of H.S.
DISCUSSION
Evading review
[Headnote 1]
Generally, this court refuses to determine questions presented in purely moot cases.
5
We have stated that the duty of every judicial tribunal is to decide actual controversies by
a judgment which can be carried into effect, and not to give opinions upon moot questions or
abstract propositions, or to declare principles of law which cannot affect the matter in issue
before it.
6
However, where an issue is capable of repetition, yet will evade review because
of the nature of its timing, we will not treat the issue as moot.
7

The United States Supreme Court has recognized the applicability of the
capable-of-repetition-yet-evading-review doctrine only in exceptional situations.'
8
The
challenged action must be too short in its duration to be fully litigated prior to its natural
expiration, and a reasonable expectation must exist that the same complaining party will
suffer the harm again.
9

____________________

4
While the ex parte order concerned both H.S. and L.S., in its final order extending temporary guardianship
to Valley Hospital, the district court did not extend guardianship protection to L.S. Because the final order forms
the basis for this appeal, no controversy exists concerning guardianship over L.S., and the issue is moot.

5
NCAA v. University of Nevada, 97 Nev. 56, 58, 624 P.2d 10, 11 (1981).

6
Id. at 57, 624 P.2d at 10.

7
See State v. Washoe Co. Public Defender, 105 Nev. 299, 301, 775 P.2d 217, 218 (1989).

8
Spencer v. Kemna, 523 U.S. 1, 17 (1998) (quoting Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)).

9
Id.; see Washington v. Harper, 494 U.S. 210, 219 (1990) (noting that the injured party would likely be
subjected to medications in the future); Honig v.
Temporary guardianships and medical emergencies are typically of short duration.
Both will expire prior to the issues being fully litigated. That Jason and Rebecca or Valley
Hospital will be confronted with the same issue or injury again is an entirely reasonable
prospect. Given the temporary nature of the situation, the alleged injury will continue to
evade review if we do not address the issue here. We therefore conclude that the issues
presented here are capable of repetition, yet evade review, and so are within the exception to
the mootness doctrine.
Nevada's temporary guardianship statute
[Headnote 2]
Jason and Rebecca argue that the district court erred when it granted temporary
guardianship of H.S. to Valley Hospital under NRS 159.052, and that the circumstances in
the instant case are more appropriately addressed under NRS Chapter 432B. The parents
argue that, when a child requires necessary medical treatment and the parents oppose the
treatment, the hospital must contact the state to initiate an investigation under NRS Chapter
432B. NRS Chapter 432B, however, is aimed at protecting children from abuse and neglect.
10
A child is neglected if he lacks necessary medical care because of the parents' neglect or
refusal to provide medical care when able to do so.
11

Jason and Rebecca also argue that NRS Chapter 432B should be the only applicable
statute, under the present circumstances, as it provides greater protection to parents since it
requires investigation, notice, a hearing and appointed counsel. NRS Chapter 432B, while
being much more intrusive than the process involving appointment of a temporary guardian,
does not provide any offsetting additional protections in the circumstances of this case.
Pursuant to NRS 432B.260(2), if the child is under five years of age or there is a high risk of
serious harm to the child, the state must conduct an investigation.
12
NRS 432B.390 permits
the state to place the child in protective custody without parental consent and only thereafter
notify the parents that the child is in protective custody.
____________________
Doe, 484 U.S. 305, 318 (1988) (requiring a reasonable likelihood that the injured party would suffer the same
harm again); United States Parole Comm'n v. Geraghty, 445 U.S. 388, 398 (1980) (requiring that the litigant
face some likelihood of becoming involved in the same controversy in the future).

10
See NRS 432B.220; NRS 432B.020; NRS 432B.140. Unless otherwise noted, the 2003 session of the
Nevada Legislature made no significant changes to the statute.

11
NRS 432B.140; NRS 432B.330(2)(b)(3).

12
The state may investigate whether there is reasonable cause to believe the child is neglected or threatened
with neglect, the effect of such neglect and what services or treatments are necessary to prevent further neglect.
NRS 432B.300.
Notice is required, and a hearing must be held within seventy-two hours after a child is taken
into custody.
13
The court then determines whether it is contrary to the child's welfare for the
child to remain in the home or if it is in the child's best interest to remain outside of the home.
14

[Headnote 3]
Valley Hospital initially submitted a petition for guardianship under both NRS
159.052, the temporary guardianship statute, and NRS 159.044, the general guardianship
statute. Because Valley Hospital sought only temporary guardianship of H.S., we conclude
that the district court did not err in applying NRS 159.052. Absent a showing of abuse, we
will not disturb the district court's exercise of discretion concerning guardianship
determinations.
15
However, we must be satisfied that the district court's decision was
based upon appropriate reasons.'
16

A temporary guardian may be appointed for ten days if the district court [f]inds
reasonable cause to believe that the proposed ward is unable to respond to a substantial and
immediate risk of physical harm or to a need for immediate medical attention.
17
NRS
159.052(2)(b) requires that the district court be satisfied that the petitioner has tried in good
faith to notify [the parents] . . . or that giving notice to those persons is not feasible under the
circumstances, or determines that such notice is not required because of exposure to an
immediate risk of harm if notice was provided. If the court determines that advance notice is
not required, the petitioner must notify the parents without undue delay, but within forty-eight
hours after the appointment.
18
Within ten days of the appointment, the court must hold a
hearing to determine whether to extend the temporary guardianship.
19
If the petitioner
demonstrates by clear and convincing evidence that the minor is unable to respond to a
substantial and immediate risk of physical harm or to a need for immediate medical
attention, the court may extend the temporary guardianship for up to thirty days.
____________________

13
NRS 432B.470. Unlike NRS 159.052, there are no exceptions to the notice requirement. However, in
circumstances where the child is in imminent danger, as determined by child welfare services, the child has
already been taken into custody without the parents' consent.

14
NRS 432B.480(1)(b).

15
See Matter of Guardianship & Estate of D.R.G., 119 Nev. 32, 37, 62 P.3d 1127, 1130 (2003).

16
Id. (quoting Locklin v. Duka, 112 Nev. 1489, 1493, 929 P.2d 930, 933 (1996)).

17
NRS 159.052(2)(a).

18
NRS 159.052(4).

19
NRS 159.052(5).
days.
20
The temporary guardianship is limited to those powers necessary to respond to the
risks involved.
21

While NRS 159.052 provides exceptions to giving immediate notice, the exceptions
and the discretion given to a district court to determine whether to appoint a guardian are
congruent with the spirit of the statute in providing protection to a minor in need of
immediate care. Here, if the district court had denied the petition for guardianship based on
lack of notice, the child may have been exposed to a substantial risk of harm; upon receiving
notice, the parents could have attempted to remove the child from the hospital prior to the
appointment, thereby further endangering the child's life. The evidence presented to the
district court in the form of an affidavit from a Valley Hospital physician stated that the
parents were refusing medically necessary blood transfusions, that H.S. would require blood
transfusions to survive and that H.S. was unable to respond to this risk. The district court
reasonably concluded from this information that H.S. was at a risk of substantial and
immediate physical harm. The district court's decision to appoint a temporary guardian, ex
parte, was based on the child's best interest, and protected the State's interest in the welfare of
children within this state. To prevent further intrusion into the parent's lives, however, the
district court required that Jason and Rebecca receive notice within six hours of the order's
entry and ordered a hearing be held within less than twenty-four hours.
To further protect the rights of the children and the parents, the district court
scheduled an additional hearing the next day to allow Jason and Rebecca to obtain counsel
and to hear expert medical testimony. At the hearing, Dr. Knutsen testified that there was a
real possibility of complications arising in the next thirty days that would require a blood
transfusion. Dr. Knutsen also testified that H.S.'s condition was critical and that, in the next
thirty days, several complications were foreseeable, including intracranial bleeding,
infections, and the possibility that subsequent operations might be required, all of which
would require blood transfusions. Based on the parents' religious convictions, they were
unable to adequately respond to this harm.
Valley Hospital did not allege that Jason and Rebecca were neglecting or abusing
H.S., and the district court determined that there was no evidence of neglect or abuse. The
district court reasoned that an investigation into possible neglect by Jason and Rebecca of
their children, which NRS Chapter 432B requires, would have intruded unnecessarily into
their personal lives. We agree. Reporting Jason and Rebecca to Child Protective Services or
law enforcement, and initiating an investigation into their decisions regarding the care,
custody and management of their children, would have exceeded the district court's
discretion in light of the fact that the only issue was Jason and Rebecca's inability to
consent to blood transfusions for their minor son based upon religion.
____________________

20
Id.

21
NRS 159.052(6).
regarding the care, custody and management of their children, would have exceeded the
district court's discretion in light of the fact that the only issue was Jason and Rebecca's
inability to consent to blood transfusions for their minor son based upon religion. H.S. did not
need protection from his parents; instead, he needed someone to implement a course of
necessary medical intervention that Jason and Rebecca were unable to approve because of
their religious convictions. Moreover, in an emergency situation such as this, NRS Chapter
432B would have provided no additional safeguards for the parents.
22

In the midst of an emergency, the district court was confronted with the task of
balancing the competing interests of the child, the parents, the hospital and the State.
Throughout the proceedings, the district court took numerous steps to protect the interests of
the child and the parents, including requiring notice and a hearing within twenty-four hours
after the original order, allowing Jason and Rebecca time to obtain counsel prior to reaching a
final determination, protecting Jason and Rebecca's privacy interests, requiring the hospital to
provide medical testimony regarding H.S.'s condition and limiting the final order to only
those powers necessary to protect H.S.'s interests. We therefore conclude that the district
court did not abuse its discretion when it awarded Valley Hospital temporary guardianship of
H.S. pursuant to NRS 159.052. We do not perceive the provisions of NRS 159.052 as
governing exclusively in cases involving minors and medical emergencies.
Substantive due process
[Headnote 4]
Other jurisdictions have uniformly held that when medical treatment is available and
necessary to save a minor's life, the state may intervene.
23
Jason and Rebecca concede that
the parents' right to the care, custody and control of their children is not absolute.
____________________

22
See NRS 432B.390; NRS 432B.330; NRS 432B.470. While both NRS Chapter 432B and NRS Chapter
159 recognize that the needs and rights of the child may outweigh the parents' right to notice in certain
circumstances, NRS Chapter 432B does not provide judicial review prior to the state initiating an investigation
or taking the child into protective custody. A hearing is provided only afterward. See NRS 432B.390; NRS
432B.470(1).

23
See Novak v. Cobb County-Kennestone Hosp. Authority, 849 F. Supp. 1559, 1566-67 (N.D. Ga. 1994);
Newmark v. Williams, 588 A.2d 1108, 1116 (Del. 1991); People v. Labrenz, 104 N.E.2d 769, 773-74 (Ill. 1952);
Matter of McCauley, 565 N.E.2d 411 (Mass. 1991); Matter of Sampson, 278 N.E.2d 918, 919 (N.Y. 1972);
Matter of Cabrera, 552 A.2d 1114, 1118 (Pa. Super. Ct. 1989); O.G. v. Baum, 790 S.W.2d 839, 841 (Tex. Ct.
App. 1990). But see In re Green, 292 A.2d 387, 392 (Pa. 1972) (holding that, as between a parent and the state,
the state's interest did not outweigh a parent's religious beliefs opposing medical treatment when the child's life
was not immediately at risk).
However, because the issue of a state's right to compel the administration of a blood
transfusion to a minor when the parents oppose the treatment is an issue of first impression in
Nevada, we will address it here.
24

[Headnotes 5, 6]
Substantive due process guarantees that no person shall be deprived of life, liberty
or property for arbitrary reasons.'
25
The Due Process Clause of the Fourteenth Amendment
protects those liberty interests that are deemed fundamental and are deeply rooted in this
Nation's history and tradition.
26
Certain family privacy rights, including the parent-child
relationship, have therefore been recognized as fundamental rights.
27
We have adopted a
reasonableness test to address family privacy cases involving competing interests within
the family.
28
This test implicitly calibrat[es] the level of scrutiny in each case to match
the particular degree of intrusion upon the parents' interests.'
29

[Headnotes 7, 8]
While a parent has a fundamental liberty interest in the care, custody, and
management of his child, that interest is not absolute.
30
The state also has an interest in the
welfare of children and may limit parental authority, even permanently depriving parents of
their children.
31
Therefore, while Jason and Rebecca have a parental interest in the care of
their son, the State has an interest in preserving the child's life.
____________________

24
This issue was not raised in the district court. However, because this appeal raises an important
constitutional issue, we will address it sua sponte. See Kirkpatrick v. Dist. Ct., 119 Nev. 66, 70 n.8, 64 P.3d
1056, 1059 n.8 (2003). On appeal, the parties also raised the issue of the hospital's standing to petition for
guardianship. However, because the parents failed to raise the issue below and are not attacking the
constitutionality of NRS 159.052, we need not consider this argument. See Diamond Enters., Inc. v. Lau, 113
Nev. 1376, 1378, 951 P.2d 73, 74 (1997).

25
Arnesano v. State, Dep't Transp., 113 Nev. 815, 819, 942 P.2d 139, 142 (1997) (quoting Allen v. State,
Pub. Emp. Ret. Bd., 100 Nev. 130, 134, 676 P.2d 792, 794 (1984)); see Nev. Const. art. 1, 8(5).

26
Moore v. East Cleveland, 431 U.S. 494, 503 (1977).

27
Matter of Parental Rights as to J.L.N., 118 Nev. 621, 625, 55 P.3d 955, 958 (2002).

28
Kirkpatrick, 119 Nev. at 74, 64 P.3d at 1062 (noting that [v]arious child rearing and custody cases
should be addressed under a reasonableness test).

29
Id. (quoting David D. Meyer, The Paradox of Family Privacy, 53 Vand. L. Rev. 527, 546 (2000)).

30
Id. at 71, 64 P.3d at 1059.

31
Id.
terest in preserving the child's life. As H.S. is unable to make decisions for himself, the State's
interest is heightened. Jason and Rebecca's liberty interest in practicing their religion must
also give way to the child's welfare.
32
Hence, the district court found that Jason and
Rebecca's refusal to consent to treatment put H.S.'s life at substantial risk. Additionally, the
State has an interest in protecting the ethical integrity of the medical profession, and in
allowing hospitals the full opportunity to care for patients under their control,
33
especially
when medical science is available to save that patient's life.
Here, the child's interest in self-preservation and the State's interests in protecting the
welfare of children and the integrity of medical care outweigh the parents' interests in the
care, custody and management of their children, and their religious freedom. The combined
weight of the interests of the child and the State are great and, therefore, mandate interference
with Jason and Rebecca's parental rights.
NRS 159.052 strikes an appropriate balance between the various interests. The statute
creates temporary measures, which are limited to those powers necessary to respond to the
risk of harm. Additionally, the statute protects the child's interest and allows the State to
protect its interest with minimal interference into the parents' lives. Accordingly, we hold that
a parent's substantive due process rights are not violated when the district court awards
temporary guardianship of a minor child to a hospital pursuant to NRS 159.052.
For the foregoing reasons, we affirm the order of the district court appointing Valley
Hospital as temporary guardian of minor child H.S.
____________________

32
See Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (noting that [t]he right to practice religion
freely does not include liberty to expose the . . . child to . . . ill health or death).

33
McCauley, 565 N.E.2d at 414.
____________
120 Nev. 168, 168 (2004) Traffic Control Servs. v. United Rentals
TRAFFIC CONTROL SERVICES, INC., dba ALLIED TRENCH SHORING SERVICES;
and PHILIP A. BURKHARDT, Appellants, v. UNITED RENTALS NORTHWEST,
INC.; and NES COMPANIES, L.P., Respondents.
No. 40798
April 13, 2004 87 P.3d 1054
Appeal from a preliminary injunction enforcing a noncompetition covenant and
prohibiting disclosure of company information. Eighth Judicial District Court, Clark County;
Allan R. Earl, Judge.
Former employer and corporation assigned certain rights in a corporate sale of
employer's assets filed action against former employee to enforce employee's covenants not to
compete or disclose customer information. The district court entered a preliminary injunction
enforcing the noncompetition covenant and enjoining employee from disclosing confidential
information learned during his employment. Employee and his current employer appealed.
The supreme court held that, as a matter of first impression, an employer in a corporate sale
may not assign rights under an employee's covenant not to compete without the employee's
consent and separate consideration.
Reversed.
Dickerson, Dickerson, Consul & Pocker and Douglass A. Mitchell, Las Vegas, for
Appellants.
Piper Rudnick, LLP, and Joanna S. Kishner and Gary C. Moss, Las Vegas; Haynes &
Boone, LLP, and Melissa M. Goodman, Dallas, Texas, for Respondents.
Appeal of trial court's decision enforcing injunction, so as to enforce former
employee's covenant not to compete after his employer had assigned employee's
one-year covenant not to compete to another entity, was not moot, and would be
reviewed by supreme court, though injunction had expired, given relatively short term
of noncompetition covenant, and likelihood that similar issue would arise in future,
rendering issues capable of repetition, yet evading review.
2. Assignments.
An employee's covenant not to compete is personal in nature and is unassignable
absent the employee's express consent or an express clause permitting assignment that
has been negotiated at arm's length with the employee and supported by additional and
separate consideration. Noncompetition covenants are personal in nature, and while
employee may consider character and personality of his employer to determine whether
he is willing to be held to a contract that will restrain him from future competition with
his employer, that does not mean that he is willing to suffer the same restriction with a
stranger to the original obligation.
3. Contracts.
A nondisclosure covenant limits the dissemination of proprietary information by a
former employee, while a noncompetition covenant precludes the former employee
from competing with his prior employer for a specified period of time and within a
precise geographic area.
4. Contracts.
Post employment anti-competitive covenants are scrutinized with greater care than are
similar covenants incident to the sale of a business because the loss of a person's
livelihood is a very serious matter.
5. Contracts.
If no ambiguity exists in a contract, the words of the contract must be taken in their
usual and ordinary signification.
6. Contracts.
Neither a court of law nor a court of equity can interpolate in a contract what the
contract does not contain.
1

OPINION
Per Curiam:
Philip A. Burkhardt and his current employer, Traffic Control Services, Inc., d/b/a
Allied Trench Shoring Services, appeal the issuance of a preliminary injunction enforcing a
noncompetition covenant in favor of United Rentals Northwest, Inc., the purchaser of the
corporate assets of Burkhardt's former employer, NES Trench Shoring.
The primary issue on appeal is whether an employer in a corporate sale may assign
rights under an employee's covenant not to compete without the employee's consent. We hold
that an employer may only assign such covenants with the employee's consent and only when
the consent is supported by independent consideration.
FACTUAL HISTORY
Burkhardt specializes in the selling and renting of trench shoring equipment to
construction contractors in the Las Vegas area. United employed Burkhardt during the years
1999 and 2000. In September 2000, he became dissatisfied with United's customer service
policies and obtained a position in Las Vegas with NES, which he felt provided more
specialized service and better opportunities for career advancement.
As a condition of employment with NES, and in exchange for $10,000, he signed
noncompetition and nondisclosure covenants.
____________________

1
The Honorable Steven L. Dobrescu, Judge of the Seventh Judicial District Court, was designated by the
Governor to sit in place of The Honorable Myron E. Leavitt, Justice. Nev. Const. art. 6, 4.
He alleged below that, before executing those agreements, he received assurances that NES
management had no plans to sell the company and would not, in any event, sell to United. In
this, Burkhardt's regional manager indicated that NES might even purchase United.
2
The
covenants stipulated that, if Burkhardt's employment with NES was terminated, Burkhardt
would not, for a period of one year, engage in selling, leasing, marketing, distributing, or
dealing with trench shoring equipment within a sixty-mile radius of his work location.
Additionally, Burkhardt agreed, in perpetuity,
to keep secret and not disclose to any other party any information to include, but not be
limited to, customer lists, employee lists, price lists, pricing strategies, training
programs and manuals, trade manuals and sales programs and materials.
While at NES, Burkhardt received confidential customer lists, price lists, pricing
strategies, and training and sales information. In July 2001, NES promoted Burkhardt to
branch manager. Burkhardt's management position required him to use NES's business
information to ensure that the Las Vegas branch was profitable, that NES delivered
equipment on time, and that the equipment was properly built and installed. Burkhardt also
reviewed the branch's monthly sales and rental revenues, developed an annual business plan,
and prepared bids for potential new business. These duties allowed Burkhardt to become
familiar with NES's customer base.
On June 30, 2002, United and NES entered into an asset purchase agreement,
including goodwill, under which United paid three times the concern's fair market value. The
purchase agreement was limited to certain assets, providing that [a]ll contracts and
agreements that are not listed as Assumed Contracts' are Excluded Assets.' While the
agreement listed other noncompetition covenants as assumed contracts, Burkhardt's
noncompetition covenant was not on the list. The purchase agreement also contained a
recitation that [n]one of the Assumed Contracts requiring a consent to assignment have been
obtained prior to the Closing Date. Notwithstanding the contract terms, NES's negotiators
submitted affidavits in the proceedings below asserting that the asset sale included all of
NES's noncompetition covenants, including the one with Burkhardt.
A week before closure of the asset purchase, United requested or demanded that a
significant number of the listed key employees sign new one-year noncompetition and
nondisclosure covenants. Consideration for the new covenants included salary packages to be
paid during the noncompetition enforcement period and incentive bonuses. Nine of the
eighty-one key employees, including Burkhardt, refused to sign the new covenants.
____________________

2
Burkhardt later testified that if he had known NES would sell its business to United within two years, he
would not have worked for NES.
Burkhardt remained as United's Las Vegas sales manager during the transition period
following the sale, but again became dissatisfied with United's customer service. He began
negotiations in early August 2002 with Traffic Control, United's direct competitor. Burkhardt
informed Traffic Control about his noncompetition covenant with NES, which he believed
was invalid because he was terminating employment with United, not NES.
On August 5, 2002, Burkhardt accepted employment with Traffic Control. That same
day, he signed United's policies and procedure bulletin, which defined confidential
information and the policy regarding nondisclosure. United terminated Burkhardt's
employment on August 8, 2002, after which he returned all of his work-related items to
company officials.
Burkhardt commenced his new position on August 10, 2002, after signing new
noncompetition and nondisclosure covenants.
3
He began contacting companies to solicit
business on behalf of Traffic Control but was mostly unsuccessful in obtaining new business.
United, through counsel, sent Burkhardt written notification that his new employment
constituted breaches of his noncompetition and nondisclosure covenants. In light of
Burkhardt's continued relationship with Traffic Control, United and NES commenced the
action below to enforce the covenants.
PROCEDURAL HISTORY
On August 27, 2002, NES and United filed a verified complaint alleging that
Burkhardt obtained confidential information during his employment with them and that he
subsequently used and disclosed NES/United confidential information, contacted United's
clients, and attempted to solicit United's customers. The district court ultimately entered a
preliminary injunction enforcing the NES noncompetition covenant for a period of one year
following termination and enjoining Burkhardt from using or disclosing confidential
information learned during his employment with NES and United. In this, the district court
concluded that Burkhardt's noncompetition covenant was reasonable in time and scope,
assignable as an asset of value, and that NES validly assigned the covenant to United in the
asset sale.
DISCUSSION
Mootness
[Headnote 1]
As a preliminary matter, we note that the injunction expired on August 8, 2003.
However, given the relatively short term of the noncompetition covenant, and the likelihood
that a similar issue will arise in the future, we conclude that the issues in this matter are
capable of repetition, yet evading review.
____________________

3
Burkhardt has remained on Traffic Control's payroll since August 10, 2002, notwithstanding the injunction.
will arise in the future, we conclude that the issues in this matter are capable of repetition, yet
evading review.
4
Accordingly, the appeal is not moot.
5

Assignability of noncompetition covenants
[Headnote 2]
Traffic Control and Burkhardt contend that the purported assignment was invalid. We
agree and hold that, absent an agreement negotiated at arm's length, which explicitly permits
assignment and which is supported by separate consideration, employee noncompetition
covenants are not assignable.
[Headnote 3]
Employers commonly rely upon restrictive covenants, primarily nondisclosure and
noncompetition covenants, to safeguard important business interests. The non-disclosure
covenant limits the dissemination of proprietary information by a former employee, while the
non-competition covenant precludes the former employee from competing with his prior
employer for a specified period of time and within a precise geographic area.
6

[Headnote 4]
[B]ecause the loss of a person's livelihood is a very serious matter, post employment
anti-competitive covenants are scrutinized with greater care than are similar covenants
incident to the sale of a business.
7
The question of whether noncompetition covenants may
be assigned from one employer to another through the medium of an asset sale (or otherwise)
is an issue of first impression for this court.
Burkhardt and Traffic Control argue that NES could not assign the noncompetition
covenant to United without Burkhardt's consent because the covenant was personal to
Burkhardt, that the asset purchase agreement did not contain a clause permitting the
assignment, and that Burkhardt only consented to be bound to NES when he signed the
covenant. They contend that NES could have included a clause in the covenant permitting
assignment or negotiated for Burkhardt's consent, but chose not to do so. Burkhardt and
Traffic Control also argue that the attempted assignment to United is unenforceable as
against public policy, because Burkhardt was unable to assess his new employer and
weigh the benefits and burdens of being bound by a noncompetition covenant with
United.
____________________

4
Binegar v. District Court, 112 Nev. 544, 548, 915 P.2d 889, 892 (1996); Langston v. State, Dep't of Mtr.
Vehicles, 110 Nev. 342, 344, 871 P.2d 362, 363 (1994).

5
At oral argument before this court, United stated that it is seeking a permanent injunction in district court to
enforce Burkhardt's nondisclosure covenant. Because the noncompetition covenant has expired, our decision in
this matter concerning it has no practical effect on issues concerning the nondisclosure agreement.

6
Hess v. Gebhard & Co. Inc., 808 A.2d 912, 917 (Pa. 2002).

7
Ellis v. McDaniel, 95 Nev. 455, 459, 596 P.2d 222, 224 (1979).
Traffic Control also argue that the attempted assignment to United is unenforceable as against
public policy, because Burkhardt was unable to assess his new employer and weigh the
benefits and burdens of being bound by a noncompetition covenant with United. They argue
that the district court's ruling bound Burkhardt to United, an employer for whom he did not
wish to work.
In response, NES and United argue that NES validly assigned Burkhardt's covenant as
an asset of value and that a majority of courts allow enforcement of such assignments by the
assignee. NES and United also argue that the covenant was not the equivalent of a personal
services contract because it only required Burkhardt to abstain from certain activities.
Finally, they argue that judicial enforcement of Burkhardt's covenant does not violate public
policy or NRS 613.200;
8
rather, public policy supports enforcement of the covenant to
protect the health of the business and its goodwill.
There is a distinct split among jurisdictions regarding whether noncompetition
covenants are assignable absent an employee's consent.
9

____________________

8
NRS 613.200(4) permits employers and employees to negotiate and execute enforceable noncompetition
covenants if they are supported by valuable consideration and are reasonable in scope and duration. At the time
that Burkhardt entered into the noncompetition covenant with NES, this provision appeared as subsection 2 of
NRS 613.200. The provision was renumbered during the 2003 legislative session, but it was not substantively
amended. 2003 Nev. Stat., ch. 140, 16, at 798.

9
Compare Hess, 808 A.2d at 922 (noncompetition covenant was not assignable in an asset sale absent
employee's consent), with J.H. Renarde, Inc. v. Sims, 711 A.2d 410, 412-14 (N.J. Super. Ct. Ch. Div. 1998) (as
a matter of law, noncompetition covenants may be freely assigned in an asset sale like any other contractual right
in the absence of some express contractual prohibition), Equifax Services, Inc. v. Hitz, 905 F.2d 1355, 1361
(10th Cir. 1990), Reynolds and Reynolds Co. v. Tart, 955 F. Supp. 547, 556-57 (W.D.N.C. 1997), Hexacomb
Corp. v. GTW Enterprises, Inc., 875 F. Supp. 457, 464 (N.D. Ill. 1993), Premier Laundry v. Klein, 73 N.Y.S.2d
60, 61 (N.Y. Spec. Term 1947) (an assigned noncompetition covenant is a valuable right which the courts will
enforce), reversed on other grounds, 78 N.Y.S.2d 161 (App. Div. 1948), and Restatement (Second) of
Contracts 317 cmt. d, illus. 6 (1981) (B sells his business to A and makes a valid contract not to compete. A
sells the business to C and assigns to C the right to have B refrain from competition. The assignment is effective
with respect to competition with the business derived from B. The good will of the business, with contractual
protection against its impairment, is treated as an assignable asset.). See generally Annotation, Enforceability,
by Purchaser or Successor of Business, of Covenant Not to Compete Entered into by Predecessor and its
Employees, 12 A.L.R.5th 847 (1993) (collecting cases). There is even a difference of opinion as to the position
taken by a majority of the courts. Compare 6 Richard A. Lord, Williston on Contracts 13:13, at 586-94 (4th
ed. 1995) (The authorities are . . . in conflict with respect to the important issue of whether an employee's
restrictive covenant may be enforced against him by an assignee of or other successor in interest to his
employer's rights. A majority of courts per-
We agree with those jurisdictions holding that noncompetition covenants are personal
in nature and, therefore, unassignable as a matter of law, absent the employee's express
consent.
10
When an employee enters into a covenant not to compete with his employer, he
may consider the character and personality of his employer to determine whether he is willing
to be held to a contract that will restrain him from future competition with his employer, even
after termination of employment. This does not mean, however, that the employee is willing
to suffer the same restriction with a stranger to the original obligation.
11
Certainly, the sale
of a business fundamentally alters the nature of an employment relationship.
[Headnote 5]
Burkhardt's covenant did not contain an assignment clause. While some courts have
concluded that such an omission does not bar assignment,
12
a reading of assignability into
the covenant is contrary to the intentions of the original parties to it.
13
As we have stated, if
no ambiguity exists in a contract, the words of the contract must be taken in their usual and
ordinary signification.
14
NES, as the drafter of the covenant, was in the best position to
negotiate for an assignment clause. However, for whatever reason, it chose not to do so. The
plain meaning of the contract was for the benefit of NES and Burkhardt, not their assigns and
successors.
While NES and United would place the burden on the employee to request a clause
prohibiting assignment, we believe the burden rests with the employer. We hold that, in
Nevada, a covenant not to compete is unassignable absent an express clause permitting
assignment. Recognizing that noncompetition covenants must be supported by valuable
consideration, which may include continued employment after the employee's agreement
to the covenant,
____________________
mit the successor to enforce the employee's restrictive covenant as an assignee of the original covenantee (the
original employer) . . . . (footnote omitted)), with Hess, 808 A.2d at 918 (noting that the majority of [states
that have considered the assignability of noncompetition and nondisclosure covenants] have concluded that the
restrictive covenants are not assignable).

10
See, e.g., Sisco v. Empiregas, Inc. of Belle Mina, 237 So. 2d 463, 466-67 (Ala. 1970); SDL Enterprises,
Inc. v. DeReamer, 683 N.E.2d 1347, 1349-50 (Ind. Ct. App. 1997); Smith, Bell & Hauck, Inc. v. Cullins, 183
A.2d 528, 532 (Vt. 1962); see also Corporate Exp. Office Products v. Phillips, 847 So. 2d 406, 413 (Fla. 2003)
(Thus, when the sale of the assets includes a personal service contract that contains a noncompete agreement,
the purchaser can enforce its terms only with the employee's consent to an assignment.).

11
See Cullins, 183 A.2d at 532; Securitas Security Services USA, Inc. v. Jenkins, 16 Mass. L. Rptr. 486
(Mass. Super. Ct. 2003), available at 2003 WL 21781385, at *5 (covenant did not contain assignment clause;
employee did not covenant with successor company not to compete with it).

12
E.g., J.H. Renarde, 711 A.2d at 412-13.

13
See Jenkins, 16 Mass. L. Rptr. 486, available at 2003 WL 21781385, at *5.

14
Dickenson v. State, Dep't of Wildlife, 110 Nev. 934, 937, 877 P.2d 1059, 1061 (1994).
ported by valuable consideration, which may include continued employment after the
employee's agreement to the covenant,
15
we also hold that assignability clauses must be
negotiated at arm's length and supported by additional and separate consideration from that
given in exchange for the covenant itself. This places the burden on the employer to seek
assignability and adequately compensates the party with the lesser bargaining power for the
possibility that a stranger to the covenant may ultimately assume the right to its enforcement.
Burkhardt testified, by way of deposition, to his concern about working for a company
other than NES, especially United. In this, he covenanted specifically with NES not to
compete with NES. At the hearing on the motion for a preliminary injunction, the district
court agreed with Burkhardt that the noncompetition covenant was personal in nature but
concluded that, because the covenant held value, it was assignable. Testimony also
established that United enjoyed a much greater volume of business in the trench shoring
business than NES. Therefore, Burkhardt's obligation materially changed when the covenant
was assigned. Burkhardt was thus foreclosed from competing on any level with a much
larger business entity.
16
This is, of course, specifically the risk that an employee must
consider when agreeing to assignability of a noncompetition covenant.
Assignment in asset sale agreement
The parties disagree as to whether the asset sale agreement expressly or impliedly
contemplated assignment of Burkhardt's covenant not to compete. Burkhardt claims that there
was no explicit assignment of the covenant and that United intended to negotiate new
covenants and employment agreements with him after consummating the sales transaction.
While acknowledging that the agreement did not explicitly assign Burkhardt's noncompetition
covenant, United and NES agree that, as between themselves, they contemplated assignability
as part of the sale and that their intent is controlling. They also argue that all assets were
transferred, except those specifically excluded; that Burkhardt's covenant was not one of the
excluded assets; and that the sale of goodwill implicitly transferred Burkhardt's covenant.
[Headnote 6]
We have previously stated that the court should not revise a contract under the guise
of construing it. Further, [n]either a court of law nor a court of equity can interpolate in a
contract what the contract does not contain.
____________________

15
See NRS 613.200(4); Camco, Inc. v. Baker, 113 Nev. 512, 517, 936 P.2d 829, 832 (1997) ([A]n at-will
employee's continued employment is sufficient consideration for enforcing a non-competition agreement.).

16
Hess, 808 A.2d at 922.
court of law nor a court of equity can interpolate in a contract what the contract does not
contain.'
17

The asset sale agreement states that all contracts not listed as assumed contracts are
excluded assets.
18
The agreement specifically lists three noncompetition covenants as
assumed contracts, but it is silent regarding Burkhardt's covenant. Thus, by implication,
Burkhardt's covenant, as an unlisted contract, was not included in the asset sale.
19
Further,
United intended to enter into new covenants with the former NES employees. This evidences
its intent not to assume Burkhardt's covenant. However, whether the asset sale included
Burkhardt's covenant is of no moment, as we hold that NES could not, as a matter of law,
assign the covenant absent Burkhardt's consent.
20

CONCLUSION
NES's attempted assignment to United of Burkhardt's covenant was invalid.
Covenants not to compete are personal in nature and therefore are not assignable absent the
employee's express consent. Further, an employer must obtain such consent through
arm's-length negotiation with the employee, supported by valuable consideration beyond that
necessary to support the underlying covenant. Accordingly, we reverse.
____________________

17
All Star Bonding v. State of Nevada, 119 Nev. 47, 49, 62 P.3d 1124, 1125 (2003) (quoting Club v.
Investment Co., 64 Nev. 312, 324, 182 P.2d 1011, 1017 (1947)).

18
NES itself cannot enforce the covenant because it has no legal interest to protect itself from any acts of
competition by either Burkhardt or Traffic Control. See, e.g., Gibson v. Eberle, 762 P.2d 777, 779 (Colo. Ct.
App. 1988); Wolf v. James G. Barrie, P.A., 858 So. 2d 1083, 1085-86 (Fla. Dist. Ct. App. 2003); Hess, 808
A.2d at 923.

19
But cf. Campbell v. Millennium Ventures, LLC, 55 P.3d 429, 435-36 (N.M. Ct. App. 2002) (asset sale
agreement did not specifically assign covenant, but was included in sale of business' goodwill).

20
We do not reach the issue of whether Burkhardt misappropriated trade secrets or confidential information
gained in connection with his employment at NES and United. Again, as stated at oral argument before this
court, United is currently seeking a permanent injunction to enforce Burkhardt's nondisclosure covenant.
Therefore, this issue is not yet ripe for our review.
____________
120 Nev. 177, 177 (2004) Lara v. State
JERRY LARA, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 40268
April 14, 2004 87 P.3d 528
habeas corpus. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
The supreme court, Maupin, J., held that: (1) defense counsel was not ineffective by
failing to object to gang-affiliation evidence, (2) decision to testify at trial was defendant's
choice, (3) defense counsel was not ineffective in failing to object to fear-of-retaliation
evidence, and (4) appellate counsel was not ineffective.
Affirmed.
Hinds & Morey and Christina A. Hinds, Las Vegas, for Appellant.
and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Gang-affiliation evidence may be relevant and not substantially outweighed by unfair
prejudice when it tends to prove motive.
2. Criminal Law.
Defense counsel was not ineffective by failing to object to gang-affiliation evidence
and by calling witnesses who revealed defendant was in a gang because gang-related
evidence was probative to the State's case on the issue of motive for the murder, and
defense counsel's decision to call alibi witnesses who testified that they were in a gang
with the defendant was necessary to develop the defense that defendant was
misidentified as the assailant, that a third party was accused of the shooting by victim's
brother, and that defendant was elsewhere when the shooting occurred. U.S. Const.
amend. 6.
3. Criminal Law.
Assuming that defense counsel made strategic errors in failing to object to
gang-related evidence and in calling alibi witnesses who testified that defendant was a
gang member, defendant was not prejudiced by such errors due to the compelling
evidence of his guilt, which included his identification by four eyewitnesses, two of
whom were neutral parties. U.S. Const. amend. 6.
4. Criminal Law.
Decision to testify at murder trial was defendant's choice and his counsel was not
deficient in his advice concerning such testimony, where counsel advised defendant of
his right to not testify and defendant indicated to the court that he understood his rights.
5. Criminal Law.
Defense counsel was not ineffective in failing to object to fear-of-retaliation evidence
in murder trial; counsel's failure to object was a matter of trial strategy and allowed
him to impeach witnesses with inconsistent statements.
120 Nev. 177, 178 (2004) Lara v. State
ter of trial strategy and allowed him to impeach witnesses with inconsistent statements.
6. Criminal Law.
7. Criminal Law.
Appellate counsel is not required to raise every non-frivolous or meritless issue to
provide effective assistance. U.S. Const. amend. 6.
8. Criminal Law.
Defendant's appellate counsel was not ineffective for failing to raise issues on appeal
regarding the admission of gang-related evidence and the fear-of-retaliation evidence.
The district court properly admitted such evidence, and thus, any arguments concerning
those issues would have been unavailing. U.S. Const. amend. 6.
Before Shearing, C. J., Rose and Maupin, JJ.
OPINION
Appellant Jerry Lara appeals from a district court order denying his post-conviction
petition for a writ of habeas corpus.
1
He contends on appeal that the district court erred in
rejecting his claims of ineffective assistance by trial and appellate counsel. We affirm.
On April 10, 1997, the State charged Lara with murder with the use of a deadly
weapon (open murder) and discharging a firearm at or into a vehicle. The State alleged that
on October 26, 1996, Lara shot several times at the rear of Eduardo Sonera's 1976 Cadillac
and that one of the bullets hit and killed a child passenger, Alex Arroyo. Much of the
evidence at trial centered on the State's theories that the shooting, and the witnesses'
reluctance to give accurate accounts of it, were related to Lara's alleged membership in a
neighborhood criminal organization known as the 18th Street Gang. In particular, two of
the several eyewitnesses gave inconsistent statements concerning the assailant's identity for
fear of retaliation by Lara or his associates.
The jury found Lara guilty on both charges. Lara filed a motion for a new trial, which
the district court denied. The court sentenced Lara to life with the possibility of parole after a
minimum of 20 years on the murder conviction, with an equal and consecutive sentence for
the deadly weapon enhancement; and 16 to 72 months on the discharge of a firearm
conviction, which the court imposed concurrently with the sentence on the murder charge.
The district court also ordered Lara to pay $3,843.55 as restitution and gave him credit for
353 days of time served in local custody.
____________________

1
See NRS 34.575(1).
120 Nev. 177, 179 (2004) Lara v. State
gave him credit for 353 days of time served in local custody. We dismissed Lara's direct
appeal.
2

Lara, through appointed counsel, filed a post-conviction petition for a writ of habeas
corpus, claiming prosecutorial misconduct at trial, ineffective assistance of trial counsel, and
ineffective assistance of appellate counsel. The district court properly denied the prosecutorial
misconduct claim on procedural grounds.
3
The district court then conducted an evidentiary
hearing during which it heard testimony from Lara's trial and appellate counsel. It thereafter
denied the petition.
Lara now appeals the post-conviction order, arguing that the district court erred by
rejecting his claims that trial counsel was ineffective for failing to properly object to evidence
of, and examine the State's witnesses concerning, Lara's gang relationships; failing to
properly object to or address evidence that witnesses gave inaccurate information for fear of
retaliation; presenting gang-related evidence as part of the defense's case; giving inadequate
advice as to whether Lara should testify; and failing to properly examine Lara during the
defense's case-in-chief. Lara also attacks the district court's rejection of his claim that
appellate counsel provided ineffective assistance by failing to raise claims of error in
connection with the admission at trial of gang-membership and fear-of-retaliation evidence.
As noted, we disagree and affirm the district court's order denying Lara's petition.
DISCUSSION
1. Ineffective assistance of trial counsel
The question of whether a [criminal] defendant has received ineffective assistance of
counsel at trial in violation of the Sixth Amendment is a mixed question of law and fact and
is thus subject to independent [appellate] review.
4
However, the district court's purely
factual findings regarding a claim of ineffective assistance of counsel are entitled to deference
on subsequent review by this court.
5

We review claims of ineffective assistance of trial counsel under Strickland v.
Washington.
6
Under Strickland, to prevail on a claim of ineffective assistance of trial
counsel, a defendant must establish two elements: {1) that counsel provided deficient
performance, and {2) "that the deficient performance prejudiced the defense.
____________________

2
Lara v. State, Docket No. 31651 (Order Dismissing Appeal, April 26, 2000).

3
This claim should have been raised on direct appeal. See NRS 34.810(1)(b). We have discussed the
prosecutorial misconduct issue infra only to the extent necessary to resolve Lara's claim of ineffective assistance
of appellate counsel.

4
State v. Love, 109 Nev. 1136, 1138, 865 P.2d 322, 323 (1993).

5
Riley v. State, 110 Nev. 638, 647, 878 P.2d 272, 278 (1994).

6
466 U.S. 668, 686-87 (1984); see also Kirksey v. State, 112 Nev. 980, 987, 923 P.2d 1102, 1107 (1996).
120 Nev. 177, 180 (2004) Lara v. State
of ineffective assistance of trial counsel, a defendant must establish two elements: (1) that
counsel provided deficient performance, and (2) that the deficient performance prejudiced
the defense.
7
Establishment of deficient performance requires a showing that counsel's
performance fell below an objective standard of reasonableness.
8
To satisfy the second
element, a defendant must demonstrate prejudice by showing a reasonable probability that,
but for counsel's errors, the result of the trial would have been different.
9
In addition, trial
counsel's strategic or tactical decisions will be virtually unchallengeable absent
extraordinary circumstances.'
10
An insufficient showing on either prong eliminates the
necessity of appellate consideration of the other.
11

A. Gang-affiliation evidence
Lara contends that his trial attorney provided ineffective assistance by (1) failing to
object to gang-affiliation evidence, (2) inadequately cross-examining the State's witnesses,
and (3) calling defense witnesses that revealed Lara was in a gang. The State responds that
the gang-affiliation evidence was directly relevant to establish a motive for the killing and to
evaluate the credibility of witnesses offered by both the prosecution and defense. We agree
with the State.
[Headnote 1]
Gang-affiliation evidence may be relevant and not substantially outweighed by unfair
prejudice when it tends to prove motive.
12
Additionally, the United States Supreme Court
held in United States v. Abel that evidence showing the membership of a defendant and a
defense witness in a prison gang is certainly probative of bias.
13

Here, the State properly offered evidence of Lara's gang affiliation to demonstrate a
motive for the shooting and to explain the bias or fear of several witnesses. In particular, the
State presented the testimony of Angel Arroyo and Jonathan Episioco identifying Lara as the
assailant and, as discussed below, stating their reasons for previously giving inconsistent
statements to police concerning the shooter's identity, to wit: fear of retaliation from Lara's
gang associates.
____________________

7

8
Id.

9
Id. at 988, 923 P.2d at 1107.

10
Doleman v. State, 112 Nev. 843, 848, 921 P.2d 278, 280 (1996) (quoting Howard v. State, 106 Nev. 713,
722, 800 P.2d 175, 180 (1990)).

11

12
Lay v. State, 110 Nev. 1189, 1195-96, 886 P.2d 448, 452 (1994); see also NRS 48.045(2).

13
469 U.S. 45, 52 (1984).
120 Nev. 177, 181 (2004) Lara v. State
the shooter's identity, to wit: fear of retaliation from Lara's gang associates. Additionally, the
State asked defense witnesses gang-related questions in an effort to impeach them through
bias because they were in the same gang as Lara.
On cross-examination, defense counsel impeached State witnesses based upon
inconsistent statements they made to police during the investigation. During the defense case,
trial counsel also called Mark Rodriguez and Jesus Cisneros as witnesses. Rodriguez, a
former 18th Street Gang member and a friend of Lara's, testified that Lara was at his
apartment at the time of the shooting. Counsel used this testimony in an attempt to aid Lara's
alibi defense. Cisneros, also an 18th Street Gang member, testified that he was involved in a
fight with Angel Arroyo following Alex Arroyo's death and that Angel Arroyo accused
Cisneros of the killing. Defense counsel thus used Cisneros' testimony to contradict Angel
Arroyo's statements to police and his testimony that Lara shot Alex. This approach, of
necessity, revealed Lara's gang membership.
During the post-conviction evidentiary hearing, the district court heard testimony from
Lara's trial counsel. Trial counsel testified that, as a tactical matter, he questioned the jury
pool regarding gang-related issues because the jury would be aware of Lara's gang affiliation
based upon Lara's tattoos and the nature of the State's case. Accordingly, counsel thought it
necessary to screen the prospective jury panel concerning their views on gangs. Trial counsel
also testified as to his exploitation of inconsistencies and deficiencies in the State's evidence
and his belief that he had to directly address the gang-related issues.
Lara claims that his trial counsel should have objected to any attempt by the State to
introduce gang-related evidence and should have avoided introduction of direct evidence of
Lara's association with the 18th Street Gang through other members or by calling Lara to
testify. More particularly, Lara argues that his trial counsel should have developed Lara's alibi
defense and claims of misidentification through non-gang witnesses. We disagree.
[Headnote 2]
A review of the record below confirms that gang-related evidence was probative to the
State's case on the issue of motive, i.e., turf protection, and to explain why certain
eyewitnesses gave inconsistent statements concerning the shooting. Trial counsel's decisions
relative to jury selection, the examination of the State's witnesses and the presentation of gang
and non-gang defense witnesses were all part of a reasonable and sound trial strategy to fully
develop the defenses that (1) Lara was misidentified as the assailant, (2) the victim's brother
accused a third party of the shooting, and {3) Lara was elsewhere when the shooting
occurred.
120 Nev. 177, 182 (2004) Lara v. State
ing, and (3) Lara was elsewhere when the shooting occurred. It was reasonable for counsel to
conclude that the claimed alibi and the accusation of a fellow gang member by one of the
witnesses were critical to Lara's defense, despite the risk that the jury would hear about Lara's
gang involvement.
We hold that trial counsel provided effective assistance of counsel. The State properly
developed the gang-related issues, and the defense could not reasonably defend the case
without directing some attention to Lara's gang affiliation. Accordingly, Lara fails to satisfy
the first prong of the two-part Strickland test.
[Headnote 3]
We also hold that Lara failed to satisfy the prejudice prong of Strickland. In this, we
defer to the finding of the district court: [E]ven if trial counsel made some strategic errors,
[Lara] was not prejudiced because of compelling evidence of his guilt including his
identification by four eyewitnesses, two of whom were neutral to the parties involved in the
incident.
B. Advising Lara to testify
Lara additionally contends that his trial counsel rendered ineffective assistance by
advising Lara to testify and by failing to question Lara on direct examination regarding his
gang affiliation, both of which he claims led to a devastating cross-examination by the State.
[Headnote 4]
The United States Supreme Court has recognized that an accused has the ultimate
authority to make certain fundamental decisions regarding the case, including the decision to
testify.
14
The record below confirms that counsel properly advised Lara of his right to testify
or not testify. The district court canvassed Lara before he took the stand, and Lara stated that
he understood his rights. We conclude that the decision to testify at trial was Lara's and that
counsel's advice concerning the decision was not deficient. Also, given the nature of the
State's case, the fact that Lara would have to testify concerning the allegations of his gang
affiliations and the relevance or lack of relevance of them in the event he chose to take the
witness stand does not undermine the effectiveness of his counsel in rendering advice
concerning the decision to testify. It was certainly reasonable to directly address all of the
gang-related issues and to advise Lara that his best course was to testify.
In light of the evidence against Lara and the fact that his gang affiliation was at issue,
counsel's approach to the direct examination of his client cannot provide grounds for
post-conviction relief.
____________________

14
Jones v. Barnes, 463 U.S. 745, 751 (1983).
120 Nev. 177, 183 (2004) Lara v. State
In this, we cannot hold that, but for counsel's failure to diffuse Lara's gang affiliation on direct
examination, the outcome at trial would have been different.
C. Fear-of-retaliation evidence
[Headnote 5]
Lara contends that trial counsel provided ineffective assistance by failing to object to
the introduction of evidence that certain of the State's witnesses made inconsistent statements
to police investigators out of fear of retaliation. We disagree and conclude that counsel's
decisions concerning this evidence involved sound strategy, which permitted counsel wide
latitude in impeaching the witnesses with the inconsistent statements.
The State presented the fear-of-retaliation evidence based on Lay v. State.
15
In that
case, we held that fright or general concern for one's safety could provide an explanation to
the jury as to why a witness made prior inconsistent statements.
As noted, during the State's case-in-chief, Angel Arroyo and Jonathan Episioco
testified that they provided inconsistent statements during the police investigation because
they feared retaliation by Lara or other 18th Street Gang members. Trial counsel objected to
some of this testimony but vigorously impeached these witnesses based upon later statements
that they were not afraid of Lara.
We hold that the district court properly admitted the fear-of-retaliation evidence;
accordingly, any failure to object could not constitute ineffective representation. Further, trial
counsel utilized tactical and strategic approaches during direct and cross-examination of trial
witnesses in an effort to undermine the State's evidence. Finally, as noted, Arroyo, Episioco
and two neighbors identified Lara as the shooter. Thus, Lara satisfies neither prong of
Strickland.
2. Ineffective assistance of appellate counsel
Lara argues that appellate counsel provided ineffective assistance on direct appeal by
failing to argue that the prosecutor committed misconduct through the introduction of
evidence of Lara's gang membership and the fear-of-retaliation evidence, and by failing to
argue that the district court should have screened the gang-related evidence in a Petrocelli
hearing. We disagree.
[Headnote 6]
16
This court reviews a claim of ineffective assistance of appellate counsel under the
Strickland test.
____________________

15
110 Nev. at 1193-94, 886 P.2d at 450-51.

16
120 Nev. 177, 184 (2004) Lara v. State
tive assistance of appellate counsel under the Strickland test.
17
To establish prejudice based
on the deficient assistance of appellate counsel, the defendant must show that the omitted
issue would have a reasonable probability of success on appeal.
18

[Headnotes 7, 8]
Appellate counsel testified at the post-conviction evidentiary hearing to having
prosecuted in excess of 100 criminal appeals and, upon a full assessment of the case, chose to
focus on the district court's denial of Lara's motion for a new trial. For tactical reasons, he
rejected raising the gang-affiliation and fear-of-retaliation issues on appeal.
Appellate counsel is not required to raise every non-frivolous or meritless issue to
provide effective assistance.
19
Additionally, appellate counsel's failure to raise these types of
issues is not ineffective assistance of counsel.
20
Here, because the district court properly
admitted all of the gang-related evidence, any appellate arguments concerning those issues,
including that a Petrocelli hearing was required, would have been unavailing.
21
We hold that
counsel utilized sound appellate strategy in attacking the issue on appeal that he felt had the
highest probability of success. Therefore, the decision to restrict the scope of the appeal to
issues arising from the denial of a new trial provided Lara with effective assistance of counsel
at that stage of the proceedings.
CONCLUSION
Lara's post-conviction counsel vigorously attacks the performance of both trial and
appellate counsel and has at least implied that the Nevada judicial system treats the
post-conviction process as a formality. While we appreciate the intensity with which
post-conviction counsel has pressed this case, reasonable minds can most certainly differ on
how a defendant in a criminal prosecution should be defended.
____________________

17
Id.

18
Id. at 998, 923 P.2d at 1114.

19
Id. at 998, 923 P.2d at 1113.

20
Id. at 998, 923 P.2d at 1114.

21
See Qualls v. State, 114 Nev. 900, 961 P.2d 765 (1998); Tinch v. State, 113 Nev. 1170, 946 P.2d 1061
(1997). To the extent that Lara challenges the district court's failure to conduct a Petrocelli hearing, that claim
should have been raised on direct appeal. See NRS 34.810(1)(b). We address the failure to conduct a Petrocelli
hearing only to the extent necessary to resolve Lara's claim that appellate counsel provided ineffective assistance
by failing to raise the issue on direct appeal. See Kirksey, 112 Nev. at 998, 923 P.2d at 1114 (explaining that in
determining whether a defendant has established prejudice based on deficient assistance of appellate counsel, a
court must review the merits of the omitted claim).
120 Nev. 177, 185 (2004) Lara v. State
should be defended.
22
Trial and appellate counsel in this matter were faced with a myriad of
critical strategic and tactical dilemmas. We hold that the district court correctly denied Lara's
post-conviction petition for habeas corpus relief because his attorneys provided effective
assistance at all stages of the trial and on appeal. We therefore affirm the judgment of the
district court.
Shearing, C. J., and Rose, J., concur.
____________
120 Nev. 185, 185 (2004) Molina v. State
EDWARD MOLINA, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 40598
April 14, 2004 87 P.3d 533
Appeal from a judgment of conviction pursuant to a guilty plea of sexual assault and
lewdness with a child under the age of fourteen. Eighth Judicial District Court, Clark County;
John S. McGroarty, Judge.
The supreme court, Maupin, J., held that: (1) plea was entered knowingly,
intelligently, and voluntarily; (2) defendant's counsel was not ineffective in investigating case
prior to recommending plea bargain; and (3) defendant waived the attorney-client privilege by
seeking to withdraw plea based on alleged ineffective assistance of counsel.
Affirmed.
Goodman & Chesnoff and Richard A. Schonfeld, Las Vegas, for Appellant.
1. Criminal Law.
A defendant who pleads guilty upon the advice of counsel may attack the validity of
the guilty plea by showing that he received ineffective assistance of counsel under the
Sixth Amendment to the United States Constitution. U.S. Const. amend. 6.
2. Criminal Law.
Guilty pleas are presumptively valid, especially when entered on advice of counsel,
and a defendant has a heavy burden to show the district court that he did not enter his
plea knowingly, intelligently, or voluntarily.
____________________

22
See Strickland, 466 U.S. at 689 (Even the best criminal defense attorneys would not defend a particular
client in the same way.).
3. Criminal Law.
To establish prejudice in the context of a challenge to a guilty plea based upon an
assertion of ineffective assistance of counsel, a defendant must demonstrate a
reasonable probability that, but for counsel's errors, he would not have pleaded guilty
and would have insisted on going to trial.
4. Criminal Law.
A district court may, in its discretion, grant a defendant's presentence motion to
withdraw a guilty plea for any substantial reason if it is fair and just.
5. Criminal Law.
A district court must examine the totality of the circumstances to determine whether a
defendant entered his plea voluntarily, knowingly, and intelligently.
6. Criminal Law.
A thorough plea canvass coupled with a detailed, consistent, written plea agreement
supports a finding that the defendant entered the plea voluntarily, knowingly, and
intelligently.
7. Criminal Law.
When reviewing a district court's denial of a motion to withdraw a guilty plea, the
supreme court presumes that the district court properly assessed the plea's validity, and
it will not reverse the lower court's determination absent abuse of discretion.
8. Criminal Law.
Defendant entered his guilty plea to charge of sexual assault of a minor under fourteen
knowingly, intelligently, and voluntarily. Prior to entering plea, the district court
carefully canvassed defendant on his understanding of the proceedings, the nature of the
charges, and the possible penalties, defendant signed a plea agreement memorializing
the negotiations and manifested his understanding of its terms, during the canvass, he
affirmatively admitted his guilt in connection with the charges, and his counsel
adequately reviewed the State's evidence and the plea agreement with defendant.
9. Criminal Law.
When counsel and the client in a criminal case clearly understand the evidence and the
permutations of proof and outcome, counsel is not required to unnecessarily exhaust all
available public or private resources in order to effectively represent defendant. U.S.
Const. amend. 6.
10. Criminal Law.
Defendant's counsel was not ineffective in investigating case prior to recommending
defendant accept plea bargain, where counsel was retained to try and obtain a better
plea agreement, he reviewed the State's evidence with defendant, discussed the charges
and elements the State would have to establish at trial, reviewed the plea agreement
with defendant, discussed defendant's other options, gave defendant an opportunity to
ask questions, and explained his belief that the victim's testimony was very strong, that
defendant lacked a defense for trial, and that he did not want to investigate potential
alibi witnesses due to the potential of perjury if the witnesses testified. U.S. Const.
amend. 6.
11. Witnesses.
Discussions between an attorney and a criminal client are always relevant to a judicial
determination of voluntariness and knowingness of a plea when a defendant in a
criminal case claims that his or her guilty plea was the product of ineffective
representation. Such claims, of necessity, implicate a waiver of the privilege against
disclosure of the communications between attorney and client.
implicate a waiver of the privilege against disclosure of the communications between
attorney and client.
12. Witnesses.
Defendant waived the privilege against disclosure of attorney-client communications
by moving to withdraw his plea based on counsel's alleged ineffective investigation of
case prior to recommending defendant take plea bargain. By arguing that counsel
should have pursued an alibi defense, defendant directly placed in issue the scope and
content of communications between himself and counsel, and thus, counsel was entitled
to testify that he could not ethically pursue an alibi defense due to defendant's
admission in the presence of his wife that he committed crime. U.S. Const. amend. 6;
NRS 49.095, 176.165; SCR 156(3)(b).
OPINION
Edward Molina appeals from a judgment of conviction entered upon pleas of guilty to
one count of sexual assault
1
and one count of lewdness with a child under the age of
fourteen.
2
He claims on appeal that the district court erred in denying his presentence motion
to withdraw the guilty pleas.
More particularly, Molina contends that his guilty pleas were the product of his
lawyer's inadequate assistance and thus not the result of knowing, voluntary and intelligent
waivers of his trial rights. He also contends that the district court improperly allowed his
attorney to reveal the substance of privileged attorney-client communications at the hearing
on his motion to withdraw the guilty pleas. We affirm.
On February 22, 2002, following proceedings in justice court, the State filed a
criminal information charging Molina with three counts of sexual assault with a minor under
fourteen years of age, two counts of lewdness with a child under fourteen years of age, and
one count of annoying a minor. Molina, represented by a deputy public defender, pleaded not
guilty at his arraignment in district court. Thereafter, the State presented a proposed plea
bargain agreement, which required Molina to plead guilty to one count of sexual assault and
one count of lewdness with a child under the age of fourteen.
At this point, Molina discharged his public defender and, through his spouse, secured
the services of private counsel, Brent Heggie, Esquire.
____________________

1
See NRS 200.366.

2
See NRS 201.230.
Heggie, Esquire. Heggie was unable to negotiate a better arrangement. After two trial
continuances, Molina entered pleas of guilty to an amended information drafted in conformity
with the original plea proposal.
3

The district court canvassed Molina before accepting his plea. Molina affirmed that he
read and understood the plea agreement before signing it, that he freely and voluntarily signed
the agreement, and that he believed the agreement was in his best interest. The district court
explained to Molina the possible sentences, parole eligibility, fines, and lifetime supervision
inherent in the plea arrangement, and further questioned Molina in graphic detail concerning
the charges to which he was entering pleas of guilty. Molina unequivocally admitted to
subjecting the minor victim to acts of anal intercourse and lewd misconduct. More
particularly, the record reflects the following colloquy between the district court and Molina:
Q: Sir, did you . . . willfully, unlawfully, feloniously subject the victim to sexual
penetration, to wit, anal intercourse by placing your penis in her anal opening against
her will? Yes or no?
A: Yes.
Q: As to Count Two, sir, did you commit a lewd or lascivious act with the body of the
victim by licking her buttock?
A: Yes.
The district court accepted Molina's plea after concluding that Molina freely and voluntarily
entered the pleas.
Before sentencing, Molina moved the district court to withdraw his guilty pleas,
asserting that he did not knowingly and intelligently waive his right to proceed to trial. The
moving papers claimed that Heggie met with Molina on only one occasion, failed to discuss
the State's evidence or the substance of the State's case until the evening before Molina was to
appear for trial, failed to adequately discuss the options of proceeding to trial and failed to
provide a defense. The motion also alleged that Heggie advised Molina that he had to plead
guilty because Heggie would not take the case to trial. The district court conducted an
evidentiary hearing on the motion before proceeding with formal sentencing.
4

Heggie was the only witness at the hearing. He testified to the limitations placed upon
his retention, i.e., that Mrs. Molina hired him solely to negotiate a better plea agreement.
Heggie initially believed that the case involved an accidental touching and that he could
improve upon the State's pending offer.
____________________

3
The plea agreement provided that Molina would serve two sentences of ten years to life on the separate
charges, and the State would not oppose concurrent imposition of the sentences by the district court.

4
Molina was present at the hearing.
could improve upon the State's pending offer. However, after discussions with Molina's
former public defender, Heggie learned that the case involved anal rape and that Molina had
arguably admitted the allegations to Mrs. Molina.
Heggie also testified to conducting six telephonic interviews with Molina and twice
visiting Molina in jail. According to Heggie, he reviewed the State's evidence with Molina,
5
informed Molina of the charges and elements of proof the State would have to satisfy at trial,
discussed the apparent lack of a defense to the charges and advised Molina that the State's
offer was likely the best he could obtain.
Over objection, Heggie testified that Molina admitted the sexual abuse allegations
during one of the interviews in the presence of Mrs. Molina. According to Heggie, after a
lengthy conversation with Mrs. Molina, Molina decided it was best to accept the plea
agreement as then presented. Thereafter, Heggie reviewed the plea agreement with Molina,
gave Molina an opportunity to ask questions, and discussed Molina's options if he wanted to
go to trial without Heggie as trial counsel. Heggie believed they could still put on a defense at
trial, but because of Molina's admissions of guilt, Heggie explained they could not present a
defense of actual innocence, including testimony from Molina, without informing the district
court that Molina or the trial witnesses might commit perjury. Heggie did not conduct an
extensive pretrial investigation because the ultimate goal of his representation was to improve
upon the then current negotiations rather than proceed to trial.
The district court denied the presentence motion to withdraw the pleas and imposed
two concurrent sentences of life in prison, with the possibility of parole in 120 months, and
lifetime supervision in the event of release on parole. The court gave Molina credit for 269
days served in local custody. Additionally, the court ordered Molina to submit to genetic
marker testing, to pay a $25 administrative assessment fee, a $150 DNA testing fee, and $446
in restitution.
DISCUSSION
Ineffective assistance of counsel
Notwithstanding the limited nature of Heggie's retention, Molina argues that his
counsel was deficient by not being ready for trial.
6
In this, Molina charges that Heggie failed
to conduct a reasonable pretrial investigation, citing failures to interview witnesses,
develop alibis through the victim's brother, obtain a psychological examination of the
child victim, and Heggie's refusal to take the case to trial.
____________________

5
According to Heggie, the public defender told him that she also had reviewed the evidence with Molina.

6
Molina argues that Heggie admitted at the hearing that he signed on for trial. Although Heggie agreed
that he did not clearly restrict the scope of his representation upon substituting as Molina's counsel, he testified
that he and Molina jointly understood that Molina never planned to go to trial and that his retention was limited
accordingly.
pretrial investigation, citing failures to interview witnesses, develop alibis through the
victim's brother, obtain a psychological examination of the child victim, and Heggie's refusal
to take the case to trial. Molina also argues that he did not enter his guilty pleas voluntarily or
intelligently because of Heggie's failure to visit and adequately discuss the State's evidence
with him, provide Molina with copies of discovery obtained from the district attorney, and
fully inform Molina regarding the pleas.
The question of whether a criminal defendant has received ineffective assistance of
counsel presents mixed questions of law and fact, and is subject to independent review.
7
We
review claims of ineffective assistance of counsel under the two-part test set forth in
Strickland v. Washington.
8
Under Strickland, the defendant must demonstrate that his
counsel's performance was deficient, i.e., it fell below an objective standard of
reasonableness, and that the deficient performance prejudiced the defense.
9
However, [i]n
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.
10
We
need not consider both prongs of the test if the defendant makes an insufficient showing on
either one.
11

[Headnotes 1-3]
A defendant who pleads guilty upon the advice of counsel may attack the validity of
the guilty plea by showing that he received ineffective assistance of counsel under the Sixth
Amendment to the United States Constitution.
12
However, guilty pleas are presumptively
valid, especially when entered on advice of counsel, and a defendant has a heavy burden to
show the district court that he did not enter his plea knowingly, intelligently, or voluntarily.
13
To establish prejudice in the context of a challenge to a guilty plea based upon an assertion of
ineffective assistance of counsel, a defendant must demonstrate a reasonable probability
that, but for counsel's errors, he would not have pleaded guilty and would have insisted on
going to trial.
____________________

7
Evans v. State, 117 Nev. 609, 622, 28 P.3d 498, 508 (2001).

8
466 U.S. 668 (1984).

9

10
Dawson v. State, 108 Nev. 112, 115, 825 P.2d 593, 595 (1992).

11
Kirksey, 112 Nev. at 987, 923 P.2d at 1107 (citing Strickland, 466 U.S. at 697).

12
Nollette v. State, 118 Nev. 341, 348-49, 46 P.3d 87, 92 (2002); see also Hill v. Lockhart, 474 U.S. 52, 58
(1985) (holding that Strickland's two-part test applies to challenges of guilty pleas based on ineffective
assistance of counsel).

13
Crawford v. State, 117 Nev. 718, 722, 30 P.3d 1123, 1126 (2001); Barajas v. State, 115 Nev. 440, 442,
991 P.2d 474, 476 (1999).
would have insisted on going to trial.'
14
Because the district court ruled on Molina's motion
before imposition of sentence, we may review its denial on direct appeal from the subsequent
judgment of conviction.
15

[Headnotes 4-7]
A district court may, in its discretion, grant a defendant's [presentence] motion to
withdraw a guilty plea for any substantial reason' if it is fair and just.'
16
Accordingly,
Nevada trial and appellate courts must apply a more relaxed standard to presentence motions
to withdraw guilty pleas than to post-sentencing motions.
17
A district court must examine
the totality of the circumstances to determine whether a defendant entered his plea
voluntarily, knowingly, and intelligently.
18
A thorough plea canvass coupled with a
detailed, consistent, written plea agreement supports a finding that the defendant entered the
plea voluntarily, knowingly, and intelligently.
19
When reviewing a district court's denial of
a motion to withdraw a guilty plea, this court presumes that the district court properly
assessed the plea's validity, and we will not reverse the lower court's determination absent
20

[Headnote 8]
We conclude that Molina has failed to substantiate his ineffective assistance claims.
First, the district court carefully canvassed Molina on his understanding of the proceedings,
the nature of the charges, and the possible penalties. Second, Molina signed a plea agreement
memorializing the negotiations and manifested his understanding of its terms. Third, during
the canvass, he affirmatively admitted his guilt in connection with the two charges. Fourth,
Molina failed to demonstrate that Heggie's performance was deficient under Strickland.
Molina impliedly argues that, to satisfy Strickland, counsel must fully and completely
prepare for trial, exhausting all avenues of defense, before rendering advice concerning a
negotiated arrangement proposed by the State.
____________________

14
Kirksey, 112 Nev. at 988, 923 P.2d at 1107 (quoting Hill, 474 U.S. at 59).

15
NRS 177.045; Lee v. State, 115 Nev. 207, 210, 985 P.2d 164, 166 (1999) ([A] district court's ruling on a
pre-judgment motion to withdraw a guilty plea is reviewable on direct appeal from the judgment as an
intermediate order in the proceeding.).

16
Woods v. State, 114 Nev. 468, 475, 958 P.2d 91, 95 (1998) (quoting State v. District Court, 85 Nev. 381,
385, 455 P.2d 923, 926 (1969)).

17
See NRS 176.165 (providing that a defendant may move to withdraw a guilty plea before or after
imposition of sentence, but the district court may only grant a post-sentence motion in order to correct manifest
injustice).

18
Crawford, 117 Nev. at 722, 30 P.3d at 1125-26.

19
Id.

20
Id. at 721, 30 P.3d at 1125.
fense, before rendering advice concerning a negotiated arrangement proposed by the State.
We disagree.
[Headnotes 9, 10]
Where counsel and the client in a criminal case clearly understand the evidence and
the permutations of proof and outcome, counsel is not required to unnecessarily exhaust all
available public or private resources. Here, Heggie testified that he reviewed the State's
evidence with Molina, discussed the charges and elements the State would have to establish
at trial, reviewed the plea agreement with Molina, discussed Molina's other options, and gave
Molina an opportunity to ask questions. He also explained his belief that the victim's
testimony was very strong, that Molina lacked a defense for trial, and that he did not
investigate potential alibi witnesses because of the potential of perjury if these witnesses
testified. Heggie's testimony establishes that he acted in an objectively reasonable manner
given Molina's goals for securing private counsel in this instance. Also, evidence of Molina's
admissions to Heggie in the presence of Mrs. Molina militates in favor of Heggie's view that
Molina would have been convicted of a series of very serious felonies and would have been
exposed to a sentencing structure with no reasonable chance of release during Molina's
lifetime. Molina has not addressed the quality of evidence that Heggie would have developed
with additional preparation, and we cannot discern from this record what it was about the
defense case that a more adequate investigation would have uncovered. Accordingly, Molina
has not demonstrated a reasonable probability that, but for counsel's errors, he would not
have pleaded guilty and would have insisted on going to trial.'
21

The district court was the sole judge of the credibility of the two opposing views aired
at the hearing on Molina's motion, and the district court was entitled to accept Heggie's
representations as true. Based upon the totality of the circumstances, we conclude that
substantial evidence supports the district court's findings that Molina entered his plea
knowingly, intelligently, and voluntarily. We therefore further conclude that Molina has
failed to demonstrate the district court abused its discretion in denying the presentence
motion to withdraw the guilty pleas.
Waiver of the attorney-client privilege
Molina argues that the district court erred by permitting Heggie to testify regarding
privileged attorney-client communications, specifically Molina's admissions that he
committed the charged offenses. Molina contends that only he could waive the privilege and
that he did not waive the privilege by filing his motion to withdraw his guilty pleas.
____________________

21
Kirksey, 112 Nev. at 988, 923 P.2d at 1107 (quoting Hill, 474 U.S. at 59).
that he did not waive the privilege by filing his motion to withdraw his guilty pleas. He
stresses that he did not testify at the hearing on his motion to withdraw his pleas, and that he
limited the focus of the motion to Heggie's inactions and the virtual non-existence of their
communications. From this he reasons that the minimal disclosures did not effect a waiver of
the attorney-client privilege. This argument is meritless.
While NRS 49.055 defines attorney-client communications as confidential and NRS
49.095 provides that a client has a privilege of refusing to disclose such confidential
communications, a client may waive the privilege.
22
Supreme Court Rule 156(3)(b) provides
that a waiver of the privilege occurs when it becomes necessary for counsel to respond to
allegations in any proceeding concerning the lawyer's representation of the client.
Additionally, the Legislature has instructed petitioners for writs of post-conviction habeas
corpus
23
that, if a writ petition contains a claim of ineffective assistance of counsel, the
claim acts as a waiver of the attorney-client privilege.
24
It follows by analogy and policy that
a defendant requesting withdrawal of his guilty plea for the same reason, but using NRS
176.165 as the statutory basis for relief, also waives the privilege in such proceedings.
25

[Headnotes 11, 12]
Discussions between an attorney and a criminal client are always relevant to a judicial
determination of voluntariness and knowingness of a plea when a defendant in a criminal case
claims that his or her guilty plea was the product of ineffective representation. Such claims,
of necessity, implicate a waiver of the privilege against disclosure of the communications
between attorney and client.
____________________

22
See Lisle v. State, 113 Nev. 679, 701, 941 P.2d 459, 473 (1997) (when client voluntarily reveals a
significant portion of communication with attorney, those revelations amount to a waiver of the attorney-client
privilege as to the remainder of the conversation or communication about the same subject matter' (quoting In
re Grand Jury Jan. 246, 651 N.E.2d 696, 700 (Ill. App. Ct. 1995))); cf. Manley v. State, 115 Nev. 114, 979 P.2d
703 (1999) (defendant's statements at trial did not constitute a waiver of privilege because the statements did not
disclose a significant portion of communications with attorney).

23
NRS 34.724.

24
NRS 34.735(6) states in relevant part:
If your petition contains a claim of ineffective assistance of counsel, that claim will operate to waive the
attorney-client privilege for the proceeding in which you claim your counsel was ineffective.

25
We emphasize that the further use of any incriminating statements disclosed by a defendant's attorney after
the waiver of the attorney-client privilege is left for another day. NRS 34.735(6) expressly limits the waiver of
the attorney-client privilege to the proceeding in which you claim your counsel was ineffective.
client.
26
Most significant for this controversy is Molina's claim on appeal that Heggie should
have pursued an alibi defense. That Heggie could not ethically pursue such a defense could
only be explained by Molina's admission to Heggie in the presence of Mrs. Molina.
27

We will not permit a defendant to use insufficient communication with his attorney as
a sword to assert a claim of ineffective assistance of counsel, but then use a claim of
attorney-client privilege as a shield to protect the content of his conversations with his
attorney.
28
We therefore hold that a motion to withdraw a guilty plea, based upon claims of
ineffective assistance of counsel, directly places in issue the scope and content of
communications between the attorney and the client.
CONCLUSION
The district court properly denied Molina's presentence motion to withdraw his guilty
plea. Accordingly, we affirm Molina's conviction.
29

____________________

26
See, e.g., Cazanas v. State, 508 S.E.2d 412, 413 (Ga. 1998) (trial court properly admitted defendant's
attorney's testimony when defendant asserted he did not enter his plea with knowledge and understanding of the
plea); Com. v. Woodberry, 530 N.E.2d 1260, 1261-62 (Mass. App. Ct. 1988) (trial court properly admitted the
testimony of a defendant's plea attorney regarding communications between the defendant and the attorney
relating to why the attorney advised the defendant that pleading guilty was in the best interests of the defendant);
see also Wardleigh v. District Court, 111 Nev. 345, 891 P.2d 1180 (1995) (holding in civil cases, that implied
waiver of privilege occurs when substance of communications is put at issue by a claim or defense and
eventually claimant will be forced to draw upon the privileged communication at trial in order to prevail).

27
We also note that Molina admitted during the plea canvass that he committed the offenses charged in the
amended information. Thus, the substance of the communication he asserts the privilege covered was already a
matter of public record.

28
See, e.g., Wardleigh, 111 Nev. at 354, 891 P.2d at 1186.

29
We note that this court, on October 7, 2003, entered an order temporarily suspending Heggie from the
practice of law in the State of Nevada. We also note that the district court did not have the ability to review
whether the events leading to the suspension had any bearing on Heggie's representation in this instance.
Nevertheless, we cannot conclude whether the district court would have reached a different result given Heggie's
testimony at the hearing. This issue must await a formal petition for post-conviction relief, which might require a
further evidentiary hearing.
____________
120 Nev. 195, 195 (2004) Kourafas v. Basic Food Flavors, Inc.
CHRISTOPHER T. KOURAFAS, dba THE ARCHITECT'S STUDIO, Appellant, v. BASIC
FOOD FLAVORS, INC., a Nevada Corporation, Respondent.
No. 39842
CHRISTOPHER T. KOURAFAS, dba THE ARCHITECT'S STUDIO, Appellant, v. BASIC
FOOD FLAVORS, INC., a Nevada Corporation, Respondent.
No. 40195
April 28, 2004 88 P.3d 822
Consolidated appeals from district court orders dismissing appellant's breach of
contract action and awarding respondent attorney fees and costs. Eighth Judicial District
Court, Clark County; Lee A. Gates, Judge.
Licensed architect brought action against project owner for breach of contract, seeking
compensation for construction management services. The district court dismissed the
complaint with prejudice, based on failure to state a claim, and awarded prevailing-party
attorney fees to owner. Architect appealed. The supreme court held that: (1) a licensed
architect's lack of a contractor's license does not necessarily preclude contractual recovery for
construction management services, and (2) whether architect was entitled to compensation
could not be resolved at motion to dismiss phase.
Flangas McMillan Law Group, Inc., and Gus W. Flangas and Ann E. Kolber, Las
Vegas, for Appellant.
Schreck Brignone and Todd L. Bice and James J. Pisanelli, Las Vegas, for
Respondent.
Brian Sandoval, Attorney General, and Charlotte M. Matanane Bible, Chief Deputy
Attorney General, Carson City, for Amicus Curiae Nevada State Board of Architecture,
Interior Design and Residential Design.
The appellate court rigorously reviews a district court's dismissal of an action for
failure to state a claim. NRCP 12(b)(5).
2. Pretrial Procedure.
On a motion to dismiss for failure to state a claim, the court regards all factual
allegations in the complaint as true, and draws all inferences in favor of the non-moving
party. NRCP 12(b)(5).
3. Licenses.
A licensed architect's scope of practice under the licensing statutes can include
construction management, and thus, a licensed architect does not need a contractor's
license to recover compensation for construction management services, if the
architect's contract with the project owner allows compensation for such services.
not need a contractor's license to recover compensation for construction management
services, if the architect's contract with the project owner allows compensation for such
services. NRS 623.023, 624.020(2), (4).
Issue of whether licensed architect's lack of a contractor's license precluded architect
from recovering compensation, pursuant to contract with project owner, for
construction management services could not be resolved at motion to dismiss phase,
because of factual disputes as to whether the architect performed the tasks designated as
construction management services under his architectural license and as to whether
project owner was aware of architect's lack of a contractor's license when owner entered
into the contract with architect. NRS 623.023, 624.020(2), (4).
OPINION
Per Curiam:
Appellant Christopher T. Kourafas, d/b/a The Architect's Studio, appeals from a
district court order dismissing his complaint with prejudice. In his complaint, Kourafas
alleged that he was entitled to payment for construction management services provided to
respondent Basic Food Flavors, Inc. The district court agreed with Basic Food that Kourafas'
complaint was defective because he did not allege that he had a contractor's license, and thus,
he could not recover for construction management services. We disagree. We conclude that a
contractor's license is not necessarily required to recover for construction management
services. We further conclude that the issue of whether Kourafas provided construction
management services is a question of fact to be determined by a jury.
Kourafas also appeals from a district court order awarding Basic Food attorney fees
and costs as the prevailing party. Based on our conclusion that Kourafas' complaint was
erroneously dismissed, the award of attorney fees and costs must be reversed.
FACTS
Kourafas, a licensed architect, entered into a written agreement with Basic Food
wherein he agreed to design a facility in North Las Vegas. Subsequently, Kourafas and Basic
Food entered into a second agreement wherein Kourafas agreed to manage the construction of
the facility he designed. In exchange for Kourafas' management services, Basic Food agreed
to pay Kourafas ten percent of the construction cost for the project.
Basic Food paid Kourafas for his services under the first agreement, but refused to pay
for services rendered under the second agreement. As a result, Kourafas filed a complaint for
breach of contract against Basic Food for failure to pay for construction management
services rendered.
contract against Basic Food for failure to pay for construction management services rendered.
Thereafter, Basic Food filed a motion to dismiss Kourafas' complaint pursuant to NRCP
12(b)(5), arguing that because Kourafas was not a licensed contractor, he had no right to
maintain an action to recover for construction management services, and therefore, he had
failed to state a claim upon which relief could be granted. The district court found that
Kourafas' complaint was defective as a matter of law because Kourafas did not allege that he
was a licensed contractor and that amending the complaint to include this fact would not cure
the defect. The district court subsequently granted Basic Food's motion for attorney fees and
costs pursuant to NRS 18.010.
DISCUSSION
On appeal, Kourafas asserts that the district court erred in dismissing his complaint
because (1) his managerial services fell within the scope of his architectural license;
therefore, his lack of a contractor's license was not fatal to his complaint; and (2) even if he
should have had a contractor's license, he would still be able to recover under a theory of
unjust enrichment. Kourafas also argues that Basic Food was not entitled to an award of
attorney fees and costs.
[Headnotes 1, 2]
We rigorously review a district court's dismissal of an action under NRCP 12(b)(5) for
failure to state a claim.
1
In so doing, we regard all factual allegations in the complaint as
true, and we draw all inferences in favor of the non-moving party.
2
We have recognized that
[a] complaint should only be dismissed if it appears beyond a reasonable doubt that the
plaintiff could prove no set of facts, which, if true, would entitle him to relief.
3

[Headnote 3]
We conclude that the district court erred in dismissing Kourafas' complaint because
the scope of practice as an architect can include construction management; hence, Kourafas'
lack of a contractor's license does not make his complaint defective.
NRS 623.017 defines an architect as any person who engages in the practice of
architecture. NRS 623.023 states:
The practice of architecture consists of rendering services embracing the scientific,
esthetic and orderly coordination of processes which enter into the production of a
completed structure which has as its principal purpose human habitation or
occupancy, or the utilization of space within and surrounding the structure,
performed through the medium of plans, specifications, administration of
construction, preliminary studies, consultations, evaluations, investigations,
contract documents and advice and direction.
____________________

1
Hampe v. Foote, 118 Nev. 405, 408, 47 P.3d 430, 439 (2002).

2
Id.

3
Id.
structure which has as its principal purpose human habitation or occupancy, or the
utilization of space within and surrounding the structure, performed through the
medium of plans, specifications, administration of construction, preliminary studies,
consultations, evaluations, investigations, contract documents and advice and direction.
A contractor, on the other hand, is defined as any person, except a registered
architect or a licensed professional engineer, acting solely in his professional capacity who,
by himself or through another, performs any of a wide-ranging number of tasks on a
construction project.
4
NRS 624.020(4) states that [a] contractor includes a construction
manager who performs management and counseling services on a construction project for a
professional fee.
The fact that the definition of a contractor includes a construction manager and
specifically excludes registered architects does not necessarily mean that an architect cannot
perform construction management services for compensation. The definition of an architect
under NRS 623.023 contemplates that an architect render services embracing the scientific,
esthetic and orderly coordination of processes which enter into the production of a completed
structure. (Emphasis added.) The definition does not end at only preparing plans and
specifications, which is what we ordinarily consider as the duties of an architect. An architect
is authorized to collaborate in the construction project through completion of the structure.
Our statute provides that an architect's authority includes administration of construction as
well as providing consultations, evaluation, investigations, contract documents and advice
and direction. Thus, an architect can, if the contract so provides, continue to assist in any
phase of construction pursuant to his licensure under NRS Chapter 623.
[Headnote 4]
The threshold inquiry to determine whether Kourafas performed construction
management services involves the nature of the tasks performed by Kourafas under the
second agreement between Kourafas and Basic Food. This inquiry is fact-intensive and was
not undertaken by the district court prior to dismissing Kourafas' complaint. Thus, it is
impossible to determine whether any portion of the actual work performed by Kourafas
constitutes construction management services that an architect cannot perform.
Additionally, there are certain situations when someone performing contractual
services is not precluded from recovery due to the lack of a necessary license.
____________________

4
NRS 624.020(2) (emphasis added).
the lack of a necessary license.
5
In Day v. West Coast Holdings,
6
a subcontractor (Day)
informed a general contractor (West Coast) that it lacked a specialty landscaping license,
which was required to perform the requested landscaping.
7
Nevertheless, West Coast
commissioned Day to perform the desired work with full knowledge of Day's licensing
deficiency.
8
After the work was completed, West Coast refused to pay pursuant to the
contract, asserting that according to NRS 624.320, it had no duty to pay because Day lacked
the license required to perform the landscaping for which it was requesting payment.
9
This
court disagreed, noting that strict application of NRS 624.320 would result in unjust
enrichment, and that West Coast could not claim the benefit of the contract and then seek to
avoid its liability.
10
Because West Coast was aware of Day's licensing deficiency at the time
of entering into the contract, this court concluded that Day was not precluded from recovering
for breach of contract.
11

It cannot be determined from the face of the complaint whether Kourafas performed
the tasks designated as construction management services under his architectural license.
Likewise, it cannot be determined whether Basic Food was aware of Kourafas' lack of a
contractor's license when the second agreement was executed. Therefore, there are factual
issues remaining, and the district court erred in dismissing Kourafas' complaint. Because the
district court erred in dismissing Kourafas' complaint, the award of attorney fees and costs
must be vacated.
For the foregoing reasons, we reverse the district court's orders dismissing Kourafas'
complaint and awarding attorney fees and costs to Basic Food, and we remand these matters
to the district court for proceedings consistent with this opinion.
____________________

5
See, e.g., Day v. West Coast Holdings, 101 Nev. 260, 699 P.2d 1067 (1985).

6
Id. at 265, 699 P.2d at 1071.

7
Id.

8
Id.

9
Id. at 265, 699 P.2d at 1070.

10
Id. at 265, 699 P.2d at 1071.

11
Id.
____________
120 Nev. 200, 200 (2004) Martinez v. State of Nevada
GINA E. MARTINEZ, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 39958
May 4, 2004 88 P.3d 825
Proper person appeal from a district court order that denied appellant's motion for
return of money deposited as bail. Eighth Judicial District Court, Clark County; Sally L.
Loehrer, Judge.
Individual, who posted bail for defendant, moved for return of the bail money. The
district court denied the motion and applied bail money toward restitution owed by defendant.
Individual who posted bail appealed. The supreme court held that bail statute did not
authorize bail money to be used for restitution.
Gina E. Martinez, South Daytona, Florida, in Proper Person.
David J. Roger, District Attorney, and James Tufteland, Chief Deputy District
1. Bail.
Trial court was not authorized to order defendant's bail money to be used to satisfy
restitution. Under bail statute, bail money could be used to satisfy fines and costs, but
no provision allowed for the use of bail money to satisfy restitution. NRS 178.502(1),
178.522(1), 178.528.
2. Fines; Sentencing and Punishment.
Restitution differs from a fine or costs. Restitution is compensation for benefits
derived from a wrong done to another, or compensation or reparation for the loss
caused to another, while a fine is a pecuniary criminal punishment or civil penalty
payable to the public treasury.
1

OPINION
Per Curiam:
This is a proper person appeal from a district court order that denied appellant Gina
Martinez's motion for return of money deposited as bail.
2
Martinez deposited $6,000 cash
bail for criminal defendant Patrick O'Kelly. In accordance with O'Kelly's guilty plea
agreement, the district court's judgment of conviction applied $5,038 of the cash bail toward
the restitution owed by O'Kelly. We conclude that the district court lacked statutory
authority to apply the cash bail deposited by Martinez towards O'Kelly's restitution.
____________________

1
The Honorable Michael L. Douglas, Justice, did not participate in the decision of this matter.

2
Although appellant was not granted leave to file papers in proper person, see NRAP 46(b), we have
considered the papers received from her.
conclude that the district court lacked statutory authority to apply the cash bail deposited by
Martinez towards O'Kelly's restitution.
FACTS
On August 2, 2000, a criminal complaint was filed in Las Vegas Justice's Court
against O'Kelly
3
for theft.
4
O'Kelly was arrested, and Martinez posted $6,000 cash bail. The
Las Vegas Justice's Court bound O'Kelly over to the district court as charged, and transferred
the cash bail to the district court. At O'Kelly's arraignment, he filed a guilty plea agreement in
open court, which stated that he would forfeit $5,038 of the cash bail to satisfy restitution that
he owed as a result of his crimes. The district court set O'Kelly's sentencing date, but he failed
to appear. Consequently, the district court issued a bench warrant for O'Kelly's arrest and sent
Martinez a notice of intent to forfeit the cash deposit. O'Kelly was later arrested and appeared
before the district court for sentencing.
At O'Kelly's sentencing, the district court entered a judgment of conviction, which
sentenced O'Kelly to one year at the Clark County Detention Center, and ordered him,
pursuant to his plea agreement, to pay restitution of $5,038 out of the $6,000 cash bail.
Martinez, represented by counsel, moved for return of the bail money. The district
court denied her motion,
5
and Martinez appealed. We now decide if the district court was
authorized to apply the cash bail deposited by Martinez to satisfy O'Kelly's restitution.
DISCUSSION
Although this appeal raises an issue of first impression in Nevada, it is well
recognized across the country that courts do not have inherent authority to apply cash bail to
pay a fine, costs, or restitution.
6
Therefore, in the absence of authority to apply cash bail to
pay fines, costs, or restitution, the practice is improper.
For example, the Wisconsin Court of Appeals reversed a trial court order that applied
cash bail deposited by the defendant's grandmother toward restitution.
7
The Wisconsin court
examined a state statute that allowed cash deposited as bail to be applied to any judgment for
a fine or costs but did not mention restitution.
____________________

3
The complaint was actually filed against Michael Lallo, which is one of O'Kelly's aliases.

4
See NRS 205.0832; NRS 205.0835.

5
Subsequently, Martinez moved for return of the money not applied to restitution. The district court granted
her motion and refunded the surplus.

6
See, e.g., State v. Nath, 52 P.3d 857 (Idaho 2002); State v. Cetnarowski, 480 N.W.2d 790 (Wis. Ct. App.
1992).

7
Cetnarowski, 480 N.W.2d at 793.
judgment for a fine or costs but did not mention restitution.
8
The court concluded that the
legislature had the opportunity to include restitution as an expense that could reduce the
amount of a bail refund, but it chose to exclude restitution. Therefore, the court deemed the
omission as an intentional exclusion of the use of bail as restitution.
9
Implicit in the court's
decision was the concept that the district court could have legitimately applied the cash bail to
any fines or costs because the statute put the depositor on notice that cash bail could be used
for such purposes.
In contrast, the Illinois Court of Appeals has held that cash bail deposited by a third
party can be applied to restitution for a victim of sexual abuse.
10
However, the Illinois
court's decision rested on an Illinois statute that explicitly allowed a court in a sexual abuse
case to apply a cash bond to restitution after court costs and any fines were paid out of the
bond.
11

Similarly, whether the district court was authorized to apply the cash bail deposited by
Martinez to pay O'Kelly's restitution turns on Nevada's statutory scheme governing bail.
Nevada's bail statutes
[Headnote 1]
In Nevada, NRS chapter 178 regulates bail. NRS 178.502(1) authorizes a court to
accept cash bail. NRS 178.522(1), in turn, provides that when the condition on the bond has
been satisfied, or the forfeiture of the bond has been set aside or remitted, the court shall
exonerate the obligors and release any bail unless the money deposited by the defendant as
bail must be applied to satisfy a judgment pursuant to NRS 178.528. Under NRS 178.528, a
judgment for the payment of a fine must be paid with any money deposited as bail that
remains on deposit at the time of the judgment. Additionally, this statute provides that costs,
as well as the fine, must be satisfied with the bail money, and that the court shall refund any
surplus to the person who deposited the bail.
[Headnote 2]
Notably, although Nevada's statutes allow bail money to be used for fines and costs,
no statutory provision authorizes the application of bail money to satisfy restitution. And it is
well recognized that restitution differs from a fine or costs. Restitution is [c]ompensation
for benefits derived from a wrong done to another," or "[c]ompensation or reparation for
the loss caused to another,
____________________

8
Id. The statute stated in part: If a judgment for a fine or costs or both is entered, any deposit of cash shall
be applied to the payment of the judgment. Wis. Stat. 969.03(1)(d) (1989).

9
Cetnarowski, 480 N.W.2d at 793.

10
People v. Rayburn, 630 N.E.2d 533 (Ill. App. Ct. 1994).

11
See Ill. Stat. Ann. 1005-5-6(e) (West Supp. 1992).
pensation for benefits derived from a wrong done to another, or [c]ompensation or
reparation for the loss caused to another,
12
while a fine is a pecuniary criminal punishment
or civil penalty payable to the public treasury.
13
Further, Nevada's statutes governing crimes
and punishment differentiate between restitution and fines.
14

Nevada's bail statutes did not put Martinez on notice that the money she deposited
might be applied to pay O'Kelly's restitution. In addition, there is no evidence that she
consented to the plea agreement. Although the district court may have been authorized to
apply the bail money to pay a fine or costs, it lacked statutory authority to apply the bail
money toward O'Kelly's restitution obligation. Our conclusion in this case is consistent with
the decisions of other jurisdictions that have reached this issue.
15

CONCLUSION
The district court erred by applying the cash bail deposited by Martinez to pay
O'Kelly's restitution. Accordingly, we reverse the district court's order and remand this matter
to the district court for further proceedings consistent with this opinion.
____________________

12

13
Id. at 647.

14
See NRS 193.330(1) (providing that an attempt to commit a gross misdemeanor is punishable by
imprisonment, or by a fine, or by both a fine and imprisonment); NRS 205.0835(5) (stating that [i]n addition to
any other penalty, the court shall order the person who committed the theft to pay restitution).

15
See Nath, 52 P.3d at 862 (concluding that applying a cash bond to the defendant's restitution was not
statutorily permitted); State v. Giordano, 661 A.2d 1311, 1314 (N.J. Super. Ct. App. Div. 1995) (holding that
neither the bail agreement nor state law authorized bail to be used to satisfy a defendant's restitution obligation
without the consent of the third party who posted bail); Cetnarowski, 480 N.W.2d at 793; see also Minasian v.
State, 655 So. 2d 1143, 1145 n.2 (Fla. Dist. Ct. App. 1995) (recognizing that although a statute allowed the
deduction of fines and costs from a defendant's cash bond, it did not authorize the forfeiture of the bond to pay
restitution).
____________
120 Nev. 204, 204 (2004) Pineda v. State
RAY PINEDA, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 36931
May 4, 2004 88 P.3d 827
Appeal from a judgment of conviction of second-degree murder with use of a deadly
weapon. Second Judicial District Court, Washoe County; Jerome Polaha, Judge.
The supreme court, Maupin, J., held that: (1) defendant's claim that prior felony
convictions were not admissible for impeachment purposes was not waived when defendant
introduced convictions during his direct examination; (2) prior convictions were admissible
for impeachment purposes; (3) self-defense is a defense to homicide although danger to life
or personal security may not have been real, if person in circumstances and from viewpoint of
defendant would reasonably have believed that he was in imminent danger of death or great
bodily harm; and (4) expert testimony would be admissible for purpose of explaining
generalized sense of danger characteristic of gang interactions.
Agosti, J., dissented in part.
Charles C. Diaz, Reno, for Appellant.
Brian Sandoval, Attorney General, Carson City; Richard A. Gammick, District
Attorney, and Joseph R. Plater III, Deputy District Attorney, Washoe County, for
Respondent.
1. Criminal Law.
Defendant's claim that prior felony convictions were not admissible for impeachment
purposes was not waived for appellate purposes when defendant introduced convictions
during his direct examination in prosecution for second-degree murder with use of a
deadly weapon because trial court conducted hearing on motion in limine concerning
admissibility of convictions, parties fully briefed issue, and trial court made definitive
ruling to admit both convictions. NRS 50.095(1).
2. Criminal Law.
Defendant's tactical decision to introduce evidence of defendant's prior convictions
after having objected to admissibility of convictions via a fully litigated motion in
limine does not result in waiver, for appellate purposes, of claim that convictions were
not admissible for impeachment purposes. NRS 50.095(1).
3. Witnesses.
Defendant's prior convictions for drug-related offense and for making terrorist threat
were admissible for impeachment purposes in prosecution for second-degree murder
with use of a deadly weapon where, by claiming self-defense, defendant placed his
credibility squarely in issue, and trial court carefully balanced probative value against
possible prejudicial effect. NRS 50.095(1).
4. Criminal Law.
Decision whether to admit a prior conviction for impeachment purposes rests within
the sound discretion of the trial court and will not be reversed absent a clear showing of
abuse. NRS 50.095(1).
5. Homicide.
Self-defense is a defense to homicide although the danger to life or personal security
may not have been real, if a person in the circumstances and from the viewpoint of the
defendant would reasonably have believed that he was in imminent danger of death or
great bodily harm.
6. Criminal Law.
Expert testimony would be admissible in prosecution for second-degree murder with
use of a deadly weapon for purpose of explaining generalized sense of danger
characteristic of gang interactions; defendant, who had been substantially immersed in
gang subculture, claimed self-defense due to concerns that victim was a gang member
and may have been armed. NRS 50.275.
Due Process Clauses of State and Federal Constitutions assure an accused the right to
introduce into evidence any testimony or documentation which would tend to prove the
defendant's theory of the case. Const. art. 1, 8; U.S. Const. amend. 14.
1

OPINION
Appellant, Ray Pineda, was tried below before a jury and found guilty of
second-degree murder with use of a deadly weapon. The district court thereafter sentenced
Pineda to serve two consecutive terms of life imprisonment with the possibility of parole after
ten years on each sentence.
Pineda contends on appeal that the district court erred in ordering in limine that the
State could introduce evidence of his prior convictions for impeachment purposes should he
decide to testify, rejecting Pineda's proposed jury instructions on the issue of self-defense, and
in its refusal to admit expert testimony proffered by Pineda on the generalities of gang culture
and gang life.
We reverse the judgment of conviction and remand for a new trial.
FACTS
According to trial witnesses, including Pineda himself, Pineda spent his adolescent
years in El Centro, California, during which he was substantially immersed in a gang and
drug subculture. He was the perpetrator as well as the victim of numerous acts of violence
and became addicted to controlled substances.
____________________

1
was the perpetrator as well as the victim of numerous acts of violence and became addicted to
controlled substances. In 1999, he moved to Sparks, Nevada, where he sought and maintained
relatively stable employment until his arrest in connection with this case. He was attacked
twice after moving to northern Nevada, once by his brother in October 1999, and again in
November 1999 by several assailants in downtown Reno. As of December 2, 1999, the night
of the homicide that is the subject of this appeal, Pineda resided with a couple, Leonard
Anaya and Chargal Woefle. During the evening of December 2, 1999, a series of interactions
occurred involving Pineda, Anaya, Woefle, another couple, Adrianna Melendez and Jorge
Chacon, and the victim, Julio Jimenez.
Chacon and Jimenez had been members of a northern Nevada street gang with whom
Pineda and Anaya had no association. Upon being introduced to Chacon on December 2,
1999, Pineda identified himself by his gang alias, Lazy from El Central. According to his
testimony, Pineda did this to diffuse any suspicion or concerns that Chacon might have
harbored over the possibility that Pineda may have been a member of a local rival street gang.
Although the group socialized through much of the evening, tensions among them escalated
after Pineda and Anaya refused to assist or back up Chacon and Jimenez during a potential
altercation with unidentified third parties. Chacon and Jimenez were intoxicated and Chacon
expressed dissatisfaction during the course of the evening over Pineda's failure to commit
assistance to Chacon should another problem arise. The situation reached its apex in a
restaurant parking lot when Chacon continued to confront Pineda and when Jimenez
approached Pineda despite a warning by Pineda to stop his advance. A physical altercation
ensued during which Pineda stabbed Jimenez several times and, in doing so, inflicted mortal
wounds from which Jimenez died several hours later in a local hospital.
Present at the parking lot were Pineda, Chacon, Melendez, Jimenez, Anaya and
Woefle. Pineda testified he and Chacon exited the vehicle to relieve themselves, and that
Chacon approached and again confronted him. Chacon appeared to be calming down when
Melendez approached and tried to pull Chacon away from Pineda. Unfortunately, this only
incensed Chacon, after which Jimenez approached Pineda in a threatening manner. According
to Pineda, he told Jimenez to back up, Jimenez continued to advance, and Pineda then
pulled a knife from a sheath inside his trousers in an attempt to ward off what he perceived as
an attack. Jimenez pressed forward notwithstanding the weapon and, as noted, was stabbed
several times during the interchange that followed. Pineda described the knife as a nine-inch
throwing knife that he carried with him to work to cut packing tape and open boxes. Pineda
also testified to his assumption that Chacon and Jimenez might carry weapons since they
were gang members, that he did not intend to kill Jimenez, that he only wanted to
extricate himself from the situation, and that the separate recent attacks on his person
increased his level of apprehension when confronted by Chacon and Jimenez.
testified to his assumption that Chacon and Jimenez might carry weapons since they were
gang members, that he did not intend to kill Jimenez, that he only wanted to extricate himself
from the situation, and that the separate recent attacks on his person increased his level of
apprehension when confronted by Chacon and Jimenez.
No one actually saw Pineda stab Jimenez during the altercation. Interestingly, Chacon
denied any memory of the incident, claiming an advanced state of intoxication, but testified
that neither he nor Jimenez habitually or regularly carried arms. Woefle substantially
confirmed Pineda's testimonial description of events that evening, but only saw the men
fighting and could not describe how the knifing of Jimenez occurred. She related that Pineda
eventually subdued Jimenez by placing him in a headlock, that Jimenez was bleeding
profusely after Pineda released him and that, after his release from Pineda, Jimenez's viscera
were exposed. Woefle offered one additional fact to the description of events: that she saw
Jimenez approach and touch Pineda on the shoulder in a nonaggressive manner, at which time
Pineda punched Jimenez and the fight proceeded from there. Pineda confirmed at trial that
Jimenez never used or displayed a weapon of any kind during the events pertinent to this
appeal.
During his trial testimony, Pineda admitted that he lied to detectives following his
arrest when he claimed that Jimenez brought the knife to the fight. His explanation for lying
about the incident was that he was afraid. He also told the jury that he and Woefle fled the
scene and the Reno area to avoid retaliation from Chacon and his street gang.
Pineda argued at trial that he was not guilty by reason of self-defense. To support this
theory, Pineda's counsel presented a comprehensive offer of proof through Dr. Ron
Martinelli, a highly experienced expert on gang life and culture in California and Nevada. Dr.
Martinelli was principally called to testify to the generalities of gang life and that a person in
that culture would reasonably conclude that a confrontation similar to that described by
Pineda and in the police investigative file would result in an imminent danger to life or bodily
injury. However, Dr. Martinelli admitted that he: (1) was not familiar with Pineda's particular
gang existence in California, (2) was not familiar with the gangs to which the other testifying
witnesses belonged, and (3) did not have personal knowledge about the gang activity of the
individuals involved in this case. The district court refused to allow Dr. Martinelli to testify
during the guilt phase of the trial based upon the general nature of his testimony and his lack
of familiarity with the principals involved.
As discussed below, the district court instructed the jury on self-defense in a manner
disapproved of by this court in Culverson v. State.
v. State.
2
Thereafter, the jury found Pineda guilty of second-degree murder with the use of a
deadly weapon. Pineda appeals from the judgment of conviction entered upon the verdict.
DISCUSSION
I. Admission of Pineda's prior convictions for impeachment purposes
[Headnotes 1, 2]
Pineda's criminal record contains two prior felony convictions, one drug related and
another involving the making of a terrorist threat. Pineda now challenges a pretrial order in
limine that the convictions could be used by the State for impeachment under NRS 50.095(1)
3
should he choose to testify.
At trial, Pineda's attorney called Pineda as a witness and introduced the fact of the
convictions during his direct examination. Thus, as a threshold matter, the State contends that
Pineda waived his right to contest the ruling in limine on appeal because he himself elicited
this evidence. Because Nevada law concerning such waivers by a defendant is unclear, we
take this opportunity to clarify our views on the issue.
The State relies upon Ohler v. United States
4
in support of its waiver argument. In
Ohler, the United States Supreme Court concluded that a defendant waives his appellate
standing concerning admission of prior convictions when he preemptively introduces the
prior convictions after an unfavorable ruling on a motion in limine.
5
Because such orders
may be revisited at any time during trial, Ohler notes that [a]ny possible harm flowing
from a district court's in limine ruling permitting impeachment by a prior conviction is wholly
speculative.'
6
Several states have adopted this rule,
7
while others have rejected it.
8
States
that have rejected Ohler have done so because a trial court is fully aware of the proposed
evidence and law when ruling on such evidence in limine, and it is a poor trial tactic for
defense attorneys to wait for the prosecution to introduce such evidence on
cross-examination.
____________________

2
106 Nev. 484, 487-88, 797 P.2d 238, 239-40 (1990).

3
For 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 1 year under the
law under which he was convicted.

4
529 U.S. 753 (2000).

5
Id. at 760.

6
Id. at 759 (quoting Luce v. United States, 469 U.S. 38, 41 (1984)).

7
See Rivers v. State, 792 So. 2d 564, 566-67 (Fla. Dist. Ct. App. 2001); People v. Rodgers, 645 N.W.2d
294, 302 (Mich. Ct. App. 2001); State v. Frank, 640 N.W.2d 198, 202-03 (Wis. Ct. App. 2001).

8
See Ohler, 529 U.S. at 762-63 (Souter, J., dissenting); State v. Keiser, 807 A.2d 378, 387 (Vt. 2002); State
v. Thang, 41 P.3d 1159, 1167-68 (Wash. 2002); State v. Daly, 623 N.W.2d 799, 801 (Iowa 2001); see also State
v. Dunlap, 550 S.E.2d 889, 896-97 (S.C. Ct. App. 2001) (citing Ohler and relying on state law grounds to
address defendant's claim).
Ohler have done so because a trial court is fully aware of the proposed evidence and law
when ruling on such evidence in limine, and it is a poor trial tactic for defense attorneys to
wait for the prosecution to introduce such evidence on cross-examination.
9
Given the nature
of this tactical dilemma, these courts have held that a defendant may under such
circumstances appeal a trial court's preliminary ruling conditionally admitting prior bad acts
or convictions for impeachment purposes.
10
Given our recent decision in Richmond v. State,
we agree that on appeal from a final judgment of conviction, a defendant may properly
challenge such a trial court ruling.
11

By way of history, we held in Rice v. State
12
that, because pretrial rulings in limine
do not bind a district court and may be reversed or modified at trial, a defendant in criminal
proceedings must object to evidence when presented at trial to preserve the issue for appeal.
13
However, in Richmond we modified Rice, concluding that
where an objection has been fully briefed, the district court has thoroughly explored the
objection during a hearing on a pretrial motion, and the district court has made a
definitive ruling, then a motion in limine is sufficient to preserve the issue for appeal.
14

In the present case, both parties fully briefed the issue, the district court conducted a
hearing, and the district court made a definitive ruling to admit both of Pineda's prior felony
convictions for impeachment purposes should Pineda choose to testify. Here, had Pineda's
counsel waited for the State to introduce the evidence of Pineda's prior felony convictions, he
could have tested the validity of that ruling on appeal from the judgment of conviction under
Richmond. As a logical extension of Richmond, we now choose to follow those states that
allow appellate consideration of the admissibility of criminal convictions for impeachment
purposes where the defendant, as a tactical matter, elects to introduce such evidence after
having objected to basic admissibility via a fully litigated motion in limine. This approach
permits appellate review of whether the impeachment material was properly admitted in the
first instance. We also agree with Justice Souter's dissent in Ohler that the majority position
creates an anomaly in which a silent defendant who never intended to testify in the first
place is given the benefit of appellate review of such a ruling.
____________________

9
Ohler, 529 U.S. at 762 (Souter, J., dissenting); Thang, 41 P.3d at 1167-68; Daly, 623 N.W.2d at 801.

10
See Daly, 623 N.W.2d at 801; Thang, 41 P.3d at 1168.

11
118 Nev. 924, 59 P.3d 1249 (2002).

12
113 Nev. 1300, 949 P.2d 262 (1997).

13
Id. at 1311, 949 P.2d at 269.

14
Richmond, 118 Nev. at 932, 59 P.3d at 1254.
silent defendant who never intended to testify in the first place is given the benefit of
appellate review of such a ruling.
15

[Headnotes 3, 4]
Having concluded that Pineda did not waive his right to appeal this issue, we now
determine whether the district court erred in conditionally agreeing to admit Pineda's two
prior felony convictions for impeachment purposes. NRS 50.095(1) and our prior case
authority permit impeachment by proof of prior felony convictions which are not too remote
in time.
16
Going further, we have held that NRS 50.095 imposes no requirement that such
impeachment should be limited to only those felonies directly relevant to truthfulness or
veracity.
17
Thus, the decision whether to admit a prior conviction for impeachment purposes
rests within the sound discretion of the trial court, and will not be reversed absent a clear
showing of abuse.
18
We conclude that the district court did not abuse its discretion in
agreeing to conditionally admit the prior convictions.
By testifying that he took the life of Jimenez in self-defense, Pineda placed his
credibility squarely in issue. This is underscored by his admitted lies to the police at the time
of his arrest and his attempts to mislead Woefle during their flight from Reno regarding
whose knife was used in the altercation with Jimenez.
19
We have held, however, that prior to
the admission of felony convictions for impeachment, a district court must determine whether
the probative value of the proposed evidence substantially outweighs its potential for unfair
prejudice.
20
Pineda contends that the district court did not properly undertake this balancing
exercise.
The district court determined that Pineda's drug and terrorist threat convictions were
probative of Pineda's credibility as a witness testifying in his own defense. Subsequently, the
district court attempted to balance the competing interests associated with the introduction of
the evidence by offering to redact any mention of the word terrorist from Pineda's second
conviction. However, Pineda's counsel expressed concerns over the more personal
connotation the remaining verbiage might engender in the minds of the jury and
requested that the judge not redact any of the language in the judgment of conviction.
____________________

15
See Ohler, 529 U.S. at 760-61 (Souter, J., dissenting).

16
See Yates v. State, 95 Nev. 446, 449-50, 596 P.2d 239, 241-42 (1979).

17
Id.

18
Givens v. State, 99 Nev. 50, 53, 657 P.2d 97, 99 (1983), overruled on other grounds by Talancon v. State,
102 Nev. 294, 721 P.2d 764 (1986); see also NRS 50.095.

19
Woefle testified in the State's rebuttal case that Pineda claimed during their flight from Reno that he had
taken the knife away from Jimenez during their physical exchange.

20
See Yates, 95 Nev. at 449-50, 596 P.2d at 241-42; see also NRS 48.035(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.).
notation the remaining verbiage might engender in the minds of the jury and requested that
the judge not redact any of the language in the judgment of conviction.
We conclude that the district court carefully balanced the probative value of these two
convictions against their possible prejudicial effect. Therefore, we conclude that the district
court's ruling was not manifestly incorrect.
21

II. Pineda's proposed self-defense instructions
Pineda argues that the district court erred by not adopting his proposed jury
instructions concerning self-defense. The State contends that Pineda failed to object to the
instructions ultimately adopted by the district court and, therefore, is entitled only to assert
plain error on appeal.
22
Although the district court did not settle jury instructions on the
record, Pineda proposed alternate instructions and the minutes reflect that he objected to the
instructions ultimately adopted by the court concerning (1) burden of proof, (2) duty to
retreat, and (3) self-defense. We conclude that Pineda raised a sufficient objection to preserve
these issues for appeal.
[Headnote 5]
Pineda's argument primarily centers on the district court's jury instruction 24, which
provided in part:
The defendant has offered evidence of having acted in self-defense when Julio
Jimenez was killed. Self-defense exists when the killing is committed in the lawful
defense of the slayer when there is reasonable ground to apprehend a design on the part
of the person slain to do some great personal injury to the slayer, and there is imminent
danger of such design being accomplished.
A bare fear of such a threat shall not be sufficient to justify the killing. It must appear
that the circumstances were sufficient to excite the fears of a reasonable person, and
that the party killing really acted under the influence of those fears and not in a spirit of
revenge.
(Emphasis added.)
____________________

21
We note that Pineda's primary attack on the ruling allowing introduction of the prior convictions does not
address admissibility of the convictions under NRS 50.095(1), but rather, addresses whether the convictions
were introduced as improper character evidence. See NRS 48.045. We reject this line of argument as being
without merit and instead restrict our ruling on admissibility to an analysis of the case under NRS 50.095(1). See
Yates, 95 Nev. at 449 n.2, 596 P.2d at 241 n.2.

22
See Leonard v. State, 117 Nev. 53, 63, 17 P.3d 397, 403-04 (2001); Cordova v. State, 116 Nev. 664, 666,
6 P.3d 481, 482-83 (2000); NRS 178.602.
The instruction quoted above is similar to that rejected in Culverson v. State,
23
in
which we concluded that a reasonably perceived apparent danger as well as actual danger
entitles a defendant to an instruction on self-defense. We stated in Culverson that
[s]elf-defense may justify a homicide if a person reasonably believes that he is in danger of
being seriously injured or killed by his assailant.
24
Like the discredited instruction in
Culverson, the language in instruction 24, that [s]elf-defense exists when . . . there is
reasonable ground to apprehend [danger] . . . and there is imminent danger, may have tended
to confuse the jury on the point of whether actual danger as opposed to apparent danger of
death or great bodily harm was required for a valid assertion of self-defense to murder. At
trial, the district court refused Pineda's self-defense instruction under Culverson that
[s]elf-defense is a defense although the danger to life or personal security may not have
been real, if a person in the circumstances and from the viewpoint of the defendant
would reasonably have believed that he was in imminent danger of death or great
bodily harm.
We conclude that Pineda's proposed instruction correctly stated the law concerning
real versus apparent danger in cases where a defendant seeks to assert self-defense. We
also note that the proposed instruction is consistent with the sample instruction approved by
this court in Runion v. State,
25
a decision rendered after the trial in this case. Under
Culverson, the failure in the instruction process below mandates reversal.
26

____________________

23
106 Nev. at 487-88, 797 P.2d at 239-40.

24
Id. at 489, 797 P.2d at 241.

25
116 Nev. 1041, 13 P.3d 52 (2000). The instructions in Runion stated, in part:
Actual danger is not necessary to justify a killing in self-defense. A person has a right to defend from
apparent danger to the same extent as he would from actual danger. The person killing is justified if:
1. He is confronted by the appearance of imminent danger which arouses in his mind an honest belief
and fear that he is about to be killed or suffer great bodily injury; and
2. He acts solely upon these appearances and his fear and actual beliefs; and
3. A reasonable person in a similar situation would believe himself to be in like danger.
The killing is justified even if it develops afterward that the person killing was mistaken about the
extent of the danger.
Id. at 1051-52, 13 P.3d at 59.

26
Pineda also claims on appeal that the district court gave inconsistent instructions on the duty to retreat and
that the district court improperly reversed the State's burden of proof to negate a claim of self-defense. We find
no such errors in the instructions given. We also reject Pineda's invitation to revisit our
III. Pineda's proposed expert testimony regarding gang culture
[Headnote 6]
Pineda claims that the district court erred in refusing to allow Dr. Martinelli's expert
testimony and opinions concerning gang culture and the heightened sense of danger a person
within that culture might perceive during a confrontation similar to that described by the
witnesses at trial. Because we reverse and remand for a new trial based upon the self-defense
instructions, we will comment briefly on the admissibility of this type of evidence upon
retrial. The admission of expert testimony is governed by NRS 50.275, which allows a
qualified expert to give testimony if the specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue.
27
It is quite probable that the
average juror either knows little of gang subcultures, obligations placed upon its members,
and the interaction of gang members either within individual gangs or between members of
different gang organizations. Thus, we conclude that the defense may elicit evidence on
remand from a qualified gang expert to testify generally to the violent nature of gang
members, characteristics of southern and northern California gangs and their similarities to
street gangs operating in northern Nevada, the pressures that induce membership, methods of
attack through utilization of superior numbers, the propensity of gang members to carry
deadly weapons, and the heightened sense of danger that gang members experience in their
interactions with other persons with gang affiliations. A generalized sense of danger
characteristic of gang interactions is relevant to Pineda's theory of self-defense that a
reasonable person encountering Chacon and Jimenez under the circumstances described
would entertain a belief of apparent imminent danger of losing his life or sustaining great
bodily injury.
28
This testimony would also serve to corroborate the reasonableness of his
belief that Jimenez and Chacon may have been armed given their status as street-gang
members. The expert's lack of familiarity with the witnesses in this case should not disqualify
the expert from giving this type of testimony.
____________________
prior rulings on the doctrine of imperfect self-defense. See Hill v. State, 98 Nev. 295, 297, 647 P.2d 370, 371
(1982) (rejecting the imperfect self-defense theory).

27
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.

28
See Culverson, 106 Nev. 484, 797 P.2d 238.
[Headnote 7]
The due process clauses in our constitutions assure an accused the right to introduce
into evidence any testimony or documentation which would tend to prove the defendant's
theory of the case.
29
The interactions leading up to Jimenez's unfortunate demise are
inextricably related to the egocentric nature of gang mentalities. On remand, an expert may
obtain sufficient background for the generalized opinions about the reasonableness of a
heightened sense of fear that a person from a gang background would harbor in such a
situation by observing the in-court testimony by Pineda and the other witnesses.
Expert testimony on gang culture is particularly important in light of our conclusion,
supra, that this case must be reversed and retried under self-defense instructions in accord
with Culverson and Runion. Pineda's defense theory that he was of the reasonable belief that
he could lose his life or sustain substantial injury is consistent with Culverson and Runion.
30
Our decision in Runion underscores that reasonably apparent danger, even where it turns out
that the danger did not in fact exist, may form a legitimate claim of justifiable homicide based
upon self-defense. Expert testimony concerning gang culture dovetails with our self-defense
jurisprudence; such testimony does not imply that gang members are never guilty of murder
when such a murder occurs in the context of a hostile armed confrontation involving gangs.
In light of the above, we reverse Pineda's judgment of conviction and remand this
matter for a new trial.
Shearing, C. J., Rose, Becker and gibbons, JJ., concur.
____________________

29
Vipperman v. State, 96 Nev. 592, 596, 614 P.2d 532, 534 (1980).

30
See supra section II.
Dr. Martinelli testified at sentencing that: (1) Pineda acted appropriately low key and nonconfrontational
during the evening in question; (2) Chacon and Jimenez sought to involve Pineda in their activities and, as their
guest, expected him to assist them; (3) Chacon and Jimenez felt disrespected by Pineda's refusal to assist them;
(4) Chacon and Jimenez were the provocateurs during events leading to the confrontation; (5) a person in
Pineda's situation as described during trial would have believed that the confrontation was a situation of
imminent jeopardy and immediate desperation; and (6) a person in Pineda's situation would have done whatever
was necessary to survive. We conclude that this specific factual testimony does not fall within properly
admissible expert testimony for the purpose of the guilt phase of criminal proceedings. See NRS 50.275; NRS
50.285. The district court properly excluded expert testimony that, based upon the circumstances of the case,
Pineda's decision to use deadly force was the product of a rash impulse or desperation; testimony amounting to
comments on Pineda's mental processes; and testimony describing what, if any, effect the scenario described by
the witnesses would have on Pineda's actual behavior. Thus, hypothetical questions based upon such information
should not be allowed on remand. The district court also correctly determined that Boykins v. State, 116 Nev.
171, 995 P.2d 474 (2000), was not applicable to the instant controversy.
Agosti, J., concurring in part and dissenting in part:
I concur in the majority's determination that Pineda's conviction ought to be reversed
because of the erroneous instructions given the jurors concerning the defense of self-defense.
However, I disagree that, at a new trial, the jurors should be permitted to hear the testimony
of Dr. Ron Martinelli, the expert called by the defense, or any other so-called expert on gang
culture, who would testify concerning the reasonableness of a gang member's belief of
apparent imminent danger.
The record below discloses that the defense, outside the jury's presence, offered the
testimony of Ron Martinelli. Dr. Martinelli described himself as a criminologist, a criminal
justice consultant and a former law enforcement officer with twenty-four years of experience
as a police officer. While Martinelli was not asked to describe his qualifications for the
record, his resume is a part of the record and discloses that he obtained a Doctor of
Philosophy in Criminology in 1986 from Columbia Pacific University. He worked for the San
Jose Police Department from 1977 through 1992. His duties while so employed were varied;
Street Gang Investigations was one of a wide array of assignments. From 1992 to 1993, he
was involved in the administration of the California POST accredited law enforcement Basic
Police Academy. He left in 1993 to begin full-time consulting. In 1994, he served as a police
officer and detective for the Morro Bay Police Department. His duties included investigating
felonies, major crimes and narcotics violations. Gang work is not mentioned in the resume.
Martinelli's resume also lists his work as a private consultant from 1980 through the present.
His services as a consultant are varied, and gang violence and community-oriented policing
strategies are mentioned, along with a variety of other areas of expertise.
The heart of Martinelli's testimony began with his agreement with Pineda's counsel
that gang members do not act, think or react in the same fashion as nongang members. At
this point, the trial judge intervened to ask Martinelli if he had interviewed any of the people
involved in this case. Martinelli had not. The testimony continued and finally, after a lengthy
hypothetical predicate, Martinelli was asked for his opinion as to whether an individual's
gang subculture/affiliation would be a significant factor in considering or evaluating
whether a reasonable person under the circumstances that existed that night that this
particular individual from Southern California was confronted with, whether a person
under those circumstances would have a belief that he was in imminent danger of his
life or great bodily injury when confronted with these two other individuals?
In response, Martinelli testified that
[t]here is always a risk associated with anybody involved in gang activity, the risk of
injury or the risk of death. Their perception[s], because of the environment that they
live in, . . . are heightened as compared to a regular person on the street . . . . I think that
being involved in the totality of that gang environment and that experience, coupled
with the situation that is occurring immediately in front of them in which they are
directly involved, I think has a great basis on how that person is going to attempt to
defend themselves or fend off an attack.
Pineda's counsel added more to his original hypothetical and eventually asked Martinelli for
his opinion as to whether the decision to use the knife was formed in passion and was the
product of an unconsidered and rash impulse. Martinelli responded by agreeing with
counsel's statements and adding that it was
an impulsive act, but certainly a desperate act in that case, again, given a history of a
person that grew up in a gang environment, had been around violence, especially in
southern California which is extremely violent, being involved in a direct confrontation
with one gang member with another gang member possibly coming in and having to be
held back by another person, feeling that level of jeopardy, and in recalling rat packs
and what that is like in that gang environment, I think the person would be quite
desperate to finish the fight with one person present for the fight with the second
person.
The State objected to Martinelli's testimony and characterized the witness's conclusions, in a
nutshell as, based upon my experience with gang members and violence out of California,
he's justified in using deadly force under that factual scenario. In my opinion, the State's
characterization is a fair one. Martinelli's testimony, if believed, permits the conclusion that
every gang member has been inculcated with the belief that he must respond violently to
every potential act of aggressionwithout the intent to commit murder as his state of mind.
Martinelli has never personally interviewed Pineda nor has he consulted with any psychiatric
expert who has interviewed or tested Pineda. His testimony is simply: Pineda, as a gang
member, has a heightened sense that he must respond violently to protect himself and so he
does not possess the intent to commit murder. If this is so, no gang member is ever guilty of
murder. I cannot accept that this proposition is proper evidence for the jury and remain
unconvinced that Martinelli, in any event, possesses sufficient knowledge and expertise to so
testify.
It is surprising to me that the majority would volunteer that this type of evidence is
admissible at a new trial. The district court already heard Martinelli and, in a proper
exercise of discretion, refused to let the jury hear it.
ready heard Martinelli and, in a proper exercise of discretion, refused to let the jury hear it.
The trial judge correctly expressed his concern that basic relevance had not been established
since, according to Martinelli's resume, his gang experience as a police officer was dated and
was not shown to be similar to the gang environment of Reno in 2004.
Pineda's counsel sought to admit the testimony based upon the authority of Boykins v.
State.
1
In that case, we held that the effect of domestic violence upon a person's beliefs,
behavior and perception is admissible in a murder prosecution to show the defendant's state
of mind.
2
Our decision in Boykins was based upon NRS 48.061, which authorizes the
admission of expert evidence concerning the effect of domestic violence on the beliefs,
behavior and perception of the person when determining state of mind or self-defense.
3
Boykins is this court's recognition of a legislative policy determination concerning the
admissibility of evidence documenting the effects of domestic violence. Defense counsel
candidly admitted to the court that there is no documented gang member syndrome as
described in the substance of Martinelli's testimony. Counsel acknowledged that Martinelli's
testimony was cutting edge but urged the court to accept the premise that recognition of a
gang member syndrome, like Battered Women's Syndrome, had to start somewhere. Counsel
asked the court to accept Martinelli's testimony as helpful for the jury concerning what Pineda
was thinking, why Pineda may have reacted as he did and, though not a defense to murder, as
evidence that can go to an issue of self-defense in explaining why certain things were done.
The trial judge denied Pineda's request to admit Martinelli's testimony. The trial judge's
determination should be affirmed.
First, if the majority is to evaluate the trial judge's decision at all, it must do so under
an abuse of discretion standard. I am hard pressed to conclude that the trial judge abused his
discretion. He heard the evidence, expressed doubts based upon legal relevance as to the
currency of the witness's experience and the similarity of the witness's experience in the
1970s in California to northern Nevada in 2004. These doubts are legitimate, substantive and
within the discretion of the court.
Additionally, the trial judge questioned the applicability of the Boykins decision to the
facts at hand. This also appears to be within the discretion of the trial judge. In Boykins, the
court dealt with the application of legislative policy memorialized in a statute authorizing the
admissibility of evidence of Battered Women's Syndrome. Here, we have no statute and no
recognized syndrome of a person victimized by violence who learns, as a product of such
violence, patterns of survival behavior.
____________________

1
116 Nev. 171, 995 P.2d 474 (2000).

2
Id. at 176, 995 P.2d at 477-78.

3
Id.
of a person victimized by violence who learns, as a product of such violence, patterns of
survival behavior. In Boykins, the expert who testified was an acknowledged expert
concerning Battered Women's Syndrome. The jury was required, before accepting her
testimony, to determine whether Boykins had established that she suffered from Battered
Women's Syndrome.
In contrast, in this case, the majority concludes that the trial judge should admit the
testimony of a person with no direct experience with the current gang culture in northern
Nevada, the currency of whose experience with gangs is questionable, dated and regionalized
to southern California and who has not ever spoken with, tested or interviewed the defendant.
The majority concludes that it is permissible to admit expert testimony that the defendant's
conduct in killing the victim was, as characterized by the State, justifiedbecause the
defendant is a gang member and therefore possessed of a heightened sense of danger.
Finally, I am concerned that the analysis applied by the majority in formulating the
conclusion that this kind of expert testimony is admissible was never offered to the trial
judge for his consideration. Pineda's appellate briefs never discuss Boykins nor do they
address the specific questions that were objected to at trial and precluded by the trial judge.
Instead, Pineda argues that Martinelli's testimony would have helped the jury understand the
imminent danger in which Pineda found himself. Pineda argues that, because the trial judge
had excluded Martinelli's testimony, he, Pineda, was forced to take the stand and, in doing so,
his credibility was questioned by the State, discrediting [Pineda's] attempts to explain his
state of mind and his circumstances. The majority's analysis morphs Pineda's appellate
argument further into an analysis which would permit the use of expert testimony
descriptive of a generalized sense of danger that is characteristic of gang interactions to
support Pineda's claim of self-defense. If only this were so. The fact is, Martinelli's testimony
was offered at trial, as stated explicitly by Pineda's trial counsel, to show, what perhaps Mr.
Pineda was thinking or why he may have reacted the way that he reacted on this particular
occasion.
If we are indeed to leave questions of the admissibility of evidence to the discretion of
the trial judges, then we must review the record to determine if the trial judge acted with
prudence and deliberation. The record supports the conclusion that the trial judge, who had
the benefit of seeing and hearing the proposed testimony during a hearing outside the jury's
presence, exercised his discretion in a prudent and calmly deliberative fashion. I would not
volunteer a road map for remand endorsing this evidence for another purpose which I believe
is equally suspect.
____________
120 Nev. 219, 219 (2004) Morgan v. State
RICHARD LEROY MORGAN, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 41593
May 5, 2004 88 P.3d 837
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
trafficking in a controlled substance. Second Judicial District Court, Washoe County; Brent
T. Adams, Judge.
The supreme court held that police officer's arrest of defendant for misdemeanor
traffic offense was not arbitrary or unreasonable.
Affirmed.
Michael R. Specchio, Public Defender, and John Reese Petty, Chief Deputy Public
Defender, Washoe County, for Appellant.
Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for
Respondent.
Automobiles.
Police officer's arrest of defendant for misdemeanor traffic offense was not arbitrary
or unreasonable, as officer had reasonable and probable grounds to believe that
defendant would disregard written notice to appear in court. U.S. Const. amend. 4; NRS
484.795(1).
Before Rose, Maupin and Douglas, JJ.
OPINION
Per Curiam:
In this case, we consider whether the district court erred in denying a pretrial
suppression motion based on a claim of an unlawful arrest. The district court ruled that
appellant Richard Leroy Morgan's arrest for a misdemeanor traffic offense was lawful
because Morgan was driving with a suspended driver's license and had a previous history of
failing to appear in court. We agree and, therefore, affirm the judgment of conviction.
FACTS
While on patrol in downtown Reno on the night of February 21, 2001, Reno Police
Officer Jason Stallcop observed an individual driving a vehicle down the street with its lights
off. Officer Stallcop testified, at a pretrial suppression hearing, that he flashed his vehicle
lights to get the driver to turn his vehicle lights on, but was unsuccessful. Officer Stallcop
then initiated a traffic stop of the vehicle for the misdemeanor offense of failure to turn
headlights on.
the vehicle for the misdemeanor offense of failure to turn headlights on.
Morgan, the driver of the vehicle, was cooperative and provided Officer Stallcop with
the vehicle registration and proof of insurance. When Officer Stallcop asked to see Morgan's
driver's license, Morgan handed him a California identification card. A subsequent
Department of Motor Vehicles check revealed that Morgan's California driver's license had
been suspended for failure to pay fines and that Morgan had, on several occasions, failed to
pay fines or appear in court. Officer Stallcop testified that he believed Morgan was not fit
for misdemeanor citation based primarily on the guidelines set forth in a police department
general order. He therefore arrested Morgan for the misdemeanor traffic offense.
During the booking procedure at the Washoe County Jail, law enforcement officers
strip-searched Morgan and discovered approximately 34 grams of cocaine. Subsequently,
Morgan was charged with a trafficking offense for possessing over 28 grams of cocaine.
Prior to trial, Morgan filed a motion to suppress the cocaine as the fruit of an unlawful
arrest. The State opposed the motion. After conducting an evidentiary hearing, the district
court denied Morgan's motion to suppress. Morgan was thereafter convicted, pursuant to a
one-day jury trial, of level-three trafficking in a controlled substance.
1
The district court
sentenced him to serve a prison term of 10 to 25 years.
DISCUSSION
On appeal, Morgan contends that the district court erred in denying his pretrial motion
to suppress the cocaine seized during the course of the strip search because the seizure was
the result of an unlawful arrest. Relying on State v. Bayard,
2
Morgan argues that the police
officer acted unreasonably in arresting him for a misdemeanor traffic offense because he
cooperated with the police officer, produced valid identification, and never engaged in
conduct indicating that he would fail to honor a traffic summons. We conclude that the
district court did not abuse its discretion in denying Morgan's pretrial suppression motion
because, in light of his prior conduct of failing to pay fines or appear in court, the police
officer's decision to arrest Morgan was not arbitrary or unreasonable.
In Bayard, this court ruled that [a]bsent special circumstances requiring immediate
arrest, individuals should not be made to endure the humiliation of arrest and detention when
a citation will satisfy the state's interest.
____________________

1
See NRS 453.3385(3).

2
119 Nev. 241, 71 P.3d 498 (2003).
satisfy the state's interest.
3
In so ruling, this court discussed the guidelines for arresting an
individual for a misdemeanor traffic offense. First, a police officer has discretion to arrest an
individual for a misdemeanor traffic offense if special circumstances exist where the officer
has probable cause to believe other criminal misconduct is afoot.
4
Second, pursuant to NRS
484.795(1), an arrest for a misdemeanor traffic offense is mandatory [w]hen the person does
not furnish satisfactory evidence of identity or when the peace officer has reasonable and
probable grounds to believe the person will disregard a written promise to appear in court.
5

In this case, we conclude the district court did not err in ruling that Morgan's arrest
was lawful. There was sufficient evidence presented that Officer Stallcop had reasonable and
probable grounds to believe that Morgan would disregard the written notice to appear in
court and therefore the arrest was lawful pursuant to NRS 484.795(1). Specifically, at the
pretrial suppression hearing, Officer Stallcop testified that, although Morgan was cooperative,
a subsequent driver's license check revealed that Morgan had a suspended driver's license for
failure to pay fines and that Morgan had previously failed to appear in court. Officer Stallcop
testified that he arrested Morgan based on a Reno Police Department general order, which he
described as follows:
If the officer believes the crime is going to continue, then [he] shall make the arrest. If
[the individual's license has] been suspended or revoked for failure to pay fines, we also
make the arrest because we don't believe that he's going to pay fines if we issue the
citation.
We disagree with Morgan that the general order, as described by Officer Stallcop, runs afoul
of our holding in Bayard. The general order provides guidelines for arresting an individual
for a misdemeanor traffic offense that comport with both Bayard and NRS 484.795(1).
In Bayard, we sought to prohibit the humiliation of custodial arrest based on an
arbitrary basis, such as an officer's hunch or whim, or an improper justification, such as race
or religion.
6
We concluded that Bayard's arrest violated the Nevada Constitution because
there was no evidence presented in the proceedings below that Bayard would not respond to a
traffic summons or that would support a probable cause finding that Bayard was engaged in
criminal activity.
____________________

3
Id. at 247, 71 P.3d at 502.

4
Id.

5
See also Collins v. State, 113 Nev. 1177, 1180, 946 P.2d 1055, 1058 (1997).

6
119 Nev. at 247, 71 P.3d at 502.
inal activity.
7
Here, as previously discussed and unlike the facts in Bayard, there was
sufficient evidence presented to ensure that the decision to arrest was not arbitrary or
unlawful. Specifically, Morgan had his driver's license revoked for failing to pay
court-imposed fines and had previously failed to appear in court. Accordingly, we conclude
that the district court did not err in denying Morgan's pretrial suppression motion. We
therefore affirm the judgment of conviction.
8

____________
120 Nev. 222, 222 (2004) Pan v. Dist. Ct.
PETER TA-HSIEN PAN; VIVIEN YANG; and HSIAO HUNG SUN, Petitioners, v. THE
EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for
THE COUNTY OF CLARK, and THE HONORABLE VALERIE ADAIR, District
Judge, Respondents, and MING TANG LIN aka MING TONG LIN; MRS. MING
TANG LIN aka MRS. MING TONG LIN; HSUEH-YU LIN aka HSUZH-YU LIN;
CHIH FUNG LEE; KENNETH C. LEE, Individually and as President, Secretary and
Treasurer of Shiatsu Center of Las Vegas, Ltd., dba Miyako Shiatsu Center of Las
Vegas; and STEPHANIE WONG aka KEE CHIAN WONG aka MRS. KENNETH C.
LEE, Real Parties in Interest.
No. 42035
May 5, 2004 88 P.3d 840
Original petition for a writ of mandamus challenging a district court order that
dismissed a complaint for forum non conveniens.
Purchasers of massage business petitioned for writ of mandamus to challenge
dismissal of breach-of-contract action against vendors by district court on grounds of forum
non conveniens. The supreme court held that: (1) appeal from dismissal was adequate remedy
at law that rendered writ of mandamus inappropriate means of relief, overruling Swisco v.
District Court, 79 Nev. 414, 385 P.2d 772 (1963); Buckholt v. District Court, 94 Nev. 631,
584 P.2d 672 (1978); Eaton v. District Court, 96 Nev. 773, 616 P.2d 400 (1980); Payne v.
District Court, 97 Nev. 228, 626 P.2d 1278 (1981); and (2) petitioners failed to carry burden
to state facts and provide documents necessary to support challenge to dismissal by
district court.
____________________

7
Id. at 247, 71 P.3d at 502-03; see also Nev. Const. art. 1, 18.

8
We have reviewed all documents that Morgan has submitted in proper person to the clerk of this court in
this matter, and we conclude that no relief based upon those submissions is warranted. To the extent that Morgan
has attempted to present claims or facts in those submissions which were not previously presented in the
proceedings below, we have declined to consider them in the first instance.
120 Nev. 222, 223 (2004) Pan v. Dist. Ct.
provide documents necessary to support challenge to dismissal by district court.
Petition denied.
Law Offices of Carl E. Lovell and Andrew P. Jones and Carl E. Lovell Jr., Las Vegas,
for Petitioners.
Fitzgibbons & Anderson and Mark Anderson, Las Vegas, for Real Party in Interest
Ming Tang Lin.
1. Mandamus.
Petition for writ of mandamus is not appropriate vehicle for challenging final
judgment entered on forum non conveniens grounds, as appeal from judgment provides
an adequate remedy at law. NRS 34.170.
2. mandamus.
Purchasers of massage business failed to carry burden of presenting facts and
documents in petition for writ of mandamus necessary to support challenge to district
court's dismissal of breach-of-contract action against vendors on grounds of forum non
conveniens; resolution of petition depended on validity of forum selection clause in
stock purchase agreement, purchasers failed to explain relationship with nonparty
purchaser who signed agreement, and purchasers failed to provide documents executed
in escrow during sale of business related to enforceability of forum selection clause.
NRAP 21(a).
OPINION
Per Curiam:
This original petition for a writ of mandamus challenges a district court order that
dismissed a complaint for forum non conveniens.
SUMMARY
In a series of prior decisions, this court has stated that mandamus is the proper method
for challenging the dismissal of a case on forum non conveniens grounds. Those decisions,
however, did not address the interplay between writ relief and the availability and adequacy
of an appeal. But in other decisions, this court has recognized that an appeal is generally an
adequate legal remedy that precludes writ relief.
1
Consequently, we take this opportunity to
clarify that if all prerequisites for finality are met, an order that dismisses a case for forum
non conveniens is a final judgment that should be reviewed on appeal, not through a writ
petition.
____________________

1
See, e.g., Dayside Inc. v. Dist. Ct., 119 Nev. 404, 75 P.3d 384, 386 (2003); Pengilly v. Rancho Santa Fe
Homeowners, 116 Nev. 646, 647 n.1, 5 P.3d 569, 570 n.1 (2000); Guerin v. Guerin, 114 Nev. 127, 131, 953
P.2d 716, 719 (1998), overruled on other grounds by Pengilly, 116 Nev. at 646, 5 P.3d at 569; Columbia/HCA
Healthcare v. Dist. Ct., 113 Nev. 521, 525-26,
120 Nev. 222, 224 (2004) Pan v. Dist. Ct.
to clarify that if all prerequisites for finality are met, an order that dismisses a case for forum
non conveniens is a final judgment that should be reviewed on appeal, not through a writ
petition.
Although this writ petition could be denied solely on procedural grounds because
petitioners had an adequate remedy in the form of an appeal from the district court's order,
petitioners' time to appeal has run. Given that our prior case law may have misled petitioners
to forgo their appeal, we will consider this petition. Ultimately, we deny the petition because
petitioners have failed to meet their burden of demonstrating that extraordinary relief is
warranted.
FACTS
Unfortunately, the petition, answer, and accompanying documents do not provide a
clear picture of the facts in this case. The underlying district court case involved a dispute
arising out of the real parties in interest's sale of the Shiatsu Center of Las Vegas, Ltd., a
massage business, to Julie Tzoo Jy Pan and the petitioners, Peter Ta-Hsien Pan, Vivien Yang,
and Hsiao Hung Sun.
The petitioners sued the real parties in interest for, among other things, breach of
contract, fraud, misrepresentation, and negligence. The real parties in interest then moved to
dismiss the action on forum non conveniens grounds. The district court dismissed the case in
a written order filed March 6, 2003. The real parties in interest then served notice of the
dismissal order's entry on March 17, 2003, thus starting the clock on petitioners' time to
appeal. Subsequently, petitioners filed this petition for a writ of mandamus, requesting this
court to direct the district court to vacate its dismissal order and entertain their action. The
real parties in interest filed an answer at this court's request.
DISCUSSION
[Headnote 1]
Under NRS 34.170, a writ of mandamus is proper only when there is no plain,
adequate and speedy legal remedy.
2
This court has previously pointed out, on several
occasions, that the right to appeal is generally an adequate legal remedy that precludes writ
relief.
3
Additionally, writ relief is not available to correct an untimely notice of appeal.
____________________
936 P.2d 844, 847 (1997); Karow v. Mitchell, 110 Nev. 958, 962, 878 P.2d 978, 981 (1994); Hickey v. District
Court, 105 Nev. 729, 731, 782 P.2d 1336, 1338 (1989); Heilig v. Christensen, 91 Nev. 120, 123, 532 P.2d 267,
269 (1975); see also NRS 34.170 (stating that a writ of mandamus may be issued when no adequate and speedy
remedy exists).

2
See also NRS 34.330 (providing that a writ of prohibition may issue if there is no adequate and speedy
remedy at law).

3
See cases cited supra note 1.
120 Nev. 222, 225 (2004) Pan v. Dist. Ct.
notice of appeal.
4
And we have determined that even if an appeal is not immediately
available because the challenged order is interlocutory in nature, the fact that the order may
ultimately be challenged on appeal from the final judgment generally precludes writ relief.
5
Because this petition challenges a district court order that dismissed petitioners' complaint,
which is a final, appealable judgment under NRAP 3A(b)(1),
6
writ relief is inappropriate.
Nevertheless, on several occasions this court has reviewed forum non conveniens
dismissals by petitions for a writ of mandamus. The first such case is Swisco, Inc. v. District
Court,
7
in which petitioner Swisco filed a petition for a writ of mandamus that challenged a
district court order that dismissed its action for forum non conveniens. This court relied on a
quote from an early twentieth century Nevada case, Floyd v. District Court,
8
to conclude that
mandamus was the proper method of review. Specifically, the Swisco court stated: where a
district court erroneously decides that it has no jurisdiction, the writ of mandamus is the
proper remedy to compel that tribunal to do that which the law prescribes it should
doassume jurisdiction and proceed with the cause.'
9
The Swisco court then discussed
whether forum non conveniens mandated dismissal, and concluded that the district court
should not have dismissed Swisco's complaint because the moving party's affidavit did not
include enough facts to justify depriving the plaintiff of its chosen forum. Consequently, the
Swisco court issued a writ of mandamus directing the district court to assume jurisdiction of
the case, and purported to remand the case for further proceedings.
10

____________________

4
See, e.g., Rim View Trout v. Dept. of Water Res., 809 P.2d 1155, 1156-57 (Idaho 1991); State v. Court of
Appeals for Cuyahoga Cty., 564 N.E.2d 86, 88 (Ohio 1990); State ex rel. Hulse v. Circuit Court, 561 N.E.2d
497, 498 (Ind. 1990).

5
Co. of Washoe v. City of Reno, 77 Nev. 152, 360 P.2d 602 (1961).

6
See Lee v. GNLV Corp., 116 Nev. 424, 996 P.2d 416 (2000); KDI Sylvan Pools v. Workman, 107 Nev.
340, 810 P.2d 1217 (1991); Rae v. All American Life & Cas. Co., 95 Nev. 920, 605 P.2d 196 (1979); see also
Fogade v. ENB Revocable Trust, 263 F.3d 1274, 1285 (11th Cir. 2001) (acknowledging that dismissal based on
forum non conveniens is a final appealable order if the other prerequisites for finality are met).

7
79 Nev. 414, 385 P.2d 772 (1963).

8
36 Nev. 349, 135 P. 922 (1913).

9
79 Nev. at 418, 385 P.2d at 774 (quoting Floyd, 36 Nev. at 352-53, 135 P. at 923).

10
Although the opinion remands the case for further proceedings, we note that writ proceedings in this
court cannot be remanded because they invoke this court's original jurisdiction. See Nev. Const. art. 6, 4;
Ashokan v. State, Dep't of Ins., 109 Nev. 662, 856 P.2d 244 (1993).
120 Nev. 222, 226 (2004) Pan v. Dist. Ct.
Some years later, in Buckholt v. District Court,
11
this court again issued a writ of
mandamus directing a district court to accept jurisdiction of an action after the district court
dismissed the complaint for forum non conveniens. The opinion did not discuss the propriety
of writ relief; instead it simply quoted Swisco for the proposition that where the district
court wrongfully or erroneously divests itself of jurisdiction, . . . mandamus is the proper
remedy.'
12
This court concluded that the district court should not have dismissed the
plaintiffs' complaint because the plaintiffs chose to litigate the case in Nevada, and the
defendant was a resident corporation of Nevada that conducted business in the state.
13

Later, in Eaton v. District Court,
14
a 1980 decision, this court granted a petition for a
writ of mandamus that challenged a district court order dismissing the petitioner's complaint
after determining that Montana was a more convenient forum. Again, this court did not
discuss the appropriateness of writ relief or the order's appealability. Instead, the Eaton
opinion merely focused on the merits of the forum non conveniens claim and concluded that
the forum non conveniens doctrine involved a balancing of several factors.
15
This opinion
also remanded the case for further proceedings.
One year after Eaton, this court decided Payne v. District Court,
16
another writ
petition that challenged an action's dismissal on forum non conveniens grounds. In Payne,
this court recognized that the forum non conveniens doctrine's application is within the
district court's discretion and determined that because the underlying dismissal motion was
supported by the factors articulated in Eaton, mandamus was not available to review the
17
Consequently, this court denied the petition.
After issuing the Eaton and Payne opinions, this court issued an opinion in Martin v.
DeMauro Construction Corp.,
18
which was an appeal from an order dismissing an action on
forum non conveniens grounds. This court determined that the district court erred in
dismissing the action because Nevada was a proper forum.
19
Although it cited its prior
decision in Eaton, this court did not address the propriety of addressing the issue in the
context of a writ petition.
____________________

11
94 Nev. 631, 584 P.2d 672 (1978).

12
Id. at 633, 584 P.2d at 673.

13
Id.

14
96 Nev. 773, 616 P.2d 400 (1980).

15
Id. at 774, 616 P.2d at 401.

16
97 Nev. 228, 626 P.2d 1278 (1981).

17
Id. at 230, 626 P.2d at 1279.

18
104 Nev. 506, 761 P.2d 848 (1988).

19
Id. at 507, 761 P.2d at 849.
120 Nev. 222, 227 (2004) Pan v. Dist. Ct.
Floyd v. District Court
Swisco and the related subsequent cases borrowed a quote from Floyd to justify writ
review of forum non conveniens dismissal orders without analyzing the propriety of writ
relief. An examination of Floyd reveals that it does not support review by writ petition in
cases dismissed for forum non conveniens.
Floyd involved a petition for a writ of mandamus challenging a district court order
that dismissed an appeal from justice's court.
20
Apparently, the Union Township Justice's
Court in Humboldt County entered judgment against petitioners (and defendants below)
Elizabeth Floyd and James Guthrie for $405.75.
21
Floyd appealed to the district court and
deposited the judgment amount, in lieu of an appeal bond, with the justice of the peace. The
plaintiffs from the justice's court case moved to dismiss the appeal as untimely, and for
failure to pay the costs on appeal. The district court dismissed the appeal in a written order.
22
Floyd then filed a petition for a writ of mandamus in this court.
The Nevada Constitution vests the district courts with final appellate jurisdiction in all
cases arising in the justices' courts.
23
Prior to Floyd, this court adopted the rule that a district
court's dismissal of an appeal from justice's court, even though erroneous, is final and not
subject to appellate review.
24
In Floyd, we framed the primary issue as: Will mandamus
lie to review the action of the district court and to compel the district court to proceed in a
case in which that court has divested itself of jurisdiction by erroneously dismissing an
appeal?'
25

Ultimately, we concluded that if a district court takes jurisdiction of an appeal and
acts, its acts are not subject to review through a petition for a writ of mandamus, but if the
district court wrongly decides that it lacks jurisdiction, a writ of mandamus is the proper way
to compel the court to do what the law requiresassume jurisdiction and proceed with the
appeal.
26
In essence, Floyd decided that even though the district courts have final appellate
jurisdiction in cases arising in the justices' courts, when the district court erroneously divests
itself of appellate jurisdiction, the dismissal is reviewable by this court through a petition for
a writ of mandamus.
____________________

20
36 Nev. at 350-51, 135 P. at 922.

21
Id. at 350, 135 P. at 922.

22
Id. at 351, 135 P. at 922.

23
Nev. Const. art. 6, 6; Waugh v. Casazza, 85 Nev. 520, 458 P.2d 359 (1969).

24
See Andrews v. Cook, 28 Nev. 265, 81 P. 303 (1905); Treadway v. Wright, 4 Nev. 119 (1868).

25
36 Nev. at 351, 135 P. at 923.

26
Id. at 352-53, 135 P. at 923.
120 Nev. 222, 228 (2004) Pan v. Dist. Ct.
Notably, Floyd did not acknowledge that a writ of mandamus is only available if there
is no plain, speedy, and adequate remedy available.
27
Floyd's lack of an adequate remedy
was, however, implicit in our decision. The district court's final appellate jurisdiction in cases
arising in justice's court precluded Floyd from appealing the district court's dismissal order to
this court. Thus, a writ petition was the only available means to challenge the district court's
decision.
Unlike the situation in Floyd, in Swisco and subsequent cases, the petitioners had the
right to appeal from the district court's dismissal for forum non conveniens because the
dismissal orders were appealable final judgments.
28
Yet, the Swisco court failed to address
the availability of an appeal. Instead, it adopted the quote from Floyd without recognizing
that Floyd's holding does not apply when an appeal is available. Accordingly, Floyd does not
justify straying from this court's long-standing rule that the right to appeal is generally an
adequate legal remedy that precludes writ relief.
As a result, Swisco, Buckholt, Eaton, and Payne are overruled to the extent that they
conclude that a writ petition is the appropriate vehicle for challenging a final judgment
entered on forum non conveniens grounds.
Nevertheless, because we previously indicated that the proper method of review in
this type of case is a petition for a writ of mandamus, we will exercise our original
jurisdiction and consider this petition.
Petitioners' NRAP 21(a) burden
NRAP 21(a) requires a petition for extraordinary relief to contain:
a statement of the facts necessary to an understanding of the issues presented by the
application; a statement of the issues presented and of the relief sought; a statement of
the reasons why the writ should issue; and copies of any order or opinion or parts of the
record which may be essential to an understanding of the matters set forth in the
petition.
Petitioners carry the burden of demonstrating that extraordinary relief is warranted.
29

____________________

27
See NRS 34.170; NRS 34.330.

28
See Lee, 116 Nev. at 426, 996 P.2d at 417; KDI Sylvan Pools, 107 Nev. at 342-43, 810 P.2d at 1219; Rae,
95 Nev. at 922, 605 P.2d at 197; see also Fogade, 263 F.3d at 1285.

29
See Mineral County v. State, Dep't of Conserv., 117 Nev. 235, 20 P.3d 800 (2001).
120 Nev. 222, 229 (2004) Pan v. Dist. Ct.
[Headnote 2]
The reasons for NRAP 21(a)'s requirements are simple. A petition for writ relief
invokes this court's original jurisdiction. Our review in a writ proceeding is limited to the
argument and documents provided by the parties. If essential information is left out of the
petition and accompanying documentation, we have no way of properly evaluating the
petition.
30
We routinely receive and deny writ petitions that fail to comply with NRAP 21(a).
The time and energy expended reviewing these deficient petitions wastes this court's valuable
and limited judicial resources.
Here, petitioners failed to provide a comprehensive factual analysis in the petition,
and they neglected to submit necessary parts of the record. Although this petition challenges a
district court order that dismissed petitioners' complaint based upon forum non conveniens,
the resolution of this petition depends on the validity and enforceability of a forum selection
clause in the March 15, 2002 stock purchase agreement signed by real party in interest Ming
Tang Lin and Julie Tzoo Jy Pan. Petitioners, however, declined to explain their relationship
with Julie Pan, who was a party to the disputed transaction, but is not a plaintiff in the
underlying district court case, and is not a petitioner in this writ petition. In addition,
petitioners failed to provide documents that they executed in escrow during the sale of the
Shiatsu Center. The escrow documents and an understanding of Julie Pan's relationship with
petitioners appear necessary to determine if the forum selection clause in the stock purchase
agreement can be enforced against petitioners. Petitioners failed to carry their NRAP 21(a)
burden, and consequently, they have not demonstrated that extraordinary relief is warranted.
Accordingly, we deny their petition for a writ of mandamus.
____________________

30
Cf. Stover v. Las Vegas Int'l Country Club, 95 Nev. 66, 589 P.2d 671 (1979) (affirming dismissal of a tort
action because essential evidence was not included in the record on appeal); Raishbrook v. Estate of Bayley, 90
Nev. 415, 416, 528 P.2d 1331, 1331 (1974) (stating that [w]hen evidence on which a district court's judgment
rests is not properly included in the record on appeal, it is assumed that the record supports the lower court's
findings).
____________
120 Nev. 230, 230 (2004) Bronneke v. Rutherford
DAVID BRONNEKE, Appellant, v. MARTIN
RUTHERFORD, D.C., Respondent.
No. 40222
May 12, 2004 89 P.3d 40
Appeal from the district court's final judgment and orders denying appellant's motion
for a new trial and awarding attorney fees and costs. Second Judicial District Court, Washoe
County; Steven P. Elliott, Judge.
Patient sued chiropractor for negligence, alleging patient suffered a stroke
immediately after chiropractor performed long axis traction technique, and alleging lack of
informed consent. The district court ruled before trial that the informed-consent claim failed
as a matter of law and entered judgment on jury's verdict for chiropractor on the negligence
claim. Patient appealed. The supreme court held that the common-law professional medical
standard for informed consent, rather than a patient-oriented standard of informed consent,
applied to the chiropractic field.
Affirmed.
Law Offices of Terry A. Friedman, Ltd., and Terry A. Friedman, Reno, for Appellant.
Erickson Thorpe & Swainston, Ltd., and William G. Cobb, Reno, for Respondent.
A pretrial ruling on the legal viability of a claim presents a question of law, which is
reviewed de novo.
2. judgment.
Chiropractor's response to patient's pretrial motion for orders in limine or
instructions could not be considered a motion for summary judgment for which patient
would be entitled to ten days' prehearing notice. The instructions section of patient's
motion presented trial court with issue of whether the common-law professional
medical standard for informed consent applied to chiropractors, chiropractor's response
did not focus on absence of genuine issue of material fact but rather on legal question
of informed-consent standard, and chiropractor indicated that it was too late to bring a
motion for summary judgment and that he would likely move, at close of patient's case,
to dismiss the informed-consent claim for failure to prove a sufficient case. NRCP
56(c).
3. Health.
Under the common-law professional medical standard for informed consent, the
physician must decide whether the information is material and should be disclosed to
the patient.
4. Health.
Consent to medical treatment may be express or implied.
5. Assault and Battery; Health.
By seeking chiropractic treatment, patient's consent to performance of long axis
traction technique was implied, so that patient could not maintain battery claim
against chiropractor.
maintain battery claim against chiropractor. A health professional could not be required
to obtain express consent before each touch or test performed on a patient.
Patient preserved appellate review of whether common-law professional medical
standard for informed consent applied to chiropractors, though patient failed to make
offer of proof, failed to object to defendant chiropractor's proffered jury instructions,
and failed to submit his own jury instructions regarding informed consent. The issue
was fully briefed by the parties before trial in connection with patient's motion for
orders in limine or instructions, the trial court made a dispositive pretrial ruling on the
issue, at the pretrial hearing the trial court heard the evidence that patient intended to
produce regarding the informed-consent claim, and a proffer of jury instructions would
have been futile, because pretrial ruling had precluded jury from considering
informed-consent claim.
7. Health.
Common-law professional medical standard for informed consent, rather than
patient-oriented standard of informed consent, applied to the chiropractic field, in
action alleging lack of informed consent, brought by patient who suffered a stroke
immediately after chiropractor performed long axis traction technique. NRS 41A.100,
634.017.
8. Health.
Risk of stroke following a chiropractor's performance of long axis traction technique
was extremely remote, and thus, under common-law professional medical standard for
informed consent, a reasonable chiropractor would not inform a patient of such risk;
according to studies, the risk of stroke ranged from 1 chance in 400,000 to 1 chance in
6 million.
OPINION
Per Curiam:
Appellant David Bronneke appeals from the district court's order denying his motion
for a new trial. Bronneke, a carpenter in his mid-forties at the time of trial, had undergone
numerous chiropractic treatments over several years. However, on June 27, 2001, Bronneke
suffered a stroke immediately after respondent Dr. Martin Rutherford, a chiropractor, had
performed a chiropractic treatment upon Bronneke. Dr. Rutherford had performed a long axis
traction technique in which Bronneke had lain faceup on a table; Dr. Rutherford had extended
Bronneke's neck, and then, using a rolled-up gown, gave Bronneke's neck an extra tug to
realign the spine. Immediately afterward, Bronneke became dizzy and nauseated. Bronneke
vomited and began to suffer nystagmus, a condition in which the eyeballs oscillate
involuntarily. Dr. Rutherford drove Bronneke to the hospital emergency room. By that
evening, Bronneke still could not walk because of poor balance, and the hospital admitted
him. The hospital discharged Bronneke the next day with a diagnosis of labyrinthitis, an
inner ear infection causing dizziness.
Bronneke the next day with a diagnosis of labyrinthitis, an inner ear infection causing
dizziness. Several months later, a neurologist diagnosed Bronneke as having had a stroke
rather than an inner ear infection.
Bronneke sued Dr. Rutherford for negligence, claiming among other things, that Dr.
Rutherford failed to inform him of the risk of stroke before treating him. On the Friday before
the trial, scheduled to begin the following Monday, the district court conducted a pretrial
hearing to decide Bronneke's motion in limine and to decide an issue of law regarding Dr.
Rutherford's liability for failure to obtain Bronneke's informed consent. Dr. Rutherford
argued that the informed-consent standard that applies to physicians should be extended to
chiropractors. That standard requires an expert to testify that failing to obtain a patient's
informed consent before performing a procedure falls below the standard of care. Bronneke
argued that the physician's standard should not be extended to the chiropractic field because
chiropractic care is largely unregulated and the practice of informing patients of the risks of
treatment varies from chiropractor to chiropractor. Bronneke conceded that he could not
produce an expert who would testify that it fell below the chiropractic standard of care to fail
to inform him of the risk of stroke prior to performing the procedure. The district court ruled
that, because Bronneke could not produce an expert to testify to the standard of care regarding
informed consent, the informed-consent claim failed as a matter of law.
The case proceeded to a jury trial solely on the issue of negligence. The jury returned
a verdict in favor of Dr. Rutherford. After entry of judgment, Dr. Rutherford moved for
attorney fees and costs under NRS 17.115(4) and NRCP 68(f). The district court granted Dr.
Rutherford's motion and awarded him $21,000 in attorney fees and $13,400.91 in costs.
Bronneke moved for a new trial, which was denied. Bronneke now appeals from the district
court's final judgment and its orders denying Bronneke's motion for a new trial and awarding
attorney fees and costs.
DISCUSSION
[Headnote 1]
This appeal primarily concerns the district court's pretrial ruling on the legal viability
of Bronneke's informed-consent claim. Because this is a question of law, we review the ruling
de novo.
1

[Headnote 2]
Bronneke contends that Dr. Rutherford's argument at the pretrial hearing constituted
an unnoticed motion for summary judgment.
____________________

1
White v. Continental Ins. Co., 119 Nev. 114, 116, 65 P.3d 1090, 1091 (2003).
He asserts that he was entitled to notice of the motion and that his due process rights were
violated because he had no notice and no time in which to prepare a defense.
2
Bronneke
argues that he was prejudiced by the motion because, in trying to respond to an unnoticed oral
motion for summary judgment, both the parties and the district court overlooked the fact that
he was prepared to prove that Dr. Rutherford failed to obtain any consent at all, obviating the
need for expert testimony.
[Headnote 3]
Shortly before trial, Bronneke filed a document styled as a Motion for Orders in
Limine or Instructions. The motion in limine portion corresponded to Bronneke's attempt to
exclude from evidence his nineteen years of chiropractic treatment. The district court ruled
that Bronneke's nineteen-year history of chiropractic treatment was admissible. The
instructions portion corresponded to Bronneke's attempt to persuade the district court to treat
chiropractors differently from medical doctors in Nevada by adopting what is known as the
patient-oriented standard of informed consent in cases of a chiropractor's alleged negligence.
The patient-oriented standard is based upon the information a reasonable patient would want
to know before choosing to undergo a medical procedure. This standard requires a factual
finding at trial.
3
The standard governing informed-consent cases regarding medical doctors
in Nevada is different. It is the professional medical standard,
4
i.e., the physician must
decide whether the information is material and should be disclosed to the patient.
First, we decide whether Dr. Rutherford's argument in opposition to Bronneke's
motion for instructions should have been considered a motion for summary judgment by the
district court. A motion for summary judgment must be served at least ten days before the
hearing scheduled on the motion.
5
We have previously reversed an order granting a
summary judgment motion where the party was prejudiced because he received notice of the
motion with fewer than ten days before the scheduled hearing.
____________________

2
See Cheek v. FNF Constr., Inc., 112 Nev. 1249, 1254, 924 P.2d 1347, 1351 (1996).

3
Smith v. Shannon, 666 P.2d 351, 355 (Wash. 1983) (stating that [t]he jury, as lay people, are equipped to
place themselves in the position of a patient and decide whether, under the circumstances, the patient should
have been told' of the risk (quoting Miller v. Kennedy, 522 P.2d 852, 864 (Wash. Ct. App. 1974), aff'd, 530
P.2d 334 (Wash. 1975))).

4
Beattie v. Thomas, 99 Nev. 579, 584, 668 P.2d 268, 271 (1983) (holding that the district court did not err
by refusing to give appellant's proffered instruction, which deviated from the traditional view that the
physician's duty to disclose is measured by a professional medical standard, which the plaintiff must establish
with expert testimony).

5
NRCP 56(c).
fewer than ten days before the scheduled hearing.
6
Dr. Rutherford did not notice a summary
judgment motion at all.
We conclude that Dr. Rutherford's response to Bronneke's motion in limine cannot be
characterized as a summary judgment motion. First, Bronneke, by motion, brought the issue
to the district court's attention. Second, Dr. Rutherford's argument did not focus on the
absence of a genuine issue of material fact but rather on the legal question of what standard
governs the chiropractic profession. Dr. Rutherford indicated that it was too late to bring a
motion for summary judgment and that he would likely move, at the close of Bronneke's case,
to dismiss the claim for failure to prove a sufficient case under NRCP 41(b). Third, the
district court ruled directly on Bronneke's motion for clarification as to the relevant standard
by determining that Nevada's common-law standard for physicians rather than the
patient-oriented standard, which has never been applied in Nevada, should govern. Fourth,
Bronneke conceded that, if the physician's common-law standard applied, he was unable to
establish a prima facie case of negligence as to the informed-consent claim because he could
not obtain a chiropractic expert who would testify that Dr. Rutherford did not conform to the
customary disclosure practices. In light of Bronneke's admission, the district court properly
excluded this issue from the jury's consideration.
Even if we were to conclude that the motion was a de facto summary judgment
motion, Bronneke's argument that he was prejudiced by lack of notice of the de facto motion
lacks merit. Bronneke argues that, had he been given the opportunity to oppose a summary
judgment motion, he would have claimed that, by performing the neck manipulation without
first obtaining Bronneke's consent, Dr. Rutherford committed a battery.
[Headnotes 4-5]
Consent to treatment may be express or implied.
7
By seeking chiropractic treatment,
Bronneke's consent to the particular technique may be implied because [a]s a practical
matter, health professionals cannot be required to obtain express consent before each touch or
test they perform on a patient.
8
Therefore, we conclude that notice to Bronneke of a
summary judgment motion would not have improved Bronneke's chances of persuading the
district court to permit an eleventh-hour amendment to the complaint to add a battery claim.
____________________

6
Cheek, 112 Nev. at 1254, 924 P.2d at 1351.

7
Jones v. Malloy, 412 N.W.2d 837, 841 (Neb. 1987) (stating that implied consent may be inferred from the
patient's action of seeking treatment or some other act manifesting a willingness to submit to a particular course
of treatment).

8
Id.
plaint to add a battery claim. Furthermore, we perceive no prejudice by the lack of notice, as
Bronneke himself, by motion, brought the issue to the district court for its determination. He
knew that if the district court adopted the common-law physician's professional standard, he
was unable to present the required expert testimony.
Bronneke next contends that the district court improperly extended the physician's
professional standard to the chiropractic field. He argues that, when this court adopted the
physician's professional standard as part of Nevada's common law, we were influenced by
NRS 41A.100(1) (1979), which required a plaintiff to prove medical negligence by expert
medical testimony.
9
He contends that a similar statute governing chiropractors does not
exist, and therefore, the reasoning behind the rule governing physicians does not apply to
chiropractors.
Bronneke further argues that applying the professional standard for informed consent
to chiropractors would effectively immunize them from liability because no standard exists in
Nevada's chiropractic communities for disclosing medical risks to patients, and therefore, a
plaintiff would never be able to obtain expert chiropractic testimony that a chiropractor had
violated the medical-professional controlled-disclosure standard. He also argues that allowing
the chiropractor to decide what risks to disclose is antithetical to the patient's right to
self-determination.
10
Bronneke contends that the professional standard imposes a heavy
burden on a plaintiff to prove negligence, especially in light of the conspiracy of silence
among fellow practitioners, which, he asserts, is more pronounced in chiropractic cases given
the lack of standards and the potential for retaliatory criticism. He argues that the
patient-oriented standard obviates the need for medical expert testimony and is, therefore, the
superior approach. Bronneke further contends that the jury does not need a chiropractor's
testimony to decide whether the information would have been material to a reasonable
patient's consent.
11
He further claims that chiropractors are not entitled to the deference
given to medical doctors because medicine is based upon the scientific method, whereas
the practice of chiropractic is not scientific.
____________________

9
See Beattie, 99 Nev. at 584, 668 P.2d at 271. The recent version of NRS 41A.100(1) continues to require
expert medical testimony to prove medical negligence.

10
Smith, 666 P.2d at 354 (noting that the doctrine of informed consent is premised upon patient sovereignty
and the patient's ability to intelligently govern the treatment of his body).

11
Id. at 355-56 (stating that, although expert medical testimony is required to establish the existence of a risk
associated with medical procedures, the trier of fact can determine the materiality of the risk without expert
testimony because the trier of fact is equipped to determine whether a reasonable patient would consider a
given risk material).
is based upon the scientific method, whereas the practice of chiropractic is not scientific.
[Headnote 6]
Dr. Rutherford claims that Bronneke did not adequately preserve this argument for
appellate review because Bronneke (1) failed to make an offer of proof, (2) failed to object to
Dr. Rutherford's proffered jury instructions, and (3) failed to submit his own jury instructions
regarding informed consent. We conclude that Bronneke did adequately preserve this issue
for review on appeal. First, Bronneke, by a pretrial motion, sought clarification regarding the
standard governing informed consent. The issue was fully briefed, the district court further
explored the issue at the pretrial hearing and the district court made a dispositive ruling
before trial.
12
Second, the district court's ruling made it clear that the issue should not be
presented at trial because it could confuse the jury. Although Dr. Rutherford contends that
Bronneke should have made an offer of proof outside of the jury's presence to preserve the
issue, an offer of proof is necessary only when it is unclear what evidence the party claiming
error would have produced.
13
Since the district court heard at the pretrial hearing the
evidence that Bronneke intended to produce regarding the informed-consent claim, an offer of
proof was unnecessary. Third, Dr. Rutherford's argument that Bronneke should have
proffered jury instructions consistent with his theory of the case is erroneous because any
proffer of jury instructions regarding informed consent would have been futile. The jury was
not given the opportunity, by virtue of the district court's pretrial ruling, to hear evidence
concerning what a reasonable patient might expect to be told before consenting to treatment.
[Headnote 7]
Turning to the merits of Bronneke's arguments regarding the informed-consent
standard, we conclude that the district court did not err by adopting the physician-oriented
standard of informed consent. In Beattie v. Thomas, we affirmed the district court's refusal to
give the appellant's proffered jury instruction regarding the alleged failure of a physician to
obtain the appellant's informed consent regarding the possibility of early amputation of the
appellant's lower leg in order to save the rest of the leg.
____________________

12
See Richmond v. State, 118 Nev. 924, 932, 59 P.3d 1249, 1254 (2002).

13
See Foreman v. Ver Brugghen, 81 Nev. 86, 90, 398 P.2d 993, 995 (1965) ( [I]f the [party] wished to
make a record for later appellate review, an offer of proof was required. The record would then disclose what
testimony would have been given had the court permitted further questioning.' (quoting Charleston Hill v.
Clough, 79 Nev. 182, 190, 380 P.2d 458, 462 (1963) (Thompson, J., concurring in result))).
lant's lower leg in order to save the rest of the leg.
14
We noted that, under the traditional
view, the physician's duty to disclose is measured by a professional medical standard, which
the plaintiff must establish with expert testimony concerning the customary disclosure
practice of physicians in the relevant community,' or what a reasonable physician would
disclose under the circumstances.
15
We concluded that the district court had properly
refused the appellant's proffered informed-consent instruction because: (1) the appellant's
instruction deviated from prior holdings that were consistent with the traditional view
regarding medical standards of care, (2) NRS 41A.100(1) (1979) was a general rule
requiring plaintiffs to demonstrate the alleged negligence of a physician with expert
testimony, and (3) there was insufficient expert testimony to support an informed-consent
instruction.
16

We revisited the issue of a physician's failure to obtain a patient's informed consent in
Brown v. Capanna, in which the daughters of a patient who had died as a result of surgical
procedures alleged that the physician failed to conform to the customary disclosure practice.
17
In a footnote, we noted that appellants and amicus curiae urged the court to adopt the
patient-oriented standard, and we expressly declined to do so.
18
We reiterated our adoption
of the professional standard in Smith v. Cotter.
19

Bronneke now asks us to apply the patient-oriented standard to the chiropractic field.
We decline to do so. While Bronneke strives to discredit the chiropractic profession by
calling it unscientific, NRS 634.090 delineates rigorous educational requirements before a
chiropractor may receive a license to practice in Nevada, including numerous credit hours in
scientific fields such as anatomy, bacteriology, chemistry and toxicology, histology and
pathology, among others. Chiropractors are also subject to continuing education requirements
under NRS 634.130(3).
Although NRS 41A.100(1), which requires expert medical testimony in negligence
actions against physicians, dentists, registered nurses or licensed hospitals, does not name
chiropractors, we cannot agree with Bronneke's position that the reasoning for the
adoption of the professional testimony standard does not apply to chiropractors.
____________________

14
99 Nev. at 583-84, 668 P.2d at 271-72.

15
Id. at 584, 668 P.2d at 271.

16
Id. at 584, 668 P.2d at 271-72.

17
105 Nev. 665, 666-67, 782 P.2d 1299, 1300-01 (1989).

18
Id. at 669 n.1, 782 P.2d at 1302 n.1.

19
107 Nev. 267, 272, 810 P.2d 1204, 1207 (1991) (The standard relating to informed consent that has been
adopted by a majority of jurisdictions, including Nevada, is a professional' standard under which a doctor has a
duty to disclose information that a reasonable practitioner in the same field of practice would disclose.
Generally, under the majority rule the professional standard must be determined by expert testimony regarding
the custom and practice of the particular field of medical practice. (citations omitted)).
nurses or licensed hospitals, does not name chiropractors, we cannot agree with Bronneke's
position that the reasoning for the adoption of the professional testimony standard does not
apply to chiropractors. NRS 634.017 defines chiropractic malpractice as failure on the part
of a chiropractor to exercise the degree of care, diligence and skill ordinarily exercised by
chiropractors in good standing in the community in which he practices. This definition is
remarkably similar to the definition of medical malpractice under NRS 41A.009, which
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. Under these definitions, expert testimony is required, at a minimum,
to establish the customary medical or chiropractic practice at issue. The jury, as general
laypersons, would not know the customary practice in the profession. Hence, despite that
NRS 41A.100 is limited to the medical profession, expert chiropractic testimony would still
be necessary to establish malpractice. Since the failure to obtain a patient's informed consent
is a malpractice issue, the professional standard, requiring expert testimony as to the
customary disclosure practice, applies to chiropractors.
20

Bronneke's argument that applying the professional standard to the chiropractic field
would immunize chiropractors from informed-consent cases is also without merit. Although
the Chiropractic Physicians' Board of Nevada admitted that the decision of whether to inform
a patient of attendant risks is left to the individual chiropractor in Nevada, Bronneke's own
expert witness testified that all chiropractors are instructed at accredited schools that have
uniform standards, and therefore, chiropractic treatment is standardized nationwide. The
district court recognized that since Nevada has no chiropractic schools and since chiropractic
curriculum is standardized, the community in which Dr. Rutherford practices is at least the
western United States, if not the entire United States. Thus, even if disclosure of the risks of
chiropractic treatment were left to the individual chiropractor's discretion in Nevada, this
would not conform to the professional standard if the national customary disclosure
standard differed.
____________________

20
The application of general medical malpractice law to chiropractors has been recognized in several other
states. See Roberson v. Counselman, 686 P.2d 149, 152 (Kan. 1984), modified on other grounds by Delaney v.
Cade, 873 P.2d 175, 185-86 (Kan. 1994); Tschirhart v. Pethtel, 233 N.W.2d 93, 95 (Mich. Ct. App. 1975)
(noting that [i]n order for plaintiff to have sustained his burden of proof on this issue of malpractice, he was
required to establish, by expert testimony, that defendant breached the standard of care required of him);
Bakewell v. Kahle, 232 P.2d 127, 129 (Mont. 1951) (stating that [n]o good reason exists why, in such cases, the
law, as applies to physicians, surgeons, dentists and the like, should not apply to chiropractors); Jones, 412
N.W.2d at 842 (adopting the professional rule regarding chiropractic informed-consent cases because it
promoted uniformity and was the majority rule).
Nevada, this would not conform to the professional standard if the national customary
disclosure standard differed. The record reveals no evidence that Dr. Rutherford's failure to
disclose the risk of stroke fell below the national disclosure practice.
[Headnote 8]
Furthermore, given the evidence in the record that risk of stroke is extremely remote
following the technique that Dr. Rutherford used, a reasonable chiropractor would not have
deemed the risk material enough to require disclosure.
21
Dr. Rutherford elicited testimony
from Bronneke's expert witness that the risk of stroke due to a cervical traction manipulation
ranged from 1 chance in 400,000 to 1 chance in 6,000,000. Dr. Rutherford's expert testified
that the consensus was a 1 in 1,000,000 chance of stroke, but that new studies showed the risk
to be about 1 in 5,850,000. Furthermore, even if the district court applied the subjective test,
Bronneke did not make an offer of proof at the pretrial hearing or by affidavit that, had he
been informed of the risk of stroke, he would have refused treatment.
For the foregoing reasons, we decline to adopt the patient-oriented standard with
regard to the chiropractic field and expressly adopt the professional standard for
chiropractors. Accordingly, we affirm both the district court's final judgment and its order
denying Bronneke's motion for a new trial.
We now turn to the district court's award of attorney fees and costs to Dr. Rutherford.
Bronneke argues that the trial court's order granting costs and attorney fees based on
Bronneke's unreasonable rejection of Dr. Rutherford's settlement offer should be vacated
because the district court erroneously removed the informed-consent claim from the jury's
consideration. Because we conclude that the district court did not err by applying the
professional standard, this argument must fail. We therefore affirm the district court's order
awarding attorney fees and costs.
____________________

21
See Cobbs v. Grant, 502 P.2d 1, 12 (Cal. 1972) (stating that a physician need not inform a patient of risks
if the procedure is simple and the danger remote and commonly appreciated to be remote).
____________
120 Nev. 240, 240 (2004) Olson v. Richard
JAMES R. OLSON and CANDACE COLLINS OLSON, Appellants, v. THOMAS and
CAROL RICHARD dba AZTECH PLASTERING COMPANY, Respondents.
No. 40259
May 12, 2004 89 P.3d 31
Appeal from a final judgment and an order denying a new trial in a construction
defects case. Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge.
Homeowners brought statutory construction defect action against stucco-finish
subcontractor, alleging negligence, breach of contract, breach of warranty, breach of duty of
good faith and fair dealing, and negligent misrepresentation. The district court dismissed the
negligence claim during trial and entered judgment on jury's verdict for subcontractor on the
other claims. Homeowners appealed. The supreme court held that, as a matter of first
impression, the economic loss doctrine, which precludes a cause of action for purely
economic losses where there is no personal injury or property damage other than to the
structure itself, does not preclude a plaintiff from bringing a negligence claim when the
plaintiff brings a statutory construction defect action.
Becker, J., dissented.
Rawlings Olson Cannon Gormley & Desruisseaux and Michael E. Stoberski, Las
Vegas, for Appellants.
Brady, Vorwerck, Ryder & Caspino and Michael W. Caspino, Tracey L. Heinhold,
and Charles W. Simmons, Las Vegas, for Respondents.
1. Statutes.
The court's objective in construing a statute is to give effect to the Legislature's intent.
2. Negligence.
The economic loss doctrine, which precludes a cause of action for purely economic
losses where there is no personal injury or property damage other than to the structure
itself, does not preclude a plaintiff from bringing a negligence claim when the plaintiff
brings a statutory construction defect action. NRS 40.635(2), 40.640.
3. Trial.
The remarks of counsel for defendant stucco-finish subcontractor, informing the jury
that his clients were not wealthy people, were improper, in plaintiff homeowners'
construction defect action.
4. New Trial.
The improper remarks of counsel for defendant stucco-finish subcontractor, including
a remark informing the jury that his clients were not wealthy people, did not warrant a
new trial, in plaintiff homeowners' construction defect action; it was not evident that
the jury reached its verdict solely on the basis of passion and prejudice.
construction defect action; it was not evident that the jury reached its verdict solely on
the basis of passion and prejudice.
1

OPINION
Per Curiam:
This appeal presents an issue of first impression related to construction defects cases
brought under Chapter 40 of the Nevada Revised Statutes. Based on our decision in Calloway
v. City of Reno,
2
wherein this court held that a plaintiff may not allege a negligence claim for
purely economic losses in a construction defects case, the district court dismissed appellants'
negligence claim. We conclude that the district court erred because, unlike at common law, a
plaintiff can pursue a negligence claim when suing under NRS Chapter 40.
FACTS
In August 1994, James and Candace Olson (the Olsons) contracted with Structure
Control, Inc. (SCI), through its president Donald W. Layton, to act as general contractor to
construct a custom home for them in Las Vegas. The Olsons requested a three-coat light sand
stucco finish, painted with elastomeric paint. SCI entered into a contract with Aztech
Plastering Company (Aztech) for the stucco application.
In October 1995, SCI abandoned the construction of the Olsons' home after apparently
running out of money. Thereafter, the Olsons confirmed the stucco contract with Aztech and
hired Stanton Construction as a managing contractor.
Following Aztech's application of the stucco, the Olsons expressed their concern
because the home's exterior did not appear to be a smooth sand finish. According to Mr.
Olson, Aztech's foreman assured him that the exterior would look smooth after the
elastomeric paint was applied. However, the Olsons claimed that even after the paint was
applied, the home's exterior did not appear smooth.
To achieve the smooth finish the Olsons desired, Stanton Construction recommended
that either the stucco be sandblasted off and reapplied or a layer of polymer be applied to
the outside of the home.
____________________

1
The Honorable John M. Iroz, Judge of the Sixth Judicial District Court, was designated by the Governor to
sit in place of The Honorable Myron E. Leavitt, Justice. Nev. Const. art. 6, 4. The Honorable Michael L.
Douglas, Justice, did not participate in the decision of this matter.

2
116 Nev. 250, 993 P.2d 1259 (2000).
off and reapplied or a layer of polymer be applied to the outside of the home. The Olsons
opted to apply the polymer because it was more economical and less intrusive. However, the
Olsons claimed that the exterior still did not appear smooth, despite the application of the
polymer.
In addition to the Olsons' aesthetic complaints relating to the stucco, they also
complained that stucco fell off the home in various places. And, the Olsons discovered water
intrusion when it rainedwater seeped through some of the windows in the home. As a
result, the Olsons hired construction expert Jerry Lawrence to investigate.
Lawrence observed that the weep holesrequisite exterior egress openings in the
windows for accumulated rainwaterwere in many instances covered with exterior stucco.
Lawrence also observed that several areas of stucco detailing and finishing appeared to have
been inappropriately applied, which he opined could have caused the present water intrusion
and could lead to surface deterioration in the future. Lawrence opined that inferior stucco
application caused the water intrusion, and he recommended that much of the stucco be
removed and new stucco applied.
In October 1997, the Olsons made a Chapter 40 demand on SCI through a letter sent
to Layton's and SCI's last-known addresses. Although the letter mentioned Aztech, Aztech
was not directly sent a copy of the letter. In December 1997, after receiving no response from
SCI, the Olsons filed a complaint against, among others, SCI and Aztech. The Olsons based
their construction defects claims on Chapter 40 and common law, alleging negligence, breach
of contract, breach of warranty, breach of the duty of good faith and fair dealing, and
negligent misrepresentation.
During the trial, Aztech moved to dismiss the Olsons' negligence claim, arguing that
Calloway restricts a plaintiff's right to sue for negligence in a construction defects cause of
action. The Olsons countered that Calloway was inapplicable because it was decided based
on facts that predated the Nevada Legislature's enactment of Chapter 40, which they argued
permitted their negligence claim. The district court ruled that the Olsons' negligence claim
was barred by Calloway and, thus, dismissed the claim.
At the close of the trial, the jury returned a unanimous verdict in favor of Aztech.
Thereafter, the Olsons filed a motion for judgment notwithstanding the verdict or, in the
alternative, for a new trial. The district court denied the Olsons' motion. The Olsons now
appeal from the judgment, including the dismissal of their negligence claim, and from the
denial of their motion for a new trial.
DISCUSSION
In Calloway, this court concluded that the economic loss doctrine applied to
construction defects cases.
3
Accordingly, this court held that a negligence claim could not be
maintained in a construction defects cause of action for purely economic losses where there is
no personal injury or property damage other than to the structure itself.
4
Prior to this court's
decision in Calloway, the Legislature enacted Chapter 40 to aid in resolving construction
defects disputes between contractors and homeowners. But because the claims in Calloway
predated the enactment of Chapter 40, we did not address whether a negligence claim could
be brought under Chapter 40.
[Headnote 1]
Our objective in construing Chapter 40 is to give effect to the Legislature's intent.
5
NRS 40.640 states that a contractor is liable for any construction defects resulting from his
acts or omissions or the acts or omissions of his agents, employees, or subcontractors. This
language in no way limits a homeowner's recovery to construction defects covered by a
contract or warranty. Thus, we presume that the Legislature envisioned that Chapter 40 would
provide more than just contractual remedies.
[Headnote 2]
Additionally, NRS 40.635(2) clarifies that Chapter 40 prevails over any conflicting
law otherwise applicable to the claim or cause of action. Until our holding in Calloway, this
court was consistently reluctant to apply the economic loss doctrine to construction defects
cases.
6
This was the state of the law at the time the Legislature enacted Chapter 40 in 1995.
Hence, it is reasonable to infer that the Legislature did not intend for the economic loss
doctrine to preclude a homeowner from alleging a negligence claim in a construction defects
cause of action initiated pursuant to Chapter 40. Consequently, we now conclude that,
notwithstanding our holding in Calloway, a negligence claim can be alleged in a
construction defects cause of action initiated under Chapter 40.
____________________

3
Id. at 261, 993 P.2d at 1267.

4
Id. at 265, 993 P.2d at 1269.

5
See State v. Kopp, 118 Nev. 199, 204, 43 P.3d 340, 343 (2002).

6
See Calloway v. City of Reno, 113 Nev. 564, 571-72, 939 P.2d 1020, 1025 (1997) (concluding that despite
the economic loss doctrine, strong policy considerations favor allowing a homeowner to recover damages for a
negligently constructed home), opinion withdrawn, 114 Nev. 1157, 971 P.2d 1250 (1998); Oak Grove Inv. v.
Bell & Gossett Co., 99 Nev. 616, 625, 668 P.2d 1075, 1080-81 (1983) (concluding that the economic loss
doctrine did not bar recovery for negligence when the appellant alleged that a defective plumbing and heating
system caused water leakage throughout and damage to the appellant's apartment).
our holding in Calloway, a negligence claim can be alleged in a construction defects cause of
action initiated under Chapter 40.
[Headnotes 3, 4]
The Olsons argue that the district court should have granted their motion for a new
trial based on the misconduct of Aztech's counsel. We have stated that granting a new trial
based upon the prevailing party's misconduct does not require proof that the result of the trial
would have been different absent counsel's misconduct.
7
However, we have also stated that
for a new trial to be warranted, the flavor of misconduct must sufficiently permeate an entire
proceeding to provide conviction that the jury was influenced by passion and prejudice in
reaching its verdict.
8
We agree that many of Aztech's counsel's remarks were improper,
particularly informing the jury that his clients were not wealthy people.
9
Nonetheless, we
conclude that the district court did not abuse its discretion in denying the Olsons' motion for a
new trial, since it is not evident that the jury reached its verdict solely on the basis of passion
and prejudice.
10

Because the district court erred in dismissing the Olsons' negligence claim, we reverse
and remand for further proceedings consistent with this opinion.
Becker, J., dissenting:
I disagree with the majority opinion's conclusion that the Legislature, in enacting
Chapter 40 of the Nevada Revised Statutes, intended to create a negligence cause of action
against contractors and subcontractors for construction defects. In doing so, the majority
ignores the plain language of the statutes as well as legislative history.
The majority asserts that NRS 40.640 establishes a statutory cause of action against a
contractor for construction defects. The majority reaches this conclusion because a portion of
the statute states that a contractor is liable for the acts or omissions of persons acting as the
contractor's agents, such as an employee or subcontractor. However, when read in context
with the remaining portions of the statute, it is clear that the statute simply reiterates existing
law.
____________________

7
Barrett v. Baird, 111 Nev. 1496, 1515, 908 P.2d 689, 702 (1995).

8
Standard Oil of California v. Perkins, 347 F.2d 379, 388 (9th Cir. 1965), quoted in Barrett, 111 Nev. at
1515, 908 P.2d at 702.

9
See Canterino v. The Mirage Casino-Hotel, 117 Nev. 19, 30, 16 P.3d 415, 422 (2001) (Rose, J., concurring
in part and dissenting in part) (observing that it is misconduct for an attorney to deliberately attempt to appeal to
the economic prejudices of the jury).

10
See Krause Inc. v. Little, 117 Nev. 929, 933, 34 P.3d 566, 569 (2001) (observing that this court will not
reverse a district court's denial of a motion for a new trial absent a palpable abuse of discretion).
In a claim to recover damages resulting from a constructional defect, a contractor is
liable for his acts or omissions or the acts or omissions of his agents, employees or
subcontractors and is not liable for any damages caused by:
1. The acts or omissions of a person other than the contractor or his agent, employee
or subcontractor;
2. The failure of a person other than the contractor or his agent, employee or
subcontractor to take reasonable action to reduce the damages or maintain the
residence;
3. Normal wear, tear or deterioration;
4. Normal shrinkage, swelling, expansion or settlement; or
5. Any constructional defect disclosed to an owner before his purchase of the
residence, if the disclosure was provided in language that is understandable and was
written in underlined and boldfaced type with capital letters.
1

Nothing in the above language creates a cause of action.
I agree with the majority that the provisions of Chapter 40 do not limit a homeowner's
recovery on construction defects to contract or warranty causes of action. This limitation
stems from our decision in Calloway v. City of Reno
2
(Calloway II) and the application of
the economic loss doctrine. Although I agree with Calloway II that a home is not a product
for purposes of products liability and that the economic loss doctrine applies to residential
construction, I do not agree with the conclusion that a home is an integrated unit when
considering the economic loss doctrine. If it is not a product, then it is also not an integrated
unit. However, Calloway II remains the law, and the fact that the composition of the court has
changed is not a sufficient reason for reconsidering the issue. The majority acknowledges that
the district court correctly dismissed the negligence cause of action pursuant to Calloway II
and then proceeds to torture the statute to avoid Calloway II.
The majority sidesteps Calloway II by referencing NRS 40.635(2). NRS 40.635(2)
only states that the statute controls over any conflicting law applicable to a cause of action.
Since Chapter 40 does not discuss negligence as a cause of action, it does not conflict with
Calloway II and Calloway II still controls. The majority claims that because the statute was
enacted before Calloway II and did not conflict with our pre-Calloway case law, that the
Legislature did not intend for the economic loss doctrine to apply to residential home
construction. This is nothing more than pure speculation. Had the Legislature intended to
exempt residential construction defect cases from the economic loss doctrine, it would
have done so.
____________________

1
NRS 40.640.

2
116 Nev. 250, 993 P.2d 1259 (2000).
residential construction defect cases from the economic loss doctrine, it would have done so.
The Legislature did not address the issue in the statute, and its silence is an indication that it
was leaving such issues to the courts to resolve, not a rejection of a specific legal defense.
When Chapter 40 was enacted, our case law on the application of the economic loss
doctrine to residential home construction was unclear. As noted in Calloway II, some cases
indicated, through dictum or holdings, that the doctrine would not apply. Others indicated it
would.
3
The majority opinion assumes or infers that because our case law suggested the
doctrine might not apply to residential construction defect cases and the Legislature is
presumed to be aware of our case law, the Legislature did not intend to prevent negligence
causes of action. But it is a stretch of logic to conclude that this same legislative silence
created a cause of action or eliminated the economic loss doctrine as a defense to a
construction defect claim. In fact, it flies in the face of the plain language of the remaining
provisions of NRS 40.635. Sections 3 and 4 of the statute state just the opposite.
NRS 40.600 to 40.695, inclusive:
. . . .
3. Do not bar or limit any defense otherwise available except as otherwise provided in
those sections.
4. Do not create a new theory upon which liability may be based.
Nothing in the provisions of NRS 40.600 to NRS 40.695 deal with negligence or the
economic loss doctrine; thus, the Legislature neither created a cause of action nor eliminated
a defense. These matters were left to the court to decide, as we did in Calloway II.
Even if the plain language of the statute could be ignored or deemed ambiguous, the
legislative history of the act and its amendments does not support the majority's conclusion.
The original version of the act contained the word negligence. This was deleted to avoid
any argument that the act was creating a cause of action.
4
Indeed, the testimony indicates
that the act is an alternative dispute resolution process with penalties for failure to participate
or bad faith participation, and incentives to participate through damage and fee provisions.
5

____________________

3
Id. at 262-67, 993 P.2d at 1267-70.

4
Hearing on S.B. 395 Before the Senate Judiciary Comm., 68th Leg. 21-22 (Nev., June 15, 1995); Hearing
on S.B. 395 Before the Assembly Comm. on Judiciary, 68th Leg. 6 (Nev., June 23, 1995).

5
2 Journal S., 68th Leg. 1186-87 (Nev. 1995); Hearing on S.B. 395 Before the Assembly Comm. on
Judiciary, 68th Leg. 5 (Nev., June 23, 1995).
In addition, the act was amended in 1997, after Calloway I
6
was issued and while the
matter was pending rehearing. Although some individuals wished to address Calloway I, the
Legislature declined to do so.
7
Instead, the Legislature added section 4 to NRS 40.635 to
underscore that the act was a dispute resolution process and the court was free to create
causes of action or eliminate defenses as it saw fit.
8
Finally, the Legislature has met twice
since Calloway II was issued and has not amended Chapter 40 to address that opinion. This
further indicates that the Legislature intends to leave these issues to the judicial system.
Given the plain language of the statutes and the legislative history, there is no support
for the majority opinion's conclusion that Chapter 40 created a statutory negligence cause of
action. Nor is there a need to creatively read the statutes to provide the homeowners with a
remedy in this case. The homeowners sued under theories of breach of contract and warranty.
These actions provide sufficient remedies to address allegations of construction defects from
inferior workmanship. Common law imposes an implied warranty of workmanlike manner,
which has been defined as a duty to perform to a reasonably skillful standard.
9
This is akin
to a negligence standard, what would a reasonable contractor do in the circumstances, without
the additional damages imposed under tort law that are inapplicable to contractual relations.
Moreover, because contractors and subcontractors understand and accept these duties as a
part of their business, they cannot claim surprise when they are sued for a failure to act in a
workmanlike manner.
Arguments that warranty law might leave some homeowners without a remedy
because of defenses such as lack of privity or warranty disclaimers are the reason that some
courts have excepted residential construction from the economic loss doctrine. However,
other courts have simply recognized that such defenses should be eliminated in contract law if
their application would leave the homeowner stranded.
10
Of the two approaches, I favor the
second and would vote in favor of eliminating privity or restricting warranty disclaimers
in an appropriate case.
____________________

6
113 Nev. 564, 939 P.2d 1020 (1997), reh'g granted and opinion vacated, 114 Nev. 1157, 971 P.2d 1250
(1998).

7
Hearing on S.B. 480 Before the Senate Judiciary Comm., 69th Leg. 3-6 (Nev., June 26, 1997); Hearing on
S.B. 480 Before the Assembly Comm. on Judiciary, 69th Leg. 11-13 (Nev., July 3, 1997).

8
See sources cited supra note 7.

9
See William T. Little & Stephen Paxson, The Implied Warranties of Good Workmanship and Habitability
and the Builder's State of Repose, 29 Dec. Housing Law 34 (1991); 3 National Institute of Construction Law,
Inc., Construction and Design Law 20.3a, at 27 (1998).

10
See, e.g., Minton v. Richards Group of Chicago, 452 N.E.2d 835 (Ill. App. Ct. 1983); Cosmopolitan
Homes, Inc. v. Weller, 663 P.2d 1041 (Colo. 1983); Oates v. Jag, Inc., 333 S.E.2d 222 (N.C. 1985); McMillan
v. Brune-
second and would vote in favor of eliminating privity or restricting warranty disclaimers in an
appropriate case. It better preserves the distinction between tort and contract discussed in
Calloway II than the majority's rewriting of Chapter 40.
A homeowner whose property suffers from construction defects should be able to sue
the developer or general contractors for repairs and consequential damages. When the
developer or general contractor no longer exist, are insolvent, or possess insufficient funds to
pay damages, then a direct suit against the subcontractors should also be available to the
homeowners. However, neither issue is presented in this case. The Olsons sued under
warranty claims. Privity and disclaimers did not bar recovery. The jury was instructed and
heard evidence that the stucco was not applied in a workmanlike manner. They also heard
evidence to the contrary. While I do not agree with the result, there is substantial evidence to
support the jury's finding that the stucco was not defective. I would affirm the judgment
entered below.
____________
120 Nev. 248, 248 (2004) Mikohn Gaming Corp. v. McCrea
MIKOHN GAMING CORPORATION, a Nevada Corporation,
Appellant, v. CHARLES H. McCREA, JR., Respondent.
No. 41822
May 12, 2004 89 P.3d 36
Motion for a stay of district court proceedings pending the resolution of an appeal
from a district court order that denied in part a motion to compel arbitration. Eighth Judicial
District Court, Clark County; Kathy A. Hardcastle, Judge.
Former employer brought action against former employee, who was general counsel
and secretary, for breach of promissory note. Former employee filed answer and
counterclaim. Former employer moved to dismiss or compel arbitration of counterclaims. The
district court granted the motion in part and denied the motion in part. Former employer
sought stay pending appeal, and the district court denied the stay. Former employer appealed
order denying in part motion to compel arbitration and moved for a stay of the district court
proceedings pending resolution of the appeal. The supreme court held that stay was
warranted.
Motion granted.
Littler Mendelson and Patrick H. Hicks, Jeffrey S. Judd, and Rick D. Roskelley, Las
____________________
Harpenau-Torbeck Builders, 455 N.E.2d 1276 (Ohio 1983); Kennedy v. Columbia Lumber & Mfg. Co., 384
S.E.2d 730 (S.C. 1989).
Campbell & Williams and Donald J. Campbell and J. Colby Williams, Las Vegas, for
Respondent.
Generally, in determining whether to issue a stay pending disposition of an appeal, the
supreme court considers the following factors: (1) whether the object of the appeal will
be defeated if the stay is denied, (2) whether appellant will suffer irreparable or serious
injury if the stay is denied, (3) whether respondent will suffer irreparable or serious
injury if the stay is granted, and (4) whether appellant is likely to prevail on the merits
in the appeal. NRAP 8(c).
2. Arbitration.
A stay of trial court proceedings pending resolution of an appeal of an order refusing
to compel arbitration should issue to avoid defeating the object of the appeal, absent a
strong showing that the appeal lacks merit or that irreparable harm will result if a stay is
granted. NRAP 8(c).
3. Arbitration.
Because the object of an appeal seeking to compel arbitration will likely be defeated if
a stay of the lower court proceedings is denied, a stay is generally warranted; however,
a stay is not automatic. NRAP 8(c).
4. Arbitration.
A mere delay in pursuing discovery and litigation normally does not constitute
irreparable harm requiring a stay of an action pending appeal of the denial of a motion
to compel arbitration. NRAP 8(c).
5. Arbitration.
The factor of irreparable or serious harm, although part of the stay analysis, will not
generally play a significant role in the decision whether to issue a stay of an action
pending appeal of the denial of a motion to compel arbitration. NRAP 8(c).
6. Arbitration.
Because the object of an appeal seeking to compel arbitration will be defeated if a stay
is denied, and irreparable harm will seldom figure into the analysis, a stay is generally
warranted. NRAP 8(c).
7. Arbitration.
The party opposing the motion for a stay pending appeal of the denial of a motion to
compel arbitration can defeat the stay motion by making a strong showing that appellate
relief is unattainable. NRAP 8(c).
8. Arbitration.
If the appeal of the denial of a motion to compel arbitration appears frivolous, or if the
appellant apparently filed a stay motion pending appeal purely for dilatory purposes, the
court should deny the stay. NRAP 8(c).
9. Arbitration.
A stay of judicial proceedings pending an appeal of a denial of a motion to compel
arbitration should be denied when arbitration is clearly not warranted, but a stay should
generally be granted in other cases. NRAP 8(c).
10. Arbitration.
Stay of judicial proceedings pending the outcome of former employer's appeal of
denial of motion to compel arbitration was warranted, as merits were unclear and it was
difficult to tell if appeal was likely to succeed; it was not clear if arbitration of former
employee's counterclaims was required by employment agreement's arbitration clause,
there was no evidence of irreparable or serious harm due to stay, and former
employer would be forced to spend money and time preparing for trial, thus
potentially losing the benefits of arbitration.
evidence of irreparable or serious harm due to stay, and former employer would be
forced to spend money and time preparing for trial, thus potentially losing the benefits
of arbitration. NRAP 8(c).
OPINION
Per Curiam:
This is an appeal from a district court order that denied in part a motion to compel
arbitration. Appellant seeks a stay of the district court proceedings pending consideration of
this appeal. We granted a temporary stay on October 14, 2003.
Although our general stay factors, articulated in NRAP 8(c), apply in an appeal from
an order refusing to compel arbitration, our stay analysis necessarily reflects arbitration's
unique policies and purposes and the interlocutory nature of the appeal. Consequently, the
first stay factorwhether the object of the appeal will be defeated if the stay is deniedtakes
on added significance and generally warrants a stay of lower court proceedings pending
resolution of the appeal. The other stay factors remain relevant, but absent a strong showing
that the appeal lacks merit or that irreparable harm will result if a stay is granted, a stay
should issue to avoid defeating the object of an appeal from an order refusing to compel
arbitration.
FACTS
This controversy arises from appellant Mikohn Gaming Corporation's employment
and subsequent termination of respondent Charles McCrea. Mikohn employed McCrea as
general counsel and secretary from May 1994 until March 2003. When Mikohn hired
McCrea, the parties entered into separate employment and indemnification agreements. The
employment agreement included an arbitration clause, which subjected certain controversies
arising from McCrea's employment to binding arbitration. The indemnification agreement
purported to indemnify McCrea from any liability in his official capacity as an officer of
Mikohn. The indemnification agreement did not contain an arbitration clause.
On March 13, 2003, Mikohn brought a collection action in the district court against
McCrea for a breach of promissory notes.
1
McCrea filed an answer and counterclaim. His
counterclaim asserted seven causes of action against Mikohn. Subsequently, Mikohn moved
to dismiss andJor compel arbitration of all of McCrea's claims.
____________________

1
The stay motion does not explain the facts or circumstances surrounding the collection action.
Mikohn moved to dismiss and/or compel arbitration of all of McCrea's claims.
The district court concluded that McCrea's first five claims arose from the
indemnification agreement. Consequently, the district court granted the motion to compel
arbitration as to McCrea's sixth and seventh causes of action, and denied the motion as to his
first five causes of action. Mikohn appealed and sought a stay in the district court.
2
The
district court denied the stay motion, and Mikohn now seeks a stay from this court. We
granted a temporary stay on October 14, 2003, to preserve the status quo while we considered
the interplay of NRAP 8(c)'s stay factors in an appeal from an order refusing to compel
arbitration.
DISCUSSION
[Headnote 1]
Generally, in determining whether to issue a stay pending disposition of an appeal,
this court considers the following factors: (1) whether the object of the appeal will be
defeated if the stay is denied, (2) whether appellant will suffer irreparable or serious injury if
the stay is denied, (3) whether respondent will suffer irreparable or serious injury if the stay is
granted, and (4) whether appellant is likely to prevail on the merits in the appeal.
3
We have
not indicated that any one factor carries more weight than the others, although Fritz Hansen
A/S v. District Court
4
recognizes that if one or two factors are especially strong, they may
counterbalance other weak factors.
[Headnote 2]
Our stay analysis in an appeal from an order refusing to compel arbitration necessarily
reflects the unique policies and purposes of arbitration and the interlocutory nature of the
appeal. As a result, the first stay factor takes on added significance and generally warrants a
stay of trial court proceedings pending resolution of the appeal. The other stay factors remain
relevant, but absent a strong showing that the appeal lacks merit or that irreparable harm will
result if a stay is granted, a stay should issue to avoid defeating the object of the appeal.
____________________

2
NRS 38.205(1)(a) (repealed 2001) (current version at NRS 38.247(1)(a)) allows an immediate appeal of an
order denying a motion to compel arbitration. Because Mikohn and McCrea entered into the employment
agreement before October 1, 2001, the prior version of the Uniform Arbitration Act (UAA), codified at NRS
38.015 to 38.205, governs this dispute. For purposes of this opinion, however, the differences between the prior
and current version of the UAA are irrelevant.

3
NRAP 8(c); see also Fritz Hansen A/S v. Dist. Ct., 116 Nev. 650, 6 P.3d 982 (2000).

4
116 Nev. at 659, 6 P.3d at 987.
result if a stay is granted, a stay should issue to avoid defeating the object of the appeal.
Object of the appeal
Initially, we define the object of an appeal from an order refusing to compel
arbitration. In this case, the parties offer conflicting views on the object of Mikohn's appeal.
Mikohn argues that the object of its appeal is to enforce the employment agreement's
arbitration clause and attain the bargained-for benefits of arbitration. According to Mikohn,
allowing the district court proceedings to continue while its appeal is pending will render the
arbitration clause meaningless, and any victory on appeal will be hollow. McCrea counters
that Mikohn's appeal simply seeks to determine whether all of McCrea's claims are subject to
arbitration, and if this court grants Mikohn relief in this appeal, the claims currently before
the district court can be consolidated into the arbitration proceedings.
Nevada's version of the Uniform Arbitration Act
5
(UAA) clearly favors arbitration.
6
And we have previously recognized a strong policy in favor of arbitration, stating that
[c]ourts are not to deprive the parties of the benefits of arbitration they have bargained for,
and arbitration clauses are to be construed liberally in favor of arbitration.
7
Further, and
particularly relevant to this discussion, are the reasons parties choose arbitration over
traditional litigation. Arbitration, as an alternative dispute resolution mechanism, is generally
designed to avoid the higher costs and longer time periods associated with traditional
litigation.
8
Adopting McCrea's definition of the object of this appeal would ignore
arbitration's purposes and benefits. The benefits of arbitration would likely be lost or eroded
if it were necessary for an appellant to simultaneously or sequentially proceed in both judicial
and arbitral forums.
9

In addition, the Legislature has provided for an interlocutory appeal of an order
denying a motion to compel arbitration,
10
which demonstrates an intent to secure review of
an order refusing to compel arbitration before trial. In doing so, the Legislature has implicitly
recognized that an appellant who is forced to defend the action in district court pending
appeal, possibly even to final judgment, loses arbitration's monetary and timesaving
benefits.
____________________

5
NRS 38.015 to 38.205 (repealed 2001) (current version at NRS 38.206 to 38.248).

6
See Phillips v. Parker, 106 Nev. 415, 417, 794 P.2d 716, 718 (1990).

7
Id.

8
See Bradford-Scott Data v. Physician Computer Network, 128 F.3d 504, 506 (7th Cir. 1997).

9
Id.

10
See NRS 38.205(1)(a) (repealed 2001) (current version at NRS 38.247).
ment, loses arbitration's monetary and timesaving benefits. Otherwise, the Legislature could
have required the appellant to wait to appeal from any adverse final judgment.
[Headnote 3]
Given the interlocutory nature of an appeal seeking to compel arbitration, and the
purposes of arbitration, the first stay factor takes on added significance. The object of an
appeal seeking to compel arbitration is to enforce the arbitration agreement and attain the
bargained-for benefits of arbitration. As a result, because the object of an appeal seeking to
compel arbitration will likely be defeated if a stay is denied, a stay is generally warranted. A
stay is not automatic, however. NRAP 8(c)'s other stay factors also apply in the stay analysis.
Irreparable or serious harm
[Headnotes 4, 5]
Although irreparable or serious harm remains part of the stay analysis, this factor will
not generally play a significant role in the decision whether to issue a stay. Normally, the only
cognizant harm threatened to the parties is increased litigation costs and delay. We have
previously explained that litigation costs, even if potentially substantial, are not irreparable
harm.
11
Similarly, a mere delay in pursuing discovery and litigation normally does not
constitute irreparable harm.
12
Of course, in certain cases, a party may face actual irreparable
harm, and in such cases the likelihood of irreparable harm should be considered in the stay
analysis. Neither Mikohn nor McCrea have demonstrated irreparable or serious harm in this
case.
Likelihood of success on the merits
[Headnotes 6-9]
Because the object of an appeal seeking to compel arbitration will be defeated if a stay
is denied, and irreparable harm will seldom figure into the analysis, a stay is generally
warranted. However, we recognize the potential for abuse of a rule that requires an automatic
stay in this context. Therefore, the party opposing the stay motion can defeat the motion by
making a strong showing that appellate relief is unattainable. In particular, if the appeal
appears frivolous or if the appellant apparently filed the stay motion purely for dilatory
purposes, the court should deny the stay. Under this approach, a stay should be denied when
arbitration is clearly not warranted, but a stay should generally be granted in other cases.
____________________

11
Fritz Hansen A/S, 116 Nev. at 658, 6 P.3d at 986-87.

12
See id. at 658, 6 P.3d at 987.
[Headnote 10]
In this case, the merits are unclear at this stage. Without a full appellate review of the
record, we cannot determine if Mikohn's appeal is likely to succeed. As a result, because it is
not clear if arbitration of McCrea's claims is required by the employment agreement's
arbitration clause and Mikohn will be forced to spend money and time preparing for trial, thus
potentially losing the benefits of arbitration, we grant Mikohn's motion and extend the stay
for the duration of this appeal.
13

In view of this opinion, and to the extent our docket permits, we will expedite appeals
from orders denying motions to compel arbitration.
____________
120 Nev. 254, 254 (2004) State v. Dist. Ct. (Epperson)
THE STATE OF NEVADA, RICHARD A. GAMMICK, WASHOE COUNTY DISTRICT
ATTORNEY, Petitioners, v. THE SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for THE COUNTY OF WASHOE, and THE
HONORABLE STEVEN R. KOSACH, District Judge, Respondents, and CLAUDE
ERIC EPPERSON, JR.; RYAN ANDREW BARNES; DONI KEVIN HODGE; and
BRITTANIA LARAE TODD, Real Parties in Interest.
No. 42048
May 13, 2004 89 P.3d 663
Petition for a writ of mandamus or prohibition challenging a district court order
compelling the State to deliver a copy of a child pornography videotape to defense counsel
for discovery purposes.
The supreme court held that State was required, as a matter of due process, to provide
videotape to defense counsel, despite statutory prohibition on reproduction of child
pornography.
Petition granted in part.
Richard A. Gammick, District Attorney, and Gemma Greene Waldron, Deputy District
Attorney, Washoe County, for Petitioners.
John P. Calvert, Reno, for Real Party in Interest Brittania Larae Todd.
John J. Kadlic, Reno, for Real Party in Interest Doni Kevin Hodge.
____________________

13
In light of this opinion, we deny McCrea's December 3, 2003 motion to vacate our temporary stay.
Michael R. Specchio, Public Defender, and Cheryl D. Bond and Cotter C. Conway,
Deputy Public Defenders, Washoe County, for Real Party in Interest Ryan Andrew Barnes.
Martin H. Wiener, Reno, for Real Party in Interest Claude Eric Epperson, Jr.
JoNell Thomas, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.
1. Mandamus.
Supreme court has original jurisdiction over a writ of mandamus. Const. art. 6, 4;
NRS 34.160.
2. Mandamus.
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.
3. Prohibition.
Writ of prohibition may issue to prevent improper discovery when a district court
enters a discovery order in excess of its jurisdiction.
4. Mandamus; Prohibition.
Pretrial discovery matters are subject to review by petitions for writ of mandamus or
prohibition to supreme court.
5. Prohibition.
Writ of prohibition was proper remedy for State to challenge district court order
compelling State to deliver pornographic videotape to defense counsel for purposes of
discovery in prosecution for sexual assault on a child and unlawfully using minor in
producing pornography; issue involved pretrial discovery and State had no other
remedy, given that reproduction of child pornography was specifically prohibited by
statute and district court ordered State to violate that statute. NRS 200.725.
Due process requires State to disclose material evidence favorable to the defense;
evidence is material when there is a reasonable probability that had the evidence been
available to the defense, the result of the proceeding would have been different. U.S.
Const. amend. 14.
7. Constitutional Law; Criminal Law.
Even though statute prohibiting reproduction of child pornography did not contain
exception for defense counsel, pornographic videotape depicting sexual conduct
involving child under the age of fourteen was material to defense, and thus State was
required, as a matter of due process, to provide videotape to defense counsel in
prosecution for sexual assault on a child and unlawfully using minor in producing
pornography; defendants contended that to present their side of the case, they needed
videotape to enhance certain images to show their absence in the videotape. U.S. Const.
amend. 14; NRS 174.235, 200.735.
8. Obscenity.
Purpose of child pornography statutes is to prevent the distribution of child
pornography and protect children; it is not to prevent defense counsel from adequately
preparing for trial. NRS 200.710-.735.
OPINION
Per Curiam:
Petitioner the State of Nevada refused to copy and produce a child pornography
videotape to defense counsel based on NRS 200.710 to 200.735 and 18 U.S.C. 2252. The
State provided the real parties in interest Claude Eric Epperson, Jr. (Claude), Ryan Andrew
Barnes (Ryan), Doni Kevin Hodge (Doni), and Brittania Larae Todd (Brittania) (collectively
the Epperson defendants) access to the child pornography videotape by allowing them to view
it with counsel at the prosecutor's office. The Epperson defendants claim that they need a
copy of the videotape to prepare for trial and present the videotape in a manner consistent
with their defense. Amicus curiae Nevada Attorneys for Criminal Justice agrees with the
Epperson defendants that the child pornography videotape should be copied and delivered to
the defense attorneys for trial preparation.
FACTS
On January 19, 2003, thirteen-year-old E.R. went to the Lake Mill Lodge store to get
some ice cream. E.R. met her neighbor, Brittania, at the store. Brittania invited E.R. to visit
Brittania later at her apartment. E.R. went to Brittania's apartment and found people in there
drinking and dancing and girls in there taking off their shirts and undressing and [dancing]
with the guys.
E.R. only drank alcohol and did not eat while at Brittania's apartment. E.R. went to
Brittania's apartment to get alcohol, but she did not want to take her clothes off or have sex.
As E.R. drank alcohol, she observed one girl dancing on top of a guy with her shirt off and
Brittania dancing with another guy, taking her clothes off as well. E.R. does not remember
anything else that happened at Brittania's apartment. The next thing she remembered was
being in the hospital.
E.R. had passed out, so two of E.R.'s friends took her home. E.R.'s mother, Jennifer,
arrived and attempted to revive E.R. Jennifer smelled alcohol on E.R.'s breath and determined
that she was unresponsive. Because E.R. could not breathe, Jennifer called emergency
services. The ambulance first took E.R. to St. Mary's Hospital and then to Northern Nevada
Medical Center.
E.R. was at St. Mary's Hospital for about an hour, where staff performed a
blood-alcohol test on her. Then, a nurse conducted a sexual assault exam on E.R. E.R. was
crying and confused; she smelled of alcohol at the time the nurse performed the exam.
smelled of alcohol at the time the nurse performed the exam. E.R. told the nurse that she
believed she had been sexually assaulted.
The nurse discovered that E.R. had multiple bruises on her face, a black eye, bruising
on her neck, and scratches on her jaw. She also had abrasions and tears to her genitalia,
including one deep tear and many tiny tears. One of the abrasions was still bleeding during
the examination. The nurse testified that this type of injury would support a patient's claim
that they were sexually assaulted. The nurse also considered it possible that someone may
have placed a date rape drug in E.R.'s drink because it usually requires more than two glasses
of alcohol to cause someone to lose consciousness.
E.R.'s friend, A.H., was also at Brittania's apartment on January 19, 2003. A.H. started
drinking alcohol between 7:50 p.m. and 8 p.m. Around 8:20 p.m., Brittania let Claude, Doni,
Ryan, and Nick, a man who was not charged, into her apartment. Everyone started drinking
and rapping or something. A.H. saw Doni in the kitchen kissing E.R. and later saw Ryan on
top of E.R. in the bathroom. Claude videotaped Ryan having intercourse with E.R. on the
bathroom floor. A.H. told Claude and Nick that E.R. was only thirteen or fourteen years old.
A.H. returned to the bathroom fifteen minutes later and told E.R. that her mother called and
wanted her to go home. Because A.H. was scared about E.R.'s safety, a few minutes later
A.H. told E.R. again that her mother called. A.H. heard E.R. say, No, when she came back
the second time. A.H. went back to check on E.R. three or four more times. After E.R. left,
A.H. found an empty bottle of vodka in the bathroom.
Detective Lopez interviewed Claude, A.H., Ryan, Brittania, E.R., and Jennifer about
what happened at Brittania's apartment on January 19, 2003. Claude willingly told Detective
Lopez about the videotape. Detective Lampert interviewed Doni regarding the sexual assault.
Doni implicated Claude and Ryan as having sex with E.R. After the police established
probable cause, the police arrested Claude, Doni, Brittania, and Ryan. Officer Linder
conducted the inventory search when the police booked Claude into jail. Officer Linder found
a videotape in Claude's right front pocket. The videotape contained about one hour of explicit
sexual conduct between the guys and girls at Brittania's apartment, including sexual conduct
with thirteen-year-old E.R.
On May 28, 2003, the grand jury indicted Claude on two counts of sexual assault on a
child or, in the alternative, two counts of lewdness with a child under the age of fourteen
years. The grand jury indicted Doni on one count of lewdness with a child under the age of
fourteen years and three counts of sexual assault on a child or, in the alternative, three
counts of lewdness with a child under the age of fourteen years.
or, in the alternative, three counts of lewdness with a child under the age of fourteen years.
The grand jury indicted Ryan on three counts of sexual assault on a child or, in the
alternative, three counts of lewdness with a child under the age of fourteen years. The grand
jury also indicted Claude, Doni, Ryan, and Brittania on one count of unlawfully using a minor
in producing pornography.
On August 8, 2003, the district court conducted a hearing on the Epperson defendants'
motion for discovery of the child pornography videotape. Because the defense attorneys filed
the motion the day of the hearing, the State was not able to prepare a written response. The
district court delayed granting the motion until the judge viewed the videotape and the State
filed a response. On September 11, 2003, the district court granted the motion to allow
discovery of the videotape. The order included the restriction that the videotape be viewed
by those only necessary for preparation of said defense. On September 12, 2003, the district
court stayed the proceedings pending the resolution of this writ petition.
DISCUSSION
[Headnotes 1-3]
This court has original jurisdiction over a writ of mandamus.
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.
2
A writ of mandamus shall be issued in all cases where there is not a plain,
speedy and adequate remedy in the ordinary course of law.
3
We have held that we may
exercise . . . discretion where . . . an important issue of law requires clarification.
4
A writ of
prohibition may issue to prevent improper discovery when a district court enters a discovery
order in excess of its jurisdiction.
5

[Headnotes 4, 5]
The State does not have an adequate remedy at law because NRS 200.725 specifically
prohibits reproduction of child pornography and the district court ordered the State to violate
that statute. Additionally, pretrial discovery matters are subject to review by petitions for writ
of mandamus or prohibition to this court. Since there is no available remedy for the State
and this is a pretrial discovery issue, a writ of prohibition is the appropriate remedy.
____________________

1
Nev. Const. art. 6, 4; NRS 34.160.

2
Salaiscooper v. Dist. Ct., 117 Nev. 892, 901, 34 P.3d 509, 515 (2001).

3
NRS 34.170.

4
Smith v. District Court, 113 Nev. 1343, 1345, 950 P.2d 280, 281 (1997).

5
Wardleigh v. District Court, 111 Nev. 345, 351, 891 P.2d 1180, 1183 (1995); see also Clark v. District
Court, 101 Nev. 58, 64, 692 P.2d 512, 516 (1985).
there is no available remedy for the State and this is a pretrial discovery issue, a writ of
prohibition is the appropriate remedy.
Discovery of child pornography
The State argues that making copies of the child pornography tape for defense counsel
would violate Nevada's child pornography statutes, NRS 200.710 to 200.730. The State
acknowledges that there is an exception to the Nevada child pornography statutes for law
enforcement personnel only. NRS 200.735 provides that the provisions of NRS 200.710 to
200.730, inclusive, do not apply to law enforcement personnel during the investigation or
prosecution of a violation of the provisions of NRS 200.710 to 200.730, inclusive. Because
NRS 200.735 does not mention defense attorneys, the State argues that they are private
citizens and have no right to possess child pornography. We disagree.
[Headnote 6]
Although NRS 200.735 does not specifically list defense attorneys, the United States
Constitution and its amendments protect a defendant's ability to adequately prepare for trial.
The Fifth Amendment to the United States Constitution protects a defendant's due process
rights. Due process requires the State to disclose material evidence favorable to the
defense.
6
Evidence is material when there is a reasonable probability that had the evidence
been available to the defense, the result of the proceeding would have been different.
7

[Headnote 7]
In the instant case, the videotape might contain information favorable to the Epperson
defendants. They argue that they have a right to present the videotape in a manner that
supports their theories of defense. The Epperson defendants contend that to present their side
of the case, they need the videotape to enhance certain images to show their absence in the
videotape. They also want to use the videotape to show that E.R. consented to the sexual
activity and that she was physically and mentally capable of resisting the activity.
8
The result
of the trial might be affected if the defense does not have a copy of the videotape. Therefore,
the videotape is material evidence.
____________________

6
Steese v. State, 114 Nev. 479, 492, 960 P.2d 321, 330 (1998).

7
Id.

8
The Epperson defendants argue that the videotape is needed to show consent of the victim; however, a jury
may find a defendant guilty of lewdness regardless of consent. See State v. Koseck, 113 Nev. 477, 479, 936 P.2d
836, 838 (1997).
The Epperson defendants rely on the California case of Westerfield v. Superior Court
in support of their argument.
9
In Westerfield, the police seized thousands of child
pornography images from Westerfield. Westerfield requested copies of the images for his
attorneys and experts to view privately, confidentially, and to discuss. The deputy district
attorney allowed Westerfield's attorney to view the images in the FBI office in the presence of
law enforcement, but refused to provide copies of the images, stating that it would violate the
California child pornography statute.
10
Westerfield argued in a writ petition that his attorney
would ineffectively represent him and he would be unable to adequately prepare his case
without copies of the images.
11
The California court held that nothing in the plain language
of the child pornography statute prohibited defense counsel from obtaining copies for the
purpose of preparing for trial.
12
The California court also stated that
[t]he People's interpretation of the statutethat the deputy district attorney would
violate the law if he copied the images for the defensenot only defeats the purpose of
the law and exalts absurdity over common sense, but it is also logically flawed.
13

The California court determined that preventing Westerfield from having copies of the
images would affect his right to a speedy trial and effective assistance of counsel. The
California court issued the writ and allowed Westerfield's counsel to receive copies of the
child pornography images for trial preparation.
14

The Arizona Court of Appeals also discussed this issue in Cervantes v. Cates.
15
In
Cervantes, the police seized child pornography images and videotapes from Cervantes.
Cervantes requested copies of both the videotapes and photographs to prepare for his defense.
The State declined to provide copies of the material, but allowed Cervantes and his attorney
to view the materials in the prosecutor's office.
16
On a petition to the Arizona Court of
Appeals, the court reasoned that the child pornography laws were not aimed at prohibiting
defense counsel from preparing for trial, but to prohibit the spread of child pornography.
____________________

9
121 Cal. Rptr. 2d 402 (Ct. App. 2002).

10
Id. at 403.

11
Id. at 403-04.

12
Id. at 404.

13
Id.

14
Id. at 405.

15
76 P.3d 449 (Ariz. Ct. App. 2003).

16
Id. at 451.
trial, but to prohibit the spread of child pornography.
17
Following California's guidance, the
Arizona court held that [p]rovided that defense counsel, like the police, prosecutors and
court personnel use the material solely for their investigation, prosecution, defense and
resolution of the case at hand, neither their possession of it nor the State's copying of it solely
for such purposes should expose them to criminal liability.
18
The Arizona court allowed
defense counsel to receive copies of the child pornography to prepare for trial.
19

The State relies on two federal cases, United States v. Horn
20
and United States v.
Kimbrough,
21
in support of its contention that 18 U.S.C. 2252 prohibits giving copies of
the seized videotape to defense counsel. However, contrary to the State's assertions, neither
case stands for this proposition.
In both cases, defendants sought copies of seized child pornography evidence under
Fed. R. Crim. P. 16(a)(1)(C), which requires the government to permit the defendant to
inspect and copy evidence in the possession of the government that is material to the
preparation of the defendant's defense. The federal district courts either denied the discovery
motion
22
or found that the government's refusal to make copies did not warrant a dismissal
of the pending criminal charges.
23
In each case, the government had offered alternative
procedures for the defense to view the evidence and offered to permit access to the videotape
by defense counsel and defense experts.
24
In Kimbrough, the government also offered to
transport the evidence to the expert or defense counsel's office for viewing.
25

On appeal, the United States Courts of Appeals for the Fifth Circuit and the Eighth
Circuit found that Fed. R. Crim. P. 16(a)(1)(C) did apply to contraband. The courts also
concluded that there were situations in which a defendant might need copies of the evidence
to adequately prepare a defense and that failure to grant such access might prejudice a
defendant and amount to a denial of due process. Based upon the facts of those cases, the
circuit courts found that the defendants had not demonstrated prejudice and the decisions of
the federal trial courts to restrict access were affirmed as an appropriate use of
discretion.
____________________

17
Id. at 456.

18
Id. at 457.

19
Id.

20
187 F.3d 781 (8th Cir. 1999).

21
69 F.3d 723 (5th Cir. 1995).

22
Horn, 187 F.3d at 792.

23
Kimbrough, 69 F.3d at 730-31.

24
Horn, 187 F.3d at 792; Kimbrough, 69 F.3d at 731.

25
69 F.3d at 731.
and the decisions of the federal trial courts to restrict access were affirmed as an appropriate
use of discretion.
26

We conclude that California's and Arizona's decisions are analogous to the instant
case. In both Cervantes and the instant case, the police seized child pornography videotapes.
In this case, the State has allowed defense counsel to view the videotape at its office. The
State has refused to produce a copy for defense counsel to review privately and with experts.
The manner in which the Epperson defendants plan to show identity and consent is by
slowing down the videotape and enhancing the video and audio tracks. The district court
viewed the videotape and held that it was discoverable under NRS 174.235. Because nothing
in NRS 174.235 or NRS 200.710 to 200.735 precludes child pornography from being copied
for the purpose of defending criminal charges, we hold that the district court did not abuse its
discretion in ordering the State to provide the Epperson defendants with a copy of the
videotape to adequately prepare their defense.
Additionally, as the California court noted, denying defense counsel copies of the
child pornography hinders the defendant's right to effective assistance of counsel.
27
The
Epperson defendants' constitutional rights trump any prohibition of NRS 200.710 to 200.735.
Therefore, we follow California and Arizona and allow defense counsel to have a copy of the
videotape, with certain specific restrictions.
Restrictions on the videotape
We acknowledge that each factual situation must be addressed by the district court on
a case-by-case basis; however, defense counsel must adhere to these strict limitations
regarding their copy of the videotape:
(1) the defendant cannot possess a copy of the videotape; however, the defendant may
view it with counsel in preparing the defense;
(2) counsel cannot make additional copies of the videotape;
(3) only the attorneys, legal staff, defendants, an audio/video technician, and expert
witnesses may view the videotape;
(4) the attorneys must keep the videotape safe at their place of business;
(5) no one may mail or transport the videotape by any third-party commercial carriers;
____________________

26
Horn, 187 F.3d at 792; Kimbrough, 69 F.3d at 731.

27
Westerfield, 121 Cal. Rptr. 2d at 405.
(6) no one may transport the videotape across state lines without a written court order;
and
(7) (after trial) at the conclusion of the case, defense counsel must promptly return the
copy directly to the prosecutor who will destroy it.
Defense counsel is an officer of the court and is responsible for the videotape and its
safekeeping. The district court may impose greater restrictions based on the circumstances.
The audio/video technician may make enhanced copies of specific portions of the videotape
for trial purposes, but shall not retain a copy for any reason.
CONCLUSION
[Headnote 8]
As discussed in Cervantes, the purpose of child pornography statutes is to prevent the
distribution of child pornography and protect children; it is not to prevent defense counsel
from adequately preparing for trial.
28
The district court's order compelling discovery of the
videotape was not an abuse of discretion.
29
Accordingly, we grant the petition for a writ of
prohibition in part and direct the clerk to issue a writ instructing the district court to grant the
real parties in interest discovery of the videotape subject to the above restrictions on the
videotape.
____________
120 Nev. 263, 263 (2004) Gilman v. State, Bd. of Vet. Med. Exam'rs
BRADLEY GILMAN, DVM, Appellant, v. NEVADA STATE BOARD
OF VETERINARY MEDICAL EXAMINERS, Respondent.
No. 37974
May 19, 2004 89 P.3d 1000
Appeal from an order denying a petition for judicial review of the Nevada State Board
of Veterinary Medical Examiners' disciplinary action against Bradley Gilman, DVM. Eighth
Judicial District Court, Clark County; Mark W. Gibbons, Judge.
The supreme court, Agosti, J., held that: (1) veterinarian could be assessed costs of
proceeding, (2) veterinarian could not be assessed attorney fees, (3) Board could award expert
witness fees above statutory cap applicable to district court actions, (4) Board failed to justify
imposition of costs for investigator, and {5) statutes did not permit employment of
unlicensed veterinary technician.
____________________

28
76 P.3d at 456.

29
We have carefully reviewed the Epperson defendants' additional arguments and determine they are without
merit.
failed to justify imposition of costs for investigator, and (5) statutes did not permit
employment of unlicensed veterinary technician.
Affirmed in part, reversed in part and remanded with instructions.
[Rehearing denied August 26, 2004]
Appellant.
Brian Sandoval, Attorney General, Tina M. Leiss, Senior Deputy Attorney General,
and Frederick R. Olmstead, Deputy Attorney General, Carson City, for Respondent.
1. Administrative Law and Procedure.
On review, neither the supreme court nor the district court may substitute its judgment
or evaluation of the record developed at the agency level for that of the agency; rather,
the court must review the evidence presented to the agency in order to determine
whether the agency's decision was arbitrary or capricious and was thus an abuse of the
agency's discretion.
The decision of the agency will be affirmed if substantial evidence exists to support it;
substantial evidence is that which a reasonable mind might accept as adequate to
support a conclusion.
On review of an agency decision, questions of law are reviewed de novo.
A veterinarian's license to practice is a property interest protected by the Due Process
Clause of the Fourteenth Amendment of the United States Constitution as well as by
the Nevada Constitution. Const. art. 1, 8; U.S. Const. amend. 14.
Under Due Process Clause, test for bias of an agency adjudicator is whether the
adjudicator's situation is one which would offer a possible temptation to the average
man as a judge to forget the burden of proof required to convict the defendant, or which
might lead him not to hold the balance nice, clear and true between the State and the
accused. Const. art. 1, 8; U.S. Const. amend. 14.
6. Administrative Law and Procedure; Constitutional Law.
A presumption of honesty and integrity cloaks those who serve as adjudicators. That
presumption may be overcome, however, and a violation of due process shown, by
showing that the adjudicators have a conflict of interest, such as a financial stake in the
outcome of the case. Const. art. 1, 8; U.S. Const. amend. 14.
7. Constitutional Law; Health.
No bias was shown on part of State Board of Veterinary Medical Examiners in
violation of due process, even though members of Board had some fiscal responsibility
for agency, when Board assessed costs against veterinarian after convicting him in
disciplinary action; costs expended by Board were only approximately five percent of
its reserve fund, and less than four percent of combined annual budget and reserve
fund.
than four percent of combined annual budget and reserve fund. Const. art. 1, 8; U.S.
Const. amend. 14.
Under Due Process Clause, no bias based on a financial stake may be inferred on the
part of an agency adjudicator if the pecuniary interest is too remote to create a possible
temptation to convict. Const. art. 1, 8; U.S. Const. amend. 14.
9. Health.
Board of Veterinary Medical Examiners lacked authority to impose attorney fees on
veterinarian in disciplinary action. NRS 638.147(10) (repealed).
Construction of a statute is a question of law; therefore, supreme court conducts de
novo review.
11. Statutes.
Multiple legislative provisions should be construed as a whole, and where possible, a
statute should be read to give plain meaning to all its parts.
12. Health.
Costs for travel, hotel, and meals for members and employees of Board of Veterinary
Medical Examiners could be assessed against veterinarian in disciplinary proceeding;
however, such costs could not be assessed for persons who were not Board members or
employees, including prosecuting attorney. NRS 281.160, 638.040.
13. Health.
Board of Veterinary Medical Examiners acted within its discretion in disciplinary
proceeding in assessing expert witness fees against veterinarian in excess of statutory
cap applicable to civil practice in district courts; expert testimony constituted most of
the evidence against veterinarian. NRS 18.005(5); NRS 638.147(10) (repealed).
14. Health.
In disciplinary action, Board of Veterinary Medical Examiners could not assess costs
against veterinarian for investigator without any explanation of services provided by
investigator.
Even though a prevailing party submits itemized statements in support of
investigation costs in an administrative hearing, the party must also demonstrate how
such fees were necessary to and incurred in the present action; without such
information, a grant of investigation costs constitutes an abuse of discretion by the
agency.
16. Health.
Expenses necessarily incurred in disciplining a veterinarian must, by their very nature,
be reasonable, and the Board of Veterinary Medical Examiners must show that its costs
were both reasonable and actual.
17. Licenses.
When a higher standard of proof is set forth in a statute involving license revocation
proceedings, that statute supersedes the substantial evidence standard of review that is
generally applicable to administrative proceedings. NRS 233B.135(3)(e).
When the alleged violations must be supported by clear and convincing evidence,
supreme court reviews the agency record and decision with a degree of deference,
seeking only to determine whether the evidence adduced at the hearing was sufficient
to have convinced the deciding body that violations had been shown by clear and
convincing evidence.
duced at the hearing was sufficient to have convinced the deciding body that violations
had been shown by clear and convincing evidence.
19. Health.
Statute setting forth standard for imposition of disciplinary action upon veterinarian
does not apply retroactively. NRS 638.145 (2002).
20. Health.
Statutes in effect at time of veterinarian's alleged violation prohibited employment of
unlicensed veterinary technicians. NRS 638.103, 638.122, 638.123, 638.170(3),
638.1406(2).
21. Constitutional Law; Health.
Veterinarian did not have a due process right to have his counsel make objections or
point to exculpatory evidence in record at proceeding at which Board of Veterinary
Medical Examiners determined that veterinarian had engaged in misconduct; neither
party was allowed to point to evidence in record, and all of the Board members
indicated they had reviewed the evidence. Const. art. 1, 8; U.S. Const. amend. 14.
Before Agosti, Rose and Maupin, JJ.
OPINION
On October 22, 1998, Mr. and Mrs. Slensky took their young beagle, Gardener, to
the Green Valley Animal Hospital for routine vaccinations and for examination because the
dog had experienced loose stools for four days. Appellant Bradley Gilman, DVM, asked Mrs.
Slensky for permission to x-ray Gardener for an intestinal blockage before vaccinating him.
Dr. Gilman did not initially perform a physical examination of the dog because it was
snappish and he hoped it would calm down when separated from its owner. Dr. Gilman
instructed Greg Krasch, an unlicensed veterinary technician, to take x-rays of Gardener.
Krasch attempted to x-ray Gardener, but the dog struggled extensively. At one point,
it hit its head against the table. It also defecated on the table. While Krasch was cleaning up
the mess, he tied Gardener to a cage in the room with a slip leash. Gardener struggled against
the leash for several minutes, then settled down. Because the dog was so intractable, Dr.
Gilman instructed Krasch to wait until he obtained permission from the owners to sedate
Gardener. However, after Gardener settled down, Krasch obtained the x-rays without waiting
for Gardener to be sedated.
At approximately 5:00 p.m., Mrs. Slensky and her daughter arrived to take Gardener
home. When Gardener was brought to them, he took a few steps toward them, then collapsed
at their feet and was nonresponsive. Dr. Gilman checked the dog for symptoms of shock. Dr.
Gilman initially told the Slenskys to take Gardener home and monitor him, but subsequently
told them to take Gardener to the Emergency Animal Center to be monitored by a
veterinarian overnight.
veterinarian overnight. Dr. Gilman was emphatic that they take the dog to the Emergency
Animal Center immediately, but did not provide any information as to why Gardener was in
such a condition. The veterinarian on call at the emergency clinic treated Gardener for shock.
Despite her efforts, Gardener died that evening.
The next day, Gardener's blood results showed he had highly elevated liver enzymes
known as ALT and AST, which could indicate liver disease. However, the Slenskys declined
to have a necropsy done to determine the exact cause of death.
The Slenskys filed a complaint with the Nevada State Board of Veterinary Medical
Examiners (the Board), against Dr. Gilman. After an investigation by Gary Ailes, DVM, the
Board filed an Accusation against Dr. Gilman on August 31, 1999.
On December 13, 1999, the Board held an evidentiary hearing. Both the deputy
attorney general and Dr. Gilman presented testimony from expert witnesses who reached
opposite conclusions regarding the appropriateness of Dr. Gilman's actions. The Board voted
to convict Dr. Gilman of incompetence and gross negligence under NRS 638.140(5), an
ethics violation under NAC 638.046 and incompetence under NRS 638.140(5) for the use of
an unlicensed veterinary technician. Dr. Gilman's license was suspended for sixty days, and
Dr. Gilman was placed on probation for three years. The Board also ordered Dr. Gilman to
pay costs and attorney fees in the amount of $18,093. The costs were based on an affidavit
submitted by the Board's executive director.
Dr. Gilman timely filed a petition for judicial review, which the district court denied.
Dr. Gilman then appealed to this court. We issued an order of limited remand directing the
district court to remand the matter to the Board for a determination of whether Dr. Gilman's
misconduct was shown by clear and convincing evidence. The Board, at a public meeting,
determined that clear and convincing evidence showed that Dr. Gilman had engaged in the
alleged misconduct. The determination was transmitted to this court. Subsequently, Dr.
Gilman moved to supplement the record with the transcript of the proceeding and points and
authorities as to why the proceeding violated his due process rights. The Board opposed the
motion. We granted it and allowed Dr. Gilman to supplement the record.
[Headnotes 1-3]
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 . . . .
1
Rather,
the court must review the evidence presented to the agency in order to determine whether
the agency's decision was arbitrary or capricious and was thus an abuse of the agency's
discretion.
____________________

1
State, Emp. Sec. Dep't v. Harich Tahoe, 108 Nev. 175, 177, 825 P.2d 1234, 1236 (1992).
mine whether the agency's decision was arbitrary or capricious and was thus an abuse of the
agency's discretion.'
2
The decision of the agency will be affirmed if substantial evidence
exists to support it.
3
Substantial evidence is that which a reasonable mind might accept as
adequate to support a conclusion.
4
Questions of law, however, are reviewed de novo.
5

Dr. Gilman argues that the Board members who served as triers of fact in his
disciplinary hearing were also responsible for the Board's finances and, therefore, could not
serve as impartial decision makers because their pecuniary interest created an appearance of
bias and tempted them to decide the case in favor of their interest.
6
Dr. Gilman also contends
that under NRS 638.1473(2)-(3), any fines recovered from licensees must be deposited in the
state general fund to avoid the appearance of bias unless the Board has appointed an
independent hearing officer or panel for a disciplinary matter. Dr. Gilman contends that
because the Board (1) did not appoint an independent hearing officer, (2) imposed $18,093 in
penalties against him to recover its expenses in conducting the hearing, and (3) deposited the
monies in the Board's operating fund rather than the state general fund, there was sufficient
evidence to create the appearance of bias.
____________________

2
Secretary of State v. Tretiak, 117 Nev. 299, 305, 22 P.3d 1134, 1138 (2001) (quoting Clements v. Airport
Authority, 111 Nev. 717, 721, 896 P.2d 458, 460 (1995)); see also NRS 233B.135.

3
Harich Tahoe, 108 Nev. at 177, 825 P.2d at 1236.

4
McClanahan v. Raley's, Inc., 117 Nev. 921, 924, 34 P.3d 573, 576 (2001) (internal quotation marks and
citations omitted).

5
Collett Electric v. Dubovik, 112 Nev. 193, 196, 911 P.2d 1192, 1195 (1996).

6
See Ward v. Village of Monroeville, 409 U.S. 57, 59-62 (1972) (holding that appellant's due process rights
were violated where the mayor who adjudicated his case had executive responsibility for the village finances,
and fines from his court contributed substantially to the village fisc); Dugan v. Ohio, 277 U.S. 61, 65 (1928)
(holding that where the mayor's salary was fixed and he had a remote executive relation as one of five city
commissioners to the fund to which fines in his court contributed, his pecuniary interest in the outcome of cases
before his court was too minute to cause an appearance of bias); Tumey v. Ohio, 273 U.S. 510, 532-33 (1927)
(holding that appellant's due process rights had been violated where the mayor who convicted him received a
portion of the fines imposed and had executive responsibility for the village finances, aided in large part by the
mayor's court); In re Ross, 99 Nev. 1, 8, 12-15, 656 P.2d 832, 836, 839-40 (1983) (holding that petitioners' due
process right to an impartial tribunal had been violated where the disciplinary action was adjudicated by the state
bar board of governors, which had executive responsibility for the bar association's finances, and the costs and
fines assessed against petitioners would entirely defray the state bar's deficit); Burleigh v. State Bar of Nevada,
98 Nev. 140, 144, 643 P.2d 1201, 1203 (1982) (holding that where the panel adjudicating the disciplinary action
against appellant received no compensation for their services and were not responsible for the financial integrity
of the state bar, appellant's due process right to an impartial tribunal was not violated).
[Headnotes 4, 5]
A veterinarian's license to practice is a property interest protected by the Due Process
Clause of the Fourteenth Amendment of the United States Constitution
7
as well as by Article
1, Section 8 of the Nevada Constitution. The United States Supreme Court has set forth
standards for evaluating a tribunal's fairness under the Due Process Clause. [A] fair trial in
a fair tribunal is a basic requirement of due process.' This applies to administrative agencies
which adjudicate as well as to courts.
8
Not only must the tribunal harbor no actual bias
against the person facing a deprivation of his property interests, but justice must satisfy the
appearance of justice.'
9
The test is:
whether the [adjudicator's] situation is one which would offer a possible temptation to
the average man as a judge to forget the burden of proof required to convict the
defendant, or which might lead him not to hold the balance nice, clear and true between
the State and the accused.
10

[Headnotes 6, 7]
A presumption of honesty and integrity cloaks those who serve as adjudicators.
11
That presumption may be overcome, however, by showing that the adjudicators have a
conflict of interest, such as a financial stake in the outcome of the case.
12
Here, the executive
director and the president of the Board had knowledge of the Board's day-to-day finances, and
the other Board members reviewed the quarterly finances, yearly audits and budget requests at
Board meetings. Therefore, they did have some fiscal responsibility for the agency.
[Headnote 8]
However, no bias may be inferred if the pecuniary interest is too remote to create a
possible temptation to convict.
13
The Board had a $350,000 reserve fund, in addition to its
annual budget, which it could access with approval from the Board of Examiners. The costs
expended by the Board in Dr.
____________________

7
U.S. Const. amend. XIV, 1; see also Minton v. Board of Medical Examiners, 110 Nev. 1060, 1082, 881
P.2d 1339, 1354 (1994) (stating that [g]enerally, the right to practice medicine is a property right protected by
the due process clauses of the United States and Nevada Constitutions).

8
Withrow v. Larkin, 421 U.S. 35, 46 (1975) (quoting In re Murchison, 349 U.S. 133, 136 (1955)).

9
Marshall v. Jerrico, Inc., 446 U.S. 238, 243 (1980) (quoting Offutt v. United States, 348 U.S. 11, 14
(1954)).

10
Ward, 409 U.S. at 60 (quoting Tumey, 273 U.S. at 532).

11
Withrow, 421 U.S. at 47.

12
Schweiker v. McClure, 456 U.S. 188, 195 (1982).

13
Marshall, 446 U.S. at 250-52 (holding that sums collected under a reimbursement provision to defray the
agency's enforcement costs presented too remote a potential for a conflict of interest).
expended by the Board in Dr. Gilman's case were only approximately five percent of its
reserve fund, and less than four percent of the combined annual budget and reserve fund.
Dr. Gilman's reliance on a 1983 decision by this court, In re Ross,
14
is misplaced. In
Ross, we held that where dues were paid directly to the State Bar treasury and the Board of
Governors was responsible for the bar association's financial integrity, the board violated the
petitioner's due process rights by sitting as the trier of fact in his hearing because doing so
present[ed] a constitutionally unacceptable potential for bias.
15
Ross differs from Dr.
Gilman's situation in one very important aspect. In Ross, the Board of Governors completely
absolved the attorneys facing disciplinary charges of all allegations against them. However,
the Board found that the attorneys had been untruthful during the investigation. The Board
then recommended discipline and imposed costs on that basis. The imposition of costs in that
case entirely defrayed the State Bar's yearly budget deficit. Given those facts, we could not
say that the Board of Governors was not potentially biased or would not have been tempted to
find that the attorneys had engaged in misconduct in order to recover its investigation costs
and to cover the State Bar's budgetary deficit. Here, in contrast, the Board had a budgetary
surplus of $350,000, in addition to its annual budget. The Board in this case found that all of
the allegations against Dr. Gilman were true. There was ample evidence in the record to
support the Board's factual findings. Furthermore, while the costs of investigating the
allegations against Dr. Gilman were not insignificant, the Board was operating with a
substantial budgetary surplus. Given that the Board had access to $350,000 if necessary, it
does not appear to us that the Board would have been tempted to find that Dr. Gilman had
engaged in misconduct merely to recuperate the costs of investigation and hearing.
Moreover, if we were to forbid the costs of an investigation and hearing simply
because a board has minimal budgetary oversight, the agency would not be able to effectively
function as a self-policing entity. To cover the costs of investigating cases of alleged
professional misconduct, it would either have to increase its membership fees,
16
which could
result in pricing people out of the profession, or it would have to appoint an independent
hearing officer,
17
which would effectively force every agency to implement an intermediate
appeals process. Furthermore, a party upon whom costs are imposed may seek judicial
review to determine whether the costs imposed were excessive.
____________________

14
99 Nev. 1, 656 P.2d 832 (1983).

15
Id. at 13, 656 P.2d at 839.

16
NRS 638.1473(1) mandates that all reasonable expenses incurred by the Board in carrying out its
responsibilities under NRS Chapter 638 be paid from monies received from licensees.

17
NRS 638.1473(3).
costs are imposed may seek judicial review to determine whether the costs imposed were
excessive.
Finally, costs are not fines. The latter must be turned over to the state general
fund in order to avoid the appearance of bias, unless an independent hearing officer is
appointed to determine the case.
18
However, the former are merely a recuperation of the
expenses necessarily incurred in investigating alleged professional misconduct, a function in
which the public has a strong interest, as it is one of the few means by which the public is
protected from incompetence. As stated previously, the Board's ability to effectively perform
its duty as a self-policing agency would be severely hampered if it were not able to recover
the costs of an investigation and hearing.
[Headnotes 9-11]
However, the Board erred by imposing attorney fees on Dr. Gilman. While we will
not disturb an award of attorney fees absent an abuse of discretion, it is an abuse of discretion
to award attorney fees in the absence of a statutory basis to do so.
19
To determine whether
the Board was authorized to assess attorney fees against Dr. Gilman, we must inquire whether
the statute allowing the Board to recover costs also allows for the recovery of attorney fees.
Construction of a statute is a question of law; therefore, this court conducts de novo review.
20

It is a well-recognized tenet of statutory construction that multiple legislative
provisions be construed as a whole, and where possible, a statute should be read to give
plain meaning to all its parts. Other words or phrases used in the statute or separate
subsections of the statute can be reviewed to determine the meaning and purpose of the
statute.
21

NRS 638.147(10) (repealed 2003) does not provide for the recovery of attorney fees in
disciplinary hearings. However, in other parts of NRS Chapter 638, the Legislature has
specifically allowed the Board to recover both attorney fees and costs.
22
The Legislature
clearly differentiated between costs and attorney fees on two other occasions within the same
chapter; the fact that the Legislature failed to include attorney fees in NRS 638.147(10)
(repealed 2003) indicates that the Legislature did not intend for the Board to recover
attorney fees at the administrative level.
____________________

18
NRS 638.1473.

19
Frantz v. Johnson, 116 Nev. 455, 471, 999 P.2d 351, 361 (2000).

20
A.F. Constr. Co. v. Virgin River Casino, 118 Nev. 699, 703, 56 P.3d 887, 890 (2002).

21
Diamond v. Swick, 117 Nev. 671, 676, 28 P.3d 1087, 1090 (2001) (quoting Gaines v. State, 116 Nev. 359,
365, 998 P.2d 166, 169-70 (2000)).

22
See NRS 638.100(6) (repealed 2003); NRS 638.154 (repealed 2003).
Board to recover attorney fees at the administrative level. Consequently, the Board lacked
authority to impose these fees on Dr. Gilman.
[Headnote 12]
Dr. Gilman next asserts that the Board's assessment of Board Costs against him was
an abuse of discretion. The Board charged him $1,737 for travel, hotel and meals for nine
people for two days and per diem and travel expenses for Dr. Bernard Cannon. Additionally,
the Board charged him for meals for nine people, including the prosecuting attorney, when
there were only five Board members. Dr. Gilman argues that the charges were improper
because meals are not an appropriate cost connected to judicial proceedings and because the
Board's meals should have been paid out of its per diem allowance.
The Board members are practicing veterinarians who must leave their normal routines
to conduct the Board's business, which includes holding disciplinary hearings. They are
entitled to a salary and per diem as set forth in NRS 638.040, NRS 281.160 and the
regulations adopted by the State Board of Examiners. NRS 638.040(2) also entitles
employees of the Board to a per diem allowance and travel expenses. The record reflects that
the Board imposed its actual costs, rather than the salary and per diem, for most of its
members and employees. Because these actual costs do not exceed the amount that could
have been assessed for salaries and per diem allowances, the Board did not abuse its
discretion by imposing these costs on Dr. Gilman. However, it was improper for the Board to
assess against Dr. Gilman the costs of feeding the prosecuting attorney, as the prosecuting
attorney, employed by the Attorney General's Office, is neither a Board member nor an
employee. Therefore, the district court's affirmance of Board Costs must be reversed as to
meals for persons who were not Board members or employees.
[Headnote 13]
Dr. Gilman next argues that the award of $7,145 in expert witness fees was improper
under NRS 18.005(5), because it exceeded the limit of $1,500 and was not supported by a
determination that the necessity of the expert's testimony justified the fee. While NRS
638.147(10) (repealed 2003) allows the Board to recover its costs in taking disciplinary action
against a licensee, there are no other statutes that assist in the interpretation of what costs the
Board is authorized to recover. On the other hand, NRS 18.005, which applies to civil
practice in district courts, illustrates several types of costs that a prevailing party may recover
and sets forth limits upon the recovery of those costs. NRS 18.005(5) limits the recovery of
costs for expert witnesses to $1,500 unless the district court determines that the
circumstances warrant a larger fee.
court determines that the circumstances warrant a larger fee. NRS 18.005 provides guidance
for the recovery of costs, regardless of whether the parties are in district court or before an
administrative board. Here, an examination of the hearing transcript shows that the Board's
expert witness's testimony constituted most of the evidence against Dr. Gilman. Thus, the
Board did not abuse its discretion in allowing these expert witness fees in excess of the cap
set forth in NRS 18.005(5).
[Headnotes 14-16]
Dr. Gilman next asserts that the investigation and hearing attendance fees, submitted
by Dr. Mike Chumrau, were improper because Dr. Ailes was the investigator on his case and
because there are no explanations for the services performed by Dr. Chumrau. With regard to
investigation costs at the trial court level, this court has held that, even though a prevailing
party submits itemized statements in support of investigation costs, the party must also
demonstrate how such fees were necessary to and incurred in the present action.
23
Without
such information, a grant of investigation costs constitutes an abuse of discretion by the trial
court.
24
The same standard applies in an administrative hearing. While the Board is not a
prevailing party in the same sense as a prevailing party in a civil suit, the same principle that
caused the Legislature to allow a prevailing party in a civil suit to recover costs applies to the
Board in administrative proceedings. A cost recovery statute allows a prevailing party in a
civil suit to recover expenses necessarily incurred in the assertion or defense of his rights in
court;
25
here, the cost recovery statute operates to reimburse the Board for expenses
necessarily incurred in protecting the public from incompetent, negligent or unprofessional
veterinarians. Expenses necessarily incurred in disciplining a veterinarian must, by their very
nature, be reasonable;
26
and the Board must show that its costs were both reasonable and
actual.
27
Because the reasonableness of the investigative costs incurred could not be
determined without an explanation of how such costs were necessary to the action, the
Board abused its discretion by assessing costs against Dr.
____________________

23
Bobby Berosini, Ltd. v. PETA, 114 Nev. 1348, 1352-53, 971 P.2d 383, 386 (1998).

24
Id. at 1353, 971 P.2d at 386.

25
Reese v. Mandel, 167 A.2d 111, 116 (Md. 1961).

26
While NRS 638.147(10) (repealed 2003) allows for the recovery of all costs incurred by the Board in
taking disciplinary action against a licensee, such costs must be reasonable; otherwise the Board could impose
grossly inflated costs upon a disciplined licensee. See ACLU v. Blaine School Dist. No. 503, 975 P.2d 536, 542
(Wash. Ct. App. 1999) (in interpreting Washington's public records act provision allowing the recovery of all
costs, stating that the plain meaning of the word all' logically leads to the conclusion that the drafters of the
act intended that the prevailing party could recover all of the reasonable expenses it incurred in gaining access to
the requested records).

27
Gibellini v. Klindt, 110 Nev. 1201, 1206, 885 P.2d 540, 543 (1994) (holding that reasonable costs must be
actual costs that are also reasonable,
vestigative costs incurred could not be determined without an explanation of how such costs
were necessary to the action, the Board abused its discretion by assessing costs against Dr.
Gilman based only on billing statements of Dr. Chumrau, without any explanation of the
services provided by him, especially since Dr. Ailes was the investigator on the case.
Therefore, the district court erred by denying judicial review on this basis.
28

Turning from the costs imposed to the standard of review, Dr. Gilman next alleges
that the district court erred by applying the substantial evidence standard under NRS
233B.135 to find Dr. Gilman guilty of the charges based on substantial evidence in the
record. He asserts that NRS 638.145
29
requires a conviction to be based upon satisfactory
proof, and that this court in In re Drakulich
30
defined clear and convincing evidence as
satisfactory proof. Therefore, Dr. Gilman contends that the Board had the burden to show by
clear and convincing evidence that he was guilty of the charges and that the district court
erred by not employing that standard of review. He argues that the Board failed to show by
satisfactory proof that he was grossly negligent or incompetent. We agreed, and issued an
order of limited remand directing the district court to remand the matter to the Board to
determine whether Dr. Gilman's alleged misconduct was proven by clear and convincing
evidence. The Board determined that it was.
[Headnotes 17-19]
When a higher standard of proof is set forth in a statute involving license revocation
proceedings, that statute supersedes the substantial evidence standard of review set forth at
NRS 233B.135(3)(e).
31
And, when the alleged violations must be supported by clear and
convincing evidence, we review the record and decision "with a degree of deference,
seeking only to determine whether the evidence adduced at the hearing was sufficient to
have convinced the deciding body that violations had been shown by clear and convincing
evidence.
____________________
rather than a reasonable estimate or calculation of such costs based upon administrative convenience).

28
We have reviewed the other costs contested by Dr. Gilman and conclude that Dr. Gilman's arguments
regarding the excessiveness of those costs are without merit.

29
NRS 638.145 (2001) (amended 2003) states: The board shall not refuse to issue a license to an applicant
or take any disciplinary action except upon satisfactory proof that the applicant or licensee has engaged in one or
more of the practices prohibited by the provisions of this chapter.

30
111 Nev. 1556, 908 P.2d 709 (1995).

31
NRS 233B.135(3)(e) provides:
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:
. . . .
(e) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record . . . .
ported by clear and convincing evidence, we review the record and decision with a degree of
deference, seeking only to determine whether the evidence adduced at the hearing was
sufficient to have convinced the deciding body that violations had been shown by clear and
convincing evidence.
32
The record reveals that the evidence was sufficient to support the
Board's determination. Therefore, we affirm the district court's order denying the petition for
judicial review in this regard. In so doing, we recognize that the Legislature has since
amended NRS 638.145 so that the new standard for the imposition of disciplinary action is a
preponderance of the evidence. However, we do not apply this amendment retroactively to
Dr. Gilman's case because the Legislature did not clearly show that it intended the statute to
apply retroactively, even though it was aware of Dr. Gilman's situation when it amended the
statute.
33

[Headnote 20]
Dr. Gilman next contends that the Board's determination that he had acted
incompetently by employing unlicensed veterinary technicians violated the prohibition
against ex post facto laws
34
because the statute did not proscribe the use of unlicensed
veterinary technicians at the time of the alleged violation. We disagree.
The accusation filed against Dr. Gilman charged him with violating NRS 638.124(2),
638.140(1) and (5), NAC 638.053(4)(h) and (i) and NAC 638.057(2) (1997) for allowing an
unlicensed veterinary technician to position an animal for x-rays and to operate an x-ray
machine. NAC 638.053(4)(h) and (i) allows a veterinary technician to position animals for
x-rays and to operate an x-ray machine. NRS 638.013 (amended 2003) defined a veterinary
technician as a person who is formally trained for the specific purpose of assisting a
licensed veterinarian in the performance of professional or technical services in the field of
veterinary medicine. The statute did not state that veterinary technicians must be licensed. In
contrast, NRS 638.005, the statute that defines euthanasia technician, specifies that such a
technician is licensed by the Board.
____________________
See also Minton v. Board of Medical Examiners, 110 Nev. 1060, 1078, 881 P.2d 1339, 1352 (1994) (holding
that where a more specific statute sets forth a particular standard of review for assessing factual findings, that
standard supersedes the substantial evidence standard provided in the administrative procedure act, and the
board's factual findings must be supported by the particular standard).

32
Minton, 110 Nev. at 1079, 881 P.2d at 1352.

33
See Castillo v. State, 110 Nev. 535, 540, 874 P.2d 1252, 1256 (1994), disapproved on other grounds by
Wood v. State, 111 Nev. 428, 430, 892 P.2d 944, 946 (1995).

34
U.S. Const. art. I, 9, cl. 3; Nev. Const. art. 1, 15.
the Board. Nonetheless, NRS 638.103, NRS 638.122 and NRS 638.123 delineated the
requirements and procedure for securing a license as a veterinary technician, and NRS
638.170(3) criminalized practicing as a veterinary technician without a license. Therefore, we
conclude that, even though the applicable definition of veterinary technician omitted the
word license, the statutory scheme as a whole clearly contemplated that veterinary
technicians would be licensed.
Furthermore, NRS 638.1406(2) provided: The following acts, among others, are
grounds for disciplinary action: . . . 2. Having professional association with or employing any
person claiming to be a veterinarian or veterinary technician unlawfully. Although the
Board, during closed-session deliberations, admitted that it was common practice to employ
unlicensed veterinary technicians, the Legislature had made it a ground for disciplinary
action. Hence, we conclude that the Board's determination that Dr. Gilman had acted
incompetently by employing unlicensed veterinary technicians did not violate the prohibition
against ex post facto laws and that there was sufficient evidence to support the Board's
determination that clear and convincing evidence showed that Dr. Gilman had violated this
proscription.
[Headnote 21]
Finally, Dr. Gilman contends that, at the proceeding at which the Board determined
that clear and convincing evidence showed he had engaged in misconduct, the Board violated
his due process rights by refusing to allow his counsel to make objections or to point to
exculpatory evidence in the record. We conclude that Dr. Gilman's due process rights were
not violated. Although the meeting was open to the public, it was quasi-judicial in nature and
could have been held outside the presence of Dr. Gilman and his counsel if Dr. Gilman had
been provided with proper notice.
35
Furthermore, neither Dr. Gilman nor the deputy attorney
general were allowed to point to evidence in the record, either inculpatory or exculpatory.
Finally, all of the Board members indicated that they had reviewed the record. Dr. Pennell
merely summarized the record for them. Even if his summary may have been inaccurate in
parts, we conclude that the Board members, who had all read the record, could disregard any
inaccuracies. Dr. Pennell did not impermissibly cross the line into a prosecutorial or
adversarial role.
36

For the foregoing reasons, we affirm the judgment of the district court in part, reverse
in part and remand with instructions to the district court to remand the matter to the Board
of Veterinary Medical Examiners to reassess costs against Dr.
____________________

35
NRS 241.030; NRS 241.034(1)(a).

36
NRS 233B.122(1); see also State, Dep't Mtr. Vehicles v. Thompson, 102 Nev. 176, 178, 717 P.2d 580,
581 (1986).
district court to remand the matter to the Board of Veterinary Medical Examiners to reassess
costs against Dr. Gilman in accordance with this opinion.
37

Rose and Maupin, JJ., concur.
____________
120 Nev. 277, 277 (2004) J.A. Jones Constr. v. Lehrer McGovern Bovis
J.A. JONES CONSTRUCTION COMPANY, Appellant, v. LEHRER McGOVERN BOVIS,
INC.;
and NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, Respondents.
No. 39235
May 19, 2004 89 P.3d 1009
Appeal from a judgment entered pursuant to a jury verdict in an action concerning a
construction contract. Eighth Judicial District Court, Clark County; Gene T. Porter, Judge.
Subcontractor brought claims against contractor for breach of contract and brought
claims in quantum meruit. The district court entered judgment for subcontractor for
$1,152,912. Subcontractor appealed amount of judgment. The supreme court held that: (1)
subcontractor was entitled to an instruction on exceptions to no damages for delay
provision, (2) subcontractor was not required to elect between suing on contract or in
quantum meruit, (3) subcontractor did not present sufficient evidence of fraud in the
inducement, (4) subcontractor presented sufficient evidence of contract abandonment, and (5)
subcontractor presented sufficient evidence of cardinal change.
[Rehearing denied August 26, 2004]
[En banc reconsideration denied November 4, 2004]
Haney, Woloson & Mullins and Wade B. Gochnour and Dennis R. Haney, Las Vegas;
Braude & Margulies, P.C., and Herman M. Braude, Washington, D.C., for Appellant.
Harrison Kemp & Jones, LLP, and Kirk R. Harrison and Richard F. Scotti, Las
Vegas, for Respondents.
Jolley Urga Wirth & Woodbury and L. Christopher Rose and Roger A. Wirth, Las
Vegas; Kegler, Brown, Hill & Ritter and Donald W.
____________________

37
We have reviewed Dr. Gilman's other arguments and conclude they are without merit.
Donald W. Gregory, Columbus, Ohio, for Amicus Curiae American Subcontractors
Association.
1. Trial.
A party has the right to have the jury instructed on all theories of the party's case that
are supported by the evidence if the instructions are correct statements of the law.
Plaintiff preserved for appeal its claim that trial court erred in refusing to give
proposed jury instruction, even though plaintiff did not expressly object to ruling or
state grounds for objection, where plaintiff offered substantial argument in favor of
instruction before trial court's ruling. NRCP 51.
3. Contracts.
No damages for delay provision of construction contract is not enforceable for
delays so unreasonable in length as to amount to project abandonment; for delays
caused by other party's fraud, misrepresentation, concealment, or other bad faith; or for
delays caused by other party's active interference.
4. Contracts.
Stock duty of good faith instruction was not sufficient in construction contract
dispute between contractor and subcontractor, where subcontractor properly requested
specific instruction concerning enforceability of a no damages for delay clause in a
construction contract.
5. Contracts.
No damages for delay provision of construction contract is enforceable
notwithstanding delays not contemplated by the parties at the time they entered into the
contract.
6. Election of Remedies.
Subcontractor was not required to elect between suing contractor on contract or in
quantum meruit before obtaining jury verdict; however, after trial, court could
determine if duplicate recovery had been obtained on the two theories.
A party may not assert contradictory theories of recovery such that the assertion of one
theory will necessarily repudiate the other.
The doctrine of election of remedies applies only to inconsistent remedies.
9. Trial.
In ruling on a motion to dismiss claim at close of plaintiff's case on ground that
plaintiff has failed to prove sufficient case for court or jury, court must accept the
plaintiff's evidence as true, draw all permissible inferences in the plaintiff's favor, and
not assess the credibility of the witnesses or the weight of the evidence. NRCP 41(b).
10. Trial.
A claim should not be dismissed at close of plaintiff's case on ground that plaintiff has
failed to prove a sufficient case unless it appears to a certainty that the plaintiff is not
entitled to relief under any set of facts which could be proved in support of the claim.
NRCP 41(b).
11. Fraud.
Subcontractor, which had to perform extra work to complete its work on project,
failed to produce sufficient evidence in its case in chief to submit
fraudulent-inducement claim to jury; no evidence introduced at trial clearly and
convincingly demonstrated that contractor intended to deceive subcontractor into
signing contract based on information contractor knew at the time was either false
or lacked a sufficient basis as related to subcontractor's specific work plans.
clearly and convincingly demonstrated that contractor intended to deceive subcontractor
into signing contract based on information contractor knew at the time was either false
or lacked a sufficient basis as related to subcontractor's specific work plans.
12. Fraud.
To establish fraud in the inducement, plaintiff must prove by clear and convincing
evidence each of the following elements: (1) a false representation made by defendant,
(2) defendant's knowledge or belief that the representation was false (or knowledge that
it had an insufficient basis for making the representation), (3) defendant's intention to
therewith induce plaintiff to consent to the contract's formation, (4) plaintiff's justifiable
reliance upon the misrepresentation, and (5) damage to plaintiff resulting from such
reliance.
13. Contracts.
Generally, contract abandonment occurs when both parties depart from the terms of
the contract by mutual consent. This consent may be express, or it may be implied by
the parties' actions, such as when the acts of one party inconsistent with the contract's
existence are acquiesced in by the other.
14. Contracts.
The issue of whether contract abandonment has occurred generally presents a question
of fact.
15. Contracts.
There was sufficient evidence to present to jury subcontractor's claim that there had
been effective abandonment of construction contract. There was evidence that would
allow jury to conclude that by directing subcontractor to perform its work at an
inadequately prepared and maintained site, contractor in effect directed subcontractor to
perform work inconsistent with provisions in contract that specifically described
efficient manner and time frame in which subcontractor was to perform its work.
16. Contracts.
The cardinal-change doctrine serves to provide a breach remedy for contractors who
are directed to perform work which is not within the general scope of the contract, and
which is therefore not redressable under the contract.
17. Contracts.
A cardinal change occurs, thus giving rise to a remedy for breach of contract, when
the work is so drastically altered that the contractor effectively performs duties that are
materially different from those for which the contractor originally bargained.
18. Contracts.
To prevail under cardinal-change doctrine, contractor must prove facts with specificity
that support its allegations that a cardinal change occurred.
19. Contracts.
Cardinal-change doctrine, which provides breach remedy for contractors who are
directed to perform work that is not within general scope of contract, applies to private
contracts that include changes clauses.
20. Contracts.
For purposes of cardinal-change doctrine, a cardinal change can occur even when
there is no change in the final product, because it is the entire undertaking of the
contractor, rather than the product, to which court looks.
21. Contracts.
There was sufficient evidence of a cardinal change in terms of construction contract to
submit subcontractor's claim under cardinal-change doctrine to jury; subcontractor
presented testimony demonstrating material impacts on its contractual scope of work,
subcontractor had anticipated $5.5 million in costs but incurred actual costs of $8.8
million, and expert testified that about 62 percent of the work value was incurred
because of changes.
22. Implied and Constructive Contracts.
Recovery of a party's total costs of performance in quantum meruit may not be an
appropriate measure of recovery where a cardinal change has been found.
OPINION
Per Curiam:
This appeal concerns a dispute over a contract for structural concrete work at the
Sands Exposition Center. Although subcontractor J.A. Jones Construction Company obtained
a judgment for $1,152,912 against the construction management contractor, Lehrer
McGovern Bovis, Inc. (LMB), Jones asserts that various district court errors resulted in an
inadequate judgment.
We conclude that the district court erred in refusing to instruct the jury on exceptions
to enforcement of no damages for delay clauses in construction contracts, and in dismissing
Jones's claim of cardinal change/abandonment/quantum meruit. Additionally, although Jones
was improperly required to prematurely elect between suing either on the contract or in
quantum meruit, Jones's fraud-in-the-inducement claim was properly dismissed. We therefore
affirm in part, reverse in part, and remand for a new trial.
FACTS
Las Vegas Sands, Inc., awarded LMB a construction management contract for the
Sands Exposition Center expansion. After substantial negotiations, LMB awarded the
project's structural concrete portion to Jones. Jones's original bid for the concrete work was
approximately $8.4 million. In order to reduce the bid amount, LMB agreed to perform
various site preparation tasks and to streamline other tasks to shorten, by about half, the time
needed for Jones to complete its concrete construction, thus reducing Jones's labor, materials,
equipment and overhead costs. Both parties made concessions and ultimately agreed that
Jones would perform the structural concrete work for $7.4 million.
The parties' contract provides that the first phase of Jones's work (Phase I) would
begin on July 1, 1997, and had to be completed by October 7, 1997. This fourteen-weeks-long
phase included the construction of three levels of reinforced concrete slabs, along with
slab-supporting concrete footings, reinforced concrete columns, and some walls and stairs.
According to Jones, it was able to significantly reduce its bid and to agree to specific,
expedited milestone dates in large part because LMB promised to prepare and maintain the
site in a manner that would allow Jones to efficiently perform its work in a continuous
sequence. For instance, Jones was to pour the concrete footings directly against bearable
caliche (subsurface rock) neat cut by LMB's excavator, work on a relatively level subgrade
provided by LMB's excavator, use a rolling formwork system for many of the concrete pours,
and be able to sequence work around the various emergency egresses that would necessarily
run through parts of the construction site so that the adjoining exposition center could remain
open for business throughout the project's duration. Due to various complications, some of
which are discussed below, Jones did not complete Phase I until June 1998, eight months
after the original completion date.
Pursuant to various requests for change orders, LMB paid Jones an additional
$1,078,303 for some of the changed-work expenses incurred during those eight months;
however, outstanding requests remained. After negotiations proved unsuccessful, Jones
ultimately filed a complaint against LMB and National Fire Insurance Company of Hartford,
holder of a surety bond related to the project. In its amended complaint, Jones alleged claims
for breach of contract, fraud in the inducement, cardinal change/abandonment/quantum
meruit, and for enforcement of a mechanic's lien bond. On each of its first three claims, Jones
sought more than $5 million in damages.
At trial, Jones introduced evidence that some of its Phase I work was changed or
modified as a result of several instructions from LMB. Its major complaint, however, stems
from the obstructions, hindrances, and inefficiencies that rendered its work more difficult and
costly as a result of these changes and other major problems, as well as more minor
inconveniences. According to Jones, significant obstacles were encountered from the very
start; various witnesses testified about the following major occurrences.
When Jones arrived on site on July 1, 1997, none of the preliminary groundwork,
including caliche and footing excavations, had been completed. Because the excavation work
was still in progress, Jones's crews were unable to do much work during the first two weeks
of their contract. On July 3, Jones was told for the first time that major underground utilities
were being planned throughout the Phase I area, including a wide chiller line, and that a
vertical permit had not yet been obtained.
that major underground utilities were being planned throughout the Phase I area, including a
wide chiller line, and that a vertical permit had not yet been obtained. At about the same time,
Jones also learned of a change to the emergency egress plans. The new egress plans rendered
at least a portion of the unexcavated area in Phase I inaccessible to any work by Jones or the
excavator for a period of time.
Eventually, the excavator mass-excavated a portion of the area, dug about seventeen
footings, and then left the site without doing any further work in this area or another
important area. But, in digging the chiller line trench, the excavator had blasted the caliche,
which then required Jones to form the footings, rather than pouring the concrete directly
against the caliche as intended. Additionally, after the footings were formed in the excavated
area, Jones had to wait to pour the corresponding columns because LMB had not obtained a
vertical permit. Jones then worked overtime to timely pour all of those columns on the same
day that the permit was obtained. Nevertheless, because Jones had access only to the small
excavated area in Phase I, it had to lay off crews and allow equipment to become idle during
July and August. And, although the chiller line trench was covered up within a week or so,
and for the most part did not itself interfere with Jones pouring the columns and elevated
slabs, the pipes and electrical conduit sticking up from it did get in Jones's way. Further, once
the elevated slabs in this area were finished, the chiller line trench was reopened, interfering
with the removal and storing of the formwork from that area.
The excavator then excavated another Phase I area, also by blasting the caliche and
again destroying its bearing capacity where the footings were to be cut. As a result, the
footings in this area had to be redesigned to nearly twice their planned size. Because of the
footings' increased size, Jones could not maneuver trucks in this area. Consequently, instead
of pouring the concrete directly from the concrete trucks, Jones was forced to more
expensively pump in the increased amount of concrete.
After the footings were in, the excavator left piles of dirt spoils from the excavation of
the footings and some mechanical pad work lying around for various lengths of time, which
interfered with Jones's movements. Furthermore, some of the footings were not topped-off,
which left gaps in the surface eight inches to a foot below the existing ground level. At the
end of September, a water main break flooded the entire site. Nevertheless, Jones continued
to work at an accelerated pace throughout much of September and October to complete work
on this second Phase I area, which was not finished by the milestone date.
Jones's work in attempting to meet other milestone dates was complicated by similar
events. Underground sewer lines, in addition to the chiller line trench, obstructed Jones's
movement of materials and equipment and prevented the placement of the slab on grade
before the elevated slabs were built. Additional dirt piles left by the excavator in various
places further obstructed Jones's work and movement. Having to work around these rough
ground conditions rendered Jones's work more difficult than anticipated.
Because of the difficulties outlined above, Jones was unable to use the efficient
rolling formwork system as it had planned. Nor was it able to keep together and move units of
formwork using a forklift or crane because of the general ground conditions, including the
still rough grade, the utility trenches, and the dirt piles. Further, Jones claimed that in light of
the piecemeal manner in which the site was provided, and because the revised egress areas
had to be kept open, it had nowhere to move or store units of form-work, and no opportunity
to use it in a continuous manner as planned.
As a result, for each of the project's pours, Jones had to handset, move, and store the
formwork piece by piece, which was inefficient and caused much damage to the plywood and
lumber. In light of variations in elevation, the height of the formwork structure could not be
preset, but rather Jones had to make time-consuming major adjustments to the thousands of
shoring posts. But it was not only the ground conditions that prevented Jones from using a
more efficient formwork method; many times Jones had to tear down shoring just to be able
to store it.
The contract between Jones and LMB contains, among other items, provisions
relating to the use of a rolling framework system, changes ordered, scheduling, coordination,
and the importance of timelines. It also contains a no damages for delay clause, which
provides, with emphasis added, as follows:
Should Contractor [Jones] be obstructed or delayed in the commencement,
prosecution or completion of the Work, without fault on its part, by reason of: failure to
act, direction, order, neglect, delay or default of the Owner, the Architect/Engineer,
Construction Manager, or any Other Contractor employed upon the Project; by changes
in the Work; fire, lightning, earthquake, enemy action, act of God or similar
catastrophe; by Government restrictions in respect to materials or labor; or by an
industry-wide strike beyond Contractor's reasonable control, then Contractor shall be
entitled to an extension of time to perform the Work which shall be equal to the time
lost by reason of any or all of the causes aforesaid . . . . Contractor expressly agrees not
to make, and hereby waives, any claim for damages, including those resulting from
increased labor or material costs, on account of any delay, obstruction or hindrance
for any cause whatsoever, whether or not foreseeable and whether or not
anticipated including but not limited to the aforedescribed causes, and agrees that
the sole right and remedy therefor shall be an extension of time, provided the
requisite condition as to written claim has been met.
and hereby waives, any claim for damages, including those resulting from increased
labor or material costs, on account of any delay, obstruction or hindrance for any cause
whatsoever, whether or not foreseeable and whether or not anticipated including but not
limited to the aforedescribed causes, and agrees that the sole right and remedy therefor
shall be an extension of time, provided the requisite condition as to written claim has
been met.
Before trial, Jones proposed the following jury instruction:
Exceptions to No Damage For Delay Provisions
[LMB] has raised the defense of so-called no damage for delay provisions in the
subcontract. Such clauses are not enforceable if any one of several legal exceptions
applies. You are to disregard this defense if you find that any one of the following legal
exceptions have [sic] been proven by Jones:
1. willful concealment of foreseeable circumstances which impact timely
performance[;]
2. delays not contemplated by the parties at the time they entered into the contract;
3. delays so unreasonable in length as to amount to an abandonment of the project;
4. delays caused by bad faith or fraud of the other party; and
5. delays caused by active interference on the part of the other party.
The district court, noting that Nevada has not adopted these exceptions, declined to give the
proposed jury instruction. Additionally, during trial, the district court ordered Jones to elect
between its contract-based and quantum meruit remedies and ultimately dismissed Jones's
fraud-in-the-inducement claim. The district court also dismissed Jones's
cardinal-change/abandonment/quantum meruit claim during trial.
At the trial's conclusion, the jury awarded Jones $1,152,912, using a general verdict
form. As Jones points out, this amount appears related to its additional work and unpaid
contract balance claims and appears not to include hindrance or inefficiency damages.
DISCUSSION
Instruction on exceptions to no-damages-for-delay provision
[Headnote 1]
A party has the right to have the jury instructed on all theories of the party's case that
are supported by the evidence if the instructtions are correct statements of the law.
tions are correct statements of the law.
1
But under NRCP 61, [n]o error . . . is ground for
granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise
disturbing a judgment or order, unless refusal to take such action appears to the court
inconsistent with substantial justice.
[Headnote 2]
As an initial matter, LMB argues that Jones failed to properly preserve this issue for
appeal because Jones did not explicitly object when the district court refused the instruction.
NRCP 51 provides, No party may assign as error the giving or the failure to give an
instruction unless he objects thereto before the jury retires to consider its verdict, stating
distinctly the matter to which he objects and the grounds of his objection. Here, Jones
offered the instruction, and the district court refused to give it, but Jones did not expressly
object to the ruling or state the grounds for an objection. A formal objection, however, is not
always necessary to preserve a jury instruction issue for appeal.
2
In this instance, the district
court was on notice that Jones disagreed with its refusal to give the instruction. Jones offered
substantial argument in favor of the instruction before the district court's ruling. Accordingly,
Jones adequately preserved the issue for appeal despite its noncompliance with a strict
interpretation of NRCP 51. We now turn to the merits of Jones's argument.
[Headnote 3]
Preliminarily, we note that the contract's no damages for delay provision is valid
and enforceable.
3
Nevertheless, we agree with Jones that the district court should have given
an instruction regarding the exceptions to this provision, with certain modifications discussed
below.
____________________

1
Johnson v. Egtedar, 112 Nev. 428, 432, 915 P.2d 271, 273 (1996); see Beattie v. Thomas, 99 Nev. 579,
583, 668 P.2d 268, 271 (1983).

2
E.g., Duran v. Mueller, 79 Nev. 453, 458, 386 P.2d 733, 736 (1963) ([I]t is preferable that each
instruction be discussed separately and counsel's position made clear.); Otterbeck v. Lamb, 85 Nev. 456, 460,
456 P.2d 855, 858 (1969); Tidwell v. Clarke, 84 Nev. 655, 661, 447 P.2d 493, 496 (1968) (Where counsel
clearly, fairly and timely calls to the attention of the trial court the issue of law involved, any slight omission in
compliance with our interpretation of Rule 51 will not preclude him from raising the issue on appeal. (citing
Green v. Reading Co., 183 F.2d 716, 719 (3d Cir. 1950); Williams v. Powers, 135 F.2d 153, 156 (6th Cir.
1943); Pierro v. Carnegie-Illinois Steel Corp., 186 F.2d 75, 78 (3d Cir. 1950))); see also Johnson v. Egtedar,
112 Nev. 428, 915 P.2d 271 (1996).

3
See generally Maurice T. Brunner, Annotation, Validity and Construction of No Damage Clause with
Respect to Delay in Building or Construction Contract, 74 A.L.R.3d 187, 2[a] (1976).
First, most of the exceptions in Jones's proposed instruction will aid in enforcing the
implied covenant of good faith and fair dealing [that] exists in every Nevada contract and
essentially forbids arbitrary, unfair acts by one party that disadvantage the other.
4
Four of
the five proposed exceptions relate directly to and are logical extensions of the implied
covenant of good faith and fair dealing: (1) willful concealment of foreseeable circumstances
that impact timely performance, (2) delays so unreasonable in length as to amount to project
abandonment, (3) delays caused by the other party's bad faith or fraud, and (4) delays caused
by the other party's active interference. As the South Carolina Supreme Court recognized in
United States v. Metric Constructors, Inc.,
5
these exceptions give rise to a violation of the
duty of good faith and fair dealing and are therefore a logical extension of existing law.
Additionally, they have been adopted by a majority of jurisdictions.
6
We therefore conclude
that an instruction including these four exceptions should have been given, with one
modification. The exception for willful concealment of foreseeable circumstances that
impact timely performance, which apparently was included to encompass Jones's specific
factual allegation in the instant case, should be blended with the exception for delays caused
by the other party's bad faith or fraud to create a more general exception: delays caused by
fraud, misrepresentation, concealment or other bad faith.
LMB argues that the proposed instruction would have been cumulative, since the
parties agreed to the following instruction on the implied duty of good faith and fair dealing:
Every contract imposes upon each party an implied duty of good faith and fair dealing
in its performance and its enforcement. However, this implied duty of good faith and
fair dealing, standing alone, cannot overrule or modify the express terms of a contract.
Although the parties agreed to this instruction, it was facially defective and therefore
constitutes plain error.
7
The instruction stated that the implied covenant of good faith and
fair dealing cannot modify a contract's express terms, but we have held that when the terms
of a contract are literally complied with but one party to the contract deliberately
countervenes the intention and spirit of the contract, that party can incur liability for breach
of the implied covenant of good faith and fair dealing.
____________________

4
Frantz v. Johnson, 116 Nev. 455, 465 n.4, 999 P.2d 351, 358 n.4 (2000).

5
480 S.E.2d 447 (S.C. 1997).

6
See generally Brunner, supra note 3, 2[a].

7
See Bradley v. Romeo, 102 Nev. 103, 105, 716 P.2d 227, 228 (1986) (noting that this court can consider
relevant issues sua sponte to prevent plain error).
the contract, that party can incur liability for breach of the implied covenant of good faith and
fair dealing.
8

[Headnote 4]
And, even if the instruction had been accurate, we concluded in American Casualty
Co. v. Propane Sales & Service,
9
that general, abstract (stock') statements of the law are
not sufficient if [a] proper request for a specific instruction on some important point has been
duly proffered to the court. Here, Jones properly requested a specific instruction concerning
the enforceability of a no damages for delay clause in a construction contract.
Consequently, a stock duty of good faith instruction was not sufficient.
[Headnote 5]
Jones's final proposed exception, for delays not contemplated by the parties at the
time they entered into the contract, has been adopted by some courts and soundly rejected by
others. In Corinno Civetta Construction v. City of New York,
10
the court adopted this
exception on the basis that [i]t can hardly be presumed . . . that the contractor bargained
away his right to bring a claim for damages resulting from delays which the parties did not
contemplate at the time. Courts that have rejected this exception point out that some delays
cannot be contemplated and that the provision is meant to encompass these unforeseen
delays. In Gregory & Son, Inc. v. Guenther & Sons,
11
the Wisconsin Supreme Court aptly
noted these concerns:
Indeed, the adoption of a no damage for delay clause shows that the parties realize
that some delays cannot be contemplated at the time of the drafting of the contract. . . .
The parties can deal with delays they contemplate by adjusting the start and completion
dates or by including particular provisions in the contract. [I]t is the unforeseen events
which occasion the broad language of the clause since foreseeable ones could be
readily provided for by specific language.
____________________

8
Hilton Hotels v. Butch Lewis Productions, 107 Nev. 226, 232, 808 P.2d 919, 922-23 (1991).

9
89 Nev. 398, 400, 513 P.2d 1226, 1227 (1973); cf. Village Development Co. v. Filice, 90 Nev. 305, 314,
526 P.2d 83, 88 (1974) (noting that [i]f one instruction adequately covers a given theory of liability or
defense, it is preferable that the court refuse additional instructions relating to the same theory, though couched
in different language' (quoting Duran v. Mueller, 79 Nev. 453, 460, 386 P.2d 733, 373 (1963))).

10
493 N.E.2d 905, 910 (N.Y. 1986).

11
432 N.W.2d 584, 587 (Wis. 1988) (quoting City of Houston v. R. F. Ball Const. Co., 570 S.W.2d 75, 78
(Tex. Civ. App. 1978)); accord U.S. v. Metric Constructors, Inc., 480 S.E.2d 447, 450 (S.C. 1997); State
Highway Admin. v. Greiner, 577 A.2d 363, 372 (Md. Ct. Spec. App. 1990).
occasion the broad language of the clause since foreseeable ones could be readily
provided for by specific language.
We are persuaded that rejecting this exception is the better reasoned approach. As recognized
in Gregory, [k]nowing that unforeseen delays . . . can occur, parties can bargain accordingly.
A subcontractor can protect itself from the risk of unforeseen delay simply by adjusting its
bid price in recognition of the potential additional costs or by refusing to accept such a
provision in the contract.
12

In sum, the district court's instruction should have included the following three
exceptions:
(1) delays so unreasonable in length as to amount to project abandonment;
(2) delays cased by the other party's fraud, misrepresentation, concealment or other bad
faith; and
(3) delays caused by the other party's active interference.
Election of claims/remedies
[Headnote 6]
On the seventh day of the trial, the district court directed Jones to choose between
suing on the contract and in quantum meruit. So required, Jones elected to sue on the
contract. Despite having requested quantum meruit relief in its fraud-in-the-inducement and
cardinal-change/contract-abandonment causes of action, however, Jones maintained that the
elements of those theories were also relevant to its breach-of-contract claim. The district court
did not expressly dismiss either the fraud claim or the cardinal-change/abandonment claim at
this point, but rather reconsidered the issues later in the trial.
[Headnotes 7, 8]
Nonetheless, Jones should not have been forced to choose between the two types of
claims. Although a party may not assert contradictory theories of recovery such that the
assertion of one theory will necessarily repudiate the other, the doctrine of election of
remedies applies only to inconsistent remedies.'
13
Such contradiction or inconsistency is
not found here.
As the Ninth Circuit Court of Appeals has recognized, causes of action for fraud in
the inducement and breach of contract may be pursued as distinct claims with separate and
consistent remedies:
____________________

12
432 N.W.2d at 587.

13
Barringer v. Ray, 72 Nev. 172, 178, 298 P.2d 933, 936 (1956) (quoting Sackett v. Farmers' State Bank,
228 N.W. 51, 52 (Iowa 1929)).
It is the law that one who has been fraudulently induced into a contract may elect to
stand by that contract and sue for damages for the fraud. When this happens and the
defrauding party also refuses to perform the contract as it stands, he commits a second
wrong, and a separate and distinct cause of action arises for the breach of contract. . . .
The courts of many states have recognized the rule that a suit on a contract and a suit
for fraud in inducing the contract are two different causes of action with separate and
consistent remedies.
14

Likewise, in Paterson v. Condos,
15
we specifically concluded that an action may be based
upon quantum meruit even though an express contract exists: The contractor may . . . base
his action upon both the contract and upon a quantum meruit by setting up the former in one
count, and the latter in another in his complaint. That a contract may have been changed or
abandoned does not negate the assertion that at some point there existed a breachable
contract. Therefore, Jones is not required to elect between suing on the contract or in quantum
meruit before obtaining a jury verdict.
16
As we noted in Topaz Mutual Co. v. Marsh,
17
however, the district court can determine, after trial, if a duplicate recovery has been obtained
on the two theories of recovery:
A plaintiff may assert several 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. The measure of damages on claims of fraud and contract are often the
same. However, [a plaintiff] is not permitted to recover more than her total loss plus
any punitive damages assessed.
It appears that some confusion existed as to whether Jones's election to sue on the
contract necessarily abrogated its fraud-in-the-inducement and
cardinal-change/contract-abandonment claims at that time.
____________________

14
Bankers Trust Co. v. Pacific Employers Insurance Co., 282 F.2d 106, 110 (9th Cir. 1960) (citing as
examples: Bohn v. Watson, 278 P.2d 454, 461 (Cal. Ct. App. 1954); Union Cent. Life Ins. Co. v. Scheidler, 29
N.E. 1071, 1072 (Ind. 1892)).

15
55 Nev. 134, 142, 28 P.2d 499, 500 (1934).

16
See also May v. Watt, 822 F.2d 896 (9th Cir. 1987) (determining that a party is not required to make an
election between breach of contract remedies and rescission prior to a jury verdict); North American Graphite
Corp. v. Allan, 184 F.2d 387 (D.C. Cir. 1950) (concluding that no election between theories of recovery based
on breach of contract and quantum meruit is required prior to a jury verdict).

17
108 Nev. 845, 851-52, 839 P.2d 606, 610 (1992) (citation omitted).
at that time. Jones, however, has not demonstrated that its premature election resulted in its
being prejudiced before the claims were formally dismissed. Indeed, Jones argues that it
submitted sufficient evidence of each claim at trial. Consequently, we will now consider the
district court's formal dismissal of these claims.
18

Fraud in the inducement
[Headnotes 9, 10]
Jones's claim for fraud in the inducement was formally dismissed on the thirteenth day
of trial when the district court granted LMB's NRCP 41(b) motion. NRCP 41(b) provides for
the involuntary dismissal of a claim after the close of the plaintiff's case on the ground that
upon the facts and the law the plaintiff has failed to prove a sufficient case for the court or
jury. The district court, in ruling on a 41(b) motion, must accept the plaintiff's evidence as
true, draw all permissible inferences in the plaintiff's favor, and not assess the credibility of
the witnesses or the weight of the evidence.
19
When reviewing dismissals with prejudice
under NRCP 41(b), we apply a heightened standard of review: [a] claim should not be
dismissed . . . unless it appears to a certainty that the plaintiff is not entitled to relief under
any set of facts which could be proved in support of the claim.'
20

[Headnote 11]
The district court found that Jones did not introduce evidence rising to the standard
required to prove that LMB acted fraudulently in this case. We agree.
[Headnote 12]
To establish fraud in the inducement, Jones must prove by clear and convincing
evidence each of the following elements: (1) a false representation made by LMB, (2) LMB's
knowledge or belief that the representation was false (or knowledge that it had an insufficient
basis for making the representation), (3) LMB's intention to therewith induce Jones to consent
to the contract's formation,
21
(4) Jones's justifiable reliance upon the misrepresentation, and
(5) damage to Jones resulting from such reliance.
22
We have recognized that "[f]raud is
never presumed; it must be clearly and satisfactorily proved.
____________________

18
See NRCP 61; El Cortez Hotel, Inc. v. Coburn, 87 Nev. 209, 484 P.2d 1089 (1971).

19
Chowdhry v. NLVH, Inc., 109 Nev. 478, 482, 851 P.2d 459, 461 (1993).

20
Pierce Lathing Co. v. ISEC, Inc., 114 Nev. 291, 297, 956 P.2d 93, 96 (1998) (quoting Pemberton v.
Farmers Ins. Exchange, 109 Nev. 789, 792, 858 P.2d 380, 381 (1993)).

21
See Rosenthal v. Great Western Financial Sec., 926 P.2d 1061, 1073 (Cal. 1996) (differentiating fraud in
the inducement from other types of fraud).

22
Wohlers v. Bartgis, 114 Nev. 1249, 1260-61, 969 P.2d 949, 958 (1998).
nized that [f]raud is never presumed; it must be clearly and satisfactorily proved.
23

Jones primarily bases its fraud-in-the-inducement claim on the following: (1)
preparation for underground utilities began shortly after the contract was signed, despite
LMB's assurances that no underground utilities would be installed; (2) LMB knew that some
areas of caliche had required blasting, but nevertheless promised Jones that its footings could
be poured directly against bearable caliche; and (3) LMB knew that some kind of revision to
an egress would be necessary. According to Jones, these facts show that LMB's
representations at the time of contract negotiations and signing must have been false and that
LMB intended to deceitfully induce Jones into signing a contract that LMB knew could not
have been carried out as planned. No evidence introduced at trial, however, clearly and
convincingly demonstrates that LMB intended to deceive Jones into signing the contract
based on information it knew at the time was either false or lacked a sufficient basis as related
to Jones's specific work plans in the Phase I area. Accordingly, we conclude that Jones
presented insufficient evidence to present this cause of action to the jury, and we affirm the
district court's dismissal of Jones's fraud-in-the-inducement claim.
Cardinal change/abandonment/quantum meruit
Jones asserts that the district court erred by dismissing its cardinal
change/abandonment/quantum meruit claim on day twelve of the trial. In dismissing the
claim for quantum meruit, the district court recognized that Jones had relinquished this claim,
and apparently the corresponding contract-abandonment cause of action, when it elected to
sue on the contract. As explained above, the district court erred when it forced Jones to
choose to either sue on the contract or for quantum meruit.
24

The district court further declined to adopt the cardinal-change doctrine for Nevada
courts, and determined that even if the doctrine were available, it would not apply. Jones
presented its cardinal-change and abandonment theories as one claim, arguing that contract
abandonment and cardinal change were essentially the same and could lead to recovery in
quantum meruit. As discussed below, we conclude that Jones has introduced evidence
sufficient to submit both theories to the jury.
25

____________________

23
Havas v. Alger, 85 Nev. 627, 631, 461 P.2d 857, 860 (1969).

24
See Paterson, 55 Nev. at 142, 28 P.2d at 500.

25
Additionally, although Jones has not asserted on appeal that a separate claim for quantum meruit would be
appropriate, we note that both the contract-abandonment and cardinal-change theories may result in a damages
award based on quantum meruit.
Contract abandonment
Different theories exist by which contractors have recovered the reasonable value of
performed work not contemplated by the terms of a contract. The contract-abandonment
theory has been used in some cases to permit recovery outside the contract when the work
contracted for is altered beyond the contract's scope.
26
In fact, in the 1930s, we recognized a
claim for quantum meruit based upon the abandonment of a contract:
It is the common experience of men that changes and alterations in the original plans
and specifications of buildings are the rule, and not the exception, and the legal rule
seems to be well established, as stated by counsel for plaintiff in error, that where
additions are ordered to be made, and are made, to a building which a workman has
contracted to furnish for a certain sum, the original contract is held to exist as far as it
can be traced to have been followed, and the excess must be paid for according to its
reasonable value;' and it is only where the alterations and changes are so great that it is
impossible to follow the original contract that it will be deemed to have been wholly
abandoned, so that the contractor can recover upon a quantum meruit.
27

[Headnotes 13, 14]
Generally, contract abandonment occurs when both parties depart from the terms of
the contract by mutual consent. This consent may be express, or it may be implied by the
parties' actions, such as when the acts of one party inconsistent with [the contract's]
existence are acquiesced in by the other.'
28
Contract abandonment has been recognized
where there have been so many substantial changes to the special contract that it can no
longer be used to determine the value of the work done.
29
The issue of whether contract
abandonment has occurred generally presents a question of fact.
30

____________________

26
See, e.g., C. Norman Peterson Co. v. Container Corp., 218 Cal. Rptr. 592, 598 (Ct. App. 1985).

27
Paterson, 55 Nev. at 141, 28 P.2d at 500 (quoting Hood v. Smiley, 36 P. 856, 857 (Wyo. 1894)).

28
See id. at 141-42, 28 P.2d at 500 (quoting 13 C.J. 601); C. Norman Peterson, 218 Cal. Rptr. at 600.

29
Rudd v. Anderson, 285 N.E.2d 836, 840 (Ind. Ct. App. 1972); see also Modern Builders, Inc. of Tacoma
v. Manke, 615 P.2d 1332, 1337 (Wash. Ct. App. 1980) ([P]arties to a contract may possibly agree to changes
from the original agreement which are so extensive that the contract must be deemed abandoned as a matter of
law.), cited in Rowland v. Lepire, 99 Nev. 308, 662 P.2d 1332 (1983).

30
See, e.g., Harris v. IES Associates, Inc., 69 P.3d 297, 305 (Utah Ct. App. 2003).
[Headnote 15]
At trial, Jones introduced evidence from which a jury could conclude that by directing
Jones to perform its work at an inadequately prepared and maintained site, LMB in effect
directed Jones to perform work inconsistent with provisions in the parties' contract which
specifically described the efficient manner and time frame in which Jones was to perform its
work. Jones testified that it nevertheless agreed to perform the changed work, despite
incurring significant increases in cost and time, on the belief that it would be paid by LMB on
terms other than those identified in the contract.
Although Jones attempted to recover all of its claimed additional costs under the
terms of the contract, Jones from the start asserted that the contract schedule and costs no
longer pertained to its work. At that time, LMB directed Jones to continue to work, even
though no price for the changed work had been set. Jones asserts that it only attempted to put
its impact costs into contractual terms after LMB later instructed Jones to do so. Although
the contract's change order provision did not require new prices to be agreed upon before
commencing changed work, it is possible that a jury could conclude, based on the facts of this
case, that both parties impliedly agreed to abandon the terms of the contract. Thus, Jones
introduced sufficient evidence to present its theory of contract abandonment to the jury, and
therefore, the district court improperly dismissed the contract-abandonment claim.
Cardinal change
[Headnotes 16-19]
The cardinal-change doctrine serves to provide a breach remedy for contractors
who are directed . . . to perform work which is not within the general scope of the contract,'
and which is therefore not redressable under the contract.
31
Thus, a cardinal change occurs
when the work is so drastically altered that the contractor effectively performs duties that are
materially different from those for which the contractor originally bargained.
32
[T]he
contractor must prove facts with specificity that support its allegations that a cardinal change
occurred.
33
Although the cardinal-change doctrine was created as a check on the
government's ability to circumvent the competitive-bidding process by ordering drastic
changes beyond those contemplated in the contract,
34
and has been predominantly
discussed in disputes based on government contracts, its underlying premisethat
compensation for costs resulting from an abuse of authority under the changes clause
should not be limited by the terms of that clauseapplies to private contracts that include
changes clauses.
____________________

31
PCL Const. Services, Inc. v. U.S., 47 Fed. Cl. 745, 804 (2000) (citations omitted); see Atlantic Dry Dock
Corp. v. U.S., 773 F. Supp. 335, 339 (M.D. Fla. 1991).

32
Rumsfeld v. Freedom NY, Inc., 329 F.3d 1320, 1332 (Fed. Cir. 2003).

33
PCL, 47 Fed. Cl. at 804.

34
Miller Elevator Co. v. U.S., 30 Fed. Cl. 662, 677 (1994) ( The basic standard is whether the modified
contract calls for essentially the same per-
has been predominantly discussed in disputes based on government contracts, its underlying
premisethat compensation for costs resulting from an abuse of authority under the changes
clause should not be limited by the terms of that clauseapplies to private contracts that
include changes clauses.
35
Consequently, we conclude that this cause of action is viable in
the context of private construction contracts.
The court in Becho, Inc. v. United States
36
presents a summary of the
cardinal-change analysis:
Whether a change is cardinal is principally a question of fact, requiring that each case
be analyzed individually in light of the totality of the circumstances. Each case must
be analyzed on its own facts and in light of its own circumstances, giving just
consideration to the magnitude and quality of the changes ordered and their cumulative
effect upon the project as a whole. Further, [a] determination of the scope and nature
of alleged changes requires a fact-intensive inquiry into the events that led to the excess
work and their effect on the parties. The court must investigate the contract as a whole
to determine whether [the owner or construction manager] is responsible for the
contractor's difficulties. . . .
[37]

. . . Indeed, while there is no precise calculus for determining whether a cardinal change
has occurred, the courts have considered, inter alia, the following factors: (i) whether
there is a significant change in the magnitude of work to be performed; {ii) whether
the change is designed to procure a totally different item or drastically alter the
quality, character, nature or type of work contemplated by the original contract; and
{iii) whether the cost of the work ordered greatly exceeds the original contract cost.
____________________
formance as that required by the contract when originally awarded so that the modification does not materially
change the field of competition.' (quoting Cray Research, Inc. v. Department of Navy, 556 F. Supp. 201, 203
(D.C. 1982))).

35
See, e.g., Hensel Phelps Const. v. King County, 787 P.2d 58 (Wash. Ct. App. 1990) (concluding that a
subcontractor whose contract incorporated terms of a government contract had not demonstrated the occurrence
of a cardinal change when the shape and size of an area to be painted remained the same and its only claims were
for acceleration, having to re-do work, and problems involving the stacking of trades); L.K. Comstock & Co. v.
Becon Cost. Co., 932 F. Supp. 906, 938-39 (E.D. Ky. 1993) (discussing [o]ther cases in which state courts have
applied the cardinal change doctrine); Westinghouse Elec. Corp. v. Garrett Corp., 437 F. Supp. 1301 (D. Md.
1977) (finding, under Maryland law and strongly persuasive government contract law, that the failure to provide
certain plans according to various assurances made pursuant to a time-sensitive contract was a fundamental
breach in the first instance, but which could also be held a breach due to cardinal change).

36
47 Fed. Cl. 595 (2000); see also Rumsfeld, 329 F.3d at 1332.

37
See Stone Forest Industries, Inc. v. U.S., 973 F.2d 1548, 1550-51 (Fed. Cir. 1992) (determining that a
material breach of contract depends on the nature and effect of the violation in light of how the particular
contract was viewed, bargained for, entered into, and performed by the parties).
performed; (ii) whether the change is designed to procure a totally different item or
drastically alter the quality, character, nature or type of work contemplated by the
original contract; and (iii) whether the cost of the work ordered greatly exceeds the
original contract cost.
38

[Headnote 20]
Although LMB relies on PCL Construction Services, Inc. v. United States
39
for the
proposition that courts will refuse to find that a cardinal change took place when the structure
built is essentially the same structure contracted for, we agree with the conclusion reached by
other courts, that [a] cardinal change can occur even when there is no change in the final
product because it is the entire undertaking of the contractor, rather than the product, to
which we look.'
40

[Headnotes 21, 22]
In this case, as LMB points out, the overall physical characteristics of Jones's work
changed very little. The real question, however, is whether the entirety of the changes and
impacts on Jones's work was so extensive as to force Jones to perform work beyond the
confines of the contract. As set forth above, Jones presented testimony demonstrating
material impacts on its contractual scope of work. And, Jones asserts that out of its $7.4
million bid, it expected to capture $1.9 million in overhead and profit, leaving $5.5 million in
anticipated costs. The actual costs, according to Jones, totaled over $8.8 million.
Additionally, Jones's expert testified that about $4 million, or 62 percent of the Phase I work
value, was incurred because of changes. The evidence required to demonstrate the occurrence
of cardinal change is similar to that required by the contract-abandonment theory and, under
these circumstances, it appears to us that Jones could also be entitled to relief on its claim
under a theory of cardinal change.
41
Consequently, the district court erred in dismissing this
claim.
____________________

38
Becho, Inc., 47 Fed. Cl. at 601 (citations omitted) (concluding, in light of the factual nature of the inquiry,
that a motion for summary judgment on the issue of cardinal change was precluded by existing material
questions of fact).

39
47 Fed. Cl. 745 (2000).

40
Rumsfeld, 329 F.3d at 1332 (quoting Edward R. Marden Corporation v. United States, 442 F.2d 364, 370
(Cl. Ct. 1971)); L.K. Comstock, 932 F. Supp. at 940.

41
We note that recovery of a party's total costs of performance in quantum meruit, as Jones is apparently
claiming as damages in its cardinal-change claim, may not be an appropriate measure of recovery where a
cardinal change has been found. See Amelco Electric v. City of Thousand Oaks, 38 P.3d 1120, 1126 (Cal. 2002).
CONCLUSION
Based upon our discussion above, we affirm that portion of the district court's
judgment dismissing Jones's fraud-in-the-inducement claim, we reverse the remainder of the
district court's judgment, and we remand this case to the district court for a new trial
consistent with this opinion.
42

____________
120 Nev. 296, 296 (2004) Johnson v. State
DANIEL GENE JOHNSON, Appellant, v. THE STATE
No. 40833
May 19, 2004 89 P.3d 669
Appeal from a judgment of conviction, pursuant to a guilty plea, of two counts of
uttering a forged instrument and one count of principal to commit uttering a forged
instrument. Third Judicial District Court, Churchill County; David A. Huff, Judge.
The supreme court held that defendant was entitled to have presentence confinement
credit applied to both sentences that were ordered to run concurrently.
Remanded.
Steve E. Evenson, Lovelock, for Appellant.
Brian Sandoval, Attorney General, Carson City; Arthur E. Mallory, District Attorney,
and Will B. Mattly, Chief Deputy District Attorney, Churchill County, for Respondent.
1. Sentencing and Punishment.
Defendant who was arrested and convicted on guilty plea of two counts of uttering
forged instrument was entitled to have presentence confinement credit applied to both
sentences that were ordered to run concurrently. NRS 176.055.
2. Criminal Law.
Defendant did not waive claim on direct appeal that he was entitled to have
presentence confinement credit applied to both concurrent sentences on guilty pleas to
two counts of uttering forged instrument rather than just to sentence imposed on first
count by failing to raise issue with trial court, where there was no discussion by parties
about presentence credit at sentencing hearing, and only indication that trial court was
applying credit to first sentence only was when written judgment of conviction was
filed.
The purpose of the statute governing the application of credit for presentence
confinement is to ensure that all time served is credited towards a defendant's ultimate
sentence. NRS 176.055.
____________________

42
We have carefully examined appellant's other claims, but in light of our decision today, we need not reach
them.
When concurrent sentences are imposed, presentence credit is applied once, in effect,
against each concurrent sentence. This is done because the longest term of the
concurrent sentences determines the total length of the imprisonment. NRS 176.055.
Credit for time served in presentence confinement may not be denied to a defendant
by applying it to only one of multiple concurrent sentences. NRS 176.055.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a guilty plea, of two
counts of uttering a forged instrument (counts I-II) and one count of principal to commit
uttering a forged instrument (count III). The district court sentenced appellant Daniel Gene
Johnson to serve concurrent prison terms of 12-48 months and 18-48 months for counts I and
II and a consecutive prison term of 18-48 months for count III, and ordered him to pay
$424.40 in restitution jointly and severally with his codefendant. The district court gave
Johnson credit for 128 days time served, and ordered that it be applied only to the sentence
imposed for count I. Johnson was initially arrested and taken into custody on July 14, 2002,
on the charges to which he ultimately pleaded guilty, as well as on fifteen other felony counts,
including: burglary; principal to commit burglary; possession of a stolen motor vehicle;
obtaining and being a principal to obtaining money, property, rent or labor by false pretenses;
and possession and being a principal to possession with the intent to utter a forged
instrument. In exchange for his guilty plea to the three counts noted above, the State agreed
not to pursue the fifteen other felony counts.
[Headnote 1]
Johnson's sole contention is that the district court abused its discretion in ordering the
credit for presentence confinement to be applied only to the sentence imposed for count I, a
sentence concurrent to the sentence imposed for count II but with a shorter minimum term.
Citing to Kuykendall v. State,
1
Johnson argues that he is entitled to have the credit for
presentence confinement applied to both of the concurrent sentences.
____________________

1
112 Nev. 1285, 1287, 926 P.2d 781, 783 (1996) (holding that the purpose of NRS 176.055(1) is to ensure
that all time served is credited towards a defendant's ultimate sentence); see also Anglin v. State, 90 Nev. 287,
292, 525 P.2d 34, 37 (1974) (holding that the purpose of the credit statute is to provide credit for confinement .
. . where (1) bail has been set for the defendant and (2) the defendant was financially unable to post the bail);
Nieto v. State, 119 Nev. 229, 231-32, 70 P.3d 747, 748 (2003) (stating in dicta that the
that he is entitled to have the credit for presentence confinement applied to both of the
concurrent sentences.
2
Although the presentence investigation report prepared by the
Division of Parole and Probation noted that Johnson was entitled to 128 days of credit for
time served, there was no discussion by the parties or the district court about presentence
confinement credit at the sentencing hearing. The first indication that the district court had
awarded credit and had apportioned it only to the term imposed on count I was when the
written judgment of conviction was filed.
[Headnote 2]
The State first argues that this court need not address Johnson's argument because: (1)
Johnson should have initially raised the issue in the district court either in a post-conviction
petition for a writ of habeas corpus or in a motion to correct an illegal sentence,
3
and (2) the
issue was not preserved for review on appeal because Johnson never objected or raised the
issue at any point in the proceedings below. We disagree. Johnson has properly raised this
sentencing issue on direct appeal in the first instance.
4
Under the circumstances present here,
Johnson had no reason or opportunity to object during the proceedings below to the manner
in which the district court apportioned the presentence confinement credit until the written
judgment of conviction was entered. Therefore, we reject the State's contentions that the issue
was not properly preserved for appeal and that it should have been raised in the first instance
in post-conviction proceedings in the district court.
[Headnotes 3-5]
Citing to Mays v. District Court, the State also contends that the district court retains
the discretion to apply the credit, as it did in Johnson's case, only to the shorter of the two
concurrent sentences.
5
The State's reliance on Mays is misplaced and unpersuasive; the
facts of that case have no application to the instant case.
____________________
granting of credit for pretrial confinement is not necessarily limited to the situations discussed in Anglin).

2
See generally NRS 176.055(1) (whenever a sentence of imprisonment . . . is imposed, the court may order
that credit be allowed against the duration of the sentence . . . for the amount of time which the defendant has
actually spent in confinement before conviction).

3
See NRS 34.724(2)(c); NRS 176.555.

4
See Franklin v. State, 110 Nev. 750, 877 P.2d 1058 (1994) (claims appropriate for direct appeal, including
a challenge to the sentence imposed, must be pursued on direct appeal or will be considered waived), overruled
on other grounds by Thomas v. State, 115 Nev. 148, 979 P.2d 222 (1999); see also Parrish v. State, 116 Nev.
982, 12 P.3d 953 (2000) (holding that a sentencing determination will not be disturbed on appeal absent an
abuse of discretion by the district court).

5
111 Nev. 1172, 1176, 901 P.2d 639, 642 (1995).
sive; the facts of that case have no application to the instant case.
6
As we held in Kuykendall,
the purpose of NRS 176.055, the statute governing the application of credit for presentence
confinement, is to ensure that all time served is credited towards a defendant's ultimate
sentence.
7
The overwhelming majority of states adhere to the following generally accepted
principle when apportioning credit for time served in presentence confinement, as stated by
the Supreme Court of Hawaii in State v. Tauiliili:
[W]hen concurrent sentences are imposed, presentence credit is applied once. The
credit applied once, in effect, is applied against each concurrent sentence. This is done
because the longest term of the concurrent sentences determines the total length of the
imprisonment.
8

Our holding in Kuykendall coincides with the reasoning in Tauiliili, and we conclude that
credit for time served in presentence confinement may not be denied to a defendant by
applying it to only one of multiple concurrent sentences. To hold otherwise would render
such an award a nullity or little more than a paper credit.
9
Johnson was taken into custody
at the same time for all of the charges to which he pleaded guilty, and therefore, he was
entitled to have the 128 days credit for time served in presentence confinement applied to
both of the concurrent sentences imposed for counts I and II, and not only to the sentence
imposed for count I.
In light of the above, we remand this matter to the district court with instructions to
modify the sentence by applying the presentence confinement credit to both counts I and II.
10

____________________

6
In Mays, this court granted an original petition and ordered the Nevada Department of Prisons to give
petitioner credit for his prior parole and to recalculate the remainder of his sentence in light of this parole
credit. 111 Nev. at 1178, 901 P.2d at 643.

7
112 Nev. at 1287, 926 P.2d at 783 (emphasis added).

8
29 P.3d 914, 918 (Haw. 2001); see also State v. Price, 50 P.3d 530, 534-35 (Mont. 2002) (listing cases and
jurisdictions following the same general principle).

9
See Blankenship v. State, 763 A.2d 741, 742-43 (Md. Ct. Spec. App. 2000).

10
Because Johnson is represented by counsel in this matter, we decline to grant him permission to file
documents in proper person in this court. See NRAP 46(b). Accordingly, the clerk of this court shall return to
Johnson unfiled all proper person documents that he has submitted to this court in this matter.
____________
120 Nev. 300, 300 (2004) Roberts v. State
TYRONE DAVID ROBERTS, Appellant, v. THE STATE
No. 42430
May 19, 2004 89 P.3d 998
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of
possession of a controlled substance. Second Judicial District Court, Washoe County; Steven
P. Elliott, Judge.
The supreme court held that State was not required to provide defendant with formal
notice in charging document that probation was discretionary rather than mandatory.
Affirmed.
Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
Indictment and Information.
Statute allowing for discretionary, rather than mandatory probation for first-offense
possession of controlled substance in case where probation for prior unrelated offense
had been revoked was not equivalent of sentencing enhancement for which State was
required to provide defendant with formal notice in charging document, where it did
not increase maximum potential sentence for offense. NRS 176A.100(1)(b), 453.336.
OPINION
Per Curiam:
In this appeal, we consider whether the State is required to provide a defendant
charged with first-offense possession of a controlled substance with formal notice in the
charging document that, pursuant to NRS 176A.100,
1
probation is discretionary rather than
mandatory.
____________________

1
NRS 176A.100(1)(b) presently provides that when a person is found guilty of a category E felony:
[T]he court shall suspend the execution of the sentence imposed and grant probation to the person. The
court may, as it deems advisable, decide not to suspend the execution of the sentence imposed and grant
probation to the person if, at the time of sentencing, it is established that the person:
(1) Was serving a term of probation or was on parole at the time the crime was committed, whether in
this state or elsewhere, for a felony conviction;
than mandatory. We conclude that no formal notice is required because discretionary
probation is not the equivalent of a sentencing enhancement under NRS 453.336 and,
therefore, our holding in Lewis v. State
2
is inapposite.
FACTS
On September 23, 2003, appellant Tyrone David Roberts pleaded guilty to one count
of possession of a controlled substance. Pursuant to the terms of the plea agreement, the State
promised not to oppose probation, if recommended by the Nevada Division of Parole and
Probation and, otherwise, to concur in any other sentencing recommendation made by the
Division.
Ultimately, the Division recommended that Roberts serve a prison term of 12 to 30
months and, subsequently at the sentencing hearing, the State concurred in that
recommendation. Defense counsel, however, argued that probation was mandatory in Roberts'
case based primarily on this court's holding in Lewis. The State responded that Roberts was
ineligible for mandatory probation because he had previously had his probation revoked in an
unrelated case. The district court agreed with the State that the imposition of probation was
discretionary and sentenced Roberts to serve a prison term of 12 to 34 months to run
concurrently with any sentences in other cases. Roberts filed this timely appeal.
DISCUSSION
Generally, a defendant convicted of a category E felony, including first-offense
possession of a controlled substance, is entitled to probation.
3
However, probation is
discretionary, rather than mandatory, where at sentencing it is established that at the time of
the commission of the crime, the defendant: (1) was serving a term of probation or was on
parole for a felony conviction, (2) had previously had a grant of probation or parole revoked
for a felony conviction, (3) had previously failed to successfully complete an assigned
treatment program pursuant to NRS 453.580, or (4) had two prior felony convictions.
4

____________________
(2) Had previously had his probation or parole revoked, whether in this state or elsewhere, for a
felony conviction;
(3) Had previously been assigned to a program of treatment and rehabilitation pursuant to NRS
453.580 and failed to successfully complete that program; or
(4) Had previously been two times convicted, whether in this state or elsewhere, of a crime that under
the laws of the situs of the crime or of this state would amount to a felony.

2
109 Nev. 1013, 862 P.2d 1194 (1993).

3
NRS 176A.100(1)(b).

4
Id.
Roberts contends that he was entitled to mandatory probation because the State failed
to allege in the charging document that probation was discretionary under NRS
176A.100(1)(b).
5
More specifically, citing to Lewis, Roberts argues that he was entitled to
formal notice in the charging document that probation was not mandatory because
discretionary probation is a sentencing enhancement under NRS 453.336. We conclude that
Roberts' contention lacks merit.
In Lewis, this court held that, where the State seeks a sentencing enhancement for a
simple possession conviction under NRS 453.336(2), the State must give the defendant
formal notice by alleging the prior convictions in the charging document.
6
In so holding, this
court reasoned that the Legislature had no rational basis for excluding persons charged with
simple possession from the statutory formal notice requirement set forth in NRS 453.348
7
because, like persons charged with more serious controlled substance offenses, persons
charged with simple possession were subject to a sentencing enhancement for prior
convictions involving controlled substances.
8
A sentencing enhancement is . . . an
additional penalty for the primary offense.
9
The sentence for simple possession, which is
normally a category E felony, is enhanced to a category D felony if the State alleges the prior
controlled substance convictions in the charging document and the State proves the existence
of those convictions prior to sentencing.
10

In this case, Roberts did not receive a sentence enhancement under NRS 453.336.
Unlike the defendant in Lewis who was sentenced to 10 years in prison for third-offense
possession of a controlled substance, Roberts was sentenced for first-offense possession of a
controlled substance, a category E felony.
____________________

5
Probation was discretionary in Roberts' case because he previously had a grant of probation revoked in an
unrelated felony case.

6
109 Nev. at 1014-15, 862 P.2d at 1195.

7
NRS 453.348 provides, in relevant part, that:
In any proceeding brought under NRS 453.316, 453.321, 453.322, 453.333, 453.334, 453.337, 453.338
or 453.401, any previous convictions of the offender for a felony relating to controlled substances must
be alleged in the indictment or information charging the primary offense . . . . If the offender pleads guilty
to or is convicted of the primary offense but denies any previous conviction charged, the court shall
determine the issue after hearing all relevant evidence. A certified copy of a conviction of a felony is
prima facie evidence of the conviction.

8
Lewis, 109 Nev. at 1014-15, 862 P.2d at 1194-95.

9
Domingues v. State, 112 Nev. 683, 692, 917 P.2d 1364, 1371 (1996); see also Apprendi v. New Jersey, 530
U.S. 466, 476 (2000).

10
See NRS 453.336(2); Lewis, 109 Nev. at 1014-15, 862 P.2d at 1194-95; see also Hudson v. Warden, 117
Nev. 387, 394-95, 22 P.3d 1154, 1159 (2001) (discussing burden of proving prior convictions to enhance a
sentence under NRS 453.336).
sion of a controlled substance, a category E felony.
11
Although in Roberts' case probation
was discretionary because one of the exceptions set forth in NRS 176A.100(1)(b) applied, we
disagree that the application of that statute is the equivalent of a sentencing enhancement.
NRS 176A.100(1)(b) does not increase the maximum potential sentence for simple
possession, but instead merely sets forth guidelines for the district court with regard to the
suspension of execution of the actual sentence imposed. Accordingly, we conclude that the
State is not required to allege circumstances that would render probation discretionary in the
charging document. Moreover, because it is undisputed that Roberts had previously had a
grant of probation revoked, the district court acted within its discretion in refusing to suspend
execution of the sentence imposed. Accordingly, we affirm the judgment of conviction.
____________
120 Nev. 303, 303 (2004) Fire Ins. Exch. v. Cornell
FIRE INSURANCE EXCHANGE, Appellant, v. RON CORNELL, Individually and as
Guardian ad Litem for Sarah Cornell; and DAWN CORNELL, Respondents.
No. 39510
June 7, 2004 90 P.3d 978
Appeal from an order granting summary judgment for respondents in an insurance
coverage matter. Eighth Judicial District Court, Clark County; Michael L. Douglas, Judge.
Homeowners' insurer sought a declaratory judgment that policy provided no coverage
for alleged liability of named insureds and adult son for his sexual seduction of child. The
district court entered summary judgment in favor of child's parents. Insurer appealed. The
supreme court held that: (1) named insureds' failure to prevent their adult son's sexual
seduction of child was not an accident, and (2) child-molestation exclusion barred coverage.
Hall Jaffe & Clayton, LLP, and Riley A. Clayton, Las Vegas, for Appellant.
Rumph & Peyton and Troy E. Peyton, Las Vegas, for Respondents.
Orders granting summary judgment are reviewed de novo.
____________________

11
See NRS 453.336(2)(a); NRS 193.130(2)(e).
2. Judgment.
Summary judgment is appropriate when, after a review of the record viewed in a light
most favorable to the non-moving party, no genuine issues of material fact remain, and
the moving party is entitled to judgment as a matter of law.
3. Insurance.
Named insureds' failure to prevent their adult son's sexual seduction of minor
neighbor was not an accident, and thus, their allegedly negligent supervision of their
son was not a covered occurrence under the liability coverage of homeowners'
insurance policy.
4. Insurance.
Liability coverage for named insureds' allegedly negligent supervision of adult son
who committed sexual seduction by having sexual intercourse with minor neighbor was
barred by child-molestation exclusion of homeowners' insurance policy. The clause
applied to injury arising out of molestation of a child by any insured and, thus, applied
to the actions of any insured that resulted in child molestation, not just the person who
actually touched the child.
1

OPINION
Per Curiam:
In this appeal, we consider whether the enforceability and scope of exclusionary
language in a homeowner's liability insurance policy for intentional acts and child molestation
is ambiguous. We conclude that the policy, by its terms, unambiguously excludes coverage in
connection with claims for negligent supervision of an adult child who commits statutory
sexual seduction.
FACTS
Nineteen-year-old Milton Hernandez, a/k/a Milton Cortez, engaged in sexual
intercourse with his twelve-year-old neighbor. State prosecution followed and Hernandez
pleaded guilty to four counts of statutory sexual seduction. At the time of the incidents,
Hernandez lived with his parents, Gonzalo and Maria Villalobos, who were insured under a
homeowner's liability policy issued by appellant Fire Insurance Exchange. The minor's
parents, respondents Dawn and Ron Cornell, filed a civil lawsuit, individually and on behalf
of their daughter, against Hernandez. The Cornells also sued the Villaloboses, alleging,
among other claims, negligent supervision of Hernandez.
2
The Villaloboses tendered
defense of the action to Fire Insurance Exchange.
____________________

1

2
The circumstances under which a parent may have a duty to supervise an adult child was not litigated below
and is not addressed in this opinion.
The policy contains intentional-acts and child-molestation exclusionary clauses. First,
the policy, at least in general, does not cover bodily injury or property damage which . . . is
either . . . caused intentionally by or at the direction of an insured; or . . . results from any
occurrence caused by an intentional act of any insured where the results are reasonably
foreseeable. Second, and more specifically, the policy excludes:
[A]ctual or alleged injury or medical expenses caused by or arising out of the actual,
alleged, or threatened molestation of a child by . . . any insured . . . . Molestation
includes but is not limited to any act of sexual misconduct, sexual molestation or
physical or mental abuse of a minor.
After Fire Insurance Exchange was notified of the Cornells' lawsuit, it filed a
declaratory relief action against Hernandez, the Villaloboses, and the Cornells, seeking a
judicial declaration of noncoverage for the statutory sexual seduction. When Hernandez and
the Villaloboses did not respond to the complaint in the declaratory relief action, the district
court entered a default judgment against them, indicating that the judgment had no preclusive
effect upon the Cornells with respect to their claims relating to any potential insurance
proceeds available under the policy.
Fire Insurance Exchange and the Cornells filed cross-motions for summary judgment
on a set of stipulated facts and documents. Ultimately, the district court granted summary
judgment on behalf of the Cornells, determining that the Villaloboses were covered under the
policy as negligent coinsureds, but that Hernandez was not covered. This appeal followed.
3

DISCUSSION
[Headnotes 1, 2]
We review orders granting summary judgment de novo.
4
Summary judgment is
appropriate when, after a review of the record viewed in a light most favorable to the
non-moving party, no genuine issues of material fact remain, and the moving party is entitled
to judgment as a matter of law.
5

[Headnote 3]
The insurance policy in this case obligates Fire Insurance Exchange to defend and
indemnify the Villaloboses in connection with actions brought against them for damages
caused by an occurrence.
____________________

3
The Cornells did not appeal from the district court's order to the extent that it concluded that Hernandez
was not covered under the policy. Thus, we do not address whether the policy covers Hernandez's statutory
sexual seduction.

4
Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989).

5
currence. The policy defines the term occurrence as an accident resulting in bodily injury.
While the policy does not define the term accident, this court has recently stated that a
common definition of the term is a happening that is not expected, foreseen, or intended.'
6
Fire Insurance Exchange argues that an insured's alleged negligent supervision of an adult son
who commits statutory sexual seduction does not constitute a covered occurrence under the
policy. We agree.
In this case, the victim's damages resulted from the statutory sexual seduction, an
intentional act, and thus not an occurrence under the policy.
7
Even assuming that the
Villaloboses knew or should have known that their son was engaging in an inappropriate
sexual relationship with a minor and had a duty to interfere in their adult son's activities, their
failure to prevent the sexual seduction is not an accident as that term is commonly
understood.
[Headnote 4]
In addition, even if the Villaloboses' alleged negligence could be considered an
occurrence, the policy expressly excludes coverage for any actual or alleged injury or
medical expenses related to child molestation. The Cornells point out that the Villaloboses
did not commit the child molestation and contend that the clause only excludes damages
caused by the actor, not the Villaloboses' alleged negligence in failing to supervise their adult
son. Thus, they argue that the provision is ambiguous and should be interpreted in their favor.
8
We disagree. The essence of the claim is that the Villaloboses' conduct permitted their son
to sexually seduce the victim. Sexual seduction is a form of child molestation. The clause
indicates that it applies to the actions of any insured that results in child molestation, not just
the person who actually touches the child. Therefore, we conclude that the exclusionary
language in this policy unequivocally excludes the Villaloboses from coverage and is not
ambiguous.
____________________

6
Beckwith v. State Farm Fire & Cas. Co., 120 Nev. 23, 26, 83 P.3d 275, 276 (2004) (concluding that an
intoxicated individual's act of striking another individual was intentional and not a covered occurrence under a
homeowner's insurance policy) (quoting Webster's New World Dictionary 8 (3d ed. 1988)).

7
See B.B. v. Continental Ins. Co., 8 F.3d 1288, 1296 (8th Cir. 1993) (concluding that sexual molestation is
not a covered occurrence under an insurance policy based on an inferred-intent standard where the inherently
harmful act of sexual molestation is sufficient to infer an abuser's intent to harm or injure a child); State Farm
Fire & Cas. Co. v. Smith, 907 F.2d 900, 902-03 (9th Cir. 1990) (interpreting Nevada law to conclusively
presume that anyone who intends the act of child molestation also intends the resulting harm); J.C. Penney Cas.
Ins. Co. v. M.K., 804 P.2d 689, 695 (Cal. 1991) (indicating that it defies human response and sensitivity to
conclude that the inevitable product of child molestation is not intended).

8
See Clark v. Truck Ins. Exchange, 95 Nev. 544, 546, 598 P.2d 628, 629 (1979) (indicating that, when a
clause in an insurance policy is ambiguous, this court will interpret the language in favor of the insured).
this policy unequivocally excludes the Villaloboses from coverage and is not ambiguous.
CONCLUSION
Under the specific terms of this policy, an insured's alleged negligent supervision of
an adult son who commits statutory sexual seduction is not a covered occurrence, and the
intentional-acts and child-molestation exclusionary language is not ambiguous. Therefore,
appellant is not obligated to defend or indemnify the Villaloboses with respect to any claim or
judgment against them by the Cornells in connection with the statutory sexual seduction.
Accordingly, we reverse the district court order granting summary judgment on behalf of the
Cornells and remand the matter to the district court with instructions to enter summary
judgment in favor of Fire Insurance Exchange.
____________
120 Nev. 307, 307 (2004) Clem v. State
JOSEPH CLEM, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 40008
KENNETH BRIDGEWATER, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 40009
GERALD BRIDGEWATER and JAMES PLAYER, Appellants,
v. THE STATE OF NEVADA, Respondent.
No. 40028
June 7, 2004 91 P.3d 35
Petition for rehearing of Clem v. State, 119 Nev. 615, 81 P.3d 521 (2003).
Consolidated appeals from orders of the district court denying post-conviction petitions for
writs of habeas corpus. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
Following affirmance of their convictions for first-degree kidnapping, extortion, and
mayhem, with sentence enhancement for use of deadly weapons, 104 Nev. 351, 760 P.2d 103
(1988), and the affirmance of the denial of petitions for writs of habeas corpus, 109 Nev.
1159, 865 P.2d 1166 (1993), petitioners again sought writs of habeas corpus. The district
court denied the petitions. Petitioners appealed. The supreme court, 119 Nev. 615, 81 P.3d
521 (2003), affirmed. On petition for rehearing, the supreme court held that supreme court's
decision in Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990), which overruled supreme
court's decision in defendants' direct appeal and thereby replaced the "functional test"
with the "inherently dangerous test" for determining whether a weapon qualifies as a
deadly weapon for purposes of sentence enhancement, announced a new, unforeseeable,
and nonconstitutional rule of law rather than clarifying the law, and thus, due process did
not require Zgombic to be applied retroactively to defendants whose convictions became
final before Zgombic changed the law by narrowing the definition of deadly weapon.
120 Nev. 307, 308 (2004) Clem v. State
decision in defendants' direct appeal and thereby replaced the functional test with the
inherently dangerous test for determining whether a weapon qualifies as a deadly weapon
for purposes of sentence enhancement, announced a new, unforeseeable, and
nonconstitutional rule of law rather than clarifying the law, and thus, due process did not
require Zgombic to be applied retroactively to defendants whose convictions became final
before Zgombic changed the law by narrowing the definition of deadly weapon.
Rehearing denied.
JoNell Thomas, Las Vegas, for Appellant Joseph Clem.
Christopher R. Oram, Las Vegas, for Appellant Kenneth Bridgewater.
J. Chip Siegel, Chtd., and Jay L. Siegel, Las Vegas, for Appellants Gerald
Bridgewater and James Player.
Constitutional Law; Courts.
Supreme court's decision in Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990),
which overruled supreme court's decision in Clem v. State, 104 Nev. 351, 760 P.2d 103
(1988), and thereby replaced the functional test with the inherently dangerous test
for determining whether a weapon qualifies as a deadly weapon for purposes of
sentence enhancement, announced a new, unforeseeable, and nonconstitutional rule of
law rather than clarifying the law, and thus, due process did not require Zgombic to be
applied retroactively to defendants whose convictions became final before Zgombic
changed the law by narrowing the definition of deadly weapon. U.S. Const. amend. 14;
NRS 193.165 (1994).
1

OPINION ON REHEARING
Per Curiam:
Appellants have petitioned for rehearing of Clem v. State (Clem II),
2
our decision
affirming the district court's denials of appellants' successive and untimely post-conviction
petitions for writs of habeas corpus.
____________________

1

2
119 Nev. 615, 81 P.3d 521; see also Clem v. State, 104 Nev. 351, 760 P.2d 103 (1988) (Clem I), overruled
in part by Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990).
120 Nev. 307, 309 (2004) Clem v. State
lants' successive and untimely post-conviction petitions for writs of habeas corpus. They
challenge Clem II's conclusion that their claims of retroactive entitlement to the deadly
weapon test of Zgombic v. State
3
are barred by the law of the case and by the procedural
bars of NRS Chapter 34. They assert, inter alia, that this conclusion is inconsistent with and
overlooked our decision in Leslie v. Warden (Leslie II),
4
wherein we reconsidered in habeas
review our previous interpretation of the statutory death penalty aggravator at random and
without apparent motive
5
and applied the corrected interpretation to Leslie's case, despite
our earlier decision upholding the aggravator in Leslie's direct appeal. We conclude that
appellants' cases present factual and legal circumstances distinguishable from those in Leslie
II and therefore neither Leslie II nor its progeny is controlling authority here. Accordingly, we
deny rehearing.
6

DISCUSSION
The procedural history of appellants' cases is fully set forth in Clem II.
7
Briefly, in
our 1988 decision in appellants' direct appeals, Clem v. State (Clem I),
8
we upheld
appellants' convictions for use of a deadly weapon as that term was set forth in NRS
193.165. Later, in Zgombic,
9
we overruled Clem I's test for a deadly weapon in favor of a
narrower test that required that the weapon used be inherently dangerous. In 1993, we decided
Bridgewater v. Warden,
10
affirming the denial of post-conviction relief to appellants and
rejecting their claims that Zgombic's deadly weapon test applied retroactively to their cases.
Some or all of these appellants continued unsuccessfully to challenge their deadly weapon
enhancements in state and federal courts.
11
In 2001, appellants again sought relief in state
court on the same grounds, and in Clem II, our opinion which is the subject of the instant
rehearing petition, we affirmed the district court's denial of relief on appellants' successive
and delayed claims, concluding that appellants could not defeat the law of the case and the
procedural bars of NRS Chapter 34.
____________________

3
106 Nev. 571, 798 P.2d 548.

4
118 Nev. 773, 59 P.3d 440 (2002); see also Leslie v. State, 114 Nev. 8, 952 P.2d 966 (1998) (Leslie I).

5
See NRS 200.033(9).

6
See NRAP 40(c).

7
119 Nev. at 618-20, 81 P.3d at 523-25.

8
104 Nev. at 356-57, 760 P.2d at 106-07.

9
106 Nev. 571, 798 P.2d 548.

10
109 Nev. 1159, 865 P.2d 1166 (1993).

11
See Clem II, 119 Nev. at 619 & n.18, 81 P.3d at 524-25 & n.18.
120 Nev. 307, 310 (2004) Clem v. State
could not defeat the law of the case and the procedural bars of NRS Chapter 34.
12

Appellants first claim in their petition for rehearing that in deciding Clem II, we
misapprehended the constitutional due process requirements recognized in various United
States Supreme Court decisions including Fiore v. White,
13
Bunkley v. Florida,
14
and
Bousley v. United States.
15
However, we conclude that appellants have failed to show that
we overlooked or misapprehended a material fact in the record or a material question of law
in the case related to federal due process rights.
16
Appellants have likewise failed to
demonstrate that we overlooked, misapplied, or failed to consider controlling authority on a
dispositive due process issue.
17
Our opinion fully sets forth our consideration of appellants'
due process related contentions as necessary to determine proper application of the procedural
bars to appellants' claims,
18
and we reject appellants' attempt to reargue the issue on
rehearing.
19

Appellants also contend that we reached our decision in Clem II by overlooking the
controlling decision of Leslie II
20
and that our refusal to apply Zgombic's deadly weapon
test to their cases is inconsistent with Leslie II and its progeny, State v. Bennett (Bennett III).
21
We disagree and expressly state so here for the purpose of deterring future arguments
along this meritless vein.
The facts underlying our decision in Leslie II are as follows. A jury convicted Leslie
of crimes including first-degree murder and imposed a death sentence for the murder after
finding four aggravating circumstances, including that the murder was committed upon one
or more persons at random and without apparent motive" as set forth in NRS 200.033{9).
____________________

12
Id. at 620-30, 81 P.3d at 525-32.

13
531 U.S. 225 (2001).

14
538 U.S. 835 (2003).

15
523 U.S. 614 (1998).

16
See NRAP 40(c)(2)(i) (stating that rehearing may be considered [w]hen the court has overlooked or
misapprehended a material fact in the record or a material question of law in the case).

17
See NRAP 40(c)(2)(ii) (stating that rehearing may be considered [w]hen the court has overlooked,
misapplied or failed to consider a statute, procedural rule, regulation or decision directly controlling a
dispositive issue in the case).

18
Clem II, 119 Nev. at 620-30, 81 P.3d at 525-32.

19
See NRAP 40(c)(1) (Matters presented in the briefs . . . may not be reargued in the petition for rehearing .
. . .).

20
118 Nev. 773, 59 P.3d 440.

21
119 Nev. 589, 81 P.3d 1 (2003); see also Bennett v. State, 106 Nev. 135, 787 P.2d 797 (1990) (Bennett I),
overruled in part by Leslie II, 118 Nev. 773, 59 P.3d 440; Bennett v. State, 111 Nev. 1099, 901 P.2d 676 (1995)
(Bennett II).
120 Nev. 307, 311 (2004) Clem v. State
tive as set forth in NRS 200.033(9).
22
In Leslie's direct appeal, we concluded that sufficient
evidence supported only three of the aggravators, including the NRS 200.033(9) aggravator.
23
As to this aggravator, we stated:
[A] murder can be random and without apparent motive if the killing of a person was
not necessary to complete a robbery. Evidence indicated that Leslie had received the
money and could have left the store unfettered, but killed Prewitt anyway. Therefore,
we conclude that evidence supported the jury's finding that the murder was random and
without apparent motive pursuant to NRS 200.033(9).
24

However, because we struck the fourth aggravator, we reweighed the evidence supporting a
death sentence before upholding that sentence.
25

Our decision in Leslie II
26
addressed the district court's denial of relief on Leslie's
timely post-conviction petition for a writ of habeas corpus. Leslie argued in his petition and
on appeal that his direct appeal counsel was ineffective for failing to challenge the sufficiency
of the evidence to support the NRS 200.033(9) aggravator.
27
We concluded that counsel had
not been ineffective with respect to this aggravator, but we nonetheless determined that we
had previously erred in extending the reach of this aggravator to allow it to be found on
evidence showing only that the defendant unnecessarily killed someone in connection with a
robbery.
28
We recognized that the procedural bar for waiver would normally apply;
however, we also concluded that Leslie was actually innocent of the aggravator, a reasonable
probability existed that absent the aggravator the jury would not have imposed death, and
Leslie had therefore demonstrated a fundamental miscarriage of justice sufficient to overcome
procedural bars.
29

In revisiting the reach of the NRS 200.033(9) aggravator in Leslie II, we recognized
that this court first interpreted the aggravator to include unnecessary killings in the course of a
robbery in Bennett v. State (Bennett I).
30
Our Leslie II decision then acknowledged that
Bennett I "overstated the applicability of NRS 200.033{9) to robbery-related killings.
____________________

22
Leslie I, 114 Nev. at 15, 952 P.2d at 971.

23
Id. at 20-22, 952 P.2d at 975-76.

24
Id. at 22, 952 P.2d at 976 (citation omitted).

25
Id. at 22-23, 952 P.2d at 976.

26
118 Nev. 773, 59 P.3d 440.

27
Id. at 779, 59 P.3d at 444.

28
Id. at 779-80, 59 P.3d at 444-45.

29
Id. at 780, 59 P.3d at 445.

30
Id.
120 Nev. 307, 312 (2004) Clem v. State
edged that Bennett I overstated the applicability of NRS 200.033(9) to robbery-related
killings.
31
This determination was based on three grounds which we had ignored in
deciding Bennett I and which showed that Bennett I had gone too far in interpreting the reach
of the aggravator.
32
First, we turned to the plain meaning of the words chosen by the
Legislature. We stated:
Random means lacking a specific pattern, purpose or objective. Something is
apparent when it is easily understood or obvious. And motive is defined as an
emotion that leads one to act. With these definitions in mind, it appears that the
Legislature intended this aggravator to apply to situations where a killer selects his
victim without a specific purpose or objective and his reasons for killing are not
obvious or easily understood.
33

Second, we examined the legislative history of the statutory aggravator, stating:
This aggravator was initially included in the list that was to become NRS 200.033 but
at some point was deleted. Later, during a meeting of the Senate Judiciary Committee, a
prosecutor queried whether the bill covered the San Fransisco-type murder problem . .
. that is, the motiveless, thrill-killing murders. The bill's sponsor replied that this type
of murder would fall under the at random and without apparent motive aggravator.
The committee then decided to include the aggravator in the bill. There is no indication
that the Legislature intended the aggravator to apply to unnecessary killings in the
course of a robbery.
34

Finally, we recognized that another statutory aggravator, set forth at NRS 200.033(4),
already applied to killings connected with robberies, [r]egardless of whether the murder was
necessary to complete the robbery.
35
Thus, we concluded that Bennett I and its offspring
had strayed too far from the plain meaning of NRS 200.033(9), and we therefore overruled
that line of cases.
36

Next, Bennett brought a successive and untimely challenge to the finding of the NRS
200.033(9) aggravator in his case. On appeal from the district court's grant of relief, we
affirmed. In our opinion in Bennett III, filed the same day as Clem II, we recognized that
Leslie II "overruled our 1990 decision in Bennett's case" with respect to the reach of the
statutory aggravator.
____________________

31
Id. at 780, 59 P.3d at 445.

32
Id. at 780-81, 59 P.3d 445-46.

33
Id. (citations omitted).

34
Id. at 781, 59 P.3d at 446 (citations omitted).

35
Id.

36
Id.
120 Nev. 307, 313 (2004) Clem v. State
opinion in Bennett III, filed the same day as Clem II, we recognized that Leslie II overruled
our 1990 decision in Bennett's case with respect to the reach of the statutory aggravator.
37
We then concluded that Bennett was actually innocent of the aggravator and this, combined
with the prejudicial impact of other cognizable error, so undermined the reliability of the
jury's death verdict that application of the procedural bars would result in a fundamental
miscarriage of justice.
38

We did not explicitly address in Leslie II or in Bennett III the issue of whether the
corrected interpretation of NRS 200.033(9) applied retroactively to the defendants' cases.
Moreover, in Bennett III, we declined to apply the law of the case doctrine to uphold Bennett
I, the decision that we expressly overruled in Leslie II.
39
However, implicit in our discussion
in Leslie II, as with Bennett III, is our determination that Leslie II clarified an erroneous
interpretation of NRS 200.033(9) as it applied when Leslie and Bennett's convictions became
final. Under these circumstances, and consistent with our decision in Clem II, retroactivity of
Leslie II's corrected interpretation of NRS 200.033(9) was not an issue.
40
Under the
corrected interpretation of the aggravator, both defendants had been penalized for conduct
that NRS 200.033(9), as properly interpreted, did not address.
41

Appellants' cases here do not present circumstances similar to those in Leslie's and
Bennett's cases. We had clearly rejected in Bridgewater the proposition that Zgombic merely
clarified the law that existed at the time appellants' convictions became final. Bridgewater
held instead that Zgombic's adoption of a narrower test was a new, unforeseeable, and
nonconstitutional decision.
42
As we explained in Clem II, by deciding that Zgombic
announced new law, we determined, a fortiori, that Zgombic announced a change in (versus a
clarification of) the law.
43
We concluded in Clem II, after extensive consideration of
appellants' arguments, that appellants failed to demonstrate error in the law of the case or to
otherwise overcome the procedural bars applicable to their claims.
44

____________________

37
119 Nev. at 597, 81 P.3d at 6.

38
Id. at 597-98, 81 P.3d at 6-7.

39
Id. at 597, 81 P.3d at 6.

40
See Clem II, 119 Nev. at 623-24, 81 P.3d at 527 (recognizing that under Fiore, 531 U.S. at 228, where a
state court decision merely clarifies what a statute meant at the time a defendant's conviction became final, the
decision does not create new law and retroactivity is not an issue).

41
See Clem II, 119 Nev. at 623-24, 81 P.3d at 527.

42
109 Nev. at 1161, 865 P.2d at 1167.

43
119 Nev. at 624, 81 P.3d at 528.

44
Id. at 620-30, 81 P.3d at 525-32.
120 Nev. 307, 314 (2004) Clem v. State
Appellants' current attempt to reargue the issue does not provide a basis for rehearing, and
they have failed to show that our decision in Clem II overlooked or misapplied controlling
authority.
CONCLUSION
For the reasons stated above, we deny rehearing.
____________
120 Nev. 314, 314 (2004) Kaczmarek v. State
STEVEN KACZMAREK, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 41556
June 7, 2004 91 P.3d 16
Appeal from a judgment of conviction, pursuant to a jury verdict, of burglary, robbery,
first-degree kidnapping and first-degree murder, all committed with the assistance of a child,
and from a sentence of death. Eighth Judicial District Court, Clark County; John S.
McGroarty, Judge.
The supreme court held that: (1) defendant's Sixth Amendment right to counsel had
not yet attached at time of his interview with police, and thus, the State was not prohibited
from using defendant's confession at trial; (2) substantial evidence supported conclusion that
defendant did not invoke his Miranda right to counsel when he indicated to police detectives
who had approached him for questioning that his attorney on unrelated charges would be at
police station in afternoon and asked if detectives would talk to him at that time; (3)
defendant knowingly and intelligently waived his Miranda rights; (4) any error in admitting
capital murder defendant's confession into evidence was harmless; (5) defendant need not
belong to the same racial group as the prospective jurors in order to challenge their exclusion
on grounds of discrimination under Batson; overruling, Doyle v. State, 112 Nev. 879, 921
P.2d 901 (1996); (6) defendant failed to prove that the State engaged in purposeful
discrimination in exercising four of its eight peremptory strikes to remove members of
minority population groups; (7) defendant's right to cross-examination was not violated by
trial court's exclusion, during penalty phase, of testimony of victim's daughter regarding her
opposition to death penalty for defendant; and (8) death sentence was not excessive.
Affirmed.
Paul E. Wommer, Las Vegas, for Appellant.
1. Criminal Law.
Capital murder defendant's Sixth Amendment right to counsel had not yet attached at
time of his interview with police, and thus, the State was not prohibited from using
defendant's confession at trial. Defendant had invoked his Sixth Amendment right to
counsel in another, unrelated case, but this had no bearing on his invocation of right in
case at issue, and defendant did not contend that formal prosecution had commenced
for crimes in current prosecution. U.S. Const. amend. 6.
2. Criminal Law.
The Sixth Amendment right to counsel prevents admission at trial of defendant's
statements which police have deliberately elicited after the right has attached and
without obtaining a waiver or providing counsel. U.S. Const. amend. 6.
3. Criminal Law.
Once defendant invokes the Sixth Amendment right to counsel, the government must
cease further attempts to obtain his statements until he has been provided counsel,
unless he initiates the conversation and waives his rights. U.S. Const. amend. 6.
4. Criminal Law.
The Sixth Amendment right to counsel does not even attach in a case until adversarial
proceedings have commenced in that case whether by way of formal charge,
preliminary hearing, indictment, information or arraignment. U.S. Const. amend. 6.
5. Criminal Law.
The Sixth Amendment right to counsel cannot be invoked once for all future
prosecutions. U.S. Const. amend. 6.
6. Criminal Law.
Incriminating statements pertaining to other crimes, as to which the Sixth Amendment
right has not yet attached, are admissible at a trial of those offenses. U.S. Const. amend.
6.
7. Criminal Law.
Offense-specific Sixth Amendment right does not require suppression of statements
deliberately elicited during a criminal investigation merely because the right has
attached and been invoked in an unrelated case. U.S. Const. amend. 6.
8. Criminal Law.
Supreme court would review for plain error issue of whether capital murder
defendant's Miranda right to counsel was violated; defendant failed to preserve issue in
trial court, or to adequately assert issue on appeal, but because question was important
one that State had briefed, plain error review was warranted. U.S. Const. amend. 5;
NRS 178.602.
9. Criminal Law.
Substantial evidence supported conclusion that capital murder defendant did not
invoke his Miranda right to counsel when he indicated to police detectives who had
approached him for questioning that his attorney on unrelated charges would be at
police station in afternoon and asked if detectives would talk to him at that time;
defendant was thirty-two years old and experienced in criminal justice system, he had
received Miranda warnings prior to his reference to counsel, and his reference to
counsel was so ambiguous that reasonable officers in circumstances of detectives
would have understood that defendant might have been invoking his right to
counsel.
warnings prior to his reference to counsel, and his reference to counsel was so
ambiguous that reasonable officers in circumstances of detectives would have
understood that defendant might have been invoking his right to counsel. U.S. Const.
amend. 5.
10. Criminal Law.
District court's determination that defendant did not request an attorney prior to being
questioned by police is a finding of fact which will not be disturbed on appeal if
supported by substantial evidence.
11. Criminal Law.
Supreme court, in conducting plain error review, considers whether there was error,
that was plain, and that affected the defendant's substantial rights. NRS 178.602.
12. Criminal Law.
The Miranda case established a prophylactic right to have counsel present during
custodial interrogations. U.S. Const. amend. 5.
13. Criminal Law.
Once a suspect has expressed his desire to deal with the police only through counsel,
not only must the current interrogation cease, but he may not be approached for further
interrogation until counsel has been made available to him; if police later initiate an
encounter in the absence of counsel and there has been no break in custody, the
suspect's statements are presumed involuntary and therefore inadmissible as substantive
evidence at trial, even where the suspect executes a waiver and his statements would be
considered voluntary under traditional standards.
14. Criminal Law.
Edwards rule that when defendant requests counsel interrogation must cease until
counsel is made available to defendant unless defendant initiates communications is not
offense specific and bars police-initiated interrogations related to any offense once a
suspect has invoked the Miranda right to counsel regarding one offense; however,
suppression under Edwards requires a court to determine whether the accused actually
invoked his right to counsel. U.S. Const. amend. 5.
15. Criminal Law.
The word attorney has no talismanic qualities; defendant does not invoke his right
to counsel any time the word falls from his lips.
16. Criminal Law.
Capital murder defendant knowingly and intelligently waived his Miranda rights.
Prior to giving statement regarding his crimes against victim, defendant was
readmonished verbally and indicated that he understood his rights and he read and
signed admonishment card, though defendant knew that detectives were not willing to
accommodate his desire to talk to him in the afternoon, when counsel for his other case
would be at police station, he also knew that he could get an attorney appointed for
questioning and that he did not have to speak with detectives, he was not coerced or
threatened into waiving his rights, and he seemed eager to talk with detectives.
17. Criminal Law.
Any error in admitting capital murder defendant's confession into evidence was
harmless. Confession was largely cumulative to defendant's own trial testimony,
confession would have been admissible for impeachment purposes, and there was other,
powerful evidence of defendant's guilt that had been properly admitted.
18. Witnesses.
Statements made in violation of Miranda but otherwise trustworthy are admissible to
impeach the trial testimony of defendants who elect to testify.
19. Jury.
Under Batson, once the opponent of a peremptory challenge makes a prima facie case
of racial discrimination, the burden of production shifts to the proponent of the strike to
give a race-neutral explanation; if such an explanation is given, then the trial court must
decide whether the opponent has proved purposeful racial discrimination.
20. Jury.
Defendant need not belong to the same racial group as the prospective jurors in order
to challenge their exclusion on grounds of discrimination under Batson; overruling,
Doyle v. State, 112 Nev. 879, 921 P.2d 901 (1996).
21. Jury.
Explanations provided by State for exercising its peremptory strike against
prospective juror, which was that he stated during voir dire that he did not believe
robbery was a serious crime, coupled with his voiced hesitation about whether he could
consider death penalty, constituted race-neutral explanations, for Batson purposes, in
capital murder prosecution.
22. Jury.
Explanation provided by State for exercising peremptory strikes against prospective
jurors, which was that they had each voiced serious reservations about validity of death
penalty, constituted race-neutral explanation, for Batson purposes, in capital murder
prosecution.
23. Jury.
Explanations provided by State for exercising peremptory strikes against prospective
juror, which was that he had no position on death penalty, despite having written papers
on subject, as well as facts that juror continually watched defendant throughout
proceedings and juror was young, with resulting lack of life experience, which left him
at disadvantage to make difficult life and death decision, constituted race-neutral
explanations, for Batson purposes, in capital murder prosecution.
24. Jury.
Second step in Batson analysis does not demand an explanation that is persuasive, or
even plausible. Unless a discriminatory intent is inherent in the prosecutor's
explanation, the reason offered will be deemed race neutral.
25. Jury.
At third stage of Batson analysis, implausible or fantastic justifications that State
provides to justify exercising a peremptory strike against a prospective juror may, and
probably will, be found to be pretexts for purposeful discrimination; issue comes down
to whether the trial court finds the prosecutor's race-neutral explanations to be credible.
26. Criminal Law.
Because the trial court's findings on the issue of discriminatory intent in a Batson
analysis largely turn on evaluations of credibility, they are entitled to great deference
and will not be overturned unless clearly erroneous.
27. Jury.
Trial courts should clearly spell out the three-step analysis when deciding Batson-type
issues. At the third step, especially, an adequate discussion of the district court's
reasoning may be critical to the supreme court's ability to assess the trial court's
resolution of any conflict in the evidence regarding pretext.
28. Jury.
Trial courts, in conducting Batson analysis, should evaluate all the evidence
introduced by each side on the issue of whether race was the real reason for the State's
exercise of a peremptory challenge and then address whether the defendant has
met his burden of persuasion.
reason for the State's exercise of a peremptory challenge and then address whether the
defendant has met his burden of persuasion.
29. Jury.
Capital murder defendant failed to prove that State engaged in purposeful
discrimination in exercising four of its eight peremptory strikes to remove members of
minority population groups. Prosecutor's reasons for challenges were, for the most part,
supported by voir dire transcript, there was no evidence of disparate questioning of
challenged prospective jurors, and record did not indicate that State's asserted motives
for challenges were unequally applied to jurors at issue.
30. Jury.
Prosecutor's reliance on the jurors' reservations about the death penalty does not by
itself prove an intent to discriminate for Batson purposes. Hesitance to impose the death
penalty is a permissible and race-neutral reason for exclusion.
31. Jury.
Use of peremptory challenges will not be held unconstitutional under Batson solely
because it results in a racially disproportionate impact; proof of racially discriminatory
intent or purpose is required.
32. Criminal Law.
Capital murder defendant's right to cross-examination was not violated by trial court's
exclusion, during penalty phase, of testimony of victim's daughter regarding her
opposition to death penalty for defendant. Daughter's direct testimony was limited to
subject of victim's personal characteristics and impact that his death had on her, her
opinion on sentencing would not have shed any additional light on these subjects, and
thus, testimony was not relevant to issues of credibility or potential bias. U.S. Const.
amend. 6.
33. Criminal Law.
Under the Sixth Amendment, a cross-examiner must be permitted to delve into a
witness's stories to test perceptions and memory and to impeach the witness. U.S.
Const. amend. 6.
34. Witnesses.
District court retains wide discretion to limit cross-examination based on
considerations such as harassment, prejudice, confusion of the issues, and relevancy.
Exclusion of testimony of victim's daughter regarding her opposition to death penalty
for defendant did not violate defendant's right to present evidence relevant to his
defense. Victim's opinion on sentencing was irrelevant to defendant's character, his
record, or the circumstances of victim's murder, and thus trial court was not required to
admit victim's opinion as evidence of mitigation. U.S. Const. amends. 6, 14.
36. Constitutional Law; Witnesses.
The constitutional right to present witnesses in defense of a prosecution derives from
the Compulsory Process Clause of the Sixth Amendment and the Fourteenth
Amendment's due process guarantee of a fair trial. U.S. Const. amends. 6, 14.
37. Witnesses.
The constitutional right to present witnesses in defense of a prosecution is limited, by
the rule of relevance and does not require that the defendant be permitted to present
every piece of evidence he wishes. U.S. Const. amends. 6, 14.
The Eighth and Fourteenth Amendments demand that a sentencer in a capital case
must not be precluded from considering as a mitigating factor any aspect of a
defendant's character or record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death. This constitutional rule does
not, however, limit the traditional authority of a court to exclude, as irrelevant, evidence
not bearing on the defendant's character, prior record, or the circumstances of his
offense. U.S. Const. amends. 8, 14.
Testimony of victim's daughter regarding her opposition to death penalty for
defendant was inadmissible victim impact testimony, in capital murder prosecution.
40. Attorney and Client.
Counsel is required to certify that he has read the briefs that he signs and files with the
supreme court and is prohibited from asserting an issue which he knows is frivolous.
Opinions in opposition to the death penalty do not fall within the parameters of
admissible victim impact testimony or rebuttal thereto, in a capital sentencing
proceeding. Such opinions are not relevant to issues that may be appropriately
addressed by victim impact testimony, i.e., the victim's personal characteristics and the
emotional impact of the victim's death.
It was not fundamentally unfair to admit victim impact testimony from victim's
daughter related to victim's characteristics and emotional devastation that she suffered
from murder. There was no evidence that jury based its determination on any improper
speculation, and jury was instructed that victim impact witnesses were not permitted to
speak on issue of sentence and that jury should fix punishment based on evidence
alone.
43. Criminal Law.
Supreme court presumes that jury follows trial court's instructions.
Victim impact testimony related to capital murder defendant's prior crimes committed
in another state was inadmissible, in sentencing phase of capital murder prosecution.
Death sentence imposed upon capital murder defendant was not excessive. The
evidence supported finding of three aggravating factors. Trial court erroneously
admitted victim impact testimony related to defendant's prior crimes committed in
another state, but, even so, jury would have surmised from witness's admissible
testimony that she would have suffered greatly following defendant's horrendous crimes
against her. Jury's verdict was not improperly influenced by inappropriate testimony,
there was a senseless and callous nature to the crimes at issue, defendant had prior
record of violence and disregard for the law, and there was a dearth of mitigating
evidence.
1

____________________

1
OPINION
Per Curiam:
Appellant Steven Kaczmarek was charged, tried before a jury, and found guilty of
burglary, robbery, first-degree kidnapping, and first-degree murder, all committed with the
assistance of a child. At the conclusion of the penalty phase, the jury returned a verdict of
death for the murder.
Kaczmarek appeals, arguing first that police detectives violated his rights under the
Fifth and Sixth Amendments of the United States Constitution by interviewing him regarding
the instant crimes while he was incarcerated for unrelated charges and, second, that the
district court erred during jury selection by denying his objections to the State's peremptory
challenges of four non-Caucasian prospective jurors. We conclude that Kaczmarek is not
entitled to relief on these claims. Related to his death sentence, Kaczmarek argues that the
district court erred during the penalty phase by excluding the testimony of the victim's
daughter regarding her opposition to the death penalty in this case. We disagree. Accordingly,
we affirm Kaczmarek's judgment of conviction and sentence of death.
FACTS
The State's evidence during the guilt phase of trial showed that the victim, Pedro
Villareal, lived alone in an apartment unit in Las Vegas. He was last seen at his apartment
complex on the morning of September 25, 2002. On September 26 and 27, the complex
suffered from a worsening shortage of hot water. On September 27, employees of the
complex began checking the apartment units for leaks. When they entered Villareal's unit,
they discovered his dead body in the bathtub and summoned police.
Villareal's body was found tilted facedown into the bathtub, with the hands and wrists
bound from behind by an extension cord, the legs bound with a cut electrical cord, and a
pillowcase over the head. It was clad only with pants that had one pocket turned inside out.
Water was up to the sides of the body and was still pouring from the showerhead over the
body and out of the tub. The apartment unit was in general disarray. No money or wallet
could be found, but police recovered various items of evidentiary value, including cigarette
butts. Villareal's daughter reported that her father's VCR and gold bracelet were missing from
the apartment.
A pathologist autopsied Villareal's body on September 28, 2002, and found that the
body bore a number of injuries but no defensive wounds. The pillowcase that covered the
head was still wet. A blood-soaked, ankle-length, cotton athletic sock was recovered from
the mouth.
blood-soaked, ankle-length, cotton athletic sock was recovered from the mouth. Villareal had
likely been dead for at least thirty-six hours prior to autopsy, and the cause of death was
asphyxia from a homicide that involved suffocation, strangulation, and drowning.
Police had no leads in the murder until October 21, 2002. On that date, an inmate at
the Clark County Detention Center (CCDC), where thirty-two-year-old Kaczmarek was also
incarcerated for charges unrelated to the crimes against Villareal, contacted Las Vegas
Metropolitan Police Department (LVMPD) detectives. The inmate relayed to detectives
Kaczmarek's admissions to a killing that matched the known facts surrounding Villareal's
death. Based on this new lead, detectives ran Kaczmarek's name through LVMPD's pawn
detail and determined that he had pawned a VCR and gold bracelet at a local pawnshop. On
October 23, 2002, police recovered from the pawnshop Villareal's VCR and bracelet and a
receipt bearing the signature Steven Kaczmarek and indicating that the items were pawned
during the late evening of September 25, 2002. An employee of the pawnshop, who testified
at trial, identified Kaczmarek as having pawned the items. A document examiner compared
Kaczmarek's known handwriting and the signature on the pawnshop ticket and found it highly
probable that Kaczmarek had signed the ticket.
Meanwhile, a second inmate with whom Kaczmarek was incarcerated at CCDC also
contacted LVMPD and told detectives that Kaczmarek admitted to killing a man. The
description of this killing, as relayed by the second inmate, also proved consistent with the
known facts surrounding the Villareal homicide.
On October 29, 2002, detectives approached Kaczmarek while he remained in custody
on the unrelated charges, and he agreed to give a recorded statement. Kaczmarek told
detectives that he and his girlfriend, Alisha, a fifteen-year-old foster child from Ohio, had
been living on the streets with Alisha begging for money to support them. The two of them,
along with a man named Tommy, met Villareal, who invited them to his home to watch
videotapes, drink beer, and stay overnight. Kaczmarek thought that he and his accomplices
would beat up Villareal and take his money. At Villareal's apartment, Kaczmarek saw that
Villareal had thirty dollars and then attacked Villareal by choking him and causing him to
lose consciousness. Kaczmarek, Alisha, and Tommy took turns choking Villareal. Kaczmarek
then stood on Villareal's back and used an electrical cord to bind his feet. Kaczmarek told
Alisha to cut a cord from a fan, and they used this cord to bind Villareal's hands. Kaczmarek
and Tommy then put Villareal facedown in the bathtub. Kaczmarek, concerned that he had
left DNA evidence by dripping sweat, cut off and removed Villareal's shirt.
Villareal's shirt. Next, Kaczmarek put a sock in Villareal's mouth and a pillowcase over his
head, turned the showerhead on, and shut the bathroom door. Kaczmarek admitted to taking
from the apartment Villareal's VCR, gold bracelet, wallet, twenty dollars in cash, a ten-dollar
roll of quarters, and miscellaneous items of personal property. At the pawnshop, Kaczmarek
received forty dollars for the bracelet and VCR.
Subsequent scientific analysis of a cigarette butt recovered from Villareal's apartment
was consistent with Kaczmarek having left his DNA on the butt.
Kaczmarek testified as the only defense witness during the guilt phase. He again
admitted to planning a robbery, conspiring with Alisha to rob Villareal before entering his
apartment, choking Villareal and causing him to pass out, tying him up with electrical cords,
putting the sock in his mouth and the pillowcase over his head, leaving him facedown in the
tub with the showerhead on, and taking and pawning his personal property. He departed from
his earlier statements, however, by claiming that Tommy was a fictional character created
by detectives and by placing more of the blame on Alisha for initiating and directing the
physical attack on Villareal. Kaczmarek testified that he pretty much just did whatever
[Alisha] wanted to do but he never intended to kill Villareal.
On cross-examination, Kaczmarek admitted that he had Illinois convictions for 1988
crimes, including two felony counts of aggravated criminal sexual assault, one felony count
of home invasion, and one felony count of armed robbery. He also admitted to an Ohio
conviction for a 1996 felony aggravated burglary.
During the penalty phase, the State presented victim impact evidence from Villareal's
fifteen-year-old daughter, Amanda, who testified regarding Villareal's personal characteristics
and the impact the loss of his life had on her.
The State also presented evidence on Kaczmarek's prior convictions and parole status.
First, the victim of the crimes leading to Kaczmarek's Illinois convictions testified that
Kaczmarek entered her home uninvited, threatened to kill her while armed with a knife,
sexually assaulted her orally and vaginally while still armed with the knife, and led her about
her home to get her personal belongings. Ultimately, Kaczmarek stuck a bunch of toilet
paper inside her mouth so she could not talk, tied a pillowcase around her mouth and head as
a gag, and took her to the basement where he used an electrical extension cord to bind her
hands, feet, and head and to tie her to a pipe. After Kaczmarek ripped out the victim's
telephone line and left in her car, she freed herself and summoned police assistance. A police
officer testified that Kaczmarek was arrested after a foot chase and admitted to entering the
victim's house with intent to rob her, robbing her, and sexually assaulting her.
saulting her. Kaczmarek later pleaded guilty to two counts of aggravated sexual assault, one
count of home invasion, and one count of armed robbery. In February 1989, he was sentenced
to concurrent prison terms of fifteen years on each count. Certified copies of related court
documents and the judgment of conviction were admitted into evidence.
Second, the victim in the case leading to Kaczmarek's Ohio conviction testified
regarding the burglary of his home, which involved property destruction as well as the taking
of personal property, including a safe that contained a large amount of money. An Ohio
detective testified that Kaczmarek was out on parole for his Illinois convictions when arrested
for the Ohio burglary. Kaczmarek ultimately pleaded guilty to aggravated burglary. In
December 1996, he was sentenced to five to fifteen years in the Ohio penitentiary. A certified
copy of the judgment of conviction and Kaczmarek's written confession were admitted into
evidence.
Third, an Ohio parole officer testified that Kaczmarek was released on parole from his
Ohio sentence in September 2000, but was sent back to Illinois for parole revocation
proceedings. He served approximately fifteen months in Illinois and was released in
December 2001. He remained on Ohio parole, but did not report back to Ohio as required
until July 2002, after parole authorities learned that he had been taken into custody in May
2002 for committing a theft at a Kmart. Kaczmarek was allowed to continue on parole with
special conditions, including having no contact with other felons or children under the age of
eighteen years and having no use of or control over alcohol. In August 2002, Kaczmarek's
parole officer visited the home of another parolee and found Kaczmarek present with the
underage Alisha and in violation of the alcohol condition of his parole. Kaczmarek failed to
attend his next scheduled meeting with his parole officer and failed to report for a sex
offender assessment. On September 17, 2002, Kaczmarek's family informed the authorities
that Kaczmarek had not been seen for weeks and that Alisha and a car were missing from the
home of Alisha's foster parents. Parole authorities declared Kaczmarek a violator at large.
During the defense case, Kaczmarek's counsel read to the jury Kaczmarek's mother's
written statement wherein she begged for her son's life to be spared and expressed her sorrow,
her love for him, and her belief that he intended to rob, but not kill, Villareal.
Kaczmarek made an unsworn statement to the jury. He expressed remorse and
apologized for what he had done and the pain he caused. He stated that he did not mean to
kill Villareal and was not the type of person who would kill. He also spoke of his own
emotional suffering while incarcerated, his history of taking responsibility for his actions, and
his youth in Chicago, where he apparently fell in with the wrong people.
parently fell in with the wrong people. He described himself as a follower, but also a good
and caring person. He claimed that his current circumstances resulted from being too caring
and making the wrong decisions. He told the jury that he had a new son, whom he had never
seen, and that he wanted to be a father to his son. He explained that he grew up with
stepfathers who physically abused his mother and him. Finally, he begged the jurors to spare
his life and asked for forgiveness.
The jury returned a special verdict finding that the State proved beyond a reasonable
doubt three of four alleged aggravating circumstances: (1) the murder was committed by a
person under a sentence of imprisonment, (2) the murder was committed by a person who has
previously been convicted of a felony involving the use or threat of violence, and (3) the
murder was committed during the commission of a robbery and/or for monetary gain. The
jury also returned a special verdict finding as the only mitigating circumstance the
possibility of a less than ideal upbringing and/or family life. Finally, the jury found that the
aggravating circumstances outweighed the mitigating circumstance and imposed a sentence
of death.
On June 3, 2003, the district court entered its judgment of conviction sentencing
Kaczmarek as follows: for burglary with the assistance of a child, two consecutive terms of
imprisonment for a minimum of 36 months and a maximum of 120 months; for robbery with
the assistance of a child, two consecutive terms of imprisonment for a minimum of 36 months
and a maximum of 156 months; for first-degree kidnapping with the assistance of a child, two
consecutive terms of imprisonment for life with the possibility of parole after five years; and
for first-degree murder with the assistance of a child, the penalty of death.
DISCUSSION
Alleged violations of the Fifth and Sixth Amendment rights to counsel
Relying solely on the transcript of his preliminary hearing, Kaczmarek argues that his
Fifth and Sixth Amendment rights were violated when detectives interviewed him at CCDC.
We conclude that Kaczmarek is not entitled to relief on these claims.
At the preliminary hearing, Detective Robert Wilson testified that when he and his
partner first met with Kaczmarek at CCDC, Wilson's partner advised Kaczmarek of his rights
under Miranda v. Arizona.
2
Wilson testified that Kaczmarek responded, saying
that he wanted to talk to us. He said his attorney was coming this afternoon and
wondered if we can talk to him then. We told him we are here now, and we want to
talk to you, and we are busy in the afternoon, and if you want to talk to us, you can
talk to us now.
____________________

2
384 U.S. 436 (1966).
told him we are here now, and we want to talk to you, and we are busy in the afternoon,
and if you want to talk to us, you can talk to us now.
Kaczmarek then said he would talk to detectives, and detectives readmonished him of his
Miranda rights by reading those aloud. Kaczmarek signed a written admonishment card and
gave the recorded statement implicating himself in the crimes against Villareal.
At the conclusion of the preliminary hearing, Kaczmarek's counsel orally moved to
suppress his statement. Counsel alleged a violation of Kaczmarek's Sixth Amendment right to
counsel stemming from the facts that, at the time of the CCDC interview, Kaczmarek was in
custody and represented by counsel for formal criminal charges in an unrelated case. The
State responded to Kaczmarek's motion by noting that the issue involved both the Fifth and
Sixth Amendment rights to counsel and then arguing that neither right had been violated. The
justice court denied Kaczmarek's motion.
Kaczmarek next filed in the district court a written pretrial motion to suppress his
statement to detectives. Though Kaczmarek nominally cited to the Fifth Amendment, his
argument was aimed at showing a violation of the Sixth Amendment right to counsel.
Kaczmarek argued that his right to counsel must have been violated by the police interview at
CCDC because he clearly requested counsel and, at the time of the interview, he had
appointed counsel and stood formally charged and was in custody on another criminal case.
The district court heard argument, found that Kaczmarek's right to counsel in this case had
not attached at the time of the interview, and entered a written order summarily denying his
motion.
At trial, Detective Wilson provided additional testimony regarding the interview at
CCDC. He stated that he and his partner first took Kaczmarek to a private room but did not
make him promises, threaten him, or coerce him. Once Kaczmarek agreed to talk to them,
they did not coax him or encourage him regarding what to say during the recorded interview.
They began recording the interview, and Detective Wilson's partner read aloud to Kaczmarek
the Miranda rights admonishment card, which stated:
1. You have the right to remain silent. 2. Anything you say can be used against you in
a court of law. 3. You have the right to the presence of an attorney. 4. If you cannot
afford an attorney, one will be appointed before questioning. 5. Do you understand
these rights?
Kaczmarek verbally indicated that he understood his rights, and he read and signed the
admonishment card. Kaczmarek then confessed.
Kaczmarek did not renew his motion to suppress based on Detective Wilson's trial
testimony. The audiotapes of the recorded interview were admitted into evidence at trial and
reflect that the interview lasted for one hour and ten minutes, during which Kaczmarek spoke
freely about the crimes without referring to counsel or indicating any desire to stop the
interview.
[Headnotes 1-3]
On appeal, Kaczmarek again bases his arguments almost entirely on the Sixth
Amendment. This amendment provides that [i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defence.
3
The Sixth
Amendment right to counsel, which applies to the states by way of the Fourteenth
Amendment's Due Process Clause,
4
prevents admission at trial of a defendant's statements
which police have deliberately elicited after the right has attached and without obtaining a
waiver or providing counsel.
5
Once a defendant invokes the Sixth Amendment right to
counsel, the government must cease further attempts to obtain his statements until he has
been provided counsel, unless he initiates the conversation and waives his rights.
6

[Headnotes 4-7]
However, the Sixth Amendment right to counsel does not even attach in a case until
adversarial proceedings have commenced in that case whether by way of formal charge,
preliminary hearing, indictment, information or arraignment. '
7
The right cannot be
invoked once for all future prosecutions.
8

The police have an interest . . . in investigating new or additional crimes [after an
individual is formally charged with one crime.] . . . [T]o exclude evidence pertaining to
charges as to which the Sixth Amendment right to counsel had not attached at the time
the evidence was obtained, simply because other charges were pending at that time,
would unnecessarily frustrate the public's interest in the investigation of criminal
activities . . . .
____________________

3
U.S. Const. amend. VI.

4
See Simmons v. State, 112 Nev. 91, 98, 912 P.2d 217, 221 (1996).

5
Fellers v. United States, 540 U.S. 519, 523 (2004); Patterson v. Illinois, 487 U.S. 285 (1988); Massiah v.
United States, 377 U.S. 201, 206-07 (1964).

6
Patterson, 487 U.S. at 291; McNeil v. Wisconsin, 501 U.S. 171, 175 (1991); Michigan v. Jackson, 475 U.S.
625, 635-36 (1986).

7
Fellers, 540 U.S. at 523 (quoting Brewer v. Williams, 430 U.S. 387, 398 (1977) (quoting Kirby v. Illinois,
406 U.S. 682, 689 (1972))); Davis v. United States, 512 U.S. 452, 456-57 (1994); Estelle v. Smith, 451 U.S.
454, 469-70 (1981); Coleman v. State, 109 Nev. 1, 4, 846 P.2d 276, 278 (1993).

8
McNeil, 501 U.S. at 175.
Incriminating statements pertaining to other crimes, as to which the Sixth
Amendment right has not yet attached, are, of course, admissible at a trial of those
offenses.
9

Thus, the offense-specific Sixth Amendment right does not require suppression of statements
deliberately elicited during a criminal investigation merely because the right has attached and
been invoked in an unrelated case.
10

We conclude that the district court correctly determined that Kaczmarek's Sixth
Amendment right to counsel did not prevent detectives from initiating the interview at
CCDC. It is undisputed that Kaczmarek had a Sixth Amendment right to counsel which he
had invoked in the unrelated case. But he does not contend that formal prosecution had
commenced for his crimes against Villareal. Accordingly, when detectives interviewed
Kaczmarek, the Sixth Amendment right had not yet attached in this case and did not prohibit
the State from using Kaczmarek's statement at trial.
Kaczmarek nevertheless asserts that under Escobedo v. Illinois,
11
attachment (and,
apparently, invocation) of the Sixth Amendment right must be presumed to prohibit officers
from initiating an interview of a defendant in custody if they are investigating any crime of
which that defendant is suspected. In Escobedo, the United States Supreme Court held that
the defendant's Sixth Amendment right to counsel was violated when he was subjected to
custodial interrogation, requested and was refused counsel, and was not effectively warned of
his right to remain silent.
12
However, the Court later limited Escobedo to its own facts after
determining, in retrospect, that Escobedo was not a Sixth Amendment right to counsel case
but, instead, was intended to effectuate the Fifth Amendment privilege against
self-incrimination.
13
Kaczmarek's case presents no facts similar to those that concerned the
Court in Escobedo.
[Headnotes 8-11]
Next, we consider Kaczmarek's conclusory claim that his Fifth Amendment rights
were violated by the State's use of his confession at trial. Kaczmarek fails to set forth
argument to specifically support this claim. But within the context of his Sixth Amendment
right to counsel claim, he argues that the preliminary hearing testimony of Detective
Wilson shows that Kaczmarek clearly requested counsel.
____________________

9
Id. at 175-76 (quoting Maine v. Moulton, 474 U.S. 159, 179-80 & n.16 (1985)) (alteration in original).

10
See id. at 175 (citing United States v. Gouveia, 467 U.S. 180, 188 (1984)); Clabourne v. Lewis, 64 F.3d
1373, 1378 (9th Cir. 1995).

11
378 U.S. 478 (1964).

12
Id. at 490-91.

13
See Kirby, 406 U.S. at 689 (plurality opinion); Johnson v. New Jersey, 384 U.S. 719, 729, 733-34 (1966);
see also Barone v. State, 109 Nev. 1168, 1170, 866 P.2d 291, 292 (1993).
Amendment right to counsel claim, he argues that the preliminary hearing testimony of
Detective Wilson shows that Kaczmarek clearly requested counsel.
14
To the extent that
Kaczmarek raised this argument below, the court rejected it, and that determination will not
be disturbed on appeal if supported by substantial evidence.
15
Additionally, Kaczmarek
failed to adequately preserve below and fails to adequately assert on appeal the issue of
whether his Fifth Amendment or Miranda right to counsel has been violated. However,
because the question is an important one and the State has briefed the issue, plain error
review is warranted. Thus, we consider whether there was error, that was plain, and that
affected the defendant's substantial rights.
16
On the record here, we conclude that substantial
evidence supports a determination that Kaczmarek did not invoke his Miranda right to
counsel when detectives approached him. Therefore, the district court did not err in admitting
Kaczmarek's statement into evidence at trial.
[Headnotes 12-14]
The Fifth Amendment of the Federal Constitution states, No person . . . shall be
compelled in any criminal case to be a witness against himself.
17
The Fourteenth
Amendment makes this privilege against self-incrimination binding upon the States.
18
In
Miranda, the United States Supreme Court established a prophylactic right to have counsel
present during custodial interrogations.
19
In Edwards v. Arizona,
20
the Court established a
rule for this Miranda right to counsel.
21
Pursuant to Edwards, once a suspect has
"expressed his desire to deal with the police only through counsel," not only must the
current interrogation cease, but he may not be approached for further interrogation "until
counsel has been made available to him.
____________________

14
Kaczmarek ignores Detective Wilson's direct-examination testimony, quoted supra, and relies on the
following defense cross-examination:
Q. As a matter of fact, when you first met with him, he said he wanted to wait until his counsel got there,
but you said, well, we are here now. We are busy this afternoon. Do you want to talk to us now or not?
A. In essence, yes.
To whatever extent this summation by defense counsel recasts the detective's direct-examination testimony, the
district court was free to reject it in favor of the direct testimony.

15
Tomarchio v. State, 99 Nev. 572, 575, 665 P.2d 804, 806 (1983).

16
Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003); Leonard v. State, 117 Nev. 53, 63, 17 P.3d 397,
403-04 (2001); NRS 178.602 (Plain errors or defects affecting substantial rights may be noticed although they
were not brought to the attention of the court.).

17
U.S. Const. amend. V.

18
Malloy v. Hogan, 378 U.S. 1 (1964).

19

20
451 U.S. 477 (1981).

21
McNeil, 501 U.S. at 176-77.
pect has expressed his desire to deal with the police only through counsel, not only must
the current interrogation cease, but he may not be approached for further interrogation until
counsel has been made available to him.
22
If police later initiate an encounter in the absence
of counsel and there has been no break in custody, the suspect's statements are presumed
involuntary and therefore inadmissible as substantive evidence at trial, even where the
suspect executes a waiver and his statements would be considered voluntary under traditional
standards.
23
The Edwards rule is not offense specific and bars police-initiated
interrogations related to any offense once a suspect has invoked the Miranda right to counsel
regarding one offense.
24
However, suppression under Edwards requires a court to
determine whether the accused actually invoked his right to counsel.'
25

Kaczmarek does not claim that he specifically invoked his Miranda right to have
counsel present during any questioning related to his other case. Therefore, any Fifth
Amendment claim must depend on whether he invoked the Miranda right to counsel when
approached by detectives at CCDC.
In Davis v. United States,
26
the United States Supreme Court explained that to
invoke the Miranda right to counsel and trigger the Edwards exclusionary rule, the suspect
must unambiguously request counsel.
27
The Court held that when a suspect refers to
counsel ambiguously or equivocally, such that a reasonable police officer in the
circumstances would understand only that the suspect might be invoking the right to
counsel, police are not required to ask clarifying questions and may continue with
questioning.
28
Applying this rule in Davis, the Court upheld lower court rulings that the
defendant's statementMaybe I should talk to a lawyermade during an interview that
followed his receipt of a rights admonishment, did not constitute an assertion of the Miranda
right to counsel and cessation of questioning was not required.
29

In Harte v. State,
30
we adopted the analysis in Davis. We apply this analysis here to
determine whether Kaczmarek's rights were violated by detectives' questioning following
his initial statement referring to counsel, as paraphrased by Detective Wilson at the
preliminary hearing: "He said that he wanted to talk to us.
____________________

22
Edwards, 451 U.S. at 484-85; McNeil, 501 U.S. at 176-77.

23

24
Id. at 177; Arizona v. Roberson, 486 U.S. 675, 680-88 (1988); Boehm v. State, 113 Nev. 910, 914, 944
P.2d 269, 272 (1997).

25
Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.) (quoting Smith v. Illinois, 469 U.S. 91, 95 (1984)), cert.
denied, 540 U.S. 968 (2003).

26
512 U.S. 452.

27
Id. at 459.

28
Id. at 459, 461-62.

29
Id. at 462.

30
116 Nev. 1054, 1065-67, 13 P.3d 420, 427-29 (2000).
violated by detectives' questioning following his initial statement referring to counsel, as
paraphrased by Detective Wilson at the preliminary hearing: He said that he wanted to talk
to us. He said his attorney was coming this afternoon and wondered if we can talk to him
then.
[Headnote 15]
We have compared Kaczmarek's reference to counsel to the reference to counsel in
Davis and such references in other cases which we and other courts have determined to be
ambiguous or equivocal
31
or, conversely, clear requests for counsel.
32
From this
comparison, we have no difficulty in concluding that Kaczmarek's reference did not
constitute an invocation of his Miranda right to counsel. Davis set forth a bright-line standard
under which a statement referring to counsel either is . . . an assertion of the right to
counsel or it is not.'
33
The word attorney' has no talismanic qualities. A defendant does
not invoke his right to counsel any time the word falls from his lips.
34
The record here
shows that Kaczmarek was thirty-two years old and experienced in the criminal justice
system. Further, he received verbal Miranda warnings prior to his reference to counsel. This
reference was so ambiguous that reasonable officers in the circumstances of Detective
Wilson and his partner would have only understood that Kaczmarek "might be invoking
the right to counsel.
____________________

31
See, e.g., Davis, 512 U.S. at 462; Harte, 116 Nev. at 1067-68, 13 P.3d at 429 (upholding trial court's
ruling that defendant failed to invoke right to counsel when he stated after receipt of Miranda warnings, Just
out of curiosity, when do I get to talk to a lawyer? . . . [T]hey told me, you know, that they thought I should talk
to a lawyer or whatever, and, after being reminded of his rights and continuing with the interview, stated, I
don't wanna be a bitch and say, you know, give my [sic] lawyer. But I mean. . . . What do you think a lawyer
would tell me right now?); Clark, 331 F.3d at 1064-65, 1070-72 (concluding on habeas review that state court
did not unreasonably apply clearly established federal law in determining defendant's statementI think I
would like to talk to a lawyerwhich was given after receipt and acknowledgement of Miranda rights warning,
was ambiguous); Ledbetter v. Edwards, 35 F.3d 1062, 1069-70 (6th Cir. 1994) (concluding that defendant's
statementIt would be nice [to have an attorney]made after receipt of multiple Miranda warnings, was too
ambiguous to invoke right to counsel). See generally Soffar v. Cockrell, 300 F.3d 588, 595 (5th Cir. 2002) (and
cases cited therein).

32
See, e.g., Smith, 469 U.S. at 92-93 (determining that defendant unambiguously requested counsel where he
stated after Miranda warnings, Uh, yeah. I'd like to do that [consult with a lawyer and have a lawyer
present].); Allan v. State, 118 Nev. 19, 24, 38 P.3d 175, 178 (2002) (stating that defendant made an
unequivocal request for counsel when he stated during rights advisement, I don't want to say a word anyway, I
want to see my lawyer.); U.S. v. Cheely, 36 F.3d 1439, 1448 (9th Cir. 1994) (concluding that unequivocal
request for counsel was made where defendant refused to sign waiver and stated, [M]y attorney does not want
me to talk to you.).

33
Davis, 512 U.S. at 459 (quoting Smith, 469 U.S. at 97-98); Soffar, 300 F.3d at 595.

34
United States v. Jardina, 747 F.2d 945, 949 (5th Cir. 1984).
cumstances of Detective Wilson and his partner would have only understood that Kaczmarek
might be invoking the right to counsel.
35
Thus, substantial evidence demonstrates that
Kaczmarek did not invoke the Miranda right to counsel by his reference to counsel.
[Headnote 16]
We further conclude that the evidence sufficiently demonstrates that Kaczmarek
knowingly and intelligently waived his Miranda rights.
36
Prior to giving the statement
regarding his crimes against Villareal, Kaczmarek was readmonished verbally and indicated
that he understood his rights. He read and signed an admonishment card. Though Kaczmarek
knew that detectives were not willing to accommodate his desire to talk to him in the
afternoon, when counsel for his other case would be at CCDC, he also knew that he could get
an attorney appointed for questioning and that he did not have to speak with detectives. He
was not coerced or threatened into waiving his rights, and he seemed eager to talk with
detectives. After giving his waiver, he did not refer to counsel again or ask to stop the
interview. He remained calm and spoke freely throughout the relatively short interview. Thus,
Kaczmarek's statement was admissible.
[Headnotes 17, 18]
Finally, even assuming error in admitting the challenged statement into evidence at
trial, Kaczmarek does not show the requisite prejudice.
37
First, the statement was largely
cumulative to Kaczmarek's own trial testimony. Second, statements made in violation of
Miranda but otherwise trustworthy are admissible to impeach the trial testimony of
defendants who elect to testify.
38
Thus, to the extent that Kaczmarek's statement differed
from his trial testimony with respect to the allegations of participation by Tommy and the
degree of responsibility Kaczmarek accepted, it would have been admissible for
impeachment. Third, in addition to Kaczmarek's own damning testimony, other powerful
evidence of his guilt was properly admitted. Kaczmarek's former fellow inmates detailed his
repeated admissions to a killing with circumstances similar to the unique circumstances
surrounding the Villareal homicide. Scientific evidence showed that DNA consistent with
Kaczmarek's own was deposited on a cigarette butt recovered from the crime scene. Other
evidence proved that Kaczmarek pawned Villareal's property during the evening of the same
day Villareal was last seen alive and near the time of his death.
____________________

35
Davis, 512 U.S. at 459, 461-62.

36
Falcon v. State, 110 Nev. 530, 534, 874 P.2d 772, 775 (1994) (setting forth standard for determining valid
waiver of Miranda rights).

37
Cf. Green, 119 Nev. at 545, 80 P.3d at 95.

38
See Harris v. New York, 401 U.S. 222 (1971); Johnson v. State, 92 Nev. 405, 551 P.2d 241 (1976).
Villareal was last seen alive and near the time of his death. Our review has left us convinced
that any error could not have constituted reversible error under the plain error standard;
39
indeed, it would have even been harmless beyond a reasonable doubt had Kaczmarek
objected.
40

The district court's overruling of Kaczmarek's Batson objections
Kaczmarek argues that the district court erred in overruling his objections pursuant to
Batson v. Kentucky,
41
challenging the State's use of four of its eight peremptory challenges
to remove members of minority population groups. Kaczmarek states that the pattern and
practice of the prosecution was to remove any death penalty skeptics,' i.e., prospective jurors
from minority groups who are less likely to impose the death penalty.
42

[Headnote 19]
Under the equal protection analysis set forth in Batson, once the opponent of a
peremptory challenge makes a prima facie case of racial discrimination (step one), the burden
of production shifts to the proponent of the strike to give a race-neutral explanation (step
two).
43
If such an explanation is given, then the trial court must decide (step three) whether
the opponent has proved purposeful racial discrimination.
44
Here, without waiting for a
ruling on Kaczmarek's objections, the prosecutor offered reasons for excusing the jurors in
question, and the district court overruled Kaczmarek's objection. Therefore, whether
Kaczmarek made out a prima facie case (step one) is moot.
45

____________________

39
See Green, 119 Nev. at 545, 80 P.3d at 95.

40
See Milton v. Wainwright, 407 U.S. 371 (1972) (applying harmless-error analysis of Chapman v.
California, 386 U.S. 18 (1967), to alleged Sixth Amendment right to counsel violation).

41
476 U.S. 79 (1986).

42
Kaczmarek also claims in his brief on appeal, as he did in the district court, that no minority group
members served on the jury ultimately empaneled. However, at the time of the Batson hearing, the State
corrected this assertion, without further comment from the court or Kaczmarek, by asserting that two members of
minority groups remained on the empaneled jury. The State reasserts this correction on appeal, again without
contradiction from Kaczmarek. Because the district court made no factual finding on the issue, we are left with
conflicting assertions by the parties. In this instance, resolution of the conflict is unnecessary to our
determination on appeal. However, we caution the parties that where disputed factual matters can be readily
resolved in the trial court, it is usually vital that the parties seek an appropriate ruling from the trial court to
establish an adequate record for appeal.

43
Purkett v. Elem, 514 U.S. 765, 767 (1995).

44
Id.

45
See Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality opinion); accord Grant v. State, 117
Nev. 427, 434, 24 P.3d 761, 766 (2001); Thomas
[Headnote 20]
Nevertheless, we address an unsound argument made by the State regarding this step.
The State relies on language from our opinion in Doyle v. State,
46
which in turn relied on
Batson and stated that [t]o establish a prima facie case, the defendant first must show that he
is a member of a cognizable racial group and that the prosecutor has exercised peremptory
challenges to remove from the venire members of the defendant's race. The State suggests
that pursuant to Doyle, Kaczmarek did not make a prima facie case [s]ince none of the
[challenged] jurors were the same race as [Kaczmarek]. However, Doyle overlooked the
progress of federal constitutional law holding that a defendant need not belong to the same
group as the prospective jurors in order to challenge their exclusion on grounds of
discrimination and specifically disavowing Batson's requirement of racial identification
between the defendant and excused jurors.
47
Accordingly, we hereby overrule Doyle's prima
facie test to the extent it requires similar racial identification.
[Headnotes 21-24]
The second Batson step does not demand an explanation that is persuasive, or even
plausible.
48
Unless a discriminatory intent is inherent in the prosecutor's explanation, the
reason offered will be deemed race neutral.
49
In this case, the prosecutor explained his
reasoning for the peremptory challenges as follows. The first prospective juror stated during
voir dire that he did not believe robbery was a serious crime and voiced hesitation about
whether he could consider the death penalty. The second and third potential jurors each
voiced serious reservations about the validity of the death penalty. The fourth prospective
juror indicated, to the prosecutor's surprise, that he had no position on the death penalty even
though he had written papers on the subject; the juror continually watched Kaczmarek
throughout the proceedings; and the juror's youth and resulting lack of life experience left him
at a disadvantage to make the difficult life and death decision. None of these reasons indicate
an intent to discriminate, and therefore each is sufficient to satisfy the State's burden under
step two.
[Headnotes 25, 26]
We now turn to the third step in the Batson analysis, in which the persuasiveness of
the explanation becomes relevant and the trial court must determine whether the opponent
of the peremptory challenge has carried his burden of proving purposeful discrimination.
____________________
v. State, 114 Nev. 1127, 1137, 967 P.2d 1111, 1118 (1998); Doyle v. State, 112 Nev. 879, 888, 921 P.2d 901,
907 (1996).

46
112 Nev. at 887, 921 P.2d at 907 (citing Batson, 476 U.S. at 96).

47
See Powers v. Ohio, 499 U.S. 400, 416 (1991).

48
Elem, 514 U.S. at 768.

49
Hernandez, 500 U.S. at 360 (plurality opinion).
court must determine whether the opponent of the peremptory challenge has carried his
burden of proving purposeful discrimination.
50
At [this] stage, implausible or fantastic
justifications may (and probably will) be found to be pretexts for purposeful discrimination.
51
[T]he issue comes down to whether the trial court finds the prosecutor's race-neutral
explanations to be credible.
52
Because the trial court's findings on the issue of
discriminatory intent largely turn on evaluations of credibility, they are entitled to great
deference
53
and will not be overturned unless clearly erroneous.
54

[Headnotes 27, 28]
The district court denied Kaczmarek's Batson objection, summarily stating, I think
sufficient evidence has been adduced by the State to overcome the shift. We have directed
Nevada's district courts to clearly spell out the three-step analysis when deciding
Batson-type issues.
55
At the third step, especially, an adequate discussion of the district
court's reasoning may be critical to our ability to assess the district court's resolution of any
conflict in the evidence regarding pretext.
56
The court should evaluate all the evidence
introduced by each side on the issue of whether race was the real reason for the challenge and
then address whether the defendant has met his burden of persuasion.
57
Nonetheless, from
the record in this appeal, we conclude that we may properly defer to the district court's
determination on the issue of purposeful discrimination.
58

[Headnotes 29-31]
The prosecutor's reasons for the challenges in question are for the most part supported by the
voir dire transcript.
59
We discern no evidence of disparate questioning of the challenged
prospective jurors.
____________________

50
Elem, 514 U.S. at 768.

51
Id.

52
Miller-El v. Cockrell, 537 U.S. 322, 339 (2003).

53
Id.; Thomas, 114 Nev. at 1137, 967 P.2d at 1118; Doyle, 112 Nev. at 889-90, 921 P.2d at 908.

54
Libby v. State, 115 Nev. 45, 55, 975 P.2d 833, 839 (1999) (citing Hernandez, 500 U.S. at 369 (plurality
opinion)).

55
Id. at 54, 975 P.2d at 839.

56
See Miller-El, 537 U.S. at 347 (addressing Batson claim and stating, We adhere to the proposition that a
state court need not make detailed findings addressing all the evidence before it. This failure, however, does not
diminish [the evidence's] significance.).

57
See Riley v. Taylor, 277 F.3d 261, 286 (3d Cir. 2001); see also Clem v. State, 104 Nev. 351, 356, 760
P.2d 103, 106 (1988), overruled on other grounds by Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990).

58
See Libby, 115 Nev. at 54, 975 P.2d at 838-39.

59
Whether the prosecutor correctly represented the fourth prospective juror's age and tendency to watch
Kaczmarek cannot be determined from the record in this appeal.
evidence of disparate questioning of the challenged prospective jurors. The record does not
indicate that the State's asserted motives for the challenges were unequally applied to these
jurors. Moreover, the prosecutor's reliance on the jurors' reservations about the death penalty
does not by itself prove an intent to discriminate; hesitance to impose the death penalty is a
permissible and race-neutral reason for exclusion.
60
Furthermore, the use of peremptory
challenges will not be held unconstitutional solely because it results in a racially
disproportionate impact. . . . Proof of racially discriminatory intent or purpose is required . . .
.'
61
We conclude that Kaczmarek has failed to demonstrate error in the district court's
ruling.
Exclusion of the victim's daughter's opinion on the death penalty
[Headnote 32]
Before the State presented at the penalty phase the testimony of the victim's daughter
Amanda, defense counsel informed the district court that Kaczmarek intended to elicit
testimony from Amanda regarding her opposition to a death penalty for Kaczmarek. The
district court ruled that Amanda's opinion on sentencing would be excluded. Kaczmarek
argues that the district court's ruling violated his constitutional rights to confront witnesses
and to present evidence in his defense. We conclude that his contentions lack merit.
[Headnotes 33, 34]
The Sixth Amendment right to confront and cross-examine witnesses is applicable to
the states through the Fourteenth Amendment's Due Process Clause.
62
Under the Sixth
Amendment, a cross-examiner must be permitted to delve into a witness's stories to test
perceptions and memory and to impeach the witness.
63
But a district court retains wide
discretion to limit cross-examination based on considerations such as harassment, prejudice,
confusion of the issues, and relevancy.
64
Here, Amanda's direct testimony was limited to
the subject of her father's personal characteristics and the impact that his death had on
her.
____________________

60
See Miller-El, 537 U.S. at 343; Thomas, 114 Nev. at 1137, 967 P.2d at 1118; Browning v. State, 104 Nev.
269, 272, 757 P.2d 351, 353 (1988); see also Leonard v. State, 114 Nev. 1196, 1205, 969 P.2d 288, 294 (1998)
(and cases cited therein).

61
Hernandez, 500 U.S. at 359-60, 361-63 (plurality opinion) (quoting Arlington Heights v. Metropolitan
Housing Corp., 429 U.S. 252, 264-65 (1977)); see also Doyle, 112 Nev. at 890-91, 921 P.2d at 909.

62
See U.S. Const. amends. VI, XIV; Delaware v. Fensterer, 474 U.S. 15, 19 (1985); Barber v. Page, 390
U.S. 719, 721 (1968).

63
See Fensterer, 474 U.S. at 19; see also NRS 50.115(2) (generally limiting cross-examination to subject
matter of direct examination and matters affecting witness's credibility).

64
See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986), cited in Leonard, 117 Nev. at 72, 17 P.3d at 409;
see also Dyer v. State, 99 Nev. 422, 425, 663 P.2d 699, 701 (1983).
rect testimony was limited to the subject of her father's personal characteristics and the impact
that his death had on her. Her opinion on sentencing would not have shed any additional light
on these subjects, and it was not relevant to issues of credibility or potential bias. Thus, we
conclude that the district court's ruling did not violate Kaczmarek's confrontation right.
[Headnotes 35-37]
Next, the constitutional right to present witnesses in defense of a prosecution derives
from the Compulsory Process Clause of the Sixth Amendment and the Fourteenth
Amendment's due process guarantee of a fair trial.
65
The right is limited, however, by the
rule of relevance and does not require that the defendant be permitted to present every
piece of evidence he wishes.'
66

[Headnote 38]
In considering whether Kaczmarek was denied the right to present evidence relevant
to his defense, we recognize that the crux of his claim rests in part upon the concomitant right
to present evidence in mitigation.
67
The Eighth and Fourteenth Amendments demand that a
sentencer in a capital case must not be precluded from considering as a mitigating factor
any aspect of a defendant's character or record and any of the circumstances of the offense
that the defendant proffers as a basis for a sentence less than death. '
68
This constitutional
rule does not, however, limit the traditional authority of a court to exclude, as irrelevant,
evidence not bearing on the defendant's character, prior record, or the circumstances of his
offense. '
69

In Nevada, the right to present evidence in mitigation is also governed by statutory
law. In particular, NRS 175.552(3) provides that at capital penalty hearings "evidence may
be presented concerning .
____________________

65
See U.S. Const. amends. VI, XIV; California v. Trombetta, 467 U.S. 479, 485 (1984); Chambers v.
Mississippi, 410 U.S. 284, 294, 302 (1973); Washington v. Texas, 388 U.S. 14 (1967); Williams v. State, 110
Nev. 1182, 1184-85, 885 P.2d 536, 537-38 (1994).

66
Brown v. State, 107 Nev. 164, 167, 807 P.2d 1379, 1381 (1991) (quoting State v. Cassidy, 489 A.2d 386,
391 (Conn. App. Ct. 1985)).

67
See Green v. Georgia, 442 U.S. 95, 97 (1979); Paxton v. Ward, 199 F.3d 1197, 1213-16 (10th Cir. 1999);
Boyd v. Ward, 179 F.3d 904, 921 (10th Cir. 1999); see also Robison v. Maynard, 829 F.2d 1501, 1503-05 (10th
Cir. 1987) (addressing challenge to exclusion of opinions against death penalty in context of constitutional rules
applicable to mitigating evidence), overruled on other grounds by Romano v. Gibson, 239 F.3d 1156 (10th Cir.
2001).

68
Harte, 116 Nev. at 1069, 13 P.3d at 430 (quoting Eddings v. Oklahoma, 455 U.S. 104, 110 (1982)
(quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion of Borger, C. J.)), and citing Skipper v.
South Carolina, 476 U.S. 1, 4 (1986)).

69
Id. (quoting Lockett, 438 U.S. at 604 n.12) (plurality opinion of Borger, C. J.)).
that at capital penalty hearings evidence may be presented concerning . . . 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
200.035(1)-(6) lists certain mitigating circumstances applicable to first-degree murder, and
NRS 200.035(7) provides for consideration of [a]ny other mitigating circumstance. But we
have held that neither NRS 175.552(3) nor NRS 200.035(7) requires the district court to
admit evidence that is not required to be admitted pursuant to constitutional dictates.
70

Other courts have soundly rejected claims that the constitutional rules applicable to
mitigating evidence require admission of opinions in favor of a sentence less than death.
71
As recognized by the Tenth Circuit Court of Appeals in the leading decision on the issue,
Robison v. Maynard,
72
such evidence is irrelevant to appropriate sentencing considerations
including mitigation. The court explained:
An individual's personal opinion of how the sentencing jury should acquit its
responsibility, even though supported by reasons, relates to neither the character or
record of the defendant nor to the circumstances of the offense. Such testimony, at best,
would be a gossamer veil which would blur the jury's focus on the issue it must decide.
73

We agree with this analysis and note that we applied analogous reasoning in Harte
74
to uphold on grounds of irrelevancy the exclusion of testimony on various religions'
objections to the death penalty, which the defendant had proferred as mitigation. In the instant
case, we similarly conclude that because Amanda's opinion on sentencing is irrelevant to
Kaczmarek's character, his record, or the circumstances of her father's murder, the district
court was not required to admit the opinion as evidence in mitigation.
[Headnote 39]
Next, we address the district court's analysis of the issue here as one involving the
parameters of admissible victim impact testimony under case law which stems from Booth
v. Maryland.
____________________

70
Id. at 1070, 13 P.3d at 431.

71
See, e.g., Robison, 829 F.2d at 1504-05; Taylor v. State, 666 So. 2d 36, 51-53 (Ala. Crim. App. 1994);
Greene v. State, 37 S.W.3d 579, 583-85 (Ark. 2001); People v. Smith, 68 P.3d 302, 330 (Cal. 2003), cert.
denied, 540 U.S. 1163 (2004); Ware v. State, 759 A.2d 764, 783-86 (Md. 2000); State v. Bowman, 509 S.E.2d
428, 440 (N.C. 1998); Com. v. Bomar, 826 A.2d 831, 851-52 (Pa. 2003), cert. denied, 540 U.S. 1115 (2004);
State v. Gardner, 789 P.2d 273, 286 (Utah 1989); State v. Pirtle, 904 P.2d 245, 268-69 (Wash. 1995).

72
829 F.2d 1501.

73
Id. at 1505.

74
116 Nev. at 1068-70, 13 P.3d at 429-31.
under case law which stems from Booth v. Maryland.
75
In Booth, the United States Supreme
Court held that the Eighth Amendment, binding upon the states by way of the Fourteenth
Amendment's Due Process Clause,
76
bars the prosecution at a capital penalty proceeding
from presenting victim impact evidence addressing: (1) the emotional distress of the victim's
family and the personal characteristics of the victim, as well as (2) the family members'
emotionally charged characterizations of the crimes and opinions as to what conclusion the
jury should draw from the evidence.
77
The Court reasoned that such information is irrelevant
to the sentencing decision and creates an unacceptable risk of arbitrary and capricious
decision making.
78
In South Carolina v. Gathers,
79
the Court extended Booth to
prosecutors' arguments.
Subsequently, in Payne v. Tennessee,
80
the Court overruled Booth and Gathers, in
part, and held that there is no per se Eighth Amendment bar to a capital jury's consideration of
a prosecutor's argument or evidence related to the victim's personal characteristics or the
emotional impact of the crime on the victim's family. The Court reasoned that such evidence
serves to level the balance between a defendant's right to show relevant mitigating evidence
and the government's interest in demonstrating the harm caused by the defendant's acts.
81
However, the Court left intact Booth's prohibition on admission of a victim's family
members' characterizations and opinions about the crime, the defendant, and the appropriate
sentence by limiting its removal of the per se bar to evidence and argument relating to the
victim and the impact of the victim's death.
82

In Homick v. State,
83
we recognized and applauded Payne's attempt to rectify the
imbalance between the parties' legitimate interests. We have continued to apply Payne to
allow evidence showing the victim's character and the impact of the crimes on the victim's
family.
84
We have held that the district courts have discretion to admit such evidence under
NRS 175.552, so long as it does not render the proceeding fundamentally unfair.
____________________

75
482 U.S. 496 (1987), overruled in part by Payne v. Tennessee, 501 U.S. 808 (1991).

76
See U.S. Const. amends. VIII, XIV; Robinson v. California, 370 U.S. 660, 666 (1962).

77
Booth, 482 U.S. at 502-09.

78
Id.

79
490 U.S. 805 (1989), overruled in part by Payne, 501 U.S. 808.

80
501 U.S. at 827-30.

81
Id. at 822-27.

82
Id. at 830 n.2.

83
108 Nev. 127, 136-37, 825 P.2d 600, 606 (1992).

84
See, e.g., Rippo v. State, 113 Nev. 1239, 1261, 946 P.2d 1017, 1031 (1997); Atkins v. State, 112 Nev.
1122, 1136, 923 P.2d 1119, 1128 (1996); McNelton v. State, 111 Nev. 900, 906 & n.4, 900 P.2d 934, 937 & n.4
(1995).
render the proceeding fundamentally unfair.
85
But, as Booth still demands pursuant to the
Eighth Amendment, we have also recognized that [a] victim can express an opinion
regarding the defendant's sentence only in noncapital cases.
86

We digress briefly here to discuss the State's conduct with respect to the issue at hand.
In its appellate brief, the State argued that victim impact witnesses' opinions on capital case
sentencing are precluded only by Nevada case law. The State further contended, erroneously,
that this restriction is unwarranted because Payne removed the federal constitutional bar to
such evidence. Because the State wished to present victim impact witnesses' opinions in favor
of death sentences, it urged us to prospectively overrule our judicially created limitation for
capital penalty proceedings and thereby allow admission into evidence of all victim impact
witnesses' opinions on the appropriate penalty.
[Headnote 40]
This court expended its limited resources assessing the merits of the State's
contentions in preparation for the parties' oral arguments. This was a needless effort because
at oral argument the State agreed that Payne does not allow victims to tender opinions on
sentence. The State sought to brush off its change in tack by explaining that it had vented a
little bit in its previously filed brief. However, we do not take these circumstances so lightly.
Counsel is required to certify that he has read the briefs that he signs and files with this court
and is prohibited from asserting an issue which he knows is frivolous.
87
Thus, we presume
that the issues raised in the briefs deserve our careful attention. When a party raises
arguments for a frivolous purpose such as venting, judicial resources are squandered.
Accordingly, we caution the State that similar future carelessness in briefing may be followed
by sanctions.
The State now correctly concedes that it may not, pursuant to Payne, introduce a
victim impact witness's opinion on sentencing at a capital penalty proceeding, but this point is
not pivotal here. The Eighth Amendment protects criminal defendants by providing that
[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
88
Hence, the Eighth Amendment holdings of Booth and Payne,
which we have integrated into Nevada case law, restrict only the prosecution's ability to
present a victim's family's views on punishment and do not expressly address or limit the
admissibility of similar evidence tendered by a defendant.
____________________

85
Floyd v. State, 118 Nev. 156, 174, 42 P.3d 249, 261 (2002), cert. denied, 537 U.S. 1196 (2003); see also
McNelton, 111 Nev. at 905-06, 900 P.2d at 937-38.

86
Gallego v. State, 117 Nev. 348, 370, 23 P.3d 227, 242 (2001); Rippo, 113 Nev. at 1261, 946 P.2d at 1031;
Witter v. State, 112 Nev. 908, 922, 921 P.2d 886, 896 (1996), receded from on other grounds by Byford v. State,
116 Nev. 215, 994 P.2d 700 (2000).

87
See NRAP 28A; SCR 170.

88
U.S. Const. amend. VIII.
tegrated into Nevada case law, restrict only the prosecution's ability to present a victim's
family's views on punishment and do not expressly address or limit the admissibility of
similar evidence tendered by a defendant.
89
Still, neither Booth nor Payne creates a right for
a defendant to do what the prosecution may not do.
90

[Headnote 41]
We join our sister courts in rejecting the proposition that opinions in opposition to the
death penalty fall within the parameters of admissible victim impact testimony or rebuttal
thereto.
91
Such opinions are not relevant to issues that may be appropriately addressed by
victim impact testimony, i.e., the victim's personal characteristics and the emotional impact of
the victim's death. Thus, Kaczmarek had no constitutional or statutory right to present
evidence of Amanda's views on sentencing, and we conclude that the district court did not err
in excluding her testimony on the matter.
[Headnotes 42, 43]
Finally, it is beyond doubt that jurors in this case were moved by young Amanda's
victim impact testimony related to her father's characteristics and the emotional devastation
she suffered from the murder. However, the admission of this testimony did not result in
fundamental unfairness to Kaczmarek.
92
Nor is there any evidence that the jury based its
determination on any improper speculation. The district court instructed the jury that victim
impact witnesses are not permitted to speak on the issue of sentence and that it should fix
punishment based on the evidence alone and not on inferences founded on speculation or
guess. We presume that the jury followed these instructions.
93

Mandatory review under NRS 177.055(2)
This court must conduct a mandatory review pursuant to NRS 177.055(2)(c)-(e) to
determine [w]hether the evidence supports the finding of an aggravating circumstance or
circumstances" and whether the death sentence "was imposed under the influence of
passion, prejudice or any arbitrary factor" or "is excessive, considering both the crime and
the defendant.
____________________

89
See Payne, 501 U.S. at 818-19 (recognizing that Booth rule prevents prosecution from introducing certain
victim impact evidence). See generally Smith, 68 P.3d at 330.

90
Smith, 68 P.3d at 330.

91
See, e.g., Robison v. Maynard, 943 F.2d 1216, 1217-18 (10th Cir. 1991); Barbour v. State, 673 So. 2d
461, 468-69 (Ala. Crim. App. 1994), judgment aff'd, 673 So. 2d 473 (Ala. 1995); Greene, 37 S.W.3d at 585-86;
Smith, 68 P.3d at 329-30; Ware, 759 A.2d at 783-86; Gardner, 789 P.2d at 286; Pirtle, 904 P.2d at 269.

92
Cf. McNelton, 111 Nev. at 906-07, 900 P.2d at 937-38 (holding that admission of evidence showing
murder victim was pregnant, though prejudicial, did not render sentencing fundamentally unfair).

93
Lisle v. State, 113 Nev. 540, 558, 937 P.2d 473, 484 (1997) (recognizing that this court presumes that
juries follow district courts' instructions).
the finding of an aggravating circumstance or circumstances and whether the death sentence
was imposed under the influence of passion, prejudice or any arbitrary factor or is
excessive, considering both the crime and the defendant.
[Headnotes 44, 45]
We conclude that the evidence adduced here supports the jury's finding of each of the
three aggravators. However, our review for improper influence affecting the jury's sentencing
determination reveals that during the penalty phase the State adduced improper victim impact
testimony from the victim of Kaczmarek's prior Illinois crimes. Although the majority of this
witness's testimony was relevant and admissible to prove the aggravator that the murder was
committed by a person who has previously been convicted of a felony involving the use or
threat of violence, the witness did not confine her testimony to proof of the alleged
aggravator. Rather, she testified at some length to the tragic toll the crimes had taken upon
her life. We have held that evidence of the impact to victims of prior crimes alleged as
aggravating circumstances is not relevant to the sentencing decision in a first-degree murder
case, and therefore such evidence is inadmissible during the penalty phase.
94
The district
court erred in admitting the victim impact testimony related to Kaczmarek's prior Illinois
crimes. Even so, the jury would have surmised from the witness's admissible testimony that
she would have suffered greatly following Kaczmarek's horrendous crimes against her.
Moreover, based on the evidence here, we are convinced that the jury's verdict was not
improperly influenced by the inappropriate testimony. Finally, the senseless and callous
nature of the instant crimes, Kaczmarek's prior record of violence and disregard for the law,
and the dearth of mitigating evidence lead us to conclude that the sentence of death is not
excessive.
95

CONCLUSION
For the foregoing reasons, we affirm Kaczmarek's judgment of conviction and
sentence of death.
96

____________________

94
See Sherman v. State, 114 Nev. 998, 1014, 965 P.2d 903, 914 (1998).

95
Cf. Colwell v. State, 112 Nev. 807, 919 P.2d 403 (1996) (upholding death penalty under similar
circumstances).

96
Kaczmarek argued in his brief to this court that insufficient evidence supported his conviction for
first-degree kidnapping. However, at oral argument he conceded that this issue has no merit. We agree. See NRS
200.310(1); Doyle v. State, 112 Nev. at 892-93, 921 P.2d at 910-11; Hutchins v. State, 110 Nev. 103, 108-09,
867 P.2d 1136, 1140 (1994); Beets v. State, 107 Nev. 957, 962, 821 P.2d 1044, 1048 (1991).
____________
120 Nev. 342, 342 (2004) Martin v. Martin
APRIL RABURN MARTIN, Appellant, v.
JAMES LEE MARTIN, Respondent.
No. 37581
June 10, 2004 90 P.3d 981
Proper person appeal from a district court order modifying a child custody
arrangement and awarding child support. Fifth Judicial District Court, Nye County; John P.
Davis, Judge.
The supreme court held that: (1) former husband did not establish substantial or
pervasive interference with visitation amounting to change of circumstances justifying change
of primary physical custody, and (2) former husband's remarriage did not establish change of
circumstances justifying change of primary physical custody.
Reversed.
April Raburn Martin, Pahrump, in Proper Person.
Carl M. Joerger, Pahrump, for Respondent.
1. Child Custody.
Matters of custody, including visitation, rest in the district court's sound discretion.
2. Child Custody.
Supreme court will not disturb the district court's child custody determination absent a
clear abuse of discretion.
3. Child Custody.
Change of primary physical custody is warranted only when: (1) the parent's
circumstances have been materially altered, and (2) the child's welfare would be
substantially enhanced by the change.
4. Child Custody.
Interference by a custodial parent with a noncustodial parent's visitation privileges
does not necessarily give rise to parental alienation syndrome.
5. Child Custody.
Former husband's unsupported assertions of inability to get through when telephoning
child at former wife's house, together with his unsupported assertion at hearing on his
motion to modify custody that former wife was denying him visitation, did not establish
substantial or pervasive interference with visitation amounting to change of
circumstances justifying change of primary physical custody. Former husband did not
assert that former wife consistently obstructed his attempts to telephone child or that
former wife withheld physical visitation with child, and he stated that he had regular
e-mail contact with child.
6. Child Custody.
Former husband's remarriage, without more, did not establish change of circumstances
justifying change of primary physical custody of parties' child.
OPINION
Per Curiam:
This proper person appeal arises from a custody dispute between appellant April
Martin and respondent James Martin over the parties' twelve-year-old child. The district court
granted James's motion to change primary physical custody based on changed circumstances.
These changed circumstances included James's remarriage and April's alleged interference
with James's visitation with the child.
We conclude that remarriage alone does not establish changed circumstances.
Consequently, the district court erred in finding changed circumstances on that basis.
Additionally, although a custodial parent's substantial or pervasive interference with a
noncustodial parent's visitation could give rise to changed circumstances warranting a change
in custody, the record in this case does not support a determination that April substantially or
pervasively interfered with James's visitation. Accordingly, we reverse the district court's
order.
FACTS
The Martins were divorced in Kentucky in 1998. At that time, they entered into a
child custody agreement under which they would share joint legal custody of their child,
April would have primary physical custody and James would have visitation. James's
visitation included one month each summer, and every other holiday and birthday. After the
divorce, April and the child moved to Nevada, and James moved to North Carolina. James,
who is in the military, has remarried, and his new wife has three young children from a prior
marriage.
In October 2000, James, through counsel, moved the Nevada district court to modify
child custody and support. According to James, April was in a physically abusive
relationship, which posed a threat to the child's safety. He also insisted that the child suffers
from seizures, and that April was not properly caring for the child's condition. James further
contended that because April worked in Las Vegas, she only spent weekends with the child.
According to James, the rest of the week the child was in the care of April's mother, with
whom April and the child were living, in Pahrump, Nevada. James also asserted that he was
having difficulty contacting the child by telephone, although he did not specify how many
times he attempted to telephone the child without getting through. James did state that he
regularly communicates with the child via e-mail.
April, through her counsel, opposed James's motion. April contended that the child
does not suffer from seizures. She also insisted that she was not in an abusive relationship,
that she had broken up with her boyfriend, and that James had physically abused her during
their relationship. In addition, April contended that James was often away from his home for
months at a time because of his military service. According to April, it was unfair for the
child to live with a stepmother and stepsiblings, essentially strangers, while James was away.
April further asserted that James rarely telephoned the child, and when he did, he only spoke
to the child briefly, then spoke with April in order to argue. Finally, April maintained that
since the divorce, James had only exercised visitation with the child twice and was seven
months behind in child support.
The district court conducted a hearing on James's motion. The record reveals that
during the hearing, James's counsel, for the first time, argued that April was denying James
visitation with the child. James's counsel also asserted that on one occasion when James
telephoned to speak with the child, April's boyfriend answered the phone and instructed
James not to call again.
After the hearing, the district court granted James's motion to change custody and
ordered April to pay child support at the statutory minimum, $100 per month. In its written
order, the district court found changed circumstances warranted changing custody on the
basis that April had interfered with James's visitation, that James had remarried, and that both
parents had moved from Kentucky.
The district court also found that it was in the child's best interest to live with James,
because he was more settled than April and could provide the child with a more suitable and
stable home environment. The district court acknowledged that April had ended her
relationship with her boyfriend and had moved in with her mother. Still, the district court
found April's home environment unsettled and awkward because she had moved from her
boyfriend's house to her mother's home and was planning to move to Las Vegas to be closer
to her job. The court found that James offered a better home environment for the child since
James is a career soldier and because his new wife would be a good stepmother. April timely
appealed.
DISCUSSION
[Headnotes 1-3]
1
This court will not disturb the district court's child custody determination absent a clear
____________________

1
Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996).
custody determination absent a clear abuse of discretion.
2
A change of primary physical
custody is warranted only when: (1) the parent's circumstances have been materially altered,
and (2) the child's welfare would be substantially enhanced by the change.
3

In granting James's motion to change custody, the district court found changed
circumstances on three grounds: (1) April had interfered with James's visitation and
communication with the child; (2) James had remarried; and (3) both parties had relocated
from Kentucky, where the divorce decree was entered. Neither party argued in the district
court that relocating from Kentucky constituted a change in circumstances.
4

[Headnote 4]
This court has not previously decided whether a custodial parent's interference with a
noncustodial parent's visitation may constitute changed circumstances.
5
Other courts that
have examined the issue have concluded that the custodial parent's substantial or pervasive
interference may constitute changed circumstances.
6

[Headnote 5]
In his motion to change custody, James generally claimed that when he tried to
telephone the child at April's mother's house, he was unable to get through. James did not
assert that April consistently obstructed his attempts to telephone the child, nor did he
contend that April withheld physical visitation with the child. James also stated that he and
the child engaged in e-mail contact. Even so, during the hearing on James's motion to modify
custody, James vaguely asserted for the first time, but without further explanation, that April
was denying him visitation. James also brought up the one occasion during which April's
boyfriend told him not to call again.
____________________

2
Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993).

3
Murphy v. Murphy, 84 Nev. 710, 711, 447 P.2d 664, 665 (1968).

4
See Hayes v. Gallacher, 115 Nev. 1, 6, 972 P.2d 1138, 1141 (1999) (recognizing that in the context of
relocation cases, moving does not constitute changed circumstances that warrant a change in custody unless the
move would significantly impair the noncustodial parent's ability to maintain a relationship with the child).

5
We note that interference by a custodial parent with a noncustodial parent's visitation privileges does not
necessarily give rise to parental alienation syndrome. See Carol S. Bruch, Parental Alienation Syndrome and
Parental Alienation: Getting It Wrong in Child Custody Cases, 35 Fam. L.Q. 527, 534 (2001).

6
See, e.g., Kelly v. Joseph, 46 P.3d 1014, 1017 (Alaska 2002) (recognizing that substantial interference with
the noncustodial parent's visitation rights by a custodial parent constitutes changed circumstances); Hicks v.
Alford, 576 S.E.2d 410, 414 (N.C. Ct. App. 2003) (providing that pervasive interference with the noncustodial
parent's visitation rights constituted a substantial change in circumstance that warranted a change in child
custody).
up the one occasion during which April's boyfriend told him not to call again.
The record does not support a determination that April's alleged conduct rose to the
level of substantial or pervasive interference with James's visitation to warrant a change in
circumstances. Thus, the district court abused its discretion when it found changed
circumstances based on April's alleged interference with James's visitation rights.
[Headnote 6]
As for James's remarriage as a basis for changing the child custody arrangement, most
courts have concluded that remarriage alone is not enough to establish changed
circumstances.
7
We agree with these courts because if remarriage alone could signify a
change in circumstances, then children's home environments could be destabilized solely on
that basis. Stability is one of the primary objectives behind the changed circumstances
requirement, and children's stability should not be disturbed simply because the noncustodial
parent has been remarried.
8
Consequently, James's remarriage alone is not enough to
establish changed circumstances.
9

Accordingly, we reverse the district court's order changing child custody and awarding
child support to James.
10

____________________

7
See, e.g., Monteleone v. Monteleone, 591 So. 2d 1228, 1235 (La. Ct. App. 1991) (stating that remarriage
of the noncustodial parent and the superiority of the stability of that parent's new, daily environment, [is not,] by
itself, a compelling reason to uproot a child from his or her present environment); Pitt v. Olds, 511 S.E.2d 60,
61 (S.C. 1999) (noting that remarriage alone is insufficient to warrant a modification of a child custody
arrangement).

8
See Castle v. Simmons, 120 Nev. 98, 86 P.3d 1042, 1047 (2004).

9
Under Murphy there must be changed circumstances and the proposed change in custody must substantially
enhance the child's welfare. 84 Nev. at 711, 447 P.2d at 665. As we conclude that the district court abused its
discretion with respect to changed circumstances, we do not need to reach the child's best interest
considerations under the Murphy test.

10
On April 11, 2001, this court entered a stay pending appeal. In light of this opinion, we vacate that order.
____________
120 Nev. 347, 347 (2004) Browning v. State
PAUL LEWIS BROWNING, Appellant, v. THE STATE OF NEVADA; WARDEN, ELY
STATE PRISON, E.K. McDANIEL and FRANKIE SUE DEL PAPA, ATTORNEY
GENERAL FOR THE STATE OF NEVADA, respondents.
No. 39063
June 10, 2004 91 P.3d 39
Appeal from a district court order denying a petition for post-conviction relief. Eighth
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
After defendant's conviction for murder was affirmed on appeal, 104 Nev. 269, 757
P.2d 351 (1988), defendant moved for post-conviction relief. The district court denied relief.
Defendant appealed. The supreme court held that: (1) trial counsel was not ineffective, (2)
prosecutor did not vouch for witness's identification, (3) appellate counsel was ineffective in
failing to challenge jury instruction on depravity-of-mind aggravating factor, (4) prosecutor
did not present false evidence, (5) prosecutor's failure to disclose information regarding
witness did not amount to Brady violation, and (6) defendant's motion for new trial based on
new evidence was untimely.
Affirmed in part, vacated in part, and remanded.
JoNell Thomas, Las Vegas; Heller Ehrman White & McAuliffe LLP and Jason B.
Isaacs, San Diego, California; Heller Ehrman White & McAuliffe LLP and Warrington
Samuel Parker III, San Francisco, California, for Appellant.
Clark A. Peterson, Chief Deputy District Attorney, and H. Leon Simon, Deputy District
Attorney, Clark County, for Respondents.
1. Criminal Law.
relief.
2. Criminal Law.
A petitioner for post-conviction relief is not entitled to an evidentiary hearing if the
factual allegations are belied or repelled by the record.
3. Criminal Law.
Petitioner for post-conviction relief has the burden of establishing the factual
allegations in support of the petition.
4. Criminal Law.
An appellant must present relevant authority and cogent argument. Issues not so
presented need not be addressed by the supreme court on appeal.
5. Criminal Law.
subject to independent review.
6. Criminal Law.
To establish ineffective assistance of counsel, a claimant must show both that
counsel's performance was deficient and that the deficient performance prejudiced the
7. Criminal Law.
To show prejudice due to ineffective counsel, the claimant must show a reasonable
probability that but for counsel's errors the result of the proceeding would have been
different. U.S. Const. amend. 6.
8. Criminal Law.
Judicial review of a lawyer's representation is highly deferential, and the claimant
must overcome the presumption that a challenged action might be considered sound
strategy. U.S. Const. amend. 6.
9. Criminal Law.
To establish prejudice for a claim of ineffective assistance of appellate counsel, the
claimant must demonstrate that an omitted issue would have had a reasonable
probability of success on appeal. U.S. Const. amend. 6.
10. Criminal Law.
Defendant in murder trial was not prejudiced by defense counsel's alleged deficiency
in failing to rebut State's theory that defendant committed robbery to bail his girlfriend
out of jail. Defendant's precise motive for his crimes was not crucial to the State's case.
11. Criminal Law.
Defense counsel was deficient in failing to interview police officer who investigated
murder, which investigation would have discovered a discrepancy in victim's
description of perpetrator's hair, but such deficiency was not prejudicial given the other
evidence that identified defendant as the perpetrator. U.S. Const. amend. 6.
12. Criminal Law.
Defense counsel made a reasonable tactical decision not to investigate bloody shoe
prints left at murder scene, which did not match defendant's shoes, so that he could
argue that the prints were left by the actual murderer rather than by police or
paramedics, and thus, counsel was not deficient. U.S. Const. amend. 6.
13. Criminal Law.
Defense counsel was not ineffective in failing to personally interview two witnesses.
Counsel made a tactical decision to have his investigator conduct all interviews so that
counsel could avoid becoming a witness himself. U.S. Const. amend. 6.
14. Criminal Law.
Defense counsel was not ineffective in failing to interview murder victim's wife, who
identified defendant in court. Counsel adequately cross-examined her regarding her
identification and pointed out that defendant was the only black man in court and that
wife was unable to identify defendant in a photographic lineup. U.S. Const. amend. 6.
15. Criminal Law.
Defense counsel was not ineffective in failing to ask witness on cross-examination if
she saw any blood on the man she saw leaving the murder scene. Counsel adequately
cross-examined witness regarding her identification of defendant and unsuccessfully
sought to suppress her identification. U.S. Const. amend. 6.
16. Criminal Law.
Defense counsel was not ineffective in failing to object to admission of a mug shot of
defendant, which allegedly allowed the jury to infer that defendant had been involved in
a previous crime, because jurors had no reason to assume that it had been taken in any
other case but the one for which defendant was being tried. U.S. Const. amend. 6.
17. Criminal Law.
Defense counsel's failure to object to prosecutor's statement in closing argument that
defendant's girlfriend prostituted for him did not prejudice defendant given the
extensive evidence of defendant's guilt. U.S. Const. amend. 6.
18. Criminal Law.
The prosecution may not vouch for a witness. Such vouching occurs when the
prosecution places the prestige of the government behind the witness by providing
personal assurances of the witness's veracity.
19. Criminal Law.
Prosecutor's remarks that identification of defendant by murder victim's wife was as
good as you could ask for did not amount to improper vouching because the
prosecutor was not placing the prestige of the government behind wife's testimony or
providing personal assurances of her veracity, but rather, he was merely commenting on
wife's identification.
20. Criminal Law.
Generally, a prosecutor's comment on the defense's failure to call a witness
impermissibly shifts the burden of proof to the defense.
21. Criminal Law.
Defense counsel's failure to object to prosecutor's improper statements in closing
argument regarding counsel's failure to call defendant's girlfriend as a witness to testify
regarding when she was released from jail did not prejudice defendant, where the issue
of exactly when girlfriend was released from jail was not significant in murder trial.
22. Criminal Law.
Photograph of murder victim used by prosecution during guilt phase of capital murder
trial that showed victim with a small child in his lap did not amount to impermissible
victim impact evidence.
23. Witnesses.
Every criminal defendant is privileged to testify in his own defense, or to refuse to do
so.
24. Attorney and Client; Witnesses.
Counsel can advise a defendant whether it is wise for him to testify, but ultimately the
decision lies with the defendant.
25. Criminal Law.
Defense counsel was not ineffective in advising defendant not to testify so as to
prevent defendant from being cross-examined regarding prior crimes. U.S. Const.
amend. 6.
26. Escape.
The proper defense to an escape charge is necessity, which requires the following five
conditions: (1) the prisoner is faced with a specific, imminent threat of death, forcible
sexual attack, or substantial bodily injury; (2) there is no time to complain to
authorities, or there is a history that such complaints are futile; (3) there is no time or
opportunity to resort to the courts; (4) no force or violence is used toward prison
personnel or innocent persons during the escape; and (5) prisoner immediately reports
to proper authorities after obtaining a position of safety. NRS 212.090.
27. Escape.
Defendant was not under a reasonable belief that his life was threatened while he was
being held in interrogation room, and thus was not entitled to invoke defense of duress
or necessity to escape charges, despite facts that defendant was handcuffed shirtless
underneath an air conditioning vent and an officer told defendant that when you are
busted for murder in Nevada the case is closed. NRS 194.010(7), 212.090.
28. Criminal Law.
Defendant's appellate counsel was ineffective in failing to challenge jury instruction in
penalty phase of capital murder trial regarding depravity-of-mind aggravating factor on
ground that the instruction was unconstitutional for failing to include proper limiting
instruction requiring an act of torture, mutilation, or other serious physical abuse
beyond the act of killing in order for the depravity-of-mind aggravating circumstance to
apply. U.S. Const. amend. 6; NRS 200.033(8) (1994).
Once a death penalty aggravator is stricken, the supreme court either reweighs the
aggravating and mitigating circumstances or applies a harmless error analysis.
An analysis to determine whether the erroneous use of an invalid aggravating
circumstance in a capital sentencing proceeding is harmless requires a new sentencing
calculus to determine whether the error was harmless beyond a reasonable doubt.
31. Criminal Law.
Defendant was not prejudiced by appellate counsel's alleged deficiency in failing to
challenge the admission of evidence of defendant's thumbprint on a watch that was not
linked to crimes. Even if it had been shown that defendant's fingerprints were not on
any of the stolen jewelry, he was found in possession of the jewelry immediately after
the crimes. U.S. Const. amend. 6.
32. Criminal Law.
Appellate counsel was not ineffective for failing to raise claim on appeal that jury
should have been instructed on attempted escape, where the escape statute that the jury
was instructed on encompassed attempted escape. U.S. Const. amend. 6; NRS 212.090.
33. Criminal Law.
Defendant was not entitled to an addict-informer jury instruction, where the State did
not concede that the testimony from the addict-informer was unreliable and the
testimony was corroborated by extensive evidence.
34. Criminal Law.
Prosecutor did not present false evidence regarding type B blood on defendant's
jacket, which prosecutor asserted was victim's blood, even though later DNA testing
after defendant was convicted indicated that blood did not belong to victim, where the
evidence that prosecutor relied on in making assertion was not false.
35. Criminal Law.
There are three components to a Brady violation: (1) the evidence at issue is favorable
to the accused; (2) the evidence was withheld by the State, either intentionally or
inadvertently; and (3) prejudice ensued, i.e., the evidence was material.
36. Criminal Law.
Absent a specific request for the evidence, evidence is material under Brady if there is
a reasonable probability that the result would have been different if the evidence had
been disclosed.
37. Criminal Law.
Under Brady, even if the State and a witness have not made an explicit agreement, the
State is required to disclose to the defense any evidence implying an agreement or an
understanding.
38. Criminal Law.
Prosecutor's failure to disclose to defendant that witness received benefits for
testifying in defendant's murder trial did not prejudice defendant so as to amount to a
Brady violation. Witness was impeached on other grounds, including his history of
heroin abuse and criminal history, and his testimony was corroborated by strong
evidence, including the fact that defendant was found with the stolen jewelry shortly
after murder.
The State's loss or destruction of evidence constitutes a due process violation only if
the defendant shows either that the State acted in bad faith or that the defendant
suffered undue prejudice and the exculpatory value of the evidence was apparent before
it was lost or destroyed.
40. Criminal Law.
Defendant's motion for a new trial based on newly discovered evidence was untimely,
where the motion was made more than two years after his conviction. NRS 176.515(3).
41. Criminal Law.
Although some of defendant's claims established some prejudicial effect, such as the
failure of trial counsel to discover and present evidence that the description of the
perpetrator's hair did not match defendant's hair, there was no reasonable probability
that defendant would not have been convicted of first-degree murder when the claims
of prejudice were considered cumulatively. The evidence of defendant's guilt was
overwhelming given that his fingerprints were at the crime scene, he was identified by
three witnesses placing him at or near the crime scene, he admitted guilt to two
witnesses, and he was found in a hotel room surrounded by the stolen jewelry.
OPINION
Per Curiam:
In 1985, appellant Paul Lewis Browning robbed and stabbed to death Hugo Elsen at
Elsen's jewelry store in Las Vegas. Browning was convicted of murder and sentenced to
death. This is his timely first petition seeking post-conviction relief, pursuant to former NRS
177.315-.385 (equivalent to a post-conviction habeas petition). The district court denied the
petition, finding that Browning received effective assistance of counsel and that his other
claims were procedurally barred.
This appeal raises numerous claims. The primary issue is whether Browning's
appellate counsel was ineffective for failing to challenge the aggravating circumstance of
depravity of mind. We conclude that counsel was ineffective in this regard, requiring us to
vacate Browning's death sentence and remand for a new penalty hearing. We otherwise affirm
the district court's order.
FACTS
On November 8, 1985, Hugo Elsen was stabbed to death during a robbery of his
jewelry store in Las Vegas. His wife, Josy Elsen, was in the back of the store when he was
attacked. Hearing noises, she went into the showroom and saw a black man wearing a blue
cap squatting over her husband holding a knife. She fled out the back door to the neighboring
store and asked the employees there to call the police. She and a neighboring employee,
Debra Coe, then returned to the jewelry store where Coe placed a pillow under Elsen's head
and covered him with a blanket. Two to four minutes later help arrived. Elsen soon died, after
giving a very brief description of the perpetrator as a black man wearing a blue cap with loose
curled wet hair. Debra Coe also described a man she had seen leaving the vicinity: he was
wearing a blue cap, blue jacket, Levi's, and tennis shoes; was about 27 years old and about
six-feet tall; and had hair a little longer than the cap he was wearing and a mustache. Another
witness, Charles Woods, identified a person he saw leaving the vicinity as a black man
wearing a dark or blue cap and dark trousers, about six-feet tall, and weighing about 180
pounds.
Shortly after the crimes, Randy Wolfe approached police and told them that a man
was in Wolfe's nearby hotel room with a large amount of jewelry. The police went to the
room and found Browning with the jewelry. Browning was arrested and taken to Coe and
Woods for a showup identification. They identified Browning as the man they saw leaving
the vicinity of the crimes.
At trial, Vanessa Wolfe, Randy Wolfe's wife, testified for the State to the following.
She returned to her hotel room on the day of the crimes and found Browning taking off his
clothes. He had a coat, which was either on the floor or on the bed. On the bed was a lot of
jewelry with tags, which she helped cut off. Browning asked Vanessa to help him get rid of
some of the jewelry and said he thought he had just killed somebody. She helped Browning
by throwing the tags and his hat in a nearby dumpster. Browning gave her a knife to dispose
of. Instead, she put the knife in a pizza box in a closet under the stairs. The officers assigned
to Browning's case testified that they retrieved all of this evidence from the places that
Vanessa described. Randy Wolfe also testified that when he went into his hotel room,
Browning was sitting on the bed and said that he just robbed a jewelry store and thought
that he had killed a man.
bed and said that he just robbed a jewelry store and thought that he had killed a man.
Investigators found Browning's fingerprints in the jewelry store.
Browning was convicted, pursuant to a jury trial, of first-degree murder with the use
of a deadly weapon, robbery with the use of a deadly weapon, burglary, and escape. At the
penalty hearing, the State presented detailed evidence of his prior felonies for robbery with
the use of a knife. Browning's mother testified as a mitigating witness. She stated that
Browning attended private school as a child, was a very good student and president of the
student council, and was very athletically inclined, winning medals in cross-country. She had
marital problems, and she and Browning moved to Washington, D.C., where he worked as a
doorman for the United States Congress and took paralegal classes at the Library of Congress.
After Browning left high school, she had not had much contact with him, but she knew that
he was very remorseful for the crimes. Browning spoke in allocution and stated that his
involvement with drugs was the reason he was implicated in the crimes. He apologized for
the pain that the Elsen and Browning families had suffered. He stated that he did not want to
die and that he was innocent.
The jury found five aggravating circumstances: the murder was committed while
Browning was engaged in a burglary; the murder was committed while he was engaged in a
robbery; he was previously convicted of a felony involving the use or threat of violence; the
murder was committed while he was under a sentence of imprisonment; and the murder
involved depravity of mind. The jury did not find any mitigating circumstances and returned a
sentence of death.
This court affirmed Browning's conviction and sentence.
1
In May 1989, he timely
filed his first petition for post-conviction relief. He filed a supplemental petition the next
month. In June 1996, he filed an amended petition, and in October 1999, he filed a revised
second amended petition. The district court conducted an evidentiary hearing in 1999 and
dismissed the petition on December 7, 2001.
2
DISCUSSION
Applicable legal standards for review of this case
[Headnotes 1-4]
____________________

1
Browning v. State, 104 Nev. 269, 757 P.2d 351 (1988).

2
It is unclear from the record why Browning's petition lingered in the district court for nearly twelve years.
legations that if true would entitle him to relief.
3
He is not entitled to such a hearing if the
factual allegations are belied or repelled by the record.
4
The petitioner has the burden of
establishing the factual allegations in support of the petition.
5
Also, an appellant must
present relevant authority and cogent argument; issues not so presented need not be
addressed by this court.
6

[Headnotes 5-9]
subject to independent review.
7
To establish ineffective assistance of counsel, a claimant
must show both that counsel's performance was deficient and that the deficient performance
prejudiced the defense.
8
To show prejudice, the claimant must show a reasonable probability
that but for counsel's errors the result of the proceeding would have been different.
9
Judicial
review of a lawyer's representation is highly deferential, and the claimant must overcome the
presumption that a challenged action might be considered sound strategy.
10
To establish
prejudice for a claim of ineffective assistance of appellate counsel, the claimant must
demonstrate that an omitted issue would have had a reasonable probability of success on
appeal.
11

Ineffective assistance of trial counsel
Browning claims first that his trial counsel failed to properly investigate the facts of
this case. Browning largely fails to specify what evidence would have been revealed by
additional investigation and how the lack of any evidence prejudiced him. He does claim that
counsel failed to investigate the possibility that a Cuban man committed the crimes, but this
claim is without merit. At the evidentiary hearing, trial counsel stated that the defense theory
was that a Cuban man, a friend of the Wolfes', committed the crimes. Counsel sent his
investigator to the streets to find out anything he could about this man. In addition, counsel
presented a witness at trial who testified that he saw a Cuban man walking down the street
near the crime scene around the time of the crimes.
____________________

3

4
Id. at 503, 686 P.2d at 225.

5
Bejarano v. Warden, 112 Nev. 1466, 1471, 929 P.2d 922, 925 (1996).

6
Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987); see also NRAP 28(a)(4) (requiring a party's
argument to contain citations to the authorities, statutes and parts of the record relied on).

7

8
Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

9
Id. at 988, 923 P.2d at 1107.

10
Strickland, 466 U.S. at 689.

11
Kirksey, 112 Nev. at 998, 923 P.2d at 1113-14.
[Headnote 10]
Browning contends that his counsel was ineffective in failing to rebut the State's
theory that Browning committed the robbery to bail his girlfriend, Marcia Gaylord, out of jail
so she could prostitute herself and give him the proceeds to purchase drugs. Browning claims
that counsel failed to present Gaylord's jail records showing that she was not in jail at the time
of the crimes. At trial, counsel challenged the State's theory of motive, arguing to the jury that
there had been no testimony by a custodian of records or anyone from the Clark County
Detention Center that Marcia Gaylord was in custody. The prosecution countered that it had
presented other testimony that she was in jail. We conclude that even if counsel could have
proven that Gaylord was not in jail on the afternoon of the crimes, Browning does not show
that he was prejudiced. He concedes that Gaylord was released from jail only that morning.
Moreover, Browning's precise motive for the crimes was not crucial to the State's case.
[Headnote 11]
Next, Browning claims that trial counsel failed to interview several key witnesses,
including Officer Gregory Branon, the first officer on the crime scene. Officer Branon
testified at trial that he received from the dying Elsen a description of the killer as a black
male adult in his late twenties, wearing a blue baseball cap, . . . and hair described as a
shoulder length jeri-type curl. But Browning's hair was not a jeri-curl when he was arrested a
short time later. In closing argument, the prosecutor argued that it was understandable if a
white person, such as the victim, incorrectly used the term jeri-curl to describe Browning's
hair. However, at the evidentiary hearing, Officer Branon, who is black, testified that the term
jeri-curl was his own, based on Elsen's description of the perpetrator's hair as loosely curled
and wet. Browning argues that his trial counsel was ineffective in not discovering this
information, which would have refuted the prosecutor's closing argument and shown that the
victim's description of the perpetrator's hair did not match Browning's.
We conclude that trial counsel was deficient here but that this deficiency alone was
not prejudicial. The issue of Browning's hairstyle was extensively explored at trial. Elsen was
the only person who described the hair protruding from Browning's hat as loosely curled and
wet. Mrs. Elsen stated that it simply puffed out in the back of his cap. Coe testified that
Browning's hair stuck out about an inch below his cap. The showup identification was the
first time that witnesses viewed him without his hat. Coe testified that at the showup she
could tell that Browning had just taken a cap off because his hair was matted down. Given
this evidence and the overall strong evidence of Browning's guilt, we conclude that there is
no reasonable probability of a different result if counsel had discovered and presented the
evidence that "jeri-curl" was the officer's term, not the victim's.
is no reasonable probability of a different result if counsel had discovered and presented the
evidence that jeri-curl was the officer's term, not the victim's.
[Headnote 12]
Browning also contends that his trial counsel was ineffective in failing to learn that
bloody shoeprints near Elsen were already present when Officer Branon arrived at the crime
scene. Because the prints did not match Browning's shoes and could not have been left by
paramedics, who arrived after Officer Branon, Browning argues that this information
indicated that another person committed the murder. We conclude that this information was
not material and that trial counsel acted reasonably. Counsel explained at the evidentiary
hearing that once he determined that the shoeprints did not match Browning's shoes, he chose
not to investigate the prints further. He feared that investigation might establish that the prints
had been left by police or paramedics, rather than some unidentified person. As long as the
source of the prints was unknown, counsel could argue to the jury that the actual murderer
had left them. Although it is now evident that the prints were present before police and
paramedics arrived, counsel's basic reasoning remains sound because the bloody shoeprints
were likely left by Mrs. Elsen and/or Coe, who were with Elsen before the first officer
arrived. Counsel made a reasonable, tactical decision to leave the source of the prints
uncertain.
[Headnote 13]
Next, Browning claims that counsel should have interviewed Randy and Vanessa
Wolfe, the State's key witnesses. Counsel testified that to avoid becoming a witness himself,
he had a policy of not personally interviewing witnesses. Instead, he had his investigator
conduct all interviews. This is a reasonable tactic. The investigator gathered enough
information to permit trial counsel to adequately cross-examine the Wolfes on their version of
events, their drug usage, their informer status, their lying, and their convictions and arrests.
Therefore, Browning has failed to show that counsel was ineffective.
[Headnote 14]
Browning complains that his counsel also failed to interview Mrs. Elsen, the victim's
wife. According to Browning, Mrs. Elsen would likely have admitted that she could not
identify her husband's assailant, enabling counsel to demonstrate that her in-court
identification was unreliable. This claim lacks merit. Mrs. Elsen was asked on one occasion
to identify Browning in a photographic lineup shortly after the crimes occurred. She was
unable to do so; however, at trial she identified Browning as her husband's attacker.
tacker.
12
She qualified this identification by stressing that she only saw the perpetrator from
the side. She did state that the attacker was a black man wearing a blue cap. Although counsel
did not personally interview Mrs. Elsen, he adequately cross-examined her regarding the
identification. After she made her in-court identification, counsel specifically asked the court
to note for the record that Browning was the only black man in the room and that he was
seated at the defense table. In addition, counsel pointed out during closing argument that
although Mrs. Elsen could not identify Browning at the photographic lineup a month after the
crimes, one year later she somehow identified him. Finally, the result if counsel had
interviewed Mrs. Elsen is completely speculative, and this speculation does not demonstrate
any prejudice.
Browning also claims that trial counsel was ineffective for failing to move to exclude
Mrs. Elsen's in-court identification of Browning. On direct appeal, this court ruled that
although Mrs. Elsen failed to identify Browning before trial, the in-court identification was
admissible.
13
Therefore, Browning cannot demonstrate prejudice because the underlying
claim has already been considered and rejected by this court.
[Headnote 15]
Next, Browning asserts that counsel failed to properly cross-examine and impeach
witness Debra Coe. Shortly after the crimes, the police brought Browning to Coe to determine
if he was the man she had seen jogging by her window away from the crime scene. She said
that Browning looked like the man but that she was not positive. At trial she stated that she
was sure that the man was Browning. She also initially told police that all blacks look the
same; however, at trial she stated that she was joking and did not think that all blacks looked
the same. Browning claims that counsel inadequately cross-examined Coe by failing to ask
her if the man she saw had any blood on him or was carrying any jewelry cases and why she
thought that all blacks look alike. This claim lacks merit. Counsel unsuccessfully sought to
suppress Coe's identification of Browning at trial. During cross-examination of Coe, counsel
asked her many questions regarding her identification of Browning and whether she believed
that all blacks looked alike. Browning has not demonstrated that counsel's cross-examination
of Coe was deficient or that there is a reasonable probability of a different result if
counsel had asked if the man she saw was bloody or was carrying jewelry cases.
____________________

12
In the opening brief, Browning's counsel make a misleading claim. The brief states that there were 18
pretrial hearings during which [Mrs. Elsen] was present, and where Mr. Browning was present. At trial,
notwithstanding her repeated inability to identify the perpetrator, she was able to identify Browning. Although
Mrs. Elsen was present at all or most of these hearings, the record does not reflect that she was ever asked to
identify Browning at any of them.

13
See Browning, 104 Nev. at 274, 757 P.2d at 354.
Coe was deficient or that there is a reasonable probability of a different result if counsel had
asked if the man she saw was bloody or was carrying jewelry cases.
[Headnotes 16, 17]
Browning contends that trial counsel was ineffective for failing to object to two
references by the prosecution to Browning's prior criminal activity. First, Browning claims
that counsel should have objected to admission of a mug shot, which allowed the jury to infer
that Browning had been involved in prior criminal activity. We conclude that the photo had
no appreciable prejudicial effect since jurors had no reason to assume that it had been taken in
any other case but the one for which Browning was being tried. Second, Browning claims that
trial counsel should have objected during closing argument when the prosecutor referred to
Browning's involvement with drug use and said that his girlfriend prostituted for him.
Randy Wolfe had testified that Browning asked Wolfe to cop him some heroin. Wolfe also
commented on Gaylord's involvement in prostitution; however, trial counsel objected, and the
district court struck the statement. Therefore, although the prosecutor's comment on
Browning's drug use was based on a fact in evidence, there was no evidence that Browning
was involved in the crime of pimping or pandering prostitution. Such an improper reference
to criminal history may violate due process,
14
and counsel should have objected.
Nevertheless, we conclude that given the extensive evidence of Browning's guilt, this
reference alone was not prejudicial.
Browning asserts that trial counsel failed to address the State's evidence that
Browning's fingerprints were found in the jewelry store. This claim lacks merit; counsel did
address this evidence. He cross-examined all of the State's experts on fingerprints. He
specifically asked how long fingerprints remain on a surface in order to establish that the
presence of Browning's prints did not necessarily mean that he was in the store on the day of
the murder. Browning also claims that counsel should have consulted a fingerprint expert
before trial but fails to explain how such a consultation would have aided his defense.
Browning complains that his counsel failed to object to the prosecutor's
disparagement of the presumption of innocence. On direct appeal this court denounce[d] the
state's reference to the presumption of innocence' as a farce, but concluded that this act did
not justify reversal.
15
We conclude that Browning was not prejudiced by counsel's failure to
object.
____________________

14
See Manning v. Warden, 99 Nev. 82, 86-87, 659 P.2d 847, 850 (1983).

15
Browning, 104 Nev. at 272 n.1, 757 P.2d at 353 n.1.
Browning also claims that counsel should have objected to the jury instruction on
reasonable doubt as constitutionally inadequate. He cites Cage v. Louisiana
16
and Bollinger
v. State
17
but ignores Lord v. State,
18
where this court determined that the Nevada
reasonable doubt instruction at issue and the instruction given in Cage were distinguishable
and that the Nevada instruction was constitutional. Thus, counsel was not ineffective.
[Headnotes 18, 19]
Browning claims that counsel failed to object to improper vouching by the
prosecutor of Mrs. Elsen's identification of Browning. During closing argument, the
prosecutor stated that her identification was as good as you could ask for. Browning claims
that in its answer below the State conceded that Mrs. Elsen never positively identified
Browning. He asserts that the prosecutor's statements were severely prejudicial because Mrs.
Elsen was the only person who placed Browning in the jewelry store at the time of the
murder. This claim is without merit. The prosecution may not vouch for a witness; such
vouching occurs when the prosecution places the prestige of the government behind the
witness' by providing personal assurances of [the] witness's veracity.'
19
The remarks
here did not amount to improper vouching. The prosecution did not place the prestige of the
government behind Mrs. Elsen or provide personal assurances of her veracity. The prosecutor
merely commented on Mrs. Elsen's identification, which she herself admitted was limited
because she only saw the perpetrator from the side. Thus, counsel had no basis to object to
the prosecutor's remarks.
[Headnotes 20, 21]
Browning contends that counsel should have objected to the prosecutor's comments
on the defense's failure to call Browning's girlfriend Gaylord as a witness. (He also claims
that trial counsel should have requested a missing witness jury instruction, but provides no
authority.) During closing argument, trial counsel stated, I recall no testimony by a custodian
of records or anyone from the Clark County Detention Center that Marcia Gaylord was in
custody. The prosecutor responded in rebuttal that Randy Wolfe had testified that Gaylord
was in jail and that defense counsel has the capability of subpoenaing anyone he wants to.
He could bring in those jail records.
____________________

16
498 U.S. 39 (1990).

17
111 Nev. 1110, 1115, 901 P.2d 671, 674 (1995).

18
107 Nev. 28, 38-40, 806 P.2d 548, 554-56 (1991).

19
U.S. v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992) (quoting U.S. v. Roberts, 618 F.2d 530, 533 (9th Cir.
1980)).
bring in those jail records. He could bring in Marcia Gaylord. Sure not my witness. Sure
wasn't here to testify in this particular trial. This response went too far because the defense
had tried to subpoena Gaylord, but after a continuance of the trial due to the prosecutor's
calendaring mistake, the defense could not locate Gaylord. Here, the prosecutor should have
responded by simply stating that he did not need to produce the jail records because a witness
had testified that Gaylord was in jail. It was improper for him to point out that the defense
had not called Gaylord. Generally, a prosecutor's comment on the defense's failure to call a
witness impermissibly shifts the burden of proof to the defense.
20
However, as discussed
above, the issue of exactly when Gaylord was released from jail was not significant, and we
conclude that counsel's failure to object to the prosecutor's comment was not prejudicial.
[Headnote 22]
Browning complains that counsel failed to object during the guilt phase to the
prosecutor's use of a photo of Elsen, the victim, with a small child on his lap. Browning
contends that this picture amounted to victim impact evidence and was therefore improper
during the guilt phase. He has provided no authority to support this contention, and we
discern nothing prejudicial or inflammatory about the photo. It was reasonable for counsel not
to object.
[Headnotes 23-25]
Next, Browning claims that counsel's failure to have Browning testify was prejudicial
because he was the only witness that could explain why his fingerprints were in the jewelry
store given Gaylord's unavailability. He contends that the need to explain this evidence
outweighed the concern that he would be cross-examined regarding his prior convictions.
This claim is without merit. Every criminal defendant is privileged to testify in his own
defense, or to refuse to do so.'
21
Counsel can advise a defendant whether it is wise for him
to testify, but ultimately the decision lies with the defendant.
22
At trial, the district court
advised Browning of his right to testify, and Browning waived that right upon the advice of
counsel. Counsel then stated that he had advised Browning not to testify unless he could do
so without being subject to examination concerning his prior robbery convictions. In addition,
trial counsel stated at the evidentiary hearing that he advised Browning not to testify, but it
was ultimately Browning's decision, and Browning decided not to.
____________________

20
See Whitney v. State, 112 Nev. 499, 502, 915 P.2d 881, 882-83 (1996).

21
Ingle v. State, 92 Nev. 104, 106, 546 P.2d 598, 599 (1976) (quoting Harris v. New York, 401 U.S. 222,
225 (1971)).

22
See id.
not to testify, but it was ultimately Browning's decision, and Browning decided not to. Thus,
counsel was not ineffective for failing to have Browning testify at trial because Browning, not
counsel, made the decision. Moreover, counsel gave a valid reason why he advised Browning
not to testify, and there is no indication that Browning's decision was unknowing or coerced.
Browning asserts that trial counsel failed to exclude five jurors for cause during voir
dire even though they were victims of crimes similar to the crimes here. The five were
victims of car or home burglaries, and all told the court that they were able to be fair and
impartial despite their experiences as crime victims. Browning has not shown that counsel
acted ineffectively.
[Headnotes 26, 27]
Browning contends that trial counsel should have presented a defense of duress to the
charge of escape. He claims that he was under duress immediately after he was arrested
because of a police officer's threatening comments and cold conditions in the interrogation
room. Apparently, Browning was shirtless and handcuffed to a pole below an air conditioning
vent, and an officer allegedly told him that when you are busted for murder in Nevada the
case is closed. Browning picked the lock on his handcuffs, left the third-floor room, and
proceeded downstairs to the door leading outside, where he was caught. Under NRS
194.010(7), duress requires a reasonable belief that one's life would be endangered or that one
would suffer great bodily harm. The air conditioning and the officer's alleged comment do not
constitute cause for such a belief. Moreover, this court has held that duress is not applicable
to an escape charge; rather the proper defense is one of necessity, which requires the
following five conditions: the prisoner is faced with a specific, imminent threat of death,
forcible sexual attack, or substantial bodily injury; there is no time to complain to authorities,
or there is a history that such complaints are futile; there is no time or opportunity to resort to
the courts; no force or violence is used toward prison personnel or innocent persons during
the escape; and the prisoner immediately reports to the proper authorities after obtaining a
position of safety.
23
The facts here also do not support a necessity defense, and counsel
reasonably presented neither defense.
Finally, Browning claims in a footnote that trial counsel was ineffective for failing to
perform more precise testing of the State's blood evidence. He has not provided any cogent
argument, legal analysis, or supporting factual allegations; thus, this claim warrants no
consideration.
____________________

23
Jorgensen v. State, 100 Nev. 541, 543-44, 688 P.2d 308, 309-10 (1984).
Ineffective assistance of appellate counsel
The depravity-of-mind aggravator
Browning claims that he was denied effective assistance of counsel on direct appeal in
several ways. One claim has merit: appellate counsel failed to challenge the jury instruction
defining the aggravating circumstance of depravity of mind. The instruction read:
[D]epravity of mind is characterized by an inherent deficiency of moral sense and
rectitude. It consists of evil, corrupt and perverted intent which is devoid of regard for
human dignity and which is indifferent to human life. It is a state of mind outrageously,
wantonly vile, horrible or inhuman.
There was no jury instruction regarding torture or mutilation.
The instruction given in this case failed to properly define the term depravity of
mind.
24
Absent a proper limiting instruction, depravity of mind fails to provide the
required constitutional guidance to jurors.
25
We therefore construed the relevant statute,
former NRS 200.033(8),
26
to require torture, mutilation or other serious physical abuse
beyond the act of killing itself, as a qualifying requirement to an aggravating circumstance
based in part upon depravity of mind.
27

At the time of Browning's trial, this court had not yet deemed the depravity-of-mind
instruction unconstitutional; however, the United States Supreme Court had already deemed a
very similar instruction unconstitutional in Godfrey v. Georgia.
28
The Supreme Court
declared that a state has a constitutional responsibility to tailor and apply its law in a manner
that avoids the arbitrary and capricious infliction of the death penalty and must channel the
sentencer's discretion by clear and objective standards' that provide specific and detailed
guidance' and that make rationally reviewable the process for imposing a sentence of death.'

29
The Court concluded that the phrase outrageously or wantonly vile, horrible and
inhuman did not imply an inherent restraint on the arbitrary and capricious infliction of the
death sentence because any person could fairly characterize almost every murder as
outrageously or wantonly vile, horrible and inhuman.
30

____________________

24
Smith v. State, 110 Nev. 1094, 1103-04, 881 P.2d 649, 655-56 (1994).

25
See, e.g., id.

26
The Legislature amended NRS 200.033(8) in 1995, deleting depravity of mind as an element. 1995 Nev.
Stat., ch. 467, 1, at 1491.

27
Robins v. State, 106 Nev. 611, 629, 798 P.2d 558, 570 (1990).

28
446 U.S. 420, 428-29 (1980).

29
Id. at 428 (footnote citations omitted).

30
Id. at 428-29.
[Headnote 28]
In two opinions that preceded Browning's conviction, this court considered challenges
to Nevada's depravity-of-mind aggravator based upon Godfrey: Neuschafer v. State
31
and
Rogers v. State.
32
In both cases this court concluded that Godfrey was distinguishable and
that the Nevada statute regarding depravity of mind was constitutional as applied.
33
Because
a challenge based upon Godfrey was unsuccessful in these cases, the State argues that
Browning's appellate counsel was not ineffective in failing to raise the issue. Neuschafer and
Rogers, however, differed from Browning's case because in those cases the juries were
instructed on torture as well as depravity of mind and in Rogers the jury was further
instructed on mutilation, and this court concluded that the facts of those cases adequately
supported the aggravating circumstance.
34
Here, the instruction given referred only to
depravity of mind and plainly failed to provide adequate guidance to the jury under
Godfrey, and there was no indication that Browning tortured or mutilated the victim.
35

Because Browning's case resembled Godfrey more closely than did Neuschafer and
Rogers, the failure of Browning's appellate counsel to challenge the depravity-of-mind
instruction based upon Godfrey was objectively unreasonable. We also conclude that
prejudice resulted because there is a reasonable probability this court would have recognized
that the instruction was unconstitutionally vague, stricken the aggravator, and reversed
Browning's death sentence.
[Headnotes 29, 30]
Once an aggravator is stricken, this court either reweighs the aggravating and
mitigating circumstances or applies a harmless error analysis.
36
In reweighing, this court
disregards the invalid aggravating circumstances and reweighs the remaining permissible
aggravating and mitigating circumstances.37 A harmless error analysis requires a new
sentencing calculus to determine whether the error of the invalid aggravating
circumstance was harmless beyond a reasonable doubt.3S Either analysis asks the same
question: is it clear that absent the erroneous aggravator the jury would have imposed
death?
____________________

31
101 Nev. 331, 705 P.2d 609 (1985).

32
101 Nev. 457, 705 P.2d 664 (1985).

33
See Neuschafer, 101 Nev. at 336-37, 705 P.2d at 612-13; Rogers, 101 Nev. at 467-68, 705 P.2d at 671-72.

34
Neuschafer, 101 Nev. at 336-37 & n.2, 705 P.2d at 612-13 & n.2; Rogers, 101 Nev. at 467-68 & n.3, 705
P.2d at 671-72 & n.3. In Neuschafer, the victim was murdered by strangulation which snapped his neck back.
101 Nev. at 334, 705 P.2d at 611. In Rogers, the three victims were repeatedly shot and stabbed. 101 Nev. at
468, 705 P.2d at 671.

35
The record reveals that Browning inflicted five superficial stab wounds and one fatal wound to the heart,
which he penetrated three times without completely removing the knife from the victim's body.

36
Clemons v. Mississippi, 494 U.S. 738, 741 (1990) ([T]he Federal Constitution does not prevent a state
appellate court from upholding a death sentence that is based in part on an invalid or improperly defined
aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error
review.).
ing circumstances and reweighs the remaining permissible aggravating and mitigating
circumstances.
37
A harmless error analysis requires a new sentencing calculus to determine
whether the error of the invalid aggravating circumstance was harmless beyond a reasonable
doubt.
38
Either analysis asks the same question: is it clear that absent the erroneous
aggravator the jury would have imposed death?
39

In State v. Haberstroh, we recently concluded that the district court was correct that
the depravity-of-mind aggravator was improperly found because the instruction at issue
provided inadequate guidance to the jury, failing to limit the term depravity of mind in a
constitutional manner.
40
Like this case, the State in Haberstroh did not allege torture or
mutilation. Haberstroh presented no mitigating evidence, and four valid aggravators
remained: the murder was committed during a robbery, a first-degree kidnapping, and a
sexual assault, and Haberstroh was previously convicted of a felony involving the use or
threat of violence. We nevertheless held that the weight of the remaining aggravators was not
enough to convince us beyond a reasonable doubt that the jury would have returned a death
sentence without the depravity-of-mind aggravator, especially since the prosecutor heavily
emphasized the depravity of the murder.
41

We are also not convinced beyond a reasonable doubt that the jury here would have
returned a death sentence even without this aggravator. The jury found four other aggravators:
the murder was committed while Browning was engaged in the commission of or an attempt
to commit a burglary; the murder was committed while he was engaged in the commission of
or an attempt to commit a robbery; he was previously convicted of a felony involving the use
or threat of violence to the person of another; and the murder was committed while he was
under a sentence of imprisonment. These remaining aggravators carry no more weight than
those remaining in Haberstroh. And in closing argument the prosecutor stressed the
aggravating circumstance of depravity of mind and invoked the language of the instruction
defining the aggravator. He opened his argument by telling the jury that the human capacity
for evil and depraved behavior made the death penalty necessary in this case. Later, after
reading the instruction and describing the stabbing death of Elsen, he said: "Is that
wantonly vile, horrible, or inhuman?
____________________

37
State v. Haberstroh, 119 Nev. 173, 183, 69 P.3d 676, 683 (2003).

38
Id.

39
Id. at 183, 69 P.3d at 682-83; Leslie v. Warden, 118 Nev. 773, 783, 59 P.3d 440, 447 (2002).

40
119 Nev. at 182, 69 P.3d at 682.

41
Id. at 183-84, 69 P.3d at 683-84; cf. Valerio v. Crawford, 306 F.3d 742, 758-63 (9th Cir. 2002)
(concluding that the depravity-of-mind instruction at issue required a new penalty hearing).
death of Elsen, he said: Is that wantonly vile, horrible, or inhuman? I suggest to you that's
precisely what this instruction is talking about. This instruction is describing Paul Browning
to a tee. And finally he argued that the nature of the crime, and you can picture it in your
mind, was wantonly vile as the instruction says.
We conclude therefore that there is a reasonable probability that on direct appeal a
challenge to the depravity-of-mind aggravator would have succeeded. Thus, Browning was
prejudiced by appellate counsel's failure to challenge it.
Other claims of ineffective appellate counsel
Browning claims that appellate counsel was ineffective for failing to argue that
prosecutorial misconduct vitiated Browning's presumption of innocence and the concept of
reasonable doubt. He complains about prosecutorial statements regarding the presumption of
innocence and the jurors' duty to convict, the prosecutor's reference to reasonable doubt, and a
jury instruction on flight. Browning failed to provide argument, authority, specific
allegations, or reference to the record regarding any comment on the jurors' duty or an
instruction on flight, so these issues warrant no discussion.
The other aspects of this claim lack merit. Appellate counsel did assert numerous
instances of prosecutorial misconduct on direct appeal, but this court deemed only two worth
discussing and determined that in light of the overwhelming evidence of Browning's guilt
there was insufficient prejudice to reverse.
42
Counsel raised the issue of the prosecutor's
disparagement of the presumption of innocence, and this court denounced the misconduct but
concluded that it did not justify reversal.
43
Browning argues that appellate counsel should
have federalized the issue and gained a more favorable standard of review. This argument
is unpersuasive: this court recognized that the presumption of innocence is a fundamental
and elemental concept . . . solidly founded in our system of justice, but still determined that
the misconduct did not warrant reversal.
44
Browning claims that the prosecutor
supplemented the reasonable doubt instruction by stating so, don't anticipate answering all
the questions in this case as a prerequisite to coming back with a guilty verdict. It has nothing
to do whatsoever with reasonable doubt. This comment is certainly challengeablesome
unanswered questions are pertinent to reasonable doubtbut did not violate our admonition
to counsel not to explain, elaborate on, or offer analogies or examples based on the statutory
definition of reasonable doubt.
____________________

42
Browning, 104 Nev. at 272 & n.1, 757 P.2d at 353 & n.1.

43
Id. at 272 n.1, 757 P.2d at 353 n.1.

44
Id.
of reasonable doubt.
45
Instead, the prosecutor basically argued that evidence and theories
in the case before the jury either amount to or fall short of that definition, which is
acceptable argument.
46

[Headnote 31]
Next, Browning claims that appellate counsel was ineffective for failing to challenge
the admission of evidence of his thumbprint on a watch that was never linked to the crimes.
We discern no prejudice. Even if it had been shown that his fingerprints were not found on
any of the stolen jewelry, he was found in possession of the jewelry immediately after the
crimes.
Browning claims that his appellate counsel was ineffective for failing to argue that the
prosecutor committed misconduct by concealing benefits given to Randy Wolfe in exchange
for his testimony. There is now evidence of such benefits, and we consider that matter below
under Brady v. Maryland.
47
But counsel explored this issue at trial and was not ineffective.
Browning contends that appellate counsel failed to properly challenge the trial court's
granting of a continuance. Though this issue was raised on appeal,
48
Browning asserts that
counsel should have made several additional arguments. On appeal, this court concluded that
in light of the overwhelming evidence of guilt presented against him at trial, it is clear that
any alleged prejudice would not rise to the level justifying dismissal of the charged crimes.
49
Browning's claim is without merit because he still fails to demonstrate prejudice.
[Headnote 32]
Next, Browning claims that appellate counsel failed to challenge the escape
instruction and to argue that the district court should have instructed the jury on attempted
escape. Trial counsel asked for an attempted escape instruction as a lesser included offense
because Browning never made it out of the police station. NRS 212.090 states that a prisoner
is guilty of felony escape if he is confined in a prison, or . . . in the lawful custody of an
officer or other person, [and] escapes or attempts to escape from prison or custody, if he is
held on a charge, conviction or sentence of: 1. A felony. Browning picked the lock on his
handcuffs and escaped from the interview room.
____________________

45

46
Id.

47
373 U.S. 83 (1963).

48
Browning, 104 Nev. at 271, 757 P.2d at 352.

49
Id.
escaped from the interview room. Although apprehended before he left the police station, he
still escaped from where he was being detained. Therefore, the jury was properly instructed
on the escape charge. Moreover, the escape statute encompasses attempted escape. Appellate
counsel was not ineffective for failing to raise this claim on appeal because it had no
reasonable probability of success.
Browning claims that appellate counsel failed to challenge the adequacy of the jury
instruction on premeditation. We decline to consider this claim because it lacks any cogent
argument, legal analysis, or specific factual allegations to support it.
[Headnote 33]
Browning contends that appellate counsel should have argued that the trial court erred
in failing to give the jury an addict-informer instruction regarding the Wolfes' testimony. He
relies on Champion v. State, where this court held that it was plain error for the district court
not to caution the jury regarding an addict-informer's testimony because such an instruction
was central to the case.
50
Champion is distinguishable. In that case, the State conceded that
the addict-informer was unreliable, and his testimony was the only evidence that the
defendant had sold illegal drugs.
51
Here, the State has not conceded that the Wolfes were
unreliable, and their testimony was corroborated by extensive evidence. Furthermore, the jury
received a general cautionary instruction regarding the weight and credibility of witness
testimony as well as one regarding the credibility of witnesses with felony convictions. The
district court did not err by failing to give an addict-informer instruction; therefore, counsel
was not ineffective for failing to raise this issue on direct appeal. Browning also claims that
appellate counsel should have challenged the trial court's failure to give the jury a convicted
felon instruction. However, the jury received such an instruction, and Browning does not
explain how it was insufficient.
Next, Browning claims that appellate counsel failed to raise all instances of plain
error, including the prosecutor's insertion of his personal beliefs, his references to facts not
supported by the evidence, his comment on the defense's failure to call Gaylord as a witness,
and his submission of victim impact evidence during the guilt phase. These claims lack any
argument, legal analysis, or factual allegations to support them and do not warrant further
discussion.
____________________

50
87 Nev. 542, 490 P.2d 1056 (1971).

51
Id. at 543-44, 490 P.2d at 1057.
Other claims
Claims of prosecutorial misconduct
Browning claims the prosecutor committed misconduct in several ways. Browning
does not demonstrate good cause for failing to raise these issues on direct appeal or actual
prejudice. Late in his opening brief, he claims that appellate counsel was ineffective for
failing to raise acts of prosecutorial misconduct, but he fails to specify the acts. He does not
connect his claim of ineffective counsel with the independent claims of prosecutorial
misconduct. Moreover, many claims of misconduct were raised on direct appeal, but
Browning has not identified which of his present claims were or were not raised previously.
Among the claims of prosecutorial misconduct raised on direct appeal, this court only
considered two worthy of discussion. In deciding those two claims this court stated, in light
of the overwhelming evidence presented at the guilt phase of the trial, we cannot find the
quantum of prejudice required to reverse.
52

[Headnote 34]
Some other independent claims of prosecutorial misconduct, however, require some
discussion. Browning claims that the prosecutor presented false evidence regarding blood
found on Browning's coat, which was type B blood like the victim's. The prosecutor argued to
jurors that the blood on the coat belonged to the victim, though he also conceded that other
people have type B blood. DNA testing after the trial revealed that the blood was not the
victim's. Because this is an independent claim of prosecutorial misconduct, Browning must
demonstrate good cause for failing to raise it earlier and actual prejudice. Browning sought
DNA testing of the bloodstain in November 1999. He does not attempt to establish good
cause and explain why he did not raise the claim earlier.
53
But even if Browning could show
good cause, he cannot demonstrate prejudice. Although the prosecutor was wrong that the
blood belonged to the victim, the evidence he relied on was not false: the blood on the coat
was the same type as the victim's. Therefore, no prosecutorial misconduct occurred. (But in
assessing whether Browning's conviction remains sound, it is appropriate to consider the
impact of this evidence and argument. We do so below.) [Headnotes , ]
____________________

52

53
Browning asserts for the first time in his reply brief that trial counsel was ineffective for failing to object to
the prosecutor's assertions regarding the blood evidence and failing to seek further testing. NRAP 28(c) does not
allow the raising of new claims in reply briefs; it limits a reply brief to addressing new matters raised in the
answering brief.
[Headnotes 35, 36]
Browning asserts that the prosecutor also committed misconduct by withholding
exculpatory evidence in violation of Brady v. Maryland.
54
Brady requires a prosecutor to
disclose evidence favorable to the defense when that evidence is material either to guilt or to
punishment.
55
Evidence must also be disclosed if it provides grounds for the defense to
impeach the credibility of the State's witness or to bolster the defense case.
56
[T]here are
three components to a Brady violation: the evidence at issue is favorable to the accused; the
evidence was withheld by the state, either intentionally or inadvertently; and prejudice
ensued, i.e., the evidence was material.
57
Absent a specific request for the evidence,
evidence is material if there is a reasonable probability that the result would have been
different if the evidence had been disclosed.
58

[Headnotes 37, 38]
First, the prosecutor withheld information regarding benefits given to an important
witness for the State, Randy Wolfe. At trial, Wolfe denied receiving or expecting any benefits
for his testimony. However, at that time Wolfe was the defendant in a separate criminal
prosecution, and the prosecutor admitted at the post-conviction evidentiary hearing that after
Browning's trial he told the district judge assigned to Wolfe's case that Wolfe had helped in
prosecuting Browning; he also admitted that he later helped Wolfe acquire a job. Though the
prosecutor maintained that he acted unilaterally and never made any deal with Wolfe, this
information still should have been disclosed to the defense. Under Brady, even if the State
and a witness have not made an explicit agreement, the State is required to disclose to the
defense any evidence implying an agreement or an understanding.
59
The next question is
whether there is a reasonable probability of a different result if this information had been
disclosed. We conclude the answer is no. Wolfe's credibility was extensively challenged at
trial. The jury was made aware that he had initially kept some of the stolen jewelry in this
case for himself and lied under oath about doing so. On cross-examination, defense counsel
also established that Wolfe had a history of heroin and other illegal drug use and had used
heroin just four days before testifying, had stolen property and pimped his wife to support
his drug use, had three prior felony convictions, and still faced sentencing for one of those
convictions.
____________________

54
373 U.S. 83.

55
Mazzan v. Warden, 116 Nev. 48, 66, 993 P.2d 25, 36 (2000).

56
Id. at 67, 993 P.2d at 37.

57
Id.

58
Id. at 66, 993 P.2d at 36.

59
Jimenez v. State, 112 Nev. 610, 622, 918 P.2d 687, 694-95 (1996).
four days before testifying, had stolen property and pimped his wife to support his drug use,
had three prior felony convictions, and still faced sentencing for one of those convictions.
Thus, though the jurors were not told that Wolfe would receive benefits for his testimony, he
was stiffly impeached on other grounds. Moreover, strong evidence corroborated his
testimony, most notably the discovery of Browning with the stolen jewelry right after the
murder. So considering this issue alone, there is not a reasonable probability of a different
result if the information in question had been disclosed.
Second, Browning contends that the State withheld the fact, discussed earlier, that
bloody shoeprints near the victim were already present when the first police officer arrived at
the crime scene. We have already concluded that this information was not material in
rejecting Browning's contention that his trial counsel was ineffective. We further conclude
that under Brady the State did not withhold this information because it was reasonably
available to the defense, as Browning acknowledges by claiming that his counsel should have
interviewed the officer and discovered it.
60

Finally, Browning also claims that the State violated Brady in regard to the fact, also
discussed earlier, that the black police officer, not the white victim, used the term jeri-curl
to describe the perpetrator's hair. Again, the State did not withhold this information because it
was reasonably available to the defense.
Remaining claims
[Headnote 39]
Browning claims that the State failed to preserve key evidence at the crime scene that
had apparent exculpatory valuea shard of glass with blood on it. He asserts that this
evidence may have exonerated him because the shard was not near the victim, suggesting that
the blood belonged to the actual perpetrator. Because Browning failed to raise this claim on
direct appeal, he is required to demonstrate good cause for the failure and actual prejudice.
Browning has not offered any good cause for not raising this claim earlier. Nor has he
demonstrated prejudice. The State's loss or destruction of evidence constitutes a due process
violation only if the defendant shows either that the State acted in bad faith or that the
defendant suffered undue prejudice and the exculpatory value of the evidence was apparent
before it was lost or destroyed.
61
Browning has shown neither bad faith nor that the
evidence had apparent exculpatory value.
____________________

60
See Steese v. State, 114 Nev. 479, 495, 960 P.2d 321, 331 (1998).

61
[Headnote 40]
Browning asserts that the district court should have granted a new trial under NRS
176.515 based upon the discovery of new evidencethe testimony of Frederick Ross. Ross
testified at the evidentiary hearing that a dark-skinned Cuban with a jeri-curl who was
associated with Randy Wolfe committed the crimes. Browning claims that this evidence is
newly discovered because he did not know that Ross was a witness. NRS 176.515(3)
provides that a motion for a new trial based upon newly discovered evidence must be made
within two years after the verdict. Browning was convicted in 1987, and it appears that any
motion was not timely under NRS 176.515. To raise this issue as a habeas claim, Browning
must demonstrate good cause for its untimeliness and actual prejudice. Or absent good cause,
Browning must demonstrate that a fundamental miscarriage of justice would occur if this
court failed to consider this claim.
62
Browning has shown none of the above. He presented
evidence at the post-conviction hearing that on the day of the crimes in 1985 he stood outside
a car in which Ross was seated and yet did not observe Ross. Ross testified that he later met
Browning in early 1989 when they were in prison together and that he contacted Browning's
lawyer in 1992 regarding Browning's innocence. The claim was not raised in Browning's
original petition, and the affidavit by Ross that Browning proffered to the district court is
dated July 21, 1995. Thus, Browning raised this issue in an untimely manner without
apparent good cause. In addition, Ross admitted to numerous felony and misdemeanor
convictions, and the record shows that his testimony lacked any credibility. We conclude
therefore that Browning has also failed to demonstrate prejudice, let alone a miscarriage of
justice.
Finally, Browning claims the district court's continuance of the trial was improper. On
direct appeal this court rejected Browning's argument that the continuance violated his
constitutional and statutory rights to a speedy trial.
63
He now argues that the continuance
violated the procedures dictated by this court's opinions in Hill v. Sheriff
64
and Bustos v.
Sheriff.
65
To the extent that this is a new claim, it should have been raised on direct appeal,
and Browning has failed to demonstrate good cause for failing to do so and actual prejudice.
To the extent that the claim is not new, the law of the case applies because the claim was
considered and rejected on direct appeal.
____________________

62
See Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996).

63

64
85 Nev. 234, 452 P.2d 918 (1969), limited by Sheriff v. Marcus, 116 Nev. 188, 995 P.2d 1016 (2000).

65
87 Nev. 622, 491 P.2d 1279 (1971).
new, the law of the case applies because the claim was considered and rejected on direct
appeal.
66

Cumulative prejudice
[Headnote 41]
Several of Browning's claims establish some prejudicial effect: the failure of trial
counsel to discover and present the evidence that the victim's description of the perpetrator's
hair did not match Browning's hair, counsel's failure to object to the prosecutor's improper
statement linking Browning to prostitution, the prosecutor's failure to divulge that Wolfe
received benefits for his testimony, and the unfounded inference that the blood on Browning's
coat could have been the victim's. The question is: if we consider these factors cumulatively,
is there a reasonable probability that Browning would not have been convicted of first-degree
murder? We conclude that there is no such reasonable probability. The evidence of
Browning's guilt remains overwhelming: his fingerprints at the crime scene, identification by
three witnesses placing him at or near the crimes, his admissions of guilt to the Wolfes, and
his presence in a hotel room surrounded by the stolen jewelry.
CONCLUSION
Browning's appellate counsel was ineffective for failing to challenge the aggravating
circumstance of depravity of mind because the jury instructions failed to provide the
constitutionally required guidance to jurors. Browning's other claims fail. We therefore vacate
his death sentence and remand for a new penalty hearing. We otherwise affirm the district
court's order denying Browning's petition for post-conviction relief.
____________
120 Nev. 372, 372 (2004) Lindblom v. Prime Hospitality Corp.
KAREN LINDBLOM, Appellant, v. PRIME HOSPITALITY
CORP., dba WELLESLEY INN AND SUITES, Respondent.
No. 39893
June 10, 2004 90 P.3d 1283
Appeal from an order setting aside a default judgment. Eighth Judicial District Court,
Clark County; Valorie J. Vega, Judge.
The supreme court, Maupin, J., held that: (1) order setting aside default judgment was
appealable as a special order, (2) excusable neglect was not a basis upon which defendant
could be granted relief from default judgment, (3) defendant's participation in pre-suit
negotiations constituted an "appearance" that entitled defendant to written notice of
application for default judgment, and {4) written notice of hearing on application for
default judgment is required to be given when pre-suit interactions between plaintiff and
defendant evince a clear intent to appear and defend.
____________________

66
See Hall v. State, 91 Nev. 314, 535 P.2d 797 (1975).
in pre-suit negotiations constituted an appearance that entitled defendant to written notice
of application for default judgment, and (4) written notice of hearing on application for
default judgment is required to be given when pre-suit interactions between plaintiff and
defendant evince a clear intent to appear and defend.
Affirmed.
Vannah Costello Canepa Riedy Rubino & Lattie and Matthew R. Vannah, Las Vegas,
for Appellant.
Bennion Cardone & Clayson and David R. Clayson and David O. Creasy, Las Vegas,
for Respondent.
Trial court's order setting aside default judgment in guest's personal injury action
against defendant was appealable as a special order, where defendant's motion to set
aside default judgment as void was filed more than six months after entry of default
judgment. NRAP 3A(b)(2); NRCP 60(b)(3).
2. Judgment.
Excusable neglect was not a basis upon which defendant could be granted relief from
default judgment in plaintiff's personal injury action, where defendant filed motion to
set aside default judgment more than six months after entry of default judgment. NRCP
60(b)(1).
Trial court's exercise of discretion in granting or denying a motion to set aside a
default judgment on the grounds of mistake, inadvertence, surprise, or excusable
neglect will not be disturbed on appeal absent an abuse of discretion. NRCP 60(b)(1).
4. Appearance; Judgment.
Defendant's participation in pre-suit negotiations with plaintiff constituted an
appearance that entitled defendant to written notice of plaintiff's application for
default judgment in personal injury action; plaintiff and defendant's liability insurer
undertook extensive discussions and negotiations concerning claim for negligence and
damages in year following accident, and neither defendant nor insurer made any
attempt to abandon or ignore proceedings. NRCP 55(b)(2).
5. Judgment.
Default judgment entered without notice when notice was required to be given to
defendant is void and subject to a motion to set aside on basis that judgment was void.
NRCP 55(b)(2), 60(b)(3).
6. Judgment.
Default judgments are only available as a matter of public policy when an essentially
unresponsive party halts the adversarial process.
7. Judgment.
Written notice of hearing on application for default judgment is required to be given
to defendant when pre-suit interactions between plaintiff and defendant evince a clear
intent on part of defendant to appear and defend. NRCP 55(b)(2).
OPINION
In this appeal, we consider whether a defendant's participation in pre-suit negotiations
may constitute an appearance and entitle the defendant to notice of default proceedings under
NRCP 55(b)(2).
Appellant Karen Lindblom was injured at the Wellesley Inn and Suites Hotel in Las
Vegas, Nevada, on June 30, 2000. Respondent Prime Hospitality Corporation, d/b/a
Wellesley Inn and Suites, owns the hotel facility. During the year following the accident,
Lindblom and Prime Hospitality's liability insurer undertook extensive discussions and
negotiations concerning her claim for negligence and damages. Several settlement offers and
demands were exchanged and refused. Lindblom filed suit against Prime Hospitality on July
25, 2001, and effected service on July 27, 2001. Although Prime Hospitality timely forwarded
the summons and complaint to its insurer, the insurer either did not receive the documents or,
through some oversight, did not act upon them. Lindblom entered default on August 28,
2001, and obtained a default judgment without notice to either Prime Hospitality or its insurer
on September 10, 2001. There was no interaction of record between Lindblom and Prime
Hospitality or its insurer between commencement of the action and entry of the default
judgment, and no further contact between the parties occurred until Lindblom initiated
collection proceedings in April 2002.
[Headnote 1]
Upon receiving notice of the execution, Prime Hospitality, through its insurers,
immediately moved to set aside the default judgment as void under NRCP 60(b)(3) and
NRCP 55(b)(2) for failure to provide three days' notice of the hearing on the application for
entry of a default judgment. Although the district court declined to afford relief based upon
lack of notice, it granted the motion to set aside under NRCP 60(b)(1), citing excusable
neglect. Lindblom filed this timely appeal.
1

____________________

1
See NRAP 3A(b)(2). Prime Hospitality, citing Kokkos v. Tsalikis, 91 Nev. 24, 530 P.2d 756 (1975), argues
that the order setting aside default judgment is not an appealable order. We disagree. Kokkos held that an order
setting aside entry of default was not appealable under NRAP 3A. However, under NRAP 3A(b)(2) an order
setting aside a default judgment is appealable as a special order after judgment if the motion to set aside is made
more than sixty days after entry of the judgment. The motion in this case was filed more than six months after
entry of the default judgment.
DISCUSSION
[Headnote 2]
NRCP 60(b) provides as follows:
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 proceeding for the following reasons: (1)
mistake, inadvertence, surprise, or excusable neglect; (2) fraud . . . [or] (3) the
judgment is void . . . . 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.
(Emphasis added.)
[Headnote 3]
A trial court's exercise of discretion in granting or denying a motion to set aside a
default judgment on the grounds of mistake, inadvertence, surprise or excusable neglect will
not be disturbed upon appeal absent an abuse of discretion.
2
A party must make an
application for relief under NRCP 60(b)(1) within six months after entry of the judgment. As
noted above, the six-month limitation period does not apply to applications under NRCP
60(b)(3).
In this instance, although Prime Hospitality sought relief under NRCP 60(b)(3) on the
ground that the judgment was void for lack of notice under NRCP 55(b)(2), the district court
set aside the judgment citing excusable neglect under NRCP 60(b)(1). We conclude that the
district court improperly granted NRCP 60(b)(1) relief without considering the voidness
argument because Prime Hospitality filed its motion to set aside more than six months after
entry of the default judgment. This, however, does not end the matter because Prime
Hospitality sought relief from the judgment under NRCP 60(b)(3), on voidness grounds,
within a reasonable time after entry of the judgment.
[Headnotes 4-6]
Under NRCP 55(b)(2), a defendant that has appeared in an action is entitled to
written notice of the application for judgment at least 3 days prior to the hearing on such
application. Under our decision in Christy v. Carlisle,
3
a judgment entered without notice
when required under NRCP 55(b)(2) is void and subject to a motion to set aside. Such
motions are made under NRCP 60(b)(3).
____________________
Prime Hospitality also argues that Lindblom waived this appeal by failing to seek a stay and participating in
considerable litigation activity below in preparation for trial. We reject this contention as being without merit.

2
Hotel Last Frontier v. Frontier Prop., 79 Nev. 150, 153, 380 P.2d 293, 294 (1963).

3
94 Nev. 651, 654, 584 P.2d 687, 689 (1978).
Default judgments are only available as a matter of public policy when an essentially
unresponsive party halts the adversarial process.
4
In Christy, we held that settlement
negotiations and exchanges of correspondence between plaintiff's counsel and defendant's
insurance representative after suit was filed constituted an appearance implicating the
three-day notice requirement of NRCP 55(b)(2).
5

[Headnote 7]
Here, however, no interaction of any kind took place between Lindblom and Prime
Hospitality's insurer after commencement of the lawsuit. Lindblom, therefore, argues that the
judgment is not void because an appearance cannot be made before an action is filed and
Prime Hospitality made no appearance for more than six months after the complaint was
filed. We disagree and conclude that the policy considerations underlying NRCP 55(b)(2)'s
three-day notice requirement are furthered by equating pre-suit negotiations with an
appearance under the rule.
6
Accordingly, we extend our holding in Christy to require three
days' written notice of hearings on applications for default judgments under NRCP 55(b)(2)
when pre-suit interactions evince a clear intent to appear and defend. This conclusion is
consistent with case authority from other jurisdictions on this issue.
7

Given the short time period between the deadline for Prime Hospitality's appearance
and the entry of the default judgment, the extensive settlement interactions between Lindblom
and Prime Hospitality before initiation of formal legal proceedings, Prime Hospitality's
referral of the summons to its insurer for defense, and Prime Hospitality's promptness in
seeking relief after receiving notice that collection proceedings had been commenced, we
cannot conclude that either Prime Hospitality or its insurer made any attempt to abandon or
ignore the proceedings. We, therefore, hold that Prime Hospitality's participation in pre-suit
negotiations constitutes an appearance entitling it to notice under NRCP 55(b)(2).
____________________

4
Id.

5
Id.

6
Id.

7
See, e.g., Meier v. McCord, 632 N.W.2d 477, 483 (S.D. 2001) (informal contacts and settlement
negotiations between the parties prior to filing of the complaint constitute an appearance); Roso v. Henning, 566
N.W.2d 136, 140-41 (S.D. 1997) (settlement negotiations between plaintiff and defendants' insurer prior to
service of complaint constituted an appearance); Colacurcio v. Borger, 41 P.3d 506, 509 (Wash. Ct. App.
2002) (informal acts through the actions of an agent, prior to filing, may constitute an appearance); Batterman v.
Red Lion Hotels, Inc., 21 P.3d 1174, 1178-79 (Wash. Ct. App. 2001) (the acts of an agent in attempting to
negotiate a settlement constitute an informal appearance).
CONCLUSION
The pre-suit interactions between Lindblom and Prime Hospitality's insurer constitute
an appearance under NRCP 55(b)(2). Accordingly, Lindblom's failure to provide Prime
Hospitality with three days' written notice of the hearing on the application for default
judgment rendered the judgment void. We, therefore, affirm the district court even though the
relief afforded was improvidently based.
8

Rose and Douglas, JJ., concur.
____________
120 Nev. 377, 377 (2004) Bonicamp v. Vazquez
KEVIN P. BONICAMP, Appellant, v. BENNY VAZQUEZ; JUDITH VAZQUEZ;
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, a Delaware
Corporation; THE ESTATE OF MAX MARK MEAD and THE ESTATE OF
SHIRLEY SHARNA MEAD, Respondents.
No. 40332
June 10, 2004 91 P.3d 584
Appeal from a district court order granting judgment on the pleadings in a judicial
foreclosure action. Eighth Judicial District Court, Clark County; Kathy A. Hardcastle, Judge.
Deed of trust beneficiary brought action against settlors' estates and others for judicial
foreclosure after obtaining personal judgment against settlors in another state. The district
court entered judgment on pleadings in favor of defendants. Beneficiary appealed. The
supreme court, Maupin, J., held that: (1) the beneficiary violated the one-action rule and
forfeited his rights in the collateral, (2) the foreign judgment could not be converted to
prevent the beneficiary from violating one-action rule, and (3) settlors did not waive any
benefit from Nevada one-action rule by failing to assert it in the beneficiary's proceeding in
the other state.
Affirmed.
Clark & Richards and Gordon C. Richards, Las Vegas, for Appellant.
Gerrard Cox & Larsen and Douglas D. Gerrard and Benjamin D. Johnson, Las
Vegas, for Respondents Benny Vazquez, Judith Vazquez and Mortgage Electronic
Registration Systems.
____________________

8
See Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987) (holding that this court will affirm
the order of the district court if it reached the correct result, albeit for different reasons).
Jolley Urga Wirth & Woodbury and Natalie M. Cox, Las Vegas, for Respondents the
Estate of Max Mark Mead and the Estate of Shirley Sharna Mead.
1. Pleading.
An order granting judgment on the pleadings is appropriate only when material facts
are not in dispute and the movant is entitled to judgment as a matter of law. NRCP
12(c).
2. Mortgages.
As a general matter, should the creditor fail to follow the single action procedure by
bringing a separate action directly on the obligation, the one-action rule dictates the
creditor's loss of rights in the real estate collateral securing the debt in question. NRS
40.430.
3. Mortgages.
The one-action rule of statute, permitting one action for the recovery of any debt or
for the enforcement of any right secured by a mortgage or other lien upon real estate,
requires a creditor seeking recovery on a debt to judicially foreclose on all real property
encumbered as security for the debt, sue on the entire debt, and obtain a deficiency
judgment against the debtor in the same foreclosure action. The statute contemplates a
creditor's action to exhaust the security before recovering from the debtor personally.
NRS 40.430.
4. Mortgages.
Deed of trust beneficiary's failure to exhaust security on Nevada real estate before
bringing suit and obtaining personal judgment against settlors in another state violated
the one-action rule and, thus, effected a legal forfeiture of his rights in the collateral and
the beneficiary's right to bring the second separate judicial foreclosure action in the
state. The suit in the other state was an action for purposes of the statute permitting
one action for the recovery of any debt. NRS 40.430.
5. Mortgages.
Deed of trust beneficiary's foreign judgment establishing settlors' personal liability
was final and could not be converted to prevent the beneficiary from violating
one-action rule by obtaining the judgment and then seeking judicial foreclosure of deed
of trust on property in state. NRS 40.430, 40.435(1), (2).
6. Mortgages.
Deed of trust settlors did not waive any benefit from Nevada one-action rule by failing
to assert it in the beneficiary's proceeding in another state for personal judgment against
the settlors. They could still invoke sanction aspect of forfeiture of rights in collateral in
Nevada. NRS 40.430, 40.435(3).
7. Mortgages.
The one-action rule of statute, permitting one action for the recovery of any debt or
for the enforcement of any right secured by a mortgage or other lien upon real estate,
does not provide a complete affirmative defense to a separate personal action on the
debt, wherever commenced, does not excuse the underlying debt, but can only be used
to force the creditor to exhaust the security before entry of a deficiency judgment. The
one-action rule prohibits first seeking the personal recovery and then attempting, in an
additional suit, to recover against the collateral. NRS 40.430.
OPINION
In this appeal, we consider whether the district court erroneously awarded judgment to
respondents under NRS 40.430, Nevada's one-action rule. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Prior to their deaths, Max and Shirley Mead became indebted to appellant Kevin P.
Bonicamp, in connection with a Colorado bail bonding arrangement made on behalf of their
daughter. Mr. and Mrs. Mead later secured their obligation with a deed of trust on residential
real estate located in Nevada.
At some point, the Meads breached various provisions of the bonding agreement with
Bonicamp, and Bonicamp obtained a personal default judgment in Colorado against them in
the amount of $71,658.39. Mr. Mead then transferred his interest in the collateral to
respondents Benny and Judith Vazquez, who ultimately encumbered the property further, via
another deed of trust, with respondent Mortgage Electronic Registration Systems (MERS).
1
Thereafter, Bonicamp domesticated the Colorado judgment in Nevada and commenced the
Nevada judicial foreclosure proceedings below against Mr. and Mrs. Mead's estates, Mr. and
Mrs. Vazquez and MERS. The district court granted judgment on the pleadings
2
as to all
defendants under the Nevada one-action rule, NRS 40.430, which requires that creditors
seeking to enforce obligations secured by real property do so in a single action.
3
Bonicamp
timely initiated this appeal.
DISCUSSION
[Headnotes 1-3]
An order granting judgment on the pleadings under NRCP 12(c) is appropriate only
when material facts are not in dispute and the movant is entitled to judgment as a matter of
law.
4
The facts in this case are undisputed concerning the creation of the debt in Colorado
secured by a personal residence in Nevada, Bonicamp's recovery of a default judgment in
Colorado and his subsequent attempt at recovering against the security in the Nevada
action below.
____________________

1
Mr. and Mrs. Vazquez, their lenders and/or the title company evidently overlooked the Bonicamp trust
deed.

2
See NRCP 12(c).

3
In light of its ruling, which we now affirm, it was unnecessary for the district court to resolve other issues
litigated below by Mr. and Mrs. Vazquez and MERS.

4
See Duff v. Lewis, 114 Nev. 564, 568, 958 P.2d 82, 85 (1998).
covering against the security in the Nevada action below. All of this is reflected in the
pleadings before the district court. The only issue in this appeal is whether the district court
correctly interpreted Nevada's one-action rule as codified in NRS 40.430(1) and (2):
1. . . . [T]here may be but one action for the recovery of any debt, or for the
enforcement of any right secured by a mortgage or other lien upon real estate. . . . In
that action, the judgment must be rendered for the amount found due the plaintiff, and
the court, by its decree or judgment, may direct a sale of the encumbered property, or
such part thereof as is necessary, and apply the proceeds of the sale as provided in NRS
40.462.
2. This section must be construed to permit a secured creditor to realize upon the
collateral for a debt or other obligation agreed upon by the debtor and creditor when the
debt or other obligation was incurred.
The Nevada one-action rule requires a creditor seeking recovery on a debt to judicially
foreclose on all real property encumbered as security for the debt, sue on the entire debt and
obtain a deficiency judgment against the debtor in the same foreclosure action. The statute
contemplates a creditor's action to exhaust the security before recovering from the debtor
personally.
5
As a general matter, should the creditor fail to follow the single action
procedure by bringing a separate action directly on the obligation, the one-action rule dictates
the creditor's loss of rights in the real estate collateral securing the debt in question.
6

[Headnote 4]
Bonicamp brought two separate proceedings concerning the debt in question. The first
action, brought in Colorado, resulted in a personal judgment against Mr. and Mrs. Mead. The
second action, the instant matter below, sought judicial foreclosure on the collateral, pursuant
to the deed of trust. NRS 40.430 required Bonicamp to first exhaust the security for the debt.
Bonicamp's failure in this regard violates the one-action rule and, thus, effects a legal
forfeiture of his rights in the collateral and his right to bring the second separate judicial
foreclosure action in the State of Nevada.
Bonicamp contends that the Colorado litigation was not an action for the purpose of
NRS 40.430. In this, he asserts that the proceeding in Colorado simply established the nature
and extent of the obligation and that he has undertaken no collection efforts in Nevada in aid
of the Colorado judgment.
____________________

5
See Keever v. Nicholas Beers Co., 96 Nev. 509, 513, 611 P.2d 1079, 1082 (1980); see also Nevada
Wholesale Lumber v. Myers Realty, 92 Nev. 24, 28, 544 P.2d 1204, 1207 (1976).

6
Nevada Wholesale Lumber, 92 Nev. at 30, 544 P.2d at 1208.
Nevada in aid of the Colorado judgment. This argument is without merit. First, Bonicamp
sought and obtained an award of damages in the Colorado action. Second, he domesticated
the judgment in Nevada, entitling him to collect on the judgment under Nevada law. Third,
the default judgment in this matter is an action under NRS 40.430.
7
Fourth, although NRS
40.430 does not specifically define the term action, NRS 40.430(4) enumerates sixteen acts
that do not constitute a duplicative action under the statute.
8
A separate action on the debt
commenced in another jurisdiction is not included.
____________________

7
See generally id. (entry of default judgment implicated the one-action rule).

8
NRS 40.430(4) states:
As used in this section, an action does not include any act or proceeding:
(a) To appoint a receiver for, or obtain possession of, any real or personal collateral for the debt or as
provided in NRS 32.015.
(b) To enforce a security interest in, or the assignment of, any rents, issues, profits or other income of
any real or personal property.
(c) To enforce a mortgage or other lien upon any real or personal collateral located outside of the
State which does not, except as required under the laws of that jurisdiction, result in a personal judgment
against the debtor.
(d) For the recovery of damages arising from the commission of a tort, including a recovery under
NRS 40.750, or the recovery of any declaratory or equitable relief.
(e) For the exercise of a power of sale pursuant to NRS 107.080.
(f) For the exercise of any right or remedy authorized by chapter 104 of NRS or by the Uniform
Commercial Code as enacted in any other state.
(g) For the exercise of any right to set off, or to enforce a pledge in, a deposit account pursuant to a
written agreement or pledge.
(h) To draw under a letter of credit.
(i) To enforce an agreement with a surety or guarantor if enforcement of the mortgage or other lien
has been automatically stayed pursuant to 11 U.S.C. 362 or pursuant to an order of a federal bankruptcy
court under any other provision of the United States Bankruptcy Code for not less than 120 days
following the mailing of notice to the surety or guarantor pursuant to subsection 1 of NRS 107.095.
(j) To collect any debt, or enforce any right, secured by a mortgage or other lien on real property if
the property has been sold to a person other than the creditor to satisfy, in whole or in part, a debt or
other right secured by a senior mortgage or other senior lien on the property.
(k) Relating to any proceeding in bankruptcy, including the filing of a proof of claim, seeking relief
from an automatic stay and any other action to determine the amount or validity of a debt.
(l) For filing a claim pursuant to chapter 147 of NRS or to enforce such a claim which has been
disallowed.
(m) Which does not include the collection of the debt or realization of the collateral securing the debt.
(n) Pursuant to NRS 40.507 or 40.508.
(o) Which is exempted from the provisions of this section by specific statute.
(p) To recover costs of suit, costs and expenses of sale, attorneys' fees and other incidental relief in
connection with any action authorized by this subsection.
tion on the debt commenced in another jurisdiction is not included. We therefore conclude
that the Colorado litigation was an action for the purposes of the one-action rule.
[Headnote 5]
Bonicamp claims entitlement to conversion of his Nevada action to conform to the
one-action rule. Conversion is allowed under NRS 40.435(1) and (2) when the initial action
has not been concluded:
1. The commencement of or participation in a judicial proceeding in violation of
NRS 40.430 does not forfeit any of the rights of a secured creditor in any real or
personal collateral, or impair the ability of the creditor to realize upon any real or
personal collateral, if the judicial proceeding is:
(a) Stayed or dismissed before entry of a final judgment; or
(b) Converted into an action which does not violate NRS 40.430.
2. If the provisions of NRS 40.430 are timely interposed as an affirmative defense in
such a judicial proceeding, upon the motion of any party to the proceeding the court
shall:
(a) Dismiss the proceeding without prejudice; or
(b) Grant a continuance and order the amendment of the pleadings to convert the
proceeding into an action which does not violate NRS 40.430.
The Colorado action implicates the one-action rule in this case. The judgment obtained in that
action is final and cannot be converted.
[Headnotes 6, 7]
Finally, Bonicamp maintains that the Mead Estates waived any benefit from Nevada's
one-action rule by failing to assert it in the Colorado proceeding. We disagree. We have held
that [f]ailure to assert NRS 40.430 as an affirmative defense [in a separate action that
violates NRS 40.430] does not result in a waiver of all protection under that statute and
leaves the debtor or his successor in interest free to invoke the sanction aspect of the
one-action' rule.
9
Going further, NRS 40.435(3) provides:
The failure to interpose, before the entry of a final judgment, the provisions of NRS
40.430 as an affirmative defense in . . . a proceeding [that violates NRS 40.430] waives
the defense in that proceeding. Such a failure does not affect the validity of the final
judgment, but entry of the final judgment releases and discharges the mortgage or other
lien.
Accordingly, NRS 40.430 does not provide a complete affirmative defense to a separate
personal action on the debt, wherever commenced.
____________________

9
Nevada Wholesale Lumber, 92 Nev. at 30, 544 P.2d at 1208.
menced. When raised, it can only be used to force the creditor to exhaust the security before
entry of a deficiency judgment. Whether or not the debtor pleads violation of the one-action
rule as an affirmative defense to the separate action, NRS 40.430 does not excuse the
underlying debt. Rather, the one-action rule prohibits first seeking the personal recovery and
then attempting, in an additional suit, to recover against the collateral. We hold that, under the
circumstances presented, the district court correctly interpreted this rule against multiplicity
of actions.
Because the Nevada one-action rule bars this action as a matter of law, we affirm the
district court's order below.
____________
120 Nev. 383, 383 (2004) Miles v. State
ALFRED EARL MILES, Appellant, v. THE STATE
No. 42045
June 10, 2004 91 P.3d 588
Appeal from a district court order dismissing appellant's post-conviction petition for a
writ of habeas corpus. Second Judicial District Court, Washoe County; James W. Hardesty,
Judge.
Defendant convicted of trafficking in controlled substance filed petition for
post-conviction writ of habeas corpus. The district court granted State's petition to dismiss,
and defendant appealed. The supreme court held that trial court had discretion to allow
defendant to amend petition to cure verification defect.
Roger R. Harada, Reno, for Appellant.
Attorney, and Joseph R. Plater III, Deputy District Attorney, Washoe County, for
Respondent.
1. Habeas Corpus.
Improper verification of defendant's post-conviction petition for writ of habeas corpus
was not jurisdictional defect, and thus, trial court had discretion to allow defendant to
amend petition, even though one-year period for filing petition had already passed.
NRS 34.726, 34.730(1).
2. Habeas Corpus.
Once the district court acquires jurisdiction by the timely filing of the habeas petition,
any defects in the petition may be cured by amendment, even after the statutory time
limit for filing the petition has elapsed.
120 Nev. 383, 384 (2004) Miles v. State
3. Habeas Corpus.
An inadequate verification does not divest the district court of jurisdiction to consider
a habeas petition.
OPINION
Per Curiam:
In this appeal, we consider whether a district court has jurisdiction to permit an
inadequately verified post-conviction petition for a writ of habeas corpus to be cured by
subsequent amendment. We conclude that such a defect is not jurisdictional and, therefore,
the district court has discretion to permit a petitioner to amend the petition to cure an
inadequate verification.
FACTS
Appellant Alfred Earl Miles was convicted, pursuant to a guilty plea, of one count of
trafficking in a controlled substance. The district court sentenced him to serve a prison term
of 10 to 25 years. Miles appealed, and this court affirmed the judgment of conviction.
1
The
remittitur issued on January 14, 2002.
On September 16, 2002, Miles filed a proper person post-conviction petition in the
district court for a writ of habeas corpus. On October 17, 2002, the district court appointed
counsel to represent Miles. On November 15, 2002, the parties filed a written stipulation
extending the time in which counsel could supplement the petition. Miles' counsel filed the
supplement on March 5, 2003. Thereafter, the State filed an answer to the petition, and the
district court scheduled an evidentiary hearing for August 19, 2003.
On August 7, 2003, however, well after the time to file a timely petition had expired
under NRS 34.726, the State filed a motion to dismiss the petition alleging that it was not
properly verified as required by NRS 34.730. The State appended to its motion an affidavit of
a deputy district attorney stating that, on July 29, 2003, he noticed that Miles' signature on the
original verified petition was not authentic. Thereafter, at the evidentiary hearing, Miles
conceded that the signature on the original petition was not his, but that Miles had witnessed
the inmate law clerk who prepared the petition sign Miles' name. On September 11, 2003, the
district court dismissed the petition. This timely appeal followed.
____________________

1
Miles v. State, Docket No. 38046 (Order of Affirmance, December 17, 2001).
120 Nev. 383, 385 (2004) Miles v. State
DISCUSSION
[Headnote 1]
Miles contends that the district court erred in dismissing the petition for lack of
verification because his appointed counsel filed a subsequent, properly verified supplemental
petition that related back to the original timely petition. The district court rejected Miles'
contention, ruling that: [v]erification is a jurisdictional prerequisite. We conclude that the
district court erred in ruling that the initial improper verification deprived it of jurisdiction.
NRS 34.730(1) provides that [a] petition must be verified by the petitioner or his
counsel. If the petition is verified by counsel, he shall also verify that the petitioner personally
authorized him to commence the action. In Sheriff v. Scalio, this court held that an
unverified pretrial habeas petition is not cognizable in the district court.
2
The plain
meaning of the word cognizable is capable of being judicially heard and determined.
3
While we agree with the State that Scalio states that an unverified petition is defective, we
have never held that a defective verification deprives the district court of jurisdiction to allow
a petitioner to cure that defect.
4
In fact, the Legislature has vested the district court with
broad authority to order supplemental pleadings in post-conviction habeas cases, providing
that [n]o further pleadings may be filed except as ordered by the court.
5
The Legislature
has also provided that after a first timely post-conviction habeas petition is filed, the district
court shall order an answer and, if applicable, a return or [t]ake other action that the judge
or justice deems appropriate.
6
Further, the Legislature has not mandated that the district
court dismiss an inadequately verified petition, nor has it expressly prohibited a petitioner
from curing technical defects by amendment. To the contrary, NRS 34.735 provides only that
a petitioner must substantially comply with the instructions included in the form petition.
____________________

2
96 Nev. 776, 776, 616 P.2d 402, 402 (1980); see also Sheriff v. Chumphol, 95 Nev. 818, 603 P.2d 690
(1979); Sheriff v. Arvey, 93 Nev. 72, 560 P.2d 153 (1977) (construing the language in NRS 34.370, the general
provision governing all habeas corpus petitions, which is identical to the language contained in NRS 34.730).

3
Webster's Ninth New Collegiate Dictionary 257 (1991).

4
See generally Kilgore v. State, 791 S.W.2d 393, 395 (Mo. 1990) (recognizing that the lack of a verification
in a post-conviction motion may be corrected in the district court by a subsequent amendment within the
timelines for amending such motions set forth by the legislature); Rodden v. State, 795 S.W.2d 393, 395 (Mo.
1990) (noting in a post-conviction habeas case, that [e]ven an essential element of a pleading, like verification,
may be added by amendment).

5

6
120 Nev. 383, 386 (2004) Miles v. State
must substantially comply with the instructions included in the form petition.
7

The State, however, argues that the verification requirement is a jurisdictional one
because a proper verification ensures that the allegations contained in the petition are based
on merit and truth, protects against the filing of frivolous petitions, and serves the interest of
judicial economy.
8
We note however that, in this case, the State does not allege that Miles is
attempting to circumvent the verification requirement because his petition contains frivolous
or untrue allegations. Moreover, in our view, permitting an improper verification to be cured
will serve to promote, rather than hinder, the policy objectives cited by the State. In
particular, the district court's resolution of claims presented in a timely filed, non-successive
post-conviction habeas petition will reduce the likelihood of subsequent post-conviction
proceedings.
In support of its argument that the verification requirement is a jurisdictional
requirement that cannot be cured by subsequent amendment, the State also cites to Matter of
Personal Restraint of Benn
9
and Shipp v. Multnomah County.
10
Those cases are inapposite.
In Benn, the Supreme Court of Washington did not address the verification requirement, but
instead disallowed a supplement to the petition adding a new substantive claim on appeal
because there was no appellate rule allowing that type of amendment.
11
Here, unlike the
petitioner in Benn, the supplemental petition was filed in the district court and, as previously
discussed, the district court has broad statutory authority to permit supplemental filings.
[Headnotes 2, 3]
Shipp, a civil case involving the tax sale of real property, is also distinguishable.
12
In
that case, an Oregon appellate court held that the circuit court lacked jurisdiction to allow
an amendment because the appellant sought the wrong remedy.
____________________

7
NRS 34.735 reads: A petition must be in substantially the following form . . . . See also NRS 34.720;
NRS 34.722; NRS 34.724; NRS 34.738. See generally Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Cf.
Cunningham v. District Court, 102 Nev. 551, 729 P.2d 1328 (1986) (holding that the district court had no
jurisdiction to enter contempt order where no civil or criminal case pending); Craig v. Harrah, 65 Nev. 294, 195
P.2d 688 (1948) (holding that the filing of a bill of exceptions is jurisdictional and the subsequent bill of
exceptions does not relate back).

8
See Shorette v. State, 402 A.2d 450, 453 (Me. 1979) (noting that a verified petition is jurisdictional, but
not addressing whether a defective verification can be cured by amendment).

9
952 P.2d 116 (Wash. 1998).

10
891 P.2d 1345 (Or. Ct. App. 1995).

11
952 P.2d at 125, 152.

12
891 P.2d at 1347. The State also relies on another tax case, Schwartz v. Commissioner of Internal
Revenue, 140 F.2d 956 (9th Cir. 1944), for the contention that the verification requirement is a jurisdictional
defect. In that case, however, the Ninth Circuit Court of Appeals declined to consider whether the verification
requirement was jurisdictional and also recognized that, under cer-
120 Nev. 383, 387 (2004) Miles v. State
the circuit court lacked jurisdiction to allow an amendment because the appellant sought the
wrong remedy.
13
Specifically, the appellant in Shipp had filed a complaint for declaratory
judgment, instead of a petition for a writ of review, and the filing of the writ petition was
deemed jurisdictional.
14
Unlike in Shipp, Miles sought the proper remedy by filing a petition
for post-conviction habeas relief. We do agree, however, with one principle espoused in
Shipp: Once the [district] court acquires jurisdiction by the timely filing of the petition for
the writ, any defects in the petition may be cured by amendment, even after the [statutory time
limit for filing the petition has] elapsed . . . .
15

In this case, the district court granted the State's motion to dismiss, ruling that the
inadequate verification was jurisdictional. We conclude that the district court erred. Under
Nevada's post-conviction statutory scheme, an inadequate verification is an amendable, not a
jurisdictional, defect. Moreover, where, as here, the State did not move to dismiss the petition
until: (1) after the 1-year period for filing a timely petition under NRS 34.726 had expired;
and (2) counsel had been appointed to represent the petitioner and counsel had filed a
supplement to the petition, we conclude the district court should allow the petitioner to
amend the petition.
16
Accordingly, we reverse the judgment of the district court and remand
this matter to the district court for proceedings consistent with this opinion.
17

____________________
tain circumstances, an amended petition can relate back to the date of the filing of the original petition to cure an
inadequate verification. But see Hendricks, 908 F.2d at 491-92 (holding that the district court erred in
summarily dismissing [post-conviction] habeas petition on the merits despite the lack of a proper verification).

13
891 P.2d at 1349-50.

14
Id.

15
Id. at 1349 (emphasis added). We note that many jurisdictions agree with the general principle that an
inadequate verification does not divest the district court of jurisdiction to consider a habeas petition. See, e.g.,
Hendricks, 908 F.2d at 491-92; Lewis v. Connett, 291 F. Supp. 583, 585 (W.D. Ark. 1968); Cresta v. Eisenstadt,
302 F. Supp. 399, 400 (D. Mass. 1969); Morris v. United States, 399 F. Supp. 720, 723 (E.D. Va. 1975); Taylor
v. McKune, 962 P.2d 566, 570 (Kan. Ct. App. 1998); Kilgore, 791 S.W.2d at 395.

16
We emphasize that this opinion in no way limits the district court's discretion to refuse a request to file a
supplemental petition adding additional substantive claims or new allegations of good cause. See generally State
v. Haberstroh, 119 Nev. 173, 180-81, 69 P.3d 676, 681 (2003).

17
Because we conclude that, under the particular circumstances of this case, the district court should permit
an amendment to the petition to correct the defective verification, we need not address whether the supplemental
petition filed by counsel substantially complied with the verification requirement. See NRS 34.735; see also
Shorette, 402 A.2d at 453-55 (discussing a verification statute analogous to Nevada's).
____________
120 Nev. 388, 388 (2004) Bell v. Leven
RICHARD BELL, dba LIBERTY REALTY, Appellant/Cross-respondent, v. ROBERT
LEVEN, SANDY LEVEN, RSV LIMITED PARTNERSHIP, a Nevada Limited
Partnership, Respondents/Cross-Appellants.
No. 36193
June 11, 2004 90 P.3d 1286
Appeal and cross-appeal from a final judgment in a breach of contract action. Eighth
Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Real estate business brought action against agent procurer, her husband, and limited
partnership, requesting declaratory judgment regarding the enforceability of agreement which
required business to pay royalties to procurer for each co-op agent who became associated
with business, and alleging unjust enrichment and breach of contract. Procurer, husband, and
partnership filed counterclaims, including breach of contract. Prior to trial, the district court
concluded that the perpetual duration clause in agreement did not provide a legally sufficient
duration and determined that the duration of the agreement was for a reasonable period of
time. Business withdrew remaining claims for relief, and defendants withdrew several
counterclaims. Following jury trial, the court entered judgment on jury verdict awarding
damages to defendants. All parties appealed. The supreme court held that, as a matter of first
impression, perpetual duration clause was valid.
Gordon & Silver, Ltd., and Eric R. Olsen and Matthew C. Zirzow, Las Vegas, for
Appellant/Cross-Respondent.
David K. Winter, Zephyr Cove, for Respondents/Cross-Appellants.
1. Labor and Employment.
Duration clause in services contract between real estate business and agent procurer
which expressly provided that it was to endure perpetually or until terminated by
mutual consent of all parties was valid, even though it imposed perpetual obligation.
2. Contracts.
As a matter of public policy, courts should avoid construing contracts to impose a
perpetual obligation.
3. Contracts.
When the language of a contract clearly provides that the contract is to have a
perpetual duration, the courts must enforce the contract according to its terms.
120 Nev. 388, 389 (2004) Bell v. Leven
OPINION
Per Curiam:
In this appeal, we consider whether perpetual contracts are enforceable. We hold that
when the express language of a contract provides that the contract has a perpetual duration,
such language must be enforced. Accordingly, we reverse the district court's ruling that the
perpetual duration clause in this contract was not legally sufficient, and remand this case for
retrial.
FACTS
On April 17, 1992, Sandy Leven and Richard Bell, d/b/a Liberty Realty, executed a
written agreement whereby Sandy agreed to procure co-op real estate agents for Liberty
Realty. Sandy agreed to pay all costs in connection with advertising and procuring co-op
agents, and Bell agreed to pay Sandy $50 per month for each co-op agent who became
associated with Liberty Realty. The agreement stated that [t]he term of this agreement is
perpetual or until terminated by mutual consent [of] all parties.
Sandy and her husband Robert worked together to procure co-op agents for Liberty
Realty. At some point, the couple formed RSV Limited Partnership. In July 1997, Robert, as
general partner of RSV Limited Partnership, drafted a royalty agreement for Bell's approval.
The terms of the 1997 agreement were substantially similar to those contained in the 1992
agreement, with the exception of the terms relating to co-op fees and the calculation of the
amount Liberty Realty would pay RSV for the co-op agents associated with Liberty Realty.
The 1997 agreement was signed only by Robert, on behalf of RSV. Despite the fact that Bell
never signed the 1997 agreement, he did perform pursuant to its terms until December 1998.
In December 1998, Bell, through counsel, sent a letter to Robert, as general partner of
RSV, stating that he would no longer pay according to the terms of the agreement because it
had become apparent that a substantial number of the co-op agents associated with Liberty
Realty came to Liberty Realty through no efforts or referrals on the part of RSV. Bell claimed
that RSV's performance was lacking and stated that he would be instituting litigation to
recover alleged overpayments.
In response, Robert wrote a letter contending that Bell was in breach of contract by
refusing to make royalty payments as agreed. Robert also claimed that the agreement did not
require any particular quantity or quality of performance on RSV's part, and that he expected
Bell to pay the royalties owed.
120 Nev. 388, 390 (2004) Bell v. Leven
Thereafter, Bell filed a complaint against respondents, Sandy and Robert Leven and
RSV, requesting a declaratory judgment regarding the validity and enforceability of the
parties' agreement. Additionally, the complaint alleged unjust enrichment and breach of
contract claims. In response, respondents asserted several counterclaims, including breach of
contract claims.
Before holding a trial on the merits, the district court addressed Bell's request for a
declaratory judgment. Following presentation of evidence by both parties, the district court
concluded that the 1992 agreement was ongoing and all of the clauses contained therein were
enforceable, with the exception of the clauses superseded by the 1997 agreement. The district
court acknowledged that Bell did not sign the 1997 agreement, but concluded that Bell
ratified the 1997 agreement through his performance in compliance with its terms. The
district court also concluded that the perpetual duration clause in the agreement did not
provide a legally sufficient duration, and thus, determined that the duration of the agreement
was for a reasonable period of time. Consequently, the jury was left to determine whether
Bell's termination of the agreement in 1998 was reasonable, and if not, to determine the
appropriate damages.
Following the district court's ruling, Bell withdrew his remaining claims for relief,
believing they were rendered moot by the district court's ruling. Also, respondents withdrew
several of their counterclaims, leaving only their counterclaims for breach of contract for
non-payment and for unreasonable termination of the agreement.
At the close of the trial, the jury returned a unanimous verdict in favor of respondents
in the amount of $386,100.
DISCUSSION
Both sides argue that the district court's ruling regarding the duration of the agreement
was erroneous. Bell argues that the district court was correct in ruling that the contract could
not last in perpetuity, but was mistaken in resolving that the question for the jury to determine
was whether the agreement lasted for a reasonable period of time. Instead, Bell maintains that
the jury should have been instructed to determine whether he gave reasonable notice of his
intent to terminate the agreement. Conversely, respondents argue that the district court's
ruling that the perpetual duration clause in the contract was invalid was erroneous as a matter
of law.
[Headnote 1]
We have never addressed the enforceability of a perpetual duration clause in a
contract for services; therefore, we must review this question of law de novo.
1
Several courts
have addressed the validity of perpetual contracts and have held that such contracts are
enforceable when it is clear that the parties intended to enter into a perpetual agreement.
____________________

1
SIIS v. United Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295 (1993).
120 Nev. 388, 391 (2004) Bell v. Leven
lidity of perpetual contracts and have held that such contracts are enforceable when it is clear
that the parties intended to enter into a perpetual agreement.
2

For example, the Oregon Court of Appeals has declared that where provided for,
perpetual agreements will be enforced according to their terms.
3
Likewise, the Missouri
Court of Appeals has observed that where the intention to [impose a perpetual obligation]
is unequivocally expressed, the contract will be upheld.'
4
Also, the Fifth Circuit Court of
Appeals has stated that the construction of a contract conferring indefinite duration is to be
avoided unless compelled by the unequivocal language of the contract.'
5

[Headnotes 2, 3]
We agree that as a matter of public policy, courts should avoid construing contracts to
impose a perpetual obligation. However, when the language of a contract clearly provides that
the contract is to have a perpetual duration, the courts must enforce the contract according to
its terms.
6

Here, the agreement expressly provided that it was to endure perpetually or until
terminated by mutual consent of all parties. Yet, the district court disregarded the plain
language of the agreement by ruling that the perpetual duration clause was invalid, and that
the agreement could thus be terminated after a reasonable period of time. As a result of this
erroneous ruling during the declaratory judgment portion of the trial, the district court
improperly instructed the jury during the fact-finding portion of the trial. The jury was
instructed as follows:
The Court has determined that the 1992 Agreement as modified by paragraphs 4 and 5
of the 1997 Agreement is enforceable on its terms, and could be terminated after a
reasonable period of time because the 1992 Agreement was for an indefinite period.
____________________

2
Delta Services & Equipment v. Ryko Mfg. Co., 908 F.2d 7, 9 (5th Cir. 1990); Paul Gabrilis, Inc. v. Dahl,
961 P.2d 865, 868 (Or. Ct. App. 1998); Preferred Phys. Mut. v. Risk Retention Etc., 961 S.W.2d 100, 103 (Mo.
Ct. App. 1998).

3
Paul Gabrilis, Inc., 961 P.2d at 868 (emphasis added).

4
Preferred Phys. Mut., 961 S.W.2d at 103 (quoting Paisley v. Lucas, 143 S.W.2d 262, 270-71 (Mo. 1940)
(alteration in original)) (emphasis added).

5
Delta Services & Equipment, 908 F.2d at 9 (quoting Besco, Inc. v. Alpha Portland Cement Co., 619 F.2d
447, 449 (5th Cir. 1980)).

6
See Musser v. Bank of America, 114 Nev. 945, 949, 964 P.2d 51, 54 (1998) (A basic rule of contract
interpretation is that [e]very word must be given effect if at all possible.' (quoting Royal Indem. Co. v. Special
Serv., 82 Nev. 148, 150, 413 P.2d 500, 502 (1966))); Shoen v. Amerco, Inc., 111 Nev. 735, 743, 896 P.2d 469,
474 (1995) (observing that contracts should be construed to give effect not only to the intention of the parties as
demonstrated by the language used, but to the purpose to be accomplished and the circumstances surrounding
the execution of the agreement).
120 Nev. 388, 392 (2004) Bell v. Leven
able on its terms, and could be terminated after a reasonable period of time because the
1992 Agreement was for an indefinite period. You must decide whether the 1992
Agreement has continued for a reasonable time when it was terminated in December
1998. If you determine that the 1992 Agreement was terminated before a reasonable
time had passed, then you must decide whether or not the Counterclaimant is entitled to
damages and what amount of damages is appropriate.
Instead, the jury should have been instructed that the agreement was perpetual, and that it
could award damages accordingly if it found that the agreement was not terminated for cause.
7

Because the district court erroneously ruled that the agreement's perpetual duration
clause was invalid and consequently instructed the jury improperly, the judgment must be
reversed and this case remanded for retrial. Having so concluded, we need not address Bell's
remaining arguments or respondents' argument that the district court erred in denying their
motion for attorney fees as the prevailing party.
CONCLUSION
Given our holding that perpetual contracts are enforceable as a matter of law, and our
conclusion that the agreement in this instance contained an unambiguous perpetual duration
clause, the district court's ruling was erroneous. Accordingly, we reverse the judgment and
remand this case for retrial on all issues framed by the pleadings.
____________
120 Nev. 392, 392 (2004) City of Las Vegas v. Walsh
CITY OF LAS VEGAS, Appellant, v. THE HONORABLE JESSIE WALSH, JUDGE OF
THE
LAS VEGAS MUNICIPAL COURT, and MIKE WAYNE GEHNER, Respondents.
No. 41317
June 11, 2004 91 P.3d 591
Appeal from a district court order denying a petition for a writ of mandamus
challenging a municipal court's decision in a criminal proceeding. Eighth Judicial District
Court, Clark County; Gene T. Porter, Judge.
City petitioned for writ of mandamus challenging decision of the Las Vegas
Municipal Court to preclude nurse's affidavit at defendant's trial for driving under the
influence of alcohol.
____________________

7
See Paul Gabrilis, Inc., 61 P.2d at 868 (concluding that the membership agreements were intended to be
perpetual and, thus, could only be terminated for cause).
dant's trial for driving under the influence of alcohol. The district court denied the petition.
City appealed. The supreme court held that nurse's affidavit was testimonial in nature and
thus admission violated defendant's confrontation rights.
Affirmed.
Rehearing denied; en banc reconsideration granted; opinion withdrawn;
reversed and remanded with instructions. 121 Nev. ___, 124 P.3d 203 (2005).
Bradford R. Jerbic, City Attorney, and Edward G. Poleski, Deputy City Attorney, Las
Martin D. Hastings, Las Vegas, for Respondent Gehner.
1. Criminal Law.
A district court's decision to deny a writ petition is generally reviewed under an abuse
of discretion standard.
2. Criminal Law.
Questions of statutory construction are questions of law that must be reviewed de
novo.
3. Criminal Law.
Nurse's affidavit regarding conditions under which she drew blood from defendant for
testing violated defendant's confrontation rights at trial for driving under the influence
of alcohol due to testimonial nature, where affidavit was prepared solely for
prosecution's use at trial, and affidavit was offered to prove certain facts. U.S. Const.
amend. 6; NRS 50.315(4).
4. Criminal Law.
An affidavit by a health care professional who withdraws a sample of blood from
another for analysis by an expert can only be admitted if the health care professional is
unavailable to testify at trial and the defendant had a prior opportunity to cross-examine
the health care professional regarding the statements in the affidavit. NRS 50.315(4).
5. Criminal Law.
Lower court erred in ruling that nurse who averred that she drew blood from
defendant for testing had to testify at trial because of existence of a substantial and bona
fide dispute regarding facts in affidavit, as dispute was over whether nurse's statement
about not using alcohol solutions or alcohol-based swabs was admissible as a matter of
law, not whether certain facts in affidavit were accurate. NRS 50.315(4), (6).
6. Criminal Law.
Purpose of statute allowing a court to order prosecution to produce an affiant if
defendant establishes the existence of a substantial and bona fide dispute as to blood or
breath test and it is in the best interests of justice that the affiant be cross-examined was
to afford the defense an opportunity to call the affiant if the defense showed good cause
or reason to question the validity of the affidavit. NRS 50.315(6).
OPINION
Per Curiam:
This case involves the admissibility of an affidavit of a registered health professional
pursuant to NRS 50.315(4). At the outset of the trial, the City of Las Vegas requested that the
municipal court admit the affidavit of a registered nurse who withdrew Mike Gehner's blood.
The municipal court ruled that certain facts contained in the affidavit were not admissible,
and thus, the nurse would need to testify. The City then filed a petition for a writ of
mandamus requesting the district court to compel the municipal court to admit the nurse's
affidavit in its entirety. The district court denied the petition. We agree that the affidavit in its
entirety was not admissible, but we do so on different grounds from those relied upon by the
district court. Accordingly, we affirm the district court's denial of the City's petition for a writ
of mandamus.
PROCEDURAL HISTORY
Gehner was charged with driving under the influence of alcohol. At the outset of
Gehner's trial, the City requested a preliminary ruling from the municipal court (Judge Jessie
E. Walsh) regarding the admissibility of the affidavit of a registered nurse who withdrew
blood from Gehner for a blood-alcohol test. The affidavit stated the nurse's name and her
employer, that she was authorized to withdraw blood as a regular part of her duties, the date
and time she withdrew the blood, that she withdrew the blood from Gehner in a medically
acceptable manner, that she used no alcohol solutions or alcohol-based swabs, and that she
kept the sample in her custody and in the same condition as when she withdrew it until she
delivered it to law enforcement.
The City argued that all of the facts contained in the nurse's affidavit were admissible;
consequently, it was not necessary for the nurse to testify at trial. Gehner countered that
certain facts in the affidavit were not admissible under NRS 50.315(4), namely that the nurse
used no alcohol solutions or alcohol-based swabs. Gehner argued that if the inadmissible
facts were struck from the affidavit, a bona fide dispute would exist; hence, the nurse would
need to testify at trial.
The municipal court concluded that the nurse's affidavit could only be admitted for the
purposes enumerated in NRS 50.315(4), and the fact that the nurse did not use alcohol
solutions or alcohol-based swabs is not one of those purposes. Accordingly, the municipal
court resolved that the nurse's presence at trial was necessary and, thus, granted a
continuance.
Thereafter, the City filed a petition for a writ of mandamus in the district court,
requesting the district court to compel the municipal court to admit the nurse's affidavit in its
entirety. After holding a hearing, the district court denied the petition, agreeing with the
municipal court's interpretation of NRS 50.315. The City appeals.
DISCUSSION
[Headnotes 1, 2]
A district court's decision to deny a writ petition is generally reviewed under an abuse
1
However, questions of statutory construction are questions of law
that this court must review de novo.
2

In this case, the nurse's affidavit included a statement that she did not use alcohol
solutions or alcohol-based swabs in drawing Gehner's blood. The municipal court concluded
that a health care professional's declaration regarding the withdrawal and storage of a blood
sample is only admissible under NRS 50.315 to establish the four facts specifically identified
in the statute. As a result, the municipal court concluded that the existence of a bona fide
issue regarding the blood draw required the nurse's presence at trial and, thus, continued the
trial. The district court agreed with the municipal court's interpretation of NRS 50.315(4),
denying the City's writ petition. We agree with the district court's decision to deny the City's
petition for a writ of mandamus, but do so on somewhat different grounds.
NRS 50.315(4) provides that the affidavit of a person who withdraws a sample of
blood from another for analysis by an expert is admissible to prove:
(a) The occupation of the affiant or declarant;
(b) The identity of the person from whom the affiant or declarant withdrew the
sample;
(c) The fact that the affiant or declarant kept the sample in his sole custody or control
and in substantially the same condition as when he first obtained it until delivering it to
another; and
(d) The identity of the person to whom the affiant or declarant delivered it.
The City argues that, when interpreted broadly, NRS 50.315(4) allows for the
inclusion in the affidavit of the nurse's statement that she did not use alcohol solutions or
alcohol-based swabs. The City contends that this statement is admissible pursuant to NRS
50.315{4){a) to demonstrate her occupation.
____________________

1
City of Reno v. Reno Gazette-Journal, 119 Nev. 55, 58, 63 P.3d 1147, 1148 (2003).

2
Id.
NRS 50.315(4)(a) to demonstrate her occupation. The City also contends that this statement
illustrates that Gehner's blood was withdrawn in a medically acceptable fashion, which is
admissible under NRS 50.315(4)(c) as it relates to the condition of the blood sample.
Alternatively, the City contends that this statement is admissible under the catch all hearsay
exceptionNRS 51.075.
3
Even if we accept the City's interpretation that the nurse's
statement regarding not using alcohol solutions or alcohol-based swabs falls within the
parameters of NRS 50.315(4) or the catch all hearsay exception, we nevertheless must
conclude that the affidavit in its entirety is inadmissible in light of the United States Supreme
Court's recent holding in Crawford v. Washington.
4

In Crawford, the Court overturned the previously well-settled rule of Ohio v. Roberts
5
regarding the admissibility of hearsay evidence under the Sixth Amendment's Confrontation
Clause.
6
Under the Roberts test, the admission of a hearsay statement against a criminal
defendant at trial did not violate the Confrontation Clause provided the statement bore
adequate indicia of reliability by either (1) falling within a firmly rooted hearsay exception,
or (2) bearing particularized guarantees of trustworthiness.
7
The Court in Crawford
rejected the Roberts approach, concluding that it departs from important historical principles
because:
First, it is too broad: It applies the same mode of analysis whether or not the hearsay
consists of ex parte testimony. This often results in close constitutional scrutiny in
cases that are far removed from the core concerns of the Clause. At the same time,
however, the test is too narrow: It admits statements that do consist of ex parte
testimony upon a mere finding of reliability. This malleable standard often fails to
protect against paradigmatic confrontation violations.
8

Accordingly, the Court held that the Confrontation Clause bars the use of a
testimonial statement made by a witness who does not appear at trial, unless the witness is
unavailable to testify at trial, and the defendant had a prior opportunity to cross-examine the
witness regarding the statement.
9
On the other hand, the Court held that "[w]here
nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to
afford the States flexibility in their development of hearsay law," including exempting
"such statements from Confrontation Clause scrutiny altogether.
____________________

3
NRS 51.075(1) provides that [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.

4
541 U.S. 36 (2004).

5
448 U.S. 56 (1980).

6
541 U.S. at 68.

7
Roberts, 448 U.S. at 66.

8
Crawford, 541 U.S. at 60.

9
Id. at 68.
that [w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers'
design to afford the States flexibility in their development of hearsay law, including
exempting such statements from Confrontation Clause scrutiny altogether.
10
Thus, under
Crawford, the admissibility of a hearsay statement under the Confrontation Clause now
necessarily depends on whether the statement is testimonial in nature. However, the Court
expressly declined to define the term testimonial, beyond stating that the term applies at a
minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial;
and to police interrogations.
11
But the Court did make some observations, illustrating what
might be considered testimonial. The Court noted that the text of the Confrontation Clause
reflects the Framers' focus on ex parte examinations:
It applies to witnesses against the accusedin other words, those who bear
testimony. Testimony, in turn, is typically [a] solemn declaration or affirmation
made for the purpose of establishing or proving some fact. An accuser who makes a
formal statement to government officers bears testimony in a sense that a person who
makes a casual remark to an acquaintance does not. The constitutional text, like the
history underlying the common-law right of confrontation, thus reflects an especially
acute concern with a specific type of out-of-court statement.
Various formulations of this core class of testimonial statements exist: ex parte
in-court testimony or its functional equivalentthat is, material such as affidavits,
custodial examinations, prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that declarants would reasonably expect to
be used prosecutorially, extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions, prior testimony, or confessions,
statements that were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial.
12

Several courts have issued opinions since Crawford, addressing the admissibility of
hearsay statements under the new framework. In State v. Rivera,
13
the Connecticut Supreme
Court determined that a declaration against penal interest was nontestimonial. A witness was
permitted to testify regarding a conversation he had with his uncle, wherein his uncle
made incriminating statements that he and the defendant had broken into a woman's
house looking for items to steal, and that the defendant choked the woman and used an
oil lamp to burn the house down.
____________________

10
Id.

11
Id.

12
Id. at 51-52 (alterations in original) (citations omitted).

13
844 A.2d 191, 201-02 (Conn. 2004).
ness was permitted to testify regarding a conversation he had with his uncle, wherein his
uncle made incriminating statements that he and the defendant had broken into a woman's
house looking for items to steal, and that the defendant choked the woman and used an oil
lamp to burn the house down.
14
The court concluded that [t]he statement was not ex parte
in-court testimony or its functional equivalent; it was not contained in any formalized
testimonial materials such as affidavits, depositions or prior testimony. Moreover, the
statement was not a confession resulting from custodial examination . . . .
15
Thus, the court
concluded that the statement was not testimonial in nature, and application of the Roberts test
was thus appropriate to determine the admissibility of the statement.
16

Likewise, in Demons v. State,
17
the Georgia Supreme Court concluded that, under
Crawford, the deceased victim's hearsay statements, made during a conversation with a friend
before the commission of the crime, were nontestimonial. The court determined that the
statements were not similar to prior testimony or police interrogation, which are generally
made with the expectation that they might be used at a later trial, and which Crawford
pronounced were testimonial.
18
Therefore, the court concluded that the trial court did not err
in admitting the statements because the victim was deceased, and the statements had the
requisite indicia of trustworthiness to withstand a Confrontation Clause challenge.
19

Finally, in People v. Moscat,
20
the New York Criminal Court considered whether a
911 call was admissible in a domestic assault prosecution under Crawford. The court
observed that because complainants in domestic violence cases often do not appear for trial,
prosecutors have increasingly tried to conduct victimless prosecutions by relying on evidence
other than the victim's testimony, and that [p]erhaps the most common form of such
evidence is a call for help made by a woman to 911.
21
The court stated that prior to
Crawford, the 911 call would ordinarily be admitted as an excited utterance without violating
the Sixth Amendment's Confrontation Clause.
22
The court acknowledged that under
Crawford, the relevant inquiry now is not whether the 911 call falls into a well-rooted
hearsay exception {excited utterance in this instance); rather, the relevant inquiry is
whether a 911 call is testimonial in nature.
____________________

14
Id. at 198.

15
Id. at 201-02.

16
Id. at 202.

17
595 S.E.2d 76, 80 (Ga. 2004).

18
Id.

19
Id.

20
777 N.Y.S.2d 875 (Crim. Ct. 2004).

21
Id. at 878.

22
Id. at 878-79.
that under Crawford, the relevant inquiry now is not whether the 911 call falls into a
well-rooted hearsay exception (excited utterance in this instance); rather, the relevant inquiry
is whether a 911 call is testimonial in nature.
23
The court concluded that a 911 call is not
testimonial in nature for a number of reasons:
A 911 call is typically initiated not by the police, but by the victim of a crime. It is
generated not by the desire of the prosecution or the police to seek evidence against a
particular suspect; rather, the 911 call has its genesis in the urgent desire of a citizen to
be rescued from immediate peril. . . . A testimonial statement is produced when the
government summons a citizen to be a witness; in a 911 call, it is the citizen who
summons the government to her aid.
24

Accordingly, the court concluded that a 911 call is nontestimonial and, thus, may be admitted
without violating the Sixth Amendment's Confrontation Clause.
[Headnotes 3, 4]
Unlike the statements in the aforementioned cases, a health professional's affidavit
made pursuant to NRS 50.315(4) is prepared solely for the prosecution's use at trial. As
indicated in the title of NRS 50.315, it is offered to prove certain facts concerning use of
certain devices or withdrawal or holding of evidence related to determining presence of
alcohol. Based on the cases that have dealt with the issue of whether a statement is
testimonial and the inferences that can be drawn from Crawford as to what constitutes a
testimonial statement, we conclude that an affidavit prepared for use at trial is testimonial.
Accordingly, we hold that a health care professional's affidavit made pursuant to NRS
50.315(4) can only be admitted if the health care professional is unavailable to testify at trial
and the defendant had a prior opportunity to cross-examine the health care professional
regarding the statements in the affidavit.
25

[Headnotes 5, 6]
We note that the municipal court found that a dispute existed requiring the nurse's
presence at trial since the nurse's statement about not using alcohol solutions or alcohol-based
swabs was not permitted under NRS 50.315{4).
____________________

23
Id. at 879.

24
Id.

25
See Crawford, 541 U.S. at 68. In DeRosa v. District Court, 115 Nev. 225, 985 P.2d 157 (1999), this court
rejected a Confrontation Clause challenge to evidence admitted under NRS 50.315 based on the test set forth in
Ohio v. Roberts, 448 U.S. 56 (1980), regarding the admissibility of hearsay evidence under the Confrontation
Clause. To the extent that DeRosa relied on Roberts, it is overruled.
permitted under NRS 50.315(4). Granted, pursuant to the statutory scheme at issue, the court
may order the prosecution to produce a witness if, before trial, the defendant establishes that:
(a) There is a substantial and bona fide dispute regarding the facts in the affidavit or
declaration; and
(b) It is in the best interests of justice that the witness who signed the affidavit or
declaration be cross-examined . . . .
26

However, we do not think that the situation presented in this appeal is the type of bona fide
dispute regarding the facts in the affidavit contemplated in NRS 50.315. Here, the parties
disputed whether certain facts were admissible as a matter of law, not whether certain facts in
the affidavit were accurate. The legislative history reveals that NRS 50.315(6) was added to
the statutory scheme to afford the defense an opportunity to call the affiant if the defense
showed good cause or reason to question the validity of the affidavit.
27
Thus, a bona fide
dispute would have been created under the statute had Gehner questioned the nurse's testing
methods, as opposed to challenging the admissibility of a fact contained in the affidavit.
Accordingly, the municipal court's basis for continuing the trial, that it was warranted
under NRS 50.315(6), was erroneous. Nevertheless, the municipal court reached the proper
result. Thus, the district court did not abuse its discretion in denying the City's petition for a
writ of mandamus.
CONCLUSION
Applying the Supreme Court's holding in Crawford, we hold that a health care
professional's affidavit made pursuant to NRS 50.315(4) is testimonial, and can only be
admitted if the health care professional is unavailable to testify at trial, and the defendant had
a prior opportunity to cross-examine the health care professional regarding the statements in
the affidavit.
28
Because the aforementioned Confrontation Clause test was not satisfied in
this instance, we conclude that the nurse's affidavit was not admissible. Accordingly, we
affirm the district court's order denying the City's petition for a writ of mandamus.
____________________

26
NRS 50.315(6).

27
Hearing on S.B. 157 Before the Assembly Comm. on Judiciary, 68th Leg. (Nev., June 1, 1995).

28
We note that a defendant is still free to waive his confrontation rights and stipulate to the admission of a
health care professional's affidavit.
____________
120 Nev. 401, 401 (2004) Ebeling v. State
GREGG E. EBELING, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 38315
June 15, 2004 91 P.3d 599
Appeal from a judgment of conviction, pursuant to a jury verdict, of four counts of
sexual assault, seven counts of lewdness with a child under fourteen, one count of attempted
sexual assault, and three counts of indecent exposure. Second Judicial District Court, Washoe
County; Connie J. Steinheimer, Judge.
The supreme court held that: (1) trial court erred in sentencing defendant for sexual
assault and lewdness with a minor arising from same continuous act, and (2) trial court erred
in sentencing defendant to two counts of indecent exposure for single exposure.
Michael R. Specchio, Public Defender, and Cheryl D. Bond, Deputy Public Defender,
Washoe County, for Appellant.
Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Defendant's penis rubbing against victim was not distinct act from defendant's
insertion of his penis into victim's anus since record reflected that the touching of the
buttocks was incidental to the penetration, not a separate act, and thus, defendant's
convictions for sexual assault and lewdness arising from this incident were redundant,
and as such, defendant's lewdness with a minor conviction could not be sustained.
2. Criminal Law.
When a defendant receives multiple convictions based on a single act, appellate court
will reverse redundant convictions that do not comport with legislative intent.
3. Criminal Law.
The construction of a statute is a question of law subject to review de novo.
4. Statutes.
If a statute is unambiguous, court looks to the statute's plain meaning.
Court should normally presume that a legislature did not intend multiple punishments
for the same offense absent a clear expression of legislative intent to the contrary.
6. Statutes.
Criminal statutes must be strictly construed and resolved in favor of the defendant.
Since defendant committed only one act of indecent exposure, statute providing a
sanction for indecently exposing oneself only provided for one charge of indecent
exposure, regardless of the number of witnesses, and therefore, trial court erred in
sentencing defendant to two counts of indecent exposure for single exposure.
charge of indecent exposure, regardless of the number of witnesses, and therefore, trial
court erred in sentencing defendant to two counts of indecent exposure for single
exposure. NRS 201.220(1).
8. Obscenity.
A violation of statute prohibiting person from making any open and indecent or
obscene exposure of his person, or of the person of another, does not require that the
indecent exposure be witnessed. NRS 201.220(1).
OPINION
Per Curiam:
Appellant Gregg E. Ebeling was convicted of multiple counts arising from sexual acts
involving five minor victims. Ebeling contends that his convictions for sexual assault and
lewdness with a minor under the age of fourteen arising from one instance of anal penetration
are redundant and the lewdness conviction must be reversed. Ebeling also asserts that only
one conviction can result from a single act of indecent exposure regardless of the number of
persons who viewed the act.
1

We conclude that a defendant cannot be convicted of both sexual assault and lewdness
with a minor under the age of fourteen when those convictions involve a single act. We also
conclude that NRS 201.220 allows for only one charge of indecent exposure, regardless of the
number of victims. Therefore, we vacate one conviction of lewdness with a minor under the
age of fourteen and one conviction of indecent exposure. We remand this case to the district
court for resentencing in accordance with this opinion.
The State charged Gregg E. Ebeling with four counts of sexual assault, seven counts
of lewdness with a child under fourteen, one count of attempted sexual assault, and three
counts of indecent exposure.
____________________

1
Ebeling also raises the following issues on this appeal: (1) the district court erred in excluding his expert
witness from testifying about the children's previous sexual knowledge and mental health problems, (2) the
district court erred in denying Ebeling's motion to sever his charges, (3) there was insufficient evidence adduced
at trial to sustain Ebeling's convictions, (4) the district court erred in failing to issue a jury instruction regarding
Ebeling's failure to flee from his arrest, and (5) the State improperly appealed to the sympathy of the jury. We
find these arguments to be without merit.
In addition, Ebeling contends that the State committed prosecutorial misconduct by improperly disparaging
his defense tactic, improperly shifting the burden of proof, and improperly vouching for the children's
credibility. We will not address these issues because Ebeling failed to object, and the instances were either not
improper or do not rise to the level of plain error.
Finally, we conclude that even if the State misstated the evidence during its closing argument, it was harmless
error.
count of attempted sexual assault, and three counts of indecent exposure. Following a lengthy
jury trial, the jury convicted Ebeling on all fifteen charges. The district court sentenced
Ebeling to eleven life sentences with the possibility of parole after eighty years.
Redundant convictions
Before trial, the district court filed an order stating that Ebeling could not be convicted
of both sexual assault and lewdness with a minor under the age of fourteen as alleged by the
State in counts twelve and fourteen, because those charges are based on a single incident. The
information alleged in count twelve that Ebeling committed sexual assault by engaging in
anal intercourse with W.C. Count fourteen alleged that Ebeling committed lewdness with a
minor under the age of fourteen by placing his penis on W.C.'s buttocks.
At trial, W.C. testified that Ebeling showered with him, and during that shower,
Ebeling performed anal sex on him. W.C. also indicated that Ebeling's penis touched W.C.'s
buttocks just before it penetrated his anus. Based on this testimony, the jury convicted
Ebeling of sexual assault and lewdness with a minor under the age of fourteen as alleged in
counts twelve and fourteen. Despite the pretrial order, the district court sentenced Ebeling to
life in the Nevada State Prison with the possibility of parole after ten years for the lewdness
with a minor under the age of fourteen conviction, and to life in the Nevada State prison with
parole eligibility after twenty years for the sexual assault conviction.
Multiple indecent exposure charges
The State alleged in the information that Ebeling indecently exposed himself to N.E.
and F.P. at the Peppermill Hotel and Casino (Peppermill) located in Reno, Nevada. The
allegations involved one act witnessed by both N.E. and F.P.
At trial, N.E. testified that around January 2000, a pipe broke at Ebeling's house. As a
result, Ebeling, F.P., and N.E. spent the night at the Peppermill. F.P. and N.E. testified that
while they were in their room at the Peppermill, Ebeling exposed his penis to them. The jury
found Ebeling guilty of two counts of indecent exposure for this incident at the Peppermill.
The district court sentenced Ebeling to twelve months in the Washoe County Jail for each
indecent exposure conviction.
DISCUSSION
[Headnote 1]
Ebeling contends that the district court erred in sentencing him on both the sexual
assault and lewdness with a minor under the age of fourteen convictions involving the
shower incident.
the age of fourteen convictions involving the shower incident. We agree.
[Headnote 2]
When a defendant receives multiple convictions based on a single act, this court will
reverse redundant convictions that do not comport with legislative intent.'
2
[M]ultiple
convictions for lewdness and sexual assault based on the same act would not comport with
legislative intent and would be unlawful . . . .
3
The State argues that Ebeling's penis rubbing
against W.C. is a separate act of lewdness and is distinct from Ebeling's insertion of his penis
into W.C.'s anus. The testimony does not support such a conclusion. The record reflects the
touching of the buttocks was incidental to the penetration, not a separate act.
4
We conclude
the convictions for sexual assault and lewdness arising from this incident are redundant and
count fourteen, Ebeling's lewdness with a minor conviction, should be reversed.
Ebeling also contends that the district court erred in sentencing him on two counts of
indecent exposure for the simultaneous exposure of his penis to F.P. and N.E. at the
Peppermill. We agree.
[Headnotes 3-6]
Whether NRS 201.220(1) permits multiple charges based on a single incident is an
issue of first impression for this court. The United States Supreme Court has held that
[w]hether a particular course of conduct involves one or more distinct offenses' under the
statute depends on the legislative intent.
5
The construction of a statute is a question of law
subject to review de novo.
6
If a statute is unambiguous, we look to the statute's plain
meaning.
7
[A] court should normally presume that a legislature did not intend multiple
punishments for the same offense absent a clear expression of legislative intent to the
contrary . . . .
8
Criminal statutes must be strictly construed and resolved in favor of the
defendant.
9

____________________

2
State v. Koseck, 113 Nev. 477, 479, 936 P.2d 836, 837 (1997) (quoting Albitre v. State, 103 Nev. 281, 283,
738 P.2d 1307, 1309 (1987)).

3
Id. at 479, 936 P.2d at 838.

4
Crowley v. State, 120 Nev. 30, 83 P.3d 282 (2004) (sexual assault and lewdness convictions for the same
continuous act redundant).

5
Sanabria v. United States, 437 U.S. 54, 70 (1978).

6
Diamond v. Swick, 117 Nev. 671, 674, 28 P.3d 1087, 1089 (2001).

7
Id. at 675, 28 P.3d at 1089.

8
Talancon v. State, 102 Nev. 294, 300, 721 P.2d 764, 768 (1986).

9
Anderson v. State, 95 Nev. 625, 629, 600 P.2d 241, 243 (1979); see also City Council of Reno v. Reno
Newspapers, 105 Nev. 886, 894, 784 P.2d 974, 979 (1989).
[Headnote 7]
Ebeling was convicted of two counts of indecent exposure for his act at the
Peppermill pursuant to NRS 201.220(1).
A person who makes any open and indecent or obscene exposure of his person, or of
the person of another, is guilty:
(a) For the first offense, of a gross misdemeanor.
(b) For any subsequent offense, of a category D felony and shall be punished as
provided in NRS 193.130.
In Young v. State, we held that [a] conviction under . . . NRS 201.220 does not require proof
of intent to offend an observer or even that the exposure was observed. It is sufficient that the
public sexual conduct or exposure was intentional.
10

[Headnote 8]
NRS 201.220(1) provides a sanction for indecently exposing oneself. A violation of
NRS 201.220(1) does not require that the indecent exposure be witnessed. Our holding in
Young also establishes that NRS 201.220(1) does not require the defendant to intend to
offend an observer. Since Ebeling committed only one act of indecent exposure, NRS
201.220(1) only provides for one charge of indecent exposure, regardless of the number of
witnesses. Therefore, we conclude that the district court erred in sentencing Ebeling to two
counts of indecent exposure for the single Peppermill exposure.
CONCLUSION
We affirm Ebeling's judgment of conviction in part and reverse in part. We remand
this matter to the district court to vacate one of Ebeling's indecent exposure convictions for
his act at the Peppermill and to vacate his conviction for lewdness with a minor under the age
of fourteen pertaining to W.C. and for resentencing consistent with this opinion. All
remaining convictions are affirmed.
____________________

10
109 Nev. 205, 215, 849 P.2d 336, 343 (1993) (citations omitted).
____________
120 Nev. 406, 406 (2004) Bailey v. State
DANIEL JOHN BAILEY, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 40850
June 15, 2004 91 P.3d 596
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of
lewdness with a child under the age of fourteen. Second Judicial District Court, Washoe
County; Connie J. Steinheimer, Judge.
The supreme court held that extended statute of limitations was applicable, regardless
of whether the offense was committed in a secret manner.
Affirmed.
Respondent.
1. Criminal Law.
Questions of law are reviewed de novo.
2. Criminal Law.
With respect to limitation periods and tolling statutes, the statutes in effect at the time
of the offense control.
3. Statutes.
If the words of the statute have a definite and ordinary meaning, the court will not
look beyond the plain language of the statute, unless it is clear that this meaning was
not intended.
4. Criminal Law.
The charged offense of lewdness with a child under age of fourteen was an offense
constituting sexual abuse of a child, and thus, the extended statute of limitations, which
would run until victim reached age twenty-one, was applicable, regardless of whether
the offense was committed in a secret manner. NRS 171.095(1)(a), (b), 201.230,
432B.100.
OPINION
Per Curiam:
Appellant Daniel Bailey contends his conviction for lewdness with a child under the
age of fourteen is barred because the charge was brought after the running of the applicable
statute of limitations. Bailey asserts the complaint or information was not filed within three
years of the discovery of the offense as provided by NRS 171.095(1)(a). We disagree and
conclude that NRS 171.095{1){b) is the applicable statute because lewdness with a minor
is an offense constituting sexual abuse of a child under NRS 432B.100.
NRS 171.095(1)(b) is the applicable statute because lewdness with a minor is an offense
constituting sexual abuse of a child under NRS 432B.100. Accordingly, where child victims
discover or reasonably should have discovered they were the victims of sexual abuse, an
information or complaint may be filed any time before the child victim of the abuse reaches
the age of twenty-one. Because the victim in the instant case was under twenty-one when the
complaint was filed, the offense was not barred by the statute of limitations and Bailey's
conviction is affirmed.
FACTS
Bailey committed a lewd act with a six-year-old female child sometime between
January 1, 1995, and January 1, 1996. In June 1996, the child reported the incident to her
mother, however, the mother never informed anyone else of the incident. Several years later,
in October 2001, while talking to a school counselor, the child again reported the incident.
The counselor notified the proper authorities and, after investigation, Bailey was charged with
lewdness with a child under the age of fourteen.
The initial complaint was filed on May 8, 2002, and the information was filed on June
6, 2002. Bailey pleaded guilty to the charge, but he reserved the right to argue for dismissal of
the case based on the running of the statute of limitations and to appeal any adverse ruling to
this court. Bailey filed a motion to dismiss the complaint alleging that the complaint should
have been filed within three years of the date the child reported the incident to her mother,
that is before June 1999, citing to NRS 171.095(1)(a). The State responded by arguing that
the charge could be brought any time before the victim reached age twenty-one pursuant to
NRS 171.095(1)(b).
The district court found: (1) the offense was committed in a secret manner; (2) the
offense is subject to the extended statute of limitations for crimes constituting sexual abuse
pursuant to NRS 171.095(1)(b) and NRS 432B.100; and (3) in this case, the extended statute
of limitations runs until the victim reaches twenty-one years old since the victim was aware of
the sexual abuse. Accordingly, the district court found that the State filed the criminal
information within the applicable statute of limitations. Bailey timely appealed.
DISCUSSION
[Headnotes 1, 2]
Questions of law are reviewed de novo.
1
This court has consistently held that with
respect to limitation periods and tolling statutes, the statutes in effect at the time of the
offense control.
____________________

1
Associated Bldrs. v. So. Nev. Water Auth., 115 Nev. 151, 156, 979 P.2d 224, 227 (1999) (citing SIIS v.
United Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295 (1993)).
statutes, the statutes in effect at the time of the offense control.
2
Therefore, the relevant
statutes in this matter are those that were in effect from January 1, 1995, to January 1, 1996.
In 1995, NRS 201.230 provided that lewdness with a child under the age of fourteen was a
felony.
3
NRS 171.085 (1995) states that, except as provided in NRS 171.095, the State has
three years from the commission of the crime to file a charging document.
NRS 171.095 (1995) provides in pertinent part:
1. Except as provided in subsection 2:
(a) If a felony . . . is committed in a secret manner, an indictment for the offense must
be found, or an information or complaint filed, within the periods of limitation
prescribed in NRS 171.085 and 171.090 after the discovery of the offense unless a
longer period is allowed by paragraph (b).
(b) An indictment must be found, or an information or complaint filed, for any offense
constituting sexual abuse of a child, as defined in NRS 432B.100, before the victim of
the sexual abuse is:
(1) Twenty-one years old if he discovers or reasonably should have discovered
that he was a victim of the sexual abuse by the date on which he reaches that age; or
(2) Twenty-eight years old if he does not discover and reasonably should not
have discovered that he was a victim of the sexual abuse by the date on which he
reaches 21 years of age.
Bailey argues that NRS 171.085 and NRS 171.095(1)(a) govern this case, causing the
statute of limitations to run in June 1999, three years after the mother discovered the abuse.
Since Bailey was not charged until May 8, 2002, he argues the action was barred by the
statute of limitations. Bailey cites this court's recent decision in State v. Quinn
4
to support
his argument. In Quinn, this court clarified what constitutes discovery' of a sexual crime
against a child committed in a secret manner' for purposes of triggering the criminal statute
of limitations contained at NRS 171.095(1)(a).
5

However, Quinn differs significantly from this case, as the crime of which Quinn was
convicted, indecent exposure, was not included among those offenses constituting sexual
abuse under NRS 432B.100.
6
Therefore, NRS 171.095(1)(b) was not applicable in Quinn.
____________________

2
State v. Quinn, 117 Nev. 709, 712, 30 P.3d 1117, 1119 (2001).

3
NRS 201.230 was amended, effective October 1, 1995, changing the punishment for a violation of the
statute. Bailey's sentence is in accordance with both versions of this statute.

4
117 Nev. 709, 30 P.3d 1117.

5
Id. at 710, 30 P.3d at 1118.

6
See id. at 712, 30 P.3d at 1119-20.
Quinn. On the other hand, the offense of which Bailey was convicted, lewdness with a child
under the age of fourteen pursuant to NRS 201.230, is an offense constituting sexual abuse
under NRS 432B.100. Therefore, NRS 171.095(1)(b) applies.
Bailey contends, without citation, that NRS 171.095(1)(b) is not applicable because it
only extends the statute of limitations for secret offenses not discovered within the general
three-year statute of limitations. Bailey argues that since the victim in this case was aware of
the abuse and the mother discovered the abuse shortly after it occurred, it was no longer a
secret offense and NRS 171.095(1)(b) does not apply.
[Headnote 3]
We conclude that Bailey's argument is without merit. If the words of the statute have
a definite and ordinary meaning, this court will not look beyond the plain language of the
statute, unless it is clear that this meaning was not intended.
7
NRS 171.095(1)(b)(1), unlike
NRS 171.095(1)(a), does not contain any language limiting its application to offenses
committed in a secret manner. The plain language of the statute indicates that, regardless of
when the crime was discovered, the State may file a charging document up to the time the
child victim reaches age twenty-one.
8

NRS 171.085 specifically states that its statute of limitations of three years is subject
to the longer periods provided for in NRS 171.095. Additionally, NRS 171.095(1)(a)
provides that it is subject to paragraph (b). Therefore, where NRS 171.095(1)(b) applies, the
time periods provided for in NRS 171.095(1)(a) and NRS 171.085 are inapplicable.
[Headnote 4]
The offense for which Bailey is charged is included in the definition of sexual abuse
of a child under NRS 432B.100. Accordingly, NRS 171.095(1)(b) applies to this case. The
victim knew of the abuse because she reported it to her mother. Therefore NRS
171.095(1)(b)(1) controls. The victim was born in June 1989. Thus, the State had until June
2010 to file a charging document. Since the State filed the complaint on May 8, 2002, Bailey
was appropriately charged before the statute of limitations ran under NRS 171.095(1)(b)(1).
Therefore, we affirm the judgment of conviction.
____________________

7
Id. at 713, 30 P.3d at 1120.

8
If the child victim does not discover or reasonably should not have discovered the sexual abuse until after
the child reached age twenty-one, the statute of limitations is extended until the victim's twenty-eighth birthday.
See NRS 171.095(1)(b)(2).
____________
120 Nev. 410, 410 (2004) Allred v. State
CHRISTOPHER ALLRED, Appellant, v. THE STATE
No. 40924
July 12, 2004 92 P.3d 1246
battery with substantial bodily harm. Seventh Judicial District Court, White Pine County;
Steve L. Dobrescu, Judge.
The supreme court, Gibbons, J., held that: (1) district court's inadvertent act of
including two erroneous jury instructions regarding lesser included offense and confessions
into deliberations constituted harmless error; (2) district court's error in not complying with
required juror-questioning procedural safeguard was harmless; (3) prosecutor's comment
during closing arguments, in which prosecutor commented that defendant did not come forth
with an accurate account of how victim's injuries occurred, did not constitute impermissible
comment on defendant's failure to testify; (4) evidence was sufficient to support conviction;
and (5) sentence of 60 months imprisonment did not constitute cruel and unusual punishment.
Affirmed.
Steven G. McGuire, State Public Defender, and John D. Augenstein and Harriet E.
Cummings, Deputy Public Defenders, Carson City, for Appellant.
Brian Sandoval, Attorney General, Carson City; Richard W. Sears, District Attorney,
and Kevin R. Briggs, Deputy District Attorney, White Pine County, for Respondent.
1. Criminal Law.
District court's error in inadvertently including jury instructions regarding lesser
included offense of battery and regarding jury's ability to disregard an involuntary
confession in packet of instructions handed to jury constituted harmless error in
prosecution for battery with substantial bodily harm. District court instructed jury to
disregard instructions, and verdict form did not have option of allowing jury to choose
lesser included offense.
2. Criminal Law.
The supreme court reviews the giving of erroneous jury instructions under a harmless
error analysis.
3. Criminal Law.
An error is harmless when it is clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error.
4. Criminal Law.
The supreme court presumes that the jury followed the district court's orders and
instructions.
5. Criminal Law.
District court failed to comply with required juror-questioning procedural safeguard in
battery prosecution, where court failed to instruct jury that jurors were not to place
undue weight on responses to questions asked by jurors.
6. Criminal Law; Witnesses.
Inclusion of juror questions in questioning of witnesses must incorporate certain
procedural safeguards to minimize attendant risks, including (1) initial jury instructions
explaining that questions must be factual in nature and designed to clarify information
already presented, (2) the requirement that jurors submit their questions in writing, (3)
determinations regarding the admissibility of the questions must be conducted outside
the presence of the jury, (4) counsel must have the opportunity to object to each
question outside the presence of the jury, (5) an admonition that only questions
permissible under the rules of evidence will be asked, (6) counsel is permitted to ask
follow-up questions, and (7) an admonition that jurors must not place undue weight on
the responses to their questions.
7. Criminal Law.
District court's error in not complying with required juror-questioning procedural
safeguard, in which court failed to instruct jury that jurors were not to place undue
weight on responses to questions asked by jurors, was harmless in battery prosecution.
District court substantially complied with other required safeguards, in that it instructed
jury not to draw any negative inference if court did not ask a particular question,
instructed jury not to presume what answer would be to a question court did not ask,
and required written juror questions.
8. Criminal Law.
Prosecutor's comment during closing argument of battery prosecution, that defendant
did not come forth with an accurate account of how victim's injuries occurred, did not
constitute impermissible comment on defendant's failure to testify. Prosecutor
commented on the evidence that deputy presented about defendant's conflicting
accounts of what occurred on the night victim was injured.
9. Criminal Law.
A prosecutor's comments should be viewed in context, and a criminal conviction is
not to be lightly overturned on the basis of a prosecutor's comments standing alone.
10. Criminal Law.
Failure to object to an issue at trial will generally preclude appellate review of that
issue unless there is plain error.
11. Criminal Law.
Demonstrative exhibits used by prosecutor during closing argument in battery
prosecution, which consisted of photograph of victim's hands with notation physical
evidence of a battery, photographs of victim's face with physical evidence of a
battery notation, and a listing of injuries victim suffered on rest of his body, were not
prejudicial to defendant. District court ordered prosecutor to remove physical evidence
of a battery notations and ordered that exhibit listing victim's injuries properly reflect
victim's injuries, and exhibits had been consistent with testimony and pictures that had
been admitted into evidence.
12. Assault and Battery.
Evidence was sufficient to support conviction for battery with substantial bodily
harm; deputy testified that when he found victim on the street, both of victim's eyes
were swollen and victim had blood all over his face, deputy testified that defendant
told him he had caused victim's injuries, and day after victim was injured, deputy
described victim's injuries, stating that both of victim's eyes appeared to be swollen
and turning black, that victim had cuts and scrapes below the eyes, and that victim
was missing a couple of front teeth.
his face, deputy testified that defendant told him he had caused victim's injuries, and
day after victim was injured, deputy described victim's injuries, stating that both of
victim's eyes appeared to be swollen and turning black, that victim had cuts and scrapes
below the eyes, and that victim was missing a couple of front teeth.
13. Criminal Law.
When reviewing evidence supporting a jury's verdict, the supreme court asks whether
the jury, acting reasonably, could have been convinced of the defendant's guilt beyond a
reasonable doubt by the evidence it had a right to consider.
14. Assault and Battery; Sentencing and Punishment.
Sentence of 60 months imprisonment imposed on defendant convicted of battery with
substantial bodily harm did not constitute cruel and unusual punishment; sentence was
within statutory guidelines, and record indicated that in imposing sentence, district
court considered the facts of the case, including the criminal justice system's goals of
deterrence, rehabilitation, and punishment. U.S. Const. amend. 8; NRS 193.130(2)(c),
200.481(2)(b).
The Eighth Amendment of the United States Constitution forbids an extreme sentence
that is grossly disproportionate to the crime. U.S. Const. amend. 8.
Despite its harshness, a sentence within the statutory limits is not cruel and unusual
punishment unless the statute fixing punishment is unconstitutional or the sentence is
so unreasonably disproportionate to the offense as to shock the conscience. U.S. Const.
amend. 8.
Supreme court affords a district court wide discretion in its sentencing decision and
will refrain from interfering with the sentence imposed so long as the record does not
demonstrate prejudice resulting from consideration of information or accusations
founded on facts supported only by impalpable or highly suspect evidence.
18. Criminal Law.
Prosecutor's recommendation that district court sentence defendant for battery
conviction to a term that was 2 more months than statutory maximum did not result in
prejudice to defendant. Record indicated that prosecutor's recommendation was a
mistake, prosecutor did not repeat such recommendation nor was it pervasive during the
proceeding, and district court did not sentence defendant to 2 months more than
statutory maximum.
Record did not support finding that district court relied on highly suspect evidence in
sentencing defendant for battery conviction, even though court commented that
defendant was lucky that he did not kill victim and who knew what would have
happened if deputy had not arrived at crime scene when he did. Comments by judge
only implied that if deputy had not arrived, victim might have died because of severity
of injuries, and court, in sentencing defendant, relied on facts that defendant had prior
criminal activities and evidence that defendant had substantially injured victim.
OPINION
Following a 2-day trial, a jury unanimously convicted appellant Christopher Allred of
one count of battery with substantial bodily harm. The district court imposed on Allred the
maximum sentence of 60 months with the possibility of parole after 24 months.
Allred appeals, contending that (1) due to a clerical error, two erroneous written jury
instructions were allowed into the jury's deliberations; (2) the court denied Allred a fair trial
because jurors questioned the witnesses; (3) the district court denied Allred due process
because the prosecutor commented on Allred's failure to testify; (4) there was insufficient
evidence for the jury to convict him; and (5) the sentence imposed by the district court
constitutes cruel and unusual punishment.
FACTS
On the night of February 1, 2002, the victim, Scott Fritsche, went to the Liberty Club,
a popular night club in Ely. Fritsche was in the bar for hours and drank heavily. Fritsche
remembers drinking a few beers and playing shuffle board, but he does not recall anything
else until the next morning.
Kristopher Grant, Robin Gregson, Kristen Fisher, and Allred were also at the Liberty
Club that night. Fisher was working that night as the bartender at the Liberty Club. Fisher
testified that Grant and his fiance Gregson argued about Gregson's child from another
relationship. After Fisher broke up that argument, the atmosphere was calmer. Then, Fritsche
began arguing with Grant about a different matter.
At approximately 2 a.m. on February 2, 2002, Fritsche and Grant had an argument.
Grant testified that Fritsche was being too friendly with Gregson, so Grant started yelling at
Fritsche. Grant and Fritsche were inches apart and screaming at each other, but did not
engage in a physical altercation. Allred was in the bar during both arguments. Fisher stopped
the argument between Fritsche and Grant by escorting Fritsche out of the bar. Allred later
went outside with Fritsche. Fisher testified that she watched Grant in the club during the time
that Allred went outside with Fritsche.
After escorting Fritsche out, Fisher focused her attention on Grant to allow Fritsche
enough time to leave. At that moment, Allred came in the front door of the bar and appeared
shaken. Fisher testified that Allred told everyone in the bar that he had been in a fight with
Fritsche. Allred told Fisher that he had gone outside to make sure everything was cool to
smooth things over, make sure there was no hard feelings.
make sure there was no hard feelings. Allred also told Fisher that Fritsche had attempted to
hit him, so Allred fishhooked
1
him and punched him once.
Fritsche sustained several injuries from the incident. Fritsche testified that he does not
remember arguing with anyone that night, fighting with Allred or leaving the bar. Fritsche
only remembers waking up in the hospital experiencing a lot of pain. Specifically, Fritsche
testified that he was missing a tooth, his nose was swollen, and his injuries required plastic
surgery to remedy the damage. A Las Vegas plastic surgeon performed surgery on Fritsche,
installing five titanium plates in his face. Fritsche also obtained two temporary false teeth.
Fritsche suffered pain for about 1 1/2 months after the surgery.
Officer Swetich, a deputy sheriff in White Pine County, investigated the altercation.
At approximately 3 a.m. on February 2, 2002, Deputy Swetich drove past the Liberty Club
and discovered Fritsche lying in the street. Blood covered Fritsche's face, and Deputy Swetich
turned Fritsche on his side to prevent him from choking on his blood. Deputy Swetich
immediately telephoned emergency services to send an ambulance for medical assistance.
People from the Liberty Club then began exiting the building, and Deputy Swetich yelled out,
[D]oes anybody know what happened, who did this to him? Allred responded that he was
responsible.
When Deputy Swetich asked Allred about what had occurred outside the Liberty
Club, Allred told him that he broke up a fight between Grant and Fritsche. Allred said that
Grant and Fritsche were fighting and after Allred broke up the fight, Fritsche took a swing at
Allred. In response, Allred fishhooked Fritsche and punched him once in self-defense. Deputy
Swetich then interviewed Grant and informed him of Allred's version of the events. Grant
became upset and stated that he did not physically fight with Fritsche. Deputy Swetich then
interviewed Allred for a second time and told him that Grant's story conflicted with Allred's
story. After being confronted with this information, Allred told Deputy Swetich that he did
not break up a fight and that he and Fritsche were alone at the time of the incident. Deputy
Swetich suggested that Allred kicked Fritsche. Allred then told Deputy Swetich to analyze his
boots to demonstrate his innocence. Deputy Swetich took the boots and sent them to the
crime lab; however, the analysis did not yield any significant evidence in support of the
prosecution's case.
The State charged Allred by information with one count of battery with substantial
bodily harm. During closing arguments, the prosecutor pointed out inconsistencies between
what Allred told Fisher and what Allred later told Deputy Swetich.
____________________

1
Fishhooked refers to putting your thumb onto the person's cheek and then squeezing the cheek between
the thumb and forefinger.
prosecutor pointed out inconsistencies between what Allred told Fisher and what Allred later
told Deputy Swetich. The prosecutor then stated that Allred doesn't come forth with an
accurate account of how this occurred ever. We get three different accounts told to different
people. We never get an accurate account. After the jury began deliberations, the jury
discovered two additional jury instructions that were not read by the judge. The jury asked the
district court whether it should consider the two questions regarding the lesser included
offense of battery and the instruction on confession. The district court responded that the jury
should not consider those two instructions. Subsequently, the jury found Allred guilty of
battery with substantial bodily harm.
The court sentenced Allred to serve a 60-month sentence with the possibility of parole
after 24 months. The district court imposed the maximum sentence because Allred had
previous drug and alcohol abuse problems, prior arrests, and he severely injured Fritsche.
Allred appeals the judgment of conviction.
DISCUSSION
Erroneous jury instructions
[Headnote 1]
Allred argues that he was prejudiced by the jury instructions regarding lesser included
offenses and confessions. Specifically, Allred argues that because the district court
inadvertently included the two erroneous jury instructions with the other instructions, the
court denied him the right to a fair trial. We disagree.
[Headnotes 2-4]
Although we have not previously discussed erroneous jury instructions under similar
facts, we have considered erroneous jury instructions under different circumstances.
2
We
review the giving of erroneous jury instructions under a harmless error analysis.
3
An error
is harmless when it is clear beyond a reasonable doubt that a rational jury would have found
the defendant guilty absent the error.'
4
Additionally, we presume that the jury followed the
district court's orders and instructions.
5

After the jury began deliberations in the instant case, the jury submitted a written
question to the judge: There were 2 pages included in the packet of instructions handed to
the jury that were not read by the judge or included in the original instructions.
____________________

2
See, e.g., Wegner v. State, 116 Nev. 1149, 1155-56, 14 P.3d 25, 30 (2000); Collman v. State, 116 Nev.
687, 722, 7 P.3d 426, 449 (2000).

3
Wegner, 116 Nev. at 1155, 14 P.3d at 30.

4
Id. (quoting Neder v. United States, 527 U.S. 1, 18 (1999)).

5
not read by the judge or included in the original instructions. Can the jury consider these
pages? The two jury instructions were (1) an instruction on the lesser included offense of
battery and (2) an instruction on a jury's ability to find a defendant's confession or admission
involuntary and therefore disregard it. Allred never gave a confession, only the inconsistent
statements to the police. On the record, the district court discussed this question with Allred's
counsel. The district court then answered the jury: These two instructions were erroneously
placed in the packet given to the jury. The jury shall not consider these two instructions, and
must only use the original instructions given by the court.
We must presume the jury disregarded the erroneous jury instructions pursuant to the
direction from the district court. Allred also failed to show how he was prejudiced by the two
erroneous instructions. Additionally, the verdict form contained only the option of battery
with substantial bodily harm. There was no option allowing the jury to choose the lesser
included offense of battery. Because the district court cured this clerical mistake by its
direction to disregard the erroneous instructions, we conclude that the two erroneous jury
instructions constitute harmless error because a rational jury would have found Allred guilty
absent the mistake.
Jury questioning
[Headnote 5]
Allred argues that the district court denied him due process because the court
permitted the jury to present written questions to Deputy Swetich. Allred urges us to
reconsider our decision in Flores v. State, which allows jurors to pose questions to witnesses.
6
We conclude that the district court did not deny Allred due process by following Flores,
and we reaffirm our holding in Flores.
[Headnote 6]
Nevada has joined the majority of jurisdictions which acknowledge the practice of
jury-questioning as an innovation that can significantly enhance the truth-seeking function of
the trial process.
7
In Flores, we held that allowing juror-inspired questions in a criminal
case is not prejudicial per se, but is a matter committed to the sound discretion of the trial
court.
8
Because there is a risk of prejudice, we mandated that the practice be carefully
controlled by the district court. Accordingly, the district court must take certain procedural
safeguards to minimize the attendant risks. These safeguards include:
____________________

6
114 Nev. 910, 912-13, 965 P.2d 901, 902 (1998).

7
Id.

8
Id. at 913, 965 P.2d at 902.
(1) initial jury instructions explaining that questions must be factual in nature and
designed to clarify information already presented; (2) the requirement that jurors submit
their questions in writing; (3) determinations regarding the admissibility of the
questions must be conducted outside the presence of the jury; (4) counsel must have the
opportunity to object to each question outside the presence of the jury; (5) an
admonition that only questions permissible under the rules of evidence will be asked;
(6) counsel is permitted to ask follow-up questions; and (7) an admonition that jurors
must not place undue weight on the responses to their questions.
9

In the instant case, the district court allowed juror questioning and instructed the
jurors to write down questions for the witnesses and submit them to the court for review. The
district court also admonished the jury not to draw any negative inference if the court did not
ask a particular question. Additionally, the district court admonished the jury not to presume
what the answer of an unasked question would be. After the district court dismissed the jury,
the court reviewed each submitted question with counsel.
One of the juror questions asked, Could the suspect have changed his boots?
Allred's counsel objected to the question as speculative. The district court disagreed and
stated that the juror was confused about whether there was time for Allred to change his
boots. After the jury returned to the courtroom, the district court asked, Could the suspect
have changed his boots from the time of the fight to the time you collected the boots?
Deputy Swetich testified that it was possible for Allred to have changed the boots because
there were twelve hours between the altercation and when he collected the boots from Allred.
Allred argues that the district court prejudiced him by allowing this question because
it called for speculation and the court did not follow the safeguards established in Flores.
Allred contends that the district court failed to admonish the jurors not to place undue weight
on the responses to the juror questions. We disagree.
[Headnote 7]
In this case, the district court complied with most of the juror-questioning procedures
discussed in Flores by (1) instructing the jury not to draw any negative inference if the court
did not ask a particular question, (2) instructing the jury not to presume what the answer
would be for a question the court did not ask, (3) requiring written juror questions, (4)
discussing the admissibility of juror questions and affording counsel the opportunity to object
outside the presence of the jury, and (5) allowing counsel to ask follow-up questions.
____________________

9
Id. at 913, 965 P.2d at 902-03.
ask follow-up questions. Additionally, there is no indication in the record that defense
counsel requested additional admonitions or other procedural safeguards for juror
questioning. We conclude that the district court erred by not instructing the jury, pursuant to
Flores, that jurors must not place undue weight on responses to their questions but that the
district court otherwise substantially complied with the requisite safeguards of Flores. We
conclude the failure to give the one admonition is harmless error.
Prosecutor's comment
[Headnote 8]
Allred argues that the prosecutor's statement during closing arguments regarding
inconsistencies in Allred's statements to the police constituted a comment on Allred's failure
to testify, in violation of his due process rights. We disagree.
[Headnote 9]
Agreeing with the United States Court of Appeals for the Ninth Circuit, we have
stated that as long as a prosecutor's remarks do not call attention to a defendant's failure to
testify, it is permissible to comment on the failure of the defense to counter or explain
evidence presented.
10
Additionally, [a] prosecutor's comments should be viewed in
context, and a criminal conviction is not to be lightly overturned on the basis of a
prosecutor's comments standing alone.'
11

[Headnote 10]
During closing arguments in the instant case, the prosecutor referred to the two
different accounts Allred gave to Deputy Swetich. The prosecutor then said, Allred doesn't
come forth with an accurate account of how this occurred ever. Allred's attorney failed to
object to the prosecutor's statement during closing argument. Failure to object to an issue at
trial will generally preclude appellate review of that issue unless there is plain error.
12
The
prosecutor's statement, when considered in context, was not improper. The prosecutor did not
directly comment on Allred's failure to testify. Instead, the prosecutor commented on the
evidence that Deputy Swetich presented about Allred's conflicting accounts of what occurred
on the night of the altercation. We conclude that the jury would not have considered the
prosecutor's comments as being directed at Allred's failure to testify. For the above reasons,
we determine that the prosecutor's comments were not improper and, even if they could be
considered a comment on Allred's failure to testify, did not constitute plain error;
therefore, Allred's argument lacks merit.
____________________

10

11
Knight v. State, 116 Nev. 140, 144-45, 993 P.2d 67, 71 (2000) (quoting United States v. Young, 470 U.S.
1, 11 (1985)).

12
Leonard, 117 Nev. at 63, 17 P.3d at 403.
even if they could be considered a comment on Allred's failure to testify, did not constitute
plain error; therefore, Allred's argument lacks merit.
Demonstrative exhibits
[Headnote 11]
Allred concedes that the prosecutor may use demonstrative exhibits during closing
arguments; however, he argues that the prosecutor's exhibits in this case were irrelevant,
highly prejudicial, and not supported by the evidence. We disagree.
The district court reviewed the State's three proposed demonstrative exhibits outside
the presence of the jury. The first exhibit included an admitted photograph of Fritsche's
hands, with the notation physical evidence of a battery, and listed the injuries Fritsche
sustained during the altercation. The second exhibit included an admitted photograph of
Fritsche's face, with the physical evidence of a battery notation and contained check marks
for his facial injuries. The third exhibit listed the injuries Fritsche suffered on the rest of his
body.
After Allred's attorney objected that the demonstrative exhibits' content was
prejudicial, the district court thoroughly examined each exhibit. The district court concluded
that the notations, physical evidence of a battery, were argumentative and ordered the
prosecutor to remove them from the three exhibits. Additionally, the district court ordered the
third exhibit altered to properly reflect Fritsche's injuries. The district court also ordered the
prosecutor to remove the notation post battery injuries from the third exhibit, as well as the
comparison between Allred's injuries to Fritsche's injuries. Apart from those changes, the
district court indicated that the exhibits were consistent with the testimony and the pictures
had already been admitted into evidence. Because the exhibits used during closing argument,
as edited, were proper, Allred's argument lacks merit.
Sufficiency of the evidence
[Headnote 12]
Allred argues that the jury relied on insufficient evidence to convict him. We disagree.
[Headnote 13]
When reviewing evidence supporting a jury's verdict, this court asks whether the
jury, acting reasonably, could have been convinced of the defendant's guilt beyond a
reasonable doubt by the evidence it had a right to consider.
13

____________________

13
Bridges v. State, 116 Nev. 752, 764, 6 P.3d 1000, 1009 (2000).
In the instant case, the prosecutor presented substantial evidence to the jury that
demonstrated Allred's guilt. Deputy Swetich testified that when he found Fritsche on the
street, both of his eyes were swollen . . . [and] he had blood all over his face. Deputy
Swetich testified that Fritsche had blood coming from his nose and mouth and that he turned
Fritsche over so he would not choke on his blood. Additionally, Deputy Swetich testified that
Allred told him he had caused Fritsche's injuries. The next day, Deputy Swetich described
Fritsche's injuries, stating that both of his eyes appeared that they were turning black. They
were swollen. He had cuts and scrapes below the eyes. His lips had been cut. And he was
missing a couple of . . . front teeth. And he had some bruising on his chest area. Fisher, the
bartender, testified that when Allred returned to the bar, he appeared disturbed. Fisher further
testified that Allred told her that he had punched Fritsche. Because substantial evidence exists
that Allred battered Fritsche, we conclude that a reasonable jury could find Allred guilty
beyond a reasonable doubt.
Cruel and unusual punishment
[Headnote 14]
Allred contends that his sentence of 60 months in prison constitutes cruel and unusual
punishment, in violation of the Eighth Amendment of the United States Constitution and
Article 1 of the Nevada Constitution. We disagree.
[Headnotes 15-17]
The Eighth Amendment of the United States Constitution forbids [an] extreme
sentence[ ] that [is] grossly disproportionate' to the crime.
14
Despite its harshness, [a]
sentence within the statutory limits is not cruel and unusual punishment unless the statute
fixing punishment is unconstitutional or the sentence is so unreasonably disproportionate to
the offense as to shock the conscience.'
15
Additionally, we afford the district court wide
discretion in its sentencing decision.
16
We will refrain from interfering with the sentence
imposed [s]o long as the record does not demonstrate prejudice resulting from consideration
of information or accusations founded on facts supported only by impalpable or highly
suspect evidence.
17

____________________

14
Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (plurality opinion) (quoting Solem v. Helm, 463 U.S.
277, 288 (1983)).

15
Blume v. State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996) (quoting Culverson v. State, 95 Nev. 433,
435, 596 P.2d 220, 221-22 (1979)).

16
Martinez v. State, 114 Nev. 735, 737-38, 961 P.2d 143, 145 (1998).

17
Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976).
In the instant case, the sentence imposed was within the parameters provided by the
relevant statutes.
18
Additionally, Allred does not allege that NRS 200.481 is
unconstitutional. Allred argues that the district court should have followed the Department of
Parole and Probation's recommendation of 12 to 32 months. The district court considered
Parole and Probation's recommendation, but declined to follow it. The district court
considered the facts of the case, including the criminal justice system's goals of deterrence,
rehabilitation, and punishment. Based on the evidence and the information available, the
district court imposed on Allred a 60-month prison sentence with parole eligibility after 24
months. Because Allred's sentence was within the statutory guidelines and does not shock the
conscience, Allred's sentence does not constitute cruel and unusual punishment.
Prosecutor's misstatement
[Headnote 18]
Allred argues that his sentence is unfair because, during the sentencing proceeding,
the prosecutor recommended that the district court sentence Allred to 24 to 62 months. The
maximum sentence for Allred's crime was 60 months.
19
Allred argues that because the
prosecutor recommended 2 more months than the statutory maximum, the prosecutor
prejudiced Allred. We disagree.
It appears that the prosecutor's sentencing recommendation for 2 months over the
maximum penalty was a mistake. The prosecutor did not repeat the statement nor was it
pervasive during the proceeding. The district court did not sentence Allred to 62 months, and
Allred has failed to demonstrate that the prosecutor's misstatement prejudiced him. Because
Allred experienced no prejudice by this comment alone, his argument lacks merit.
Suspect evidence
[Headnote 19]
Allred argues that the district court relied on highly suspect evidence in sentencing
him. Allred specifically refers to a portion of the sentencing hearing where the judge
commented that Allred was lucky he did not kill Fritsche and who knows if Deputy Swetich
hadn't pulled up right then. Basically, the district court inferred that if Deputy Swetich had
not arrived on the scene, Fritsche might have died because of the severity of his injuries. This
statement does not rise to the level of impalpable or highly suspect evidence.
____________________

18
See NRS 193.130(2)(c) (providing for prison term of 1 to 5 years for category C felony); NRS
200.481(2)(b) (providing that battery with substantial bodily harm is a category C felony).

19
NRS 193.130(2)(c).
ment does not rise to the level of impalpable or highly suspect evidence. Moreover, the record
indicates that the district court relied on the facts that Allred had prior criminal activities,
prior drug and alcohol abuse, and substantially injured Fritsche. Therefore, this argument
lacks merit.
CONCLUSION
The district court's clerical error in allowing the two erroneous jury instructions into
the jury's deliberations was harmless. Under Flores v. State,
20
the district court did not err in
allowing jurors to present written questions to the witnesses after the court approved those
questions. The prosecutor did not comment on Allred's failure to testify. Additionally, the
State presented sufficient evidence at trial for a jury to convict Allred. Finally, Allred was not
prejudiced by the prosecutor's recommendation of a 62-month prison sentence and the
sentence imposed was not based on impalpable or highly suspect evidence and does not
constitute cruel and unusual punishment. We, therefore, affirm the district court's judgment.
21

Agosti and Becker, JJ., concur.
____________
120 Nev. 422, 422 (2004) Matter of Parental Rights as to D.R.H.
In the Matter of the Parental Rights as to D.R.H.,
T.V.G., and C.A.G.
VINCENT L. G. and CRISTAN H., Appellants, v. THE STATE OF NEVADA DIVISION
OF CHILD AND FAMILY SERVICES, DEPARTMENT OF HUMAN
RESOURCES, Respondent.
No. 41352
July 12, 2004 92 P.3d 1230
Appeal from a district court order terminating appellants' parental rights. Seventh
Judicial District Court, White Pine County; Dan L. Papez, Judge.
The supreme court, Agosti, J., held that: (1) statute establishing a rebuttable
presumption that termination of parental rights would serve child's best interest when the
child had been placed outside of his home for fourteen of twenty consecutive months did not
violate father's substantive due process rights, (2) substantial evidence supported
determination that mother and father had neglected their children, {3) substantial
evidence supported determination that mother and father were unfit parents, {4)
substantial evidence supported determination that mother and father had failed to adjust
their faults to obtain custody of children, {5) substantial evidence supported
determination that return of children to either mother or father would place the children
at risk of serious injury, {6) substantial evidence supported determination that mother
and father made only token efforts to regain custody of children, and {7) substantial
evidence supported determination that termination of mother's and father's parental
rights was in children's best interest.
____________________

20
114 Nev. 910, 965 P.2d 901 (1998).

21
We have considered Allred's other arguments and conclude they are without merit.
evidence supported determination that mother and father had neglected their children, (3)
substantial evidence supported determination that mother and father were unfit parents, (4)
substantial evidence supported determination that mother and father had failed to adjust their
faults to obtain custody of children, (5) substantial evidence supported determination that
return of children to either mother or father would place the children at risk of serious injury,
(6) substantial evidence supported determination that mother and father made only token
efforts to regain custody of children, and (7) substantial evidence supported determination
that termination of mother's and father's parental rights was in children's best interest.
Affirmed.
Rick Lawton, Fallon, for Appellant Vincent L. G.
Michael L. Shurtz, Elko, for Appellant Cristan H.
Brian Sandoval, Attorney General, and Karen R. Dickerson, Deputy Attorney
General, Carson City, for Respondent.
1. Constitutional Law; Infants.
Statute establishing a rebuttable presumption that termination of parental rights would
serve a child's best interest when the child had been placed outside of his home for
fourteen of twenty consecutive months was narrowly tailored to serve state's compelling
interest in the welfare of and permanency planning for children who have been taken
from the physical shelter of their parents' custody, such that the statute did not violate
father's substantive due process rights. U.S. Const. amend. 14; NRS 128.109(2).
The supreme court reviews questions of law de novo.
A parent's interest in raising his or her child is a fundamental right protected by the
Due Process Clause. U.S. Const. amend. 14.
The supreme court analyzes substantive due process challenges to statutes impinging
on fundamental constitutional rights under a strict scrutiny standard. Under this
standard, the statute in question must be narrowly tailored to serve a compelling state
interest. U.S. Const. amend. 14.
5. Infants.
To terminate parental rights, a petitioner must prove by clear and convincing evidence
that termination is in the child's best interest and that one of the enumerated parental
fault factors set forth in statute exists. NRS 128.105(2).
6. Infants.
If substantial evidence in the record supports the district court's determination that
clear and convincing evidence warrants termination of parental rights, the supreme
court will uphold the termination order. NRS 128.105.
7. Infants.
Substantial evidence supported determination that mother and father had neglected
their children, so as to support termination of their parental rights. Division of Child
and Family Services (DCFS) had found the children in dirty condition and injured
while in mother's care, DCFS reported that children were found unsupervised on two
occasions, mother tested positive for drugs while pregnant, several incidents of
domestic violence had occurred in the home while children were present, father
engaged in repeated instances of domestic violence, and father failed to consistently
communicate with children when they were not in his immediate custody. NRS
128.105(2)(b).
8. Infants.
When determining parental unfitness for purposes of terminating parental rights,
district court could consider father's felony conviction for domestic violence. Father's
felony conviction was especially relevant given the district court's determination that
father was often unable to control his temper, as demonstrated by father's contact with
Division of Child and Family Services (DCFS), in which he verbally attacked social
workers on the telephone. NRS 128.105(2)(c), 128.106(6).
9. Infants.
Substantial evidence supported determination that mother and father were unfit
parents, so as to support termination of their parental rights. Father engaged in repeated
instances of domestic violence, resulting in a felony domestic violence conviction,
children witnessed several domestic violence incidents, exposing them to risk of harm
and negatively affecting their emotional well-being, father failed to consistently
communicate with children while they were in foster care, mother had abused drugs for
much of children's lives, and mother's drug use put the children in danger at times. NRS
128.105(2)(c).
10. Infants.
Substantial evidence supported determination that mother had failed to adjust her
faults to obtain custody of her children, so as to support termination of her parental
rights, although Division of Child and Family Services (DCFS) had refused to place the
children at a location near mother. Since DCFS had removed children from mother's
custody, mother had failed to substantially comply with her case plan by failing to
maintain stable employment and by failing to maintain a drug-free lifestyle, and
mother's drug use negatively affected the children. NRS 128.105(2)(d).
11. Infants.
Substantial evidence supported determination that father had failed to adjust his faults
to obtain custody of his children, so as to support termination of his parental rights.
Father had demonstrated an inability to manage his anger, father had been convicted of
a third domestic violence offense and had been terminated from his employment due to
an altercation since Division of Child and Family Services (DCFS) had removed
children from home, father verbally attacked DCFS social workers on the telephone,
and father's animosity to DCFS did not excuse his failure to regularly communicate
with his children. NRS 128.105(2)(d).
12. Infants.
Substantial evidence supported determination that return of children to either mother
or father would place the children at risk of serious injury, so as to support termination
of mother's and father's parental rights. Mother had continuing drug abuse problem and
had failed to adjust her circumstances, father was incarcerated at time of termination
proceedings, was unemployed, lacked stable housing, and lacked foster care
licensing for mother's child, who was neither father's biological nor adopted child,
and proposed placement of children with father's out-of-state relatives was
uncertain.
was unemployed, lacked stable housing, and lacked foster care licensing for mother's
child, who was neither father's biological nor adopted child, and proposed placement of
children with father's out-of-state relatives was uncertain. NRS 128.105(2)(e).
13. Infants.
Substantial evidence supported determination that mother and father made only token
efforts to regain custody of their children, so as to support termination of their parental
rights. Children were in foster care for over thirty consecutive months, giving rise to
statutory presumption that parents had demonstrated only token efforts to reunify,
mother had failed to adequately address her drug abuse problem, even after provided
with extensive drug rehabilitation services, father had failed to adequately address his
anger problems, despite participating in numerous anger management courses, and
father did not consistently communicate with children while they were in foster care.
NRS 128.105(2)(f), 128.109(1)(a).
14. Infants.
The continuing needs of a child for proper physical, mental and emotional growth and
development are relevant to the child's best interest, in proceedings to terminate
parental rights. NRS 128.005(2)(c).
15. Infants.
Substantial evidence supported determination that termination of mother's and father's
parental rights was in children's best interest. Mother had failed to overcome her drug
abuse problems, as required by her case plan, father continued to have anger
management and domestic violence problems even after completion of required courses
on these issues, father had failed to communicate with children for almost two years,
case history was replete with incidents of domestic violence between the parents,
children were adjusting well to foster home, and children had been in foster care for
over thirty consecutive months. NRS 128.105, 128.109(2), 432B.157.
16. Infants.
Opinion testimony of clinical psychologist was admissible in
termination-of-parental-rights proceeding and could be favorably considered by the
district court, even though Division of Child and Family Services (DCFS) had not
provided psychologist with a complete report regarding the parents. DCFS's failure to
provide a complete report to psychologist affected the weight the district court might
have accorded psychologist's testimony, not its admissibility, and mother and father
fully availed themselves of opportunity to cross-examine psychologist.
OPINION
Appellant Cristan H. is the natural mother of minor children D.R.H., T.V.G. and
C.A.G. At the time of the district court's hearing on the petition to terminate parental rights,
D.R.H. was seven years old, T.V.G. was six years old and C.A.G. was four years old. All
three children are boys. Appellant Vincent G. is the natural father of T.V.G. and C.A.G.
Cristan and Vincent lived together on and off throughout the children's lives, but
remained unmarried.
natural father of T.V.G. and C.A.G. Cristan and Vincent lived together on and off throughout
the children's lives, but remained unmarried.
Respondent Division of Child and Family Services (DCFS) removed the children
from Cristan's custody in April 2000. On April 6, law enforcement officers had found the
children, unsupervised, playing on a busy highway. At that time, the children were ages five,
four and two. Cristan was found asleep in her home. A drug test later that day revealed that
Cristan had used amphetamines. The next day, C.A.G. stopped breathing and was taken to the
hospital. Physicians discovered bruising on C.A.G. that was consistent with forceful
grabbing. A physician contacted DCFS, requesting protective custody of C.A.G. DCFS took
legal custody of all three children, placing physical custody of the children with Vincent.
During the summer of 2000, after learning of Vincent's third domestic violence charge and
because of his failure to comply with interstate placement restrictions, DCFS removed the
children from his custody. After nearly 2 1/2 years of attempts to return the children to
Cristan and Vincent, DCFS petitioned the district court to terminate Cristan's and Vincent's
parental rights. After conducting a termination proceeding, the district court issued an order
terminating both Cristan's and Vincent's parental rights.
On appeal, Vincent argues that NRS 128.109(2) is unconstitutional as it infringes on
his substantive due process rights. This statute establishes a presumption that children who
have been placed outside of their homes for fourteen of twenty consecutive months have their
best interest served by parental termination. Additionally, both parents argue that clear and
convincing evidence did not support the district court's termination of their parental rights and
that termination of their rights was not in the children's best interest. We conclude that NRS
128.109(2) is constitutional and that substantial evidence supports the district court's decision
to terminate Cristan's and Vincent's parental rights.
Constitutionality of NRS 128.109(2)
[Headnote 1]
Vincent contends that NRS 128.109(2) violates his substantive due process rights
because it interferes with the parent-child relationship.
[Headnotes 2-4]
This court reviews questions of law de novo.
1
We recognize that a parent's interest in
raising his or her child is a fundamental right.
____________________

1
right.
2
Parental termination proceedings implicate this fundamental right. We analyze
substantive due process challenges to statutes impinging on fundamental constitutional rights
under a strict scrutiny standard.
3
The statute in question, NRS 128.109(2), must therefore be
narrowly tailored to serve a compelling [state] interest.
4
Pursuant to NRS 128.109(2), it is
presumed that termination of parental rights will serve a child's best interest when a child
has been placed outside of his home pursuant to chapter 432B of NRS and has resided outside
of his home pursuant to that placement for 14 months of any 20 consecutive months.
In determining whether the statute is narrowly tailored to serve a compelling state
interest, we turn first to the state interest involved. We have previously held that NRS
128.109(2) expresses the general public policy to seek permanent placement for children
rather than have them remain in foster care.
5
We observe that it makes good sense and
exceedingly sound public policy for the district court, after the requisite time has passed, to
evaluate whether continuing attempts to return a child to the home are in the child's best
interest. Certainly the state has a compelling interest in assuring that abused and neglected
children achieve safe, stable and permanent home environments within which to be reared.
Both periodic placement reviews
6
and the statute in question, which authorizes a
presumption in favor of termination after a child has spent a significant time in foster care,
address this compelling interest. Without placement reviews and without a statute granting a
presumption in favor of termination when a child has been in foster care for a significant
time, a child is susceptible to drift for an indefinite length of time within the foster care
system. If a child has spent fourteen or more of twenty consecutive months outside the home
of either or both parents, the presumption that termination of parental rights is in the child's
best interest is more than justified.
Next, we turn to the question of whether NRS 128.109(2) is narrowly tailored. We
observe first that the statute applies only where a child is removed from the home because of
parental abuse or neglect pursuant to NRS Chapter 432B. Additionally, we note that the
statute's presumption is rebuttable.
____________________

2
Matter of Parental Rights as to J.L.N., 118 Nev. 621, 625, 55 P.3d 955, 958 (2002).

3
Id.

4
Id.

5
Id. (examining NRS 128.109(2), in conjunction with NRS 432B.553(2), which provides for a plan of
permanent placement when a child remains outside the home for fourteen consecutive months).

6
See NRS 432B.580 (mandating that, when a child is placed into protective custody, the court must review
the placement semiannually).
that the statute's presumption is rebuttable. Parents are free to present evidence showing that
termination of their parental rights is not in a child's best interest. Also, the statute must be
read in conjunction with NRS 128.105, which requires the court to examine the child's best
interest and also to make a determination concerning parental fault. Moreover, the
presumption addresses the compelling state interest of planning for safe, stable and
permanent placements for abused and neglected children. Therefore, we conclude that NRS
128.109(2) is narrowly tailored to promote the state's compelling interest in the welfare of
and permanency planning for children who have been taken from the physical shelter of their
parents' custody. Accordingly, Vincent's argument is without merit.
Termination of parental rights
[Headnotes 5, 6]
In order to terminate parental rights, a petitioner must prove by clear and convincing
evidence that termination is in the child's best interest and that one of the enumerated parental
fault factors set forth in NRS 128.105(2) exists.
7
If substantial evidence in the record
supports the district court's determination that clear and convincing evidence warrants
termination, we will uphold the termination order.
8
In the present case, the district court
determined that terminating Vincent's and Cristan's parental rights was in the children's best
interest. Although NRS 128.105(2) only requires a finding of one of the enumerated parental
fault factors, the district court here found parental fault on the grounds of neglect, unfitness,
failure of parental adjustment, risk of serious injury and token efforts to reunify with the
children.
9

Parental fault
Neglect
[Headnote 7]
The district court determined by clear and convincing evidence that, due to Cristan's
persistent drug abuse and her neglect of the children's needs, Cristan failed to provide her
children with proper parental care.
10
Several instances supported the district court's
determination. First, DCFS had found the children in a dirty condition and injured while in
Cristan's care. Second, DCFS reported that the children were found unsupervised on two
separate occasions.
____________________

7
Matter of Parental Rights as to N.J., 116 Nev. 790, 801, 8 P.3d 126, 133 (2000).

8
Id. at 795, 8 P.3d at 129.

9
NRS 128.105(2)(b)-(f).

10
See NRS 128.014.
sions. On one occasion, law enforcement officers found the children playing on a busy
highway while Cristan was sleeping in her home. A drug test later that day revealed that
Cristan had used drugs. Third, Cristan had tested positive for cannabinoids and amphetamines
while pregnant with C.A.G. Finally, the district court noted several incidents of domestic
violence had occurred in the home while the children were present and, as a result, the
children were placed in harm's way.
The district court also determined by clear and convincing evidence that, in light of
Vincent's inability to control his temper, his participation in numerous domestic violence
incidents and his failure to consistently communicate with the children, Vincent failed to
provide the proper care necessary for the children's emotional well-being. The district court
found that Vincent had engaged in repeated instances of domestic violence. In one of these
incidents, Vincent pushed Cristan while she held T.V.G. These incidents sometimes occurred
in front of the children. Moreover, when the children were not in Vincent's immediate
custody, he failed to consistently communicate with them. For example, when DCFS
removed the children from Cristan's custody in 1997 and again in 1998, Vincent did not
attempt to regain physical custody or request that DCFS return the children to his care. He
also failed to consistently and meaningfully communicate with the children between June
2000 and June 2002, thereby disregarding the children's emotional needs.
Accordingly, we conclude that substantial evidence supports the district court's
determination that Cristan and Vincent neglected their children.
Unfitness of parent
[Headnote 8]
NRS 128.106(6) provides that, when determining parental unfitness, a court may
consider felony convictions of the parent if the facts of the crime are of such a nature as to
indicate the unfitness of the parent to provide adequate care and control to the extent
necessary for the child's physical, mental or emotional health and development. The district
court noted that, despite a case plan tailored to treat Vincent's problems with anger
management and domestic violence, at the time of the termination hearing, Vincent was
serving a sentence of imprisonment for his third domestic violence conviction, a felony under
NRS 200.485(1)(c). Vincent's felony conviction was especially relevant given the district
court's determination that Vincent was often unable to control his temper. Vincent's contact
with DCFS, in which he verbally attacked social workers on the telephone, was also probative
of his aggressive tendencies and inability to manage his anger.
dencies and inability to manage his anger. Thus, the district court properly considered
Vincent's felony conviction.
[Headnote 9]
The district court also found that the children had witnessed several of these domestic
violence incidents, had become involved in at least some of them, and that the children
behaved inappropriately by acting like their parents. Vincent argues that the district court
failed to consider that he was being brushed off by DCFS, in that DCFS was not promoting
reunification, and that DCFS was not concerned with his rights as a parent. We need not
address these allegations, however, because Vincent did not counter the evidence
demonstrating the negative effect of his behavior on the children's emotional well-being.
Moreover, the district court found that Vincent had failed to consistently communicate with
the children while they were in foster care and, therefore, failed to provide proper guidance
and support.
The district court found that, for much of the children's lives, Cristan had abused
drugs.
11
Moreover, the district court determined that Cristan's drug use often rendered her
unable to provide the appropriate care for the children and, at times, put the children in
danger, such as allowing the children to wander the streets unsupervised and abusing drugs
while pregnant. Additionally, the district court found repeated incidents of domestic violence
in the home, which often placed the children at risk of harm.
The district court found by clear and convincing evidence that neither Cristan nor
Vincent were able to offer continuous care to the children, whether the interruption arose
from violence in the home, drug use or neglect. The district court further concluded that,
because of their respective faults, both parents had failed to provide [the children] with
proper care, guidance and support.
12
We conclude that substantial evidence supports the
district court's finding of parental unfitness.
Failure of parental adjustment
The district court determined that Vincent and Cristan had not adjusted their conduct
or circumstances, or made reasonable efforts to do so, within a reasonable time to warrant the
return of the children to their care.
13

____________________

11
NRS 128.106 sets forth specific considerations in determining neglect or unfitness. NRS 128.106(4)
provides that [e]xcessive use of intoxicating liquors, controlled substances or dangerous drugs which renders
the parent consistently unable to care for the child, is one such factor.

12
NRS 128.018 ( Unfit parent' is any parent of a child who, by reason of his fault or habit or conduct
toward the child or other persons, fails to provide such child with proper care, guidance and support.).

13
See NRS 128.0126; NRS 128.107.
[Headnote 10]
The district court found by clear and convincing evidence that, since DCFS had
removed the children from Cristan's custody, Cristan had failed to substantially comply with
her case plan by failing to maintain stable employment and, more importantly, by failing to
maintain a drug-free lifestyle. Cristan argues that testimony from her Henderson caseworkers
demonstrates that she substantially complied with her case plan, that her failure was partly
due to the revolving door of social workers assigned to her case and that DCFS enacted
procedures to weaken the family bonds, such as refusing to place the children in Henderson,
where she could be near to them.
14
Cristan, however, was unable to dispute the fact that she
did not remain drug free. Nor did she counter evidence that her drug use negatively affected
the children. Furthermore, placement of the child near the parent must be consistent with the
best interest of the child. DCFS could reasonably have concluded that, due to the lack of
consistency in Cristan's living arrangements and her continued substance abuse, remaining
with stable foster parents in Elko
15
was in the children's best interest.
[Headnote 11]
The district court found by clear and convincing evidence that, since removal, Vincent
had been convicted of a third domestic violence offense and had been terminated from his
employment due to an altercation at work. Additionally, Vincent's treatment of DCFS social
workers supported the district court's determination that Vincent had failed to curb his
temper. Vincent argues that DCFS's failure to follow procedure created animosity between
him and the social workers, making it unproductive for him to communicate with DCFS.
Vincent contends that DCFS failed to address his concerns and ignored his repeated requests
to place the children with his family. Vincent's animosity to DCFS does not excuse his failure
to regularly communicate with his children. Nor was he consistent in his attempts to regain
custody of the children. While Vincent had begun to send letters to the children in the
summer of 2002, the district court properly determined that these efforts were too little, too
late, and that Vincent had not changed the circumstances and conditions that had led to
removal.
finding that the parents had failed to modify their conduct within a reasonable time to
justify the return of the children to either parent.
____________________

14
See NRS 432B.540(2) (providing that DCFS place the children as near to the parents as is consistent with
the best interests and special needs of the child).

15
Cristan and Vincent had previously lived in Ely, where the children had been born and raised. After DCFS
took custody of the children, Cristan moved to southern Nevada to obtain employment and enter a rehabilitation
program.
conduct within a reasonable time to justify the return of the children to either parent.
Risk of serious injury
[Headnote 12]
Based on its factual findings, the district court determined that Cristan's drug
problems and her failure to adjust her circumstances would cause the children to suffer
emotionally and would put them at risk of physical harm if they were returned to her care.
The district court noted Vincent's lack of communication with the children, the children's
integration into the foster home and that the children had been exposed to domestic violence
throughout their lives.
Additionally, DCFS cautioned that Vincent was incarcerated at the time of the
termination proceedings, was unemployed, lacked stable housing and lacked foster care
licensing for Cristan's child, D.R.H., who was neither Vincent's biological nor adopted child.
While Vincent insists that the children could have stayed with relatives in Utah, the relatives
had not obtained foster care licensing needed for D.R.H., placing him at risk of separation
from his brothers. Moreover, at the termination proceeding, there was conflicting testimony
as to whether Vincent's relatives were serious about caring for the children long-term. DCFS
was also awaiting a response from Utah on whether the state would accept interstate
placement. Accordingly, the district court properly determined that the uncertain situation
would expose the children to a risk of serious emotional or physical injury.
Token efforts
[Headnote 13]
Pursuant to NRS 128.109(1)(a), because the children were in foster care for over thirty
consecutive months, a presumption arose that Cristan and Vincent had demonstrated only
token efforts to reunify with their children. The district court also considered additional
evidence demonstrating that the parents had failed to make any attempt to overcome their
respective faults or to reunify with their children.
The district court found that Cristan's failure to adequately address her drug problem,
even after DCFS had provided extensive drug rehabilitation services, demonstrated that she
had made only a token effort to become a fit parent. Similarly, the district court concluded
that, despite his participation in numerous anger management courses, Vincent had also failed
to adequately address his anger problems. The district court also considered that, while
Vincent testified that he had urged his attorney to get the matter back to court, Vincent failed
to provide a reasonable explanation as to why he did not contact the children through the
foster parents or DCFS.
back to court, Vincent failed to provide a reasonable explanation as to why he did not contact
the children through the foster parents or DCFS. Similarly, Vincent's argument that DCFS's
animosity towards him prevented him from communicating with his children is unreasonable.
Vincent's failure to demonstrate his ability to provide continuous long-term care for the
children supported the district court's conclusion that he had made only token efforts to
eliminate risks to the children and to become a fit parent.
finding that Cristan and Vincent had made only token efforts to reunify with their children.
Best interest
[Headnote 14]
The continuing needs of a child for proper physical, mental and emotional growth
and development are the decisive considerations in proceedings for termination of parental
rights.
16
These considerations are also relevant to the children's best interest.
17

[Headnote 15]
As indicated above, the district court found that both Vincent and Cristan had
neglected their children, were unfit as parents, had failed to adjust their conditions or
circumstances to reunify with their children and had made only token efforts in doing so.
Moreover, the district court found that returning the children to either parent would put the
children at substantial risk of harm.
The district court also found by clear and convincing evidence that Cristan had not
completed her DCFS-sponsored case plan, as she had failed to overcome her drug problems.
18
While Vincent completed his case plan by his continued participation in anger
management and domestic violence courses, his problems in these areas continued even after
completion of the courses.
Next, the district court found that neither parent was able to meet the specific mental
and emotional needs of the children.
19
The district court noted that Vincent failed to
communicate with the children for almost two years. Vincent responds that he continually
demanded the return of his children, and that his lack of communication with DCFS was a
direct result of DCFS's failure to reunify the family.
____________________

16
NRS 128.005(2)(c).

17
See Matter of N.J., 116 Nev. at 800, 8 P.3d at 133.

18
See Cooley v. State, Dep't of Hum. Res., 113 Nev. 1191, 1197-98, 946 P.2d 155, 157 (1997) (considering
whether a parent completes a DCFS-sponsored case plan when determining the best interest of the child),
overruled on other grounds by Matter of N.J. 116 Nev. at 800 n.4, 8 P.3d at 132 n.4.

19
See Bush v. State, Dep't Hum. Res., 112 Nev. 1298, 1303-04, 929 P.2d 940, 944 (1996) (considering
whether the parent is able to meet the specific mental, emotional and developmental needs of the child when
determining the best interest of the child).
demanded the return of his children, and that his lack of communication with DCFS was a
direct result of DCFS's failure to reunify the family. The record, however, does not support
Vincent's assertion. The district court also found that Cristan had failed to provide for her
children's emotional needs, which was often a result of her drug addiction.
Additionally, the district court found that the case history was replete with incidents of
domestic violence between Cristan and Vincent, and that the children were present during
several violent events. Witnessing these incidents had also affected the children's emotional
well-being, as evidenced by the foster parent's description of their behavior. The district court
concluded that, because of the pattern of domestic violence, Cristan and Vincent had been
unable to provide a safe home for the children. Additionally, the children were sometimes
caught in the middle of the fight, as evidenced by Cristan accidentally striking D.R.H. during
one incident. Finally, NRS 432B.157 provides a rebuttable presumption that placing the child
with a parent who has engaged in domestic violence does not serve the child's best interest.
Here, both parents had engaged in domestic violence acts on more than one occasion. Neither
parent provided any evidence rebutting this presumption.
[Headnote 16]
The district court also found the testimony of clinical psychologist Dr. Ronald G.
Seaborn persuasive. Dr. Seaborn testified that the parents have demonstrated a history of
hedonistic, self-indulging, self-destructive behavior without care or consideration for the
serious detrimental effects this behavior was having on the children. Vincent argues that the
district court failed to consider that DCFS had not provided Dr. Seaborn with a complete
report. Indeed, Dr. Seaborn testified that his impression was that the father had been out of
the picture, that Dr. Seaborn himself was unaware of the programs in which the parents had
participated, that he had only received a negative history of the parents and that, had he been
provided with this information, his final opinion would have been different. He also testified
that he was not making a determination on whether termination of parental rights was in the
children's best interest. As Dr. Seaborn testified to the basis of his opinion and the limitations
of his opinions, the district court was free to weigh his testimony accordingly. DCFS's failure
to provide a complete report to Dr. Seaborn does not, under these circumstances, preclude the
admissibility of his testimony. Rather, it affects the weight the district court might have
accorded Dr. Seaborn's observations and opinions. We perceive no abuse of discretion by the
district court in favorably considering Dr. Seaborn's testimony. We further note that Vincent
and Cristan fully availed themselves of the opportunity to cross-examine Dr.
themselves of the opportunity to cross-examine Dr. Seaborn on the information upon which
he based his opinion.
Additionally, the district court found, by clear and convincing evidence, that the boys
were adapting well to the foster home and had made some positive adjustments while in
foster care. The foster mother had testified that the children rarely mentioned their parents.
20
At the time of the termination proceedings, these young children had lived with the foster
parents for over two years.
21

Finally, the district court noted that, because the children had remained in foster care
for over thirty consecutive months since their removal pursuant to NRS Chapter 432B, under
NRS 128.109(2), a presumption arose that terminating Vincent's and Cristan's parental rights
was in the children's best interest. Substantial evidence supports the district court's finding
that neither parent has rebutted this presumption. Accordingly, we conclude that substantial
evidence supports the district court's determination that termination of parental rights was in
the children's best interest.
22

CONCLUSION
The district court found by clear and convincing evidence that both parents were
negligent, unfit and had failed to adjust their faults to obtain custody of the children, that
return of the children to either parent would place the children at risk of harm and that the
parents had made only token efforts to regain custody. The district court also determined by
clear and convincing evidence that terminating Cristan's and Vincent's parental rights was in
the children's best interest. Moreover, because the children had remained in foster care for
over thirty months since their removal, a presumption arose that terminating Cristan's and
Vincent's parental rights was in the children's best interest. Having reviewed the record, we
conclude that substantial evidence supports the district court's decision. Accordingly, we
affirm the judgment of the district court.
____________________

20
See Matter of Parental Rights as to Gonzales, 113 Nev. 324, 335, 933 P.2d 198, 206 (1997) (noting that
the mother was no more than a friendly stranger to the girls), overruled on other grounds by Matter of N.J.,
116 Nev. at 800 n.4, 8 P.3d at 132 n.4.

21
See Bush, 112 Nev. at 1303, 929 P.2d at 944 (considering whether the child was placed into foster care at
a young age when determining the best interest of the child).

22
While Vincent argues that DCFS should have placed the children with his relatives, this argument has no
bearing on whether the district court properly terminated his parental rights, and therefore, we need not consider
it.
____________
120 Nev. 436, 436 (2004) Flynn v. Flynn
TERRI FLYNN, Appellant, v. TIM FLYNN, Respondent.
No. 41543
July 12, 2004 92 P.3d 1224
Appeal from a post-decree order denying appellant permission to relocate with the
parties' minor child to California. Eighth Judicial District Court, Family Court Division,
Clark County; T. Arthur Ritchie, Judge.
Divorced mother, who had primary physical custody of child, filed motion for
permission to relocate to California with child to attend college and obtain an associate's
degree in theology. Father filed motion for primary physical custody of child. The district
court denied both motions. Mother appealed. The supreme court held that: (1) Schwartz
factors applied to mother's proposed relocation, regardless of whether the relocation was for a
fixed period of time; (2) mother's demonstration of reasonable alternative visitation for father
did not end the Schwartz inquiry into whether proposed move was in child's best interest; (3)
substantial evidence supported determination that the proposed move was not in child's best
interest; and (4) district court's denial of mother's motion to relocate did not interfere with
mother's First Amendment right to freely exercise her religious beliefs.
Affirmed.
Mark A. Jenkin, Henderson, for Appellant.
Ecker & Kainen, Chtd., and Edward L. Kainen, Las Vegas; Lemons Grundy &
Eisenberg and Robert L. Eisenberg, Reno, for Respondent.
1. Child Custody.
In reviewing district court's denial of custodial parent's motion to relocate with child
outside Nevada, the supreme court would presume that the district court properly
exercised its discretion in determining the best interests of the child. NRS 125C.200.
2. Child Custody; Child Support.
Matters of custody and support of minor children of parties to a divorce action rest in
the sound discretion of the trial court, the exercise of which will not be disturbed on
appeal unless clearly abused.
3. Child Custody.
In determining whether district court ruled in minor child's best interest, when court
denied custodial mother's post-divorce request to relocate with child to California, the
supreme court would review the district court's findings for an abuse of discretion.
Additionally, the supreme court would uphold the district court's determination if it was
supported by substantial evidence. NRS 125C.200.
The supreme court conducts a de novo review of the district court's conclusions of
law.
120 Nev. 436, 437 (2004) Flynn v. Flynn
5. Child Custody.
Schwartz factors, governing analysis of custodial parent's request to relocate with
child, applied to custodial mother's post-divorce request to relocate with child to
California for two years so that mother could attend college, even though mother
claimed she was not changing her domicile because she intended to return to Nevada.
Schwartz factors applied to all relocations outside Nevada, regardless of whether the
relocation was for a fixed period of time or otherwise. NRS 125C.200.
6. Child Custody.
In considering a custodial parent's request for permission to relocate with child
outside Nevada, the district court should first determine whether the custodial parent
demonstrates good faith reasons for relocating. NRS 125C.200.
7. Child Custody.
Once a custodial parent seeking to relocate with child outside Nevada makes
threshold showing of good faith reasons for relocating, the district court should then
apply the factors outlined in Schwartz to determine whether the custodial parent has
demonstrated that both the parent and the child will realize an actual advantage by
moving to the new location. NRS 125C.200.
8. Child Custody.
Once a custodial parent seeking to relocate with child outside Nevada has met burden
of showing that an actual advantage would be realized by both the parent and the child
in moving to the new location, the district court must then consider (1) whether the
move will likely improve the quality of life for the child and the parent, (2) whether the
custodial parent's motives are to frustrate visitation with the noncustodial parent, (3)
whether the custodial parent will comply with visitation orders, (4) whether the
noncustodial parent's opposition is honorable, and (5) whether there will be an adequate
alternative visitation schedule available to preserve the parental relationship. NRS
125C.200.
9. Child Custody.
Divorced mother's mere demonstration of reasonable alternative visitation for
noncustodial father, in the event mother relocated with child to California, did not end
the district court's Schwartz analysis into whether the proposed move was in child's best
interest. NRS 125C.200.
10. Child Custody.
If custodial parent shows a good faith reason for relocating with children outside
Nevada and that reasonable alternative visitation is possible, the burden shifts to the
noncustodial parent to show that the move is not in the best interests of the children;
such a showing must consist of concrete, material reasons why the move is inimical to
the children's best interests. NRS 125C.200.
11. Child Custody.
Substantial evidence supported district court's determination that custodial mother's
proposed post-divorce relocation with child to California for two-year period, so that
mother could attend college and obtain an associate's degree in theology, was not in
child's best interest. Although adequate alternative visitation was available to father,
mother was not seeking to obtain education to increase her income, mother could obtain
same degree from the same college without relocating through either Internet classes,
audio and video classes, or live classes through college's extension campus, and child's
lifestyle would not be enhanced by the move. NRS 125C.200.
120 Nev. 436, 438 (2004) Flynn v. Flynn
12. Child Custody; Constitutional Law.
District court did not interfere with custodial mother's First Amendment right to freely
exercise her religious beliefs when district court denied mother's post-divorce request to
relocate to California with child in order to attend college and obtain a theology degree.
Nothing in record indicated that court denied mother's request based on her religious
beliefs, and overwhelming evidence indicated that court's decision was instead based on
objective factors unrelated to mother's desire to obtain a theology degree. U.S. Const.
amends. 1, 14; NRS 125C.200.
OPINION
Per Curiam:
In June 2003, the district court denied appellant Terri Flynn's motion to relocate with
the parties' eleven-year-old child to California and also denied the change of custody motion
brought by respondent Tim Flynn. Although Tim and Terri have joint legal custody of their
minor child, Terri has primary physical custody. She brought the relocation motion so that
she could move to California for a two-year period to obtain an associate's degree in theology.
Terri had no other purpose for the move.
Finding that the move would not serve the minor child's best interest, the district court
denied Terri's motion to relocate. Terri appeals the district court's order, arguing that the
district court erred by applying the factors outlined in Schwartz v. Schwartz
1
because Terri
was not changing her domicile. Terri also argues that even if the Schwartz factors apply, the
district court abused its discretion in denying her relocation motion. We disagree and affirm
the judgment of the district court.
FACTS
Tim and Terri obtained a divorce in July 1997. They have an eleven-year-old son. As
part of the divorce decree, the district court awarded both parents joint legal custody of the
minor child and awarded Terri primary physical custody. A provision in the divorce decree
stated that the child would be raised in the Christian faith. Tim and Terri considered their
relationship to be good and treated each other with respect. Both parents loved their child and
wanted the best for him.
In August 2002, Terri moved the district court for permission to relocate to California
with her son to attend college. Tim opposed Terri's motion to relocate and also moved the
district court to give him primary physical custody of the minor child.
____________________

1
107 Nev. 378, 812 P.2d 1268 (1991).
120 Nev. 436, 439 (2004) Flynn v. Flynn
him primary physical custody of the minor child. The district court held an evidentiary
hearing over three days in May 2003.
Terri felt that she was called by God to minister to women in her local church and
desired to further her education by attaining an associate's degree in theology. Terri was
formally accepted into Calvary Chapel Bible College in Murrieta, California. Although Terri
owned several businesses, her passion was her religion and she stated that she wanted to do
something more with her life. Terri alleged that she could not obtain the same education in
Clark County, but she would return to live in Nevada after she completed her schooling. Terri
testified that her primary motivation for moving was not related to the minor child, but for her
personal growth.
Tim stated that Terri's motive for relocation was purely self-centered and would
cause Tim to lose his close relationship with his son. Tim provided evidence that Calvary
Chapel Bible College offered correspondence courses through audiotapes or videotapes that
are identical to the courses offered on its campus. Additionally, Calvary Chapel Bible College
had an extension campus in Spring Valley, Nevada, that Terri was attending at the time of the
hearing.
Before the hearing, the district court ordered Dr. Stephanie Holland, a clinical
psychologist, to provide a psychological evaluation of both parties. Dr. Holland's report noted
that Tim and Terri have worked well together to foster a loving, interactive, unconditionally
supportive relationship with [their son] and found that both parents were psychologically
sound individuals. Dr. Holland opined that it was not in the child's best interest to move to
California for two years and then move back to Las Vegas. Dr. Holland listed several reasons
why it would not be in the minor child's best interest to move to California at that time.
After the hearing, the district court denied both Terri's relocation motion and Tim's
motion to change custody. The district court found that Terri could obtain the same degree
from the same college without leaving Nevada, without disrupting the minor child's
schooling, and without changing the current custodial arrangement. The court also noted that
Terri had already earned approximately ten credit hours toward her degree. The district court
analyzed each of the Schwartz factors and held that it was not in the minor child's best interest
to relocate to California. Specifically, the district court concluded that Terri's rights [were]
only minimally affected by requiring her to complete the [Calvary Chapel Bible College]
Associates [sic] in Theology degree here in Nevada. The district court acknowledged that
Terri had a good faith reason for the move, but the move would harm her son and was,
therefore, not sensible. Terri timely appealed the district court's order denying her
relocation motion.
120 Nev. 436, 440 (2004) Flynn v. Flynn
DISCUSSION
[Headnotes 1-4]
We presume that the district court properly exercised its discretion in determining the
best interests of the child.
2
Matters of custody and support of minor children of parties to a
divorce action rest in the sound discretion of the trial court, the exercise of which will not be
disturbed on appeal unless clearly abused.
3
Therefore, in reviewing Terri's contentions
regarding whether the district court ruled in the minor child's best interest, we review the
district court's findings for an abuse of discretion. Additionally, we will uphold the district
court's determination if it is supported by substantial evidence.
4
Regarding whether the
district court erred by applying the Schwartz factors, [t]his court conducts a de novo review
of the district court's conclusions of law.
5

Abuse of discretion
Terri argues on appeal that the district court erred in denying her relocation motion
because (1) Terri never intended to change her domicile and (2) Tim is assured weekly
contact with their son. Terri also argues that the Schwartz factors do not apply to her
relocation because she only wanted to move to California temporarily. We will address each
of Terri's arguments in turn.
6

Change of domicile and applicability of Schwartz factors
[Headnote 5]
Terri argues that the Schwartz factors are inapplicable because she intended to return
to Nevada after she obtained her two-year degree and therefore was not changing her
domicile. We disagree.
[Headnotes 6-8]
When the primary custodial parent desires to move from Nevada to another state
taking the child with him, he must . . . obtain the written consent of the noncustodial parent.
7
When the noncustodial parent declines to give consent, the custodial parent must petition
the district court for permission to move with the child.
8
In considering such a request, the
district court should first determine whether the custodial parent wishing to leave Nevada
demonstrates good faith reasons for relocating.
____________________

2
Trent v. Trent, 111 Nev. 309, 314, 890 P.2d 1309, 1312 (1995); Culbertson v. Culbertson, 91 Nev. 230,
233, 533 P.2d 768, 770 (1975).

3
Culbertson, 91 Nev. at 233, 533 P.2d at 770.

4
Gepford v. Gepford, 116 Nev. 1033, 1036, 13 P.3d 47, 49 (2000).

5
Blaich v. Blaich, 114 Nev. 1446, 1447-48, 971 P.2d 822, 823 (1998).

6
Although Terri argues that the district court erred, the appropriate standard of review is abuse of discretion.
See Jones v. Jones, 110 Nev. 1253, 885 P.2d 563 (1994).

7
NRS 125C.200.

8
Id.
120 Nev. 436, 441 (2004) Flynn v. Flynn
considering such a request, the district court should first determine whether the custodial
parent wishing to leave Nevada demonstrates good faith reasons for relocating.
9
Once the
custodial parent makes the threshold good faith showing, the district court should then apply
the factors outlined in Schwartz to determine whether the custodial parent has demonstrated
that an actual advantage will be realized by both the parent and the child by moving to the
new location.
10
Once the custodial parent has met this burden, the district court must then
consider (1) whether the move will likely improve the quality of life for the child and the
parent, (2) whether the custodial parent's motives are to frustrate visitation with the
noncustodial parent, (3) whether the custodial parent will comply with visitation orders, (4)
whether the noncustodial parent's opposition is honorable, and (5) whether there will be an
adequate alternative visitation schedule available to preserve the parental relationship.
11

Nevada's anti-removal statute, NRS 125C.200, applies to a custodial parent who
intends to move his residence to a place outside of this state and to take the child with him.
NRS 125C.200 does not use the term domicile; it uses the term residence. Schwartz does not
use the term domicile; it uses only the term residence. Terri argues that residence is domicile
and because she desires to move to California for only a two-year period, her domicile will
remain in Nevada. She further argues that because Nevada is her domicile, if she resides in
California for only two years, NRS 125C.200 does not apply. We disagree.
Terri does not advance any authority supporting her contention that residence is
domicile under NRS 125C.200, and we have discovered no such authority.
12
Although NRS
125C.200 does not define residence, we have stated that all relocation motions must be
analyzed pursuant to Schwartz.
13
The facts of the instant case require application of the
Schwartz factors because Terri wants to move to another state. This is not a situation where a
custodial parent is asking for a temporary change in visitation so that the parent may live
outside of Nevada for a short period of time due to an emergency or a once-in-a-lifetime
opportunity that would benefit the parent and the child. Two years is a substantial period in a
child's life and the expectation that the parent will eventually return to Nevada is not relevant
to the effect such a move will have upon the child.
____________________

9
Hayes v. Gallacher, 115 Nev. 1, 5, 972 P.2d 1138, 1140 (1999).

10
107 Nev. 378, 382, 812 P.2d 1268, 1271 (1991).

11
Id. at 383, 812 P.2d at 1271.

12
We note that Terri also cited to Schwartz and its progeny as relevant law in her original relocation motion.

13
Blaich, 114 Nev. at 1451, 971 P.2d at 825.
120 Nev. 436, 442 (2004) Flynn v. Flynn
the child. Because Terri wants to relocate outside Nevada, we conclude that she must comply
with NRS 125C.200 and the Schwartz factors as mentioned above.
[Headnote 9]
Terri also argues that if weekly contact is offered and possible, the Schwartz factors
should not be applied. We disagree.
This court stated in Schwartz:
[I]n determining the issue of removal, the court must first find whether the custodial
parent has demonstrated that an actual advantage will be realized by both the children
and the custodial parent in moving to a location so far removed from the current
residence that weekly visitation by the noncustodial parent is virtually precluded.
14

Terri focuses on the weekly visitation requirement as the prerequisite to trigger the
application of Schwartz. However, this court has repeatedly stated that all motions to
relocate must be analyzed pursuant to Schwartz.
15
Terri does not advance any law
indicating that weekly contact is the threshold requirement before the application of
Schwartz.
[Headnote 10]
Under current law, if Terri shows a good faith reason for relocating and that
reasonable alternative visitation is possible, [t]he burden shifts to the noncustodial parent
to show that the move is not in the best interests of the children. Such a showing must consist
of concrete, material reasons why the move is inimical to the children's best interests.'
16
We therefore reject Terri's suggestion that the mere demonstration of reasonable alternative
visitation ends the inquiry under Schwartz.
Schwartz analysis
[Headnote 11]
Terri argues that she met her threshold burden of demonstrating a good faith reason
for her request to move to California and that reasonable alternative visitation was available
for Tim. She then contends that Tim did not meet his burden of showing why the move was
not in the best interest of their child and that the district court abused its discretion in denying
the motion. We disagree. The district court analyzed the Schwartz factors
____________________

14
107 Nev. at 382, 812 P.2d at 1271.

15
Blaich, 114 Nev. at 1451, 971 P.2d at 825; see also McGuinness v. McGuinness, 114 Nev. 1431, 1435,
970 P.2d 1074, 1077 (1998).

16
Blaich, 114 Nev. at 1452, 971 P.2d at 826 (quoting Jones v. Jones, 110 Nev. 1253, 1266, 885 P.2d 563,
572 (1994)).
120 Nev. 436, 443 (2004) Flynn v. Flynn
district court analyzed the Schwartz factors
17
and balanced both parents' interests in reaching
its decision.
18

This court has stated that the polestar for judicial decision [in custody matters] is the
best interests of the child.
19
The district court determined that moving to California would
occur while [the minor child] enter[ed] middle school, enter[ed] puberty, and while he
continue[d] to develop as a young man and that the move [would] harm [the minor child],
and [was] not sensible. Substantial evidence supports this conclusion.
First, Terri conceded that her only purpose for moving to California would be to
obtain her associate's degree in theology. Terri stated that she was financially comfortable
and was not seeking to obtain her education to increase her income. Terri admitted that she
could obtain the same degree from the same college while living in Las Vegas through either
Internet classes, audio and video classes or live classes through the college's extension
campus.
Second, the child's and Terri's quality of life would remain essentially the same. The
district court found, based upon evidence of the parties' financial status, information provided
by an educational specialist and a psychological evaluation of the family, that living and
educational opportunities would essentially remain unchanged and the child's lifestyle would
not be enhanced by the move.
Terri argues that she should have been permitted to move to California because Tim
could have weekly contact with their child. Terri states that because Tim has time and money,
he can afford to take the sixty-five minute commute by jet to visit the child. The district court
concluded that Tim could maintain his relationship with his son if it permitted Terri to move.
However, even though adequate alternative visitation was available, the district court stated
that it was not in the child's best interest to move. The district court has the discretion to
determine from the evidence presented whether it is in the child's best interest to relocate.
20
Because there was substantial evidence to show that the move was not in the child's best
interest, the district court properly denied Terri's motion.
____________________

17
Three Schwartz factors, (1) whether the custodial parent will comply with visitation orders, (2) whether
the custodial parent's motives are to frustrate visitation with the noncustodial parent, and (3) whether the
noncustodial parent's opposition is honorable, were not disputed by either party. Therefore, these issues are not
properly before this court and we will not discuss them.

18
Schwartz, 107 Nev. at 382, 812 P.2d at 1270.

19
Id. at 382, 812 P.2d at 1270-71.

20
Culbertson, 91 Nev. at 233, 533 P.2d at 770.
120 Nev. 436, 444 (2004) Flynn v. Flynn
First Amendment
[Headnote 12]
Terri argues that the district court treated her motion differently because she was
seeking relocation based on her religious beliefs. We disagree.
Under the First and Fourteenth Amendments of the United States Constitution, federal
and state governments are prohibited from making a law prohibiting the free exercise of
religion. Individuals are free to exercise their religious beliefs without government
interference.
21
In the instant case, however, Terri does not specify how the district court
violated her constitutional rights nor does she cite to any portion of the record, a statute or
case law. During the closing argument at the evidentiary hearing, Tim's attorney stated that
this isn't a [sic] religious from our point of view . . . . It's a question of what is best for [the
minor child]. Christianity is not on trial. There is nothing in the record that would evidence
that the district court denied Terri's motion based on her religious beliefs. On the contrary, the
overwhelming evidence supports that the district court's decision was based on objective
factors unrelated to Terri's desire to obtain a theology degree. Therefore, we conclude that
Terri's First Amendment argument is without merit.
22

CONCLUSION
We conclude that the district court did not err in applying the Schwartz factors to the
instant case and did not abuse its discretion in denying Terri's relocation motion. The
Schwartz factors apply to all relocations outside Nevada, regardless of whether the relocation
is for a fixed period of time or otherwise. The district court conducted a three-day evidentiary
hearing, analyzed the facts thoroughly, correctly applied the Schwartz factors, and determined
that relocation would not be in the child's best interest. Therefore, we affirm the district
court's order.
____________________

21
Mt. Zion Bapt. Ch. v. Second Bapt. Ch., 83 Nev. 367, 369, 432 P.2d 328, 329 (1967).

22
We have considered Terri's other arguments and conclude they are without merit.
____________
120 Nev. 445, 445 (2004) State, Div. Child & Fam. Servs. v. Dist. Ct.
THE DIVISION OF CHILD AND FAMILY SERVICES, DEPARTMENT OF HUMAN
RESOURCES, 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 GERALD W. HARDCASTLE, District Judge,
Family Court Division, Respondents, and J.M.R., a Minor, Real Party in Interest.
No. 42211
July 12, 2004 92 P.3d 1239
Original petition for a writ of mandamus or prohibition challenging a district court's
oral contempt order and sanctions.
After permanency planning hearing in which the district court orally ordered the
Division of Child and Family Services (DCFS) to remove child from psychiatric treatment
facility, the district court orally found DCFS to be in contempt and imposed sanctions. DCFS
petitioned for a writ of mandamus or prohibition. The supreme court held that: (1) the district
court had jurisdiction and the discretion to order the DCFS to release child from psychiatric
treatment facility, and (2) the district court's oral order directing DCFS to remove child from
psychiatric treatment facility was ineffective.
Petition granted.
Brian Sandoval, Attorney General, and Brigid J. Duffy, Deputy Attorney General,
Carson City, for Petitioner.
Burdman Law Group and Jeffrey P. Kerrane, Las Vegas, for Real Party in Interest.
1. Mandamus.
The supreme court has absolute discretion whether to consider a mandamus petition.
2. Mandamus.
The writ of mandamus generally serves to compel the performance of an act that the
law requires as a duty resulting from an office, trust or station, or to control an arbitrary
or capricious exercise of discretion.
3. Mandamus.
Even if effective alternative remedies exist, the supreme court may entertain a petition
for mandamus under urgent circumstances or when an important issue of law needs
clarification and sound judicial economy and administration favor the granting of the
petition.
4. Contempt.
The supreme court does not have jurisdiction to consider an appeal from an order
holding a party or a nonparty in contempt because no rule or statute provides for such
an appeal.
5. Contempt.
The proper way to challenge a contempt order is through a writ petition.
6. Infants.
The district court had jurisdiction and the discretion to order the Division of Child and
Family Services (DCFS) to release dependent child from psychiatric treatment facility.
The district court had statutory authority to determine the proper treatment for a
dependent child and also the power to assess the appropriateness of a child's placement.
NRS 432B.560(1)(a), 432B.580.
7. Infants.
The district court's oral order directing the Division of Child and Family Services
(DCFS) to remove dependent child from psychiatric treatment facility was ineffective.
Nonadministrative orders that deal with the merits of the underlying controversy are
required to be written, signed, and filed before they are effective. NRCP 58(c).
8. Judgment.
Before the court reduces its decision to writing, signs it, and files it with the clerk, the
nature of the judicial decision is impermanent.
9. Judgment.
A court's oral pronouncement from the bench, the clerk's minute order, and even an
unfiled written order are ineffective for any purpose.
10. Trial.
District courts have wide discretion to control the conduct of proceedings pending
before them.
11. Contempt.
An order on which a judgment of contempt is based must be clear and unambiguous,
and must spell out the details of compliance in clear, specific and unambiguous terms
so that the person will readily know exactly what duties or obligations are imposed on
him.
12. Contempt.
A court order that does not specify the compliance details in unambiguous terms
cannot form the basis for a subsequent contempt order.
OPINION
Per Curiam:
This case involves the temporary placement of a fourteen-year-old foster child in a
psychiatric treatment facility. The district court orally ordered petitioner, the Division of
Child and Family Services (DCFS), to release the child from the facility. Because the DCFS
did not immediately comply with the order, the district court orally held the DCFS in
contempt and imposed sanctions. The two issues the DCFS raises in this writ petition are
whether the district court had jurisdiction to order the child's release and whether the district
court's release order was unclear and ambiguous. We ordered the parties to submit
supplemental briefing on the issue of whether an order of the court that has not been
reduced to writing and filed with the court clerk is effective and enforceable.
order of the court that has not been reduced to writing and filed with the court clerk is
effective and enforceable.
We conclude that although the district court had jurisdiction to order the child's
release, the district court's oral orders had to be written, signed, and filed before they became
effective. Dispositional orders that are unrelated to administrative procedure and case
management, and that have not been signed and filed, are ineffective and cannot serve as a
basis for contempt. Consequently, the district court had no authority to hold the DCFS in
contempt for violating its release order, and its contempt order was ineffective.
1
Because we
conclude that the district court's oral orders were ineffective, we need not address the DCFS'
contention that the district court's contempt order was unclear and ambiguous.
FACTS
J.M.R., the real party in interest, was born in California to an unmarried couple with
substance abuse problems. The child has had no contact with his natural parents since he was
eighteen months old. He came into DCFS custody when he was three years old; and since
then, he has been to three foster homes and four group homes. On three occasions, the State
committed J.M.R. to psychiatric facilities for self-inflicted wounds and violence against
others. J.M.R. has a history of being physically and sexually abused and suffers from various
mental disorders.
In February 2000, the DCFS placed J.M.R. in a foster home and continued to monitor
his development. The DCFS also enrolled J.M.R. in the Reaching Our Community Kids
(ROCK) program, an after-school rehabilitation service designed to develop adequate social
skills in children. On October 1, 2003, in preparation for a regularly scheduled placement and
permanency review, Joyce Mahoney, a DCFS social worker, wrote a report assessing J.M.R.'s
progress. Although the report acknowledged J.M.R.'s continuing behavioral problems, it also
noted that J.M.R. should remain in his current foster placement.
The district court had scheduled J.M.R.'s permanency review for October 8, 2003. The
weekend after Mahoney wrote the progress report, but before the October 8, 2003, hearing,
J.M.R. stomped at another child's leg at the ROCK program and exhibited violent behavior
toward his foster mother. Mahoney called Dr. Ann Childress, the pediatric physician who had
been treating J.M.R. since February 2000, and requested an emergency evaluation. Dr.
Childress assessed J.M.R. and recommended that he enter the Spring Mountain psychiatric
facility until his behavior stabilized.
____________________

1
Nothing in this opinion precludes the court from summarily punishing a party who commits contempt in the
court's immediate presence.
At the October 8, 2003, permanency review, the DCFS informed the district court
about J.M.R.'s Spring Mountain treatment. Although the DCFS told the court that Dr.
Childress made the decision to commit J.M.R., Dr. Childress did not appear at the hearing.
The DCFS also failed to present any report regarding Dr. Childress' assessment because Dr.
Childress did not prepare such a report until October 10, 2003.
The district court expressed concern that the DCFS acted hastily and opined that
although J.M.R.'s behavior was inappropriate, it did not warrant commitment to a psychiatric
facility. In open court with the parties present, the court orally ordered the DCFS to remove
J.M.R. from Spring Mountain, to assign a social worker to J.M.R.'s case, and to prepare a
plan for J.M.R.'s further treatment. The district judge declined to sign a written order,
however, so no formal order was entered by the court clerk. When the DCFS inquired
whether it should release J.M.R. against medical advice, the district court answered
affirmatively. Mahoney stated that the DCFS would release J.M.R. later that same day.
Despite the district court's oral order and Mahoney's representations, the DCFS
administration did not release J.M.R. Believing that the release against medical advice would
be detrimental to the child, the DCFS sought Dr. Childress' report for further review. The
DCFS did not ask the district court to stay the October 8, 2003, order. On October 9, 2003,
upon learning of the delay, J.M.R.'s attorney moved for an order to show cause why the
district court should not impose sanctions for the DCFS' failure to comply with the oral order
to release J.M.R.
On October 13, 2003, the district court held a hearing on the matter. At the hearing,
the DCFS explained that it understood the district court's oral order to mean that it should
release J.M.R. as soon as possible, but not immediately because the court never used the
word immediately at the October 8, 2003, hearing. Consequently, the DCFS was reviewing
the medical recommendations to determine when J.M.R.'s condition would be sufficiently
stable for release. The district court disagreed and stated that it had ordered J.M.R.'s
immediate release.
Although the court had read Dr. Childress' report after the October 8, 2003, hearing,
the court refused to consider the report. The judge stated that the DCFS should have
presented the evidence at the October 8 hearing and that he based his decision on the
representations at the time. The court warned the DCFS of possible sanctions and scheduled
another hearing for October 20, 2003. The court ordered briefing on the issues of whether
there was a valid court order to release J.M.R. and whether the DCFS had proper justification
for not following that order.
On October 20, 2003, the court learned that the DCFS still had not released J.M.R.
from the facility. The DCFS attempted to dispute the order as ambiguous, but the district
court disagreed. Displeased that the DCFS failed to show a justification for the delay other
than the medical recommendations,
2
the court orally held the DCFS in contempt. The district
judge fined the DCFS $500 per day for every day J.M.R. remained at Spring Mountain,
retroactive from the date of the order to show cause. The DCFS requested a stay of the order
pending a writ petition to this court, but the district court denied the request and scheduled a
compliance hearing for October 24, 2003. On October 22, 2003, we temporarily stayed the
contempt order and the October 24, 2003, hearing, pending review of the writ petition's
merits.
DISCUSSION
Writ relief
[Headnotes 1-3]
A writ of mandamus is an extraordinary remedy that may issue if the petitioner has no
plain, speedy and adequate remedy at law.
3
We have absolute discretion whether to consider
a mandamus petition.
4
The writ generally serves to compel the performance of an act that
the law requires as a duty resulting from an office, trust or station, or to control an arbitrary or
5
Even if effective alternative remedies exist, we may
entertain a petition for mandamus under urgent circumstances or when an important issue of
law needs clarification and sound judicial economy and administration favor the granting of
the petition.
6
A writ of prohibition is the counterpart of a writ of mandamus and is available
to arrest the proceedings of any tribunal . . . when such proceedings are without or in excess
of the jurisdiction of such tribunal.
7

[Headnotes 4, 5]
We do not have jurisdiction to consider an appeal from an order holding a party or a
nonparty in contempt because no rule or statute provides for such an appeal.
8
The proper
way to challenge a contempt order is through a writ petition.
____________________

2
The October 13, 2003, hearing revealed that another foster parent was willing to accept J.M.R.

3
NRS 34.170; see also NRS 34.330 (writ of prohibition).

4
State of Nevada v. Dist. Ct. (Ducharm), 118 Nev. 609, 614, 55 P.3d 420, 423 (2002).

5
Id.

6
Id.

7
NRS 34.320.

8
Pengilly v. Rancho Santa Fe Homeowners, 116 Nev. 646, 649, 5 P.3d 569, 571 (2000).
a contempt order is through a writ petition.
9
Consequently, this petition appropriately
challenges the district court's contempt order.
Jurisdiction
[Headnote 6]
Because a finding of jurisdiction is a prerequisite to issuing any valid orders, we will
first determine whether the district court had jurisdiction to order J.M.R.'s release. The DCFS
argues that the district court had no jurisdiction to issue its release order under NRS Chapter
432B. The DCFS further contends that O'Bryan v. District Court
10
precludes the district
court's order because there is no evidence that the DCFS acted arbitrarily or capriciously. We
conclude that the district court had jurisdiction and discretion to issue its release order.
Pursuant to NRS 432B.560(1)(a), the court may order [t]he child . . . to undergo such
medical, psychiatric, psychological, or other care or treatment as the court considers to be in
the best interests of the child. The court must review a child's placement semiannually
11
and examine [t]he continuing necessity for and appropriateness of the placement.
12

Allegedly, J.M.R. was in the Spring Mountain facility for treatment purposes, but the
court considered this course of treatment inappropriate. The plain language of NRS
432B.560(1)(a) dictates that the district court has the power to decide on appropriate
treatment for the child. The power to determine proper treatment includes the power to
discontinue the child's present treatment and order a new course of treatment. NRS 432B.580
also provides a jurisdictional basis for the district court's decision because the statute requires
the court to assess the appropriateness of the child's placement. While the DCFS did not
intend to commit J.M.R. to Spring Mountain indefinitely, J.M.R.'s stay at the facility
nevertheless constitutes a placement. A suggestion that the district court could merely
evaluate the placement, but not exercise discretion to change it, would render the court's
placement review meaningless. Therefore, both NRS 432B.560(1)(a) and NRS 432B.580
provided the district court with jurisdiction to order J.M.R.'s release.
The DCFS focuses its lack of jurisdiction argument on O'Bryan v. District Court,
13
which we decided in 1979. Because the Nevada Legislature enacted NRS 432B.560 and NRS
432B.580 in 19S5,
____________________

9
Id.

10
95 Nev. 386, 594 P.2d 739 (1979).

11
NRS 432B.580(1).

12
NRS 432B.580(6)(a).

13
95 Nev. 386, 594 P.2d 739.
in 1985,
14
the O'Bryan holding does not reflect the subsequent legislative enactments. As we
stated above, the plain language of both statutes provides a jurisdictional basis for the district
court's decision. Sound policy reasons also dictate that the juvenile court should be able to
give orders concerning a child's placement or treatment and demand immediate compliance to
minimize the impact on the child.
Validity of oral orders
[Headnote 7]
The DCFS also argues that the district court's oral orders were ineffective. We agree.
[Headnotes 8, 9]
While other courts have held that a mandate of the court need not be a formal written
order to be effective,
15
some Nevada precedent suggests that an order is not effective until
the district court enters it.
16
Entry involves the filing of a signed written order with the
court clerk.
17
Before the court reduces its decision to writing, signs it, and files it with the
clerk, the nature of the judicial decision is impermanent.
18
The court remains free to
reconsider the decision and issue a different written judgment.
19
Consequently, a [c]ourt's
oral pronouncement from the bench, the clerk's minute order, and even an unfiled written
order are ineffective for any purpose.
20

Rust v. Clark County School District
21
reflects this reasoning. In Rust, a school board
dismissed a principal for insubordination. Following a hearing, the district court announced
its intention to affirm the school board's determination and stated that it would not file a
written decision. The principal filed a notice of appeal. Subsequently, the district court
entered a written judgment affirming the school board's decision. Although the board served
the principal with a written notice of the judgment's entry, the principal did not file a new
notice of appeal.
____________________

14
1985 Nev. Stat., ch. 455, 55, at 1383; id. 57, at 1384.

15
17 Am. Jur. 2d Contempt 131, at 488 (2004).

16
Tener v. Babcock, 97 Nev. 369, 370, 632 P.2d 1140, 1140 (1981). But cf. Dillon v. Dillon, 67 Nev. 428,
432, 220 P.2d 213, 215 (1950) ([A] final judgment is rendered when the judgment is orally pronounced by the
trial court.).

17
NRAP 4(a)(3); Nevada Civil Procedure Manual 11.18, at 11-9 (Continuing Legal Educ. Comm., State
Bar of Nevada ed., 5th ed. 2003).

18
Canterino v. The Mirage Casino-Hotel, 118 Nev. 191, 194, 42 P.3d 808, 810 (2002).

19
Rust v. Clark Cty. School District, 103 Nev. 686, 688, 747 P.2d 1380, 1382 (1987).

20
Id. at 689, 747 P.2d at 1382 (emphasis added).

21
103 Nev. 686, 747 P.2d 1380.
principal with a written notice of the judgment's entry, the principal did not file a new notice
of appeal. We concluded that the principal's notice of appeal was premature and thus we
lacked jurisdiction to consider the case.
22
We reasoned that [p]rior to the entry of a final
judgment the district court remains free to reconsider and issue a written judgment different
from its oral pronouncement.
23
Consequently, we stated that [a]n oral pronouncement of
judgment is not valid for any purpose; therefore, only a written judgment has any effect, and
only a written judgment may be appealed.
24

Rust is analogous to the case at bar. As in Rust, the district court announced its
decision in J.M.R.'s favor, but stated that it would not enter a written order. Similar to Rust,
the district court's oral pronouncement was not merely administrative or intended to restore
courtroom decorum; it pertained to the substantive outcome of the dispute.
Although J.M.R. maintains that Rust does not apply to this case because the district
court's oral order to release J.M.R. was an injunction, not a judgment, we find this argument
unpersuasive for two reasons. First, NRCP 65(f) states that district courts may make
prohibitive or mandatory orders in child custody suits with or without notice or bond, as
may be just. However, J.M.R.'s permanency review did not constitute a child custody suit
because there was no trial and no adverse parties sought to establish custody of J.M.R.
Consequently, the district court's release order was not an injunction.
Second, the Rust holding is broader than J.M.R. suggests. Although in Rust we
focused on the ineffectiveness of the district court's oral pronouncements of judgment, we
also expressly stated that [t]he district court's oral pronouncement from the bench, the clerk's
minute order, and even an unfiled written order are ineffective for any purpose.
25
This
language indicates that we did not intend to limit the Rust holding to judgment
pronouncements.
26

The Nevada Rules of Civil Procedure and local rules of practice further support our
rationale that taking action on appeal before the district court formally enters an order is
inappropriate because the court might alter its decision.
____________________

22
Id. at 688, 747 P.2d at 1381.

23
Id. at 688, 747 P.2d at 1382.

24

25
Id.

26
See also Paradise Palms v. Paradise Homes, 93 Nev. 488, 568 P.2d 577 (1977) (a notice of appeal from
an order denying a motion for change of venue was ineffective before the district court's entry of judgment);
Cunningham v. District Court, 102 Nev. 551, 556, 729 P.2d 1328, 1331 (1986) (a district court order mandating
the release of videotapes that lacked a file stamp, case number, docket number or department number, was
ineffective for any purpose because it had not been properly entered).
district court formally enters an order is inappropriate because the court might alter its
decision. NRCP 58(c) provides that [t]he filing with the clerk of a judgment, signed by the
judge, or by the clerk, as the case may be, constitutes the entry of such judgment, and no
judgment shall be effective for any purpose until the entry of the same, as hereinbefore
provided. Eighth Judicial District Court Rule 2.24(b) does not permit a party to file a
reconsideration motion until after service of written notice of the order.
27

[Headnote 10]
J.M.R. advances Ham v. District Court
28
and Kellar v. District Court
29
for the
propositions that we have previously upheld sanctions based upon oral orders and have
previously acted upon oral orders. While this is true, Ham and Kellar do not support J.M.R's
position. In Ham, we granted a writ petition to consider the district judge's oral order to
disqualify himself.
30
Ham is distinguishable because in Ham the oral order did not direct the
parties to take any action or dispose of substantive matters in the case. Instead, Ham dealt
with a case management issue related to the overall administration of the proceedings.
District courts have wide discretion to control the conduct of proceedings pending before
them.
31
The Ham order related to the district court's ability to ensure that the judicial
proceedings continue with regularity and neither party gained a procedural or tactical
advantage as a result of the order. To hold such oral orders unenforceable would greatly
disturb the judicial system. Unlike Ham, the district court's oral orders in this case pertained
to the parties and the merits of the underlying controversy.
J.M.R.'s reliance on Kellar is equally unavailing. In Kellar, upon the district court's
oral order, court staff orally apprised counsel that the district court rescheduled a hearing
from 9:15 a.m. to 1:45 p.m. After counsel failed to appear at the appropriate time, the district
court held counsel in contempt, which we upheld.
32
However, Kellar does not advance
J.M.R.'s contentions because it dealt with summary contempt, not contempt resulting from
disobeying a court order. We have previously held that counsel's failure to appear at a
scheduled hearing constitutes summary contempt because the court can observe counsel's
absence and thus the misconduct occurs within the court's immediate presence.
____________________

27
This opinion does not preclude a court from entering an interlocutory order pursuant to NRCP 54(b).

28
93 Nev. 409, 566 P.2d 420 (1977).

29
86 Nev. 445, 470 P.2d 434 (1970).

30
93 Nev. at 410-11, 566 P.2d at 421-22.

31
G. & M. Properties v. District Court, 95 Nev. 301, 305, 594 P.2d 714, 716 (1979).

32
86 Nev. at 447, 450-51, 470 P.2d at 435, 438.
cause the court can observe counsel's absence and thus the misconduct occurs within the
court's immediate presence.
33

Consequently, we hold that dispositional court orders that are not administrative in
nature, but deal with the procedural posture or merits of the underlying controversy, must be
written, signed, and filed before they become effective. However, nothing in this opinion
precludes a court from summarily punishing a party who commits contempt in the court's
immediate presence, pursuant to NRS 22.030.
34
Additionally, oral court orders pertaining to
case management issues, scheduling, administrative matters or emergencies that do not allow
a party to gain an advantage are valid and enforceable.
We wish to emphasize that the district court acted in good faith by expecting the
parties to comply with its oral release order, especially after the court expressly clarified the
order on October 13, 2003. By refusing to follow the district court's mandate, the DCFS
created the appearance that it considered itself at liberty to disregard the judicial order. Not
surprisingly, the district court found the DCFS' conduct contemptuous. While we appreciate
the difficulty of the DCFS' position and we do not doubt that the DCFS had J.M.R.'s best
interests in mind, the DCFS handled the situation inappropriately. The DCFS made no effort
to communicate its release concerns and considerations to the district court. It also failed to
pursue other options for challenging the district court's oral release order, including a writ
petition to this court.
Nevertheless, we are compelled to grant the DCFS' petition due to a mistake of law.
The district court's understandable mistake resulted from unsettled precedent; and therefore,
we take this opportunity to clarify the law and provide guidance on the issue. Requiring
courts to enter written orders is essential because oral orders are almost always unclear and
subject to varying interpretations. Persons who are not present at the time the court makes an
oral order have no adequate basis for ascertaining the court's mandate. Consequently, as in
this case, oral orders are subject to greater challenges.
[Headnotes 11, 12]
The need for clarity and lack of ambiguity are especially acute in the contempt
context. An order on which a judgment of contempt is based must be clear and
unambiguous, and must spell out the details of compliance in clear, specific and unambiguous
terms so that the person will readily know exactly what duties or obligations are imposed
on him.
____________________

33
In re Mitchell, 102 Nev. 61, 62, 714 P.2d 1007, 1008 (1986).

34
Because a court's contempt order may be subject to the court's immediate enforcement, the lack of a
written finding of contempt may not impede the affected party's right to challenge the contempt order via a writ
petition.
so that the person will readily know exactly what duties or obligations are imposed on him.
35
A court order which does not specify the compliance details in unambiguous terms cannot
form the basis for a subsequent contempt order.
36
Furthermore, entry of written orders
promotes effective and meaningful appellate review. Because we conclude that the district
court's orders were ineffective because they were oral,
37
we need not address the DCFS'
contention that the district court's contempt order was unclear and ambiguous.
CONCLUSION
We conclude that the district court had jurisdiction to issue its release order under
NRS 432B.560(1)(a) and NRS 432B.580, and it needed not find that the DCFS acted
arbitrarily and capriciously before it could examine the DCFS' child development and
placement decisions. We further conclude that the district court's oral release order was
ineffective, and consequently, it could not serve as a basis for the subsequent contempt order.
Dispositional court orders that are not administrative in nature, but deal with the procedural
posture or merits of the underlying controversy, must be written, signed, and filed before they
become effective. Oral orders dealing with summary contempt, case management issues,
scheduling, administrative matters or emergencies that do not allow a party to gain a
procedural or tactical advantage are valid and enforceable. We therefore grant the DCFS'
petition for a writ of prohibition. The clerk of this court shall issue a writ of prohibition
directing the district court to vacate its order holding the DCFS in contempt of court.
____________________

35
Cunningham v. District Court, 102 Nev. 551, 559-60, 729 P.2d 1328, 1333-34 (1986).

36
State Indus. Ins. System v. Sleeper, 100 Nev. 267, 270, 679 P.2d 1273, 1275 (1984).

37
The district court's oral contempt order was also ineffective because the predicate oral release order was
invalid.
____________
120 Nev. 456, 456 (2004) Secretary of State v. Nevada State Legislature
HON. DEAN HELLER, SECRETARY OF STATE OF THE STATE OF NEVADA,
Petitioner, v.
THE LEGISLATURE OF THE STATE OF NEVADA, Respondent.
No. 43079
July 14, 2004 93 P.3d 746
Original petition for a writ of mandamus seeking to compel the Legislature to fulfill
its obligations under Article 3, Section 1(1), and Article 4, Section 6 of the Nevada
Constitution.
Secretary of State sought writ of mandamus, challenging state government employees'
service in the Legislature as violating the Nevada Constitution's separation of powers and
questioning whether local government employees may serve as legislators without violating
separation of powers. The supreme court held that: (1) Secretary of State did not have
standing to seek writ of mandamus to prevent state government employees from serving in
the Legislature; (2) quo warranto, rather than mandamus, was the proper mechanism for the
Secretary of State to try to prevent local government employees from serving in the
Legislature; (3) Legislature could not exempt its members from quo warranto suits; and (4)
separation-of-powers doctrine barred judicial review of state executive branch employees'
service in the Legislature.
Petition denied.
Brian Sandoval, Attorney General, Jeff E. Parker, Solicitor General, and Ann P.
Wilkinson, Deputy Attorney General, Carson City, for Petitioner.
Brenda J. Erdoes, Legislative Counsel, and Kevin C. Powers, Principal Deputy
Legislative Counsel, Carson City, for Respondent.
Beckley Singleton, Chtd., and Daniel F. Polsenberg and Beau Sterling, Las Vegas;
Bradley Drendel & Jeanney and William O. Bradley Sr., Reno; William Patterson Cashill,
Reno; Robert C. Maddox & Associates and Robert C. Maddox, Las Vegas, for Amici Curiae
Las Vegas Police Protective Association, Metro Inc.; Nevada Association of School
Administrators; Nevada Faculty Alliance; Nevada State AFL-CIO; Professional Firefighters
of Nevada; Retired Public Employees of Nevada; and State of Nevada Employees
Association (SNEA/AFSME Local 4041).
Dyer, Lawrence, Penrose, Flaherty & Donaldson and Michael W. Dyer, James W.
Penrose, and Cory A. Watkins, Carson City, for Amici Curiae Nevada State Education
Association, Clark County Education Association, Education Support Employees
Association of Clark County, and Washoe Education Association.
Education Association, Education Support Employees Association of Clark County, and
Washoe Education Association.
Allen Lichtenstein, Las Vegas, for Amicus Curiae American Civil Liberties Union of
Nevada.
James T. Richardson, Reno; Watson Rounds and Matthew D. Francis, Reno, for
Amicus Curiae The Nevada Faculty Alliance.
1. Action.
Standing is the legal right to set judicial machinery in motion.
2. Mandamus.
To establish standing in a mandamus proceeding, the petitioner must demonstrate a
beneficial interest in obtaining writ relief. NRS 34.170.
3. Action; Courts.
State courts are not bound by federal standing principles, which derive from the case
or controversy component of the United States Constitution. U.S. Const. art. 3, 2.
4. Mandamus.
To demonstrate a beneficial interest sufficient to pursue a mandamus action, a party
must show a direct and substantial interest that falls within the zone of interests to be
protected by the legal duty asserted.
5. Mandamus.
The writ of mandamus must be denied if the petitioner will gain no direct benefit from
its issuance and suffer no direct detriment if it is denied.
6. Officers and Public Employees.
A public officer's capacity to sue is incident to the duties of the office.
7. Mandamus.
Secretary of State did not have standing to seek writ of mandamus to prevent state
government employees from serving in the Legislature; Secretary had no discernible
beneficial interest in having state executive branch employees ousted or excluded from
the Legislature, as Secretary's official duty was to administer the state's election
process.
8. States.
Secretary of State sued the wrong party when he sued the Legislature as a whole to
prevent executive branch employees from serving in the Legislature. The authority to
determine legislative members' qualifications rested with each House, rather than the
Legislature as a whole, and neither House could interfere with seating the other's
members, and thus Secretary sought to compel an act that the Legislature as a whole
had no legal authority to perform. Const. art. 4, 6.
9. Mandamus.
Secretary of State's mandamus action to prevent executive branch employees from
serving in the Legislature was not ripe for appellate review. Until executive branch
employees were actually seated in the Legislature, the court had no concrete
controversy to resolve, given that the voters might reject such candidates, those
candidates and incumbents might resign their executive branch employment before the
legislative session began, or the Senate and Assembly might find that dual service
constituted a disqualification.
10. Mandamus.
A writ of mandamus will not issue if the petitioner has a plain, speedy and adequate
remedy in the ordinary course of law.
11. Quo Warranto.
Quo warranto is an ancient common-law writ and remedy to determine the right to
the use or exercise of a franchise or office and to oust the holder from its enjoyment, if
the holder's claim is not well founded, or if he or she has forfeited his or her right to
enjoy the privilege.
12. Mandamus.
Quo warranto, rather than mandamus, was the proper mechanism for the Secretary of
State to try to prevent local government employees from serving in the Legislature.
Mandamus was ill-suited for determining whether a person unlawfully held public
office because, unlike quo warranto, the officeholder need not be made a party to the
proceeding and no legal officer of the state needed to authorize the action.
13. Constitutional Law; Quo Warranto.
Legislature could not exempt its members from quo warranto suits. The appellate
court's power to issue writs of quo warranto derived from the Constitution, and the
Legislature could not restrict the court's original jurisdiction to issue writ relief in a
manner that would substantially impair the constitutional powers of the court, or
practically defeat their exercise. Const. art. 6, 4; NRS 35.010(1).
14. Constitutional Law; States.
The separation-of-powers doctrine barred judicial review of state executive branch
employees' service in the Legislature. A constitutional provision providing that the
Legislature shall judge the qualifications, returns, and elections of its own members
insulated a legislator's qualifications to hold office from judicial review. Const. art. 3,
1(1), art. 4, 6.
15. States.
The only areas in which a court may act with respect to the qualifications, elections,
and returns of legislators are where the Legislature has (1) devised a role for the courts
by statute, such as election contests; (2) infringed upon personal constitutional rights; or
(3) imposed extra-constitutional qualifications.
OPINION
Per Curiam:
In this original mandamus proceeding, the Secretary of State challenges state
government employees' service in the Legislature as violating the Nevada Constitution's
separation of powers. The Secretary also questions whether local government employees may
serve as legislators without violating separation of powers.
Ironically, the Secretary's attempt to have state executive branch employees ousted or
excluded from the Legislature is barred by the same doctrine he relies onseparation of
powers. The Nevada Constitution expressly reserves to the Senate and Assembly the
authority to judge their members' qualifications.
thority to judge their members' qualifications. Nearly every state court to have confronted the
issue of dual service in the legislature has found the issue unreachable because a
constitutional reservation similar to Nevada's created an insurmountable separation-of-powers
barrier. Thus, by asking us to declare that dual service violates separation of powers, the
Secretary urges our own violation of separation of powers. We necessarily decline this
invitation.
Additionally, significant procedural defects plague the Secretary's petition for
mandamus relief. Specifically, the Secretary lacks standing to seek any type of relief forcing
the Legislature to take action on its members' qualifications, this matter is not ripe for review,
and the Secretary has sued the wrong party. Further, quo warranto, rather than mandamus, is
the appropriate vehicle by which to challenge a legislator's title to public office.
Accordingly, the Secretary's petition must be denied.
FACTS
On April 2, 2004, the Secretary of State filed in this court a petition for a writ of
mandamus, asking us to (1) find that service in the Legislature by certain, unidentified
executive branch employees violates separation of powers; (2) direct the Legislature as a
whole to enforce separation of powers; (3) determine whether separation of powers is
violated by certain, unidentified local government employees' service in the Legislature; (4)
permit the Secretary leave to amend the petition to seek additional remedies in the event the
Legislature fails to act as required by this Court; and (5) provide other and further relief as
this Court deems proper. The Secretary relies on a March 1, 2004 Attorney General opinion
concluding that separation of powers bars any employee from serving in the executive
branch of government and simultaneously serving as a member of the Nevada State
Legislature, but tolerates a local government employee's simultaneous service as a legislator.
On May 4, 2004, the Legislature filed an answer, listing numerous bars to mandamus
relief, and asserting that the Secretary's only judicial recourse is to bring an appropriate
judicial action against the individual legislator to determine whether the legislator may keep
his public employment. The Legislature concludes that separation of powers is not violated
by a legislator's service in state or local government employment.
This court also permitted the filing of amicus briefs by The Nevada Faculty Alliance,
The American Civil Liberties Union of Nevada, various educational associations, and a
consortium of amici headed by the Las Vegas Police Protective Association, Metro Inc. These
amici all join against the Secretary, and mostly reiterate points made by the Legislature.
On May 20, 2004, the Secretary filed a reply to the Legislature's answer, partially
altering the relief sought. The Secretary states that he seeks an interpretation of Article 3,
Section 1(1) (separation of powers), as it pertains to executive branch employees serving in
the Legislature. The Secretary then asks that we order[ ] the Legislature to rely on that
interpretation in the performance of its discretionary duty of judging the qualifications of its
members under Article 4, Section 6. While the Secretary cites the upcoming primary and
general elections as creating an urgent and strong need for our immediate intervention, the
Secretary requests that relief apply on a prospective basis only, taking effect at the start of
the Legislature's 73d regular session in February 2005. Essentially, the Secretary asks us to
declare state executive branch employees unqualified to serve as legislators, and then direct
the Legislature to comply with our declaration and either remove or exclude those employees
from the Legislature beginning in 2005.
1

DISCUSSION
Part I of this opinion addresses the procedural bars to mandamus relief, noting that the
Secretary lacks standing to seek mandamus relief and has sued the wrong party at the wrong
time, and that quo warranto is the appropriate proceeding in which to challenge title to a
public office. Part II identifies the insurmountable separation-of-powers bar to this court
judging state executive branch employees' service in the Legislature. And finally, Part III
discusses the proper proceedings and parties to raise the dual service issue: district court
actions, filed by the attorney general or legally interested persons seeking, respectively, quo
warranto or declaratory relief to exclude a legislator from executive branch employment.
I.
The Secretary lacks standing to seek the exclusion or ouster of executive branch employees
from the Legislature
[Headnotes 1-5]
Standing is the legal right to set judicial machinery in motion.
2
To establish
standing in a mandamus proceeding, the petitioner must demonstrate a "beneficial interest"
in obtaining writ relief.
____________________

1
Although the Secretary artfully avoids directly asking that we judge state executive branch employees'
qualifications and then oust or exclude those employees from the Legislature, the Secretary's petition, if granted,
would accomplish those results. Under the present circumstances, asking that we interpret[ ] separation of
powers to bar legislative service is no different than asking that we judge state employees' qualifications to serve.
And when the Secretary asks that we enforce our interpretation with an order to the Legislature, we are in fact
being asked to oust or exclude state employees from the Legislature.

2
Smith v. Snyder, 839 A.2d 589, 594 (Conn. 2004) (internal quotation marks omitted).
tioner must demonstrate a beneficial interest in obtaining writ relief.
3
Although this court
has not defined beneficial interest, the California courts have: To demonstrate a beneficial
interest sufficient to pursue a mandamus action, a party must show a direct and substantial
interest that falls within the zone of interests to be protected by the legal duty asserted.
4
Stated differently, the writ must be denied if the petitioner will gain no direct benefit from
its issuance and suffer no direct detriment if it is denied.
5
Although neither the Legislature
nor the Secretary has addressed standing in the documents before us, we necessarily reach the
issue, as it affects our original jurisdiction.
6

The Secretary has no discernible beneficial interest in having state executive branch
employees ousted or excluded from the Legislature. The Secretary's only explicit duty under
the Nevada Constitution is to keep a true record of the Official Acts of the Legislative and
Executive Departments of the Government, and . . . when required, lay the same and all
matters relative thereto, before either branch of the Legislature.
7
And Nevada's Legislature,
by designating the Secretary as the chief officer of elections, and by giving his office the
authority to administer the state's election process, appears to have intended that the Secretary
only have standing to seek enforcement of the state's election laws.
[Headnote 6]
A public officer's capacity to sue is incident to the duties of the office.
8
In his
capacity as the state's chief elections officer, the Secretary must obtain and maintain
consistency in the application, operation and interpretation of election laws.
9
With respect to
candidates for state office, the Secretary prescribe[s] the forms for a declaration of
candidacy, certificate of candidacy, [and] acceptance of candidacy.
10
After a person has
filed a candidacy declaration or acceptance, a written challenge that the prospective
candidate does not meet constitutional qualifications may be filed with the Secretary,
who then begins a process preliminary to judicial review.
____________________

3
NRS 34.170. State courts are not bound by federal standing principles, which derive from the case or
controversy component of the United States Constitution. Holiday Inn-West v. Coleman, 792 S.W.2d 345, 347
n.1 (Ark. Ct. App. 1990); Ohio Roundtable v. Taft, 773 N.E.2d 1113, 1121 (Ohio Ct. C.P. 2002).

4
Lindelli v. Town of San Anselmo, 4 Cal. Rptr. 3d 453, 461 (Ct. App. 2003).

5
Waste Management v. County of Alameda, 94 Cal. Rptr. 2d 740, 747 (Ct. App. 2000).

6
See Delogu v. City of Portland, 843 A.2d 33, 34 n.1 (Me. 2004); Smith, 839 A.2d at 594 n.5; Hendrick v.
Walters, 865 P.2d 1232, 1236 (Okla. 1993). The standing issue was discussed, however, during oral argument.

7

8
State ex rel. Manchin v. Lively, 295 S.E.2d 912, 915 (W. Va. 1982).

9
NRS 293.247.

10
NRS 293.247(1).
tion or acceptance, a written challenge that the prospective candidate does not meet
constitutional qualifications may be filed with the Secretary, who then begins a process
preliminary to judicial review.
11
Following a primary election, the Secretary must certify all
nominations for state offices to the various county clerks.
12
Ultimately, once ballots are
prepared for a general election, the Secretary oversees the voting process for the election.
13

[Headnote 7]
In the present matter, the Secretary does not contend that he is unable to discharge his
official duties relating to state election laws without writ relief. Rather, the Secretary suggests
that he seeks to enforce and uphold the Nevada Constitution on behalf of the state's citizens.
Notwithstanding that broad suggestion, the petition ultimately seeks to oust or exclude state
executive branch employees from the Legislature. This remedy is not within the Secretary's
scope of authority, which is to administer the state's election process. And even after an
election, when presented with a contest over a seat in the Senate or Assembly, the Secretary is
powerless to do anything other than transmit the election contest documents to the
appropriate legislative house.
14
We conclude, then, that the Secretary lacks standing to seek
mandamus relief regarding the dual service issue.
The Secretary has sued the wrong party at the wrong time
[Headnote 8]
According to the Legislature, the authority to determine members' qualifications rests
with each House, rather than the Legislature as a whole, and neither House may interfere with
seating the other's members. Thus, the Legislature argues, the Secretary has sued the wrong
party, as he seeks to compel an act that the Legislature as a whole has no legal authority to
perform. We agree. Article 4, Section 6, of the Nevada Constitution expressly reserves to
Each House the right to judge members' qualifications.
15
The framers of our Constitution
could have easily given the reservation to the Legislature as a whole, but chose instead to
repose the right to judge members in the Legislative House to which the member belongs.
____________________

11
NRS 293.182(1), (3).

12
NRS 293.190.

13
NRS 293.2696.

14
NRS 293.425; NRS 293.427.

15
The Secretary cites State v. Lincoln County Power District, 60 Nev. 401, 405, 111 P.2d 528, 530 (1941),
where we stated that the legislature possesses the whole legislative powers of the people. Lincoln County
Power District involved issues relating to property taxation and the creation of municipal corporations, and we
fail to see how our statements in that case are relevant to the Secretary's failure to sue the Senate and Assembly
over their members' qualifications.
given the reservation to the Legislature as a whole, but chose instead to repose the right to
judge members in the Legislative House to which the member belongs.
[Headnote 9]
And until executive branch employees are actually seated in the 73d Legislature, this
court has no concrete controversy to resolve, given that the voters might reject such
candidates, those candidates and incumbents might resign their executive branch employment
before the legislative session begins, or the Senate and Assembly might find that dual service
constitutes a disqualification.
16
Thus, this matter is not yet ripe for review.
Even if the Secretary had standing and had sued the correct parties at the proper time, quo
warranto, rather than mandamus, is the proper mechanism to try title to a public office
[Headnote 10]
A writ of mandamus will not issue if the petitioner has a plain, speedy and adequate
remedy in the ordinary course of law.
17
Most states recognize that quo warranto is not only
an adequate remedy to challenge a person's right to hold public office, it is the exclusive
remedy.
18
In those states, mandamus is ordinarily appropriate only before the office is filled.
19

[Headnotes 11, 12]
Quo warranto is an ancient common law writ and remedy to determine the right to
the use or exercise of a franchise or office and to oust the holder from its enjoyment, if the
holder's claim is not well founded, or if he or she has forfeited his or her right to enjoy the
privilege.
20
The rationale for quo warranto's exclusiveness rests, as noted by the
Pennsylvania Supreme Court, on its ancient design as a means to test title to public office
and its involvement of all interested parties:
____________________

16
Resnick v. Nevada Gaming Commission, 104 Nev. 60, 66, 752 P.2d 229, 233 (1988) (observing that
litigated matters must present an existing controversy, not merely the prospect of a future problem (internal
quotation marks omitted)).

17
NRS 34.170.

18
65 Am. Jur. 2d Quo Warranto 8-10 (2001); e.g., Ex parte Sierra Club, 674 So. 2d 54, 57 (Ala. 1995);
Nicolopulos v. City of Lawndale, 111 Cal. Rptr. 2d 420, 422 (Ct. App. 2001); Breslin v. Warren, 359 N.E.2d
1113, 1114 (Ill. App. Ct. 1977); Layle v. Schnipke, 186 N.W.2d 559, 560 (Mich. 1971); Delgado v. Sunderland,
767 N.E.2d 662, 665 (N.Y. 2002); State v. Tapp, 380 P.2d 260, 267 (Okla. 1963); McCracken v. Bissett, 203
A.2d 481, 481 (Pa. 1964); Lewis v. Drake, 641 S.W.2d 392, 394 (Tex. App. 1982).

19
McCracken, 203 A.2d at 481; see, e.g., Mengelkamp v. List, 88 Nev. 542, 501 P.2d 1032 (1972) (petition
for a writ of mandamus to compel county clerk to place petitioners' names on ballot).

20
74 C.J.S. Quo Warranto 1, at 96 (2002).
cient design as a means to test title to public office and its involvement of all interested
parties:
Quo warranto is the Gibraltar of stability in government tenure. Once a person is duly
elected or duly appointed to public office, the continuity of his services may not be
interrupted and the uniform working of the governmental machinery disorganized or
disturbed by any proceeding less than a formal challenge to the office by that action
which is now venerable with age, reinforced by countless precedent, and proved to be
protective of all parties involved in a given controversy, namely, quo warranto.
21

Mandamus is ill-suited for determining whether a person unlawfully holds public office
because, unlike quo warranto, the officeholder need not be made a party to the proceeding
and no legal officer of the state need authorize the action.
22

The Nevada Legislature cannot exempt its members from quo warranto suits
[Headnote 13]
Nevada has codified quo warranto, making it available [a]gainst a person who
usurps, intrudes into, or unlawfully holds or exercises, a public office.
23
In 1971, the
Nevada Legislature modified the quo warranto statute to exempt its members from quo
warranto actions.
24
The legislative history indicates that the exemption was intended to
strengthen[ ] the position that the Legislature has the right to seat its own people.
____________________

21
In re Board of School Directors of Carroll Twp., 180 A.2d 16, 17 (Pa. 1962); accord Lewis, 641 S.W.2d
at 395 (Public officers should be free to perform their duties without having their authority questioned
incidentally in litigation between other parties. They should not be called on to defend their authority unless a
proper legal officer of the State has determined that the question raised is serious and deserves judicial
consideration . . . .).

22
See 74 C.J.S. Quo Warranto 43, at 125 (2002) (The consent of the attorney general . . . is ordinarily
necessary to the institution of quo warranto proceedings . . . .); id. 58, at 133 (To reach its objective, a quo
warranto proceeding must be brought against a person who is charged with exercising the public office in
question without a lawful right.); see also NRS 35.040 (providing that the Attorney General may sue in quo
warranto on his own relation, or, with leave of court, on the relation of another person); NRS 35.060 (requiring
that the person unlawfully holding office be named as a defendant).

23
NRS 35.010(1).

24
1971 Nev. Stat., ch. 371, 1, at 660 (adding the following emphasized language to the quo warranto
statute: A civil action may be brought in the name of the state . . . [a]gainst a person who usurps, intrudes into,
or unlawfully holds or exercises, a public office, civil or military, except the office of assemblyman or state
senator).
Legislature has the right to seat its own people.
25
But as this court's power to issue writs of
quo warranto derives from the Nevada Constitution,
26
the Legislature's statutory attempt to
exempt its members from quo warranto actions fails. As noted by the California Supreme
Court, a legislature cannot restrict a court's original jurisdiction to issue writ relief in a
manner that would substantially impair the constitutional powers of the courts, or practically
defeat their exercise.
27
This court said as much in MPC Contractors v. Appeals Officer,
28
when we held that former NRS 34.330's reservation of prohibition jurisdiction in only the
supreme court unlawfully intruded upon the district court's constitutional authority to issue
writ relief.
Here, instead of altering or enlarging various procedural aspects of the quo warranto
remedy, such as timing or pleading requirements, the Legislature's exemption of its members
from quo warranto suits has carved an entire area from the judiciary's constitutionally
originated powers to issue writs of quo warranto. Consequently, the legislator exemption is
infirm, and quo warranto is not an inadequate remedy justifying the Secretary's resort to
mandamus relief.
29
But as explained below, even if the Secretary had sought relief through
quo warranto, separation of powers would have precluded our intervention.
____________________

25
Hearing on A.B. 180 Before the Assembly Comm. on Judiciary, 56th Leg. (Nev., Feb. 15, 1971).

26
Nev. Const. art. 6, 4 (providing that the supreme court shall have power to issue writs of mandamus,
certiorari, prohibition, quo warranto, and habeas corpus and also all writs necessary or proper to the complete
exercise of its appellate jurisdiction); see also id. 6(1) (infusing district courts with the power to issue writs
of Mandamus, Prohibition, Injunction, Quo-Warranto, Certiorari, and all other writs proper and necessary to the
complete exercise of their jurisdiction).

27
Leone v. Medical Bd. of Cal., 995 P.2d 191, 196 (Cal. 2000) (internal quotation marks omitted); accord In
re Estate of Gebis, 710 N.E.2d 385, 387 (Ill. 1999) (stating that a legislature may not limit a court's original
jurisdiction to hear a justiciable matter); Petersen v. Utah Bd. of Pardons, 907 P.2d 1148, 1152 (Utah 1995)
(stating that when a [c]ourt's writ powers are derived from the constitution, the Legislature cannot diminish
them); Matter of B.L.P., 345 N.W.2d 510, 514 (Wis. Ct. App. 1984) (Although legislatures cannot take away
any power constitutionally conferred upon the judiciary, they can certainly write reasonable regulations on the
means by which courts exercise that power.).

28
111 Nev. 606, 894 P.2d 384 (1995); accord Hanvey v. Thompson, 243 So. 2d 748, 751 (Ala. 1971).

29
See State v. Harmon, 38 Nev. 5, 7, 143 P. 1183, 1184 (1914) (stating that [t]itle to office cannot . . . be
tried by other than [a] direct proceeding in quo warranto, and concluding that a county health officer's
eligibility for membership in the Republican county central committee could not be considered on petition for
writ of prohibition). To the extent that Petrie v. Gragson, 78 Nev. 362, 374 P.2d 433 (1962), supports invoking
mandamus when quo warranto is available, it is overruled.
had sought relief through quo warranto, separation of powers would have precluded our
intervention.
II.
The Nevada Constitution bars judicial review of a state executive branch employee's service
in the Legislature
Separation of powers resides in Article 3, Section 1(1):
The powers of the Government of the State of Nevada shall be divided into three
separate departments,the Legislative,the Executive and the Judicial; and no
persons charged with the exercise of powers properly belonging to one of these
departments shall exercise any functions, appertaining to either of the others, except in
the cases expressly directed or permitted in this constitution.
As we have previously recognized, separation of powers is probably the most important
single principle of government declaring and guaranteeing the liberties of the people.
30
It
works by preventing the accumulation of power in any one branch of government.
31

Separation of powers is particularly applicable when a constitution expressly grants
authority to one branch of government,
32
as the Nevada Constitution does in Article 4,
Section 6:
Each House shall judge of the qualifications, elections and returns of its own members,
choose its own officers (except the President of the Senate), determine the rules of its
proceedings and may punish its members for disorderly conduct, and with the
concurrence of two thirds of all the members elected, expel a member.
This provision expressly reserves to the Senate and Assembly the rights to extend, withhold
and withdraw membership status.
33
The Secretary would have us appropriate these rights to
direct the ouster or exclusion of state executive branch employees from legislative service.
This we cannot do.
[Headnote 14]
As observed by the Legislature, state courts have consistently concluded that a
constitutional provision providing that the legislature shall judge the qualifications, returns
and elections of its own members insulates a legislator's qualifications to hold office from
judicial review.
____________________

30
Galloway v. Truesdell, 83 Nev. 13, 18, 422 P.2d 237, 241 (1967).

31
1 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law 3.12, at 394 (3d ed. 1999).

32
1 Laurence H. Tribe, American Constitutional Law 127 (3d ed. 2000).

33
See 1 Norman J. Singer, Statutes and Statutory Construction 6.04, at 532 (5th rev. ed. 1994).
from judicial review.
34
In other words, a legislative body's decision to admit or expel a
member is almost unreviewable in the courts.
35
This point is exemplified in a Utah case,
State v. Evans.
36
In Evans, Utah's attorney general sought an extraordinary writ against three
state legislators, two of whom were also employed in the executive branch and one of whom
had a contract with the executive branch. The attorney general claimed that concomitant
service violated Utah's separation of powers and requested a judgment that the defendants
either resign their legislative posts or terminate their executive branch connections.
37
The
Utah Supreme Court denied writ relief, declin[ing] to interfere with or second-guess the
legislature's decision to seat the defendants.
38
The court relied on the Utah Constitution's
provision that [e]ach house shall be the judge of the election and qualifications of its
members,'
39
and noted that other state courts had interpreted analogous constitutional
provisions as barring judicial intervention.
40
But insofar as the defendants' executive branch
connections were concerned, the court found that issue better suited for a declaratory relief
action, where a full record can be developed regarding the nature and scope of the
[defendants'] employment duties.
41
Evans demonstrates the principle that, although a court
may not review a state employee's qualifications to sit as a legislator, a court may review a
legislator's employment in the executive branch.
____________________

34
16 C.J.S. Constitutional Law 201 (1984); Legislation, The Legislature's Power to Judge the
Qualifications of its Members, 19 Vand. L. Rev. 1410, 1410-11 (1966). Even a 1952 Nevada Attorney General
Opinion states that courts cannot intrude on the Senate and Assembly's prerogative to judge their members'
qualifications based on employment in the executive branch. Att'y Gen. Op. 183 (July 9, 1952).

35
See 16 C.J.S. Constitutional Law 201 (1984).

36
735 P.2d 29 (Utah 1987).

37
Id. at 29.

38
Id. at 32.

39
Id. at 30 (quoting Utah Const. art. VI, 10).

40
Id. at 30-31 (citing Buskey v. Amos, 310 So. 2d 468 (Ala. 1975) (holding that appellate court lost
jurisdiction to consider candidate's residency when the candidate was sworn in to the Alabama Senate); State v.
Wheatley, 125 S.W.2d 101 (Ark. 1939) (refusing to consider whether a state legislator was disqualified from
service based on his conviction for an infamous crime); State ex rel. Turner v. Scott, 269 N.W.2d 828 (Iowa
1978) (characterizing as a nonjusticiable controversy a quo warranto action to remove a senator who allegedly
failed to satisfy state's inhabitancy requirement); State ex rel. Ford v. Cutts, 163 P. 470 (Mont. 1917) (declining
to consider quo warranto challenge to legislator's right to sit in the Montana House of Representatives); Raney v.
Stovall, 361 S.W.2d 518 (Ky. Ct. App. 1962) (refusing to question the Kentucky Senate's approval of a deputy
sheriff serving as a senator); and Lessard v. Snell, 63 P.2d 893 (Or. 1937) (declining to question the
qualifications of a state senator who had been commissioned as a notary public and employed as a county
attorney)).

41
Id. at 33.
employee's qualifications to sit as a legislator, a court may review a legislator's employment
in the executive branch. This dichotomy exists because no state constitutional provision gives
the executive branch the exclusive authority to judge its employees' qualifications. Often
then, cases discussing and resolving the dual service issue arise when a legislator seeks
remuneration for working in the executive branch or when a party seeks to remove a
legislator from executive branch employment.
42

The Secretary has not identified, nor are we aware of, any case in which the
separation-of-powers barrier was breached to oust a member of the legislature for any reason,
including dual service.
43
According to the Minnesota Supreme Court, [t]here are good
reasons for such widespread acceptance of the principle, often framed in terms of legislative
self-protection:
It is obvious, that a power must be lodged somewhere to judge of the elections,
returns, and qualifications of the members . . . . The only possible question on such a
subject is, as to the body, in which such a power shall be lodged. If lodged in any other,
than the legislative body itself, its independence, its purity . . . may be destroyed . . . .
No other body, but itself, can have the same motives to preserve and perpetuate these
attributes; no other body can be so perpetually watchful to guard its own rights and
privileges from infringement, to purify and vindicate its own character, and to
preserve the rights, and sustain the free choice of its own constituents.
____________________

42
E.g., Hudson v. Annear, 75 P.2d 587 (Colo. 1938) (concluding that legislators assigned to work in the
income tax department of the state treasurer's office were entitled to remuneration, notwithstanding the state
constitution's separation of powers provision); State v. Burch, 80 N.E.2d 294, 299 (Ind. 1948) (holding that the
Indiana Constitution's separation-of-powers provision prohibited legislators employed in the administrative
department of government from receiving salaries for those jobs); State ex rel. Spire v. Conway, 472 N.W.2d
403, 408 (Neb. 1991) (concluding that Nebraska's separation-of-powers proviso did not shield a state senator's
employment as a college professor from review, but would preclude review of the senator's right to retain his
seat).

43
Cf. Foster v. Harden, 536 So. 2d 905, 906 (Miss. 1988) (refusing to consider an election contest which
questioned whether a state senator satisfied a residency requirement, because [e]ach legislative body is the sole
judge of the elections, returns, and qualifications of its own members, and its action in admitting or expelling a
member is not reviewable in the courts (internal quotation marks omitted)); State v. Banks, 454 S.W.2d 498,
500-01 (Mo. 1970) (declining to consider a quo warranto action to oust a state legislator, and stating that no
authority existed to contradict the principle that a legislature's power to judge its members' qualifications is
exclusive); Lessard v. Snell, 63 P.2d 893, 894 (Or. 1937) (barring secretary of state from declaring senator's seat
vacant, and stating, We apprehend there is no case in the bookscertainly none has been citedwhere any
court has ever ousted a member of a Legislature or directed such co-ordinate branch of the government to accept
any person as one of its members.). But cf. State ex rel. Stratton v. Roswell Schools, 806 P.2d 1085, 1095
(N.M. Ct. App. 1991) (concluding, without recognizing the New Mexico Constitution's qualifications clause,
that a school teacher and a school administrator were not barred by separation of powers from being legislators).
perpetuate these attributes; no other body can be so perpetually watchful to guard its
own rights and privileges from infringement, to purify and vindicate its own character,
and to preserve the rights, and sustain the free choice of its own constituents.
Accordingly, the power has always been lodged in the legislative body by the uniform
practice of England and America.
44

Cases from California and Oregon also illustrate the principle of restraint counseled
by separation of powers. In California War Veterans for Justice v. Hayden,
45
war veterans
sued to disqualify an assemblyman from the California Assembly because of his actions in
support of North Vietnam.
46
The veterans relied on a California constitutional provision
barring from public office any person who advocates the support of a foreign government
against the United States.'
47
The superior court dismissed the complaint, and the California
Court of Appeal affirmed, stating that it was unequivocally clear that the suit was barred by
the California Constitution's directive that [e]ach house shall judge the qualifications and
elections of its members.'
48
And in Lessard v. Snell,
49
the Oregon Supreme Court found
that a similar Oregon constitutional provision prevented it from determining whether a state
senator was barred from public office by his appointments as a notary public and a
state-employed attorney. The court supported its decision on separation-of-powers grounds:
[T]o pass upon the eligibility of plaintiff to the office of State Senator would be an
encroachment upon the constitutional prerogatives of a co-ordinate branch of the
government. It would be wholly foreign to our constitutional system of government for
the executive or judicial department to determine a matter expressly reserved for the
Legislature. There is no principle more fundamental than that the three branches of the
governmentthe legislative, the executive, and the judicialare co-ordinate and
independent. Neither can interfere with the duties or functions of the other without
striking a blow at the foundation of the government itself.
50

____________________

44
Scheibel v. Pavlak, 282 N.W.2d 843, 847 (Minn. 1979) (quoting Story, Commentaries on the Constitution
416 (abr. ed. 1833), cited in Legislation, The Legislature's Power to Judge the Qualifications of Its Members,
19 Vand. L. Rev. 1410, 1412 (1966)).

45
222 Cal. Rptr. 512 (Ct. App. 1986).

46
Id. at 513.

47
Id. at 516 (quoting Cal. Const. art. VII, 9).

48
Id. at 514, 516 (quoting Cal. Const. art. IV, 5).

49
63 P.2d 893 (Or. 1937).

50
Id. at 894.
Mengelkamp v. List
51
is one of the few Nevada cases that discusses the Legislature's
authority to judge its members' qualifications under Article 4, Section 6. There, underage
candidates for the Legislature sought a writ of mandamus compelling the county clerk to
place their names on the ballot. The petitioners argued that, because only the Legislature may
judge members' qualifications, they should be placed on the ballot, and if elected, judged by
the Legislature. This court summarily rejected petitioners' argument and denied writ relief.
Mengelkamp does not support the Secretary's request for judicial intrusion on the
Senate and Assembly's right to judge their members' qualifications. In Mengelkamp, because
the petitioners were statutorily ineligible to run for office, the clerk was under no legal duty to
place the petitioners' names on the ballot, and therefore, our intervention was not warranted.
Rather than judge the petitioners' qualifications, we simply observed the Legislature's
established age requirement. And eight years earlier, in Laxalt v. Cannon,
52
we recognized,
in dictum, that constitutional provisions similar to Nevada's Article 4, Section 6, deprive[ ]
the state courts of jurisdiction to decide election contests for state legislative offices.
The Secretary suggests that the California Court of Appeal, in Elliott v. Van Delinder,
53
interpreted California's separation-of-powers proviso to mean that a person may not
simultaneously hold positions in different departments of the government. The dual service
issue in Elliott arose because a justice of the peace, who was also employed in the state's
engineering department, sued the county treasurer for his engineer's salary.
54
Although the
court stated that separation of powers means that no person shall hold offices under different
departments of the government at the same time, the court expressly found the issue beyond
its reach, explaining that quo warranto is the proper remedy by which directly to test the title
to all public offices and that the title to an office cannot be tested in a proceeding for the
writ of mandate.
55
Consequently, the court affirmed the trial court's issuance of mandamus
relief, compelling payment of the justice's salary.
____________________

51
88 Nev. 542, 501 P.2d 1032 (1972).

52
80 Nev. 588, 591, 397 P.2d 466, 467-68 (1964) (holding that, because the United States Constitution
reserves to the U.S. Senate the exclusive power to judge members' qualifications, this court could not consider
an election contest for a U.S. Senate seat).

53
247 P. 523 (Cal. Ct. App. 1926).

54
Id.

55
Id. at 524 (internal quotation marks omitted).
[Headnote 15]
The only areas in which a court may act with respect to the qualifications, elections
and returns of legislators are where the legislature has (1) devised a role for the courts by
statute, such as election contests,
56
(2) infringed upon personal constitutional rights,
57
or (3)
imposed extra-constitutional qualifications.
58
This last area has been traversed by the United
States Supreme Court in view of the Federal Constitution's proclamation that [e]ach House
shall be the Judge of the Elections, Returns and Qualifications of its own Members.
59
In
Powell v. McCormack,
60
the Supreme Court held that Congress is the sole judge of whether
an elected official meets qualifications enumerated in the Constitution, but not when
Congress imposes extra-constitutional qualifications. The House of Representatives had
passed a resolution barring Adam Clayton Powell, Jr., from resuming his congressional seat
based on a report that he had deceived authorities regarding travel expenses and had directed
illegal salary payments to his wife.
61
The Supreme Court concluded that it could review the
matter without violating separation of powers because the Framers intended to insulate from
judicial review only those qualifications expressly prescribed in the Constitution.
62
Thus, as
Powell satisfied the Constitution's requirements for membership,
63
the Court found Powell
eligible for his congressional seat. Narrowly construing Congress' power to exclude elected
members was important to the Court in light of the fundamental principle of our
representative democracy . . .
____________________

56
Scheibel, 282 N.W.2d at 848, 850; e.g., NRS 293.407 (allowing election contests not involving state
senators or assemblypersons to be brought in district court); cf. NRS 293.182(4) (authorizing judicial review
over challenges to a candidate's qualifications).

57
E.g., Bond v. Floyd, 385 U.S. 116, 129 (1966) (reviewing legislator's claim of a First Amendment
violation from the Georgia House of Representative's refusal to admit him based on his criticism of the Vietnam
war, notwithstanding a state constitutional proviso that [e]ach House shall be the judge of the election, returns,
and qualifications of its members).

58
E.g., Powell v. McCormack, 395 U.S. 486 (1969); see Hayden, 222 Cal. Rptr. at 516 (stating that judicial
review is available to protect First Amendment rights and eliminate qualifications imposed without textual
support in the Federal Constitution).

59
U.S. Const. art. I, 5.

60
395 U.S. 486, 548 (1969); see also id. at 551 (Douglas, J., concurring).

61
395 U.S. at 489-90.

62
Id. at 522.

63
See U.S. Const. art. I, 2, cl. 2 (No Person shall be a Representative who shall not have attained to the
age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected,
be an Inhabitant of that State in which he shall be chosen.).
that the people should choose whom they please to govern them.'
64

In the instant case, the Nevada Legislature has not crafted a role for the judiciary in
reviewing current members' qualifications.
65
Indeed, by statute, election contests for state
assembly or senate seats may not be brought in a court, and may be filed only with the
Secretary of State,
66
who must then deliver the contest documents to the appropriate house
of the Legislature.
67
Further, no legislator is claiming that his or her right to sit has been
unconstitutionally denied. Nevertheless, the Secretary asks this court to judge legislators'
qualifications based on their executive branch employment. This request runs afoul of the
separation of powers and is not justiciable.
III.
The proper forum and parties for the dual service issue
As discussed above, any attempt through a judicial proceeding to exclude or oust
executive branch employees from the Legislature is barred by the separation of powers. But
the dual service issue may be raised as a separation-of-powers challenge to legislators
working in the executive branch, as the qualifications of legislators employed in the executive
branch are not constitutionally reserved to that branch.
68
Such a challenge might be
well-suited for a quo warranto or a declaratory relief action filed in the district court. A quo
warranto action could be used to challenge any executive branch employees invested with
sovereign power, who thereby occupy public offices within quo warranto's exclusive reach.
69
And declaratory relief, possibly coupled with a request for injunctive relief, could be sought
against other executive branch employees.
The party with the clearest standing to bring the quo warranto action would be the
attorney general,
70
and declaratory relief could be sought by someone with a "legally
protectible interest,
____________________

64
Powell, 395 U.S. at 547 (quoting Alexander Hamilton's pronouncement recited in 2 Elliot's Debates 257).

65
And even if the Legislature had crafted such a role for this court, there might be an issue as to whether the
Legislature had unconstitutionally delegated its power. See, e.g., In re McGee, 226 P.2d 1, 5 (Cal. 1951).

66
NRS 293.407(2); NRS 293.425.

67
NRS 293.427(1).

68
See, e.g., State ex rel. Spire v. Conway, 472 N.W.2d 403, 408 (Neb. 1991); State v. Evans, 735 P.2d 29,
33 (Utah 1987).

69
See St. ex rel. Mathews v. Murray, 70 Nev. 116, 120-21, 258 P.2d 982, 985 (1953) (dismissing quo
warranto proceeding brought to determine whether state senator could work as director of driver's license
division because director was not invested with some portion of the sovereign functions of government).

70
NRS 35.040.
be sought by someone with a legally protectible interest,
71
such as a person seeking the
executive branch position held by the legislator. Individual legislators would need to be
named as either quo warranto respondents or declaratory relief defendants.
72

CONCLUSION
Separation of powers ensures the proper balance between coordinate branches of
government.
73
Because the Secretary's request to exclude or oust executive branch
employees from legislative service would have us disrupt that balance by intruding upon the
Senate and Assembly's constitutionally reserved right to judge their members' qualifications,
we must deny relief. The numerous and substantial other infirmities that plague the
Secretary's writ petition only further preclude our intervention. Accordingly, we deny the
petition for a writ of mandamus.
____________
120 Nev. 473, 473 (2004) State v. Williams
THE STATE OF NEVADA, Appellant, v. JESSICA
WILLIAMS, Respondent.
No. 41109
July 22, 2004 93 P.3d 1258
Appeal from an order of the district court granting a post-conviction petition for a writ
of habeas corpus. Eighth Judicial District Court, Clark County; Michael L. Douglas, Judge.
Following affirmance of her convictions for six counts of driving with prohibited
substance in blood or urine, one count of use of controlled substance, and one count of
possession of controlled substance, 118 Nev. 536, 50 P.3d 1116 (2002), petitioner sought writ
of habeas corpus. The district court granted the petition. The State appealed. The supreme
court held that: (1) petitioner did not establish good cause for failing to raise, at trial or on
direct appeal, her claim that marijuana metabolite was not a prohibited substance, and thus,
the claim was procedurally barred; and (2) marijuana metabolite is a prohibited substance.
Reversed.
____________________

71
Knittle v. Progressive Casualty Ins. Co., 112 Nev. 8, 10, 908 P.2d 724, 725 (1996) (quotation omitted).

72
NRS 35.010(1) (stating that a quo warranto action may be brought against a person who usurps, intrudes
into, or unlawfully holds or exercises, a public office); NRS 30.130 (When declaratory relief is sought, all
persons shall be made parties who have or claim any interest which would be affected by the declaration, and no
declaration shall prejudice the rights or persons not parties to the proceeding.).

73
Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977).
James Tufteland, Chief Deputy District Attorney, and Gary R. Booker and Bruce W. Nelson,
Deputy District Attorneys, Clark County, for Appellant.
Law Office of Ellen J. Bezian and Ellen J. Bezian, Las Vegas; Law Offices of John G.
Watkins and John Glenn Watkins, Las Vegas, for Respondent.
1. Habeas Corpus.
A habeas corpus petitioner seeking to avoid the procedural bar to raising, in a habeas
proceeding, a claim that could have been raised at trial or on direct appeal has the
burden of pleading and proving specific facts to demonstrate good cause for the failure
to present the claim at trial or on direct appeal and actual prejudice from the claimed
error. NRS 34.810(1)(b).
2. Habeas Corpus.
To establish good cause for failing to present the claim at trial or on direct appeal,
so that the petitioner is not procedurally barred from raising the claim in a habeas
corpus proceeding, the petitioner must demonstrate that an impediment external to the
defense prevented her from raising her claims earlier. NRS 34.810(1)(b).
3. Habeas Corpus.
Actual prejudice from the claimed error, as element of good cause exception to
procedural bar to bringing in a habeas corpus proceeding claims that could have been
raised at trial or on direct appeal, requires a showing not merely that the error
complained of created a possibility of prejudice, but that it worked to the petitioner's
actual and substantial disadvantage, in affecting the state proceeding with error of
constitutional dimensions. NRS 34.810(1)(b).
4. Habeas Corpus.
Petitioner's assertion that she could not have raised, at trial or on direct appeal from
her conviction for six counts of driving with prohibited substance in blood or urine, her
claim that marijuana metabolite was not a prohibited substance because the claim was
indiscernible due to its highly complex, esoteric, and scientific nature did not establish
good cause for failing to raise the claim earlier, and thus, petitioner was procedurally
barred from bringing the claim in a habeas corpus proceeding. NRS 34.810(1)(b),
484.379, 484.1245.
5. Automobiles.
Marijuana metabolite is a prohibited substance, for purposes of the offense of
driving with prohibited substance in blood or urine, though marijuana metabolite is not
listed in Pharmacy Board's Schedule I or Schedule II of controlled substances. NRS
453.166, 453.176, 484.379(3)(h), 484.1245.
1

____________________

1
The Honorable Michael L. Douglas, Justice, did not participate in the decision of this matter. The
Honorable Mark Gibbons, Justice, voluntarily recused himself from participation in the decision of this matter.
OPINION
Per Curiam:
The State of Nevada appeals from the district court's grant of a post-conviction
petition for a writ of habeas corpus to respondent Jessica Williams. The State argued that
Williams' petition was procedurally barred since Williams' claim that marijuana metabolite,
carboxylic acid, is not a prohibited substance pursuant to NRS 484.379 should have been
raised at trial or on direct appeal.
We agree and conclude that the district court erroneously granted Williams' petition.
Williams did not establish good cause for failing to raise the claim at trial or on direct appeal.
Additionally, Williams was unable to establish actual prejudice because the plain language of
NRS 484.379 clearly includes marijuana metabolite as a prohibited substance.
FACTS
A grand jury indicted Jessica Williams on six counts each of driving and/or being in
actual physical control of a vehicle while under the influence of a controlled substance and/or
with a prohibited substance (marijuana and marijuana metabolite) in the blood or urine,
reckless driving, and involuntary manslaughter. In addition, Williams was indicted on one
count each of using or being under the influence of a controlled substance (marijuana and
ecstasy), possession of a controlled substance (marijuana), and possession of drug
paraphernalia.
Williams was tried, and the jury found her guilty of six counts of driving a vehicle
with a prohibited substance in her blood or urine; one count for each of the six deaths that
resulted from her conduct. Williams was also convicted of the single counts of unlawfully
using a controlled substance and possession of a controlled substance. The jury acquitted
Williams of the remaining charges.
On direct appeal, Williams raised several assignments of error regarding the validity
of her conviction and the statute under which she was convicted. Discerning no error, we
affirmed Williams' judgment of conviction.
2

Williams timely filed a post-conviction petition for writ of habeas corpus in the
district court. Williams alleged that her conviction for driving a vehicle with a prohibited
substance in her blood or urine was unconstitutional on the ground that one of the theories
presented to the jury was improper; namely, that she was driving with marijuana metabolite
in her blood.
____________________

2
Williams v. State, 118 Nev. 536, 554, 50 P.3d 1116, 1127 (2002).
driving with marijuana metabolite in her blood. Williams alleged that the theory was
improper because marijuana metabolite, carboxylic acid, is not a prohibited substance under
NRS 484.1245. She maintained that under the plain language of NRS 484.1245, in order for
carboxylic acid to be a prohibited substance, a prescription must not be issued for its use and
it must be classified as a schedule I or II controlled substance pursuant to NRS 453.166 or
453.176. Williams argued that since carboxylic acid is not listed in schedule I or II, it is not a
prohibited substance. Therefore, Williams contended that since the jury returned a general
verdict of guilty, and it was impossible to determine which theory was used as the basis of her
convictionmarijuana or marijuana metaboliteher conviction must be reversed as to those
counts.
The State responded that Williams' petition was procedurally barred and should be
dismissed pursuant to NRS 34.810. The State further maintained that even if the petition was
properly before the district court, it should still be denied because, among other reasons, both
NRS 484.1245 and 484.379 specifically provide that it is unlawful to drive with marijuana
metabolite in the blood.
The district court conducted an evidentiary hearing, agreed with Williams, and
granted her petition. The district court concluded that since carboxylic acid is not listed in
schedule I or II, it is not a prohibited substance under NRS 484.1245 or 484.379(3).
Accordingly, it was unconstitutional for the State to prosecute Williams for driving a vehicle
with marijuana metabolite in her blood or urine. Because Williams was prosecuted on
alternative theories under the prohibited substance statute based on marijuana or marijuana
metabolite, and the jury returned general verdicts of guilty, it was unknown which theory
served as the basis for her conviction. Thus, the district court ordered that Williams'
convictions for driving a vehicle with a prohibited substance in the blood or urine be
reversed. Implicit in the district court's ruling appears to have been the conclusion that
Williams had established a showing of prejudice sufficient to overcome the procedural bar.
The State timely filed a notice of appeal.
DISCUSSION
The State argues that Williams' petition was procedurally barred by NRS 34.810. The
State maintains that Williams' claim that marijuana metabolite is not a prohibited substance is
a new claim that she could have raised at trial or on direct appeal.
[Headnote 1]
NRS 34.810 establishes a procedural bar for new post-conviction claims that could
have been raised previously. NRS 34.810(1)(b) provides:
1. The court shall dismiss a petition if the court determines that:
. . . .
(b) The petitioner's conviction was the result of a trial and the grounds for the petition
could have been:
(1) Presented to the trial court;
(2) Raised in a direct appeal or a prior petition for a writ of habeas corpus or
postconviction relief; or
(3) Raised in any other proceeding that the petitioner has taken to secure relief from
his conviction and sentence
. . . .
Based on the shall dismiss language contained in subsection 1 above, we have noted that
application of the procedural bar pursuant to NRS 34.810 is mandatory.
3
However,
according to NRS 34.810(1)(b), if the district court finds both cause for the failure to present
the grounds and actual prejudice to the petitioner, the district court may consider a petition
that is otherwise procedurally barred. Under NRS 34.810(3), the petitioner has the burden of
pleading and proving specific facts to demonstrate good cause for the failure to present the
claim and actual prejudice.
In the instant case, Williams' claim that marijuana metabolite is not a prohibited
substance was not raised in the prior proceedings and is a new claim. Thus, absent a showing
of cause and prejudice, Williams' claim was procedurally barred pursuant to NRS 34.810.
[Headnotes 2, 3]
To establish good cause for failure to raise a claim in an earlier proceeding, a
petitioner must demonstrate that an impediment external to the defense prevented her from
raising her claims earlier.
4
For example, such an impediment might be demonstrated by a
showing that the factual or legal basis for a claim was not reasonably available . . . or that
some interference by officials made compliance [with the procedural rule] impracticable.
5
Actual prejudice requires a showing not merely that the errors [complained of] created a
possibility of prejudice, but that they worked to [the petitioner's] actual and substantial
disadvantage, in affecting the state proceeding with error of constitutional dimensions.
6

____________________

3
State v. Haberstroh, 119 Nev. 173, 180, 69 P.3d 676, 681 (2003).

4
Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003); Pellegrini v. State, 117 Nev. 860, 886, 34
P.3d 519, 537 (2001).

5
Pellegrini, 117 Nev. at 886-87, 34 P.3d at 537 (internal quotation marks omitted).

6
Id. at 887, 34 P.3d at 537 (internal quotation marks omitted).
[Headnote 4]
We conclude that there is no merit to Williams' allegation of good cause. Williams'
assertion that she could not have raised this claim previously because it was indiscernible due
to its highly complex, esoteric, and scientific nature does not establish cause. She presented
no specific evidence to demonstrate or explain why this issue could not have been raised
either at trial or on direct appeal.
[Headnote 5]
Additionally, we conclude that Williams failed to establish actual prejudice sufficient
to overcome the procedural bar of NRS 34.810, since marijuana metabolite is a prohibited
substance under NRS 484.379 and 484.1245. NRS 484.379 makes it unlawful for a person to
drive under the influence of a prohibited substance. NRS 484.379(3) states that [i]t is
unlawful for any person to drive or be in actual physical control of a vehicle on a highway or
on premises to which the public has access with an amount of a prohibited substance in his
blood or urine that is equal to or greater than specified amounts of ten listed substances. This
subsection then lists ten substances that are prohibited and the amount of each substance
when found in the blood or urine that constitutes a violation of the statute. Specifically, NRS
484.379(3)(h) states:
Prohibited substance Urine Blood
Nanograms Nanograms
per milliliter per
milliliter
. . .
(h) Marijuana metabolite 15 5
Thus, the plain language of NRS 484.379 clearly lists marijuana metabolite as a prohibited
substance and gives the amount in nanograms per milliliter that must be present in the blood
or urine to constitute a violation of the statute.
NRS 484.3795 is part of the same statutory scheme and provides for a penalty
enhancement for driving under the influence of a prohibited substance when death or
substantial bodily harm results. NRS 484.3795(1)(f) provides:
1. A person who:
. . .
(f) Has a prohibited substance in his blood or urine in an amount that is equal to or
greater than the amount set forth in subsection 3 of NRS 484.379,
and does any act or neglects any duty imposed by law while driving or in actual
physical control of any vehicle on or off the highways of this state, if the act or neglect
of duty proximately causes the death of, or substantial bodily harm to, a person other
than himself, is guilty of a category B felony and shall be punished by imprisonment
in the state prison for a minimum term of not less than 2 years and a maximum
term of not more than 20 years and must be further punished by a fine of not less
than $2,000 nor more than $5,000.
shall be punished by imprisonment in the state prison for a minimum term of not less
than 2 years and a maximum term of not more than 20 years and must be further
punished by a fine of not less than $2,000 nor more than $5,000.
This provision incorporates by reference NRS 484.379, which specifically lists marijuana
metabolite as a prohibited substance. Thus, the enhanced penalties of NRS 484.3795 apply to
any person who has a proscribed amount of marijuana metabolite in her blood or urine under
NRS 484.379.
Despite the fact that marijuana metabolite is a prohibited substance under these
statutory provisions, Williams claims that marijuana metabolite is not a prohibited substance.
Williams bases her argument on another statutory provision, NRS 484.1245.
NRS 484.1245 is also part of the same statutory scheme as NRS 484.379 and
484.3795, and it defines prohibited substance. NRS 484.1245 reads as follows:
Prohibited substance means any of the following substances if the person who uses
the substance has not been issued a valid prescription to use the substance and the
substance is classified in schedule I or II pursuant to NRS 453.166 or 453.176 when it
is used:
1. Amphetamine.
2. Cocaine or cocaine metabolite.
3. Heroin or heroin metabolite (morphine or 6-monoacetyl morphine).
4. Lysergic acid diethylamide.
5. Marijuana or marijuana metabolite.
6. Methamphetamine.
7. Phencyclidine.
Marijuana metabolite is listed as a prohibited substance at item five. However, according to
the statute, the listed substances become prohibited substances if also classified in schedule I
or II pursuant to NRS 453.166 or 453.176.
Pursuant to NRS 453.166 and 453.176, the Pharmacy Board is authorized to schedule
substances. Delineating the qualifications for a drug classified in schedule I, NRS 453.166
authorizes the board to place a substance in schedule I if the board finds that the substance 1.
[h]as high potential for abuse; and 2. [h]as no accepted medical use in treatment in the United
States or lacks accepted safety for use in treatment under medical supervision. NRS 453.176
provides that the board is authorized to place a substance in schedule II if it finds 1. [t]he
substance has high potential for abuse; 2. [t]he substance has accepted medical use in
treatment in the United States, or accepted medical use with severe restrictions; and 3. [t]he
abuse of the substance may lead to severe psychological or physical dependence.
cal or physical dependence. Schedule I is codified at NAC 453.510, and schedule II is
codified at NAC 453.520.
In this case, although marijuana is listed in schedule I, marijuana metabolite,
carboxylic acid, is not listed in schedule I or II. While marijuana metabolite is not listed on
either schedule, it is clear from the plain language of both NRS 484.379 and 484.1245 that
marijuana metabolite is a prohibited substance.
Additionally, even if we agreed with Williams' position that the failure to list
marijuana metabolite on the schedules creates an ambiguity as to whether marijuana
metabolite is a prohibited substance under the statutory provision, she still would be unable to
establish prejudice. NRS 484.1245, 484.379(3), and 484.3795(1)(f) are all additions to
Chapter 484, arising from Senate Bill 481 during the 70th Session of the Nevada Legislature.
The starting point for the Legislature in drafting the prohibited substance sections of NRS
484.1245 and 484.379(3) was a list of drugs contained and identified as controlled
substances in NRS 484.385(5), governing license revocation. The list of drugs contained
twenty-one substances, many of which were listed by their scientific names. Marijuana and
marijuana metabolite were notably missing from this list.
7

During a subsequent Senate Judiciary Committee meeting, it was noted that a
determination had been made to list all controlled substances that are illegal to consume, with
the specific addition of marijuana.
8
On April 9, 1999, a new list of controlled substances was
presented to the committee.
9
It was noted that if any of the substances in the list were found
in the system of a person operating a motor vehicle, it would be a per se violation.
10

Eventually the Assembly Judiciary Committee considered the bill and heard testimony
similar to that presented to the Senate.
11
The Assembly, responding to the expressed view
that having a specific standard for measuring the substances listed would be more defensible
than simply looking for detectable amounts of each substance, amended the list once again.
12
Cocaine metabolite, heroine metabolite, morphine, 6-monoacetyl morphine, and marijuana
metabolite were added to the list because there was a standard for detecting these
substances in the blood.
____________________

7
Hearing on S.B. 481 Before the Senate Comm. on Judiciary, 70th Leg. (Nev., April 2, 1999).

8

9

10
Id.

11
Hearing on S.B. 481 Before the Assembly Comm. on Judiciary, 70th Leg. (Nev., May 5, 1999).

12
Id.
detecting these substances in the blood.
13
Mecloqualone and methaqualone, which were
previously on the list, were stricken since there was no standard for detecting them in the
blood.
14

Thus, despite Williams' attempt to establish prejudice by statutory ambiguity, it is
clear that in passing the prohibited substance statute, the Legislature intended to specifically
list marijuana metabolite as a prohibited substance under NRS 484.1245 and 484.379(3), and
to incorporate it by reference under NRS 484.3795(1)(f).
Finally, because Williams fails to show any error creating actual prejudice, we need
not consider her claim on the basis that failure to do so would result in a fundamental
miscarriage of justice.
Accordingly, we conclude that Williams failed to show good cause and actual
prejudice to excuse the procedural bar to her post-conviction habeas petition or to show that a
fundamental miscarriage of justice would occur from the failure to consider her claim for
relief. Thus, we determine that the district court erred in granting Williams' post-conviction
petition.
CONCLUSION
We conclude that Williams' post-conviction petition was procedurally barred, and we
reverse the district court's order granting her petition for a writ of habeas corpus.
____________
120 Nev. 481, 481 (2004) Secretary of State v. Give Nevada A Raise
DEAN HELLER, SECRETARY OF STATE; NEVADA STATE MEDICAL
ASSOCIATION; and LAS VEGAS CHAMBER OF COMMERCE, Appellants, v.
GIVE NEVADA A RAISE, INC.; DANNY THOMPSON; PEOPLE FOR A
BETTER NEVADA, a Nevada Non-Profit Corporation; and CARMEN CASHMAN,
Respondents.
No. 43690
September 2, 2004 96 P.3d 732
Appeal from a district court judgment requiring the Nevada Secretary of State to
qualify previously discounted signatures on two ballot-initiative petitions. First Judicial
District Court, Carson City; William A. Maddox, Judge.
Sponsors of ballot initiatives sought declaratory, injunctive, and writ relief against the
Secretary of State, regarding invalidation of signatures on initiative petitions for lack of
registered voter affidavit.
____________________

13
Hearing on S.B. 481 Before the Assembly Comm. on Judiciary, 70th Leg. (Nev., May 12, 1999).

14
Id.
davit. The district court declared the affidavit requirement unconstitutional and ordered the
Secretary to qualify the signatures. Secretary appealed. The supreme court held that: (1) state
constitutional requirement of registered voter affidavit was subject to strict scrutiny review,
and (2) state constitutional requirement of registered voter affidavit violated First
Amendment free speech guarantee.
Affirmed.
Brian Sandoval, Attorney General, Jeff E. Parker, Solicitor General, and Victoria
Thimmesch Oldenburg, Senior Deputy Attorney General, Carson City, for Appellant
Secretary of State Dean Heller.
McMullen & Cain and E. Joe Cain and Samuel P. McMullen, Henderson, for
Appellant Las Vegas Chamber of Commerce.
Michael A. Rosenauer, Reno, for Appellant Nevada State Medical Association.
Crowell Susich Owen & Tackes and Robert L. Crowell, Carson City, for Respondents
People for a Better Nevada and Carmen Cashman.
McCracken Stemerman Bowen & Holsberry and Andrew J. Kahn, Richard G.
McCracken, and Eric B. Myers, Las Vegas, for Respondents Give Nevada A Raise, Inc., and
Danny Thompson.
When district court issues declaratory and permanent injunctive relief in the absence
of any factual dispute, review is de novo.
The First Amendment's protection of speech includes the circulation of initiative
petitions. U.S. Const. amend. 1.
State constitutional requirement that petitions for ballot initiatives be accompanied by
affidavit of registered voter attesting that signatures were genuine and that each signer
was registered voter in county of his residence constituted a severe burden on core
political speech, which subjected provision to strict scrutiny review. Const. art. 19,
3(1); U.S. Const. amend. 1.
4. Statutes.
A state, although it has considerable leeway to protect the integrity and reliability of
the ballot-initiative process, may not require circulators to be registered voters. U.S.
Const. amend. 1.
Regulation of constitutionally protected speech is considered narrowly tailored only if
it burdens no more speech than is necessary to achieve a compelling interest. U.S.
Const. amend. 1.
6. Constitutional Law; Statutes.
State constitutional requirement that petitions for ballot initiatives be accompanied by
affidavit of registered voter attesting that signatures were genuine and that each signer
was registered voter in county of his residence, which imposed severe burden on core
political speech, was not narrowly tailored to further State's compelling interest in
ensuring the integrity and reliability of initiative process and thus violated First
Amendment's free speech guarantee. Const. art. 19, 3(1); U.S. Const. amend. 1.
OPINION
Per Curiam:
Article 19, Section 3(1) of the Nevada Constitution requires, among other things, that
each document of a ballot-initiative petition be accompanied by an affidavit, executed under
oath by a person who signed the document, attesting that the document's signatures are
genuine and that the signatories were, at the time of signing, registered voters in the county in
which they reside. Respondents submitted documents comprising two initiative petitions to
the Nevada Secretary of State for inclusion on the November 2004 general election ballot.
The Secretary then discounted thousands of signatures in the documents for failure to comply
with Section 3(1) and disqualified the initiatives from the ballot. Consequently, respondents
sought relief in the district court, which declared Section 3(1)'s affidavit requirements
unconstitutional under the First Amendment to the United States Constitution, and ordered
the Secretary to qualify the previously disqualified signatures and place the initiatives on the
ballot. We affirm because Section 3(1)'s requirement that an initiative-petition document be
accompanied by a signatory's affidavit impermissibly burdens political speech by either
compelling the use of only registered voters as circulators or compelling unregistered
circulators to be accompanied by a registered voter who is willing to sign a petition booklet
and execute an affidavit under oath authenticating that booklet's signatures.
BACKGROUND
In full, Article 19, Section 3(1) of the Nevada Constitution reads, with emphasis
added:
Each referendum petition and initiative petition shall include the full text of the
measure proposed. Each signer shall affix thereto his or her signature, residence address
and the name of the county in which he or she is a registered voter.
of the county in which he or she is a registered voter. The petition may consist of more
than one document, but each document shall have affixed thereto an affidavit made by
one of the signers of such document to the effect that all of the signatures are genuine
and that each individual who signed such document was at the time of signing a
registered voter in the county of his or her residence. The affidavit shall be executed
before a person authorized by law to administer oaths in the State of Nevada.
1

In 1966, this court interpreted Section 3(1) to mean that an initiative-petition document, such
as a signature booklet, must be excluded if it is not authenticated by a signer's affidavit.
2
Thus, if a person circulating an initiative petition wishes to authenticate a booklet's
signatures, he or she must sign the booklet and execute an affidavit under oath stating that all
signatures are genuine and that all signatories were, at the time of signing, registered voters.
But therein lies the problem at the heart of this case: The Nevada Constitution permits only
registered voters to sign an initiative petition;
3
consequently, in order for a circulator to
authenticate signatures, he or she must be a registered voter. In 1999, however, the United
States Supreme Court held in Buckley v. American Constitutional Law Foundation, Inc.
4
that the First Amendment prohibits states from requiring petition circulators to be registered
voters, because such a requirement impermissibly burdens political speech by reducing the
pool of potential circulators. Decisions of the United States Supreme Court are binding on
Nevada courts under Article 1, Section 2 of the Nevada Constitution.
In an attempt to reconcile Section 3(1) and Buckley, the Secretary requires by
regulations that each signature booklet be accompanied by a signer's affidavit and a
circulator's affidavit.
5
Under the Secretary's official interpretation of the regulations, if the
circulator is not a registered voter, he or she must have one of the persons signing the
booklet execute a Section 3{1) affidavit, attesting that the booklet's signatures are
genuine and that each signer was a registered voter in the county of his or her residence
at the time of signing.
____________________

1
This version of Section 3(1) was proposed and passed by the 1960 and 1961 Legislatures and approved and
ratified by voters in the 1962 general election. The need for an accompanying affidavit originated in the 1958
version as part of an initiative-originated amendment intended to make the requirements to commence and carry
through an initiative petition more strict. Propositions to be Voted Upon in State of Nevada at General
Election, November 4, 1958, at 6.

2
Lundberg v. Koontz, 82 Nev. 360, 418 P.2d 808 (1966); see also Stumpf v. Lau, 108 Nev. 826, 839 P.2d
120 (1992) (observing that a Section 3(1) affidavit may only be executed by a registered voter who signed the
petition document).

3
Nev. Const. art. 19, 2(2); id. 3(1).

4
525 U.S. 182, 194 (1999).

5
NAC 293.182; NAC 295.020.
the persons signing the booklet execute a Section 3(1) affidavit, attesting that the booklet's
signatures are genuine and that each signer was a registered voter in the county of his or her
residence at the time of signing.
6
The unregistered circulator must then execute a circulator's
affidavit, also attesting to genuineness and residency, and adding the circulator's address, that
the circulator is eighteen years of age or older and personally circulated the document, and
that all signatures were affixed in the circulator's presence. To alleviate the difficulty inherent
in an unregistered circulator having to retain a different registered voter throughout the course
of each booklet's signing, the Secretary's interpretation provides that a booklet signer may
sign multiple booklets (on the first signature line) and accompanying affidavits, and need not
be present as others sign the booklets, so long as the affiant's genuineness and residency
beliefs are based on the uncontradicted assertion of the circulator.
7
With the
initiative-petition framework explained, the factual background of this case follows.
Respondents Give Nevada A Raise, Inc., and Danny Thompson (collectively, GNR)
sponsored a ballot initiative calling for an increase in Nevada's minimum wage. Although
GNR gathered more than the 51,337 signatures needed to ensure placement on the November
2004 general election ballot, the Secretary discounted thousands of signatures in booklets that
were not each accompanied by a valid affidavit signed by a registered voter who had signed
that particular [booklet]. Consequently, GNR lacked sufficient signatures to qualify its ballot
initiative. Respondents People for a Better Nevada and Carmen Cashman (collectively, PBN)
also lost necessary qualifying signatures for their Stop Frivolous Lawsuits and Protect Your
Legal Rights Act ballot initiative due to omitted signers' affidavits.
On July 12, 2004, GNR filed a complaint for declaratory, injunctive and writ relief
against the Secretary, seeking to compel the minimum-wage initiative's placement on the
ballot. GNR alleged that, although its petition circulators had not signed the petition, they had
signed affidavits authenticating booklet signatures, and that requiring affidavits executed by
booklet signers violates the First Amendment. PBN intervened against the Secretary, stating
that it had lost signatures under the same circumstances as GNR, and that it was adopting
GNR's complaint. The Nevada State Medical Association and the Las Vegas Chamber of
Commerce also intervened, identifying an interest in defeating PBN's initiative petition.
____________________

6
Interpretation of the Secretary of State #00-01 (Jan. 24, 2000).

7
The Secretary's interpretation directly conflicts with NRS 295.150(2) when the Section 3(1) affidavit is for
a referendum petition on a legislative act pertaining to a particular county. In that instance, the statute requires
that the affidavit be based on information and belief, and the signatures must have been executed in the
affiant's presence.
also intervened, identifying an interest in defeating PBN's initiative petition.
[Headnote 1]
Following a bench trial, the district court concluded that Section 3(1)'s affidavit
requirements could withstand neither Buckley's strict scrutiny nor a lesser standard of
review. Consequently, the district court declared the Section 3(1) affidavit requirements
unconstitutional, and ordered the Secretary to qualify the signatures he had stricken from
GNR's and PBN's initiative petitions and to place the initiatives on the ballot. The Secretary,
Medical Association and Chamber of Commerce appealed.
8

DISCUSSION
I. Buckley v. American Constitutional Law Foundation, Inc.
[Headnote 2]
The First Amendment to the United States Constitution protects speech, which, as
observed in Buckley, includes the circulation of initiative petitions.
9
The parties, however,
dispute Buckley's applicability to the instant case. In Buckley, the Supreme Court considered
the constitutionality of a state statute that, among other things, required initiative-petition
circulators to be registered voters.
10
In deeming this requirement unconstitutional, the
Supreme Court noted that petition circulation is core political speech, because it involves
interactive communication concerning political change,
11
and that First Amendment
protection for such interaction . . . is at its zenith.
12
The Court rejected the state's argument
that the registration requirement only slightly limited speech because it is exceptionally easy
to register, reasoning that ease of registration does not lift the burden on speech at petition
circulation time, and that circulators may wish to remain unregistered as a form of
"political thought and expression.
____________________

8
As the district court issued declaratory and permanent injunctive relief in the absence of any factual dispute,
we review the district court's judgment de novo. See University System v. DR Partners, 117 Nev. 195, 18 P.3d
1042 (2001) (stating that, in the absence of disputed facts, preliminary and permanent injunctions are reviewed
de novo); County of Clark v. Upchurch, 114 Nev. 749, 961 P.2d 754 (1998) (observing that a district court's
decision to render a determination in a declaratory relief action is reviewed for abuse of discretion, but that a
district court's issuance of declaratory relief based on statutory construction is reviewed de novo).

9
525 U.S. at 186-87. The First Amendment applies to the states through the Fourteenth Amendment.
Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 340 n.1 (4th Cir. 2000).

10
The registration requirement originated from a voter-approved amendment to the Colorado Constitution.
Buckley, 525 U.S. at 190.

11
Id. at 186 (quotation marks omitted).

12
and that circulators may wish to remain unregistered as a form of political thought and
expression.
13
Additionally, the Court observed that the statute's requirement of a circulator's
affidavit was responsive to the state's concern in policing lawbreakers among petition
circulators.
14
Finally, the Court stated that it was applying traditional strict scrutiny
analysis: state regulations impos[ing] severe burdens on speech . . . [must] be narrowly
tailored to serve a compelling state interest.
15
Accordingly, the Court concluded that,
notwithstanding a state's considerable leeway in protect[ing] the integrity and reliability of
the initiative process,
16
the registration requirement violated the First Amendment by
limiting the number of voices available to convey the initiative proponents' message, thereby
reducing the size of the reachable audience without furthering the state's interests in
administrative efficiency, fraud detection and informing voters.
17

Consequently, if Section 3(1) severely burdens political speech, we apply strict
scrutiny; otherwise, less exacting review is warranted and important regulatory interests
will usually be enough to justify reasonable, nondiscriminatory restrictions.
18

II. Section 3(1) severely burdens political speech
[Headnotes 3, 4]
We begin our Section 3(1) analysis cognizant that a state, although it has
considerable leeway to protect the integrity and reliability of the initiative process,
19
may
not, after Buckley, require circulators to be registered voters. We also recognize that Section
3(1), on its face, contains no such direct requirement. But the reality of Section 3(1)'s
operation tells a different story. In Nevada, registered voters may circulate initiative petitions
and provide the necessary Section 3(1) affidavits. Unregistered persons may also circulate
petitions, but to obtain the Section 3(1) affidavits, they must (1) convince a registered voter
who signed a particular petition booklet to execute an affidavit, attesting that the booklet's
signatures are genuine and that the signatories were, at the time of signing, registered voters
in their county of residence; and (2) arrange for execution to take place before a notary. These
extra steps, required in the Section 3{1) process for unregistered circulators, impose a
burden on political speech that is no less severe than the direct registration requirement
invalidated in Buckley.
____________________

13
Id. at 195.

14
Id. at 196.

15
Id. at 192 n.12 (quotation marks omitted) (alternation in original).

16
Id. at 191.

17
Id. at 194-95.

18
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (quotation marks omitted).

19
Buckley, 525 U.S. at 191.
steps, required in the Section 3(1) process for unregistered circulators, impose a burden on
political speech that is no less severe than the direct registration requirement invalidated in
Buckley. Specifically, if the Section 3(1) affidavit is to have any value at all as a means of
ensuring the integrity and reliability of the circulation process, it must be executed by
someone who participated in gathering the signatures. Thus, unregistered circulators must be
accompanied at all times by a registered voter who is willing to sign the petition booklet and
execute a Section 3(1) affidavit under oath for that booklet, attesting that the signatures are
genuine and that the signatories were, at the time of signing, registered voters in the county of
their residence.
Under Section 3(1), then, circulation may be accomplished either by a registered voter
or a two-person team composed of an unregistered person and a registered voter. In either
instance, Section 3(1) mandates the use of circulators who are registered voters and who are
willing to sign the petition. If unregistered circulators are unable to locate a registered-voter
companion, their only alternative, if they wish to participate in the circulation process, is to
register to vote. Requiring a circulator to be a registered voter is expressly precluded by
Buckley, and requiring an unregistered circulator to be accompanied by a registered voter fails
under Buckley's reasoned disapproval of circulation restrictions that significantly inhibit
communication with voters about proposed political change.
20
Requiring two persons to
circulate each booklet of an initiative petition cuts in half the number of voices available to
convey the initiative-petition's political message and reduces the size of the reachable
audience.
21
This point is buttressed by evidence offered in the district court that
initiative-petition sponsors are unlikely to use circulators who need a companion to
authenticate signatures.
At least one other court has found a severe burden in a two-person circulation-team
requirement. In Morrill v. Weaver,
22
the federal district court interpreted a Pennsylvania
statute that required signature booklets for a candidate's nomination to be authenticated by the
affidavit of a qualified elector who resided in the electoral district in which signatures were
being gathered. The district court ruled that if qualified elector were interpreted to mean
registered voter, then both unregistered circulators and registered circulators from other
districts would be unable to authenticate booklets unless accompanied by a registered voter
from the proper electoral district.
____________________

20
525 U.S. at 192.

21
See id. at 194-95.

22
224 F. Supp. 2d 882, 886, 900 (E.D. Pa. 2002).
the proper electoral district.
23
The district court concluded that a resident-companion
requirement would constitute a severe burden on speech that was not necessary to achieve any
compelling state interest. Accordingly, the district court declared that qualified electors
need not be registered voters and invalidated the residency restriction.
24

As to Section 3(1), we similarly conclude that a team-circulation option is severely
burdensome. But unlike the statute in Morrill, Section 3(1)'s affidavit requirement is not
capable of a constitutional construction.
25
We note, too, that the severity of Section 3(1)'s
burden on speech is exacerbated by NRS 295.055(2), which states, Each document of the
petition must bear the name of a county, and only registered voters of that county may sign
the document. As Section 3(1) requires an affiant to be a registered voter in the county of his
or her residence, the tandem effect of Section 3(1) and NRS 295.055(2) is to permit only
voters registered in the county of circulation to serve as Section 3(1) affiants. Thus, the
registered-voter member of a two-person circulation team must be from the county of
circulation, not merely from anywhere in Nevada. Even a registered circulator needs a
companion to provide a Section 3(1) affidavit if the circulator is gathering signatures in a
county in which she does not reside. Consequently, we conclude that Section 3(1) severely
burdens political speech, and that the burden is exacerbated by NRS 295.055{2).
____________________

23
Id. at 894, 898.

24
Id. at 900, 902; accord Chandler v. City of Arvada, Colorado, 292 F.3d 1236 (10th Cir. 2002) (declaring
unconstitutional a city ordinance limiting initiative, referendum and recall petition circulation to city residents);
Molinari v. Powers, 82 F. Supp. 2d 57, 75-76 (E.D.N.Y. 2000) (invalidating a New York statute that allowed a
circulator to witness signatures only in the political subdivision of his or her residence, unless the circulator was
a notary public or commissioner of deeds), cited approvingly in Lerman v. Board of Elections in City of New
York, 232 F.3d 135 (2d Cir. 2000); KZPZ Broadcasting v. Black Canyon Citizens, 13 P.3d 772 (Ariz. Ct. App.
2000) (invalidating a local residency restriction on referendum petition circulation).

25
In addition to declaring Section 3(1)'s affidavit requirements unconstitutional, the district court offered a
construction that would purportedly avoid any conflict with the First Amendment. In relevant part, Section 3(1)
states:
The petition may consist of more than one document, but each document shall have affixed thereto an
affidavit made by one of the signers of such document . . . .
(Emphasis added.) The district court proposed construing signers of such document' to include someone who
has signed one of two affidavits at the end of the petition rather than having signed the body of the petition. But
this construction poses a circular exercise, as it requires each document to be accompanied by an affidavit made
by one of the signers of such [affidavit]. Further, such document clearly refers to documents that comprise the
petition, and not to affidavit[s].
political speech, and that the burden is exacerbated by NRS 295.055(2).
Although we fully recognize our duty to construe the Nevada Constitution in a manner
that will preserve that venerable document's text,
26
the Secretary's official interpretation does
little to alleviate the burden on speech. When that interpretation is inserted into the mix of
Section 3(1) and NRS 295.055(2), a circulator who is not registered to vote need not be
accompanied by a registered voter, so long as the circulator can locate a registered voter from
the county of circulation who is willing to sign all of the circulator's booklets and provide
authenticating affidavits based solely on the circulator's representations of genuineness and
residency. Even if, as appellants urge, we could somehow interpret Section 3(1) as permitting
an affidavit only on information and belief, based solely on the circulator's representations,
such an affidavit would be meaningless and contrary to the reason for Section 3(1)'s
amendment in 1958, which was to make the requirements to commence and carry through an
initiative petition more strict.
27
Finally, we note that requiring a circulator to convince a
booklet signer, who may be a complete stranger, uncertain about the initiative-petition
circulation process, with absolutely no familiarity with the booklet's signatories, to execute an
authenticating affidavit under oath imposes a severe burden in itself.
We therefore apply strict scrutiny: Section 3(1) must be narrowly tailored to serve a
compelling state interest.
III. Section 3(1) is not narrowly tailored
[Headnote 5]
Appellants identify, as compelling, Nevada's interests in ensuring that the initiative
signature gathering process is fair, honest, reliable and verifiable. For purposes of this
appeal, we will assume that policing the integrity of the initiative-petition process is a
compelling state interest.
28
Consequently, our inquiry is limited to determining whether
Section 3(1) is narrowly tailored. Regulation of constitutionally protected speech is
considered narrowly tailored only if it burdens no more speech than is necessary to achieve a
compelling interest.
29
Thus, we must consider the alternatives to Section 3(1)'s burdens and
the degree to which those burdens achieve, serve or advance the State's interest.
30

____________________

26
State ex rel. Herr v. Laxalt, 84 Nev. 382, 441 P.2d 687 (1968).

27
Propositions to be Voted Upon in State of Nevada at General Election, November 4, 1958, at 6. See
generally supra note 1.

28
Chandler, 292 F.3d at 1241.

29
Krislov v. Rednour, 226 F.3d 851, 863 (7th Cir. 2000).

30
See Burk v. Augusta-Richmond County, 365 F.3d 1247 (11th Cir. 2004).
[Headnote 6]
In Buckley, the Supreme Court noted that Colorado had measures in place that would
have protected the integrity of the initiative petition process without requiring circulators to
be registered voters. For instance, Colorado required a circulator to submit an affidavit
reciting the circulator's address, criminalized the forging of initiative petitions, voided
initiative-petition signatures if the circulator violated circulation laws, and required initiative
sponsors to disclose who pays circulators and how much.
31
Nevada has implemented many
of these measures,
32
including the circulator's affidavit,
33
which reveals more identifying
information than a Section 3(1) affidavit.
34
Thus, less restrictive alternatives exist to ensure
the petition process's integrity than requiring a Section 3(1) affidavit.
As to the degree to which a signer's affidavit advances the State's interest in guarding
against corruption of the initiative process, appellants do not address the fact that the person
most competent to attest to the genuineness of signatures and the residency of signatories may
be an unregistered circulator (or a registered, nonresident circulator), who cannot sign the
Section 3(1) affidavit. And even if we were to follow appellants' suggestion that Section 3(1)
be somehow interpreted to allow a Section 3(1) affiant to rely on the uncontradicted
assertion of the circulator as to genuineness and residency, the value of an affidavit not
based on personal knowledge is, as noted above, highly suspect and directly contravenes the
voters' desire in 1958 to make the requirements to commence and carry through an initiative
petition more strict. Thus, based upon the record before us, Section 3(1)'s requirement that
each petition booklet be accompanied by the affidavit of a registered voter who signed that
booklet does not tangibly advance the State's interests in ensuring the integrity and reliability
of the initiative process and therefore is not narrowly tailored.
CONCLUSION
Article 19, Section 3(1)'s requirement that an initiative-petition document be
accompanied by a signatory's affidavit severely burdens speech by either compelling the use
of only registered voters as circulators or compelling unregistered circulators to be
accompanied by a registered voter who is willing to sign a petition booklet and execute an
affidavit under oath authenticating that booklet's signatures.
____________________

31
Buckley, 525 U.S. at 196, 205.

32
See, e.g., NRS 205.125 (criminalizing the forgery of signatures on referendum and initiative petitions);
NRS 294A.150 (requiring initiative sponsors to report contributions over $100); NRS 294A.220 (requiring
initiative sponsors to report expenditures over $100).

33
The parties have not challenged and we do not comment on the validity of the Secretary's regulations that
require a circulator's affidavit.

34
Compare Nev. Const. art. 19, 3(1) (requiring a signer's affidavit attesting to genuineness of signatures
and residency of signatories), with NAC 293.182 (requiring a circulator's affidavit revealing the circulator's
address and recitations concerning genuineness of signatures, residency of signatories, the
dens speech by either compelling the use of only registered voters as circulators or
compelling unregistered circulators to be accompanied by a registered voter who is willing to
sign a petition booklet and execute an affidavit under oath authenticating that booklet's
signatures. The burden is neither alleviated by the Secretary's official interpretation nor
warranted by the State's interest in ensuring the integrity and reliability of the
initiative-petition process given that (1) the State has other measures in place to guard the
process from corruption, and (2) the State's interests are not tangibly advanced by the Section
3(1) affidavit. Consequently, Section 3(1) does not survive strict constitutional scrutiny.
35

Accordingly, we affirm the district court's judgment ordering the Secretary to qualify
previously disqualified signatures and to place GNR's and PBN's initiatives on the ballot.
Recognizing that political speech is the most vital ingredient to a healthy and evolving
democracy, and following the dictates of the United States Supreme Court in Buckley v.
American Constitutional Law Foundation, Inc.,
1
I agree with the majority that Nevada's
initiative petition verification requirements, in their practical application, run afoul of the
First Amendment.
I write separately to address statements in the record below apparently ridiculing the
administrative measures taken by the Secretary of State to comply with the exacting dictates
of Buckley. To me, the severity of the criticism was not justified. It was incumbent upon the
Secretary to attempt to effect compliance with a very strict ruling handed down by the United
States Supreme Court. It was also incumbent upon him to test the validity of these measures
before this court. Given the restraints imposed by the Buckley decision, and given the express
language of Article 19, Section 3(1) of the Nevada Constititution, the task of effecting
compliance was fraught with considerable difficulty. In my view, the ingenuity and vigor of
the legal arguments offered in support of and in opposition to these measures demonstrate
that the measures were neither unintelligent nor unwise. They simply fell short of federal
constitutional muster.
____________________
circulator's age of majority, and fact of personal circulation), and NAC 295.020(2)(b) (same).

35
We note that local residency requirements, like the one found in NRS 295.055(2), are constitutionally
infirm. See supra note 24.

1
525 U.S. 182, 194 (1999).
____________
120 Nev. 493, 493 (2004) Rickard v. Montgomery Ward & Co.
DAVID JAMES RICKARD, Appellant, v. MONTGOMERY WARD & CO.,
INCORPORATED, dba MONTGOMERY WARD, Respondent.
No. 38122
September 2, 2004 96 P.3d 743
Appeal from a final order of the district court dismissing appellant's case. Eighth
Judicial District Court, Clark County; Kathy A. Hardcastle, Judge.
Customer sued store and others alleging assault and battery, false arrest and false
imprisonment, intentional infliction of emotional distress, breach of duty to protect,
negligence, negligence regarding employees and agents, and negligent infliction of emotional
distress. Store filed chapter 11 bankruptcy proceeding that stayed suit. After bankruptcy court
granted customer's motion for relief from stay, customer filed motion for trial setting. Store
moved for dismissal on grounds trial was not commenced within five-year prescriptive
period. The district court dismissed action and customer appealed. The supreme court held
that: (1) bankruptcy automatic stay tolled five-year prescriptive period, and (2) customer had
reasonable period to bring action to trial.
Frederick S. Geihs, Las Vegas, for Appellant.
Gugino Law Firm and Monte Hall, Las Vegas, for Respondent.
The language of rule setting five-year period to bring action to trial is mandatory, and
the district court must dismiss the action if it is not brought to trial within five years
after the plaintiff has filed his action, unless the parties agree to extend the five-year
period. NRCP 41(e).
2. Bankruptcy.
Five-year prescriptive period to bring customer's false arrest suit against store to trial,
after initial filing, was tolled by automatic stay provision of bankruptcy code, when
store filed chapter 11 bankruptcy, even though automatic stay did not, in itself, stop the
running of the limitations period; there was no reason to distinguish between court
ordered stay, which tolled prescriptive period, and automatic stay in bankruptcy. 11
U.S.C. 362(a); NRCP 41(e).
3. Bankruptcy.
Customer had reasonable period to bring false arrest suit against store to trial after
obtaining relief from automatic stay imposed by store's filing of chapter 11 bankruptcy,
even though automatic stay provision only allowed thirty days after termination of stay
to take some action under tolled limitations period. Automatic stay tolled five-year
prescriptive period for customer to bring false arrest action to trial after filing case, and
thirty-day period to bring case to trial was unworkable given crowded court calendars.
11 U.S.C. 108(c)(2), 362(a); NRCP 41(e).
OPINION
Per Curiam:
This appeal concerns whether the five-year prescriptive period under NRCP 41(e) is
tolled for the period that a stay is imposed by a debtor's bankruptcy. Appellant David Rickard
filed suit against respondent Montgomery Ward & Co., Inc., and several other parties.
Thereafter, Ward filed a chapter 11 bankruptcy proceeding, which stayed Rickard's action.
Eventually, Rickard obtained relief from the stay and filed a motion for trial setting with the
district court. Before the trial date, Ward and the other defendants filed a motion to dismiss
for Rickard's failure to bring the matter to trial within five years.
The district court ultimately dismissed the matter under NRCP 41(e), which requires
involuntary dismissal of any civil case not brought to trial within five years following its
commencement. Rickard appeals on the primary theory that, pursuant to 11 U.S.C. 108(c),
the five-year prescriptive period in NRCP 41(e) was tolled for the time period during which
Ward was under the protection of the bankruptcy court. In the alternative, Rickard argues that
principles of equity require tolling in this case based on misrepresentations made by Ward.
We conclude that 11 U.S.C. 108(c) in itself does not toll the five-year period during
the pendency of a bankruptcy proceeding. However, discerning no reason to distinguish
between a court ordered stay and the automatic stay imposed by federal bankruptcy law, we
now extend our rule under Boren v. City of North Las Vegas
1
and conclude that a 362(a)
automatic stay tolls NRCP 41(e)'s five-year prescriptive period.
FACTS
On January 23, 1993, an incident involving Rickard occurred at Ward's store located
in Las Vegas, Nevada. On April 20, 1993, Rickard filed a complaint in Clark County District
Court against Ward and other defendants, alleging claims of relief for assault and battery,
false arrest and false imprisonment, intentional infliction of emotional distress, breach of duty
to protect, negligence, negligence regarding employees and agents, and negligent infliction of
emotional distress.
On July 7, 1997, Ward filed a chapter 11 bankruptcy proceeding with the United
States Bankruptcy Court in the District of Delaware. In accordance with federal bankruptcy
law, Rickard's action in the Nevada district court was stayed at that time.
____________________

1
98 Nev. 5, 638 P.2d 404 (1982).
action in the Nevada district court was stayed at that time.
2
On August 25, 1998, Rickard
filed a motion for relief from stay, requesting that he be allowed to continue prosecuting his
pre-petition action filed against Ward. The bankruptcy court granted Rickard's motion by
stipulated order entered on November 11, 1998. On January 27, 1999, Rickard notified Ward
that he had received relief from the stay through receipt of a copy of the stipulated order,
which Rickard also filed with the district court.
On July 6, 1999, Rickard filed a motion for a trial setting with the district court. After
a hearing on Rickard's unopposed motion, the district court entered its order setting a jury
trial in Rickard's case for August 3, 1999.
On July 23, 1999, Ward and the other defendants filed a motion to dismiss based on
Rickard's failure to bring the matter to trial within five years as required by NRCP 41(e).
Following hearings on the motion, the district court indicated that it was going to deny the
motion to dismiss as to Ward. Ward's counsel then requested that the proceedings be stayed
to allow Ward to bring an appeal before this court, even though the court had not yet entered
a final judgment. The district court ultimately granted the stay and ordered Ward's counsel to
prepare an order. The parties represent that on April 28, 2000, the district court entered its
order on defendants' motion to dismiss.
3

In addition to miscellaneous provisions relating to all other defendants, the order
stated that the motion to dismiss as to Ward was denied since the court found the thirty-day
period prescribed by 11 U.S.C. 108(c)(2) to be unworkable. Additionally, the order
concluded that pursuant to NRAP 8, the district court's order setting Rickard's case for trial on
August 3, 1999, was stayed pending appeal of the current order.
4
Despite Ward's
representation of its intent to appeal, or in the alternative to seek a writ of mandamus, Ward
never took any further action.
On January 11, 2001, the district court noticed Rickard's case for a status check
regarding the trial setting and reassigned the case to a new department. At the status check on
January 23, 2001, after failing to understand why the five-year rule had not run on Ward as it
had on the other defendants, the newly assigned district court judge requested that the
parties file points and authorities indicating all significant dates and explaining why the
five-year rule had not run.
____________________

2
See 11 U.S.C. 362(a) (2000) (imposing automatic stay of any action to collect on liability of debtor).

3
The record indicates that an order was previously entered on October 6, 1999. This order stated that the
motion to dismiss as to Ward was denied, but was granted as to the other defendants.

4
We note that only this court can enter a stay under NRAP 8, in the context of an appeal or original writ
petition. See, e.g., NRAP 8; Fritz Hansen A/S v. Dist. Ct., 116 Nev. 650, 657, 6 P.3d 982, 986 (2000).
court judge requested that the parties file points and authorities indicating all significant dates
and explaining why the five-year rule had not run. The parties complied.
On April 19, 2001, the district court heard argument regarding dismissal of Rickard's
action pursuant to NRCP 41(e) for failure to bring the matter to trial within five years. The
district court ultimately concluded that the five-year period had run as to Ward and dismissed
Rickard's case.
DISCUSSION
[Headnote 1]
NRCP 41(e), governing dismissal of actions, provides, in pertinent part, as follows:
Want of Prosecution. . . . Any action heretofore or hereafter commenced shall be
dismissed by the court in which the same shall have been commenced or to which it
may be transferred on motion of any party, or on the court's own motion, after due
notice to the parties, unless such action is brought to trial within five years after the
plaintiff has filed his action, except where the parties have stipulated in writing that the
time may be extended.
The purpose of the five-year rule is to compel expeditious determinations of legitimate
claims.
5
The language of NRCP 41(e) is mandatory.
6
The district court must dismiss the
action if it is not brought to trial within five years after the plaintiff has filed his action, unless
the parties agree to extend the five-year period.
7

In the instant case, Rickard filed his complaint on April 20, 1993. Therefore, Rickard
was required to bring his case to trial on or before April 20, 1998. On July 15, 1999, the
district court set the matter for trial on August 3, 1999. The trial date fell one year, three
months, and fourteen days outside the NRCP 41(e) five-year prescriptive period.
Rickard advances two arguments in defense of his failure to bring the case to trial
within the five-year period: (1) the five-year prescriptive period was tolled while Ward was
under the protection of the bankruptcy court's automatic stay; and (2) equitable principles
require the tolling of the five-year period.
Rickard first argues that the five-year period under NRCP 41(e) was tolled by 11
U.S.C. 108(c) during the time that Ward was under the jurisdiction of the bankruptcy court.
Rickard's argument is predicated on his reading of 10S{c){1) of the Bankruptcy Code,
____________________

5
Baker v. Noback, 112 Nev. 1106, 1110, 922 P.2d 1201, 1203 (1996).

6
Morgan v. Las Vegas Sands, Inc., 118 Nev. 315, 320, 43 P.3d 1036, 1039 (2002).

7
NRCP 41(e); see also Morgan, 118 Nev. at 320, 43 P.3d at 1039.
is predicated on his reading of 108(c)(1) of the Bankruptcy Code,
8
which he believes
provides for tolling of externally imposed statutes of limitation for the period that a stay is
imposed by a debtor's bankruptcy. We disagree.
Section 108(c) of the Bankruptcy Code is the exclusive provision of the Code that
deals with the effect of a bankruptcy filing on the running of statutes of limitation. Congress
enacted 108(c) to prevent debtors who file bankruptcy in order to let the statute of
limitations run, from using the expiration of the limitations period as a complete defense.
9
Section 108(c) states, in pertinent part:
[I]f applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or
an agreement fixes a period for commencing or continuing a civil action in a court other
than a bankruptcy court on a claim against the debtor, . . . and such period has not
expired before the date of the filing of the petition, then such period does not expire
until the later of
(1) the end of such period, including any suspension of such period occurring on or
after the commencement of the case; or
(2) 30 days after notice of the termination or expiration of the stay . . . .
[Headnote 2]
By its terms, 108(c) does not toll any applicable limitations period, such as the
prescriptive five-year period in NRCP 41(e).
10
The phrase including any suspension of such
period found in 108(c)(1) does not in itself stop the running of a limitations period.
11
[R]ather, this language merely incorporates suspensions of deadlines that are expressly
provided in other federal or state statutes.
12
Nevada has no such tolling provisions under its
state statutes, and NRCP 41(e) is silent . . . as to whether any time periods are excluded from
the calculation of the five-year period.
13
However, in Boren v. City of North Las Vegas,
14
we considered whether a court ordered stay tolled NRCP 41(e)'s five-year prescriptive period.
We held that [a]ny period during which the parties are prevented from bringing an action to
trial by reason of a stay order shall not be computed in determining the five-year period of
Rule 41{e).
____________________

8
Title 11 of the United States Code is commonly referred to as the Bankruptcy Code; thus all citations to a
section of the Bankruptcy Code refer to Title 11.

9
In re Morton, 866 F.2d 561, 566 (2d Cir. 1989).

10
Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1073 (2d Cir. 1993).

11
Id.

12
Id.

13
Morgan, 118 Nev. at 320, 43 P.3d at 1039.

14
98 Nev. 5, 6, 638 P.2d 404, 405 (1982).
a stay order shall not be computed in determining the five-year period of Rule 41(e).
15
We
do not discern any reason for distinguishing between the court ordered stay in Boren and the
automatic stay imposed by federal bankruptcy law, pursuant to 11 U.S.C. 362(a), in the
instant case. Thus, we conclude that 362(a)'s automatic stay tolled the five-year period
under NRCP 41(e).
[Headnote 3]
Additionally, we note that policy considerations support extending the rule adopted in
Boren to include the automatic stay under 362(a) of the Bankruptcy Code. When the district
court initially considered Ward's motion to dismiss, the district court denied Ward's motion,
in part, because the district court found the thirty-day period under 108(c)(2) unworkable.
We agree. In today's legal system, crowded court calendars can make it impractical, if not
impossible, for a case to be brought to trial within the thirty-day time period prescribed by
108(c). While this thirty-day period may be appropriate for taking other action in the case that
had been stayed, it is not appropriate when the duty to bring a case to trial is concerned. Thus,
in order to permit proper vindication of rights, we extend the rule in Boren and conclude that
NRCP 41(e)'s five-year prescriptive period is tolled for the time that the bankruptcy stay
remains in effect.
Rickard's complaint was filed on April 20, 1993. Under NRCP 41(e), the matter
should have been brought to trial by April 20, 1998. On July 19, 1997, at the time Ward's
bankruptcy stay was issued, Rickard had nine months and thirteen days remaining before the
five-year period expired. Since the 362(a) automatic stay tolled the prescriptive five-year
period, when the stay was lifted on November 11, 1998, Rickard had nine months and
thirteen days, or until August 24, 1999, to bring his case to trial. We realize that Rickard's
action was not actually brought to trial on or before August 24, 1999, as the district court
stayed its order setting Rickard's case for trial on August 3, 1999, pending Ward's appeal.
However, under Boren, the district court's stay also operated to toll the 41(e) prescriptive
period,
16
thus we conclude that Rickard's efforts to bring his action to trial were timely.
Finally, given that so little of the five-year prescriptive period remains even after
Rickard is given the benefit of tolling, we fail to see how Rickard will be able to calendar and
bring his case to trial within sufficient time.
____________________

15
Id.

16
Morgan, 118 Nev. at 320, 43 P.3d at 1039; Boren, 98 Nev. at 6, 638 P.2d at 405.
within sufficient time. Therefore, for equitable reasons,
17
we instruct the district court to
give Rickard a reasonable period of time to set and bring his case to trial, provided Rickard
acts expeditiously.
We reverse the order of the district court dismissing Rickard's complaint against
Ward, and we remand this case to the district court for a trial on the merits of Rickard's
claims.
____________
120 Nev. 499, 499 (2004) Desert Valley Constr. v. Hurley
DESERT VALLEY CONSTRUCTION and EMPLOYERS INSURANCE
COMPANY OF NEVADA, Appellants, v. KEITH HURLEY, Respondent.
No. 40397
September 2, 2004 96 P.3d 739
Appeal from an order denying a petition for judicial review of a workers'
compensation award. Eighth Judicial District Court, Clark County; Allan R. Earl, Judge.
After employer denied workers' compensation claimant's claim for benefits, claimant
appealed. The hearing officer affirmed. Claimant appealed. The administrative appeals officer
affirmed. Claimant petitioned for judicial review. The district court remanded. The
administrative appeals officer awarded claimant benefits. Employer and insurer petitioned for
judicial review. The district court denied the petition. Employer appealed. The supreme court,
Maupin, J., held that substantial evidence supported finding that the sole proximate cause of
workers' compensation claimant's injuries was the movement of the scaffold into a hole.
Affirmed.
Beckett & Yott, Ltd., and Nancy E. Helmbold, Las Vegas, for Appellant Employers
Insurance Company of Nevada.
J. Michael McGroarty, Chtd., and J. Michael McGroarty, Las Vegas, for Appellant
Desert Valley Construction.
Greenman Goldberg Raby & Martinez and Gabriel A. Martinez and Valerie Sanders
Hulse, Las Vegas, for Respondent.
On review of an administrative agency's decision, the supreme court determines
whether substantial evidence supports the agency's decision and will not reweigh the
evidence or pass on the credibility of witnesses.
____________________

17
See Carcione v. Clark, 96 Nev. 808, 811, 618 P.2d 346, 348 (1980) (noting that [e]quity regards as done
what in good conscience ought to be done).
On review of an administrative agency decision, questions of proximate causation are
generally issues of fact left to the trier of fact to resolve.
3. Workers' Compensation.
To rebut the presumption that an accident was caused by an employee's use of a
controlled substance, a workers' compensation claimant need only establish by a
preponderance of the evidence that the presence of a controlled substance did not cause
the injuries. NRS 616C.230(1)(d).
4. Workers' Compensation.
Substantial evidence supported finding that the sole proximate cause of workers'
compensation claimant's injuries was the movement of the scaffold into a hole, even
though claimant tested positive for marijuana; plumber who observed the accident
testified that the accident occurred when the scaffold rolled into the hole, that the
brakes on the scaffold were defective, and that claimant did not appear intoxicated and
was acting in a normal manner prior to the accident. NRS 616C.230(1)(d).
OPINION
Desert Valley Construction and Employers Insurance Company of Nevada (EICN)
appeal from an order denying their petition for judicial review of a workers' compensation
award in favor of respondent Keith Hurley. We affirm.
Hurley was injured at work when he fell from a scaffold. His employer, Desert Valley,
provided workers' compensation insurance through EICN. EICN denied Hurley's claim for
workers' compensation benefits based upon testing that revealed 747 ng/mL
1
of marijuana
metabolite, THC carboxylic acid, in Hurley's post-accident urine sample. A hearing officer
upheld the denial of benefits under NRS 616C.230(1)(d), which prohibits compensation for
workplace injuries proximately caused by the employee's use of a controlled substance. This
statute also provides that the presence of a controlled substance in a worker's system at the
time of a workplace injury gives rise to a rebuttable presumption that the controlled substance
was a proximate cause of the injury. Hurley appealed the hearing officer's decision to an
administrative appeals officer.
Rather than contest before the appeals officer whether NRS 616C.230(1)(d) applied to
his claim, Hurley attempted to rebut the presumption that the controlled substance in his
system was a proximate cause of his injuries.
____________________

1
Nanograms per milliliter.
proximate cause of his injuries. His theory was that the scaffold rolled into a hole in the floor
of the construction site, due to either a defective braking mechanism or his own normal
miscalculations, causing the scaffold to turn over on its side.
Although Hurley testified that he believed the scaffold rolled into the hole, he was
unsure as to how or why this occurred. A coworker testified that before the accident, the
scaffold was positioned approximately six inches from the edge of the hole with the brakes
locked. As he turned to walk away, he heard the scaffold fall. This witness observed one
corner of the scaffold in the hole after the accident; however, he could not state how the
scaffold moved from its preaccident position, as the brakes on the scaffold remained locked.
Other Desert Valley employees confirmed the presence of the scaffold in the hole after the
accident and that its wheels were locked.
None of the witnesses at the hearing actually observed Hurley fall from the scaffold.
However, witnesses indicated that an employee of another contractor, Tim the plumber
(Timothy Griswold), observed the accident. Hurley was unaware of this witness prior to the
hearing.
None of the percipient witnesses testified at the hearing concerning Hurley's state of
intoxication, or lack thereof, on the day of the accident. However, Dr. Raymond Kelly
testified on behalf of EICN concerning the significance of marijuana metabolite levels in
excess of 100 ng/mL in urine. Although conceding that the THC metabolite does not of itself
cause impairment, he offered his opinion that the laboratory findings in this case inferentially
supported the notion that Hurley was impaired at the time of the test; i.e., levels in excess of
100 ng/mL in urine, more likely than not, correlate to the presence of active THC in blood,
which could cause impairment.
In her initial ruling, the appeals officer rejected Hurley's evidence that the scaffold
rolled into the hole with its wheels locked and thus, concluded that Hurley failed to present
credible evidence that the accident was caused by anything other than his intoxication which
is presumed by operation of NRS 616C.230(1)(d). Accordingly, the appeals officer denied
Hurley's claim for workers' compensation benefits. Hurley petitioned the district court for
review of this conclusion.
Ultimately, Hurley secured an affidavit concerning the accident from Timothy
Griswold. Based upon the affidavit, the district court remanded the case for the appeals
officer to take additional evidence. On remand, Griswold testified that he observed the
scaffold roll into the hole and tip over while Hurley was pulling himself along the ceiling of
the construction site, and that the wheel locks would not or did not prevent the scaffold from
rolling. Griswold also testified that Hurley did not appear to be intoxicated, impaired, or
under the influence of a controlled substance prior to the accident.
impaired, or under the influence of a controlled substance prior to the accident. Rather,
Griswold believed Hurley performed his job well and acted normally.
After the hearing, the appeals officer reversed the prior decision, finding that
Griswold's testimony was credible and sufficient to rebut the presumption that Hurley's
ingestion of marijuana was a proximate cause of the accident. In this, the appeals officer
observed:
The totality of the evidence, including the testimony of Mr. Griswold as well as the
testimony presented at prior hearings, established that Hurley's alleged use of [a]
controlled substance was not the proximate cause of his injury, and that the movement
of the scaffold into the hole in the flooring was the proximate cause of this injury.
EICN and Desert Valley filed a petition for judicial review, which the district court
eventually denied. EICN filed its timely notice of appeal.
2

DISCUSSION
[Headnotes 1, 2]
This court's review of an administrative agency's decision is confined to the record
presented to the agency.
3
We determine whether substantial evidence supports the agency's
decision
4
and will not reweigh the evidence or pass on the credibility of witnesses.
5
Substantial evidence is that which a reasonable mind might accept as adequate to support a
conclusion. '
6
Further, questions of proximate causation are generally issues of fact left to
the trier of fact to resolve.
7

This appeal primarily concerns the application of NRS 616C.230(1)(d), which states:
1. Compensation is not payable pursuant to the provisions of chapters 616A to 616D,
inclusive, or chapter 617 of NRS for an injury:
. . . .
____________________

2
Desert Valley filed a notice of joinder in EICN's appeal.

3
NRS 233B.135(1)(b).

4
Tighe v. Las Vegas Metro. Police Dep't, 110 Nev. 632, 634, 877 P.2d 1032, 1034 (1994).

5
Revert v. Ray, 95 Nev. 782, 786, 603 P.2d 262, 264 (1979).

6
Construction Indus. v. Chalue, 119 Nev. 348, 352, 74 P.3d 595, 597 (2003) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting Edison Co. v. Labor Board, 305 U.S. 197, 229 (1938))).

7
Yamaha Motor Co. v. Arnoult, 114 Nev. 233, 238, 955 P.2d 661, 665 (1998).
(d) Proximately caused by the employee's use of a controlled substance. If the
employee had any amount of a controlled substance in his system at the time of his
injury for which the employee did not have a current and lawful prescription issued in
his name or that he was not using in accordance with the provisions of chapter 453A of
NRS, the controlled substance must be presumed to be a proximate cause unless
rebutted by evidence to the contrary.
[Headnote 3]
We recently considered the application of NRS 616C.230(1)(d) in Construction
Industry v. Chalue.
8
In that case, we noted that the rebuttable presumption codified in the
statute was unequivocal, to wit: if an employee has marijuana in his system when injured,
then marijuana caused the accident unless proven otherwise.
9
We also stated that [t]he
presence of the controlled substance does not have to be the' proximate cause [of an
industrial accident], only a' proximate cause.
10
However, to rebut the presumption under
NRS 616C.230(1)(d), a workers' compensation claimant need only establish by a
preponderance of the evidence that the presence of a controlled substance did not cause the
injuries.
11

[Headnote 4]
The proceedings below concluded and the parties filed their briefs in aid of this appeal
prior to our decision in Chalue. Aside from seeking an interpretation of NRS 616C.230,
which we provided in Chalue, EICN asserts that substantial evidence does not support the
appeals officer's proximate cause findings, and that Hurley should not have been permitted to
rebut the presumption against compensation with evidence of his own negligence.
12
In
response, Hurley urges our deference to the appeals officer's ultimate factual conclusion that a
dangerous condition at the job site, not the ingestion of marijuana, was the proximate cause of
his injuries.
We hold that this matter must be resolved under our interpretation of NRS
616C.230(1)(d) in Chalue. In that case, the claimant suffered injuries after falling from a
ladder, which shifted into a channel cut into a concrete floor. A subsequent drug test showed
the presence of THC, the active ingredient of marijuana, in Chalue's system. Like Hurley,
Chalue did not contest the test results.
____________________

8
119 Nev. 348, 74 P.3d 595.

9
Id. at 352, 74 P.3d at 597.

10
Id.

11
Id. at 353, 74 P.3d at 598.

12
We note that, on appeal, EICN has discarded its argument that Hurley fell to the ground because he either
stepped off of the scaffold or lost his balance and fell to the ground and concedes on appeal that Hurley's
scaffold tipped over when one of its wheels rolled into a depression/hole in the floor area.
sults. Based upon testimony by Chalue and his foreman, along with hospital records
documenting that Chalue did not appear intoxicated, the administrative appeals officer found
that Chalue presented sufficient evidence to rebut the statutory presumption.
13
On appeal, we
affirmed the order denying a petition for judicial review of the administrative ruling.
14

In the present case, the appeals officer ultimately concluded that movement of the
scaffold was the sole proximate cause of Hurley's accident, expressly excluding Hurley's
alleged use of a controlled substance as a proximate cause of his injuries. Thus, under
Chalue, we must consider whether substantial evidence supports that decision.
Evidence at the hearings before the appeals officer established that persons or persons
unknown positioned the scaffold within one foot of the hole. While none of Hurley's
coworkers actually saw the accident, they testified to the presence of the wheel in the hole
after the accident. Griswold, the only eyewitness, unequivocally stated that the accident
occurred because the scaffold rolled into the hole and that the brakes were defective.
Additionally, Hurley stated that he was aware of the presence of the hole, but was unaware of
its close proximity to the scaffold.
Going further, no evidence, beyond Dr. Kelly's inferential testimony, suggests that
Hurley was impaired at the time of the accident or that any impairment caused the accident.
While EICN asserts that Hurley's balance and judgment must have been impaired and that
this must have been a proximate cause of his injuries, the only direct evidence concerning
Hurley's alleged state of intoxication came from Griswold, who testified that Hurley did not
appear intoxicated and was acting in a normal manner prior to the accident.
We hold that substantial evidence therefore supports the appeals officer's
determination that the sole proximate cause of Hurley's injuries was the movement of the
scaffold into the hole. Although Griswold was a convicted felon, the appeals officer could
certainly discount this impeachment and find Griswold's testimony credible and persuasive.
Also, although EICN provided persuasive expert testimony in support of its defense to the
claim, we are not in a position to overturn a decision based upon the credibility of live
witnesses.
15

EICN raises the question of whether, under NRS 616C.230(1), a workers'
compensation claimant with a positive post-accident drug test must rebut either the laboratory
finding or the presumption that the presence of the substance in the worker's system is a
proximate cause of the industrial accident.
____________________

13
Id. at 350-51, 74 P.3d at 596-97.

14
Id. at 354, 74 P.3d at 598-99.

15
See Revert, 95 Nev. at 786, 603 P.2d at 264.
proximate cause of the industrial accident. The claimant has both options. Going further,
EICN seeks our embrace of the district court's astute observation that:
[I]t is inconceivable that the Nevada State Legislature contemplated that a worker with
fifty times the legal limit of marijuana in his system would be entitled to Worker's
Compensation benefits for injuries suffered on a job site while he was thus impaired.
Absent clarification from the Legislature, any level of a non-prescribed controlled substance
in a worker's system implicates the presumption under NRS 616C.230. But, under the current
statutory construct, regardless of the substance levels, an administrative tribunal may consider
whether forces other than the presence of a controlled substance in the injured worker's
system exclude the ingestion as a proximate cause.
We note that neither party contested the application of NRS 616C.230(1)(d) to this
matter. The statute applies where an employee's post-accident drug test reveals the presence
of a controlled substance. Here, Hurley's post-accident drug test results showed no evidence
of a controlled substance. Rather, his test showed the presence of marijuana metabolite,
which is not listed as a controlled substance,
16
and is not included within the statutory
definition of marijuana.
17
This, however, is a moot point as Hurley concedes that his drug
test showed the presence of a controlled substance. This concession was certainly supported
by EICN's expert. We will therefore defer for future consideration whether a positive drug
test for marijuana metabolite, without more, raises the presumption of NRS 616C.230(1)(d).
CONCLUSION
Substantial evidence supports the appeals officer's determination that Hurley's use of a
controlled substance was not a proximate cause of Hurley's injuries, and that the sole
proximate cause was the movement of a corner of the scaffold into the hole in the floor.
Accordingly, we affirm the district court's order.
____________________

16
See NAC 453.510 (Schedule I controlled substances). But cf. State v. Williams, 120 Nev. 473, 93 P.3d
1258 (2004) (marijuana metabolite is a prohibited substance for purposes of driving under the influence
statute).

17
See NRS 453.096.
____________
120 Nev. 506, 506 (2004) Continental Ins. Co. v. Murphy
CONTINENTAL INSURANCE COMPANY, Appellant/CrossRespondent, v. PENNY
MURPHY and PATRICK MURPHY, Respondents/Cross-Appellants.
No. 40472
September 2, 2004 96 P.3d 747
Appeal and cross-appeal from a declaratory judgment adjudicating the scope of
uninsured/underinsured motorist coverage provided in connection with a policy of automobile
liability insurance. Eighth Judicial District Court, Clark County; Nancy M. Saitta, Judge.
Automobile insurer brought action against insureds for a declaratory judgment that
their policy covering classic car excluded under-insured motorist (UIM) benefits for bodily
injuries sustained while insured was occupying motorcycle that was not covered under the
policy. The district court voided the exclusion in part. Appeal and cross-appeal were taken.
The supreme court, Maupin, J., held that the exclusion was void to the extent that it negated
the minimum required UIM coverage.
Affirmed.
Perry & Spann and Linda J. Linton, Reno, for Appellant/Cross-Respondent.
Neil G. Galatz & Associates and Neil G. Galatz, Las Vegas, for
Respondents/Cross-Appellants.
1. Judgment.
Summary judgment is appropriate only where there are no genuine issues of material
fact and the movant is entitled to judgment as a matter of law.
The supreme court conducts a de novo review of summary judgment orders.
3. Insurance.
Non-occupancy exclusion of underinsured motorist (UIM) coverage for bodily injury
sustained while occupying vehicle other than covered auto was void to the extent that
the exclusion negated the minimum required coverage limits in insured's policy
covering classic car. NRS 687B.145(2), 690B.020.
4. Insurance.
The expressed public policy of state is that an insurance company may not issue an
automobile or motor vehicle liability policy that does not protect the insured from
owners or operators of uninsured or underinsured motor vehicles, unless the named
insured rejects such coverage. NRS 687B.145(2), 690B.020.
OPINION
Automobile liability insurance policies issued for delivery in Nevada must, subject to
narrowly defined exceptions, provide uninsured (UM) and underinsured (UIM) motorist
protection to any person insured under the policy.
1
UM/UIM insurance provides for the
payment of first-party benefits based upon tort damages sustained in motor vehicle accidents
involving uninsured or underinsured motorists.
2
Absent a written waiver of UM/UIM
coverage, the insurer must provide minimum UM/UIM coverage limits in the amount of
$15,000 per person injured or killed in a single accident, and $30,000 total for two or more
persons injured or killed in a single accident. We have traditionally held that UM/UIM
insurance follows the insured regardless of whether the accident involved the vehicle
designated in the policy.
3
We have also held that a restriction in such coverage is void as
against public policy to the extent the restriction affects the basic mandatory minimum limits
mentioned above.
4
In this appeal, we revisit the question of whether, and the extent to
which, an automobile liability insurer may restrict UM/UIM coverage based upon the
insured's non-occupancy of a covered vehicle.
Continental Insurance Company issued a Classic Automobile Policy to Patrick and
Penny Murphy in connection with the ownership and operation of their 1969 Plymouth
Roadrunner. The insurance agreement provided third-party liability and UM/UIM coverages,
5
each with single limits of $300,000 per accident. The classic car coverage was less
expensive than that written for ordinary vehicles based upon restricted use on an annual
basis.
____________________

1
Motor vehicle policies issued to the State and its political subdivisions are exempt from this requirement.
Also, the insured in all other policies may elect to reject UM/UIM coverage in writing. See NRS 690B.020(1);
NRS 687B.145(2).

2
Underinsured motorist protection
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 coverage for bodily injury carried by that
owner or operator.
NRS 687B.145(2).

3
State Farm Mut. Auto. Ins. v. Hinkel, 87 Nev. 478, 488 P.2d 1151 (1971).

4
Zobrist v. Farmers Ins. Exchange, 103 Nev. 104, 734 P.2d 699 (1987).

5
Because Mr. and Mrs. Murphy are Nevada residents and listed as such in the insurance agreement, the
mandatory provisions of the Nevada Insurance Code governed the issuance of the policy. Under NRS
687B.145(2), UM cov-
classic car coverage was less expensive than that written for ordinary vehicles based upon
restricted use on an annual basis.
Penny Murphy was seriously injured during the policy term while riding a motorcycle
owned by a third party. As a result, Mr. and Mrs. Murphy submitted a claim for UIM benefits.
Continental opted to contest the claim based upon exclusionary language in the policy
precluding the payment of UM/UIM benefits to any insured in connection with bodily injuries
sustained while occupying any vehicle other than the covered auto (the non-occupancy
exclusion).
6

Continental filed a complaint for declaratory and injunctive relief, requesting a
determination that the policy language unambiguously and completely excluded UM/UIM
coverage for injuries sustained while occupying any vehicle other than the 1969 Plymouth
Roadrunner. In the alternative, Continental requested a declaration of non-coverage to the
extent that the claims exceeded statutory minimum required coverage limits of $15,000 per
person injured or killed in a single accident. Mr. and Mrs. Murphy countered that the
exclusion was void in its entirety as against public policy.
The district court ultimately entered summary judgment, granting partial relief to both
sides of this controversy. Although the district court determined that the policy
unambiguously limited UIM coverage to the designated vehicle, it found the exclusion void
to the extent it sought to preclude payment of statutorily mandated minimum coverage limits.
Consequently, the district court enforced the provision as to the portion of the limits issued in
excess of the minimum required coverage. This ruling followed our traditional approach
applied in Hinkel and Zobrist. Continental appeals and Mr. and Mrs. Murphy cross-appeal.
7

DISCUSSION
[Headnotes 1, 2]
[S]ummary judgment is appropriate only where there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law.
8
We conduct a de
novo review of summary judgment orders.
9

____________________
erage must include UIM protection. Thus, although the Continental policy did not explicitly provide UIM
coverage, the policy will be construed to conform with NRS 687B.145(2).

6
Exclusion B(4) of the policy reads as follows:
We do not provide Uninsured Motorists Coverage for bodily injury sustained by any insured:
. . . .
4. While occupying any vehicle other than your covered auto.

7
The district court certified the declaratory judgment as final under NRCP 54(b).

8
Nelson v. CSAA, 114 Nev. 345, 347, 956 P.2d 803, 805 (1998).

9
Id.
[Headnote 3]
Continental contends that the district court erred in voiding the non-occupancy
coverage exclusion in its entirety. It justifies the restriction in coverage, including the
exclusion of minimum statutory benefits, based upon substantially reduced premiums charged
for classic car coverage. Mr. and Mrs. Murphy respond that, as the insured parties under the
policy, they are entitled to recover UIM coverage benefits up to the declared limits of their
UM/UIM coverage. They base this argument upon the language of NRS 690B.020 and NRS
687B.145, as well as our case decisions stressing the strong public policy behind these
mandated coverages, to wit: protection of persons insured against losses sustained at the
hands of uninsured and underinsured motorists. More particularly, Mr. and Mrs. Murphy
claim that UIM coverage follows the insured as a matter of law, regardless of the vehicle
involved in an accident, and thus, that purchase of coverage with specifically defined
monetary limits should not be subject to limitation clauses taking away or restricting the
coverage explicitly purchased by the insured.
We note as a threshold matter that the parties contest whether the policy in question is
an owner's or operator's policy under NRS 485.3091.
10
Continental claims that the
policy is an owner's policy and, consequently, solely covers accidents involving the insured
vehicle. An operator's policy, in contrast to an owner's policy, covers the insured in
connection with the use of any vehicle. We need not decide this issue as NRS 485.3091
applies exclusively to liability insurance, not UM/UIM coverage.
This matter must be resolved under Nevada's UM/UIM statutory scheme set forth in
NRS 690B.020 and NRS 687B.145(2), and our decisions concerning these coverages. NRS
690B.020 provides:
1. . . . [N]o policy insuring against liability arising out of the ownership, maintenance
or use of any motor vehicle may be delivered or issued for delivery in this state unless
coverage is provided .
____________________

10
NRS 485.3091 states in relevant part:
1. An owner's policy of liability insurance must:
(a) Designate by explicit description . . . all motor vehicles with respect to which coverage is thereby
to be granted; and
(b) Insure the person named . . . using any such motor vehicle . . . against loss from the liability
imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle . . . .
. . . .
2. An operator's policy of liability insurance must insure the person named as insured therein against
loss from the liability imposed upon him by law for damages arising out of the use by him of any motor
vehicle . . . .
coverage is provided . . . for the protection of persons insured thereunder who are
legally entitled to recover damages, from owners or operators of uninsured . . . motor
vehicles, for bodily injury, sickness or disease, including death, resulting from the
ownership, maintenance or use of the uninsured . . . motor vehicle. . . . The coverage
required in this section may be referred to as uninsured vehicle coverage.
2. The amount of coverage to be provided must be not less than the minimum limits
for liability insurance for bodily injury provided for under chapter 485 of NRS,
[11]
but
may be in an amount not to exceed the coverage for bodily injury purchased by the
policyholder.
And NRS 687B.145(2) provides:
[I]nsurance companies transacting motor vehicle insurance in this state must offer . . .
uninsured and underinsured vehicle coverage in an amount equal to the limits of
coverage for bodily injury . . . . Uninsured and underinsured vehicle 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 coverage for bodily injury carried by that owner
or operator.
[Headnote 4]
The expressed public policy of Nevada is that an insurance company may not issue
an automobile or motor vehicle liability policy which does not protect the insured from
owners or operators of uninsured [or underinsured] motor vehicles, unless the named insured
rejects such coverage.
12
Under these public policy concerns, we have previously held that
certain limitations or exclusions on UM/UIM coverage are void as against public policy.
In Hinkel, we addressed an owned but uninsured vehicle exclusion on UM coverage,
and held that anyone who is a person insured' within the meaning of the [UM] statutes may
not be excluded from coverage by provisions in the policy of insurance.
____________________

11
See NRS 485.185, which states in pertinent part:
Every owner of a motor vehicle which is registered or required to be registered in this state shall
continuously provide . . . insurance:
1. In the amount of $15,000 for bodily injury to or death of one person in any one accident; . . . .

12
Hinkel, 87 Nev. at 481, 488 P.2d at 1153.
While Continental relies upon the holding in St. Paul Mercury Insurance Co. v. Corbett, 630 A.2d 28, 29 (Pa.
Super. Ct. 1993), that coverage restrictions in limited use automobile insurance policies are enforceable, we
distinguish this case as in variance with the public policy of Nevada.
cluded from coverage by provisions in the policy of insurance.
13
In Zobrist, we examined
an owned but uninsured vehicle exclusion in the context of UM/UIM coverage, and refined
Hinkel by holding that an exclusionary clause is void only to the extent that it would defeat
the minimum security required by statute but valid to prevent recovery in excess of the
minimum.
14

In summary, Continental asserts that our prior case decisions construing NRS
690B.020 thwart its ability to market new insurance product lines at a lower cost, and that it
should be able to bargain with the insured for restricted coverage in exchange for a lower
premium. Mr. and Mrs. Murphy, on the other hand, argue that they have paid for, and should
receive, full coverage as stated in the declarations. Both positions would require a retreat
from Hinkel and Zobrist.
15

Our holding in Zobrist was designed to balance state policy to provide minimum
coverage to all persons with the reality of the need to pay a premium for insurance coverage.
16
We see no reason to depart from either Hinkel or Zobrist in the present case, both cases
having construed clear statutory mandates. While the stated purpose of these required
coverages is to provide protection for the persons insured, this mandate is restricted to the
minimum limits required per NRS 690B.020(2). Considerations in the modern context, such
as mechanisms to reduce premiums for certain lines of coverage, i.e., for restricted use
vehicles such as classic cars, remain subject to the public policy considerations of Hinkel and
Zobrist, until and unless the Legislature changes the mandate.
17
Accordingly, we decline to
overturn these decisions, as the public policy arguments urged in this appeal should be
addressed to the Nevada Legislature.
We therefore hold that, under Zobrist and NRS 690B.020, a non-occupancy
exclusionary clause offends public policy to the extent the exclusion purports to preclude
recovery of minimum required UM/UIM benefits.
18

____________________

13
87 Nev. at 483, 488 P.2d at 1154.

14
103 Nev. at 106, 734 P.2d at 700.

15
Mr. and Mrs. Murphy argue that Zobrist does not apply in this instance, that case having involved a
vehicle owned by the insured but not covered under the policy at issue. This distinction is not elaborated upon
and provides no basis for a departure from Zobrist.

16
103 Nev. at 106, 734 P.2d at 700.

17
Absent legislative intervention, non-occupancy restrictions may only be achieved through the use of a
prominently displayed and separately executed waiver.

18
See also Estate of Neal v. Farmers Ins. Exch., 93 Nev. 348, 566 P.2d 81 (1977) (voiding household
exclusion to extent of mandatory minimum coverages).
CONCLUSION
Mr. and Mrs. Murphy are persons insured under the Continental classic automobile
policy. Thus, the non-occupancy exclusion is void under NRS 690B.020, but only to the
extent that the exclusion negates the minimum required coverage limits. Accordingly, we
affirm the district court's declaratory judgment.
19

____________
120 Nev. 512, 512 (2004) Lobato v. State
KIRSTIN BLAISE LOBATO, Appellant, v. THE STATE
No. 40370
September 3, 2004 96 P.3d 765
first-degree murder with the use of a deadly weapon and one count of sexual penetration of a
dead human body. Eighth Judicial District Court, Clark County; Valorie J. Vega, Judge.
The supreme court, Maupin, J., held that: (1) extrinsic evidence of jailhouse inmate's
attempts to suborn perjury in inmate's separate criminal case was admissible to show inmate's
motive for testifying as witness for prosecution in defendant's case, and (2) the error in
excluding the extrinsic evidence was not harmless.
David M. Schieck, Special Public Defender, and Gloria M. Navarro, Deputy Special
Public Defender, Clark County, for Appellant.
James Tufteland, Chief Deputy District Attorney, and Sandra DiGiacomo, Deputy District
1. Witnesses.
Extrinsic evidence that is relevant to impeaching the witness by attacking the
competence of the witness to testify, i.e., attacks based upon defects of perception,
memory, communication, and ability to understand the oath to testify truthfully, is
never collateral to the proceedings and thus is always admissible for impeachment
purposes. NRS 50.085(3).
____________________

19
Continental further asserts on appeal that this court should remand for the Murphys to present evidence of
damages. Since Continental only sought declaratory relief, a hearing on damages is not required.
2. Witnesses.
Extrinsic evidence relevant to prove a witness's motive to testify in a certain way, i.e.,
bias, interest, corruption, or prejudice, is never collateral to the controversy and thus is
admissible for impeachment purposes. NRS 50.085(3).
3. Witnesses.
Extrinsic proof of a prior inconsistent statement is inadmissible, unless the statement
is material to the case at hand. NRS 50.085(3).
4. Witnesses.
Unless in some way related to the case and admissible on other grounds, extrinsic
prior bad act evidence is always collateral and therefore inadmissible to attack
credibility. NRS 50.085(3).
5. Witnesses.
Extrinsic evidence of jailhouse inmate's attempts to suborn perjury in inmate's
separate criminal case was admissible, in prosecution for murder, to impeach inmate by
showing her motive for testifying for the prosecution in defendant's case. Extrinsic
evidence showed inmate had been desperate to obtain early release from incarceration
and showed her willingness to adopt fraudulent course of action to achieve that goal,
thereby supporting inference that inmate's cooperation with State in defendant's case
was simply part of continuum of deceptions taken to secure her freedom. NRS
50.085(3).
6. Witnesses.
Extrinsic evidence of jailhouse inmate's attempts to suborn perjury in inmate's
separate criminal case was not admissible as specific instances of untruthfulness to
impeach the inmate in prosecution for murder because such evidence was immaterial to
whether defendant committed homicide. NRS 50.085(3).
7. Criminal Law.
Defendant preserved appellate review of trial court's denial of impeachment of
prosecution witness with extrinsic evidence of witness's attempts to suborn perjury in
witness's separate criminal case, which evidence was offered to show witness's
continuing motive to commit deceptions in order to obtain her freedom, though trial
court had not precluded defendant from asking witness whether she had written letters
which would have deceived sentencing court in witness's case and defendant failed to
ask trial court to recall the witness for such cross-examination, where defendant
questioned witness regarding authorship and knowledge of the letters outside the
presence of jury, and where trial court made definitive exclusionary ruling. NRS
50.085(3).
8. Witnesses.
Although district courts have wide discretion to control cross-examination that attacks
a witness's general credibility, a trial court's discretion is narrowed where bias or motive
is the object to be shown, and an examiner must be permitted to elicit any facts that
might color a witness's testimony.
9. Witnesses.
Generally, the only proper restriction on cross-examination to establish a witness's
bias or motive should be those inquiries that are repetitive, irrelevant, vague,
speculative, or designed merely to harass, annoy, or humiliate the witness.
10. Criminal Law.
Error was not harmless as to precluding defendant, in murder prosecution, from
impeaching prosecution witness with extrinsic evidence of witness's attempts to
suborn perjury in witness's separate criminal case, which evidence was offered to
show witness's continuing motive to commit deceptions in order to obtain her
freedom; the witness was the prosecution's "star witness," and her testimony
powerfully underscored State's circumstantially supported theories of malice and
premeditation and substantially undermined defendant's alternate claims of
self-defense and lesser culpability.
witness's attempts to suborn perjury in witness's separate criminal case, which evidence
was offered to show witness's continuing motive to commit deceptions in order to
obtain her freedom; the witness was the prosecution's star witness, and her testimony
powerfully underscored State's circumstantially supported theories of malice and
premeditation and substantially undermined defendant's alternate claims of self-defense
and lesser culpability. NRS 50.085(3), 178.598.
11. Criminal Law.
Exclusion of a witness's testimony is prejudicial if there is a reasonable probability
that the witness's testimony would have affected the outcome of the trial.
12. Dead Bodies.
Statutory definition of sexual penetration was not void for vagueness, in
prosecution for sexual penetration of dead human body. NRS 201.450(2).
OPINION
Appellant Kirstin Blaise Lobato appeals from a final judgment of conviction, entered
following jury verdicts of guilty on separate counts of first-degree murder with the use of a
deadly weapon and sexual penetration of a dead human body.
1
In this appeal, we consider
whether the trial court erred by precluding Lobato from introducing extrinsic evidence to
impeach the testimony of a witness for the State. We reverse Lobato's convictions and
remand for a new trial.
PROCEDURAL AND FACTUAL HISTORY
On July 8, 2001, Las Vegas Metropolitan Police Department (LVMPD) officers
responded to a report of a dead body behind a dumpster on West Flamingo Road in Las
Vegas, Nevada. Police later identified the body as that of Duran Bailey (the victim).
An autopsy revealed extensive wounds inflicted by sharp and blunt objects. The
coroner testified that the victim's demise preceded discovery of the body by ten to eighteen
hours, and that at least some of the documented blunt force injuries were consistent with an
assault with a baseball bat or with a fall against a cement curb. However, the coroner
identified several broken teeth, abrasions to the head, and a series of depressed and
non-depressed skull injuries to the front, side and back of the head. Accordingly, his
testimony strongly implied that at least some of the blunt trauma was exclusively attributable
to an assault. The coroner also documented that the victim's penis was amputated at the
base, and noted a slash wound between the victim's buttocks from above his anus,
through and into the rectum, ending at the posterior aspect of the scrotum.
____________________

1
See NRS 177.015(3); NRS 193.165; NRS 200.030; NRS 201.010; NRS 201.450.
documented that the victim's penis was amputated at the base, and noted a slash wound
between the victim's buttocks from above his anus, through and into the rectum, ending at the
posterior aspect of the scrotum. These wounds were sustained post-mortem. Finally, the
coroner attributed the victim's demise to a laceration of one of his carotid arteries.
At some point in mid-July 2001, Lobato, a resident of Panaca, Nevada, informed her
former teacher and counselor that an older man attacked and attempted to sexually assault her
during a recent visit to Las Vegas. She claimed to have cut off the attacker's penis. Some time
later, LVMPD Detective Thomas Thowsen learned of Lobato's claim and proceeded to
Panaca to interview her. Upon introducing himself to Lobato, Detective Thowsen stated he
understood Lobato had been attacked in Las Vegas and been forced to defend herself. Lobato
did not respond to this statement. In response to a statement by Detective Thowsen that he
knew she'd been hurt in the past, referring to his knowledge that Lobato was molested when
she was six years old, Lobato began to cry and said, I didn't think anybody would miss him.
Detective Thowsen then administered warnings pursuant to Miranda v. Arizona,
2
after which Lobato provided a recorded statement. She indicated that she had been assaulted
previously in Las Vegas, that she used her butterfly knife to defend herself, and that she cut
the man's penis, but she did not know if she completely severed it. She also stated that she
managed to escape and left the assailant lying still on the ground and crying. When asked if
she hit the man with anything other than her knife, Lobato stated No, but it's possI have a
baseball bat that I keep behind my seat or had a baseball bat.
3
Lobato was vague about the
exact date and details of the incident, claiming she was high on drugs. As a result of the
interview, the officers placed Lobato under arrest.
The State ultimately filed an amended criminal complaint charging Lobato with
separate counts of murder with the use of a deadly weapon and sexual penetration of a dead
human body. After a preliminary hearing, the justice court bound Lobato over for trial in
district court on both offenses.
Detective Thowsen testified at trial concerning his investigation of the homicide and
Lobato's statements.
4
Several witnesses testified for the State regarding other statements
made by Lobato to the effect that she was attacked while in Las Vegas and used a knife in
self-defense. These accounts varied concerning the extent to which she inflicted injuries upon
her assailantthat she severed her attacker's penis, that she simply slashed the organ, or
that she stabbed him in the abdomen.
____________________

2
384 U.S. 436 (1966).

3
Forensic testing did not reveal any blood on Lobato's bat.

4
The district court determined that Lobato voluntarily made her statements to Detective Thowsen and thus
allowed him to testify concerning them.
tacker's penis, that she simply slashed the organ, or that she stabbed him in the abdomen.
Korinda Martin, an inmate at the Clark County Detention Center, testified to Lobato's
boasts that she was in jail for murder and had forcibly amputated a man's penis and placed it
down his throat. More particularly, Martin indicated that Lobato expressed some worry
over blood that might be found in her automobile because she had struck the man in the face
and made a series of statements to the effect that she had picked up the assailant, Darren,
with whom she was acquainted, on a public street to purchase methamphetamine; that she
was high on drugs; that Darren wanted to engage in sex with her and that she refused; that
she stabbed him at least eight times in the rectum when he was lying still at the scene; and
that, while the man never tried to force her to submit to his sexual advances, she was going to
play the poor me act and claim that Darren had attempted to sexually assault her. According
to Martin, after the State added the sexual penetration charge, Lobato boasted that what she
had done was overkill, but that Darren deserved it.
Martin testified that she contacted the district attorney's office after her conversations
with Lobato and provided police detectives with a statement concerning them. While she
requested a letter of recommendation to the parole board in exchange for her testimony, none
was forthcoming.
During the State's direct examination, Martin admitted to a prior robbery conviction.
However, on cross-examination, she admitted to separate convictions for robbery and
coercion. Martin also admitted that she had unsuccessfully attempted to secure her release
from custody on several occasions via motions for bail, house arrest, release on her own
recognizance, and bail reduction. She admitted that one of the motions was based upon a
claim that she was pregnant and that the pregnancy was high risk. Martin stated that, while
she would have done whatever was necessary to get out of jail, she would not lie, have
someone lie for her, or assist someone to lie to a court.
During a recess hearing outside the presence of the jury, Lobato confronted Martin
with two handwritten letters that supported the proposition that Martin had engaged in an
attempted fraud upon the sentencing judge in her case. One of the letters was a cover letter,
purportedly from Korinda, requesting that Brenda Self, one of Martin's former
co-prisoners, copy an attached recommendation letter in her own handwriting and send it to
Martin's sentencing court. The attachment was designed to advise the court that Martin was
experiencing a high-risk pregnancy and that Brenda hired Martin in November 2000 and
continued to employ her. The letter further stated that Brenda would personally assist Martin
in any way possible.
in any way possible. Although Martin denied sending, writing, or having seen either of the
letters, Martin agreed that the letter constituted a fraud upon her sentencing court because she
had never worked for Brenda. Interestingly, the envelope in which the defense presented the
letters bore Martin's return address and prison body number.
Following Martin's in camera testimony, the State agreed to a handwriting analysis of
the letters, and the parties deferred the line of inquiry until the opinion could be secured.
When the trial recommenced, Lobato examined Martin concerning prior convictions and
attempts to avoid further prison time but made no inquiry about the letters. Later in the
proceedings, when Lobato attempted to present her expert's preliminary opinion that Martin
wrote the contested letters, the district court excluded any extrinsic evidence concerning
authorship of the letters as collateral to the proceedings under NRS 50.085(3).
5
Ultimately,
the jury heard no evidence regarding the letters, including Martin's denial of any connection
with them.
Lobato also sought to have Brenda Self testify to Martin's attempt to mislead her
sentencing court. Consistent with its prior ruling excluding the handwriting analysis of the
letters, the district court denied the request and ruled that, if Self testified, Lobato could elicit
Self's opinion of Martin's truthfulness without reference to any conduct giving rise to that
opinion.
6
Following this ruling, Lobato decided not to present Self's testimony.
Lobato testified in her own defense, claiming essentially that an unknown assailant
attempted to sexually assault her, and that she resisted, cut him with a knife and fled the area.
The jury returned verdicts of guilty on both charges. Shortly thereafter, a document
examiner for the LVMPD filed a report concluding that Martin wrote at least one of the
contested letters.
7
The district court denied Lobato's motion for a new trial based in part
upon this new information.
The district court imposed consecutive 20- to 50-year sentences for first-degree
murder with the use of a deadly weapon, and a 5- to 15-year sentence for sexual
penetration of a dead body.
____________________

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

6
Id.

7
The LVMPD expert concluded that Martin probably authored the first letter and definitely the second.
5- to 15-year sentence for sexual penetration of a dead body. In addition, the district court
imposed a special sentence of lifetime supervision should Lobato be released. Finally, the
district court ordered genetic marker testing, along with payments of a $150 DNA analysis
fee, a fine of $10,000 and a $25 administrative assessment. The court credited Lobato 233
days for time served prior to the imposition of sentence. Lobato filed her timely notice of
appeal.
DISCUSSION
Impeachment by extrinsic evidence
Lobato argues that the district court erroneously excluded extrinsic evidence rebutting
Martin's denial that she sought to perpetrate a fraud upon her own sentencing court. More
particularly, she asserts that the letters, the expert handwriting opinions and Brenda Self's
testimony, although extrinsic, were admissible on the question of Martin's credibility. We
agree and reverse Lobato's conviction and remand for a new trial.
There are nine basic modes of impeachment. The first four involve attacks upon the
competence of a witness to testify, i.e., attacks based upon defects of perception, memory,
communication and ability to understand the oath to testify truthfully. The second four modes
of impeachment involve the use of evidence of prior convictions,
8
prior inconsistent
statements, specific incidents of conduct and ulterior motives for testifying. The ninth mode
of impeachment, not pertinent to this appeal, permits attack upon a witness's reputation for
truthfulness and necessarily involves the use of extrinsic evidence.
[Headnotes 1, 2]
Impeachment by use of extrinsic evidence is prohibited when collateral to the
proceedings. Collateral facts are by nature outside the controversy, or are not directly
connected with the principal matter or issue in dispute.
9
The collateral fact rule, however,
has only limited application. For example, extrinsic evidence that is relevant to any of the
first four modes of impeachment is never collateral and thus is always admissible for
impeachment purposes.
10
Also, use of prior felony convictions and reputation evidence do
not implicate the prohibition against collateral extrinsic evidence.
____________________

8
For 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 1 year under the
law under which he was convicted.

9

10
1 John W. Strong, McCormick on Evidence 49 (5th ed. 1999) [hereinafter McCormick].
evidence. And extrinsic evidence relevant to prove a witness's motive to testify in a certain
way, i.e., bias, interest, corruption or prejudice, is never collateral to the controversy and not
subject to the limitations contained in NRS 50.085(3).
11
However, use of specific instances
of conducti.e., an untruthful act not resulting in a convictionand use of prior inconsistent
statements, raise issues under the so-called collateral-fact rule when coupled with a specific
contradiction.
[Headnotes 3, 4]
Thus, only two modes of impeachment truly implicate the collateral-fact rule.
Accordingly, extrinsic proof of a prior inconsistent statement is inadmissible unless the
statement is material to the case at hand.
12
And NRS 50.085(3) limits the admissibility of
extrinsic evidence for the purpose of attacking credibility based upon specific instances of
conduct attributable to the witness. Unless in some way related to the case and admissible on
other grounds, extrinsic prior bad act evidence is always collateral and therefore inadmissible
to attack credibility.
[Headnotes 5-7]
The State correctly concedes in its arguments before this court that cross-examination
of Martin as to whether she wrote the fraudulent letters would have been proper. However, it
also correctly argues that the letters, the expert opinions and Self's proposed testimony
contradicting Martin's denial of authorship were all inadmissible under NRS 50.085(3) as
extrinsic evidence of specific instances of untruthfulness; here, her attempts at subornation of
perjury in her separate criminal case.
13
Certainly, evidence proving that Martin had
attempted to induce another person to lie for her was immaterial in and of itself to the
question of whether Lobato committed homicide.
____________________

11
See id. (stating that proof of a witness's bias, interest, corruption or coercion is exempt from the
collateral-fact rule); see also 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence
608.20[3][b] (Joseph M. McLaughlin ed., 2d ed. 2004) (stating that Federal Rule of Evidence 608(b) (which is
substantially similar to NRS 50.085(3)) is not implicated when extrinsic evidence is sought to be admitted on the
issue of bias; rather its admissibility depends upon whether the bias is a relevant issue in the case); 3A John
Henry Wigmore, Wigmore on Evidence 948, at 783 (Chadbourn rev., 1970) (The doctrine of excluding facts
offered by extrinsic testimony has never been applied to [the subject of bias].); id. 1005(b) (Particular
circumstances and expressions indicating bias are provable by extrinsic testimony . . . .).

12
See McCormick, supra note 10, 49 (identifying two methods by which extrinsic evidence of a prior
inconsistent statement is non-collateral: (1) if the matter is itself relevant to a fact of consequence on the
historical merits of the case and (2) if the extrinsic evidence relates to a linchpin fact of the case).

13
Although the district court ultimately excluded the extrinsic evidence of Martin's attempted fraud upon her
own sentencing court, the district court never expressly precluded Lobato from cross-examining Martin
regarding whether she wrote the letters. Lobato failed, however, to request that the district court permit her to
recall Martin for that purpose. Ordinarily, the failure
proving that Martin had attempted to induce another person to lie for her was immaterial in
and of itself to the question of whether Lobato committed homicide. We conclude, however,
that evidence disproving Martin's denial that she wrote the letters was admissible for another
purpose, to wit: to prove Martin's motive, i.e., interest, for testifying for the State.
[Headnotes 8, 9]
Although district courts have wide discretion to control cross-examination that attacks
a witness's general credibility, a trial court's discretion is . . . narrow[ed] where bias [motive]
is the object to be shown, and an examiner must be permitted to elicit any facts which might
color a witness's testimony.
14
Generally, [t]he only proper restriction should be those
inquiries which are repetitive, irrelevant, vague, speculative, or designed merely to harass,
annoy or humiliate the witness.
15

The proffered letters and extrinsic evidence relating to them confirmed Martin's
desperation to obtain an early release from incarceration and her willingness to adopt a
fraudulent course of action to achieve that goal. As Martin testified before the jury, she would
have done whatever it took to get out of jail in July and August 2001. While the jury heard
evidence regarding Martin's other unsuccessful attempts to gain her own release from
custody, the extrinsic evidence from the experts and Brenda Self would have supported a very
important inference that Martin's cooperation was simply part of a continuum of deceptions
taken to secure her freedom. We conclude that the extrinsic evidence concerning the letters
demonstrated her strong interest in assisting the State in Lobato's trial. Thus, the extrinsic
evidence in this case was admissible because it was relevant to a mode of impeachment that
does not implicate the collateral-fact rulemotivation to give false testimony. We therefore
hold that the district court erred by not permitting Lobato to introduce extrinsic evidence to
impeach Martin on the issue of her motive to testify.
____________________
to ask the impeaching question about prior untruthful acts waives any issue on appeal concerning the propriety
of the impeachment itself. We conclude, however, that Lobato's questioning of Martin regarding authorship and
knowledge of the letters outside the presence of the jury, along with the definitive exclusionary ruling, were
sufficient to preserve for appeal the issue of whether extrinsic evidence on that issue was admissible. See Pineda
v. State, 120 Nev. 204, 88 P.3d 827 (2004); Richmond v. State, 118 Nev. 924, 59 P.3d 1249 (2002).

14
Bushnell v. State, 95 Nev. 570, 572, 599 P.2d 1038, 1040 (1979); see also Ransey v. State, 100 Nev. 277,
279, 680 P.2d 596, 597 (1984) ( Where [the] purpose of [cross-examination] is to expose bias . . . [the]
examiner must be permitted to elicit any facts which might color a witness' testimony,' and the trial court's usual
discretion to control the scope of cross-examination is circumscribed. (quoting Eckert v. State, 96 Nev. 96, 101,
605 P.2d 617, 620 (1980))); Jones v. State, 108 Nev. 651, 659, 837 P.2d 1349, 1354 (1992).

15
Bushnell, 95 Nev. at 573, 599 P.2d at 1040.
Lobato to introduce extrinsic evidence to impeach Martin on the issue of her motive to testify.
16

[Headnotes 10, 11]
Having held that there was error in the record, we must consider whether that error
was harmless. NRS 178.598 directs that any error that does not affect a defendant's
substantial rights shall be disregarded. The exclusion of a witness' testimony is prejudicial if
there is a reasonable probability that the witness' testimony would have affected the outcome
of the trial.
17
A reasonable probability is a probability sufficient to undermine confidence
in the outcome.
18

Lobato validly characterizes Martin as the State's star witness. The physical
evidence, multiple trauma and the evident use of multiple weapons circumstantially
supported a number of theories of criminal culpability, i.e., manslaughter, second-degree
murder and first-degree murder. But Lobato's purported admissions to Martin suggested that
she was not motivated by a need to defend herself against a sexual assault by the victim, that
she had conjured up a false defense to the homicide, and that her actions were simply
overkill. Martin certainly provided evidence of Lobato's motivations connected to an illicit
drug transaction involving a person with whom she was acquainted, that Lobato was the
initial aggressor, and contradicted Lobato's statements that an unknown assailant precipitated
the attack. In short, Martin's testimony powerfully underscored the State's circumstantially
supported theories of malice and premeditation and substantially undermined Lobato's
alternate claims of self-defense and lesser culpability.
____________________

16
The present matter is distinct from prior cases in which we ruled that extrinsic evidence was inadmissible
and therefore collateral. Those cases dealt with evidence of a witness's prior bad acts, not inquiry into a witness's
bias or interest, and we ruled that the use of extrinsic evidence in such situations was impermissible. See, e.g.,
Collman v. State, 116 Nev. 687, 7 P.3d 426 (2000) (district court properly precluded questioning a state witness
regarding an abortion; such evidence was immaterial to the question of whether the defendant committed
homicide and therefore inadmissible); McKee v. State, 112 Nev. 642, 917 P.2d 940 (1996) (error for prosecutor
to impeach defendant with extrinsic evidence regarding drug use on a specific day; such evidence was irrelevant
to whether defendant trafficked drugs on another day and was therefore inadmissible collateral evidence);
Rowbottom v. State, 105 Nev. 472, 779 P.2d 934 (1989) (error to admit extrinsic evidence of prior bad act to
impeach defendant's credibility; prosecutor could only impeach by questioning defendant about the act during
defendant's own testimony, not by introducing extrinsic evidence); Rembert v. State, 104 Nev. 680, 766 P.2d
890 (1988) (error to allow State to introduce immaterial extrinsic evidence of defendant's termination from
employment; the issue at trial was whether defendant had the opportunity to commit sexual assault; therefore, the
extrinsic evidence was collateral).

17
Bell v. State, 110 Nev. 1210, 1215, 885 P.2d 1311, 1315 (1994).

18
Strickland v. Washington, 466 U.S. 668, 694 (1984).
claims of self-defense and lesser culpability.
19
Because of the equivocal and circumstantial
nature of the other evidence supporting the State's allegations of first-degree murder, we
cannot conclude that the district court's error was harmless. We therefore conclude that the
exclusion of evidence of Martin's interest in assisting the State constitutes reversible error. In
this we wish to stress that in any criminal case, where issues of guilt are close, the testimony
of a jailhouse informant should be regarded with particular scrutiny.
Miscellaneous assignments of error
[Headnote 12]
Lobato also contends that the district court erred in admitting her statements to police
in violation of Miranda, allowing the State to obtain and use privileged material from her
medical files, restricting use of her expert on blood and crime-scene analysis based upon her
failure to timely designate the expert before trial, excluding her alibi evidence for lack of
timely pretrial notice, and allowing prosecutorial misconduct during final argument. We have
considered these assignments of error and find them without merit. We note in passing that
the failures to timely designate experts and alibi witnesses may be cured upon remand.
20
We
also reject Lobato's remaining claims of error, including the assertion that NRS 201.450
21
was unconstitutionally applied and is void for vagueness.
22

CONCLUSION
The district court erred in precluding the defense from fully impeaching a State's
witness. Because the error is not harmless, we reverse Lobato's conviction and remand for a
new trial.
____________________

19
Because no physical evidence tied Lobato to the homicide, Lobato's statements to other witnesses were
circumstantially consistent with theories of self-defense, manslaughter and second-degree murder.

20
While Lobato's claims of self-defense and her presentation of alibi witnesses are antagonistic, the parties
can resolve the theories of defense upon retrial of this matter.

21
For the purposes of this section, sexual penetration means cunnilingus, fellatio or any intrusion,
however slight, of any part of a person's body or any object manipulated or inserted by a person into the
genital or anal openings of the body of another, including, without limitation, sexual intercourse in what
would be its ordinary meaning if practiced upon the living.

22
See Doyle v. State, 112 Nev. 879, 900 n.8, 921 P.2d 901, 914 n.8 (1996) (stating that the plain meaning of
NRS 201.450 is to punish the act of sexual penetration of a dead human body, regardless of motive),
overruled on other grounds by Kaczmarek v. State, 120 Nev. 314, 91 P.3d 16 (2004).
____________
120 Nev. 523, 523 (2004) Stratosphere Gaming Corp. v. Las Vegas
STRATOSPHERE GAMING CORPORATION, dba STRATOSPHERE RESORT &
CASINO, a Nevada Corporation, Appellant, v. CITY OF LAS VEGAS; and
ALARMCO, INC., Respondents.
No. 40788
September 3, 2004 96 P.3d 756
Appeal from a district court order denying a petition for a writ of mandamus and
dismissing a complaint for declaratory relief. Eighth Judicial District Court, Clark County;
Valorie J. Vega, Judge.
Property owner petitioned for writ of mandamus and filed complaint for declaratory
relief regarding City Council's denial of its application to build roller coaster. The district
court denied petition and dismissed complaint. Owner appealed. The supreme court held that:
(1) owner did not have vested right to build roller coaster, and (2) substantial evidence
supported council's decision to deny application to build roller coaster.
Affirmed.
Moran & Associates and John T. Moran III and John T. Moran Jr., Las Vegas, for
Appellant.
Bradford R. Jerbic, City Attorney, and William P. Henry, Senior Litigation Counsel,
Las Vegas, for Respondent City of Las Vegas.
McDonald Carano Wilson LLP and Jeffrey A. Silvestri, Las Vegas; JoNell Thomas,
Las Vegas, for Respondent Alarmco.
1. Zoning and Planning.
City Council's review, and ultimate denial, of property owner's site development plan
to build a roller coaster on its property was a discretionary act, and thus owner did not
have a vested right to build proposed ride. Ordinances under which review was
conducted required City Council to exercise personal deliberation and judgment in
determining whether proposed development was appropriate, and Council's
discretionary review precluded vesting of any right to build ride on owner's property.
When a district court has reviewed a zoning decision without taking additional
evidence and the decision is appealed to the supreme court, the scope of review is
usually limited to a determination of whether the agency or municipality that made the
decision appealed from committed an abuse of discretion.
A decision that lacks support in the form of substantial evidence is arbitrary or
capricious and, therefore, an abuse of discretion.
Substantial evidence supported City Council's decision to deny permit to property
owner to build roller coaster, even though owner introduced expert testimony that
rebutted opinions of area residents that roller coaster would result in increased
traffic causing public safety hazard, was incompatible with residential
neighborhood, and could cause increased noise and ground vibration; Council
received 175 written protests to development and approximately 20 individuals
testified against proposed ride during public hearing.
duced expert testimony that rebutted opinions of area residents that roller coaster would
result in increased traffic causing public safety hazard, was incompatible with
residential neighborhood, and could cause increased noise and ground vibration;
Council received 175 written protests to development and approximately 20 individuals
testified against proposed ride during public hearing.
OPINION
Per Curiam:
This appeal challenges the Las Vegas City Council's denial of appellant Stratosphere
Resort & Casino's site development plan application to develop a thrill ride. The Stratosphere
petitioned the district court for a writ of mandamus and filed a complaint for declaratory
relief. The district court denied the petition and dismissed the complaint. We affirm the
district court's order.
FACTS
Appellant Stratosphere Resort & Casino (the Stratosphere) applied to the City of Las
Vegas (City) for a site development plan review to construct a proposed ride located at 2000
and 2035 Las Vegas Boulevard South in Las Vegas, Nevada. The Stratosphere filed its
application pursuant to section 19.18.050 of the Las Vegas Municipal Code.
1
The proposed
roller-coaster-type ride consisted of a steel structure rising 510 feet on the east side of the
Stratosphere tower. A passenger car would ascend the 510 feet and then free-fall 204 feet,
reaching a maximum speed of 93 miles per hour. The passenger car would then ascend a
325-foot tower that would be built on the Stratosphere's property across from the Stratosphere
tower.
2

The City Planning and Development Department concluded that the ride would be
located in a permitted C-2 (General Commercial) zoning district and that it would not disturb
local traffic patterns. It recommended approval of the proposed ride subject to certain
conditions.
The Las Vegas Planning Commission held a public meeting on the application for the
proposed ride. Before the public hearing on the application, the Commission received 670
protests against the proposed ride and 7S approvals for the ride.
____________________

1
Section 19.18.050 mandates that a property owner seeking approval of a proposed commercial
development plan must file a site development plan with the City's Planning and Development Department.

2
The Stratosphere originally applied to the City to build a thrill ride that was much larger and faster. This
opinion will address the modified ride.
proposed ride and 78 approvals for the ride. At the public hearing, 95 individuals appeared in
support of the proposed ride and 78 individuals opposed the ride. Approximately 20
individuals, including nearby residents and business owners, spoke in opposition to the
proposed ride, objecting to the ride's proximity to the residential neighborhoods and the
increased traffic and noise level it would generate. The Stratosphere introduced four experts
at the public hearing to rebut the opposition's concerns. The Planning Commission failed to
approve the application for the proposed ride by a 2-2 vote.
The Las Vegas City Council (City Council) then considered the application for the
Stratosphere's proposed ride. Before the City Council's public hearing, the City Council
received 175 protests against the proposal and 671 approvals for the proposal. During the
public hearing, approximately 20 individuals spoke in opposition to the proposed ride. The
opponents addressed the same concerns that were mentioned during the Planning
Commission's public hearing. The City Council unanimously denied the Stratosphere's
application for the proposed ride by a 6-0 vote, with one abstention. Before Mayor Oscar
Goodman voted, he made the following statement:
[M]y vision as the Mayor of the City of Las Vegas is to have a revitalized downtown.
And I am convinced that in order to do that, one of the most important elements is to
have people move back into a neighborhood which is maturing and decaying and to
revitalize that neighborhood . . . .
. . . .
[I]f those folks in the neighborhood feel that this particular project is such that it will
destroy their quality of life as they perceive it, then I have to feel that I must support the
neighbors against the Stratosphere as far as these issues are concerned.
The Stratosphere then filed a petition for a writ of mandamus and complaint for
declaratory relief in the district court. Respondent Alarmco intervened in the proceedings.
After a hearing, the district court denied the petition, dismissed the complaint and entered an
order, concluding that the City Council's review of a site development plan pursuant to
section 19.18.050 is a discretionary act and that the Stratosphere did not have a vested right to
build the proposed ride. The district court also concluded that substantial evidence supported
the City Council's 6-0 vote at the public hearing and that the City Council properly considered
section 19.18.050 in reaching its decision.
The Stratosphere appeals, contending that the district court erred in denying its
petition and dismissing its complaint because the City Council's authority to review a site
development plan application involves a nondiscretionary act and that the Stratosphere
has a vested right to build the proposed ride.
City Council's authority to review a site development plan application involves a
nondiscretionary act and that the Stratosphere has a vested right to build the proposed ride.
According to the Stratosphere, even if the City Council has discretion to review a site
development plan, the City Council abused its discretion because its decision is not supported
by substantial evidence.
DISCUSSION
The Stratosphere asserts that under section 19.18.050 of the Las Vegas Municipal
Code, the City Council's review of a site development plan is a nondiscretionary act, and
therefore, it has a vested right to build the ride because the ride is permitted within existing
zoning. The Stratosphere contends that the City Council's review of the proposed ride is only
of an aesthetic nature because the Stratosphere does not seek any special consideration,
such as a zoning change, special use permit, conditional use permit, or a variance.
[Headnote 1]
The City Council's review of a site development plan is governed by section
19.18.050(A), which states that the purpose of the review process is to ensure that the
development plan:
(1) Is consistent with the General Plan, this Title, the Design Standards Manual, the
Landscape, Wall and Buffer Standards and other regulations, plans and policies of the
City;
(2) Contributes to the long term attractiveness of the City;
(3) Contributes to the economic vitality of the community by ensuring compatibility
of development throughout the community; and
(4) Contributes to the public safety, health and general welfare.
Moreover, section 19.18.050(E) states the criteria for the site development plan review and
provides that the review is intended to ensure that:
(1) The proposed development is compatible with adjacent development and
development in the area;
(2) The proposed development is consistent with the General Plan, this Title, the
Design Standards Manual, the Landscape, Wall and Buffer Standards, and other
duly-adopted City plans, policies and standards;
(3) Site access and circulation do not negatively impact adjacent roadways or
neighborhood traffic;
(4) Building and landscape materials are appropriate for the area and for the City;
(5) Building elevations, design characteristics and other architectural and aesthetic
features are not unsightly, undesirable or obnoxious in appearance; create an orderly
and aesthetically pleasing environment; and are harmonious and compatible with
development in the area;
(6) Appropriate measures are taken to secure and protect the public health, safety and
general welfare.
In the context of governmental immunity, we have defined a discretionary act as an
act that requires a decision requiring personal deliberation and judgment.
3
The language
used in section 19.18.050 clearly indicates a discretionary act on the part of the City Council.
The ordinance uses numerous terms that require the City Council to exercise personal
deliberation and judgment. For example, the City Council must ensure that the development
contributes to the City's long-term attractiveness and to public safety, health and general
welfare, is compatible with development in the area, and is not unsightly, undesirable or
obnoxious in appearance.
In Board of County Commissioners v. CMC of Nevada,
4
this court rejected an
argument similar to the Stratosphere's in a situation involving the issuance of a building
permit. The applicant argued that the Commission is confined to a review of aesthetics and
has no other discretion under a county ordinance.
5
This court stated: In our view, the
Ordinance was not enacted to merely provide perfunctory review and endorsement of plans
previously submitted in support of a conditional use permit request.
6

The Stratosphere also asserts that it has a vested right to build the proposed ride
because the City Council previously approved the Stratosphere's application to build another
ride on the same property and because the ride is permitted within existing zoning. We have
held that [i]n order for rights in a proposed development project to vest, zoning or use
approvals must not be subject to further governmental discretionary action affecting project
commencement, and the developer must prove considerable reliance on the approvals
granted.
7
We have also held that [o]nce it is established that an area permits several uses,
it is within the discretion and good judgment of the municipality to determine what
specific use should be permitted.
____________________

3
University of Nevada, Reno v. Stacey, 116 Nev. 428, 434, 997 P.2d 812, 816 (2000).

4
99 Nev. 739, 743, 670 P.2d 102, 104-05 (1983).

5
Id. at 742-43, 670 P.2d at 104.

6
Id. at 743, 670 P.2d at 104.

7
American West Dev. v. City of Henderson, 111 Nev. 804, 807, 898 P.2d 110, 112 (1995).
and good judgment of the municipality to determine what specific use should be permitted.
8

Under section 19.18.050, the City Council must approve the Stratosphere's proposed
development of the property through the City's site development plan review process. That
process requires the Council to consider a number of factors and to exercise its discretion in
reaching a decision. There is no evidence that the Stratosphere had a vested right to construct
the proposed ride.
Substantial evidence
The Stratosphere asserts that if the City Council's review is a discretionary act, the
City Council exercised its discretion in an arbitrary and capricious manner because its
decision is not supported by substantial evidence. Specifically, the Stratosphere argues that
the City Council based its decision solely on public opposition to the proposed ride and that
public opposition alone is not substantial evidence. The Stratosphere also argues that it
presented substantial expert evidence to rebut the opposition's concerns. The Stratosphere
contends, therefore, that the district court abused its discretion by denying the petition for a
writ of mandamus. We disagree.
[Headnotes 2, 3]
When a district court has reviewed a zoning decision without taking additional
evidence and the decision is appealed to this court, the scope of review is usually limited to a
determination of whether the agency or municipality which made the decision appealed from
committed an abuse of discretion.
9
A decision that lacks support in the form of substantial
evidence is arbitrary or capricious and, therefore, an abuse of discretion.
10
We have defined
substantial evidence as that which a reasonable mind might accept as adequate to
support a conclusion. '
11

[Headnote 4]
Section 19.18.050(E)(5) provides that the site development plan review process is
intended to ensure that the proposed development is "harmonious and compatible with
development in the area" and that it is not "unsightly, undesirable, or obnoxious in
appearance.
____________________

8
City of Reno v. Harris, 111 Nev. 672, 679, 895 P.2d 663, 667 (1995); see also Wesley Inv. Co. v. County of
Alameda, 198 Cal. Rptr. 872, 873 (Ct. App. 1984) (concluding that property owner did not have absolute right
to build retail store on property even though zoning ordinances permitted such use of the property because local
ordinances mandated site development review).

9
Harris, 111 Nev. at 677, 895 P.2d at 666.

10
Tighe v. Las Vegas Metro. Police Dep't, 110 Nev. 632, 634, 877 P.2d 1032, 1034 (1994); see also NRS
233B.135(3).

11
State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971) (quoting Edison Co. v. Labor Board, 305 U.S. 197, 229 (1938))).
is harmonious and compatible with development in the area and that it is not unsightly,
undesirable, or obnoxious in appearance. The language of this ordinance clearly invites
public opinion.
We have previously recognized that [t]he United States Constitution simply does not
forbid democratic government[s] to succumb to individual and public pressures in reaching
land use decisions that work to the detriment of an individual litigant.
12
Thus, we have
recognized that a local government may weigh public opinion in making a land-use decision.
Moreover, in City of Las Vegas v. Laughlin,
13
we explained that substantial and specific
public opposition could constitute substantial evidence to support a local government's
decision to deny a request for a special use permit. In Laughlin, over 200 individuals
14
opposed the respondent's application for a special use permit for a convenience store to be
built on land properly zoned for commercial use but near a residential neighborhood.
15
We
concluded that the public's substantial and specific concerns, specifically those over
increased traffic where children walk to school and preserving the residential nature of the
neighborhood, establish a valid basis for the denial of [the respondent's] request for a special
use permit.
16
In contrast, in City Council, Reno v. Travelers Hotel,
17
we concluded that a
single lay opinion from a neighborhood resident that a proposed casino was too close to a
school presented insufficient grounds for a city council to deny a property owner's request for
a special use permit. In Travelers, there was also a substantial body of evidence supporting
the application.
18

In this case, the City Council received 175 written protests before the City Council's
public hearing, and approximately 20 individuals testified against the proposed ride during
the City Council's public hearing. The opposition primarily consisted of nearby neighborhood
residents and business owners. The opposition's main concerns included: (1) the compatibility
of the proposed ride located near the residential neighborhood, (2) the increased
neighborhood traffic and resulting safety concerns, and (3) the possibility of increased noise
and ground vibration caused by the proposed ride.
____________________

12
Boulder City v. Cinnamon Hills Assocs., 110 Nev. 238, 249, 871 P.2d 320, 327 (1994) (citing Greenbriar,
LTD. v. City of Alabaster, 881 F.2d 1570, 1579 (11th Cir. 1989)).

13
111 Nev. 557, 559, 893 P.2d 383, 385 (1995).

14
Id. This number reflects a petition containing 176 signatures, letter writers, speakers at the hearing, and
represented homeowners. Id. at 558, 893 P.2d at 384.

15
Id. at 558-59, 893 P.2d at 384.

16
Id. at 559-60, 893 P.2d at 385.

17
100 Nev. 436, 438-39, 683 P.2d 960, 961-62 (1984).

18
Id. at 438, 683 P.2d at 961.
ity of increased noise and ground vibration caused by the proposed ride. Although the
Stratosphere presented evidence to rebut the opposition's concerns and testimony from
individuals who supported the proposed ride,
19
we cannot substitute our judgment for that of
the City Council as to the weight of the evidence.
20
We conclude that the kind of concerns
expressed by the individuals and businesses opposed to the proposed ride are substantial and
specific. Those concerns implicate the criteria that the City Council must consider under
section 19.18.050 and establish a valid basis for the City Council's decision to reject the
Stratosphere's site development plan. Therefore, we conclude that the district court did not
abuse its discretion in denying the Stratosphere's petition and dismissing its complaint for
declaratory relief.
CONCLUSION
Having concluded that the Stratosphere's contentions lack merit, we affirm the order
of the district court.
____________
120 Nev. 530, 530 (2004) Zabeti v. State
RAMIN ZABETI, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 41152
September 3, 2004 96 P.3d 773
possession of a controlled substance. Eighth Judicial District Court, Clark County; Sally L.
Loehrer, Judge.
The supreme court held that: (1) as a matter of first impression, statute allowing
search warrant to be issued by a magistrate of the State of Nevada does not require that
warrant be issued and executed in same county; (2) announcement that stated, Police officer
search warrant did not violate Fourth Amendment or state statute governing
knock-and-announce procedures; and {3) entering of residence less than 10 seconds after
announcing presence to execute search warrant was reasonable.
____________________

19
We note that the Stratosphere's evidence adduced at the Planning Commission's public hearing did not
clearly rebut all of the concerns expressed by the public opposition. For example, the expert report on traffic
conditions on Las Vegas Boulevard addressed the thoroughfare's ability to handle the load of increased traffic.
The report did not address the concern that the proposed ride would increase traffic delays, leading to increased
use of alternate routes through the surrounding residential neighborhoods. Additionally, we note that the record
indicates that many of the individuals who spoke in favor of the proposed ride at both the Planning
Commission's public hearing and the City Council's public hearing were Stratosphere employees and many of
them did not live in the affected residential neighborhoods.

20
See Clark Co. Liquor & Gaming v. Simon & Tucker, 106 Nev. 96, 98, 787 P.2d 782, 783 (1990)
(existence of conflicting evidence did not compel interference with a Clark County Liquor and Gaming
Licensing Board decision so long as the decision was supported by substantial evidence).
statute governing knock-and-announce procedures; and (3) entering of residence less than 10
seconds after announcing presence to execute search warrant was reasonable.
Affirmed and remanded.
[Rehearing denied October 5, 2004]
Goodman & Chesnoff and David Z. Chesnoff and Richard A. Schonfeld, Las Vegas;
William B. Terry, Las Vegas, for Appellant.
James Tufteland, Chief Deputy District Attorney, and Cheryl L. Kosewicz, Deputy District
1. Searches and Seizures.
Statute allowing search warrant to be issued by a magistrate of the State of Nevada
does not require that warrant be issued and executed in same county. NRS 179.025.
2. Criminal Law.
Statutory construction is a question of law that supreme court reviews de novo.
3. Statutes.
In determining the Legislature's intent in enacting a statute, supreme court first looks
to the plain language of the statute.
4. Statutes.
When the plain language of the statute is ambiguous, supreme court considers the
context and spirit of the statute in question, together with the subject matter and policy
involved.
5. Statutes.
Ambiguities in criminal liability statutes must be liberally construed in favor of the
accused.
Police officers' announcement that stated, Police officer search warrant and that was
made before entering residence did not violate Fourth Amendment or state statute
allowing officer to break house's door to execute warrant if officer is refused
admittance after notice is given of authority and purpose even though officers did not
physically knock on door. Officers knew that residents had prior arrests, residence had
two stories, and use of second story by residents could have compromised officers'
safety. U.S. Const. amend. 4; NRS 179.055.
7. Criminal Law.
Supreme court reviews a district court's decision to suppress evidence under an abuse
The totality of the circumstances must be considered when deciding whether a search
was reasonable. Const. art. 1, 18; U.S. Const. amend. 4.
Entering of residence by police officers less than 10 seconds after announcing
presence to execute search warrant was reasonable under Fourth Amendment and state
statute setting forth knock and announce requirements.
ments. Concerns for officers' safety existed since residents had prior arrests, residence
had two stories, and residence had open garage door. U.S. Const. amend. 4; NRS
179.055.
OPINION
Per Curiam:
Appellant Ramin Zabeti was convicted of one count of possession of a controlled
substance. Zabeti contends that the district court erred in concluding that a district court judge
from one county can issue a search warrant to be executed in another county.
1
Zabeti also
contends that the district court erred in denying his motion to suppress evidence discovered at
his residence after the police failed to physically knock on his door before entering to conduct
a search. We reject Zabeti's contentions.
FACTS
The State filed an indictment against Zabeti for possession of a controlled substance
with the intent to sell. Following a jury trial, the jury convicted Zabeti of the lesser-included
offense of possession of a controlled substance. The district court sentenced Zabeti to two
years in prison, but granted probation.
On May 2, 2001, a White Pine County district court judge signed a search warrant
authorizing the police to search Zabeti's residence, located in Clark County, at 3331
Ceremony Drive, Las Vegas, Nevada. The district court authorized the search warrant to
further an investigation regarding the crime of furnishing a controlled substance to a state
prisoner. The police executed the search warrant on May 4, 2001. Zabeti filed a motion to
suppress the evidence seized during the search and requested an evidentiary hearing. Zabeti
alleged that the search warrant was illegal because the White Pine County district court
judge lacked jurisdiction to issue a search warrant to be executed in Clark County and
because the police failed to knock and announce their entry before entering Zabeti's
residence.
____________________

1
Zabeti also raises the following issues in this appeal: (1) the district court erred in denying his petition for a
writ of habeas corpus because the charges the State filed against Zabeti in White Pine County, which were later
dismissed, are the same charges the State filed against Zabeti in this case; (2) the district court erred in denying
his petition for a writ of habeas corpus because the State declined to present exculpatory evidence at the grand
jury proceeding; (3) the district court erred in denying Zabeti treatment under NRS 453.3363(1); (4) the district
court erred in denying Zabeti's petition for a writ of habeas corpus because the grand jury was not provided with
sufficient evidence to indict Zabeti for possession of a controlled substance with the intent to sell; and (5) the
district court erred in failing to address every issue raised in Zabeti's petition for a writ of habeas corpus. We
conclude that these arguments lack merit.
White Pine County district court judge lacked jurisdiction to issue a search warrant to be
executed in Clark County and because the police failed to knock and announce their entry
before entering Zabeti's residence.
The district court heard arguments on Zabeti's motion to suppress and concluded that
the White Pine County district court judge properly exercised jurisdiction to issue a search
warrant to be executed in another jurisdiction. Additionally, the district court granted Zabeti
an evidentiary hearing on the State's failure to knock and announce.
During the evidentiary hearing, Officer Darrell Hixson
2
testified that the search
warrant for Zabeti's residence was classified by the SWAT team as a high-risk warrant due to
the prior arrests of Zabeti and his brother, Paymen Zabeti, who both lived at the residence.
Officer Hixson testified that Paymen's prior arrests included charges for drawing a firearm,
resisting arrest, and carrying a concealed weapon. Zabeti's prior arrests included charges for
assault with a deadly weapon, battery, resisting a police officer, and giving false information
to a police officer. Officer Hixson also testified that the SWAT team classified the search of
Zabeti's residence as a high-risk search because the house had two stories, enabling occupants
to have high ground on SWAT officers or team members.
Officer Hixson testified that the SWAT team executed the search warrant during the
daytime and that there were seventeen SWAT officers involved. When the police arrived at
Zabeti's residence, Zabeti was standing outside with another individual. Officer Hixson
testified that an officer handcuffed Zabeti and the other individual and that neither Zabeti nor
the other individual attempted to enter the residence.
When the police officers approached the front door to Zabeti's residence, Officer
Hixson testified that he and the other police officers announced: Police officer search
warrant. Officer Hixson stated that he and the other officers were speaking loud enough for
individuals inside the residence to hear them. After the police announced their presence,
Hixson testified that the officers waited no more than 10 seconds before entering the
residence. Officer Hixson admitted that his police report stated the officers waited either 4 to
10 seconds or 5 to 10 seconds.
Officer Hixson admitted that prior to arriving at the residence, the officers planned to
knock on the door and to wait no longer than 15 seconds. Officer Hixson testified that the
decision to wait only 10 seconds and not to knock on the door was based on Zabeti's and
Paymen's prior arrests, "the layout of the house," Zabeti's and the other individual's
presence outside the residence, the open garage door, and the daylight hour.
____________________

2
Darrell Hixson is an officer from the Las Vegas Metropolitan Police Department and is assigned to the
SWAT section. The SWAT section serves high-risk search warrants.
Zabeti's and Paymen's prior arrests, the layout of the house, Zabeti's and the other
individual's presence outside the residence, the open garage door, and the daylight hour.
Officer Hixson explained that when a suspect with a prior arrest record similar to Paymen's
lives in a two-story house, there is concern that it would be easy for the suspect to shoot from
the top story of the residence down on the officers. Officer Hixson also explained that the
open garage door presented a high risk to officer safety because there are more obscured
angles from which a suspect inside the garage could shoot an officer. Officer Hixson testified
that the officers found no individuals inside Zabeti's residence.
The district court held that, under the totality of the circumstances, the police officers
did not violate NRS 179.055.
3

DISCUSSION
[Headnote 1]
Zabeti contends that the district court erred in concluding that a White Pine County
district judge had jurisdiction to issue a search warrant to be executed in Clark County. We
disagree.
[Headnotes 2-5]
Statutory construction is a question of law that we review de novo.
4
In determining
the Legislature's intent in enacting a statute, we first look to the plain language of the
statute.
5
When the plain language of the statute is ambiguous, we consider the context
and spirit of the statute in question, together with the subject matter and policy involved.'
6
In addition, ambiguities in criminal liability statutes must be liberally construed in favor of
the accused.
7

NRS 179.025 provides that [a] search warrant authorized by NRS 179.015 to
179.115, inclusive, may be issued by a magistrate of the State of Nevada.
8
The statutory
construction of NRS 179.025 is an issue of first impression for this court.
NRS 179.025 is similar to a statutory provision from Indiana. In Brannon v. State, the
Indiana Court of Appeals, interpreting their statute, noted that "although some
jurisdictions limit magistrates to their own territorial jurisdiction with regard to issuance
of search warrants, our controlling statute specifically states that a search warrant issued
by a court of record may be executed 'anywhere in the state.
____________________

3
The district court referred to NRS 175.055, which does not exist, but it appears the court meant to refer to
NRS 179.055 because NRS 179.055(1) grants officers the authority to break down a door if after notice of his
authority and purpose, he is refused admittance.

4
Moore v. State, 117 Nev. 659, 661, 27 P.3d 447, 449 (2001).

5
Id.

6
Id. at 661-62, 27 P.3d at 449 (quoting Gallagher v. City of Las Vegas, 114 Nev. 595, 599, 959 P.2d 519,
521 (1998)).

7
Id. at 662, 27 P.3d at 449.

8
NRS 179.015 to NRS 179.115 provide the law with regard to search warrants.
statute, noted that although some jurisdictions limit magistrates to their own territorial
jurisdiction with regard to issuance of search warrants, our controlling statute specifically
states that a search warrant issued by a court of record may be executed anywhere in the
state.'
9
NRS 179.025 does not specifically limit a search warrant to be issued and executed
in the same county. In addition, NRS 3.220 provides that [t]he district judges shall possess
equal coextensive and concurrent jurisdiction and power. They each shall have power to hold
court in any county of this state. Therefore, we conclude that the district court did not err in
concluding that a White Pine County district court judge could properly exercise jurisdiction
to issue a search warrant to be executed in Clark County.
[Headnote 6]
Zabeti also contends that the district court erred in denying Zabeti's motion to
suppress the evidence seized during the search of his residence. Specifically, Zabeti contends
that the police officers' announcementPolice officer search warrantbefore entering his
residence is a violation of 18 U.S.C. 3109, NRS 179.055, and the Fourth Amendment to the
United States Constitution because the police never physically knocked on the door. Zabeti
also contends that the police officers' decision to wait no more than 10 seconds before
entering the residence provided an insufficient amount of time. We disagree with Zabeti's
contentions.
[Headnote 7]
We review a district court's decision to suppress evidence under an abuse of discretion
standard.
10
The Fourth Amendment provides that the people are protected against
unreasonable searches and seizures by law enforcement.
11
18 U.S.C. 3109 provides that in
executing a search warrant, a police officer may break open any outer or inner door or
window of a house, or any part of a house, or anything therein . . . if, after notice of his
authority and purpose, he is refused admittance.
12
Nevada has codified 3109 at NRS
179.055.
13

____________________

9
801 N.E.2d 750, 751 (Ind. Ct. App. 2004) (quoting Ind. Code Ann. 35-33-5-7 (Lexis 1998)).

10
See Lambert v. State, 94 Nev. 68, 71, 574 P.2d 586, 587 (1978) (holding that the trial court did not abuse
its discretion in denying defendant's motion to suppress identification testimony).

11
U.S. Const. amend IV; see also Nev. Const. art. 1, 18.

12
18 U.S.C. 3109 (2000).

13
NRS 179.055(1) provides: The officer may break open any outer or inner door or window of a house, or
any part of the house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he
is refused admittance.
[Headnote 8]
The United States Supreme Court has interpreted 3109 and held that the
common-law knock and announce' principle forms a part of the reasonableness inquiry
under the Fourth Amendment.
14
The totality of the circumstances must be considered when
deciding whether a search was reasonable.
15
In Richards v. Wisconsin, the United States
Supreme Court held that in order for a no-knock search to be reasonable, the police must
have a reasonable suspicion that knocking and announcing their presence, under the particular
circumstances, would be dangerous or futile, or that it would inhibit the effective
investigation of the crime.
16
The Supreme Court has also held that a 15-to-20-second wait
after police officers announced their presence was reasonable under the Fourth Amendment
and 3109.
17

[Headnote 9]
Here, the police officers knew that Zabeti and Paymen had prior arrests, and they
observed the open garage door and the two-story residence. This information led the officers
to reasonably believe that if they physically knocked on the door, and prolonged the delay
before entering, the officers' safety could be compromised. The officers executing the warrant
did verbally announce their presence by stating, Police officer search warrant in a loud
voice and waited less than 10 seconds before entering. We have held that such an
announcement satisfies the knock and announce requirements of NRS 179.055.
18
Given
the exigent circumstances, we conclude that the verbal announcement in this case complied
with the law. And, although we acknowledge that entering the residence less than 10 seconds
after the officers announced their presence was a very brief period of time, we conclude it
was sufficient given the concerns for officer safety.
19
Therefore, under the totality of the
circumstances, the district court did not abuse its discretion in denying Zabeti's motion to
suppress.
____________________

14
Wilson v. Arkansas, 514 U.S. 927, 929 (1995).

15
United States v. Banks, 540 U.S. 31, 41 (2003).

16
520 U.S. 385, 394 (1997).

17
Banks, 540 U.S. at 33.

18
See King v. State, 116 Nev. 349, 358, 998 P.2d 1172, 1177 (2000) (concluding that the police did not
violate NRS 179.055 by failing to knock prior to entering the premises after stating, Police officer. Search
warrant, given the valid concerns for officer safety).

19
See U.S. v. Fox, 790 F. Supp. 1487, 1498 (D. Nev. 1992) (concluding that based on the police officers'
reasonable basis for believing that compliance with the knock and announce provisions of NRS 179.055
would have placed them in danger, their noncompliance was justified).
CONCLUSION
For the reasons stated herein, we affirm Zabeti's judgment of conviction. However,
after a review of the record, we noticed a clerical error. The judgment of conviction states that
Zabeti was convicted pursuant to a guilty plea, when, in fact, he was convicted pursuant to a
jury verdict. Therefore, we remand this case to the district court for the limited purpose of
entering a corrected judgment of conviction.
____________
120 Nev. 537, 537 (2004) Sullivan v. State
CARL OTIS SULLIVAN, Appellant, v. THE STATE
No. 42185
September 3, 2004 96 P.3d 761
Appeal from a district court order denying appellant's post-conviction petition for a
writ of habeas corpus. Second Judicial District Court, Washoe County; James W. Hardesty,
Judge.
After affirmance of defendant's conviction pursuant to guilty plea and a remand for
correction of judgment of conviction, 115 Nev. 383, 990 P.2d 1258 (1999), petitioner sought
post-conviction writ of habeas corpus. The district court denied the petition. Petitioner
appealed. The supreme court held that district court's entry of amended judgment of
conviction did not provide good cause for untimely filing of petition for post-conviction
habeas corpus relief.
Affirmed.
Jill I. Greiner, Reno, for Appellant.
Respondent.
1. Habeas Corpus.
District court's entry of amended judgment of conviction, after district court had
vacated its corrected judgment of conviction because the corrected judgment had been
entered before supreme court had issued remittitur, in defendant's direct appeal,
directing district court to make clerical correction to judgment, did not provide good
cause for extending one-year time limit for petition for post-conviction writ of habeas
corpus. Petitioner's post-conviction claims that trial counsel and direct appeal counsel
had been ineffective and that his guilty plea was invalid were not related to the clerical
correction contained in the amended judgment of conviction. NRS 34.726(1), 176.565.
2. Habeas Corpus; Stipulations.
Stipulation by State and petitioner, that post-conviction petition for writ of habeas
corpus was timely, could not empower the court to ignore the mandatory procedural
default rules for post-conviction habeas petitions. NRS 34.726(1).
3. Habeas Corpus.
When the Legislature enacted the one-year time limit on post-conviction habeas
corpus petitions, the overall spirit was one of limiting habeas petitioners to one time
through the post-conviction system absent extraordinary circumstances. NRS
34.726(1).
4. Habeas Corpus.
Petitioner's allegation that his counsel did not inform him that he had one year, from
supreme court's issuance of remittitur in the direct appeal, to file post-conviction
petition for habeas corpus relief did not provide good cause for untimely filing of
petition. NRS 34.726(1).
OPINION
1

Per Curiam:
In this appeal, we consider whether the district court's entry of an amended judgment
of conviction provided good cause to extend the one-year limitation set forth in NRS
34.726(1) for filing a timely post-conviction petition for a writ of habeas corpus. We
conclude that because the claims presented in appellant's post-conviction petition were
unrelated to the district court's clerical amendment, the entry of the amended judgment in this
case did not provide good cause to excuse appellant's failure to raise the claims asserted in his
petition within the statutory deadline.
FACTS
On December 29, 1997, appellant Carl Otis Sullivan was charged by way of criminal
information with robbery with the use of a deadly weapon, burglary, and possession of stolen
property. The State alleged in the information that Sullivan committed burglary by entering
the victim's residence with felonious intent, committed robbery with the use of a deadly
weapon by threatening the victim with a knife and taking his Mercedes Benz, and possessed
stolen property including three mink coats, a camera, a compact disc player, a video cassette
recorder and miscellaneous jewelry.
On January 7, 1998, Sullivan pleaded guilty to one count each of robbery, burglary,
and possession of stolen property. The district court sentenced Sullivan to serve
consecutive prison terms of 35 to 156 months, 22 to 96 months, and 22 to 96 months.
____________________

1
The district court's order denying appellant's post-conviction petition was previously affirmed by this court
in an unpublished order entered on March 5, 2004. The State subsequently filed a motion seeking publication of
our order. Cause appearing, we grant the State's motion to publish. Accordingly, we issue this opinion in place of
our prior unpublished order.
court sentenced Sullivan to serve consecutive prison terms of 35 to 156 months, 22 to 96
months, and 22 to 96 months. The original judgment of conviction contained a clerical error,
i.e., it erroneously pronounced Sullivan guilty of robbery with the use of a deadly weapon,
when in fact Sullivan had pleaded guilty to simple robbery, without the use of a deadly
weapon. On direct appeal, this court affirmed the judgment of conviction, rejecting Sullivan's
claim that the State had breached the plea agreement, but remanded the case to the district
court, directing it to correct the mistaken reference to the deadly weapon enhancement.
2
On
January 3, 2000, before this court issued the remittitur in the direct appeal, the district court
entered a corrected judgment of conviction. Thereafter, this court issued the remittitur on
January 10, 2000.
On May 10, 2001, Sullivan filed a proper person post-conviction petition for a writ of
habeas corpus. The district court appointed counsel to represent Sullivan, and counsel filed a
supplement to the petition. On October 2, 2001, the State moved to dismiss the petition,
arguing that it was untimely and procedurally barred. Counsel for Sullivan filed an opposition
to the motion to dismiss, arguing that Sullivan had good cause to excuse the untimely filing
of his petition. Thereafter, the district court concluded that it did not have jurisdiction over
the case when it had entered the corrected judgment on January 3, 2000, because this court
had not yet issued the remittitur in the direct appeal.
3
Consequently, on December 11, 2001,
the district court vacated the corrected judgment and entered a new amended judgment of
conviction. The parties then stipulated that Sullivan's supplemental petition should be treated
as timely because it was filed within one year of the entry of the amended judgment.
On July 12, 2002, counsel for Sullivan filed a second supplement to the
post-conviction habeas petition. On August 6, 2002, the district court denied the State's
motion to dismiss and ordered the State to file an answer to Sullivan's petition. On September
17, 2002, the State filed an answer to the petition and a partial motion for dismissal, arguing
that Sullivan's claims were belied by the record. On October 16, 2002, counsel for Sullivan
filed a reply to the State's answer and an opposition to the partial motion for dismissal. On
October 30, 2002, the district court denied the State's partial motion for dismissal. After
conducting an evidentiary hearing on the merits of Sullivan's claims of ineffective assistance
of counsel, the district court denied the petition on September 17, 2003. Sullivan filed this
timely appeal.
____________________

2
Sullivan v. State, 115 Nev. 383, 391, 990 P.2d 1258, 1263 (1999).

3
See Buffington v. State, 110 Nev. 124, 868 P.2d 643 (1994) (holding that a district court lacks jurisdiction
to enter an amended judgment of conviction before this court issues the remittitur in the case).
DISCUSSION
[Headnotes 1, 2]
Sullivan contends that the district court erred in rejecting his claims of ineffective
assistance of counsel. Before addressing the substance of Sullivan's claims, we first discuss
whether Sullivan's post-conviction habeas petition was procedurally barred.
4
Sullivan's
post-conviction petition was untimely because it was filed approximately 14 months after this
court issued the remittitur in the direct appeal.
5
The parties, however, stipulated that the
claims presented in the supplemental petition should be treated as timely because the petition
was filed within one year of the entry of the amended judgment of conviction. We conclude
that the petition was improperly treated as timely under NRS 34.726 simply because it was
filed within one year of the entry of the amended judgment of conviction.
6

NRS 34.726(1) provides that a timely post-conviction habeas petition must be filed
within 1 year after entry of the judgment of conviction or, if an appeal has been taken from
the judgment, within 1 year after the Supreme Court issues its remittitur. No specific
language in NRS 34.726 expressly provides that the one-year time period restarts if the
judgment of conviction is amended.
[Headnote 3]
Moreover, construing NRS 34.726 to provide such an extended time period would
result in an absurdity that the Legislature could not have intended.
7
A judgment of
conviction may be amended at any time to correct a clerical error
8
or to correct an illegal
sentence.
9
Because the district court may amend the judgment many years, even decades,
after the entry of the original judgment of conviction, restarting the one-year time period for
all purposes every time an amendment occurs would frustrate the purpose and spirit of NRS
34.726. Specifically, it would undermine the doctrine of finality of judgments by allowing
petitioners to file post-conviction habeas petitions in perpetuity.
10
When the Legislature
enacted NRS 34.726, the "overall spirit was one of limiting habeas petitioners to one time
through the [post-conviction] system absent extraordinary circumstances.
____________________

4
See Pellegrini v. State, 117 Nev. 860, 886 & n.116, 34 P.3d 519, 536 & n.116 (2001) (disallowing the
discretionary application of the procedural default rules).

5
NRS 34.726(1).

6
We also conclude that the stipulation was invalid. See State v. Haberstroh, 119 Nev. 173, 180-81, 69 P.3d
676, 681-82 (2003) ([A] stipulation by the parties cannot empower a court to disregard the mandatory
procedural default rules.).

7
See Dickerson v. State, 114 Nev. 1084, 1087, 967 P.2d 1132, 1133-34 (1998).

8
NRS 176.565.

9
NRS 176.555.

10
See Dickerson, 114 Nev. at 1087-88, 967 P.2d at 1133-34.
34.726, the overall spirit was one of limiting habeas petitioners to one time through the
[post-conviction] system absent extraordinary circumstances.
11
In keeping with the spirit of
NRS 34.726, we conclude that the one-year statutory time limit did not automatically restart
for Sullivan's post-conviction claims simply because the district court entered the amended
Instead, we hold that the statutory framework set forth in NRS 34.726(1) requires that
claims presented in an untimely post-conviction habeas petition must be dismissed as
procedurally barred [u]nless there is good cause shown for [the] delay. NRS 34.726(1)
provides in pertinent part:
For the purposes of this subsection, good cause for delay exists if the petitioner
demonstrates to the satisfaction of the court:
(a) That the delay is not the fault of the petitioner; and
(b) That dismissal of the petition as untimely will unduly prejudice the petitioner.
Absent a showing of good cause as defined by this statute, untimely post-conviction claims
that arise out of the proceedings involving the initial conviction or the direct appeal and that
could have been raised before the judgment of conviction was amended are procedurally
barred. We emphasize, however, that the entry of an amended judgment may in and of itself
provide the good cause required by the statute to present appropriate post-conviction claims
relating to the amendment at issue. In other words, if the claims presented in a petition filed
within one year of the entry of the amended judgment challenge the proceedings leading to a
substantive amendment to the judgment and could not have been raised in prior proceedings,
there may be no delay attributable to the fault of the petitioner.
12

In this case, Sullivan alleged that his counsel in the initial district court proceedings
leading to his conviction and his counsel on direct appeal were ineffective. Sullivan also
challenged the validity of his guilty plea. These claims were not related to and did not contest
the clerical correction contained in the amended judgment of conviction. Rather, they all
arose during the proceedings leading to the original judgment of conviction and during the
prosecution of the direct appeal.
____________________

11
Pellegrini, 117 Nev. at 875, 34 P.3d at 529.

12
NRS 34.726(1)(a); Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003) (good cause may be
shown where the factual and legal basis for the claim was not previously reasonably available). We further note,
however, that such claims may also be subject to additional procedural bars, including but not limited to the
procedural limitations set forth in NRS 34.810. For example, absent a showing of good cause and prejudice
excusing the default, a claim raised in a post-conviction habeas petition alleging that the district court erred in
amending a judgment of conviction might be procedurally barred under NRS 34.810(1)(b)(2) if that claim could
have been previously asserted in a direct appeal from the amended judgment of conviction.
ing to the original judgment of conviction and during the prosecution of the direct appeal. As
such, those claims could have been previously raised in a timely petition filed on or before
January 10, 2001within one year after this court issued the remittitur in the direct appeal.
Therefore, the entry of the amended judgment of conviction did not provide good cause to
excuse the untimely filing of Sullivan's petition.
[Headnote 4]
Additionally, Sullivan alleged as good cause for the delay that his attorney did not
send him a copy of the remittitur
13
or the corrected judgment and did not inform him that he
had one year from the issuance of the remittitur in the direct appeal to seek post-conviction
relief. These allegations are insufficient to demonstrate that an impediment external to the
defense precluded him from filing a timely petition, and therefore fail to establish good cause
to overcome the procedural default.
14
Accordingly, Sullivan's petition was procedurally
barred, and we expressly conclude that the district court should have denied the petition on
that basis.
15

Nevertheless, we also conclude that the district court correctly determined that
Sullivan's petition lacked merit, and we affirm the district court's ruling on that separate,
independent ground.
16
In denying the petition, the district court found that Sullivan's guilty
plea was knowing and voluntary and that his counsel was not ineffective. Sullivan has failed
to show that the district court's factual findings are not supported by substantial evidence or
that the district court erred as a matter of law.
17
Accordingly, we affirm the order of the
district court denying post-conviction relief.
18

____________________

13
Sullivan concedes, however, that his attorney sent him a copy of this court's published opinion affirming
his conviction on December 13, 1999.

14
See Lozada v. State, 110 Nev. 349, 353, 871 P.2d 944, 946 (1994); see also Hood v. State, 111 Nev. 335,
338, 890 P.2d 797, 798 (1995) (holding that trial counsel's failure to turn over case files to a petitioner is not
good cause to overcome a procedural default).

15
See generally Harris v. Reed, 489 U.S. 255, 263 (1989) (holding that procedural default does not bar
federal review of claim on the merits unless state court rendering judgment relied clearly and expressly on
procedural bar (internal quotation marks and citation omitted)).

16
Id. at 264 n.10 (recognizing that as long as the state court explicitly invokes a state procedural bar, a state
court need not fear reaching the merits of a federal claim in an alternative holding).

17
See Riley v. State, 110 Nev. 638, 647, 878 P.2d 272, 278 (1994).

18
We have reviewed all documents that Sullivan has submitted in proper person to the clerk of this court in
this matter, and we conclude that no relief based upon those submissions is warranted. To the extent that
Sullivan has attempted to present claims or facts in those submissions which were not previously presented in the
proceedings below, we have declined to consider them in the first instance.
____________
120 Nev. 543, 543 (2004) Bohlmann v. Printz
ERWIN BOHLMANN, Appellant, v. BYRON JOHN PRINTZ
and ASH, INC., a New Mexico Corporation, Respondents.
No. 38550
September 13, 2004 96 P.3d 1155
Appeal from a district court order confirming an arbitration award. Eighth Judicial
District Court, Clark County; Stephen L. Huffaker, Judge.
Motorcyclist who was injured in collision with tanker truck brought personal injury
action against driver of truck and truck's owner. The parties submitted case to binding
arbitration. The arbitrator found that motorcyclist had improperly traveled into truck driver's
lane and that driver was not the cause of the accident. Motorcyclist moved to vacate
arbitration award. The district court confirmed award, and motorcyclist appealed. The
supreme court held that arbitrator did not manifestly disregard the law by failing to apply
spoliation presumption in favor of motorcyclist when truck owner and truck driver lost or
destroyed accident-scene photographs.
Affirmed.
Beckley Singleton, Chtd., and Ike Lawrence Epstein, Jay T. Hopkins, Charles A.
Michalek, Daniel F. Polsenberg, and Beau Sterling, Las Vegas, for Appellant.
Thorndal Armstrong Delk Balkenbush & Eisinger and Paul E. Eisinger and Philip
Goodhart, Las Vegas, for Respondents.
1. Arbitration.
Mere error in the application of the law is not grounds to vacate an arbitration award.
2. Arbitration.
An arbitrator manifestly disregards the law, so as to require vacation of arbitration
award, when he or she recognizes that the law absolutely requires a given result and
nonetheless refuses to apply the law correctly.
3. Arbitration.
Arbitrator's manifest disregard of the law, so as to require vacation of arbitration
award, is something beyond and different from a misinterpretation or error in applying
the law.
4. Arbitration.
A district court's review of an arbitrator's actions is far more limited than an appellate
court's review of a trial court's actions.
5. Arbitration.
An arbitration award may be vacated if it is arbitrary, capricious, or unsupported by
the agreement or when an arbitrator has manifestly disregarded the law, and this
standard is much more restrictive than the standards used on appellate court review.
6. Arbitration.
Arbitrator did not manifestly disregard the law by failing to apply spoliation
presumption in favor of motorcyclist, who was injured in collision with tanker truck,
when truck owner and truck driver lost or destroyed accident-scene photographs.
sion with tanker truck, when truck owner and truck driver lost or destroyed
accident-scene photographs. Arbitrator considered and weighed all of the evidence,
including the loss or destruction of the photographs, before determining that truck
owner's failure to retain the photographs was of little consequence, and while the
arbitrator's discussions of a six-month rule for preserving evidence and owner's duty to
preserve the photographs might have been erroneous, that error did not amount to a
manifest disregard of the law.
7. Arbitration.
Arbitrator's manifest disregard of the law, so as to require vacation of arbitration
award, encompasses an error that is obvious and capable of being readily and instantly
perceived by the average person qualified to serve as an arbitrator, and the term
disregard implies that the arbitrator appreciates the existence of a clearly governing
legal principle but decides to ignore or pay no attention to it.
8. Arbitration.
A party seeking to vacate an arbitration award based on manifest disregard of the law
may not merely object to the results of the arbitration.
9. Arbitration.
Manifest disregard of the law, as ground for vacating arbitration award, is something
beyond and different from a mere error in the law or failure on the part of the arbitrator
to understand or apply the law.
10. Arbitration.
A reviewing court should not concern itself with the correctness of an arbitration
award and, thus, does not review the merits of the dispute.
11. Arbitration.
When arbitration award is challenged on ground that arbitrator manifestly disregarded
the law, the issue on appeal is not whether the arbitrator correctly interpreted the law,
but rather, whether the arbitrator, knowing the law and recognizing that the law
required a particular result, simply disregarded the law.
12. Evidence.
Nevada law creates a rebuttable presumption that evidence willfully suppressed would
be adverse if produced.
13. Evidence.
Generally, when relevant evidence is destroyed, a trier of fact may draw an adverse
inference from the destruction.
Whether evidence was willfully suppressed or destroyed is highly factual in nature,
and what sanctions to apply when evidence has not been preserved involves
considerable discretion.
15. Arbitration.
Even if a court believes that an arbitrator has erred as a matter of law, the court cannot
substitute its judgment for the arbitrator's or treat a motion to confirm or vacate an
arbitration award as an appellate proceeding.
16. Arbitration.
An arbitration award, entered in accordance with the Uniform Arbitration Act (UAA),
may be reviewed for a manifest disregard of the law, which is something beyond and
different from a mere error in law or a failure on the arbitrator's part to understand or
apply the law. NRS 38.206-38.248.
OPINION
Per Curiam:
[Headnotes 1-3]
In this appeal, we discuss the narrow circumstances under which an arbitration award
may be vacated due to a manifest disregard of the law. Manifest disregard of the law is
something beyond and different from a misinterpretation or error in applying the law. An
arbitrator manifestly disregards the law when he or she recognizes that the law absolutely
requires a given result and nonetheless refuses to apply the law correctly. Mere error in the
application of the law is not grounds to vacate an arbitration award. We conclude that the
arbitrator did not manifestly disregard the law in this case and affirm the district court's order
confirming the arbitration award.
FACTS
This case arises from a collision between a motorcycle ridden by appellant Erwin
Bohlmann and a tanker truck driven by respondent Byron Printz. The parties disputed
whether the initial point of impact occurred in Bohlmann's or Printz's lane. Bohlmann
claimed that Printz improperly entered his lane and clipped his motorcycle. Printz claimed
that Bohlmann was changing lanes, misjudged the distances between the vehicles, and
clipped his truck while improperly impinging upon Printz's lane of travel.
Bohlmann sued Printz and respondent Ash, Inc., owner of the truck, for negligence.
By written agreement, the parties submitted the case to binding arbitration under the Uniform
Arbitration Act (UAA), codified at NRS 38.206 to 38.248.
The Nevada Highway Patrol (NHP), along with Ash, took photographs of the accident
scene. The arbitrator admitted the NHP photographs into evidence at the arbitration.
However, Ash had gone out of business between the time of the accident and the filing of the
complaint, and its photographs were lost or destroyed before the request for their production.
Before the hearing, Bohlmann asked the arbitrator to apply a presumption that the lost
photographs would have shown a gouge mark in Bohlmann's, not Printz's, lane and that the
point of impact was in Bohlmann's lane. The arbitrator denied this request.
At the hearing, an NHP officer testified, based upon the NHP photographs and his
personal observations of the scene, that gouge marks left by Bohlmann's motorcycle were
located in Printz's lane and the point of impact occurred in Printz's lane. An independent
eyewitness also testified that the impact occurred in Printz's lane.
eyewitness also testified that the impact occurred in Printz's lane. Bohlmann's experts and
witnesses asserted that the point of impact occurred in Bohlmann's lane.
The arbitrator entered a decision in favor of Printz and Ash, indicating that Ash's
failure to retain the photographs beyond six months appeared to be of little consequence if the
physical evidence and the investigating officer's testimony on the point of impact were
accepted. The arbitrator further indicated that it was not clear whether Ash had a duty to keep
the photographs for a longer time. The arbitrator found the testimony of the NHP officer and
the independent witnesses to be more credible than the expert accident-reconstruction
testimony presented by any of the parties. The arbitrator thus found that Bohlmann had
improperly traveled into Printz's lane and that Printz was not the cause of the accident.
Bohlmann filed a motion to vacate the arbitration award, arguing that the arbitrator
had manifestly disregarded the law by misconstruing or misapplying Nevada law on
destructionpreservation of evidence. The district court disagreed and confirmed the award,
and this appeal followed.
DISCUSSION
[Headnotes 4-6]
Bohlmann argues that the arbitrator manifestly disregarded the law by not applying a
spoliation presumption in his favor because respondents lost or destroyed the accident-scene
photographs. Bohlmann's argument assumes that the district court acted as an appellate court
reviewing the arbitrator's decision. This assumption is incorrect. A district court's review of
an arbitrator's actions is far more limited than an appellate court's review of a trial court's
actions. In Wichinsky v. Mosa,
1
we recognized that an arbitration award entered in
accordance with the UAA may be vacated based on statutory grounds and certain limited
common-law grounds. Specifically, an arbitration award may be vacated if it is arbitrary,
capricious, or unsupported by the agreement or when an arbitrator has manifestly
disregard[ed] the law.
2
This standard is much more restrictive than the standards used on
appellate court review. Here, Bohlmann asserts manifest disregard of the law as his only
reason for contending that the award should be vacated. Thus, we consider only this ground
on appeal.
____________________

1
109 Nev. 84, 89-90, 847 P.2d 727, 731 (1993); see also Graber v. Comstock Bank, 111 Nev. 1421, 1426,
905 P.2d 1112, 1115 (1995).

2
See Wichinsky, 109 Nev. at 89-90, 847 P.2d at 731. See generally Stephen L. Hayford, Reigning in the
Manifest Disregard of the Law Standard: The Key to Restoring Order to the Law of Vacatur, 1998 J. Disp.
Resol. 117, 120 (indicating that 10 of 12 U.S. Circuit Courts of Appeals have embraced manifest disregard of
the law as a nonstatutory ground for vacating a commercial arbitration award).
Manifest disregard of the law
[Headnote 7]
A manifest disregard of the law encompasses an error that is obvious and capable
of being readily and instantly perceived by the average person qualified to serve as an
arbitrator.'
3
Moreover, the term disregard' implies that the arbitrator appreciates the
existence of a clearly governing legal principle but decides to ignore or pay no attention to it.
4

[Headnotes 8-11]
Judicial inquiry under the manifest-disregard-of-the-law standard is extremely limited.
5
A party seeking to vacate an arbitration award based on manifest disregard of the law may
not merely object to the results of the arbitration.
6
Manifest disregard of the law is
something beyond and different from a mere error in the law or failure on the part of the
arbitrators to understand or apply the law.'
7
A reviewing court should not concern itself
with the correctness' of an arbitration award and thus does not review the merits of the
dispute.
8
In other words, the issue is not whether the arbitrator correctly interpreted the law,
but whether the arbitrator, knowing the law and recognizing that the law required a particular
result, simply disregarded the law.
Applying the correct standard to this case, the district court reviewed the applicable
portions of the record and concluded that the arbitrator did not manifestly disregard the law.
We agree.
____________________

3
Graber, 111 Nev. at 1426, 905 P.2d at 1115 (quoting French v. Merrill Lynch, Pierce, Fenner & Smith,
784 F.2d 902, 906 (9th Cir. 1986)).

4
Id.

5
Tim Huey Corp. v. Global Boiler, 649 N.E.2d 1358, 1363 (Ill. App. Ct. 1995) (recognizing manifest
disregard of the law as an almost nonexistent standard of review); Hayford, supra note 2, at 124; see also Bret F.
Randall, Comment, The History, Application, and Policy of the Judicially Created Standards of Review for
Arbitration Awards, 1992 BYU L. Rev. 759, 765-67 (noting that manifest disregard of the law is a virtually
insurmountable standard of review).

6
O.R. Securities v. Professional Planning Assoc., 857 F.2d 742, 747 (11th Cir. 1988).

7
Thompson v. Tega-Rand Intern., 740 F.2d 762, 763 (9th Cir. 1984) (quoting San Martine Compania de
Nav. v. Saguenay Term. Ltd., 293 F.2d 796, 801 (9th Cir. 1961)); see also French, 784 F.2d at 906 (indicating
that confirmation is required even in the face of erroneous findings of fact or misinterpretations of law
(internal quotation marks omitted)); George Day Const. v. United Broth. of Carpenters, 722 F.2d 1471, 1477
(9th Cir. 1984) (determining that, although an arbitrator's view of the law might be open to serious question, an
award that is within the terms of the submission will not be set aside for error in law or fact).

8
Thompson, 740 F.2d at 763.
Spoliation presumption
[Headnotes 12-15]
Nevada law creates a rebuttable presumption that evidence willfully suppressed
would be adverse if produced.
9
Generally, when relevant evidence is destroyed, a trier of
fact may draw an adverse inference from the destruction.
10
However, whether the evidence
was willfully suppressed or destroyed is highly factual in nature. Moreover, what sanctions to
apply when evidence has not been preserved involves considerable discretion. This is not an
area where an error is obvious or capable of being instantly perceived, which is precisely why
such rulings in an arbitration proceeding are not subject to judicial review under common law
or the UAA. Even if a court believes that an arbitrator has erred as a matter of law, the court
cannot substitute its judgment for the arbitrator's or treat a motion to confirm or vacate an
arbitration award as an appellate proceeding.
In this case, the record does not indicate that the arbitrator found that evidence was
willfully suppressed and concluded that the presumption had to be applied, but then simply
ignored or paid no attention to the spoliation presumption. Instead, the award shows that the
arbitrator considered and weighed all of the evidence, including the loss or destruction of the
photographs, before determining that Ash's failure to retain the photographs was of little
consequence. While the arbitrator's discussions of a six-month rule for preserving evidence
and Ash's duty to preserve the photographs may have been erroneous, that error does not
amount to a manifest disregard of the law.
CONCLUSION
[Headnote 16]
An arbitration award, entered in accordance with the UAA, may be reviewed for a
manifest disregard of the law, which is something beyond and different from a mere error in
law or a failure on the arbitrator's part to understand or apply the law. We conclude that the
arbitrator did not manifestly disregard the law in this case. Accordingly, we affirm the district
court order confirming the arbitration award.
11

____________________

9
NRS 47.250(3).

10
Reingold v. Wet 'n Wild Nevada, Inc., 113 Nev. 967, 970, 944 P.2d 800, 802 (1997).

11
We have considered Bohlmann's assignment of error regarding the district court's review of the partial
arbitration transcript, and we conclude that it is without merit. The partial transcript, which the parties provided
to the district court, was adequate to review the alleged errors and thus the district court did not err in confirming
the arbitration award without reviewing the entire four-day arbitration transcript.
____________
120 Nev. 549, 549 (2004) D.R. Horton, Inc. v. Green
D.R. HORTON, INC., a Texas Corporation Doing Business in the State of Nevada,
Appellant, v. MICHAEL GREEN, an Individual; and JOHN VELICKOFF and
TRACY VELICKOFF, Individually and as Husband and Wife, Respondents.
No. 40102
September 13, 2004 96 P.3d 1159
Appeal from a district court order denying a motion to compel arbitration. Eighth
Judicial District Court, Clark County; Nancy M. Saitta, Judge.
Homebuyers sought declaratory relief, alleging that mandatory arbitration clause of
their purchase agreements was unenforceable and therefore did not preclude them from
bringing court action alleging construction defects, and developer/vendor brought motion to
compel arbitration. The district court denied the motion to compel arbitration.
Developer/vendor appealed. The supreme court held that: (1) mandatory arbitration clause
was procedurally unconscionable, and (2) mandatory arbitration clause was substantively
unconscionable.
Affirmed.
Mead & Pezzillo, LLP, and Leon F. Mead II, Las Vegas, for Appellant.
Canepa Riedy Rubino & Lattie and Scott K. Canepa and Terry W. Riedy, Las Vegas,
for Respondents.
1. Arbitration.
The case law regarding enforceability of jury trial waivers is not applicable to the
enforceability of a binding arbitration clause.
2. Arbitration.
The party moving to enforce an arbitration clause has the burden of persuading the
district court that the clause is valid.
3. Contracts.
Contractual unconscionability involves mixed questions of law and fact.
A trial court's factual findings in support of a finding of unconscionability are
accepted upon review so long as they are supported by substantial evidence.
Whether, given the trial court's factual findings, a contractual provision is
unconscionable is a question of law subject to de novo review.
6. Arbitration.
Strong public policy favors arbitration, because arbitration generally avoids the higher
costs and longer time periods associated with traditional litigation. Nevertheless, courts
may invalidate unconscionable arbitration provisions.
7. Arbitration.
Generally, both procedural and substantive unconscionability must be present in order
for a court to exercise its discretion to refuse to enforce an arbitration clause as
unconscionable.
8. Contracts.
Less evidence of substantive unconscionability is required, in cases involving great
procedural unconscionability.
9. Contracts.
A clause is procedurally unconscionable when a party lacks a meaningful
opportunity to agree to the clause terms either because of unequal bargaining power, as
in an adhesion contract, or because the clause and its effects are not readily
ascertainable upon a review of the contract.
10. Contracts.
Procedural unconscionability often involves the use of fine print or complicated,
incomplete, or misleading language that fails to inform a reasonable person of the
contractual language's consequences.
11. Contracts.
Substantive unconscionability focuses on the one-sidedness of the contract terms.
12. Arbitration.
Evidence did not establish that mandatory arbitration clause of home purchase
agreement was a contract of adhesion because other homebuyers in the development
had been able to negotiate with developer/vendor for deletion of the clause.
13. Arbitration.
Mandatory arbitration clause of home purchase agreement was procedurally
unconscionable because clause was inconspicuousit was in extremely small font,
nothing drew attention to the clause, and it was on back page of double-sided
agreement which contained signature lines on front pageagent for developer/vendor
represented that the agreement was a form contract with standard language, causing
homebuyers not to read back page, and clause did not put homebuyers on notice that
they would be waiving right to jury trial and to recovery of attorney fees in construction
defect litigation. NRS 40.655(1)(a).
14. Sales.
Homes are not goods under the Uniform Commercial Code (UCC) article on sales.
NRS 104.2102.
15. Arbitration.
By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights
afforded by the statute; it only submits to their resolution in an arbitral, rather than a
judicial, forum.
16. Arbitration.
Mandatory arbitration clause of home purchase agreement was substantively
unconscionable because clause imposed $10,000 penalty on homebuyers for refusing to
arbitrate, without imposing any penalty on developer/vendor for refusing to arbitrate,
and clause required each party to pay equally for costs of arbitration, without disclosing
to homebuyers that arbitration costs could be significant and therefore could preclude
homebuyers from effectively vindicating their rights in arbitral forum.
OPINION
Per Curiam:
Appellant D.R. Horton, Inc., a real property developer, and respondents Michael
Green, John Velickoff, and Tracy Velickoff (jointly the Homebuyers) entered into home
purchase agreements containing a mandatory binding arbitration provision.
1
In the ensuing
dispute over the provision's validity, the district court found that the arbitration clause was
adhesive and unconscionable. On appeal, Horton argues that the district court erred in
concluding that the arbitration clause was unenforceable. We disagree. We conclude that the
clause is void as unconscionable and affirm the district court's order denying Horton's motion
to compel arbitration.
2

The arbitration clause dispute arose from a construction defect controversy between
the Homebuyers and Horton. These parties entered into home purchase agreements
containing a mandatory arbitration provision. In each case, a two-page form sales agreement
constituted the agreement between the parties. The agreement was printed in a very small
font. The front page contained the sales price, other financial information, and the signature
lines. A clause at the bottom in capitalized bold letters stated that:
PARAGRAPHS 10 THROUGH 27 CONSTITUTE A PART OF THIS CONTRACT.
3

The back page included, among other things, a limited warranty clause and a mandatory
binding arbitration provision. The font size on the back page was smaller than the font
utilized on the front page. The arbitration provision read as follows:
11. THIS CONTRACT IS SUBJECT TO THE NEVADA ARBITRATION RULES GOVERNED UNDER NEVADA REVISED STATUTE
CHAPTER 38 AND THE FEDERAL ARBITRATION ACT.
Buyer and Seller agree that any disputes or claims between the parties, whether arising from a tort, this Contract, any breach of this Contract or in any
way related to this transaction, including but not limited to claims or disputes arising under the terms of the express limited warranty referenced in
Paragraph 10 of this Contract, shall be settled by binding arbitration under the direction and procedures established by the American Arbitration
Association "Construction Industry Arbitration Rules" except as specifically
modified herein or dictated by applicable statutes including the Nevada Revised
Statute Chapter 3S andJor the Federal Arbitration Act.
____________________

1
Although the Homebuyers signed separate contracts, the contracts contained identical arbitration
provisions.

2
The Homebuyers concede on appeal that the agreement was not an adhesion contract, as evidence indicated
that other homebuyers successfully bargained to have the arbitration clause deleted from the agreement.

3
For illustrative purposes we have duplicated the size of the print.
Arbitration Association Construction Industry Arbitration Rules except as specifically modified herein or dictated by applicable statutes including the
Nevada Revised Statute Chapter 38 and/or the Federal Arbitration Act. If Buyer does not seek arbitration prior to initiating any legal action, Buyer
agrees that Seller shall be entitled to liquidated damages in the amount of ten thousand dollars ($10,000.00). Any dispute arising from this Contract shall
be submitted for determination to a board of three (3) arbitrators to be selected for each such controversy. The decision of the arbitrators shall be in
writing and signed by such arbitrators, or a majority of them, and shall be final and binding upon the parties. Each party shall bear the fees and expenses
of counsel, witnesses and employees of such party, and any other costs and expenses incurred for the benefit of such party. All other fees and expenses
shall be divided equally between Buyer and Seller.
With the exception of the paragraph title, which was in bold capital letters like the other
contract headings, nothing drew special attention to this provision.
Green testified that he only read the first page of the document. He indicated that he
did not read the second page because it was all fine print and Horton's agent told him that it
was a standard contract. The Velickoffs indicated that they read both sides of the contract,
including the arbitration provision. They testified, however, that they did not understand that
the provision constituted a waiver of their right to a jury trial or that it impacted their
statutory rights under NRS Chapter 40 involving construction defect claims. Neither Green
nor the Velickoffs understood that they would be required to fund one-half of the expenses of
the arbitration and that these expenses could be more costly than standard litigation.
In 2000, the Homebuyers notified Horton that they intended to bring various
construction defect claims against Horton, and the matter proceeded to mediation pursuant to
NRS 40.680. The mediator concluded that the mediation process was unsuccessful because
Horton acted in bad faith. On September 14, 2001, Horton sought arbitration of the
Homebuyers' construction defect claims. The Homebuyers answered Horton's demand for
arbitration and requested punitive damages in addition to monetary damages for the defects.
On October 5, 2001, while the parties were disputing the list of potential arbitrators, the
Homebuyers filed a complaint against Horton in district court for declaratory relief,
requesting that the district court proclaim the arbitration provision unenforceable. Horton
moved to compel arbitration, which the Homebuyers opposed.
[Headnote 1]
After hearing arguments and conducting an evidentiary hearing, the district court
denied Horton's motion to compel arbitration, essentially granting judgment in favor of the
Homebuyers on the declaratory relief action. The district court ruled that the arbitration clause
was adhesive and fell short of Nevada's standards regarding jury trial waivers.
jury trial waivers.
4
The district court also determined that the clause was procedurally and
substantively unconscionable because, if enforced, it operated to waive the right to a jury trial
without even mentioning that right, and it failed to inform homeowners of the costs
associated with arbitration and the substantial difference between arbitration fees and filing
fees for suits filed under Chapter 40. The district court struck the arbitration clause,
reasoning that absent such disclosures, the Homebuyers could not give an informed consent.
DISCUSSION
Standard of review
[Headnotes 2-5]
Under NRS 38.247(1)(a), an order denying a motion to compel arbitration is directly
appealable. The party moving to enforce an arbitration clause has the burden of persuading
the district court that the clause is valid.
5
Contractual unconscionability involves mixed
questions of law and fact.
6
A trial court's factual findings in support of a finding of
unconscionability are accepted upon review so long as they are supported by substantial
evidence.
7
Whether, given the trial court's factual findings, a contractual provision is
unconscionable is a question of law subject to de novo review.
8

Unconscionability
[Headnotes 6-11]
Strong public policy favors arbitration because arbitration generally avoids the higher
costs and longer time periods associated with traditional litigation.
9
Nevertheless, courts
may invalidate unconscionable arbitration provisions.
10
Generally, both procedural and
substantive unconscionability must be present in order for a court to exercise its discretion to
refuse to enforce a . . . clause as unconscionable.
11
However, less evidence of substantive
unconscionability is required in cases involving great procedural unconscionability.
____________________

4
We note that the district court erred in analyzing this case as a waiver of the right to a jury trial. The
contract contains no such waiver clause, and our case law regarding enforceability of jury trial waivers is not
applicable to the enforceability of a binding arbitration clause.

5
Obstetrics and Gynecologists v. Pepper, 101 Nev. 105, 108, 693 P.2d 1259, 1261 (1985).

6
Patterson v. ITT Consumer Financial Corp., 18 Cal. Rptr. 2d 563, 565 (Ct. App. 1993).

7
Lovey v. Regence Blueshield of Idaho, 72 P.3d 877, 881 (Idaho 2003).

8
Id.

9
Burch v. Dist. Ct., 118 Nev. 438, 442, 49 P.3d 647, 650 (2002).

10
Id. at 443, 49 P.3d at 650.

11
Id.
scionability is required in cases involving great procedural unconscionability.
12
A clause is
procedurally unconscionable when a party lacks a meaningful opportunity to agree to the
clause terms either because of unequal bargaining power, as in an adhesion contract, or
because the clause and its effects are not readily ascertainable upon a review of the contract.
13
Procedural unconscionability often involves the use of fine print or complicated,
incomplete or misleading language that fails to inform a reasonable person of the contractual
language's consequences.
14
As the Ninth Circuit has recognized, substantive
unconscionability focuses on the one-sidedness of the contract terms.
15

[Headnotes 12, 13]
The district court determined that the arbitration clause was unenforceable because the
Homebuyers had no realistic bargaining opportunity; that is, the agreement was an adhesion
contract. This finding is not supported by substantial evidence. In fact, the record
demonstrates that it was possible to negotiate for deletion of the arbitration provision.
Nevertheless, the district court also concluded that the provision was procedurally deficient
because it failed to indicate that by agreeing to binding arbitration, the Homebuyers were
giving up significant rights under Nevada law. The district court also considered the fact that
the clause was in fine print and indistinguishable from many other contractual provisions, and
thus its significance was downplayed. Finally, the district court found that Horton's sales
agent referred to the contract as a form agreement containing standard language, leading the
Homebuyers to believe that the clause was simply a formality that did not significantly affect
their rights. Based upon these findings, the district court concluded that the arbitration
provision was procedurally unconscionable.
Horton argues that the district court erroneously relied on NRS 104.2302 and Burch v.
District Court
16
in invalidating the arbitration provision because NRS 104.2302 applies only
to the sale of goods, not real estate, and Burch is distinguishable because it involved an
adhesion contract. Horton contends that the district court wrongfully focused on the absence
of negotiation instead of examining whether the Homebuyers had a realistic bargaining
opportunity.
____________________

12
Armendariz v. Foundation Health Psychcare, 6 P.3d 669, 690 (Cal. 2000).

13
Id. at 443-44, 49 P.3d at 650; Circuit City Stores, Inc. v. Adams, 279 F.3d 889, 893 (9th Cir.), cert.
denied, 535 U.S. 1112 (2002).

14
American Airlines, Inc. v. Wolens, 513 U.S. 219, 249 (1995) (O'Connor, J., concurring).

15
Ting v. AT&T, 319 F.3d 1126, 1149 (9th Cir.), cert. denied, 540 U.S. 811 (2003); Circuit City Stores, Inc.,
279 F.3d at 893.

16
118 Nev. 438, 49 P.3d 647.
portunity. According to Horton, the large disparity between the parties' financial strength does
not equate to unequal bargaining power. Consequently, the Homebuyers could have chosen
another developer in the same area. In addition, Horton notes that the facts established that it
was possible to eliminate the arbitration provision from the contract. Because of these factors,
Horton asserts that the contract at issue here is not an adhesion contract and Burch is
inapplicable.
[Headnote 14]
As noted above, we agree with Horton's arguments regarding unequal bargaining
power and that the district court erred in concluding that the agreement was procedurally
unconscionable as an adhesion contract. Horton also correctly points out that NRS 104.2302,
which is part of Nevada's Uniform Commercial Code provisions and pertains to
unconscionable contracts, does not apply to the sale of a home because homes are not
goods under the Uniform Commercial Code
17
and NRS 104.2302 applies only to goods.
18
However, Horton's argument assumes that unequal bargaining power is the sole basis for
finding the agreement to be procedurally unconscionable under Burch and striking the
arbitration provision. We disagree.
The arbitration provision states:
11. THIS CONTRACT IS SUBJECT TO THE NEVADA ARBITRATION RULES GOVERNED UNDER NEVADA
REVISED STATUTE CHAPTER 38 AND THE FEDERAL ARBITRATION ACT.
Buyer and Seller agree that any disputes or claims between the parties, whether arising
from a tort, this Contract, any breach of this Contract or in any way related to this
transaction, including but not limited to claims or disputes arising under the terms of
the express limited warranty referenced in Paragraph 10 of this Contract, shall be
settled by binding arbitration under the direction and procedures established by the
American Arbitration Association Construction Industry Arbitration Rules except as
specifically modified herein or dictated by applicable statutes including the Nevada
Revised Statute Chapter 38 and/or the Federal Arbitration Act. If Buyer does not seek
arbitration prior to initiating any legal action, Buyer agrees that Seller shall be entitled
to liquidated damages in the amount of ten thousand dollars ($10,000.00).
____________________

17
See NRS 104.2102.

18
The reference to NRS 104.2302 in Burch was a general citation for the proposition that courts may refuse
to enforce unconscionable contracts. 118 Nev. at 442 n.9, 49 P.3d at 650 n.9.
Any dispute arising from this Contract shall be submitted for determination to a board
of three (3) arbitrators to be selected for each such controversy. The decision of the
arbitrators shall be in writing and signed by such arbitrators, or a majority of them, and
shall be final and binding upon the parties. Each party shall bear the fees and expenses
of counsel, witnesses and employees of such party, and any other costs and expenses
incurred for the benefit of such party. All other fees and expenses shall be divided
equally between Buyer and Seller.
The contracts Horton presented to the Homebuyers were difficult to read and the
arbitration clause was on the back page. The signature lines, in contrast, were on the front
page. Other than the fact that the paragraph headings relating to the arbitration provision were
in bold capital letters, just like every other heading in the contracts, nothing drew attention to
the arbitration provision. To the contrary, although the termite and drainage provisions were
capitalized throughout, the body of the arbitration clause was not capitalized. Instead, it was
in an extremely small font. As in Burch, the arbitration provision was inconspicuous. Thus,
even if an individual read the contract, there was nothing to draw the reader's attention to the
importance of the arbitration provision. This failure to highlight the arbitration agreement,
together with the representations made by Horton's agent that these were standard provisions,
are key features in the district court's finding of procedural unconscionability.
[Headnote 15]
Finally, even if any home purchasers noticed and read the arbitration provision, as did
the Velickoffs, they would not be put on notice that they were agreeing to forgo important
rights under state law. In addition to the right to a jury trial, under NRS 40.655(1)(a), a
construction defect claimant may recover attorney fees or other damages proximately caused
by the construction defect controversy. In general, the right to request attorney fees would still
exist in an arbitration proceeding because [b]y agreeing to arbitrate a statutory claim . . . , a
party does not forgo the substantive rights afforded by the statute; it only submits to their
resolution in an arbitral, rather than a judicial, forum.'
19
However, the arbitration provision
provides that each party is to bear its own attorney fees and expenses. While Horton did not
have a duty to explain in detail each and every right that the Homebuyers would be waiving
by agreeing to arbitration, to be enforceable, an arbitration clause must at least be
conspicuous and clearly put a purchaser on notice that he or she is waiving important
rights under Nevada law.
____________________

19
Kindred v. Dist. Ct., 116 Nev. 405, 414, 996 P.2d 903, 909 (2000) (quoting Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)).
be waiving by agreeing to arbitration, to be enforceable, an arbitration clause must at least be
conspicuous and clearly put a purchaser on notice that he or she is waiving important rights
under Nevada law.
20

Our 1989 decision in Tandy Computer Leasing v. Terina's Pizza
21
is relevant to our
analysis of the arbitration provision in this case. In Tandy Computer Leasing, a computer
equipment lessor brought an action in Texas against a family of Nevada pizza parlor owners.
22
The lessor initiated the action in Texas pursuant to a forum selection clause in the lease
agreement and subsequently sought to enforce the judgment in Nevada.
23
We invalidated the
forum selection clause, in part because of the lessor's failure to make the clause conspicuous.
We noted that binding a consumer under such circumstances was unrealistic because
[the] clause was buried on the very bottom of the back page of the lease agreement, in
very fine print, in a paragraph labelled MISCELLANEOUS. . . . Nothing on the front
page notifies the reader of the specific forum selection clause on the back page. The
clause is not even in bold print.
24

In the instant case, the district court did not err in finding procedural
unconscionability. The arbitration provision was inconspicuous, downplayed by Horton's
representative, and failed to adequately advise an average person that important rights were
being waived by agreeing to arbitrate any disputes under the contract. We conclude that the
district court did not err in finding the arbitration clause to be procedurally deficient.
[Headnote 16]
We now turn to the issue of substantive unconscionability. Two provisions of the
agreement implicate substantive unconscionability: the $10,000 penalty for refusing to
arbitrate, and the requirement that each party pay equally for the costs of arbitration.
Ting v. AT&T,
25
a recent Ninth Circuit case applying California law, provides
guidance in determining substantive unconscionability. In Ting, the Ninth Circuit invalidated,
among other things, a contract provision requiring customers to split arbitration fees with
AT&T.
____________________

20
Because the arbitration clause failed to give proper notice, Horton's arguments regarding Green's failure to
read the agreement or the Velickoffs' failure to ask questions about arbitration lack merit. Nothing in the record
suggests that Green or the Velickoffs were aware of, or had reason to be aware of, the rights they were forgoing
by agreeing to binding arbitration.

21
105 Nev. 841, 784 P.2d 7 (1989).

22
Id. at 842, 784 P.2d at 7.

23
Id.

24
Id. at 843, 784 P.2d at 8.

25
319 F.3d 1126 (9th Cir.), cert. denied, 540 U.S. 811 (2003).
contract provision requiring customers to split arbitration fees with AT&T.
26
The Ninth
Circuit held that [w]here an arbitration agreement is concerned, the agreement is
unconscionable unless the arbitration remedy contains a modicum of bilaterality.'
27
The
court went on to say that:
[a]lthough parties are free to contract for asymmetrical remedies and arbitration
clauses of varying scope . . . the doctrine of unconscionability limits the extent to which
a stronger party may . . . impose the arbitration forum on the weaker party without
accepting that forum for itself.
28

Ting is similar to the case at bar. Here, the arbitration provision is one-sided because
it contained a liquidated damages provision penalizing the Homebuyers if they chose to forgo
arbitration but imposed no such penalty upon Horton. Although the one-sidedness of the
provision is not overwhelming, it does establish substantive unconscionability, especially
when considered in light of the great procedural unconscionability present in this case.
As for Horton's argument that the district court erroneously invalidated the arbitration
provision because it did not disclose the potential arbitration costs, this was only one of the
factors the district court considered in finding the provision unconscionable. While an
arbitration agreement's silence regarding potentially significant arbitration costs does not,
alone, render the agreement unenforceable, the existence of large arbitration costs could
preclude a litigant . . . from effectively vindicating her . . . rights in the arbitral forum.
29
Ordinary consumers may not always have the financial means to pursue their legal remedies,
and significant arbitration costs greatly increase that danger. In such a circumstance, the
contract would lack the modicum of bilaterality discussed in Ting. Thus, the district court
properly considered Horton's failure to disclose potential arbitration costs in examining the
asymmetrical effects of the provision. We agree with the Ting rationale and conclude that the
arbitration provision was also substantively unconscionable.
CONCLUSION
We conclude that the arbitration provision was procedurally and substantively
unconscionable because it was inconspicuous, one-sided and failed to advise the Homebuyers
that significant rights under Nevada law would be waived by agreeing to arbitration.
____________________

26
Id. at 1148-49.

27
Id. at 1149.

28
Id. (quoting Armendariz v. Foundation Health Psychcare, 6 P.3d 669, 692 (Cal. 2000)).

29
Green Tree Financial Corp.-Ala. v. Randolph, 531 U.S. 79, 90 (2000).
under Nevada law would be waived by agreeing to arbitration. While the absence of language
disclosing the potential arbitration costs and fees, standing alone, may not render an
arbitration provision unenforceable, the district court properly considered that as a factor in
invalidating the provision. As the arbitration provision is unenforceable, we affirm the district
court's order denying Horton's motion to compel arbitration.
____________
120 Nev. 559, 559 (2004) Williams v. Williams
RICHARD E. WILLIAMS, Appellant, v. MARCIE C.
WILLIAMS, Respondent.
No. 40324
September 13, 2004 97 P.3d 1124
Appeal from a district court order dividing property and awarding spousal support in
an annulment proceeding. Second Judicial District Court, Family Court Division, Washoe
County; Charles M. McGee, Judge.
Husband appealed from decision of the district court, granting annulment and
awarding wife one-half of all the jointly-held property and spousal support. The supreme
court held that, as matters of apparent first impression: (1) putative spouse doctrine applies in
annulment proceedings for purposes of property division; (2) putative spouse doctrine does
not conflict with Nevada's policy in refusing to recognize common-law marriages or
palimony suits; (3) wife believed in good faith that she was divorced from her first husband
when she entered into marriage with second husband, and therefore, she qualified as a
putative spouse under putative spouse doctrine; (4) putative spouse doctrine does not permit
an award of spousal support when both parties act in good faith; and (5) absent an equitable
basis of bad faith or fraud or a statutory basis, trial court had no authority to grant spousal
support in annulment proceeding involving putative spouses.
[Rehearing denied November 9, 2004]
[En banc reconsideration denied December 15, 2004]
Jeffrey Friedman, Reno, for Appellant.
Richard F. Cornell, Reno, for Respondent.
1. Marriage.
Putative spouse doctrine applies in annulment proceedings for purposes of property
division.
2. Marriage.
A marriage is void if either of the parties to the marriage has a former husband or wife
then living. NRS 125.290(2).
3. Marriage.
Parties' marriage was void because wife was still married to another man when she
married husband, and, although their marriage was void, an annulment proceeding was
necessary to legally sever their relationship.
4. Marriage.
An annulment proceeding is the proper manner to dissolve a void marriage and
resolve other issues arising from the dissolution of the relationship.
5. Marriage.
Under the putative spouse doctrine, an individual whose marriage is void due to a
prior legal impediment is treated as a spouse so long as the party seeking equitable
relief participated in the marriage ceremony with the good-faith belief that the
ceremony was legally valid.
6. Marriage.
Under the putative spouse doctrine, when a marriage is legally void, the civil effects
of a legal marriage flow to the parties who contracted to marry in good faith; that is, a
putative spouse is entitled to many of the rights of an actual spouse.
7. Marriage.
The putative spouse doctrine has two elements: (1) a proper marriage ceremony was
performed, and (2) one or both of the parties had a good-faith belief that there was no
impediment to the marriage and the marriage was valid and proper.
8. Marriage.
Good faith, which is one of the elements of the putative spouse doctrine, is presumed,
and party asserting lack of good-faith belief that marriage was valid and proper has the
burden of proving bad faith.
9. Marriage.
Whether the party acted in good faith in marrying is a question of fact for purposes of
the putative spouse doctrine, which holds that individual whose marriage is void due to
a prior legal impediment is treated as a spouse so long as the party seeking equitable
relief participated in the marriage ceremony with the good-faith belief that the
ceremony was legally valid.
10. Marriage.
Unconfirmed rumors or mere suspicions of a legal impediment do not vitiate good
faith so long as no certain or authoritative knowledge of some legal impediment comes
to him or her for purposes of the putative spouse doctrine, which holds that individual
whose marriage is void due to a prior legal impediment is treated as a spouse so long as
the party seeking equitable relief participated in the marriage ceremony with the
good-faith belief that the ceremony was legally valid.
11. Marriage.
When a person receives reliable information that an impediment to marriage exists,
the individual cannot ignore the information but, instead, has a duty to investigate
further for purposes of the putative spouse doctrine, which holds that individual whose
marriage is void due to a prior legal impediment is treated as a spouse so long as the
party seeking equitable relief participated in the marriage ceremony with the good-faith
belief that the ceremony was legally valid. Persons cannot act blindly or without
reasonable precaution.
12. Marriage.
Once a spouse learns of legal impediment to marriage, the putative marriage ends.
13. Marriage.
Putative spouse doctrine does not conflict with Nevada's policy in refusing to
recognize common-law marriages or palimony suits. In the putative spouse doctrine,
the parties have actually attempted to enter into a formal relationship with the
solemnization of a marriage ceremony, a missing element in common-law marriages
and palimony suits.
14. Divorce.
Appellate court reviews trial court decisions concerning divorce proceedings for an
15. Divorce.
Trial court rulings in divorce action that are supported by substantial evidence will not
be disturbed on appeal. Substantial evidence is that which a sensible person may
accept as adequate to sustain a judgment.
16. Marriage.
Wife believed in good faith that she was divorced from her first husband when she
entered into marriage with second husband, and therefore, she qualified as a putative
spouse under putative spouse doctrine. Wife did not act unreasonably in relying on first
husband's statements that he had obtained divorce, and there was no reason for wife to
have disbelieved him and, thus, no reason to investigate the truth of his representations.
17. Husband and Wife.
Community property states that recognize the putative spouse doctrine apply
community property principles to the division of property, including determinations of
what constitutes community and separate property.
18. Marriage.
Substantial evidence supported trial court's decision to treat the parties' property as
quasi-community property and to equally divide the joint property between the parties
in annulment proceeding involving putative spouse doctrine. Since putative spouses
believed themselves to be married, they were already under the assumption that
community property laws would apply to a termination of their relationship, and there
was no point in devising a completely separate set of rules for dividing property
differently in a putative spouse scenario.
19. Marriage.
Law does not provide for an award of alimony after an annulment.
20. Marriage.
Putative spouse doctrine does not permit an award of spousal support when both
parties act in good faith.
21. Marriage.
Absent an equitable basis of bad faith or fraud or a statutory basis, trial court had no
authority to grant spousal support in annulment proceeding involving putative spouses.
22. Marriage.
Putative spouse doctrine does not permit an award of spousal support in the absence
of bad faith, fraud or statutory authority.
OPINION
Per Curiam:
This is a case of first impression involving the application of the putative spouse
doctrine in an annulment proceeding. Under the doctrine, an individual whose marriage is
void due to a prior legal impediment is treated as a spouse so long as the party seeking
equitable relief participated in the marriage ceremony with the good-faith belief that the
ceremony was legally valid. A majority of states recognize the doctrine when dividing
property acquired during the marriage, applying equitable principles, based on community
property law, to the division. However, absent fraud, the doctrine does not apply to awards of
spousal support. While some states have extended the doctrine to permit spousal support
awards, they have done so under the authority of state statutes.
[Headnote 1]
We agree with the majority view. Consequently, we adopt the putative spouse
doctrine in annulment proceedings for purposes of property division and affirm the district
court's division of the property. However, we reject the doctrine as a basis of awarding
equitable spousal support. Because Nevada's annulment statutes do not provide for an award
of support upon annulment, we reverse the district court's award of spousal support.
FACTS
On August 26, 1973, appellant Richard E. Williams underwent a marriage ceremony
with respondent Marcie C. Williams. At that time, Marcie believed that she was divorced
from John Allmaras. However, neither Marcie nor Allmaras had obtained a divorce. Richard
and Marcie believed they were legally married and lived together, as husband and wife, for 27
years. In March 2000, Richard discovered that Marcie was not divorced from Allmaras at the
time of their marriage ceremony.
In August 2000, Richard and Marcie permanently separated. In February 2001,
Richard filed a complaint for an annulment. Marcie answered and counterclaimed for
one-half of the property and spousal support as a putative spouse.
1
In April 2002, the parties
engaged in a one-day bench trial to resolve the matter.
____________________

1
In the event the district court rejected Marcie's putative spouse theory, she also alleged an interest in the
property under an implied contract theory pursuant to Western States Construction v. Michoff, 108 Nev. 931,
840 P.2d 1220 (1992). Because we adopt the putative spouse doctrine, Michoff is not controlling.
At trial, Richard testified that had he known Marcie was still married, he would not
have married her. He claimed that Marcie knew she was not divorced when she married him
or had knowledge that would put a reasonable person on notice to check if the prior marriage
had been dissolved. Specifically, Richard stated that Marcie should not have relied on
statements from Allmaras that he had obtained a divorce because Marcie never received any
legal notice of divorce proceedings. In addition, Richard claimed that in March 2000, when
Marcie received a social security check in the name of Marcie Allmaras, Marcie told him that
she had never been divorced from Allmaras. Marcie denied making the statement.
Marcie testified that she believed she was not married to her former husband, John
Allmaras, and was able to marry again because Allmaras told her they were divorced. Marcie
further testified that in 1971, she ran into Allmaras at a Reno bus station, where he
specifically told her that they were divorced and he was living with another woman.
According to Marcie, she discovered she was still married to Allmaras during the course of
the annulment proceedings with Richard. Marcie testified that if she had known at any time
that she was still married to Allmaras, she would have obtained a divorce from him.
During the 27 years that the parties believed themselves to be married, Marcie was a
homemaker and a mother. From 1981 to 1999, Marcie was a licensed child-care provider for
six children. During that time, she earned $460 a week. At trial, Marcie had a certificate of
General Educational Development (G.E.D.) and earned $8.50 an hour at a retirement home.
She was 63 years old and lived with her daughter because she could not afford to live on her
own.
Both parties stipulated to the value of most of their jointly-owned property. At the
time of the annulment proceeding, the parties held various items in their joint names,
including bank accounts, vehicles, life insurance policies, a Sparks home, a radiator business,
and a motorcycle.
The district court found that Marcie had limited ability to support herself. The district
court also concluded that both parties believed they were legally married, acted as husband
and wife, and conceived and raised two children. Marcie stayed home to care for and raise
their children. Based upon these facts, the district court granted the annulment and awarded
Marcie one-half of all the jointly-held property and spousal support. The district court did not
indicate whether its award was based on the putative spouse doctrine or an implied contract
and quantum meruit theory. The final judgment divided the parties' property so that each
received assets of approximately the same value.
assets of approximately the same value. It also ordered Richard to pay Marcie the sum of
$500 per month for a period of four years as reimbursement and compensation for the
benefit received by [Richard] by way of [Marcie's] forgoing a career outside the home in
order to care for [Richard] and their children. Richard timely appealed the district court's
judgment.
DISCUSSION
Annulment
[Headnotes 2-4]
A marriage is void if either of the parties to the marriage has a former husband or wife
then living.
2
Richard and Marcie's marriage was void because Marcie was still married to
another man when she married Richard. Although their marriage was void, an annulment
proceeding was necessary to legally sever their relationship. An annulment proceeding is the
proper manner to dissolve a void marriage and resolve other issues arising from the
dissolution of the relationship.
3

Assertions of error
First, Richard contends that Marcie is not entitled to one-half of their joint property
because their marriage was void. Richard asserts that application of the putative spouse
doctrine and quasi-community property principles was improper. Alternatively, Richard
argues that if the district court relied on implied contract and quantum meruit theories, the
district court should have divided the parties' residence according to this court's decision in
Sack v. Tomlin,
4
which would provide Richard with 67 percent of the assets instead of 50
percent.
Second, Richard argues that the district court erred in awarding spousal support.
Richard contends support is not permitted, absent statutory authority, under the putative
spouse doctrine and that there is no basis in Nevada law for awarding compensation for
services rendered during the marriage under a theory of quantum meruit.
Because the record does not reflect the basis for the district court's decision, resolution
of Richard's contentions requires us to address the putative spouse doctrine.
____________________

2
NRS 125.290(2).

3
See Hicklin v. Hicklin, 509 N.W.2d 627, 631 (Neb. 1994) (recognizing that an annulment proceeding was
proper when one party had a spouse living at the time of his purported marriage to the other party).

4
110 Nev. 204, 871 P.2d 298 (1994).
Putative spouse doctrine
[Headnotes 5, 6]
Under the putative spouse doctrine, when a marriage is legally void, the civil effects
of a legal marriage flow to the parties who contracted to marry in good faith.
5
That is, a
putative spouse is entitled to many of the rights of an actual spouse.
6
A majority of states
have recognized some form of the doctrine through case law or statute.
7
States differ,
however, on what exactly constitutes a civil effect. The doctrine was developed to avoid
depriving innocent parties who believe in good faith that they are married from being denied
the economic and status-related benefits of marriage, such as property division, pension, and
health benefits.
8

[Headnotes 7-12]
The doctrine has two elements: (1) a proper marriage ceremony was performed, and
(2) one or both of the parties had a good-faith belief that there was no impediment to the
marriage and the marriage was valid and proper.
9
Good faith has been defined as an
honest and reasonable belief that the marriage was valid at the time of the ceremony.
10
Good faith is presumed. The party asserting lack of good faith has the burden of proving bad
faith.
11
Whether the party acted in good faith is a question of fact.
12
Unconfirmed rumors or
mere suspicions of a legal impediment do not vitiate good faith so long as no certain or
authoritative knowledge of some legal impediment comes to him or her.'
13
However, when
a person receives reliable information that an impediment exists, the individual cannot ignore
the information, but instead has a duty to investigate further.
14
Persons cannot act " 'blindly
or without reasonable precaution.
____________________

5
Hicklin, 509 N.W.2d at 631.

6
Id.

7
Christopher L. Blakesley, The Putative Marriage Doctrine, 60 Tul. L. Rev. 1 (1985); see Cal. Fam. Code
2251 (West 1994); Colo. Rev. Stat. Ann. 14-2-111 (West 2003); 750 Ill. Comp. Stat. Ann. 5/305 (West 1999);
La. Civ. Code Ann. art. 96 (West 1999); Minn. Stat. Ann. 518.055 (West 1990); Mont. Code Ann. 40-1-404
(2003).

8
See Cortes v. Fleming, 307 So. 2d 611, 613 (La. 1973) (noting that the doctrine has been applied to issues
involving legitimacy of children, workers' compensation benefits, community property, and inheritance).

9
Blakesley, supra note 7, at 6.

10
Hicklin, 509 N.W.2d at 631.

11
Id. at 632.

12
Galbraith v. Galbraith, 396 So. 2d 1364, 1369 (La. Ct. App. 1981).

13
Garduno v. Garduno, 760 S.W.2d 735, 740 (Tex. App. 1988) (quoting Succession of Chavis, 29 So. 2d
860, 862 (La. 1947)).

14
Id.
blindly or without reasonable precaution.'
15
Finally, once a spouse learns of the
impediment, the putative marriage ends.
16

[Headnote 13]
We have not previously considered the putative spouse doctrine, but we are persuaded
by the rationale of our sister states that public policy supports adopting the doctrine in
Nevada. Fairness and equity favor recognizing putative spouses when parties enter into a
marriage ceremony in good faith and without knowledge that there is a factual or legal
impediment to their marriage. Nor does the doctrine conflict with Nevada's policy in refusing
to recognize common-law marriages or palimony suits. In the putative spouse doctrine, the
parties have actually attempted to enter into a formal relationship with the solemnization of a
marriage ceremony, a missing element in common-law marriages and palimony suits. As a
majority of our sister states have recognized, the sanctity of marriage is not undermined, but
rather enhanced, by the recognition of the putative spouse doctrine. We therefore adopt the
doctrine in Nevada.
We now apply the doctrine to the instant case. The district court found that the parties
obtained a license and participated in a marriage ceremony on August 26, 1973, in Verdi,
Nevada. The district court also found that Marcie erroneously believed that her prior husband,
Allmaras, had terminated their marriage by divorce and that she was legally able to marry
Richard. In so finding, the district court also necessarily rejected Richard's argument that
Marcie acted unreasonably in relying on Allmaras' statements because she had never been
served with divorce papers and that she had a duty to inquire about the validity of her former
marriage before marrying Richard.
[Headnotes 14-16]
Although Richard's and Marcie's testimony conflicted on this issue, judging the
credibility of the witnesses and the weight to be given to their testimony are matters within
the discretion of the district court.
17
This court reviews district court decisions concerning
divorce proceedings for an abuse of discretion. Rulings supported by substantial evidence
will not be disturbed on appeal.
18
Substantial evidence is that which a sensible person may
accept as adequate to sustain a judgment.
19
We apply the same standard in annulment
proceedings.
____________________

15
Id. (quoting Chavis, 29 So. 2d at 863).

16
Id.

17
Castle v. Simmons, 120 Nev. 98, 103, 86 P.3d 1042, 1046 (2004).

18
Shydler v. Shydler, 114 Nev. 192, 196, 954 P.2d 37, 39 (1998).

19
See Schmanski v. Schmanski, 115 Nev. 247, 251, 984 P.2d 752, 755 (1999).
annulment proceedings. The district court was free to disregard Richard's testimony, and
substantial evidence supports the district court's finding that Marcie did not act unreasonably
in relying upon Allmaras' representations. The record reflects no reason for Marcie to have
disbelieved him and, thus, no reason to have investigated the truth of his representations.
Although older case law suggests that a party cannot rely on a former spouse's representation
of divorce, more recent cases indicate this is just a factor for the judge to consider in
determining good faith.
20
We conclude that the district court did not err in finding that
Marcie entered into the marriage in good faith. She therefore qualifies as a putative spouse.
We now turn to the effect of the doctrine on the issues of property division and alimony.
Property division
[Headnotes 17, 18]
Community property states that recognize the putative spouse doctrine apply
community property principles to the division of property, including determinations of what
constitutes community and separate property.
21
Since putative spouses believe themselves to
be married, they are already under the assumption that community property laws would apply
to a termination of their relationship. There is no point, therefore, in devising a completely
separate set of rules for dividing property differently in a putative spouse scenario. We agree
with this reasoning.
In some states, courts apply community property principles to divide property
acquired during the purported marriage.
22
In other states, the property is considered to be
held under joint tenancy principles and is divided equally between the parties.
23
Regardless
of the approach, all states that recognize the putative spouse doctrine divide assets acquired
during the marriage in an equitable fashion. We conclude that the application of community
property principles to a putative marriage, as indicated in Sanguinetti v. Sanguinetti,
24
is the
better approach to the division of property in such cases.
25
In this case, the district court
treated the parties' property as quasi-community property and equally divided the joint
property between the parties.
____________________

20
Gathright v. Smith, 368 So. 2d 679, 683-84 (La. 1978).

21

22
Sanguinetti v. Sanguinetti, 69 P.2d 845, 847 (Cal. 1937).

23
Garduno, 760 S.W.2d at 739.

24
69 P.2d at 847.

25
Different rules may apply when one of the parties qualifies as a putative spouse and the other does not.
When a person enters into the relationship with knowledge of an impediment and knowledge the marriage is not
valid, some states have found the person who acted in bad faith is not entitled to benefit from the marriage. We
do not reach this issue because the facts of this case involve two innocent putative spouses.
property as quasi-community property and equally divided the joint property between the
parties. Substantial evidence supports the district court's division, and we affirm the district
court's distribution of the property.
Spousal support
States are divided on whether spousal support is a benefit or civil effect that may be
awarded under the putative spouse doctrine.
26
Although some states permit the award of
alimony, they do so because their annulment statutes permit an award of rehabilitative or
permanent alimony.
27
At least one state, however, has found alimony to be a civil effect
under the putative spouse doctrine even in the absence of a specific statute permitting an
award of alimony.
28

We have not previously ruled on whether a district court may award spousal support
after an annulment. The only case in Nevada that discusses spousal support in connection
with an annulment is our 1912 decision in Poupart v. District Court.
29
In Poupart, spousal
support was awarded pendente lite, but no permanent or rehabilitative support was granted.
Although we stated in dictum that the right to alimony depends on a valid and subsisting
marriage, since, without this, there is no obligation for the support of the alleged wife,'
30
Poupart did not address the putative spouse doctrine. Because the facts in Poupart are not
analogous to the instant case, Poupart offers us little guidance.
[Headnote 19]
Nevada statutes do not provide for an award of alimony after an annulment. Thus, the
cases in which alimony was awarded pursuant to statute are of little help in resolving this
issue. In those cases, state legislatures had codified the putative spouse doctrine and
specifically indicated that issues such as property division and alimony were to be resolved in
the same manner as if the void marriage had been valid.
____________________

26

27
Matter of Marriage of Dennis, 958 P.2d 199 (Or. Ct. App. 1998); Jones v. Jones, 296 P.2d 1010 (Wash.
1956); Cal. Fam. Code 2254 (West 1994); Colo. Rev. Stat. Ann. 14-2-111 (West 2003); 750 Ill. Comp. Stat.
Ann. 5/305 (West 1999); Minn. Stat. Ann. 518.055 (West 1990); Mont. Code Ann. 40-1-404 (2003).

28
Cortes v. Fleming, 307 So. 2d 611 (La. 1973). While the Louisiana Supreme Court did not rely on a
statute specifically granting a putative spouse the right to alimony in its decision, the court did use an annulment
statute as a basis of the award. The court indicated the term civil effect in the annulment statute was broad
enough to include alimony. Nevada does not have similar language in its annulment statutes.

29
34 Nev. 336, 123 P. 769 (1912).

30
Id. at 339, 123 P. at 770 (quoting Cyclopedia of Law & Proc., 26 Cyc. 917 (1901)).
marriage had been valid. Absent such a determination by the Nevada Legislature, we must
look to the cases in which courts have either refused to award alimony in the absence of
statutory authority, despite recognizing the doctrine for other purposes, or awarded spousal
support based on the putative spouse doctrine.
In McKinney v. McKinney, the Georgia Supreme Court summarily stated that alimony
is not available in an equitable action for annulment because the right to alimony depends
upon a valid marriage.
31
This reflects the general rule expressed in Poupart. However,
unlike Poupart, the Georgia Supreme Court does appear to have relied on the putative spouse
doctrine in dividing the parties' property since it discussed concepts of good faith. Thus, it
appears that the Georgia court declined to award alimony under the doctrine.
32

The California Supreme Court followed the same rationale in Sanguinetti,
33
noting
that a putative spouse has no right to an allowance of alimony. However, the California
Supreme Court found that a putative spouse could maintain a claim under quantum meruit for
the reasonable value of the services that the putative spouse rendered to the marriage if there
was fraud or fault (such as cruelty) committed by the party opposing alimony.
34

In a similar case, Kindle v. Kindle,
35
the Florida Court of Appeals upheld an award of
alimony when the husband failed to disclose his previous marriage and was not divorced
when he entered into a second marriage ceremony. Preston and Kikeu Kindle were married
for 20 years when the court granted an annulment. At the time the couple married, Preston
was already married, but he never disclosed this to Kikeu. The trial court found that Kikeu
was an innocent victim of Preston's wrongdoing and awarded Kikeu permanent alimony. The
Florida Court of Appeals upheld the permanent alimony award based on equitable principles.
36
The court further stated that [i]t would be grossly inequitable to deny alimony to a
putative wife of a twenty-year marriage because the husband fraudulently entered into a
marriage ceremony.
37

Sanguinetti and Kindle, however, are distinguishable from the instant case. In those
cases, the courts found fraud, bad faith or bad conduct, such as cruelty, to support the award
of equitable alimony. In the instant case, Richard and Marcie each acted in good faith.
____________________

31
250 S.E.2d 470, 472 (Ga. 1978).

32
Id.

33
69 P.2d 845 (Cal. 1937).

34
Id. at 847.

35
629 So. 2d 176 (Fla. Dist. Ct. App. 1993).

36
Id. at 176-77.

37
Id. at 177.
Neither Richard nor Marcie knowingly defrauded the other, and there is no evidence of
misconduct or bad faith.
We can find no case, and Marcie has cited to none, in which spousal support was
awarded to a putative spouse absent statutory authority, fraud, bad faith or bad conduct.
Although one commentator favors such awards on the theory that the purpose of the putative
spouse doctrine is to fulfill the reasonable expectations of the parties,
38
we are unaware of
any court adopting such a standard.
[Headnotes 20, 21]
The putative spouse doctrine did not traditionally provide for an award of spousal
support.
39
Extensions of the doctrine have come through statute or findings of fraud and bad
faith. As neither is present in this case, we decline to extend the doctrine to permit an award
of spousal support when both parties act in good faith. Richard and Marcie's marriage was
void, and there was no showing of bad faith or fraud by either party. Absent an equitable
basis of bad faith or fraud or a statutory basis, the district court had no authority to grant the
spousal support award, and we reverse that part of the judgment awarding spousal support.
CONCLUSION
[Headnote 22]
We conclude that an annulment proceeding is the proper method for documenting the
existence of a void marriage and resolving the rights of the parties arising out of the void
relationship. We adopt the putative spouse doctrine and conclude that common-law
community property principles apply by analogy to the division of property acquired during a
putative marriage. However, the putative spouse doctrine does not permit an award of spousal
support in the absence of bad faith, fraud or statutory authority. Therefore, we affirm that
portion of the district court's order equally dividing the parties' property and reverse that
portion of the order awarding spousal support.
40

____________________

38

39
Id. at 41-43.

40
We have reviewed Richard's other arguments and conclude that they are without merit.
____________
120 Nev. 571, 571 (2004) Scott v. Zhou
JIMETTE SCOTT, Appellant, v. JIAN YING ZHOU,
Respondent.
No. 40641
September 13, 2004 98 P.3d 313
Appeal from a district court order awarding attorney fees to respondent on remand.
Eighth Judicial District Court, Clark County; Michael L. Douglas, Judge.
Plaintiff brought negligence action arising out of automobile accident. Following a
jury trial after mandatory arbitration, the district court granted plaintiff's motion for attorney
fees. Defendant appealed, and the supreme court reversed and remanded. On remand, the
district court awarded attorney fees to plaintiff. Defendant appealed. The supreme court,
Agosti, J., held that: (1) rule governing award of fees to party who did not request trial de
novo where requesting party does not improve position by 20 percent or more did not provide
basis for award of fees to plaintiff, and (2) trial court acted within its discretion when it
awarded attorney fees of $10,000 to plaintiff as the prevailing party.
Affirmed.
Law Office of Thomas R. Slezak, Jr., and Thomas R. Slezak, Jr., Las Vegas, for
Appellant.
Bruce D. Schupp, Las Vegas, for Respondent.
Bradley Drendel & Jeanney and Thomas E. Drendel, Reno, for Amicus Curiae
Nevada Trial Lawyers Association.
1. Statutes.
When interpreting a statute, words should be given their plain meaning unless this
violates the spirit of the act.
2. Arbitration.
Arbitration rule, governing award of attorney fees to party who did not request trial de
novo after court-ordered arbitration where requesting party does not improve position
by 20 percent or more, did not provide basis for award of attorney fees to plaintiff in
negligence action arising from automobile accident because defendant requested trial de
novo and obtained judgment following jury trial that was over 20 percent less than what
arbitrator awarded plaintiff. NAR 20(B)(2).
3. Arbitration.
Trial court acted within its discretion when it awarded attorney fees of $10,000 to
plaintiff as a prevailing party following trial de novo after court-ordered arbitration in
negligence action arising from automobile accident. Although defendant's demand for
trial de novo resulted in jury verdict for plaintiff of $4,215, which was less than
arbitrator's award of $10,215, arbitration rule allowed prevailing party to recover fees as
permitted by statute. Applicable statute allowed recovery to prevailing party who
recovers less than $20,000, and plaintiff had recovered substantially more than
defendant's offer of judgment.
120 Nev. 571, 572 (2004) Scott v. Zhou
party who recovers less than $20,000, and plaintiff had recovered substantially more
than defendant's offer of judgment. NRS 18.010(2)(a); NAR 20(B)(1).
OPINION
Jian Zhou sued Jimette Scott in the district court for negligence arising out of an
automobile collision. The case proceeded through the mandatory court annexed arbitration
program. The arbitrator awarded Zhou $10,215 plus additional costs and attorney fees. Scott
demanded a trial de novo and properly filed a jury demand. The jury awarded Zhou a verdict
of $4,215. The district court denied Zhou's motion for additur but granted Zhou's motion for
attorney fees, awarding $10,000. Scott appealed, and we reversed the award of attorney fees
and remanded the matter to the district court for a determination of a reasonable attorney fee
in light of Scott's success in convincing the jury to award a judgment substantially less than
the amount awarded by the arbitrator, the district court's reasoning having been unapparent
from the record.
On remand the district court again awarded Zhou attorney fees of $10,000, but this
time indicated its reasoning. Scott appeals. We now affirm the district court's award of
attorney fees.
Scott contends that the district court abused its discretion when it awarded attorney
fees to Zhou. In reviewing the contested attorney fee award, we turn first to NAR 20(B),
which provides, in part:
(1) The prevailing party at the trial de novo is entitled to all recoverable fees, costs,
and interest pursuant to statute or N.R.C.P. 68.
(2) Exclusive of any award of fees and costs under subsection (1), a party is entitled to
a separate award of attorney's fees and costs as set forth in (a) and (b) below. Attorney's
fees awarded pursuant to this subsection must not exceed $10,000.
(a) Awards of $20,000 or less. Where the arbitration award is $20,000 or less, and the
party requesting the trial de novo fails to obtain a judgment that exceeds the arbitration
award by at least 20 percent of the award, the non-requesting party is entitled to its
attorney's fees and costs associated with the proceedings following the request for trial
de novo. Conversely, if the requesting party fails to obtain a judgment that reduces by at
least 20 percent the amount for which that party is liable under the arbitration award,
the non-requesting party is entitled to its attorney's fees and costs associated with
the proceedings following the request for trial de novo.
120 Nev. 571, 573 (2004) Scott v. Zhou
tled to its attorney's fees and costs associated with the proceedings following the
request for trial de novo.
(Emphasis added.)
[Headnote 1]
When interpreting a statute, words should be given their plain meaning unless this
violates the spirit of the act.
1
NAR 20(B) permits a party to recover attorney fees under
either subsection (1) or subsection (2). The language of NAR 20(B)(2), [e]xclusive of any
award of fees and costs under subsection (1), makes it clear that subsections (1) and (2) are
independent of one another. An attorney fee award may be justified under either section and
need not be justified under both. Therefore, even if Zhou may not recover attorney fees
pursuant to NAR 20(B)(2), subsection (1) permits Zhou, as the prevailing party, to recover
attorney fees pursuant to NRS 18.010.
[Headnote 2]
Zhou is not entitled to an award of fees under NAR 20(B)(2). The rule entitles the
non-requesting party to attorney fees if the party requesting trial de novo does not improve his
or her position under the arbitration award by 20 percent or more. This section is inapplicable
to the instant case because Scott, the party requesting trial de novo, did obtain a judgment
over 20 percent less than what the arbitrator awarded Zhou. NAR 20(B)(2) is silent as to the
entitlements to or prohibitions against attorney fees when, as here, the non-requesting party
(Zhou) fails to obtain a judgment within 20 percent of the arbitrator's award. Therefore,
neither Scott nor Zhou may look to NAR 20(B)(2) for resolution of the question before us.
And so we turn to NAR 20(B)(1) to determine whether the district court abused its discretion
in awarding attorney fees to Zhou.
[Headnote 3]
The first time this case reached us on appeal, we remanded the matter to the district
court so that it could determine a reasonable attorney fee award for Zhou in light of the fact
that Scott was successful in convincing the jury to reduce the size of Zhou's judgment.
2
We
reasoned that,
since the award of attorney fees under NRS 18.010(2)(a) is discretionary, the district
court should have considered the fact that Scott, after requesting a trial de novo,
successfully convinced the jury to reduce the amount of Zhou's judgment.
____________________

1
McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986); see Trustees v. Developers
Surety, 120 Nev. 56, 61, 84 P.3d 59, 62 (2004) (applying the plain meaning rule of statutory construction to
NRCP 68).

2
Scott v. Zhou, Docket No. 37158 (Order Affirming in Part, Reversing in Part and Remanding, July 11,
2002).
120 Nev. 571, 574 (2004) Scott v. Zhou
that Scott, after requesting a trial de novo, successfully convinced the jury to reduce the
amount of Zhou's judgment. Otherwise, defendants who have meritorious grounds for
requesting a trial de novo[ ] would be deterred from doing so merely out of the fear of
being held responsible for all the additional attorney fees incurred from going to trial.
3

Our concern was that the fear of additional attorney fees would deter Scott, and other
defendants in his position, from filing a meritorious request for a trial de novo. We were also
concerned that the district court ought to have legitimate grounds upon which to base its
award of attorney fees and that it articulate such grounds in its findings of fact since the initial
amended judgment revealed no basis for the award.
On remand, after the parties submitted briefs and the district court held a hearing, the
district court again awarded Zhou $10,000 in attorney fees. NAR 20(B)(1) entitles the
prevailing party to recover fees as permitted by statute. NRS 18.010(2)(a) permitted the
district court to award attorney fees to Zhou as a prevailing party who recovered less than
$20,000. In its order, the district court concluded that, while it recognized that the jury
awarded Zhou less than the arbitrator's award, Zhou was nevertheless the prevailing party.
The court considered that Scott, prior to the trial de novo, had made an offer of judgment for
$2,501. At trial, Zhou had recovered $4,215, which was substantially more than Scott's offer.
Zhou had requested $15,000 in attorney fees, but the court rejected that request and awarded
$10,000. The court considered that Zhou's case was handled on a contingency fee basis;
Zhou's attorney normally charges $200 per hour for non-contingent fee matters, which the
district court found to be reasonable. The court further considered that Zhou's counsel
estimated that he had expended 75 hours from preparation through the jury trial, which the
district court also concluded was reasonable, considering the nature of the case and the
difficulties associated with Zhou's inability to speak English. The district court explicitly
stated its reasoning for Zhou's attorney fee award and specifically considered the fact that
Scott had succeeded in reducing his liability at trial. The district court additionally considered
Scott's meager offer of judgment, which Zhou rejected, in awarding attorney fees to Zhou.
This consideration was a matter entirely within the court's sound discretion. Therefore, we
affirm the attorney fees order.
____________________

3
Id.
____________
120 Nev. 575, 575 (2004) Beazer Homes Nevada, Inc. v. Dist. Ct.
BEAZER HOMES NEVADA, INC., a Dissolved Nevada Corporation, Petitioner, v. THE
THE COUNTY OF CLARK, and THE HONORABLE ALLAN R. EARL, District
Judge; THE HONORABLE NANCY M. SAITTA, District Judge; THE
HONORABLE MICHAEL CHERRY, District Judge; and THE HONORABLE
JESSIE WALSH, District Judge, Respondents, and WILLIAM ROBINSON,
Individually, and the Same on Behalf of Others Similarly Situated; THE HIGHLAND
GLEN HOMEOWNERS ASSOCIATION; COLEEN FULLER, Individually, and the
Same on Behalf of Others Similarly Situated; DANIEL BOLSTER; and SHARON
BOLSTER, Real Parties in Interest.
No. 42034
September 13, 2004 97 P.3d 1132
Original petition for a writ of mandamus or prohibition challenging respondents'
failure to dismiss construction defect actions filed against a dissolved corporation.
Developer, which was a dissolved corporation, filed petition for a writ of mandamus
or prohibition seeking to require trial courts in several underlying construction defect cases
brought by homeowners to grant developer's motion to dismiss. The supreme court, Becker,
J., held that: (1) statute requiring claims against dissolved corporations to be filed within two
years after dissolution did not apply to claims arising after the dissolution; and (2)
homeowners' claims did not arise until the alleged defects were, or should have been,
discovered.
Petition denied.
Koeller Nebeker Carlson & Haluck, LLP, and Robert C. Carlson Jr. and Megan K.
Dorsey, Las Vegas, for Petitioner.
Canepa Riedy Rubino & Lattie and Scott K. Canepa, Jonathan G. Lattie, and Michael
C. Rubino, Las Vegas, for Real Party in Interest Highland Glen Homeowners Association.
Jimmerson Hansen and James J. Jimmerson, Las Vegas, for Real Party in Interest
William Robinson.
Terry L. Wike, Las Vegas, for Real Parties in Interest Coleen Fuller, Daniel Bolster,
and Sharon Bolster.
1. Mandamus.
Supreme court will only entertain writ petitions challenging district court denials of
motions to dismiss when: (1) no factual dispute exists and the district court is
obligated to dismiss an action pursuant to clear authority under a statute or rule, or
{2) an important issue of law needs clarification and considerations of sound
judicial economy and administration militate in favor of granting the petition.
the district court is obligated to dismiss an action pursuant to clear authority under a
statute or rule, or (2) an important issue of law needs clarification and considerations of
sound judicial economy and administration militate in favor of granting the petition.
2. Mandamus.
A writ of mandamus is available to compel the performance of an act that the law
especially enjoins as a duty resulting from an office, trust or station, or to control
manifest abuse of discretion.
3. Prohibition.
A writ of prohibition is the counterpart of the writ of mandamus and is available to
arrest the proceedings of any tribunal when such proceedings are without or in excess
of the jurisdiction of such tribunal.
5. Statutes.
If the plain meaning of a statute is clear on its face, then supreme court will not go
beyond the language of the statute to determine its meaning.
6. Statutes.
When a statute is susceptible to more than one natural or honest interpretation, it is
ambiguous, and the plain meaning rule has no application.
7. Statutes.
In construing an ambiguous statute, supreme court must give the statute the
interpretation that reason and public policy would indicate the legislature intended.
8. Statutes.
When a legislature adopts language that has a particular meaning or history, rules of
statutory construction indicate that a court may presume that the legislature intended the
language to have meaning consistent with previous interpretations of the language.
9. Corporations.
Statute requiring claims against dissolved corporations to be filed within two years
after dissolution did not apply to claims arising after the dissolution. Language of
statute was ambiguous as to its applicability to post-dissolution claims, purpose of
statute was to provide a fair and equitable method of finalizing corporate affairs, and
such purpose would not be served by barring claims arising after dissolution, or
subjecting them to same two-year time limit, particularly if caused by the corporation's
wind-up activities. NRS 78.585.
For construction defect cases, the statute of limitations does not begin to run until the
time the plaintiff learns, or in the exercise of reasonable diligence should have learned,
of the harm to the property. NRS 11.202, 11.203, 11.204, 11.205.
11. Corporations.
Homeowners' construction defect claims against developer, a corporation that
subsequently dissolved, did not arise, within meaning of statute requiring claims arising
before the dissolution of a corporation to be filed within two years after its dissolution,
until the alleged defects were, or should have been, discovered by the homeowners.
Word arise was a term of art in statutes of limitation.
12. Statutes.
When separate statutes are potentially conflicting, supreme court attempts to construe
both statutes in a manner to avoid conflict and promote harmony.
OPINION
By the Court, Becker, J.:
This is an original proceeding brought by Beazer Homes Nevada, Inc., against various
district court judges and real parties in interest William Robinson, The Highland Glen
Homeowners Association, Coleen Fuller, Daniel Bolster and Sharon Bolster (collectively
Homeowners). Beazer contends that it dissolved as a corporate entity more than two years
before the underlying construction defect complaints were filed and that the complaints are
therefore barred under NRS 78.585. The Homeowners contend that the statute only bars
actions that arise before the date of dissolution and are not commenced within the two-year
statutory period. The Homeowners also contend that the word arise is a term of art that
applies when a claimant knows or should have known of a cause of action against the
corporation and that their claims did not arise before Beazer's dissolution. We agree with the
Homeowners' interpretation of the statute and accordingly deny the petition.
FACTS
This case involves four separate construction defect complaints filed against Beazer.
1
Residents of a subdivision known as Belle Esprit filed the first as a class action complaint on
December 5, 2001. The second case was filed on November 6, 2002, and involved the
Highland Glen development. On March 13, 2003, the third complaint was filed involving the
Vista Del Oro community. Also, on March 13, 2003, Daniel and Sharon Bolster filed an
individual action regarding their home located on Arco Iris Lane.
At some point in each of these cases, sometimes after years of litigation, Beazer filed
a motion to dismiss the complaint because Beazer formally dissolved as a corporate entity on
October 14, 1996. Beazer claimed that NRS 78.585 mandates the dismissal of any complaint
against a dissolved corporation brought more than two years after the date of dissolution.
____________________

1
There are a number of Beazer entities involved in the underlying complaints. In addition to Beazer Homes
Nevada, Inc., there is Beazer Homes Holdings Corp. and Beazer Homes Holdings, Inc. This opinion deals only
with Beazer Homes Nevada.
any complaint against a dissolved corporation brought more than two years after the date of
dissolution. Various oppositions were filed citing several reasons for denying the motions to
dismiss.
2

In their oppositions, the Homeowners argued that the statute's plain language made it
applicable only to causes of action that arose before the dissolution. Because some homes
were built after the dissolution, those homes would not be covered under the statute.
3
As to
homes that were built before the dissolution, the Homeowners asserted that the statute was
ambiguous because the word arising could be reasonably interpreted in two different ways.
In its ordinary usage, the term could refer to the time when the defects were created regardless
of when the Homeowners discovered the defects. Even so, the Homeowners contended that
the word could also be interpreted as a legal term of art because when used in other statutes,
such as statutes of limitation, it means the time when a claimant knew or should have known
of the existence of the construction defects. If the second meaning is used, the Homeowners
contend that a blanket motion to dismiss covering all claims and all litigants would be
inappropriate because of the need to resolve the central factual issuewhen did the
Homeowners learn of their claims.
Four different district judges ruled on the motions. All four denied the motions to
dismiss, although for varying reasons.
4
Beazer then filed this writ petition seeking to compel
the district courts to dismiss the cases.
DECISION
[Headnote 1]
In State of Nevada v. District Court (Anzalone), we held that writ relief is available
to review a district court's denial of a motion to dismiss, but only on a limited basis.
5
This
court will only entertain writ petitions challenging district court denials of motions to
dismiss when: "{1) no factual dispute exists and the district court is obligated to dismiss
an action pursuant to clear authority under a statute or rule; or {2) an important issue of
law needs clarification and considerations of sound judicial economy and administration
militate in favor of granting the petition.
____________________

2
Because we conclude that the motions were properly denied on statutory grounds, we do not address the
other bases for denying the motions in this opinion.

3
A dissolved corporation may still do business for the purpose of winding up corporate affairs. Whether
Beazer built homes after the filing of the dissolution papers as part of its dissolution activities, or whether it was
improperly continuing to do business in violation of the dissolution statutes is contested in the underlying cases
below. However, this issue is irrelevant to the issue of statutory interpretation and is not addressed by this
opinion.

4
One district judge concluded that the statute was unambiguous and mandated the dismissal of the
underlying complaint, but refused to enforce the statute because the judge thought it would be bad public
policy. This decision was clearly an abuse of discretion. When a statute is clear, unambiguous, not in conflict
with other statutes and is constitutional, the judicial branch may not refuse to enforce the statute on public policy
grounds. That decision is within the sole purview of the legislative branch.

5
118 Nev. 140, 147, 42 P.3d 233, 238 (2002).
entertain writ petitions challenging district court denials of motions to dismiss when: (1) no
factual dispute exists and the district court is obligated to dismiss an action pursuant to clear
authority under a statute or rule; or (2) an important issue of law needs clarification and
considerations of sound judicial economy and administration militate in favor of granting the
petition.
6
Few such writ petitions are granted and most are summarily denied. Because this
case involves significant public policy concerns and raises an important issue of law in need
of clarification, however, we conclude that we should exercise our discretion and accept
review.
[Headnotes 2, 3]
According to Beazer, a writ of mandamus is warranted because the district courts are
compelled by law to dismiss the underlying actions. A writ of mandamus is available:
to compel the performance of an act which the law especially enjoins as a duty
resulting from an office, trust or station,
[7]
or to control manifest abuse of discretion.
A writ of prohibition is the counterpart of the writ of mandamus and is available to
arrest[ ] the proceedings of any tribunal . . . when such proceedings are without or in
excess of the jurisdiction of such tribunal.
8

In order to determine whether the district courts manifestly abused their discretion by
refusing to dismiss the complaints, we must consider the meaning of NRS 78.585, which
provides that:
The dissolution of a corporation does not impair any remedy or cause of action
available to or against it or its directors, officers or shareholders arising before its
dissolution and commenced within 2 years after the date of the dissolution. It continues
as a body corporate for the purpose of prosecuting and defending suits, actions,
proceedings and claims of any kind or character by or against it and of enabling it
gradually to settle and close its business, to collect and discharge its obligations, to
dispose of and convey its property, and to distribute its assets, but not for the purpose of
continuing the business for which it was established.
(Emphasis added.)
[Headnotes 4-7]
9
If
the plain meaning of a statute is clear on its face, then [this court] will not go beyond the
language of the statute to determine its meaning.
____________________

6
Id.

7
Id. at 146, 42 P.3d at 237 (quoting NRS 34.160).

8
Id. at 146-47, 42 P.3d at 237 (quoting NRS 34.320).

9
face, then [this court] will not go beyond the language of the statute to determine its
meaning.
10
However, when a statute is susceptible to more than one natural or honest
interpretation, it is ambiguous, and the plain meaning rule has no application.
11
In
construing an ambiguous statute, we must give the statute the interpretation that reason and
public policy would indicate the legislature intended.
12

Two issues are presented in this petition. First, whether NRS 78.585 applies to
post-dissolution claims, and second, when a claim arises for purposes of determining
whether a cause of action is a pre-dissolution or post-dissolution claim.
Beazer first contends that NRS 78.585 bars all claims and causes of action, regardless
of when they arose, not filed within two years of the date of corporate dissolution because it
is a survival statute. According to Beazer, without the statute, all claims against a dissolved
corporation abate at the time of dissolution and the Legislature only intended claims to
survive past dissolution for a limited periodtwo years. As all of the underlying
complaints were filed after the two-year date, Beazer asserts that the district courts abused
their discretion by not dismissing the complaints.
13
The Homeowners assert that the statute's
plain language applies only to those claims arising before a corporation's dissolution. They
argue that the statute does not apply to causes of action that arise after dissolution.
[Headnote 8]
NRS 78.585 is silent with respect to its application to post-dissolution claims.
Consequently, we must look beyond the statutory language in determining whether it applies
to post-dissolution claims. When a legislature adopts language that has a particular meaning
or history, rules of statutory construction also indicate that a court may presume that the
legislature intended the language to have meaning consistent with previous
interpretations of the language.
____________________

10
Rosequist v. Int'l Ass'n of Firefighters, 118 Nev. 444, 448, 49 P.3d 651, 653 (2002).

11

12
State, Dep't Mtr. Vehicles v. Vezeris, 102 Nev. 232, 236, 720 P.2d 1208, 1211 (1986) (internal quotations
and citations omitted).

13
Beazer also asserts that the Legislature has already addressed and rejected the Homeowners' interpretation
of NRS 78.585. Beazer contends that in 2001, the Legislature declined to pass S.B. 89, a bill that would have
clarified the application of NRS 78.585 to construction defect claims. Because the bill did not pass, Beazer
argues that the Legislature has indicated its intent that NRS 78.585 bar all claims against a dissolved corporation
that are not filed within the two-year time period. We disagree. First, the Legislature never considered S.B. 89,
as it never came to a vote. Second, the bill involved multiple amendments to various construction defect statutes;
only one section addressed dissolved corporations. Under the circumstances, we cannot consider the bill's
history because the bill was not rejected by a vote of the Legislature and we cannot ascertain why the bill was
not referred out of committee.
meaning or history, rules of statutory construction also indicate that a court may presume that
the legislature intended the language to have meaning consistent with previous interpretations
of the language.
14
NRS 78.585 has such a history. Statutes similar to NRS 78.585 are
generally referred to as survival statutes due to the history of their development.
At common law, all claims against or by a corporation, whether known, pending or
contingent, were abated when a corporation dissolved.
15
The rule produced inequitable
results. Creditors or claimants could not require corporate assets to be used first to pay claims
once the assets were liquidated or distributed to shareholders. Likewise, debts due to the
corporation could not be collected. Legislatures and courts created different remedies to
address this situation. Legislatures enacted statutes that continued the corporation's existence
for the purpose of winding up the corporation's affairs.
16
Additionally, courts created the
trust fund theory, which permitted litigants to sue former directors and shareholders of a
dissolved corporation.
17
According to this theory, directors have a fiduciary duty to see that
legitimate claims are paid and that shareholders take assets subject to an equitable lien.
Consequently, claimants could file an action naming the directors or shareholders in their
official capacities and could recover the value of the assets in the hands of these individuals.
18

Survival statutes were created to balance the corporation's rights to finalize its
business, the creditor's rights to be paid amounts due, the shareholder's rights to receive
distributions free of claims, and the claimant's rights to be paid for legitimate harm caused by
the corporation. The statutes were part of larger statutory schemes that ideally were supposed
to provide a window of opportunity during which the corporation would wind up its affairs,
pay creditors, or give notice of a denial of a claim and pursue any legal actions on behalf of
the corporation. Claimants were given notice of the dissolution and the period in which any
claim must be commenced, and claims commenced after the statutory period were barred.
Directors and shareholders of the dissolving corporation were also included in the statutes to
ensure that the end of the dissolution process would complete all actions involving the
corporation, directors, and shareholders and that assets could be safely distributed.
____________________

14
See Granite Constr., 118 Nev. at 88, 40 P.3d at 426; Ybarra v. State, 97 Nev. 247, 249, 628 P.2d 297-98
(1981) (when a statute is derived from another source, we assume the legislature intended it to be interpreted
consistent with the construction given to the original source).

15
D. Gilbert Friedlander & P. Anthony Lannie, Post-Dissolution Liabilities of Shareholders and Directors
for Claims Against Dissolved Corporations, 31 Vand. L. Rev. 1363, 1366, 1400 (1978).

16
Id.; see also Model Bus. Corp. Act Ann. 105, at 596 (2d ed. 1971).

17
Friedlander & Lannie, supra note 15, at 1366.

18
Id. at 1367-69.
solution process would complete all actions involving the corporation, directors, and
shareholders and that assets could be safely distributed.
19

In practice, however, such statutes did not accomplish the intended result, primarily
because the statutes were part of larger legislative initiatives that dealt only with known
claims. The notice provisions of the schemes did not cover unknown or contingent claims
and, therefore, the application of the statutes to these claims was questioned, particularly in
products liability cases where a cause of action does not exist until an injury occurs.
20
In
addition, questions were raised about the statutes' applicability to claims that arose from
post-dissolution wind-up activities.
21
As a result, courts have either strictly enforced the
survival statutes, barring all claims if not commenced within the specified time period
22
or
have held that the statutes do not apply to post-dissolution or unknown claims.
23

When read in the context of a survival statute, NRS 78.585 is capable of more than
one reasonable interpretation. Moreover, even when considered as a survival statute, it is still
subject to differing interpretations. The statute therefore is ambiguous. Because the statute is
ambiguous, we turn to the issue of legislative intent.
A review of the legislative history indicates that the current language of NRS 78.585
was enacted during the 1985 legislative session. It was based on Section 105 of the Model
Business Corporation Act of 1969.
24

The purpose of the statute was to reasonably limit the time period in which dissolved
corporations, its shareholders, and directors would be liable for claims against the
corporation. The legislative records do not reflect whether the Legislature intended the
provision to apply to post-dissolution claims.
25

____________________

19
Id. at 1401-03.

20
Id. at 1406-07.

21
Id. at 1370, 1408-11.

22
E.g., Stone v. Gibson Refrigerator Sales Corporation, 366 F. Supp. 733 (E.D. Pa. 1973); Bazan v. Kux
Machine Company, 190 N.W.2d 521 (Wis. 1971) (survival statute applied to both pre- and post-dissolution
claims).

23
E.g., Levy v. Liebling, 238 F.2d 505 (7th Cir. 1956); Donofrio v. Matassini, 503 So. 2d 1278 (Fla. Dist.
Ct. App. 1987) (survival statute does not bar post-dissolution claims).

24
Hearing on A.B. 634 Before the Senate Comm. on Judiciary, 63d Leg. (Nev., May 30, 1985). For reasons
not reflected in the legislative records, the proponents of the amendment used language based on the obsolete
1969 Model Act, rather than the more recent 1984 Model Act. In addition, the proponents failed to advise the
Legislature that Section 105 was part of a larger scheme. Consequently, the Legislature did not enact the notice
proceedings required by other portions of the 1969 Model Act, a key feature necessary to the rationale behind
the proper operation of Section 105.

25
Id.
Because the Nevada statute was patterned after Section 105 of the 1969 Model Act,
we may look to the commentary of the 1969 Model Act, and case law interpreting provisions
based on the 1969 Model Act, in ascertaining legislative intent.
26
Section 105 states, in
pertinent part:
The dissolution of a corporation . . . shall not take away or impair any remedy
available to or against such corporation, its directors, officers, or shareholders, for any
right or claim existing, or any liability incurred, prior to such dissolution if action or
other proceeding thereon is commenced within two years after the date of such
dissolution.
The official commentary accompanying Section 105 references the history of the
survival statutes and notes that every state had enacted statutes permitting actions to be
brought by or against a dissolved corporation and preventing actions from abating upon
dissolution.
27
The commentary is silent as to whether Section 105, which sets a two-year
period for the commencement of an action, applies to all claims, or just pre-dissolution
claims.
Courts, in interpreting statutes based upon Section 105 of the Model Act, have taken
different directions on whether Section 105 bars all claims, pre- and post-dissolution.
28
Because of the confusion generated by the vague language of Section 105, the Model Act was
amended in 1984. The 1984 Model Act eliminated the language of Section 105 and added
two new sections, 14.06 and 14.07. Section 14.06 sets forth the procedures for notifying
known claimants of the dissolution and sets a time period for filing claims. Claims that are
not timely filed are barred. Section 14.07 provides for unknown or contingent claims. Notice
of dissolution is given by publication, and claims not filed within a five-year period are
barred. The official comments to Section 14.07 indicate that the amendments were designed
to provide procedures for dealing with post-dissolution and unknown claims.
29
By giving
specific notice for known claims and constructive notice for unknown claims, claimants are
warned that a statutory time period is running.
30
The longer time period set for unknown
claims was chosen because most post-dissolution claims would arise during that period.
31

We conclude that the drafters of the Model Act did not intend to bar post-dissolution
claims in the 1969 Model Act. In 1984, the drafters determined that post-dissolution claims
should be specifically addressed and included them in the Model Act by adding Section
14.07.
____________________

26
See generally Granite Constr., 118 Nev. at 88, 40 P.3d at 426.

27
Model Bus. Corp. Act Ann. 105, at 595-96 (2d ed. 1971).

28
Friedlander & Lannie, supra note 15, at 1365.

29
Model Bus. Corp. Act Ann., 14.07, at 14-64 to 14-66 (3d ed. Supp. 1996).

30
Id.

31
Id.
drafters determined that post-dissolution claims should be specifically addressed and included
them in the Model Act by adding Section 14.07. We can consider these amendments in
interpreting NRS 78.585.
32

[Headnote 9]
Based upon the history of survival statutes, the commentary and case law interpreting
the 1969 version of the Model Act and the 1984 amendments to the Model Act, we conclude
that the Legislature did not intend to bar post-dissolution claims by adopting NRS 78.585.
33
The Model Act and the survival statutes were intended to provide a fair and equitable method
of finalizing corporate affairs. This was also the intent of the Legislature in adopting a
modified version of Section 105. This purpose is not served by barring claims that arise after
the dissolution, particularly when the claim was caused by post-dissolution wind-up activities
of the corporation. It is reasonable to assume that the Legislature would realize that during the
course of winding up its business, a corporation might commit acts that would give rise to a
claim. If the act occurred on the last day of the two-year period, a plaintiff might have only
hours to file a claim or be barred. Such a result would be unreasonable and absurd.
34
A more
reasonable construction is that the Legislature intended NRS 78.585 to apply only to
pre-dissolution claims and that the finality of post-dissolution claims would be determined by
the statutes of repose or limitation applicable to the post-dissolution cause of action.
35

Next, Beazer argues that even if the statute only applies to pre-dissolution actions, the
claims in this case are barred because any defects that allegedly exist were created before the
dissolution and the causes of action were filed more than two years after the dissolution.
Beazer asserts that the plain meaning of the phrase arising before its dissolution" mandates
this conclusion.
____________________

32
Matter of Estate of Thomas, 116 Nev. 492, 495, 998 P.2d 560, 562 (2000); Woofter v. O'Donnell, 91 Nev.
756, 762, 542 P.2d 1396, 1400 (1975) (when a former statute is amended or a doubtful interpretation of a former
statute rendered certain by subsequent legislation, the amendment is persuasive evidence of what the legislature
intended by the first statute).

33
We note that even if the Legislature intended to bar post-dissolution claims, an action may still be brought
after the time bar to the extent that the corporation has undistributed assets, such as a policy of insurance. See
Penasquitos v. Superior Court (Barbee), 812 P.2d 154 (Cal. 1991).

34
Eller Media Co. v. City of Reno, 118 Nev. 767, 770, 59 P.3d 437, 439 (2002).

35
Whether the dissolved corporation can be sued under the name of the corporation after the expiration of
the two-year period or an action should be brought against directors or shareholders as trustees will depend on
the timing of the suit and whether the corporation is still in the process of winding up its affairs. See NRS
78.590; NRS 78.600; Seavy v. I. X. L. Laundry Co., 60 Nev. 324, 108 P.2d 853 (1941).
ing before its dissolution mandates this conclusion. The Homeowners contend that, when
used in the context of statutes of limitation or repose, the term arising has a special
meaning and refers to the time when a person discovered or should have reasonably
discovered that they had a cause of action. Under this construction, the Homeowners argue
that summary dismissal is not warranted as there is a factual dispute as to when the
Homeowners discovered the defects and the claims arose.
The word arise does have particular meaning in the law. Black's Law Dictionary
defines arise as [t]o spring up, originate, to come into being or notice; to become
operative, sensible, visible, or audible; to present itself.
36
Black's also notes that when
applied to a statute of limitations, arise means when a party has a right to apply to a proper
tribunal for relief.
37

[Headnote 10]
When interpreting statutes of limitation, we have continually recognized that a cause
of action does not accrue, and the statute does not begin to run until a litigant discovers, or
reasonably should have discovered, facts giving rise to the action.
38
For construction defect
cases, the statute of limitations does not begin to run until the time the plaintiff learns, or in
the exercise of reasonable diligence should have learned, of the harm to the property.
39
Other states also recognize that an action does not arise until a party knew or should have
known that a legal claim existed.
40

Given the extensive case law in this area, we conclude that when arise is used in
statutes limiting the time to file a cause of action, it is a term of art. Consequently, its use in
NRS 78.585 leads us to conclude that the statute is susceptible to two or more reasonable
interpretations and is ambiguous. We must then turn to the legislative intent to determine the
meaning of the phrase arising before dissolution.
The legislative history reflects no discussion with respect to the meaning of the
arising before its dissolution phrase. The Model Act does not use the term "arise.
____________________

36
Black's Law Dictionary 108 (6th ed. 1990) (citing Bergin v. Temple, 111 P.2d 286, 289-90 (Mont. 1941)).

37
Id.

38
Petersen v. Bruen, 106 Nev. 271, 274, 792 P.2d 18, 20 (1990).

39
Tahoe Village Homeowners v. Douglas Co., 106 Nev. 660, 663, 799 P.2d 556, 558 (1990).

40
E.g., Dana v. Oak Park Marina, Inc., 660 N.Y.S.2d 906 (App. Div. 1997) (claim did not arise until
discovery of illegal surveillance); Hervey v. Normandy Dev. Co., 585 N.E.2d 570 (Ohio Ct. App. 1990) (claim
arose when plaintiff discovered injuries caused by formaldehyde emissions); Smith v. Sanders, 485 So. 2d 1051
(Miss. 1986) (medical malpractice claim arose when plaintiff discovered or reasonably should have discovered
cause of action).
Act does not use the term arise. Instead, it uses the word existing. However, while courts
disagree on whether post-dissolution claims are barred by survival statutes, they agree that
claims do not exist until an injury occurs or is discovered.
41

The 1984 amendments to the Model Act also acknowledge that injuries caused by
pre-dissolution activities, but that occur or are discovered post-dissolution, are not
pre-dissolution claims. The Official Comment to Section 14.07 states that:
Earlier versions of the Model Act did not recognize the serious problem created by
possible claims that might arise long after the dissolution process was completed and
the corporate assets distributed to shareholders. Most of these claims were based on
personal injuries occurring after dissolution but caused by allegedly defective products
sold before dissolution, but they also involved negligence for which the statute of
limitations did not begin to run until the negligence was discovered (e.g., a surgical
instrument left inside the patient). The application of the Model Act provision (and of
the state dissolution statutes phrased in different terms) to this problem led to confusing
and inconsistent results. . . .
. . . .
The solution adopted in section 14.07 is to continue the liability of a dissolved
corporation for subsequent claims for a period of five years after it publishes notice of
dissolution. . . . This provision is therefore believed to be a reasonable compromise
between the competing considerations of providing a remedy to injured plaintiffs and
providing a period of repose after which dissolved corporations may distribute
remaining assets free of all claims and shareholders may receive them secure in the
knowledge that they may not be reclaimed.
42

From the language of the commentary and the 1984 amendments, we conclude that
the drafters of Section 105 of the 1969 version of the Model Act intended to bar claims that
are known or should have been known before dissolution and that were not commenced
within two years of the date of dissolution. Claims that are discovered post-dissolution but are
based on acts that occurred before dissolution are not barred.
[Headnote 11]
Given our review of the history of the 1969 version of the Model Act, we conclude
that the phrase arising before its dissolution" in NRS 7S.5S5 was intended to be
interpreted consistently with its use in the statute-of-limitations context and that
therefore a claim does not arise until a litigant discovers, or reasonably should have
discovered, the facts upon which a claim is based.
____________________

41
Blankenship v. Demmler Mfg. Co., 411 N.E.2d 1153 (Ill. App. Ct. 1980); Bahl v. Fernandina
Contractors, Inc., 423 So. 2d 964 (Fla. Dist. Ct. App. 1982); see also Friedlander & Lannie, supra note 15, at
1408-09.

42
Model Bus. Corp. Act Ann. 105, at 14-64 to 14-65 (3d ed. Supp. 1996).
lution in NRS 78.585 was intended to be interpreted consistently with its use in the
statute-of-limitations context and that therefore a claim does not arise until a litigant
discovers, or reasonably should have discovered, the facts upon which a claim is based.
[Headnote 12]
Our conclusion is also supported by other rules of statutory construction. Generally,
when a legislature uses a term of art in a statute, it does so with full knowledge of how that
term has been interpreted in the past, and it is presumed that the legislature intended it to be
interpreted in the same fashion.
43
In addition, when separate statutes are potentially
conflicting, we attempt to construe both statutes in a manner to avoid conflict and promote
harmony.
44
Here, NRS 78.585, if interpreted in the manner suggested by Beazer, would be in
conflict with the statutes of repose applicable to construction defect cases.
45
Because NRS
78.585 was enacted after the construction defect statutes of repose, we assume the Legislature
was aware that the provisions of NRS 78.585, if interpreted to bar all claims within two years
of dissolution, including unknown, latent or fraudulently concealed defects, would render
meaningless the provisions of NRS 11.202, 11.203, 11.204 and 11.205 for dissolved
corporations. Thus, dissolved corporations would enjoy a two-year statute of repose, while
active corporations, sole proprietorships and partnerships would be subject to six-, eight- or
ten-year statutes of repose. Such a result would be absurd.
46
A more harmonious
construction, consistent with the public policies underlying both sets of statutes, is our
interpretation that NRS 78.585 only applies to claims that are known or reasonably should
have been known before dissolution.
47
In such instances, a two-year statute of repose
replaces the longer periods in the construction defect statutes, thus balancing the policies of
giving finality to the winding-down of a corporation, and providing extensive periods for
filing claims for concealed and latent defects.
Having held that the phrase arising before its dissolution should be interpreted only
to apply to claims that were known or reasonably should have been known before
dissolution, we conclude that the district courts did not abuse their discretion in refusing
to dismiss the underlying construction defect claims against Beazer.
____________________

43
Application of Filippini, 66 Nev. 17, 24, 202 P.2d 535, 538 (1949) (when the legislature uses words that
have a technical meaning or have received judicial interpretation, courts assume the legislature intended that
meaning to apply).

44
Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 993, 860 P.2d 720, 723 (1993).

45
NRS 11.202-11.205.

46
Eller Media, 118 Nev. at 770, 59 P.3d at 439.

47
Presson v. Presson, 38 Nev. 203, 208-10, 147 P. 1081, 1082-83 (1915) (repeals by implication are not
favored and where two or more statutory provisions relate to the same subject matter, they should be construed,
if possible, so as to give effect to all).
reasonably should have been known before dissolution, we conclude that the district courts
did not abuse their discretion in refusing to dismiss the underlying construction defect claims
against Beazer. Substantial factual issues still exist regarding when the Homeowners knew or
should have known of their construction defect claims, and these factual issues preclude
dismissal of the actions. Accordingly, we deny the petition.
Agosti and Gibbons, JJ., concur.
____________
120 Nev. 588, 588 (2004) Dettloff v. State
MITCHELL ERIC DETTLOFF, Appellant, v. THE STATE
No. 39869
September 16, 2004 97 P.3d 586
Appeal from judgment of conviction entered following a jury trial. Eighth Judicial
District Court, Clark County; Joseph T. Bonaventure, Judge.
The supreme court, Maupin, J., held that: (1) defendant could not be subjected to
multiple convictions for leaving scene of single accident, (2) felony leaving scene of accident
did not require proof that defendant had actual or constructive knowledge that accident
caused bodily injuries or death, (3) presentation of allegedly prejudicial and false evidence to
grand jury did not warrant dismissal of indictment, (4) trial court's refusal of defendant's
proffer of evidence that State presented false evidence to grand jury did not warrant reversal
of convictions, and (5) use of evidence concerning defendant's prearrest silence on advice of
counsel did not violate defendant's right to remain silent and right to counsel.
David M. Schieck, Las Vegas, for Appellant.
James Tufteland, Chief Deputy District Attorney, and Bruce W. Nelson, Deputy District
1. Criminal Law.
Defendant could not be subjected to multiple convictions for leaving scene of single
accident, regardless of number of victims. NRS 484.219.
2. Automobiles.
Felony leaving scene of accident did not require proof that defendant had actual or
constructive knowledge that accident caused bodily injuries or death, but only that
defendant knew he was involved in accident.
or death, but only that defendant knew he was involved in accident. NRS 484.219.
3. Criminal Law.
The construction of a statute is a question of law that the supreme court reviews de
novo.
4. Statutes.
In determining the Legislature's intent in enacting a statute, the court first looks to the
plain language of the statute.
5. Statutes.
When the plain language of the statute is ambiguous, the court considers the context
and spirit of the statute in question, together with the subject matter and policy
involved.
6. Statutes.
Ambiguities in criminal liability statutes must be liberally construed in favor of the
accused.
State's presentation of evidence to grand jury in form of family photographs of victims
of fatal car accident, funeral program, testimony regarding defendant's conduct
immediately following accident that was ultimately shown to be false or irrelevant, and
statements regarding defendant's retention of counsel in lieu of contacting police did
not warrant dismissal of indictment for felony leaving scene of accident. Probable cause
to support indictment was based on evidence that defendant was involved in accident
and then left scene without stopping to make any inquiries, and that one person was
seriously injured and three others were killed. NRS 484.219.
8. Habeas Corpus.
The district court may grant a pretrial petition for a writ of habeas corpus where the
prosecution acted in a willful or consciously indifferent manner with regard to a
defendant's procedural rights, or where the grand jury indicted the defendant on
criminal charges without probable cause.
During grand jury proceedings, the State must elicit sufficient evidence demonstrating
probable cause that a crime was committed and that the accused was likely the
perpetrator.
A grand jury indictment will be sustained where the State submits sufficient legal
evidence to establish probable cause, even though inadmissible evidence may have
been offered.
The finding of probable cause to support an indictment may be based on slight, even
marginal evidence, because it does not involve a determination of the guilt or innocence
of an accused.
12. Criminal Law.
Trial court's refusal of defendant's proffer of evidence that State presented false
evidence to grand jury did not warrant reversal of convictions for felony leaving scene
of accident. State abandoned use of evidence after receiving information undermining
its validity, and jury cleared defendant of all charges but those for hit and run that were
based on defendant's failure to stop following traffic accident that seriously injured one
person and killed three people.
13. Criminal Law.
State's use of evidence concerning defendant's prearrest silence on advice of counsel
did not violate defendant's right to remain silent and Sixth Amendment right to counsel,
in trial for felony leaving scene of accident because defendant himself raised issue of
prearrest silence during opening statement, through cross-examination of State's
witnesses, and during presentation of defense case, evidence that he avoided police
upon learning of severity of accident was permissible to show consciousness of guilt,
and Sixth Amendment right to counsel had not yet attached prior to arrest. U.S. Const.
amends. 5, 6.
OPINION
Appellant Mitchell Dettloff appeals from a judgment of conviction entered upon jury
verdicts of guilty on three felony counts of leaving the scene of an accident.
1
As a threshold
matter, we have determined to reverse and vacate two of the three convictions under our
recent decision in Firestone v. State,
2
which prohibits multiple convictions in connection
with leaving the scene of a single accident. We affirm the remaining conviction for the
reasons set forth below.
In this appeal, we primarily consider the extent to which specific intent is a required
element of the felony offense of leaving the scene of an accident. We also consider claims of
alleged misconduct by the State before the grand jury, and claims concerning a defendant's
prearrest silence, prearrest conduct and prearrest retention of counsel.
This case involves a catastrophic multi-vehicle automobile accident on a divided
interstate highway in Clark County, Nevada. The accident occurred on the evening of April
22, 2001, when Dettloff collided with a vehicle occupied by James, Holly and Benjamin
Barton. The collision forced both vehicles across the median into oncoming traffic. In the
resulting melee, two oncoming cars collided with the Barton vehicle, one of which was
occupied by Brian Cooper. Tragically, Holly Barton, Benjamin Barton and Brian Cooper died
at the scene, and James Barton sustained severe personal injuries. Meanwhile, although his
vehicle sustained considerable damage, Dettloff managed to regain control and return to the
proper lane of travel.
____________________

1
See NRS 484.219(1), (3).

2
120 Nev. 13, 83 P.3d 279 (2004).
proper lane of travel. He then proceeded to his destination without stopping to assist the other
participants in the accident. Dettloff later claimed that he did not stop to render assistance
because the dust generated by the vehicles obscured his rear vision, and that he thought the
other vehicle was still in front of him. Accordingly, he initially thought that he, himself, was
the victim of a hit-and-run accident.
Investigators quickly generated information implicating Dettloff as the missing
motorist. At approximately 2:00 a.m. the following morning, Las Vegas Metropolitan Police
Officer Robert Honea proceeded to Dettloff's residence and rang the doorbell. In response,
Dettloff hid in the house with his children and fiance until the officer left the area.
Thereafter, Dettloff consulted his yellow pages, placed a call to Las Vegas criminal defense
lawyer Mace Yampolsky, and arranged a meeting at Yampolsky's office later that morning. In
an ill-fated attempt to avoid a confrontation with the media and to maintain control over
communications between Dettloff and authorities, Yampolsky advised Dettloff to check into
a hotel, speak to no one and await further instructions. Yampolsky's attempts at negotiating a
surrender with the Clark County District Attorney failed, and the Clark County Detention
Center refused to accept Dettloff's unilateral attempt to surrender because no outstanding
warrants had been issued for his arrest. After obtaining arrest and search warrants, police
eventually located and arrested Dettloff at his hotel.
The State filed a criminal complaint in the Las Vegas Justice Court, charging Dettloff
with three counts of involuntary manslaughter, four counts of reckless driving and four counts
of felony leaving the scene of an accident. Although the justice court set bail and scheduled a
preliminary hearing date, the State elected to prosecute the case by way of grand jury
indictment. In addition to the testimony of percipient witnesses and investigating officers, the
State presented what later turned out to be false evidence before the grand jury. This included
testimony that Dettloff went to a gentlemen's club after the accident, that he had been
drinking heavily during the evening in question, that he stopped near the accident scene and
yelled obscenities at the victims, and that his children were with him at the time of the
accident. The State also presented evidence concerning the retention of Yampolsky, the
upshot of which was that Dettloff had retained a lawyer who specialized in handling drunken
driving cases rather than contact the police. It also provided the grand jury with personal
information about the Barton family and copies of their funeral program. Finally, in addition
to the instructions concerning the original charges, the State instructed the jury on extraneous
offenses, including child endangerment, drunken driving, child abuse and neglect, and
firearms violations.
violations. All of this notwithstanding, the grand jury returned an indictment restricted to the
original eleven charges.
Dettloff pleaded not guilty and filed a pretrial petition for a writ of habeas corpus,
arguing that the State improperly attempted to obtain an overcharged indictment on
inapplicable charges, i.e., drunken driving, child abuse, child endangerment, and firearms
violations; intentionally presented irrelevant and inflammatory evidence to the grand jury;
and improperly sought a true bill on multiple counts of leaving the scene of a single accident.
3
The district court ultimately denied Dettloff's petition, stating that the State met its burden
of eliciting slight or marginal evidence on the charges that resulted in the indictment.
At trial, the State abandoned much of the evidence presented to the grand jury based
upon subsequent information that the evidence was untrue, unsupported or irrelevant. Thus,
the State did not elicit proof at trial that Dettloff's children were with him when the accident
occurred, that he had stopped to yell obscenities at the victims, that he went to a gentlemen's
club after the accident, or that he had been drinking that evening. The district court rejected,
in limine, Dettloff's request to present proof of the State's use of false evidence to secure the
indictment. However, based upon another order in limine, the district court allowed Dettloff
to present evidence describing his contacts with Yampolsky to establish that his avoidance of
apprehension was incidental to the advice of counsel. The jury ultimately convicted Dettloff
on three of the eleven charges, to wit: the three counts of leaving the scene of an accident that
pertained to the Barton family, i.e., Counts III, IV and V of the indictment.
The district court sentenced Dettloff to three concurrent terms of 48 to 120 months in
the Nevada State Prison. The judgment entered by the court ordered Dettloff to pay
$76,662.29 in restitution, fines of $2,000 on each count, and a $25 administrative assessment.
The judgment also awarded Dettloff credit for 395 days of time served prior to the imposition
of sentence, including time served on house arrest, and ordered genetic marker testing.
Dettloff filed his timely notice of appeal.
DISCUSSION
Firestone v. State
[Headnote 1]
The parties agree that two of the three convictions must be vacated based upon our
recent holding in Firestone, in which we held that NRS 484.219 allows only one charge of
leaving the scene of a single accident, regardless of the number of victims.
____________________

3
See infra discussion of Firestone.
scene of a single accident, regardless of the number of victims.
4
Accordingly, we reverse
and vacate the convictions entered in connection with Counts III and IV of the indictment.
We now turn to Dettloff's other assignments of error, as they relate to the remaining
conviction entered pursuant to Count V of the indictment.
Specific intent under NRS 484.219
[Headnotes 2-6]
Dettloff contends that, to sustain a felony conviction for leaving the scene of an
accident, the State must prove beyond a reasonable doubt that the person was aware that the
accident caused bodily injury or death. The construction of a statute is a question of law that
we review de novo.
5
In determining the Legislature's intent in enacting a statute, we first
look to the plain language of the statute.
6
When the plain language of the statute is
ambiguous, we consider the context and spirit of the statute in question, together with the
subject matter and policy involved.'
7
In addition, ambiguities in criminal liability statutes
must be liberally construed in favor of the accused.
8

NRS 484.219, under which the State prosecuted Dettloff, provides in pertinent part:
1. The driver of any vehicle involved in an accident on a highway or on premises to
which the public has access resulting in bodily injury to or the death of a person shall
immediately stop his vehicle at the scene of the accident or as close thereto as possible,
and shall forthwith return to and in every event shall remain at the scene of the accident
until he has fulfilled the requirements of NRS 484.223.
. . . .
3. A person failing to comply with the provisions of subsection 1 is guilty of a
category B felony . . . .
The district court instructed the jury that (1) a driver of a vehicle involved in an
accident who knowingly fails to stop at the accident scene is guilty of leaving the scene of an
accident, a felony; and (2) to find Dettloff guilty of leaving the scene of an accident, he must
have known he was involved in an accident, but need not have known that he had injured or
killed someone.
____________________

4
120 Nev. at 14, 83 P.3d at 280.

5
Moore v. State, 117 Nev. 659, 661, 27 P.3d 447, 449 (2001).

6
Id.

7
Id. at 661-62, 27 P.3d at 449 (quoting Gallagher v. City of Las Vegas, 114 Nev. 595, 599, 959 P.2d 519,
521 (1998)).

8
Id. at 662, 27 P.3d at 449.
have known that he had injured or killed someone.
9
Accordingly, the district court refused
Dettloff's request to instruct the trial jury that felony convictions under NRS 484.219 are
dependent upon proof that the defendant left the scene with actual or constructive knowledge
that bodily injury or death occurred. In this, the district court explicitly concluded that such a
knowledge requirement would defeat the public interest, which is served by requiring
persons involved in vehicle collisions to stop and provide identification and other personal
information and to be available to render assistance if required. We agree.
Whether knowledge of injury is required to sustain a felony hit-and-run conviction is
an issue of first impression for this court and is the subject of a nationwide split of authority.
By way of example, the State of Washington requires proof of awareness of the accident
itself, but does not require proof that the defendant was aware that others were injured or
killed as a result of the accident.
10
California, on the other hand, requires proof under its
hit-and-run statute that the accused had knowledge of the injuries sustained as a result of the
accident, or that the accident was of such a magnitude that a person involved in it would
reasonably anticipate that bodily injury or death had occurred.
11

We hold that actual or constructive knowledge of injury or death is not an element of
the felony offense of leaving the scene of an accident.
12
First, NRS 484.219 contains no such
requirement. Second, to hold otherwise would encourage hasty retreats from accident
scenes by at-fault or impaired drivers to avoid gaining knowledge that someone had been
injured and, correspondingly, avoid criminal responsibility under the hit-and-run statute.
Third, providing such a loophole to criminal liability under NRS 484.219 would provide
additional incentive for persons involved in serious accidents to leave the scene to avoid other
types of criminal liability, including drunken or reckless driving. In summary, with no
incentive to stay at the scene to avoid a hit-and-run charge, the at-fault driver could achieve
objectives inconsistent with the public interest by fleeing to avoid even more serious criminal
liability. Given these policy considerations, the district court properly refused Dettloff's
proposed jury instructions interjecting a "knowledge of injury" requirement into NRS
4S4.219.
____________________

9
The district court adopted the reasoning of the Washington Supreme Court in State v. Vela, 673 P.2d 185,
188 (Wash. 1983), which holds that knowledge of an accident is all that is required to establish culpability under
a hit-and-run statute, and that knowledge of injuries is not required.

10
See Vela, 673 P.2d at 188.

11
People v. Holford, 403 P.2d 423, 427 (Cal. 1965) (criminal liability attaches to a driver who knowingly
leaves the scene of an accident if he actually knew of the injury or if he knew that the accident was of such a
nature that one would reasonably anticipate that it resulted in injury to a person).

12
See City of Spokane v. Carlson, 979 P.2d 880, 884 (Wash. Ct. App. 1999) ( Knowledge of the accident
is all the knowledge that the law requires.' (quoting Vela, 673 P.2d at 188)).
fused Dettloff's proposed jury instructions interjecting a knowledge of injury requirement
into NRS 484.219.
Grand jury submissions
[Headnote 7]
Dettloff contends that the district court erred by denying his pretrial petition for a writ
of habeas corpus. Specifically, he alleges that the district court should have dismissed the
grand jury indictment against him because it was based upon the State's admission of
evidence designed solely to inflame the grand jury, to wit: family photographs of the victims,
the funeral program, the false testimony described above, and statements concerning the
retention of counsel in lieu of contacting police. He also argues that the grand jury
instructions related to uncharged crimes further poisoned the grand jury deliberations.
[Headnote 8]
The district court may grant a pretrial petition for a writ of habeas corpus where the
prosecution acted in a willful or consciously indifferent manner with regard to a defendant's
procedural rights, or where the grand jury indicted the defendant on criminal charges without
probable cause.
13

[Headnotes 9-11]
During grand jury proceedings, the State must elicit sufficient evidence demonstrating
probable cause that a crime was committed and that the accused was likely the perpetrator.
14
A grand jury indictment will be sustained where the State submits sufficient legal evidence to
establish probable cause, even though inadmissible evidence may have been offered.
15
Also,
[t]he finding of probable cause may be based on slight, even marginal evidence, because
it does not involve a determination of the guilt or innocence of an accused.'
16

We reject Dettloff's attack upon his ultimate conviction based upon the grand jury
proceedings. The State presented evidence to the grand jury that Dettloff was involved in the
initial accident, that one person was seriously injured and three more killed, and that Dettloff
fled the scene without stopping to make inquiries of any kind.
17
The grand jury instructions
concerning other infractions of the criminal code, the victim impact evidence, and the
evidence that later turned out to be false did not prejudice Dettloff.
____________________

13
Sheriff v. Roylance, 110 Nev. 334, 337, 871 P.2d 359, 361 (1994).

14
Sheriff v. Miley, 99 Nev. 377, 379, 663 P.2d 343, 344 (1983).

15
Sheriff v. Simpson, 109 Nev. 430, 434-35, 851 P.2d 428, 431-32 (1993).

16
Id. at 435, 851 P.2d at 432 (quoting Sheriff v. Hodes, 96 Nev. 184, 186, 606 P.2d 178, 180 (1980)
(citations omitted)).

17
Dettloff elicited evidence that he attempted to return to the scene but was turned away by a police official
who was directing traffic. Because he did not attempt to stop and admit his involvement, he does not argue that
this somehow affects his criminal culpability for leaving the accident scene.
the criminal code, the victim impact evidence, and the evidence that later turned out to be
false did not prejudice Dettloff. First, as noted, the State presented a very strong case to the
grand jury as to the charges upon which the jury finally convicted Dettloff; second, the grand
jury did not expand the indictment beyond the original charges; third, the State ultimately
abandoned the use of the false evidence at trial; fourth, with regard to the grand jury evidence
that he retained counsel rather than contacting authorities, Dettloff himself introduced this
evidence at trial in aid of his defense to the charges; fifth, the jury convicted Dettloff on only
three of the original charges; and sixth, under Firestone, Dettloff will have sustained only a
single conviction in connection with the accident. Finally, that the jury convicted Dettloff
under a higher burden of proof cured any irregularities that may have occurred during the
grand jury proceedings.
18
We therefore conclude that the district court properly denied
Dettloff's pretrial petition for a writ of habeas corpus.
Rejection of Dettloff's offer of proof concerning the State's use of false testimony to procure
indictment
[Headnote 12]
Dettloff claims that his convictions should be reversed because of the district court's
refusal to allow him to introduce, at trial, the State's use of false evidence before the grand
jury. Dettloff sought introduction of this evidence to demonstrate the State's changes in
position during the case, and to establish the State's desperation to prosecute him. We reject
this claim on appeal on several grounds. First, the State ultimately abandoned any reliance on
the false evidence after receiving information that undermined its validity. Second, although
grand jury revelations caused the defense to expend considerable resources to disprove the
allegations, we cannot conclude that the use of the evidence at the grand jury proceedings
amounted to misconduct. Third, Dettloff cannot demonstrate prejudice from the ruling
because the trial jury cleared Dettloff of all but the hit-and-run charges, charges that were
clearly proved by Dettloff's failure to stop for an obviously serious traffic accident. Fourth,
the district court could reasonably conclude that introduction of the State's use of false
evidence before the grand jury would simply involve a confusing and undue consumption of
trial time.
____________________

18
Echavarria v. State, 108 Nev. 734, 745, 839 P.2d 589, 596 (1992); see also id. at 745 n.4, 839 P.2d at 596
n.4 (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 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)).
time.
19
Thus, we cannot conclude that the district court abused its discretion in refusing this
offer of proof.
20

Prearrest silence and retention of counsel
[Headnote 13]
Dettloff seeks reversal based upon the State's references before the grand jury, and
during trial, to his prearrest silence and retention of counsel. More particularly, he attacks the
State's use of evidence concerning his decision to consult with counsel before speaking with
police, and to ultimately follow his counsel's advice not to speak with the authorities. He
argues that these references implicate his Fifth and Sixth Amendment rights as applied to the
states through the Fourteenth Amendment.
With regard to the claims that the State improperly injected Dettloff's retention of
counsel in the grand jury proceedings, consistent with our rulings above, we conclude the
ultimate conviction on Count V cured any errors at the indictment stage of the proceedings.
Thus, we need only reach Dettloff's argument regarding evidence presented at trial.
Dettloff argues with great force that the State improperly raised his prearrest silence
on the advice of counsel in its case-in-chief and during its cross-examination of Dettloff, and
thus placed in issue the inference that his exercise of his right to counsel equated to his
consciousness of guilt. We disagree. First, Dettloff himself raised his prearrest silence and
retention of counsel during his opening statement.
21
Second, as discussed below, Dettloff
further developed the issues during his cross-examination of State witnesses, including his
former spouse and Officer Honea, and during the presentation of his defense case. In this,
both Dettloff and Yampolsky testified concerning their interactions following the first
confrontation with police. The defense obviously embraced this strategy, that he sought the
succor of counsel rather than report the matter to police, to justify his failure to respond to the
initial attempt by police to contact him at his residence, his continuing refusal to report the
matter and his evasion of apprehension, and to counter the State's claims in that regard.
Evidence that Dettloff hid from police and failed to contact authorities upon learning
of the severity of the accident placed his consciousness of guilt in issue, and underscored his
failure to stop as required.
22
That he retained counsel and elected to remain silent during the
period prior to his arrest did not render his prearrest silence inadmissible, particularly
when his defense team used the retention of counsel affirmatively to mitigate his actions
after the accident.
____________________

19
See NRS 48.035.

20
Sherman v. State, 114 Nev. 998, 1006, 965 P.2d 903, 909 (1998).

21
As noted, Dettloff received permission to delve into his prearrest retention of counsel pursuant to an order
in limine issued by the district court.

22
See Santillanes v. State, 104 Nev. 699, 701, 765 P.2d 1147, 1148 (1988) (holding that jury could infer
defendant's consciousness of guilt based upon
during the period prior to his arrest did not render his prearrest silence inadmissible,
particularly when his defense team used the retention of counsel affirmatively to mitigate his
actions after the accident. Going further, Dettloff could not avoid references to his retention
of counsel when they dovetailed with evidence that he was evading capture. Dettloff,
however, points to his cross-examination by the State:
Q: Sir, your testimony today has essentially been you thought, at worst you were
involved in a little fender-bender.
If the police come knocking at your door, why would you be afraid to answer the
door?
A: Because, at the time that my wife woke me up, she was explaining the severity of
it and I just couldn't comprehend that I could have been involved with something that
severe.
And if I was involved in something that severe, which I was still in disbelief about,
that I needed to contact an attorney and have him advise me as to what I should do.
Q: So you'd rather contact an attorney than contact the police or go back to the scene
and tell the police: Hey, I had a little piece of this; or: Whatever happened here
involved me? Or to check on the victims? Yes or No?
A: My choice at the time was to call the attorney and not talk to the police.
This dialogue did little more than repeat and reiterate Dettloff's direct examination
testimony that he chose to seek counsel, rather than turn himself in to authorities.
The State did present police witnesses during its case-in-chief who, in describing the
attempts to secure Dettloff's arrest, testified to Dettloff's refusal during direct telephonic
contact with officers and through intermediaries to surrender or talk to authorities based upon
advice of counsel. We conclude that this evidence comprised part of the body of proof that
Dettloff failed to stop as required after the accident, that his failure to report his involvement
continued after he became aware of the severity of the accident, and that he had evaded
apprehension. Going further, the State's evidence in this regard was not introduced until after
Dettloff obtained permission from the district court to develop the issue, discussed it in his
opening statement and cross-examined his former spouse and Officer Honea on the point.
Thus, we also conclude that Dettloff placed his prearrest silence and retention of counsel in
issue as part of his defense.
____________________
prosecutor's comments regarding defendant's failure to attend meetings with the police); Turner v. State, 98 Nev.
103, 106, 641 P.2d 1062, 1064 (1982) (A defendant's conduct, such as flight from a scene of the crime,
generally is considered a party admission, and will be admitted if the actions have probative value.).
placed his prearrest silence and retention of counsel in issue as part of his defense.
Because Dettloff's prearrest silence was admissible to attack his credibility,
23
because
he relied upon his retention of counsel to bolster his defense, and because the retention of
counsel was factually intertwined with the attempts to secure Dettloff's apprehension, no Fifth
or Sixth Amendment violation occurred. Additionally, the evidence of which Dettloff now
complains added little to that actually introduced by the defense on these issues.
We recognize Dettloff's right to hire counsel at any time and that the State may not
refer in its case-in-chief to retention of counsel as, in and of itself, evidence of consciousness
of guilt.
24
We also recognize that Dettloff's relationship with Yampolsky was of a
confidential nature. But again, Dettloff himself raised his failure to contact authorities and his
retention of counsel after the confrontation with police during his opening statement and
examination of witnesses, including Yampolsky and Dettloff. At trial, Dettloff also expressly
waived, on the record, any attorney-client privilege relating to his interactions with
Yampolsky. Accordingly, the State was permitted to explore this evidence on
cross-examination of Dettloff and his other witnesses.
25
The State was entitled to confront
that testimony, undermine its implications and reiterate testimony favorable to its theory of
the case.
____________________

23
See Jenkins v. Anderson, 447 U.S. 231, 238 (1980) (Fifth Amendment is not violated by the use of
prearrest silence to impeach a criminal defendant's credibility.); see also Angle v. State, 113 Nev. 757, 763 n.2,
942 P.2d 177, 181 n.2 (1997) (prosecutor's remark regarding defendant's prearrest silence was proper); Murray
v. State, 113 Nev. 11, 17 n.1, 930 P.2d 121, 125 n.1 (1997) (prosecutor's comment on defendant's prearrest
silence was not improper).

24
See State v. Marshall, 586 A.2d 85, 148 (N.J. 1991) (a prosecutor's statement suggesting that retention of
counsel is inconsistent with innocence impermissibly infringes on a defendant's constitutional right to counsel).
We note that the State committed misconduct in its closing rebuttal argument when it equated Dettloff's retention
of counsel with consciousness of guilt. Because this allusion was brief and because the charge upon which
Dettloff will remain convicted was clearly proved by his absence from the accident scene, reversal of the
remaining conviction is not required. See Chapman v. California, 386 U.S. 18, 23 (1967); Marshall, 586 A.2d at
149 (comment by prosecutor was harmless beyond a reasonable doubt where defendant testified that he had
retained counsel and evidence of guilt was so persuasive that error could not have contributed significantly to
the jury's determination of guilt).
Dettloff's arguments do not implicate the Fifth and Sixth Amendment cases governing the right to counsel
during custodial interrogation and after formal charges have been filed. See Silva v. State, 113 Nev. 1365, 1370,
951 P.2d 591, 594 (1997); Coleman v. State, 109 Nev. 1, 4, 846 P.2d 276, 278 (1993); Brewer v. Williams, 430
U.S. 387, 398 (1977); Kaczmarek v. State, 120 Nev. 314, 326-27, 91 P.3d 16, 25 (2004). Those rights had not
attached during the prearrest confrontations described above.

25
See Marshall, 586 A.2d at 149.
CONCLUSION
Following Firestone, we reverse and remand this matter for entry of an amended
judgment vacating the convictions and sentences entered in connection with Counts III and
IV of the indictment. Based upon the conclusions reached above in connection with Dettloff's
other claims on appeal, we affirm the judgment entered upon Count V.
26

____________
120 Nev. 600, 600 (2004) Nika v. State
AVRAM NIKA, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 40238
September 16, 2004 97 P.3d 1140
Appeal from an order of the district court denying a post-conviction petition for a writ
of habeas corpus. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Following affirmance on direct appeal of his conviction for first-degree murder with
the use of a deadly weapon, for which defendant received sentence of death, 113 Nev. 1424,
951 P.2d 1047 (1997), defendant filed post-conviction petition for a writ of habeas corpus.
The district court denied the petition. Defendant appealed. The supreme court, Rose, J., held
that: (1) orders summarily dismissing defendant's claims, which did not contain factual
findings or legal conclusions, were deficient, requiring reversal; (2) proceeding ordered by
supreme court pursuant to rule governing procedure in capital cases, which rule was invoked
by supreme court during defendant's direct appeal, was inadequate forum to determine
whether defendant had received effective assistance from trial counsel; (3) State's use of
jailhouse informant did not violate defendant's Sixth Amendment right to counsel; and (4)
State's use of jailhouse informant did not violate defendant's due process right to disclosure of
exculpatory information and his right to conflict-free counsel.
[Rehearing denied December 16, 2004]
Gibbons, J., with whom Agosti, J., agreed, dissented.
Glynn B. Cartledge and Richard F. Cornell, Reno, for Appellant.
____________________

26
We have considered Dettloff's other contentions on appeal and conclude that they lack merit.
120 Nev. 600, 601 (2004) Nika v. State
Respondent.
1. Habeas Corpus.
Order summarily granting State's motion to dismiss all of capital murder defendant's
post-conviction habeas corpus claims except claim that prosecution had concealed
agreement with jailhouse informant to gain his testimony against defendant, and
subsequent order denying this claim, were deficient, in that neither order contained
factual findings or legal conclusions in regard to claims that had been dismissed, as
required by statute, thus leaving supreme court unable to determine basis for trial
court's decision, and requiring reversal and remand. NRS 34.830(1).
2. Habeas Corpus.
Proceeding ordered by supreme court pursuant to rule governing procedure in capital
cases, which rule was invoked by supreme court during capital murder defendant's
direct appeal, was inadequate forum to determine whether defendant had received
effective assistance from trial counsel. Determining effectiveness of trial counsel during
direct appeal was impracticable, in that counsel for defendant in proceeding ordered
pursuant to rule had no opportunity to peruse supreme court's decision on direct appeal
as guide and aid in determining what issues should be investigated and raised in
post-conviction habeas petition, his counsel during proceeding did not have length of
time to investigate possible avenues of relief that he would normally have had, and
simultaneous litigation of direct appeal and proceeding ordered pursuant to rule placed
defendant and his trial counsel in untenable position. NRS 34.810(1)(b); SCR
250(IV)(H).
3. Criminal Law.
A petitioner for post-conviction relief is entitled to an evidentiary hearing if he
relief. He is not entitled to such a hearing if the factual allegations are belied or repelled
by the record. NRS 34.810(3).
4. Criminal Law.
State's use of jailhouse informant did not violate capital murder defendant's Sixth
Amendment right to counsel, which prevents admission of evidence of defendant's
statements that have been deliberately elicited by government agent after right has
attached, as defendant failed to show that informant acted as agent of State when he
first gained incriminating information from defendant. There was no testimony or even
affidavit by informant to contradict evidence that informant did not act at behest of
State initially and even assuming that facts established that, after interview, informant
acted as State's agent, defendant was not prejudiced because informant had obtained
primary incriminating evidence before approaching authorities. U.S. Const. amend. 6.
5. Criminal Law.
For purposes of determining whether defendant's right to counsel has been violated
when alleged government agent elicits incriminating statements from defendant,
determination of whether person acted as a state agent depends on facts and
circumstances of each case. U.S. Const. amend. 6.
6. Criminal Law.
For purposes of determining whether defendant's right to counsel has been violated
when alleged government agent elicits incriminating statements from defendant,
determination of whether person acted as a state agent presents a mixed question
of fact and law.
120 Nev. 600, 602 (2004) Nika v. State
ments from defendant, determination of whether person acted as a state agent presents a
mixed question of fact and law.
7. Criminal Law.
State's use of jailhouse informant did not violate capital murder defendant's due
process right to disclosure of exculpatory information and his right to conflict-free
counsel where informant initially acted on his own in gaining primary incriminating
evidence from defendant, public defender acted to protect defendant's interests in
warning him not to speak to other inmates, there was no showing that informant made
agreement with State, and even assuming that initial prosecutor in case should have
informed defense of informant's statement regarding consideration, defendant failed to
demonstrate prejudice. U.S. Const. amend. 14.
OPINION
This is an appeal from a district court order denying a post-conviction petition for a
writ of habeas corpus. Appellant Avram Nika was convicted of first-degree murder and
sentenced to death. He contends that the district court erred in denying his petition because,
among other reasons, a proceeding ordered by this court under former SCR 250 was an
inadequate forum to determine whether he had received effective assistance from trial
counsel. We conclude that this contention has merit. We also conclude that the district court's
summary dismissal of most of Nika's claims was improper. We therefore reverse and remand
in regard to those claims. We affirm the district court's denial, following an evidentiary
hearing, of Nika's claim that the State's use of a jailhouse informant was unconstitutional.
FACTS
Nika was convicted of first-degree murder, pursuant to a jury verdict, for the shooting
death of Edward Smith along Interstate 80 east of Reno in August 1994. The jury also found
one aggravating circumstance: the murder had been committed at random and without
apparent motive. It found no mitigating circumstances and returned a sentence of death.
While Nika's direct appeal was pending, this court invoked former SCR 250(IV)(H)
and ordered a proceeding before the district court to determine whether Nika had received
effective assistance from his trial counsel. The district court appointed counsel to represent
Nika and held an evidentiary hearing on the matter in November 1996. The court ruled that
because Nika was asserting ineffective assistance of trial counsel, he had waived any
privilege concerning confidential communications with those counsel.
120 Nev. 600, 603 (2004) Nika v. State
concerning confidential communications with those counsel. After the hearing, the district
court concluded that Nika's trial counsel had been effective.
This court affirmed by published opinion Nika's conviction and sentence on direct
appeal.
1
In a separate order filed the same day under the same docket number, we also
dismissed his appeal of the district court's judgment that trial counsel had been effective.
2
Nika, represented by counsel, filed a timely post-conviction habeas petition and later a
supplement to the petition. After the State moved to dismiss all but one of Nika's claims, the
district court entered an order in March 2001 summarily granting the motion.
In June 2002, the district court held an evidentiary hearing on the one remaining
claim: Nika's contention that the initial prosecutor in this case, David Stanton, had concealed
from the defense an agreement with Nathaniel Wilson, a jailhouse informant who testified
against Nika. Wilson was in the Washoe County jail along with Nika in 1994 before Nika's
trial. Wilson testified at the trial that in a conversation at the jail Nika had admitted to killing
Smith. Wilson was in jail at that time on one count of selling cocaine. He stated at the trial
that he did not receive any deal from the prosecution in exchange for his testimony.
At the evidentiary hearing, Stanton testified that he never met with or spoke to Wilson
and never made any offers to or deals with him. Stanton flatly denied speaking to District
Judge Steven Kosach, who sentenced Wilson, about Wilson's case. Thomas Viloria, the
actual trial prosecutor, testified that whether or not Wilson requested consideration, the State
did not give him anything for his trial testimony. Viloria said that he had no knowledge as to
Wilson's motives for coming forward with his information. Nika's counsel informed the
district court that Wilson was unavailable to testify because he was in lockdown at a
California jail. Counsel did not make an offer of proof as to what Wilson could testify to.
At the hearing, Nika also introduced transcripts of pretrial meetings with the trial
court in its chambers attended by Stanton and, at times, attorneys from the Washoe County
Public Defender, but not Nika. The meetings occurred in October 1994. The transcripts were
sealed, and Nika did not learn of the meetings until sometime after his trial. The first meeting
occurred on October 12, with both Stanton and Nika's counsel, Deputy Public Defender John
Morrow, present. Stanton revealed that a witness adverse to NikaStanton did not yet
identify the witness as Wilsonwas also represented by the Public Defender. Stanton
therefore concluded that the Public Defender had a conflict of interest, and the district
court accepted this conclusion.
____________________

1
Nika v. State, 113 Nev. 1424, 951 P.2d 1047 (1997), overruled in part by Leslie v. Warden, 118 Nev. 773,
59 P.3d 440 (2002).

2
Nika v. State, Docket No. 27331 (Order Dismissing Appeal, December 30, 1997).
120 Nev. 600, 604 (2004) Nika v. State
the Public Defender had a conflict of interest, and the district court accepted this conclusion.
Morrow responded that he did not have enough facts to make an informed judgment, but
eventually acquiesced to the court's decision to discharge the Public Defender from
representing Nika. However, the record also indicates that just before this meeting with the
court, Stanton had advised Morrow of the adverse witness and Morrow had gone to the
Washoe County jail and warned Nika not to speak to other inmates because someone was
informing on him.
The Public Defender was still representing Nika when more meetings occurred on
October 28. Stanton met with the trial court alone and revealed that the adverse witness was
Nika's fellow inmate, Wilson. Wilson was awaiting sentencing for a narcotics offense. He had
approached officers at the jail in early October, saying that he had received information from
Nika regarding the murder. Stanton said that he had observed an interview of Wilson on
October 10,
3
where Wilson informed the detectives that he would like some consideration
for his testimony, although no specifics were given or requested by him. Stanton told the
court that we will not offer Mr. Wilson, for obvious reasons, any deal whatsoever. Stanton
also informed the court that he had learned that Morrow had warned Nika to keep quiet, and
he complained that as a result the Public Defender had impaired Wilson's interest in aiding
authorities in hope of gaining leniency at his sentencing. (The district court later stated that it
did not fault Morrow's action.) Stanton acknowledged that Wilson's identity and information
would have to be disclosed to Nika's counsel a reasonable time before trial, but he preferred
to delay the disclosure in case Wilson could gain more information from Nika. Stanton told
the court that he did not consider [Wilson] to be an agent of the State; he has not been given
directives to continue eliciting information.
Washoe County Public Defender Michael Specchio joined the next meeting later that
day. When informed about Wilson, he agreed that his office had a conflict of interest. The
trial court then disqualified the Public Defender's Office as counsel for Nika, directed it to
cease contact with Wilson and withdraw from representing him within ten days, and directed
Specchio and Morrow not to disclose what they had learned regarding Wilson.
The following evidence was also presented to the district court regarding Nika's claim.
Before approaching officers at the jail in regard to Nika, Wilson had pleaded guilty on
September 29, 1994, to unlawful sale of a controlled substance, pursuant to a plea agreement
requiring the State to concur with the recommendation of the Division of Parole and
Probation, even if it should include probation.
____________________

3
The record reflects that the correct date is October 11, 1994.
120 Nev. 600, 605 (2004) Nika v. State
tion. The Division recommended a suspended sentence of five years in prison and probation.
Wilson was then sentenced in November 1994, more than seven months before Nika's trial in
June 1995. Stanton was present at the sentencing but did not participate. The Public Defender
withdrew from representing Wilson, who then proceeded in proper person. Pursuant to the
plea agreement, the prosecutor concurred with the Division's recommendation, and the
sentencing court followed the recommendation.
The district court entered an order on November 26, 2002, denying Nika's habeas
petition. The court found that the State had not made any agreement with Wilson nor
withheld any other evidence favorable to the defense in regard to Wilson. It also found that
Nika failed to demonstrate prejudice: even if Wilson initially came forward with information
against Nika in the hope of gaining some benefit and the jury had been informed of this hope,
there was no reasonable probability of a different result in Nika's trial.
DISCUSSION
I. The summary dismissal of all but one of appellant's habeas claims
[Headnote 1]
In March 2001, the district court entered an order summarily granting the State's
motion to dismiss all of Nika's post-conviction habeas claims except his claim that the
prosecution had concealed an agreement with Wilson to gain his testimony against Nika. In
its motion, the State asserted: Some [of Nika's claims] are based on theories which have
been rejected as a matter of law by dispositive authorities. Others are factually unsound. Still
others are procedurally barred. The district court's order contained no specific findings of
fact or conclusions of law supporting its dismissal of the claims. After the evidentiary hearing
on the remaining claim, the court entered an order in November 2002 rejecting that claim and
denying Nika's habeas petition. This second order also contained no factual findings or legal
conclusions in regard to the claims dismissed earlier.
NRS 34.830(1) provides: Any order that finally disposes of a petition, whether or not
an evidentiary hearing was held, must contain specific findings of fact and conclusions of law
supporting the decision of the court. Consequently, the orders here were deficient, leaving
this court unable to determine the basis for the district court's decision. We therefore reverse
its dismissal of these claims and remand.
[Headnote 2]
It is possible that dismissal of some of the claims, if properly explained, could be
upheld. However, we conclude that one conclusion that the district court may have reached
is not a proper basis for dismissal.
120 Nev. 600, 606 (2004) Nika v. State
sion that the district court may have reached is not a proper basis for dismissal. NRS
34.810(1)(b) pertinently provides that a court must dismiss a petition if:
The petitioner's conviction was the result of a trial and the grounds for the petition
could have been:
(1) Presented to the trial court;
(2) Raised in a direct appeal or a prior petition for a writ of habeas corpus or
post-conviction relief; or
(3) Raised in any other proceeding that the petitioner has taken to secure relief from
his conviction and sentence,
unless the court finds both cause for the failure to present the grounds and actual
prejudice to the petitioner.
(Emphasis added.) The State argued below and argues to this court that the emphasized
language applies here because Nika had an opportunity to raise claims of ineffective trial
counsel in the SCR 250 proceeding. Therefore, the State maintains that such claims, whether
new or repeated, are procedurally barred absent a showing by Nika of cause and prejudice.
This argument is reasonable; however, Nika complains that the proceeding did not provide an
adequate forum for him to present his claims. We agree with Nika and conclude that the SCR
250 proceeding that we ordered in 1995 did not provide him with a full and fair opportunity
to raise claims of ineffective trial counsel.
At that time, SCR 250(IV)(H) provided that this court could refer a capital case on
appeal to the district court to conduct hearings on any issue this court considered important,
including a hearing to determine whether defendant had effective counsel during trial. We
invoked this provision during Nika's direct appeal, as our order stated, to create and preserve
a record regarding trial counsel's performance while memories are fresh. The attempt to
expeditiously decide claims of ineffective trial counsel in this manner proved unfeasible in
practice, and the provision in current SCR 250(8)(b) for limited remand to the district court
no longer contemplates hearings on the effectiveness of trial counsel during direct appeals.
As this case illustrates, determining the effectiveness of trial counsel during a direct
appeal was impracticable in several ways. Normally, post-conviction counsel has the
opportunity to peruse this court's decision on direct appeal as a guide and aid in determining
what issues should be investigated and raised in a post-conviction habeas petition. Nika's
SCR 250 counsel did not have this resource. That counsel also did not have the length of time
to investigate possible avenues of relief that post-conviction counsel usually has. Moreover,
with simultaneous litigation of both the direct appeal and the SCR 250 proceeding, Nika and
his trial counsel were placed in an untenable position.
120 Nev. 600, 607 (2004) Nika v. State
sel were placed in an untenable position. In regard to the direct appeal, trial counsel should
have been unconstrained advocates of Nika's position, willing and able to provide advice and
support to Nika's direct appeal counsel. However, in the SCR 250 proceeding they found
themselves defending their own conduct of the trial against challenges by Nika. In fact, Nika
was required to waive his privilege of attorney-client confidentiality in that proceeding even
though his direct appeal was not yet decided. We therefore conclude that the SCR 250
proceeding in this case was not, under NRS 34.810(1)(b), a proceeding in which Nika could
have fully and adequately raised grounds of ineffective trial counsel. For the same reasons,
we also decline to rely on our 1997 order dismissing Nika's appeal following the SCR 250
proceeding as the law of the case.
4

[Headnote 3]
A petitioner for post-conviction relief is entitled to an evidentiary hearing if he
5
He is not entitled to such a hearing if the factual allegations are belied or repelled by the
record.
6
NRS 34.810(3) requires the petitioner to plead and prove specific facts
demonstrating good cause for a failure to present the claim or for presenting the claim again
and actual prejudice.
7

We reverse the district court's summary dismissal of Nika's habeas claims and remand
for that court to determine whether Nika's claims, including claims that trial counsel were
ineffective, warrant an evidentiary hearing. Whether or not a claim is decided after an
evidentiary hearing, the district court must provide specific findings of fact and conclusions
of law supporting its disposition of the claims.
II. The State's use of a jailhouse informant
Nika claims that the State's use of Wilson, the jailhouse informant, was
unconstitutional. The district court held an evidentiary hearing on this claim and rejected it,
providing factual findings and legal conclusions. The State has not disputed that Nika could
not have raised this issue on direct appeal, apparently because he did not learn of and had
no reason to know of the pretrial meetings regarding Wilson until sometime after his
appeal was decided.
____________________

4
See Pellegrini v. State, 117 Nev. 860, 885, 34 P.3d 519, 535-36 (2001) (recognizing this court's discretion
to reconsider its law of a case when warranted).

5

6
Id. at 503, 686 P.2d at 225.

7
This provision abrogates this court's holding in Phelps v. Director, Prisons, 104 Nev. 656, 658-59, 764
P.2d 1303, 1305 (1988), requiring the State to raise waiver or abuse of the writ as affirmative defenses. See State
v. Haberstroh, 119 Nev. 173, 181, 69 P.3d 676, 681 (2003). Nika nevertheless improperly relies on Phelps in
his reply brief.
120 Nev. 600, 608 (2004) Nika v. State
have raised this issue on direct appeal, apparently because he did not learn of and had no
reason to know of the pretrial meetings regarding Wilson until sometime after his appeal was
decided. The question is whether the claim warrants any relief. We conclude that it does not.
As a preliminary matter, we note that Nika does not claim that the Public Defender
should have remained as his counsel despite its representation of Wilson. Therefore, we need
not decide whether the trial court correctly found that that representation created a conflict of
interest between the Public Defender and Nika. We will make the following observations.
The facts in Coleman v. State, the opinion which prosecutor Stanton and the trial court looked
to in concluding that such a conflict existed, differ substantially from this case.
8
And
although Stanton believed that Deputy Public Defender Morrow had acted against Wilson's
interest by warning Nika not to speak to other inmates, the trial court did not consider
Morrow's action improper, nor do we. Stanton regarded only Wilson's perceived interest in
assisting the State and possibly gaining some leniency, but ignored Nika's interest in not
incriminating himself in a capital murder case. The Public Defender certainly was as obliged
to protect the latter interest as the former. Even assuming that this created a conflict of
interest best resolved by ultimately removing the Public Defender from both cases, it is
difficult for us to see what other action Morrow could have taken as Nika's counsel when he
realized that Nika might be incriminating himself. (If Morrow had also learned Wilson's
identity and revealed it to Nika, endangering Wilson, then the question of a conflict with
Wilson's interests would be materially different. But this was not the case.)
[Headnotes 4-6]
Nika's first contention is that the State's use of Wilson violated Nika's Sixth
Amendment right to counsel. He cites Massiah v. United States,
9
which holds that the Sixth
Amendment right to counsel prevents admission of evidence of a defendant's statements
which have been deliberately elicited by a government agent after the right has attached. Nika
enjoyed such a right when he spoke to Wilson because adversarial proceedings had begun
10
and he was represented by the Public Defender.
____________________

8
109 Nev. 1, 846 P.2d 276 (1993) (concluding that the Sixth Amendment right to conflict-free counsel was
violated where the same public defender attorney represented two clients and worked actively with one client
and the State to gain incriminating evidence against the other client).

9
377 U.S. 201, 205-07 (1964); see also Fellers v. United States, 540 U.S. 519 (2004) (same).

10
Estelle v. Smith, 451 U.S. 454, 469-70 (1981) (stating that the Sixth Amendment right to counsel attaches
once adversarial proceedings have been initiated); see also U.S. Const. amend. VI.
120 Nev. 600, 609 (2004) Nika v. State
he was represented by the Public Defender. He fails, however, to show that Wilson acted as
an agent of the State when he first gained incriminating information from Nika. Determining
whether a person acted as a state agent depends on the facts and circumstances of each case
and presents a mixed question of fact and law.
11

Nika speculates that the police approached Wilson and baited him into eliciting
information about Nika. This speculation lacks hard evidence. Nika points out that when
Wilson was interviewed on October 11, 1994, he first spoke about another inmate until the
interviewing detective expressly asked about Nika. This does not indicate that Wilson was a
state agent: he had already talked with Nika and had already told a deputy at the jail that he
had information from Nika. Nika points out that the detective did not refuse Wilson's offer to
gather more information. In the interview, when Wilson remarked that he could find out more
about the gun Nika used, the detective did not respond. This detail is germane to Wilson's
status after the interview when he gained further information from Nika; it does not somehow
retroactively render him a state agent in his earlier conversations with Nika. Nika also claims
that the transcript of the interview is not complete (or that prosecutor Stanton blatantly lied)
because the transcript differs from the description of the interview Stanton gave to the trial
court more than two weeks later and because the transcript shows that the detective spoke to
Wilson while the tape recorder was off despite stating otherwise. We conclude that these
discrepancies are trivial. Nika also stresses that a report by a jail deputy referred to Wilson as
my informant and speculates that other police reports are missing. But informant is not
synonymous with agent, and speculation unsupported by facts is of no value. In the end,
Nika presents no proof, most notably no testimony or even affidavit by Wilson, to contradict
the evidence that Wilson did not act on behest of the State initially. This evidence includes
Wilson's trial testimony, prosecutor Stanton's testimony at the post-conviction hearing and his
original representations to the trial court, prosecutor Viloria's post-conviction testimony, and
the timing and substance of events in Wilson's own case, discussed below.
Wilson's status after his first interview with the detective and after Stanton ensured
that the Public Defender would be discharged and that Wilson would continue to have access
to Nika is not so clear. When during the interview Wilson remarked that he could find out
more about the gun, he revealed that he thought his role might be to gather more information
for officials. Neither the detective nor anyone else dissuaded him from this idea, and his
trial testimony indicates that he then actively elicited more information from Nika.
____________________

11
Simmons v. State, 112 Nev. 91, 99, 912 P.2d 217, 221 (1996).
120 Nev. 600, 610 (2004) Nika v. State
tective nor anyone else dissuaded him from this idea, and his trial testimony indicates that he
then actively elicited more information from Nika. Furthermore, when Stanton made sure that
Wilson stayed in proximity to Nika, Stanton was aware of Wilson's remark, having observed
the interview. Stanton was also aware that the two inmates had formed a relationship in
which Nika confided in Wilson. But even assuming these facts establish that after the
interview Wilson acted as an agent of the State,
12
Nika was not prejudiced because Wilson
obtained the primary incriminating evidencethat Nika admitted in some detail to shooting
the victimbefore approaching the authorities. The little information that Wilson obtained
later, mainly that the murder weapon was an automatic, was insignificant.
Nika also suggests that Stanton made an implicit agreement with Wilson for his
testimony without revealing it to the defense or the jury. This would violate due process
under Brady v. Maryland
13
and its progeny because acts which imply an agreement or
understanding with a witness are relevant to credibility and must be disclosed.
14
But again
Nika fails to provide facts to support his claim. The most that he demonstrates is that
according to Stanton's pretrial representation to the trial court, Wilson at his interview
informed the detectives that he would like some consideration for his testimony, although no
specifics were given or requested by him. However, prosecutors Stanton and Viloria both
testified at the post-conviction hearing that regardless of any expectations on Wilson's part,
they neither offered nor provided him with any benefits in exchange for his testimony.
Moreover, the timing and substance of events in Wilson's own case in 1994 repel
Nika's assertion that Wilson expected and received leniency in return for his assistance in
Nika's case. On September 29, Wilson pleaded guilty to unlawful sale of a controlled
substance, having reached a plea agreement requiring the State to concur with the
recommendation of the Division of Parole and Probation. About a week passed before Wilson
approached officers at the jail, on or around October 7, with information about Nika, and the
detective interviewed Wilson on October 11. The Division completed its presentence
investigation report on Wilson on November 7, recommending a suspended sentence and
probation. In Wilson's statement attached to the report, he proclaimed a general willingness
to help police, but nothing in the report noted his assistance in Nika's case.
____________________

12
Cf., e.g., People v. Whitt, 685 P.2d 1161, 1168-73 (Cal. 1984) (concluding that though question was close
and difficult, inmate informant's conduct was not attributable to the state), limitation on other grounds
recognized by People v. Marquez, 822 P.2d 418 (Cal. 1992).

13
373 U.S. 83 (1963).

14
See Giglio v. United States, 405 U.S. 150, 155 (1972); Jimenez v. State, 112 Nev. 610, 622, 918 P.2d 687,
695 (1996).
120 Nev. 600, 611 (2004) Nika v. State
general willingness to help police, but nothing in the report noted his assistance in Nika's
case. Wilson was sentenced on November 16, more than seven months before Nika's trial,
and again his assistance in Nika's case was not raised. Thus, Wilson first offered to give
information against Nika only after reaching a plea agreement in his own case, and he
testified against Nika long after being sentenced himself.
Nika infers from Stanton's presence at Wilson's sentencing that Stanton must have
spoken to District Judge Kosach on Wilson's behalf. No other evidence supports this
inference, and Stanton denied it. Stanton did not recall attending the sentencing, but there is
no need to assume that he was there to benefit Wilson. It is possible that he attended to ensure
that the Public Defender withdrew from representing Wilson and/or to see whether Wilson
would be in prison or would have to be subpoenaed to testify at Nika's trial. (Wilson's
eventual presence was secured from California by a material witness order and bench
warrant.) Regardless, Nika fails to provide any proof that Stanton intervened on Wilson's
behalf or that Wilson received any benefit from testifying against Nika.
[Headnote 7]
Next, Nika contends that the pretrial meetings between the trial court, Stanton, and at
times the Public Defender violated his due process right to disclosure of exculpatory
information and his right to conflict-free counsel. In condemning the meetings, Nika relies
again on his claims that Wilson was an agent of and had reached an agreement with the State.
These contentions are unavailing. As explained above, Wilson initially acted on his own in
gaining the primary incriminating evidence from Nika, the Public Defender acted to protect
Nika's interests in warning him not to speak to other inmates, and there is no showing that
Wilson made an agreement with the State. Nika also claims that Stanton told the defense
nothing about Wilson, leaving the defense unable to impeach Wilson's claim that he had no
ulterior motive in testifying against Nika. Actually, the State informed the defense before trial
about Nika's admissions to Wilson. It appears that the only information not disclosed was
Stanton's observation that Wilson told detectives that he would like some consideration for
his testimony. Nika emphasizes that Wilson testified he came forward to police because Nika
just didn't have no heart and that the prosecutor relied on this testimony in the penalty
phase. Nevertheless, even assuming that Stanton should have informed the defense of
Wilson's statement regarding consideration, we agree with the district court that Nika failed
to demonstrate prejudice: even if Wilson approached officers hoping to gain some benefit and
the jury had learned this, there was no reasonable probability of a different result in Nika's
trial.
The district court did not err in denying this claim.
120 Nev. 600, 612 (2004) Nika v. State
CONCLUSION
We affirm the district court's judgment in part, reverse it in part, and remand for
further proceedings consistent with this opinion.
Shearing, C. J., Becker, Maupin and Douglas, JJ., concur.
Gibbons, J., with whom Agosti, J., agrees, dissenting:
Appellant Avram Nika has failed to overcome the procedural bars to his claims. In my
view, Nika had the opportunity to raise his claims of ineffective trial counsel in the SCR 250
proceeding. Accordingly, the procedural bars apply.
NRS 34.810(1)(b) is the controlling statute and provides that a court must dismiss a
petition if [t]he petitioner's conviction was the result of a trial and the grounds for the
petition could have been . . . [r]aised in any other proceeding. NRS 34.810(3) requires the
petitioner to plead and prove specific facts demonstrating good cause for a failure to present
the claim or for presenting the claim again and actual prejudice. Therefore, under NRS
34.810(1)(b) and NRS 34.810(3), any claims of ineffective trial counsel, whether new or
repeated, are procedurally barred unless Nika shows good cause and prejudice.
I disagree with the majority's conclusion that the SCR 250 proceeding we ordered in
1995 did not provide Nika with a full and fair opportunity to raise his claims of ineffective
trial counsel. I disagree with the majority that Nika's counsel did not have the time usually
afforded to post-conviction counsel to investigate possible avenues of relief. Although this
court's order initially directed that the proceeding conclude within ninety days, the district
court did not hold an evidentiary hearing on the matter until more than fourteen months had
passed.
1
Because Nika had more than a year to prepare for the SCR 250 proceeding, there
was no prejudice.
Additionally, Nika presents no specifics as to what viable claims were neglected in the
SCR 250 proceeding and fails to demonstrate how he was precluded from challenging his
appellate counsel's performance. Although he claims that the counsel who represented him at
the SCR 250 proceeding could neither call him to testify nor cross-examine trial counsel
vigorously, he does not explain why or how his case was limited in these regards. Taken as a
whole, the facts of the instant case indicate that Nika has not shown good cause or prejudice.
Therefore, I would affirm the order of the district court denying the post-conviction petition
for a writ of habeas corpus.
____________________

1
We entered our order in August 1995; the hearing was not conducted until November 1996.
____________
120 Nev. 613, 613 (2004) State v. Dist. Ct. (Romano)
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 JOHN S. McGROARTY, District Judge, Respondents, and ROBERT
ROMANO, Real Party in Interest.
No. 41577
September 16, 2004 97 P.3d 594
Petition for a writ of prohibition seeking to prevent the district court from ordering an
alleged child sexual assault victim to submit to an independent psychological examination as
requested by the real party in interest.
Defendant who had been charged with four counts of sexual assault of a minor under
fourteen years of age and ten counts of lewdness with a child under fourteen years of age
brought motion to compel alleged child victim, who was defendant's daughter, to submit to an
independent psychological examination. The district court granted the motion. State
petitioned supreme court for writ of prohibition, or, alternatively, writ of mandamus, seeking
to prevent the district court from ordering victim to submit to independent psychological
examination. The supreme court, Agosti, J., held that: (1) petition for writ of prohibition was
appropriate vehicle for challenging trial court's order compelling psychological examination
of victim, and (2) trial court abused its discretion in granting defendant's request for
psychological examination of victim.
Petition granted.
Rose, J., dissented.
and Douglas W. Herndon and James Tufteland, Chief Deputy District Attorneys, Clark
County, for Petitioner.
Law Offices of Barry Levinson and Carol A. Kingman and Barry Levinson, Las
Vegas, for Real Party in Interest.
Both mandamus and prohibition are extraordinary remedies, and are only appropriate
when a plain, speedy and adequate remedy at law is not available. NRS 34.170, 34.330.
2. Mandamus.
requires as a duty resulting from an office, trust or station. NRS 34.160.
3. Prohibition.
A writ of prohibition is the counterpart of the writ of mandate and is available to halt
a tribunal's proceedings when such proceedings are without or in excess of the
jurisdiction of such tribunal. NRS 34.320.
Petitions for extraordinary relief are not meant to control discretionary acts, unless
discretion is manifestly abused or is exercised arbitrarily or capriciously.
Whether to grant the extraordinary remedy of writ relief is within the court's sound
discretion.
6. Prohibition.
State's petition for writ of prohibition seeking to prevent trial court from ordering
alleged child sexual assault victim to submit to independent psychological examination
was appropriate vehicle for challenging trial court's order compelling psychological
examination of victim. Plain, speedy and adequate remedy at law was not available to
State. If improper discovery proceeded, victim would be unnecessarily subjected to
intrusive examination and intrusion upon her privacy rights, and State would have no
effective remedy to cure improper discovery.
7. Criminal Law.
An expert witness may testify that symptoms exhibited by an alleged sexual abuse
victim are consistent with those normally attributable to certain traumatic events. This
is true even though the opinion testimony embraces an ultimate issue in the case. NRS
50.295, 50.345.
8. Criminal Law.
Assessing the credibility of witnesses and weighing the evidence are functions of the
jury.
9. Criminal Law.
To allow any expert witness, whether the State's or the defendant's, to testify as to an
opinion of the truthfulness of an alleged sexual assault victim or witness impermissibly
invades the province of the jury.
10. Criminal Law.
Defendant is entitled to a psychological examination of an alleged sexual assault
victim only where: (1) State notices defendant that it intends to examine victim by its
own expert, and (2) defendant makes a prima facie showing of a compelling need for a
psychological examination.
11. Criminal Law.
In determining whether defendant has made a prima facie showing of a compelling
need to have an alleged sexual abuse victim undergo an independent psychological
evaluation, as necessary before trial court may order such evaluation, the trial court
must consider: (1) whether little or no corroboration of offense exists beyond victim's
testimony, and (2) whether there is a reasonable basis for believing that victim's mental
or emotional state may have affected his or her veracity.
12. Criminal Law.
Trial courts must set forth a particularized factual finding that there is reason to
believe that an independent psychological examination of an alleged sexual abuse
victim that has been requested by defendant is warranted.
13. Criminal Law.
An alleged sexual abuse victim is not required to submit to an independent
psychological evaluation that has been requested by defendant; however, when the
victim refuses to submit to an examination, the State may not introduce expert
evidence, either in a report or testimony that addresses or assesses the victim's
character.
may not introduce expert evidence, either in a report or testimony that addresses or
assesses the victim's character.
14. Criminal Law.
An expert witness who has personally examined an alleged sexual assault victim is in
a better position to render an opinion than is an expert who has not done so; therefore,
when the victim refuses to submit to a psychological examination by a defendant's
expert, both the State and the defendant would be restricted to the use of generalized
testimony submitted by non-examining experts.
15. Criminal Law.
Trial court abused its discretion in granting defendant's request for independent
psychological examination of alleged child abuse victim where State had not conducted
psychological examination of victim and did not intend to call examining expert at trial,
and defendant failed to demonstrate compelling need for psychological examination of
victim, given that defendant's statements to police detective corroborated victim's
testimony, and defendant failed to demonstrate reasonable basis to believe that victim's
mental or emotional state might have affected her veracity.
1

OPINION
Real party in interest Robert Romano is charged in an indictment with four counts of
sexual assault of a minor under fourteen years of age and ten counts of lewdness with a child
under fourteen years of age. The district court granted Romano's motion to compel the child
victim to submit to an independent psychological examination. The State requests that this
court issue a writ of prohibition, or in the alternative, mandamus, to prevent the Eighth
Judicial District Court from enforcing its May 5, 2003, order granting Romano's motion for
an independent psychological examination of the victim.
FACTS
Robert Romano and his girlfriend are the natural parents of the child victim, born May
5, 1997. The couple and their child lived together in an apartment in Las Vegas until the
couple's relationship began to deteriorate and the mother moved out. In August or September
2002, Romano moved into a house in North Las Vegas. Romano and the mother agreed that
the child would reside with Romano during the week so that the child could attend a better
school. Romano claims that the mother asked him to take the child full time because she was
not capable of taking care of the child and wanted the child to live in a better
neighborhood.
____________________

1
child and wanted the child to live in a better neighborhood. Romano claims that, due to the
mother's job as a stripper, she rarely visited the child.
Romano also claims that shortly after his move, the mother informed him that she had
obtained stable employment as a waitress, was ready to assume more parental responsibilities
and wanted the child to reside with her. Romano refused the mother's request because he felt
the child had become accustomed to his home, neighborhood and school. Romano states that
as a result of his refusal a custody dispute ensued.
In November 2002, the child allegedly told her mother that Romano had engaged in
inappropriate activities with her. The mother contacted Nevada Child Protective Services and,
at that agency's request, took the child to Sunrise Hospital for evaluation. Doctor Harold
Zilberman, a pediatric emergency physician at Sunrise, testified before the grand jury that the
findings of the child's examination were normal, meaning that there were no signs of trauma,
but that this did not necessarily preclude the possibility of sexual assault.
On December 19, 2002, the five-year-old child testified before the grand jury that she
knew people were not supposed to touch certain areas of her body. She testified that she had
touched Romano's ding-ding with her hands. She also demonstrated how she touched him
and that, when she did, lotion came out of the hole. The child also stated that her father put
his ding-ding in her mouth. This activity occurred both at the apartment shared by her
parents and later at her father's house. The child testified that Romano had touched her butt
with his hands and mouth while they were both naked and that he told her not to tell anyone.
The child's mother was not present in the courtroom when the child testified.
The mother testified to the grand jury that she was not fabricating or lying to get
Romano in trouble. She testified that she did not seek a change in custody until the child had
told her about Romano's behavior. Romano did not testify before the grand jury. Instead, he
requested that the prosecutor tell the grand jury that the mother had
fabricated these charges and used the child either for financial gain or to get revenge on
Robert Romano because she thought Robert Romano was going to bring child custody
proceedings to take the child away from her because of her unfitness as a mother and
her physical abuse of the child.
Detective Jay Roberts also testified before the grand jury concerning his interview
with Romano. Detective Roberts testified that initially Romano denied all the allegations and
stated that he had never showered or bathed with the child.
never showered or bathed with the child. Romano insisted that the child's mother had coached
the child and that the mother exposed the child to sex movies. Romano also told Detective
Roberts that the child strikes sexy poses like Britney Spears. As the interview progressed,
however, Romano admitted bathing with the child and sleeping in the same bed while both
were clothed. Romano also told the detective that, on several occasions when he was on the
computer, the child had reached into his gym shorts and grabbed him. Detective Roberts
testified that Romano then admitted that the child had probably grabbed his penis in the
shower when they lived in the apartment. Romano also related to Detective Roberts that the
child had once caught him masturbating in the bathroom and that that is where she had seen
the lotion.
Detective Roberts further testified that, when he asked Romano why the child had told
the detective that her father put his mouth on her peck-peck, the child's term for vagina,
Romano stated that he had to sniff her vagina after she bathed to make sure she was clean,
and that perhaps his nose or moustache accidentally touched the child. He said that the child's
mother made him do it. Romano told the detective that the child had also told him to kiss her
peck-peck and her butt.
On January 10, 2003, the grand jury returned a true bill and Romano was then indicted
on four counts of sexual assault of a minor under fourteen years of age and ten counts of
lewdness with a child under fourteen years of age. On April 10, 2003, Romano moved for an
independent psychological examination of the victim, alleging that there was no
corroborating evidence other than the victim's testimony and that a reasonable basis existed
for believing the victim's mental or emotional state may have affected her veracity. The
district court granted Romano's motion and the State thereafter filed, with this court, a
petition for a writ of prohibition or, alternatively, for a writ of mandamus.
DISCUSSION
Writ relief
[Headnotes 1-5]
We first consider whether a petition for writ relief seeking either to prevent the district
court from enforcing its order or compelling it to vacate its order is proper in the instant case.
Both mandamus and prohibition are extraordinary remedies, and are only appropriate when a
plain, speedy and adequate remedy at law is not available.
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 .
____________________

2
NRS 34.170; NRS 34.330.
trust or station, NRS 34.160 . . . .
3
A writ of prohibition is the counterpart of the writ of
mandate and is available to halt a tribunal's proceedings when such proceedings are without
or in excess of the jurisdiction of such tribunal.
4
Petitions for extraordinary relief are not
meant to control discretionary acts, unless discretion is manifestly abused or is exercised
arbitrarily or capriciously.'
5
Finally, whether to grant the extraordinary remedy of writ
relief is within the court's sound discretion.
6

The instant petition follows the district court's order compelling an independent
psychological examination of the victim. We have previously held that writ relief is available
to prevent improper discovery.
7
Moreover, we have held that prohibition is a more
appropriate remedy for the prevention of improper discovery than mandamus.
8

[Headnote 6]
In the instant case, a plain, speedy and adequate remedy at law is not available to the
State. If improper discovery proceeds, this young alleged sexual assault victim will be
unnecessarily subjected to an intrusive examination and the State will have no effective
remedy to cure the improper discovery. Delayed consideration of this procedural issue until
after completion of the trial will irreparably intrude upon the minor child's privacy rights.
Under this circumstance, we consider entertainment of writ relief necessary. Accordingly, we
conclude that the State's petition for a writ of prohibition is the appropriate vehicle for
challenging the order compelling a psychological examination of the minor child.
Jurisdiction of trial courts
Because the Nevada Constitution does not grant a right to discovery in a criminal case
or a right to order an alleged sexual assault victim to submit to psychological examination,
the State suggests that we must find authority for such an examination in either statutory law
or common law.
9

____________________

3
Panko v. District Court, 111 Nev. 1522, 1525, 908 P.2d 706, 708 (1995).

4
NRS 34.320.

5
State of Nevada v. Dist. Ct. (Anzalone), 118 Nev. 140, 147, 42 P.3d 233, 237-38 (2002) (quoting Round
Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 604, 637 P.2d 534, 536 (1981)).

6
Id. at 146, 42 P.3d at 237.

7
Wardleigh v. District Court, 111 Nev. 345, 350, 891 P.2d 1180, 1183 (1995); Clark v. District Court, 101
Nev. 58, 64, 692 P.2d 512, 516 (1985); Schlatter v. District Court, 93 Nev. 189, 193, 561 P.2d 1342, 1344
(1977).

8
Wardleigh, 111 Nev. at 350, 891 P.2d at 1183.

9
State v. Gabrielson, 464 N.W.2d 434, 436-37 (Iowa 1990) (noting that, because a defendant does not have
a constitutional right to a psychiatric exami-
Statutory authority
The State argues that the closest statutory sources empowering the trial court to order
an alleged sexual assault victim to submit to a psychological examination are NRS 174.235
and NRCP 35, but that neither the statute nor the rule grants sufficient authority to the trial
courts.
Although NRS 174.235 codifies discovery powers in criminal cases, the ability to
discover reports of mental examinations of an alleged victim is limited to reports within the
State's possession. NRS 174.235 does not grant trial courts the authority to require an alleged
victim, who is, after all, a witness in the action but not a party to the action, to submit to
psychological examination. NRCP 35 authorizes a trial court to order a party in a civil suit to
submit to a mental examination when the mental condition of that party is in controversy.
However, this authority cannot be extended to the criminal arena because, in a criminal case,
the complaining witness is not a party to the action. We observe, therefore, that no statutory
authority exists for trial courts to order a psychological examination of a complaining witness
in a criminal prosecution for sexual assault.
Common-law authority
The judiciary is inherently vested with the power to promulgate its own rules of
procedure when necessary or desirable to handle the business of the courts or their judicial
functions,'
10
or when necessary in the interests of justice.
11
Because the psychological
examination of a victim could be crucial to the truth-seeking process,
12
we have, in the
past, concluded that a trial court may order a sexual assault victim to submit to a
psychological examination under certain limited circumstances.
In Washington v. State,
13
we stated that trial courts have discretionary authority to
order the psychological examination of a sexual assault victim. In support of our conclusion,
we cited case law from Arizona and California: State v. Jerousek
14
and Ballard v. Superior
Court of San Diego County.
____________________
nation of a sexual abuse victim to determine the victim's credibility, a trial court's authority to order such an
examination must be based on statutory or common law).

10
State v. Dist. Ct., 116 Nev. 953, 959, 11 P.3d 1209, 1213 (2000) (quoting Galloway v. Truesdell, 83 Nev.
13, 23, 20, 422 P.2d 237, 244, 242 (1967) (noting that any power or authority that is inherent or incidental to a
judicial function is properly within the realm of judicial power)).

11
Gabrielson, 464 N.W.2d at 437.

12
Judith Greenberg, Note, Compulsory Psychological Examination in Sexual Offense Cases: Invasion of
Privacy or Defendant's Right? 58 Fordham L. Rev. 1257, 1259-60 (1990).

13
96 Nev. 305, 307, 608 P.2d 1101, 1102-03 (1980).

14
590 P.2d 1366 (Ariz. 1979).
Superior Court of San Diego County.
15
In those cases, those courts empowered the trial
courts with discretionary authority to order a sexual assault victim to submit to psychological
examination. Jerousek, while still the law in Arizona, relied heavily on Ballard,
16
which has
since been superseded by California Penal Code 1112.
17
The Ballard court had articulated
antiquated beliefs that women falsely accuse men of sex crimes as a result of a mental
condition that transforms into fantasy a wishful biological urge, from aggressive tendencies
directed to the accused or from a childish desire for notoriety.
18
In overruling Ballard, in
1986, the California Supreme Court acknowledged that previous expectational disparities,
which singled out the credibility of rape complainants as suspect, have no place in a modern
system of jurisprudence.
19

While we relied on the holding in Ballard for our decision in Washington, we failed to
discuss our reasoning for granting trial courts the discretionary authority to order
psychological examination of an alleged sexual assault victim. Nor do our decisions
subsequent to Washington clarify our reasoning.
20
Although we unequivocally disapprove of
the antiquated beliefs concerning women mentioned in Ballard, we reaffirm our holding that
a trial court has the discretion to order alleged victims to submit to psychological examination
under certain narrow circumstances. To clarify, we now revisit this issue.
The State first argues that compelling a sexual assault victim to submit to
psychological examination may lead to greater embarrassment and humiliation than the
victim has already suffered, directly in contravention of public policy. The State asserts that
sexual assault victims encounter a number of hardships within the state criminal system,
____________________

15
410 P.2d 838 (Cal. 1966), superseded by statute as stated in People v. Haskett, 640 P.2d 776, 787 n.7
(Cal. 1982) (noting that a trial court may not order victims to submit to psychological examinations since the
legislative enactment of Cal. Penal Code 1112).

16
Jerousek, 590 P.2d at 1371.

17
See Haskett, 640 P.2d at 787 n.7; Cal. Penal Code 1112 (adopted 1980) (West 2004) (proscribing a trial
court from ordering any witness or victim in a sexual assault prosecution to submit to psychological examination
for purposes of assessing credibility).

18
Ballard, 410 P.2d at 846 (stating that the jury should not hear a sex offense charge until a qualified
physician testifies as to his examination of the female victim's mental state and social history).

19
People v. Barnes, 721 P.2d 110, 121 (Cal. 1986).

20
See Chapman v. State, 117 Nev. 1, 16 P.3d 432 (2001); Koerschner v. State, 116 Nev. 1111, 13 P.3d 451
(2000) (abrogating Marvelle v. State, 114 Nev. 921, 966 P.2d 151 (1998), and Griego v. State, 111 Nev. 444,
893 P.2d 995 (1995), and overruling Keeney v. State, 109 Nev. 220, 850 P.2d 311 (1993)); Lickey v. State, 108
Nev. 191, 827 P.2d 824 (1992); Colley v. State, 98 Nev. 14, 639 P.2d 530 (1982).
ual assault victims encounter a number of hardships within the state criminal system,
21
including most significantly, confronting the attacker in court, testifying regarding personal
details of the sexual assault in open court and possibly being subjected to aggressive, detailed
and humiliating cross-examination by the defense.
22
The State emphasizes that the Nevada
Legislature has also recognized that victims of sexual assault need protection and that the
State has a compelling interest in encouraging victims of sexual assault to report crimes, to
cooperate with the State's investigation and to testify at trial.
23
Additionally, the State notes
that the Legislature's adoption of the rape shield law, NRS 50.090, indicates its concern for
the privacy rights of sexual assault victims.
24
Finally, the State cautions that there are
currently no guidelines to protect victims who are ordered to submit to psychological testing.
25

The State also asserts that, in nonsexual assault cases, defendants do not have the
ability to force an alleged victim or any other witness to submit to psychological testing. This
discovery tactic has been limited to sexual assault victims. The State argues that, as in
nonsexual assault cases, traditional methods of assessing a witness's credibility, such as
cross-examination of the victim, presentation of defense expert witnesses regarding the
victim's ability to relay the truth and appropriate jury instructions concerning credibility,
26
are adequate to allow the fact-finder to address the question of the alleged sexual assault
victim's truthfulness.
____________________

21
Turner v. State, 111 Nev. 403, 404, 892 P.2d 579, 579 (1995) (recognizing that sexual assault victims
experience a number of hardships, including: (1) the initial emotional trauma of submitting to the official
investigatory processes; (2) the fear of humiliation attendant to the publicity surrounding a sexual offense charge
and embarrassment caused by demeaning defense tactics at trial; and (3) the vicious and discouraging process of
blaming the victim,' whereby the police, the public, and the jury seek to determine whether a potential sexual
offense charge was victim-precipitated' ).

22
United States v. Dildy, 39 F.R.D. 340, 343 (D.D.C. 1966).

23
NRS 200.377(1)-(2).

24
See Johnson v. State, 113 Nev. 772, 776, 942 P.2d 167, 170 (1997); Lane v. District Court, 104 Nev. 427,
444, 760 P.2d 1245, 1256 (1988).

25
The State sets forth significant questions, including whether the victim has a right to counsel during the
examination, whether the victim can refuse to answer irrelevant questions about her personal life, [and] whether
multiple defendants are entitled to have the victim examined by their own expert.

26
See Gilpin v. McCormick, 921 F.2d 928, 932 (9th Cir. 1990) (holding that the trial court's refusal to order
psychological examination of a sexual assault victim did not violate the defendant's right of confrontation
because the Confrontation Clause requires only an opportunity for effective cross-examination). See generally
Maryland v. Craig, 497 U.S. 836 (1990) (holding that the state's interest in the psychological well-being of
sexual assault child victims may outweigh a defendant's right to face his accusers in court).
of the alleged sexual assault victim's truthfulness.
27
Finally, the State submits that ordering
an alleged victim to submit to psychological testing for the purpose of determining credibility
undermines the role of the jury.
[Headnotes 7-9]
Addressing the State's arguments concerning the role of the jury, an expert may testify
that symptoms exhibited by the victim are consistent with those normally attributable to
certain traumatic events.
28
This is true even though the opinion testimony embraces an
ultimate issue in the case.
29
However, an expert's bolstering of a witness and an expert's
direct opinion concerning the victim's credibility or veracity are both inadmissible.
30
Assessing the credibility of witnesses and weighing the evidence are functions of the jury.
31
Accordingly, to allow any expert, whether the State's or the defendant's, to testify as to an
opinion of the truthfulness of a victim or witness, impermissibly invades the province of the
jury.
32

Furthermore, while we recognize that a fixed rule or a rule giving trial courts
unbridled discretion may subject a victim to unnecessary harassment and embarrassment, we
also recognize that a defendant has the right to preserve his constitutional right to a fair trial
by countering the State's proffered evidence. In Koerschner v. State,
33
we reconciled prior
Nevada case law concerning a trial court's discretionary power to order the psychological
examination of a sexual assault victim. We concluded that the overriding judicial question is
whether a compelling need exists for the trial court to order a psychological examination.
34
In determining whether a compelling need exists, Koerschner requires a trial court to consider
three factors, not necessarily to be given equal weight: (1) whether the State calls or benefits
from a psychological expert, (2) whether little or no corroboration of the offense exists
beyond the victim's testimony, and {3) "whether there is a reasonable basis for believing
that the victim's mental or emotional state may have affected his or her veracity.
____________________

27
See United States v. Riley, 657 F.2d 1377, 1387 (8th Cir. 1981) (noting that the ability of the jury to
observe and appraise the victim's credibility safeguards a defendant's rights).

28
See NRS 50.345 (In any prosecution for sexual assault, expert testimony is not inadmissible to show that
the victim's behavior or mental or physical condition is consistent with the behavior or condition of a victim of
sexual assault.).

29
NRS 50.295.

30
Marvelle, 114 Nev. at 931, 966 P.2d at 157.

31
McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992).

32
Lickey, 108 Nev. at 196, 827 P.2d at 827.

33
116 Nev. at 1116-17, 13 P.3d at 455 (abrogating Marvelle, 114 Nev. 921, 966 P.2d 151 and Griego, 111
Nev. 444, 893 P.2d 995, and overruling Keeney, 109 Nev. 220, 850 P.2d 311).

34
Id.
the victim's testimony, and (3) whether there is a reasonable basis for believing that the
victim's mental or emotional state may have affected his or her veracity.
35

[Headnotes 10-12]
We conclude, however, that the Koerschner test does not always adequately balance
the needs of the victim and the defendant. We therefore modify our decision in Koerschner.
We now hold that a defendant is entitled to a psychological examination of an alleged sexual
assault victim only where: (1) the State notices the defendant that it intends to examine the
victim by its own expert and (2) the defendant makes a prima facie showing of a compelling
need for a psychological examination. In determining whether a compelling need exists, the
trial court must consider: (1) whether little or no corroboration of the offense exists beyond
the victim's testimony, and (2) whether there is a reasonable basis for believing that the
victim's mental or emotional state may have affected his or her veracity.
36
Moreover, in the
exercise of discretion, we require that trial courts set forth a particularized factual finding that
there is reason to believe that a psychological examination is warranted.
[Headnotes 13, 14]
We further hold that a victim is not required to submit to a psychological
examination. Where the victim refuses to submit to an examination, however, we hold that
the State may not introduce expert evidence, either in a report or testimony that addresses or
assesses the victim's character.
37
An expert who has personally examined a victim is in a
better position to render an opinion than is an expert who has not done so.
38
Therefore,
when the victim refuses to submit to a psychological examination by a defendant's expert,
both the State and the defendant would be restricted to the use of generalized testimony
submitted by non-examining experts.
39

____________________

35
Id. at 1117, 13 P.3d at 455.

36
Id.; see Greenberg, supra note 12, at 1265 ([A] defendant has an interest in remaining free of warrantless
accusations. This can occur when a victim mistakenly accuses the defendant of a sexual offense, especially
where, for example, she suffers from a type of mental defect that renders her unable to distinguish fact from
fantasy or when she is a liar. (footnotes omitted)). But see State v. Tobias, 769 P.2d 868, 869 (Wash. Ct. App.
1989) (stating that psychiatric testimony would appear to be irrelevant where the complaining witness's
credibility is called into question merely because corroboration of her story is lacking because a credibility
determination is within the jury's province).

37
People v. Wheeler, 602 N.E.2d 826, 833 (Ill. 1992).

38
Id. at 832.

39
See id. at 833.
[Headnote 15]
Given our recognition of the validity of Washington and its line of authority and
applying Koerschner, as modified, to the instant case, we conclude that the district court
manifestly abused its discretion when it ordered the psychological examination of the child
victim. Because the State has not conducted a psychological examination of the child victim
and does not intend to call an examining expert at trial, Romano may not request an
independent psychological examination of the victim.
Furthermore, Romano has failed to demonstrate a compelling need for a psychological
examination of the child. Romano's statements to Detective Roberts corroborate the child's
testimony. The record reflects several inconsistencies in Romano's statements to Detective
Roberts and several instances where Romano initially denied an event, then later stated that
the event happened, but that it was innocent. Although Romano attempted to explain the
innocence of his conduct, we conclude that Detective Roberts's testimony concerning his
interview with Romano corroborated much of the child's testimony regarding the charges
against her father.
Romano's argument that Detective Roberts was biased is also without merit. Romano
argues that the inconsistencies in his statements were a result of a natural tendency to
explain occurrences which, depending upon the bias of the individual considering said
occurrences, could be viewed as nefarious in nature. Romano asserts that Detective Roberts's
bias prevented him from seeing that television programming could have influenced the child
to make her statements. Romano argues that it is obvious that sex is pervasive on television
and that this could have motivated the child to testify as she did. Romano, however, has failed
to demonstrate any causal relationship between the victim's statements and television
programming. Moreover, Romano is unable to refute the evidence that Detective Roberts's
testimony concerning his interview with Romano corroborates the victim's testimony.
The second consideration is whether Romano demonstrated a reasonable basis to
believe that the victim's mental or emotional state may have affected her veracity. The State
asserts that there is nothing in the record suggesting that the child is or was suffering from
any kind of mental or emotional state that would affect her ability to be truthful. At the grand
jury proceedings, the child did not appear to suffer from memory loss, was not inconsistent in
her testimony and was not unsure of her answers.
40
Romano first argues that the child's
mother coached her daughter because she wants custody of the child.
____________________

40
See Koerschner, 116 Nev. at 1117, 13 P.3d at 456 (concluding that, while the child-victim . . . had
experienced a very tragic and stressful childhood, there was no indication in the record that her veracity was
affected to any particular degree by her mental or emotional state); cf. Marvelle, 114 Nev. at 928, 966 P.2d at
155 (concluding victim's veracity was called into
that the child's mother coached her daughter because she wants custody of the child. Second,
Romano argues that the mother's previous profession as a stripper inadvertently influenced
the child's testimony. Romano contends that the child may have overheard her mother
describing or performing certain acts on the mother's numerous boyfriends. He contends that,
as a result of her mother's behavior, the child may be under the belief that certain sexual acts
are appropriate between those who love each other and simply concocted the story to show
her love of her father.
While Romano claims that the mother either coached the child or inadvertently
influenced her, he also states that the child stayed with him during the week, and that the
mother rarely visited. While Romano states that the mother has a motive to coach her
daughter in an attempt to gain custody, the mother testified at the grand jury proceedings that
she had no intention of seeking custody until she became aware of Romano's behavior.
Romano has failed to demonstrate otherwise. We therefore conclude that these bare
allegations do not call the child's veracity into question.
Finally, Romano asserts that the media's broadcast of masturbation and fellatio, acts
with which he is also charged, influenced the child's testimony.
41
Romano states that media
attention to these sexual acts is prevalent in both television broadcast and print media,
including open discussions on talk shows during the afternoon when kids return home from
school, and that young children are the recipients of sexually suggestive programming.
Romano's theory that the television did it is unconvincing. We conclude that Romano's
request for psychological examination of the child is a mere fishing expedition.
42
Accordingly, we conclude that the district court abused its discretion when it determined that
a compelling need existed to grant Romano's motion for an independent psychological
examination of the child victim.
CONCLUSION
We conclude that the district court abused its discretion in ordering the child witness
to submit to an independent psychological examination by the defendant's experts.
Accordingly, we grant the State's petition for a writ of prohibition to prevent the district court
from ordering the child victim to submit to a psychological examination.
____________________
question where she took four years to tell her story, statements accusing defendant were similar to her
confessions to friends that someone else had molested her and there was testimony that the victim would often
lie); Griego, 111 Nev. at 451, 893 P.2d at 1000 (concluding that the victim's veracity was called into question
when he could not remember whether the testimony was his or someone else's).

41
Romano makes this assertion in spite of his disclosure to Detective Roberts that the child had seen him
masturbating several times.

42
State v. Welch, 490 N.W.2d 216, 219 (Neb. 1992).
court from ordering the child victim to submit to a psychological examination. We direct the
clerk of this court to issue a writ of prohibition directing the district court to vacate its order
granting Romano's motion to compel the child victim to submit to a psychological
examination.
I would grant the petition for writ of prohibition under our decision in Koerschner v.
State.
1
In Koerschner, we limited a district court's discretion to order such evaluations to
cases where the defendant presents a compelling need for the examination, weighing three
factors that are not necessarily to be given equal consideration, to wit: whether the State calls
or benefits from an expert in psychology or psychiatry, whether the evidence of the offense is
supported by little or no corroboration beyond the testimony of the victim, and whether there
is a reasonable basis for believing that the victim's mental or emotional state may have
affected his or her veracity.
2
Thus, having previously rejected the anachronistic notion that
an accuser's mental status is per se implicated in any sexual assault case, we severely
restricted the scenarios in which a sexual assault victim may be subjected to a psychological
examination.
We noted in the margin in Koerschner that [t]here may be situations where the
veracity of a child witness may be brought into question because of his or her emotional or
mental state, even though the State has had no access to or benefit from an expert.
3
The
majority now rejects that proposition and holds that such evaluations may never be ordered
unless the State notices the defense that it intends to have the victim examined by its own
expert. I believe that this new approach is too restrictive because a showing of compelling
need is not always limited by whether the State has determined to utilize expert assistance.
Going further, the State would have absolute control over whether an examination by the
defendant could be obtained. The State's use or non-use of an expert should not constitute a
threshold-determining factor in such matters. Accordingly, I would simply grant the State's
petition without revisiting Koerschner.
Rose, J., dissenting:
This opinion represents the final step in the elimination of a defendant's opportunity to
have a psychological examination of the alleged victim in a child sexual assault case and the
end of any appearance of fairness in such criminal proceedings.
____________________

1
116 Nev. 1111, 13 P.3d 451 (2000).

2
Id. at 1117, 13 P.3d at 455.

3
Id. at 1117 n.4, 13 P.3d at 455 n.4.
pearance of fairness in such criminal proceedings. I dissent to this dramatic change in the
criminal law and to the conclusion that the district court manifestly abused its discretion in
permitting an examination of the alleged child victim in this case.
The determination of whether a witness is competent to testify is one of the critical
threshold questions in the trial process. The very basic requirements are that a witness has the
ability to observe and relate relevant facts on the witness stand and to understand the
requirements of the witness oath.
1
Nowhere is this concern greater than with the testimony
of children. The Nevada Legislature even requires that the district court determine whether a
child is competent to testify before he or she is permitted to take the stand.
2

This court has considered numerous cases involving whether a child was competent to
testify.
3
We have instructed the district court that when evaluating a child's competency, the
court should consider, among other factors, whether the child is unduly subject to adult
suggestions and whether the child has been coached to testify a certain way.
4
We have also
recognized that courts are often helped by expert testimony on such subjects as the child's
susceptibility to coaching, the child's desire to please an adult, and the appropriateness of the
child's examination conducted by law enforcement and health care providers.
5
Indeed,
several scholars agree that experts can be effective in evaluating the reliability of a child's
testimony since children can often be influenced to testify in a certain manner.
6

In the past, this court has been very concerned that a level playing field exists when
evaluating the reliability of a child's testimony.
7
In fact, it was this fairness concern that led
to our decision in Lickey v. State,
____________________

1
Felix v. State, 109 Nev. 151, 173, 849 P.2d 220, 235 (1993).

2
See NRS 47.060(1) (stating that the district court determines preliminary questions concerning the
qualification of a person to be a witness).

3
Evans v. State, 117 Nev. 609, 28 P.3d 498 (2001); Koerschner v. State, 116 Nev. 1111, 13 P.3d 451
(2000); Felix, 109 Nev. 151, 849 P.2d 220.

4
Evans, 117 Nev. at 624, 28 P.3d at 509 (citing Felix, 109 Nev. at 173, 849 P.2d at 235).

5
Id.

6
See Alan J. Klein, Forensic Issues in Sexual Abuse Allegations in Custody/Visitation Litigation, 18 Law &
Psychol. Rev. 247 (1994) (discussing the possibility that children may accept and report misleading information
in a sexual abuse case as a result of coaching); Maggie Bruck & Stephen J. Ceci, Special Theme:
Suggestibility of Child WitnessesThe Social Science Amicus Brief in State of New Jersey v. Margaret Kelly
Michaels, 1 Psychol. Pub. Pol'y & L. 272 (June 1995) (examining the influence of misleading suggestion on a
child's recall of an event).

7
See Marvelle v. State, 114 Nev. 921, 927-28, 966 P.2d 151, 155 (1998); Felix, 109 Nev. at 173, 849 P.2d
at 235; Lickey v. State, 108 Nev. 191, 195, 827 P.2d 824, 826 (1992).
in Lickey v. State,
8
which involved several problematic practices used by the State in a child
sexual assault case, namely, the State was permitted to call a clinical psychologist
specializing in child sexual abuse, while the defense was not. The State's psychologist
reiterated on the stand what the child had told her in their interviews, concluded that the
victim had been sexually molested, and opined that the child was telling the truth.
9
Prior to
trial, Lickey had moved to have the child victim examined by a defense psychiatrist to refute
the testimony of the State's psychologist, but his motion was denied.
10

This court opined that general notions of fairness dictate that failure to provide equal
access to expert psychiatric witnesses prejudices a criminal defendant and stated:
The assistance a psychologist offers a defendant is very important in sexual assault
cases. In Warner, we reversed a conviction for 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.
. . . 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.
11

Following Lickey, this court reviewed several cases involving the issue of the veracity
of a child's testimony and the use of expert testimony in assessing it. In Koerschner v. State,
12
we felt it necessary to set forth guidelines to be used by the district court in deciding whether
there is a compelling need to order a psychological examination of the alleged child victim.
We held that the district court should consider three factors: (1) whether the State calls or
benefits from a psychological expert, (2) whether little or no corroboration of the offense
exists beyond the victim's testimony, and (3) whether there is a reasonable basis for believing
that the victim's mental or emotional state may have affected his or her veracity.
____________________

8
108 Nev. at 193-94, 827 P.2d at 825.

9
Id. at 194, 827 P.2d at 825.

10
Id. at 192-93, 827 P.2d at 824-25.

11
Id. at 194-95, 827 P.2d at 826 (citation omitted).

12
116 Nev. 1111, 13 P.3d 451 (2000).
tim's mental or emotional state may have affected his or her veracity.
13
This test incorporated
our concern expressed in Lickey that both parties should ordinarily have equal access to
expert witnesses, but changed the focus of the test to make the compelling need factor the
overriding judicial question to be determined based on the aforementioned three-part test.
14
Even though we established a stricter standard to be met before a child victim could be
ordered to submit to a psychological examination, we maintained an appropriate balance
between the competing interests of protecting a child from unnecessary examinations and a
defendant's right to a fair trial. No such observation can be made about the majority opinion
in this case.
From all accounts, the test set forth in Koerschner for determining whether there is a
compelling need to examine an alleged child victim has worked well. It is a strict test that on
occasion will permit the State to have an expert psychologist testify when the defense does
not. In spite of this test that apparently has served well the aim of justice in Nevada, the State
now requests this court to prevent any further examination of child victims because there is
no legislative or judicial authority to do so. This argument is made even though our
Legislature has never addressed the specific issue, and this court has continually held that
Nevada courts have authority to order the examination of child victims in appropriate cases.
Our past decisions are a clear indication that we have believed that the courts of Nevada have
the authority to order psychological examinations when necessary to provide a fair tribunal
and to meet due process requirements. Thus, the only determination that we should make in
reviewing the State's petition in this case is whether the district court abused its discretion in
ordering a psychological examination of the child. This is why the majority opinion is so
perplexing.
The majority unequivocally reaffirms that Nevada courts have the authority to order
an alleged victim of sexual assault to submit to a psychological examination by the
defendant's expert in certain narrow circumstances, but then makes it almost impossible for
such an examination to take place. First, under the majority's modified Koerschner test, the
defense must make a prima facie showing of a compelling need, and in assessing whether the
defense has made a prima facie showing of a compelling need, the district court is evidently
no longer to consider whether the State will benefit from the use of expert testimony. I see no
reason for the narrowing of the Koerschner test since it provided proper guidance to the
district court, while effectively balancing the needs of the victim and the defendant.
____________________

13
Id. at 1117, 13 P.3d at 455.

14
Id. at 1116-17, 13 P.3d at 455.
More alarming, however, is that after unequivocally declaring the right of Nevada
courts to order psychological examinations of child victims and, by inference, indicating that
such examinations are necessary and appropriate in some cases, the majority saves its
Sunday Punch for last. It declares that a victim is not required to submit to a psychological
examination under any circumstances, even when court ordered. In other words, the alleged
victim can, and probably will, trump the need for a psychological examination in every case,
even though the defendant has shown a compelling reason for an examination, and the district
court has ordered that an examination be conducted. The remedial solution that is adopted by
the majority when the victim refuses to submit to an examination is to prevent the State from
introducing expert testimony. This may solve the fairness question in most cases, but
certainly not in all cases. Instances where a child is under a psychological impediment to
telling the truth or has been extensively coached are just two examples of cases where an
examination of the alleged child victim would be appropriate, even if the State does not plan
to use an expert witness at trial. Additionally, I can envision cases where the State will want
to call a psychological expert, only to be precluded by the child victim refusing, through his
or her parent or guardian, to submit to any examination. Thus, the majority has effectively
eliminated the ability of a defendant to secure an examination of the child victim under
almost any circumstances. But perhaps this is the unstated goal of the majority opinion.
In the past decade, there has been a steady removal of the safeguards given to
defendants to test the reliability of a child victim's testimony. For example, this court has
eliminated the need for strict compliance with the legislatively imposed duties of the district
court to determine the admissibility of certain evidence in child sexual assault cases.
15
In
addition, we have unnecessarily tightened the standard for obtaining an examination of a
child victim, as I noted in Koerschner,
16
and the majority's decision today effectively
eliminates that opportunity. At the same time, the Legislature has dramatically increased
the penalties for child sexual assault
____________________

15
See Braunstein v. State, 118 Nev. 68, 80-81, 40 P.3d 413, 422 (2002) (Rose, J., concurring in part,
dissenting in part) (observing that the majority strips yet another procedural safeguard from anyone accused of
child sexual assault and reverses a decade of precedent in the process by concluding that the district court's
failure to hold a trustworthiness hearing is not grounds for automatic reversal and was harmless error);
Koerschner, 116 Nev. at 1120, 13 P.3d at 457 (Rose, J., concurring) (disagreeing with the majority's decision to
overrule long-standing precedent that attempted to level the playing field when the State prosecutes a child
sexual assault case with the aid of a psychological expert's testimony).

16
See Koerschner, 116 Nev. at 1122, 13 P.3d at 458 (Rose, J., concurring) (noting that the majority opinion
changes the standard involved in obtaining a psychological examination in a child sexual assault case by
requiring the defen-
Legislature has dramatically increased the penalties for child sexual assault
17
and child
molestation.
18
With the penalties increasing to extreme levels, this court should at least
maintain the existing safeguards in place to evaluate the reliability of a child victim's
testimony. With the removal of these safeguards, there is a greater chance that a defendant
will be wrongfully convicted, which is even more troubling given the increased consequences
of such a conviction.
____________________
dant to prove that there is a compelling reason for an examination, rather than requiring the State to show that
there is a compelling need to protect the alleged child victim).

17
See NRS 200.366(3)(a)-(b) (providing that a person who commits a sexual assault against a child under
the age of 16 years which results in substantial bodily harm to the child, shall be imprisoned in the state prison
for life without the possibility of parole, and if the crime does not result in substantial bodily harm to the child,
by imprisonment in the state prison (1) for life with the possibility of parole, with eligibility for parole beginning
at 20 years; or (2) for a definite term of 40 years, with eligibility for parole at 15 years); NRS 200.366(3)(c)
(providing that a person who commits sexual assault against a child under the age of 14 years which does not
result in substantial bodily harm to the child, shall be imprisoned in the state prison for life with the possibility of
parole, with eligibility for parole beginning at 20 years); NRS 200.366(4) (providing that a person who commits
a sexual assault against a child under the age of 16 years and who has been previously convicted of a sexual
assault or any other sexual offense against a child, shall be imprisoned in the state prison for life without the
possibility of parole). To be subject to such a severe sentence, only slight penetration on the part of the
defendant is required. See Hutchins v. State, 110 Nev. 103, 110, 867 P.2d 1136, 1140-41 (1994) (concluding
that evidence that the defendant placed his tongue on, not in, the victim's vagina was sufficient to sustain a
conviction for sexual assault because any intrusion, however slight, of any part of the victim's body, or any
object manipulated or inserted by the defendant into the genital or anal openings of the victim's body is
considered penetration). If a deadly weapon or any object that can cause harm is used to accomplish the crime,
the sentence is doubled. NRS 193.165.

18
See NRS 201.230(2)(a)-(b) (providing that a person who commits lewdness with a child under 14 years of
age shall be imprisoned in the state prison (1) for life with the possibility of parole, with eligibility for parole at
10 years; or (2) a definite term of 20 years, with eligibility for parole at 2 years). To be subject to such a severe
punishment, the defendant must willfully and lewdly commit a lewd act upon or with the body, or any part or
member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the
lust or passions or sexual desires of that person or of that child, but only the slightest degree of touching is
required. See NRS 201.230(1); see also U.S. v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999) (observing
that under California's lewdness statute, which is nearly identical to NRS 201.230, even an innocuous touching,
if performed with lewd intent, violates the statute); Summers v. Sheriff, 90 Nev. 180, 182, 521 P.2d 1228, 1229
(1974) (observing that a California appellate court affirmed a conviction where the defendant placed his hand
between the child victim's legs without placing it under her clothing). If a deadly weapon or an object that can
cause harm is used to accomplish the crime, the sentence is doubled. NRS 193.165.
conviction. Nonetheless, this court appears to be entirely concerned about the welfare of the
child victim, while remaining unconcerned about the fairness of the process for the accused.
Finally, I also dissent to the conclusion that the district court abused its discretion
when it ordered a psychological examination of the alleged victim in this case. The
six-year-old child lived with her natural father because her natural mother was a stripper and
lived in a bad neighborhood. The accused natural father claimed that his daughter has an
unusually precocious knowledge of sexual matters because she has watched pornography at
her mother's house. He also claimed that he and his former wife were in a custody battle and
that she had coached their child about what to say against him. The district court was
presented with little corroborating evidence of the sexual assault and apparently believed
there was a serious question as to the child's veracity. The majority opinion correctly notes
that we will not disturb a discretionary act unless that discretion is manifestly abused or
exercised arbitrarily or capriciously. While this is a close case, I do not think the district court
manifestly abused its discretion.
For these reasons, I dissent.
____________
120 Nev. 632, 632 (2004) Desert Fireplaces Plus, Inc. v. Dist. Ct.
DESERT FIREPLACES PLUS, INC., a Nevada Corporation, dba DESERT FIREPLACE &
WINDOW COMPANY, and dba DESERT SPECIALTIES, Petitioner, v. THE
THE COUNTY OF CLARK, and THE HONORABLE NANCY M. SAITTA, District
Judge, Respondents, and SUNRISE RIDGE HOMEOWNERS ASSOCIATION, INC.,
a Nevada Non-Profit Corporation; SAXTON INCORPORATED; and SARATOGA
LAND AND DEVELOPMENT, Real Parties in Interest.
No. 41842
September 16, 2004 97 P.3d 607
Petition for a writ of mandamus challenging a district court order denying a motion to
dismiss a construction defect action.
Homeowners association brought action against general contractor for construction
defects, and general contractor filed third-party complaint against subcontractor, a dissolved
corporation. The district court denied subcontractor's motion to dismiss. Subcontractor
petitioned for writ of mandamus. The supreme court held that: (1) general contractor's claim
accrued when homeowners association gave general contractor notice of claims, and {2)
two-year limitations period applicable to claim against dissolved corporation was tolled
when homeowners association provided notice of claims to general contractor and until
30 days after mediation between association and general contractor concluded.
ers association gave general contractor notice of claims, and (2) two-year limitations period
applicable to claim against dissolved corporation was tolled when homeowners association
provided notice of claims to general contractor and until 30 days after mediation between
association and general contractor concluded.
Petition denied.
Lincoln Gustafson & Cercos and Zachary D. Renstrom and Nicholas B. Salerno, Las
Vegas, for Petitioner.
Cooksey, Toolen, Gage, Duffy & Woog and Griffith H. Hayes and Amy L. Stein, Las
Vegas, for Real Parties in Interest Saxton Inc. and Saratoga Land and Development.
Robert C. Maddox & Associates and Lena M. Louis and Robert C. Maddox, Las
Vegas, for Real Party in Interest Sunrise Ridge Homeowners Association, Inc.
Bradley Drendel & Jeanney and Thomas E. Drendel, Reno, for Amicus Curiae
Nevada Trial Lawyers Association.
1. Mandamus.
Supreme court would exercise its discretion to consider subcontractor's writ petition
that challenged order denying motion to dismiss, where case involved an important
matter of first impression regarding when a statute of limitations applicable to a
construction defect claim was tolled as to claims against absent third parties.
2. Mandamus.
A writ of mandamus may issue to compel the performance of an act that the law
requires.
3. Mandamus.
Supreme court will not issue a writ of mandamus to control a district court's
discretionary action unless the court manifestly abused its discretion.
4. Mandamus.
Ordinarily, supreme court will not exercise its discretion to even consider writ
petitions that challenge orders denying motions to dismiss. An exception exists,
however, when an important issue of law requires clarification.
5. Corporations.
A lawsuit against a dissolved corporation for claims that were discovered or should
have been discovered before the corporation's dissolution must be commenced within
two years after its date of dissolution. NRS 78.585.
6. Corporations; Limitation of Actions.
General contractor's third-party claim against dissolved corporate subcontractor in a
construction defect case accrued, and two-year limitation period began to run, when
homeowners association gave general contractor notice of claims, which was two
months before subcontractor's dissolution. NRS 78.585.
A general notice of construction defect claims provided to a general contractor is
sufficient to toll the statute of limitations for claims against a third-party subcontractor,
even when the subcontractor is not involved in the initial proceedings against the
general contractor. NRS 40.645, 40.695.
Two-year limitations period applicable to general contractor's third-party construction
defect claim against dissolved corporate subcontractor was tolled when homeowners
association provided notice of defect claims to general contractor and until 30 days
after mediation between association and general contractor concluded, even though
subcontractor was absent from initial proceedings against general contractor. NRS
40.690, 40.695, 78.585.
OPINION
Per Curiam:
In this original writ proceeding, we address two issues involving two-year statute of
limitations under NRS 78.585 for commencing a cause of action against a dissolved
corporation for claims arising before the dissolution. First, we consider at what point a
third-party's claims against a dissolved corporation in a construction defect case arise for
purposes of NRS 78.585. We conclude that the claim of a third-party litigant arises when the
litigant discovers or should have discovered the defects.
Second, we address whether the two-year statute of limitations for commencing a
cause of action against a dissolved corporation for claims arising before the corporation's
dissolution is tolled under NRS 40.695 during mediation when the claims are for construction
defects and the dissolved corporation is a third party that was not notified of the construction
defect claims within two years after its dissolution. We conclude that a general notice of
construction defect claims provided to a general contractor is sufficient to toll the statute of
limitations for claims against a third-party subcontractor even when the subcontractor is not
involved in the initial proceedings against the general contractor.
FACTS
Real parties in interest Saxton Incorporated and Saratoga Land and Development
(collectively Saxton) are general contractors who built the Sunrise Ridge Condominium
project. Saxton subcontracted with petitioner Desert Fireplaces Plus, Inc., to manufacture,
deliver, and install windows on all 154 condominium units in the Sunrise project. Saxton and
its various subcontractors completed the Sunrise project between March and July 199S.
pleted the Sunrise project between March and July 1998. On October 29, 1998, real party in
interest Sunrise Ridge Homeowners Association, Inc., notified Saxton of its construction
defect claims. The notice listed several defects and specifically included window defects
attributable to Desert Fireplaces. On December 31, 1998, Desert Fireplaces dissolved its
corporate charter and sold its assets and liabilities.
On August 1, 2001, Sunrise filed suit against Saxton for construction defects pursuant
to NRS 40.600 to 40.695. On August 30, 2001, Saxton filed a third-party complaint against
Desert Fireplaces and other subcontractors. Desert Fireplaces moved the district court to
dismiss the third-party complaint under NRCP 12(b)(5), claiming that Saxton filed the
complaint after the two-year time limit specified in NRS 78.585.
The district court conducted a hearing on the motion to dismiss and denied the
motion. Shortly thereafter, the district court held a rehearing on Desert Fireplaces' motion to
dismiss. Saxton conceded that Desert Fireplaces had been dissolved on December 31, 1998.
Nevertheless, Saxton argued that because insurance was still available, it should be permitted
to pursue its claims and recover against the insurance policy. The district court agreed and
denied the motion to dismiss.
Desert Fireplaces then filed this petition for a writ of mandamus and stay of trial
pending the decision.
1

DISCUSSION
[Headnotes 1-4]
Desert Fireplaces requests a writ of mandamus compelling the district court to dismiss
the lawsuit against it. We have original jurisdiction to issue writs of mandamus.
2
A writ of
mandamus may issue to compel the performance of an act which the law requires
3
and
shall be issued in all cases where there is not a plain, speedy and adequate remedy in the
ordinary course of law.
4
We will not issue a writ of mandamus to control a district court's
discretionary action unless the court manifestly abused its discretion.
5
A petition for
extraordinary relief is addressed to this court's sound discretion. Ordinarily, this court will not
exercise that discretion to even consider writ petitions that challenge orders denying
motions to dismiss.
____________________

1
Saxton and Saratoga subsequently assigned their claims to Sunrise as part of a settlement agreement. On
June 24, 2004, we approved a stipulation between Sunrise and Saxton and dismissed the petition as to Saxton.

2

3
Civil Serv. Comm'n v. Dist. Ct., 118 Nev. 186, 188, 42 P.3d 268, 270 (2002).

4
NRS 34.170.

5
Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981).
cretion to even consider writ petitions that challenge orders denying motions to dismiss. An
exception exists, however, when an important issue of law requires clarification.
6
Because
this case involves an important matter of first impression regarding when a statute of
limitations applicable to a construction defect claim is tolled as to claims against absent third
parties, we exercise our discretion to consider this petition.
The real parties in interest argue that we should construe NRS 78.585 to allow
construction defect litigation to commence after the two-year time limit. We conclude that the
limitations period set forth in NRS 78.585 was tolled for the claims against Desert Fireplaces
on October 29, 1998, when Sunrise gave Saxton notice of its construction defect claims
pursuant to NRS 40.695.
NRS 40.695 tolls any limitation periods that apply to a construction defect claim
governed by NRS 40.600 to 40.695 for a specified period of time and provides that the tolling
provision applies to third parties:
1. All statutes of limitation or repose applicable to a claim based on a constructional
defect governed by NRS 40.600 to 40.695, inclusive, are tolled from the time notice of
the claim is given, until 30 days after mediation is concluded or waived in writing
pursuant to NRS 40.680.
2. Tolling under this section applies to a third party regardless of whether the party
is required to appear in the proceeding.
7

(Emphasis added.) The statute does not mention a dissolved corporation; however, it
specifically provides that all statutes of limitation and repose for construction defect claims
are tolled from the time notice of the claim is given, even to third parties who are absent
from the proceedings.
8
Additionally, in 1998, NRS 40.690 prohibited a contractor from
bringing a construction defect claim against a third party during the time period any
construction defect claim was in mediation.
[Headnote 5]
NRS 78.585 sets forth the statutory limitations for commencing a cause of action
against a dissolved corporation for claims arising before its dissolution. It provides that a
lawsuit against a dissolved corporation for claims that were discovered or should have been
discovered before the corporation's dissolution must be commenced within two years after
its date of dissolution.
____________________

6
Smith v. District Court, 113 Nev. 1343, 1345, 950 P.2d 280, 281 (1997).

7
1997 Nev. Stat., ch. 559, 21, at 2723-24. The statute was amended significantly in 1999, but amendments
in 2003 largely returned it to its 1997 language. 2003 Nev. Stat., ch. 362, 32, at 2049-50.

8
NRS 40.695.
within two years after its date of dissolution.
9
Although NRS 78.585 is not a construction
defect statute of limitations, it applies because Desert Fireplaces dissolved its corporate
charter shortly after it completed construction on the Sunrise project.
We must address two issues. First, we must determine whether the construction defect
claims against Desert Fireplaces were discovered before its dissolution. If so, then second, we
must determine whether the two-year limitations period was tolled under NRS 40.695.
[Headnote 6]
Saxton discovered the construction defects before Desert Fireplaces' dissolution. This
is evidenced by Sunrise giving Saxton notice of its construction defect claims two months
before Desert Fireplaces' dissolution. Since the notice listed defects in the windows installed
by Desert Fireplaces, the notice demonstrates that Saxton discovered the defects before
Desert Fireplaces' dissolution. We therefore conclude that Saxton's cause of action arose
before Desert Fireplaces' dissolution.
[Headnote 7]
We now turn to whether the two-year limitations period for dissolved corporations
was tolled. Under NRS 40.695, limitation periods are tolled once the plaintiff gives notice to
the general contractor of the construction defect claim. NRS 40.695(2) provides that the
tolling provision applies to a third party. The Legislature has not specified what type of notice
is required under NRS 40.695. In our view, NRS 40.695 requires a general notice of
construction defect claims as outlined in NRS 40.645 (1997). If the Legislature desired that a
more specific form of notice be given to absent third parties, it would have included such a
requirement in the statute. Since the Legislature did not require a specific form of notice to
third parties, a plaintiff's general notice of construction defects tolls the limitation periods
with respect to any claims against third parties. Therefore, when a party provides notice of
construction defect claims to the general contractors, the limitation periods are tolled for
claims against any third-party subcontractors, even if they are absent from the proceedings.
[Headnote 8]
Here, Sunrise gave Saxton notice of its construction defect claims on October 29,
1998. Desert Fireplaces, as a subcontractor, was an absent third party to the initial
proceedings between Sunrise and Saxton. Desert Fireplaces was not dissolved until
December 31, 1998, approximately two months after Sunrise gave Saxton notice of its
construction defect claims.
____________________

9
NRS 78.585; Beazer Homes Nevada, Inc. v. Dist. Ct., 120 Nev. 575, 586-87, 97 P.3d 1132, 1139 (2004).
notice of its construction defect claims. The two-year limitations period set forth in NRS
78.585 was tolled under NRS 40.695 as to any claims against Desert Fireplaces. Desert
Fireplaces apparently was not aware of the potential lawsuit until Saxton filed the third-party
complaint against it. But neither NRS 40.645 (1997) nor NRS 40.695 (1997) requires actual
notice to third parties.
Shortly after Sunrise gave Saxton notice of its construction defect claims in 1998, the
parties commenced mediation. On July 11, 2001, Sunrise and Saxton stipulated to terminate
mediation. On August 1, 2001, Sunrise filed its complaint against Saxton. On August 30,
2001, Saxton filed its third-party complaint against Desert Fireplaces.
Less than 60 days lapsed from the time Sunrise and Saxton terminated mediation to
the time Saxton filed suit against Desert Fireplaces. NRS 40.690 (1997) prohibited Saxton
from bringing suit against Desert Fireplaces until mediation failed, and NRS 40.695 tolled the
two-year limitations period in NRS 78.585 until 30 days after mediation concluded. Once
mediation terminated and the two-year limitations period began to run again, Saxton
promptly filed its third-party complaint against Desert Fireplaces. Therefore, Saxton
commenced its third-party action against Desert Fireplaces within the time frame required by
NRS 78.585.
CONCLUSION
The two-year limitations period for commencing a cause of action against Desert
Fireplaces for construction defect claims arising before its dissolution was tolled under NRS
40.695 upon Sunrise's notice to the general contractor of its construction defect claims. Once
the parties' mediation failed and the limitations period began to run, Saxton filed its
third-party complaint against Desert Fireplaces within the statutory time limit. The district
court therefore did not err in denying the motion to dismiss. Accordingly, we deny the
petition.
10

____________________

10
We have reviewed Desert Fireplaces' other arguments and conclude that they are without merit.
____________
120 Nev. 639, 639 (2004) Atkinson v. MGM Grand Hotel, Inc.
CHERIE ATKINSON, Appellant, v. MGM GRAND HOTEL, INC.,
and MARNELL CORRAO ASSOCIATES, INC., Respondents.
No. 40180
October 13, 2004 98 P.3d 678
Appeal from a final district court judgment, entered pursuant to a jury verdict in a personal
injury case. Eighth Judicial District Court, Clark County; Gene T. Porter, Judge.
Accident victim brought personal injury action against hotel and construction company
after victim fell into an excavation pit at hotel construction site and fractured her lumbar
spine. The district court entered judgment on jury verdict in favor of hotel and construction
company. Accident victim appealed. The supreme court held that: (1) victim adequately
preserved her appellate argument that the trial court erred when it failed to provide her
requested jury instruction, and (2) trial court's failure to provide victim's requested jury
instruction prejudiced victim and warranted a new trial.
Paul M. Gaudet, Las Vegas, for Appellant.
Doyle, Berman & Gallenstein, P.C., and Colby D. Beck and William H. Doyle, Las Vegas,
for Respondents.
Accident victim adequately preserved her appellate argument that the trial court
erred when it failed to provide her requested jury instruction that stated that the failure
to erect a fence or other safeguard around an excavation, hole, or shaft constituted
negligence per se, even though construction company and hotel alleged that victim
failed to make an adequate objection. Accident victim provided a brief to the court that
argued that the statute that required the construction of a fence around an excavation
site provided the applicable standard of care that should be included in a jury
instruction, and victim's objection to hotel's jury instruction on the standard of care
referred to the same statute. NRS 455.010; NRCP 51.
A district court's decision to give or decline a proposed jury instruction is reviewed
for an abuse of discretion or judicial error.
3. Trial.
A party is entitled to have the jury instructed on all of his case theories that are
supported by the evidence.
4. Appeal and Error; Negligence.
The trial court's failure to provide accident victim's requested jury instruction, which
provided that the failure to erect a fence or other safeguard around an excavation, hole,
or shaft constituted negligence per se, prejudiced victim and warranted a new trial. The
statute that required the erection of a fence around an excavation or hole was
designed to protect people from falling into the excavations, construction company
and hotel were required to follow statute, and victim was in the class of persons
that the statute was designed to protect.
erection of a fence around an excavation or hole was designed to protect people from
falling into the excavations, construction company and hotel were required to follow
statute, and victim was in the class of persons that the statute was designed to protect.
NRS 455.010.
5. Negligence.
A statutory violation is negligence per se if the injured party belongs to the class of
persons whom the statute was intended to protect, and the injury suffered is of the type
the statute was intended to prevent.
OPINION
Per Curiam:
On appeal from the district court's final judgment, Cherie Atkinson challenges the district
court's denial of her proffered jury instruction based on a Nevada statute that governs the
erection of fences around holes, excavations and shafts. We hold that the district court
incorrectly denied Atkinson's jury instruction and that the jury instruction should have been
given. We reverse the district court's judgment and remand the case for a new trial.
FACTS
On New Year's Eve 1997, Cherie Atkinson fell approximately twenty feet into an
excavation on the premises of an MGM construction site in Las Vegas, Nevada. Atkinson
fractured her lumbar spine and incurred medical expenses in excess of $110,000.
Three months before Atkinson's accident, MGM had started constructing high roller
suites in an area that had previously been tennis courts and a swimming pool. MGM hired
the construction company of Marnell Corrao for the project. Marnell Corrao secured the
perimeter of the construction project with an eight-foot chain link fence and block walls. The
fence, however, did not extend to block an entrance through a stairway leading from outside
of the construction site to the interior. Instead, a series of two-by-four wood planks and
yellow caution tape were placed across the stairwell. Witnesses for both parties presented
conflicting testimony concerning whether Marnell Corrao was using the stairwell to gain
access to the construction site. In addition to the barricades placed by Marnell Corrao, MGM
had security personnel check the construction site on an hourly basis to ensure that the site
was secured.
Atkinson could not remember how she entered the construction site. She testified that she
had entered the site after climbing a dirt hill. However, she introduced expert testimony that
she entered the site through the stairwell. MGM pointed out at trial that the expert's testimony
was speculative because he did not witness the incident, and Atkinson could not remember
being on stairs.
cident, and Atkinson could not remember being on stairs. Atkinson admitted that she
consumed alcohol on the evening of the accident, and that she entered the construction site
because she was looking for a secluded place to urinate.
According to Atkinson, after she entered the construction site, she walked an unknown
number of steps and fell into an excavation pit. Individuals walking nearby heard Atkinson's
screams, entered the construction site, and rendered aid. Police and paramedics were
summoned and provided emergency assistance.
Atkinson later filed a complaint against MGM and Marnell Corrao, seeking damages for
personal injuries sustained from her fall. Her complaint proceeded to a jury trial.
Jury instructions
At trial, Atkinson proposed a jury instruction on the issue of negligence per se, based on
NRS 455.010, which governs the erection of fences and other safeguards around holes,
excavations and shafts. The proposed instruction provided:
A violation of [NRS 455.010] constitutes negligence as a matter of law. If you find
that a party violated a law just read to you, it is your duty to find such violation to be
negligence; and you should then consider the issue of whether that negligence was a
proximate cause of injury or damage to the Plaintiff.
Atkinson had previously provided the court with legal authority on the relevance of NRS
455.010 in a memorandum opposing MGM's motion in limine, which sought to exclude
evidence concerning the cost and placement of fencing around the construction site. The
district court refused Atkinson's instruction, and the jury returned a verdict for MGM and
Marnell Corrao.
DISCUSSION
[Headnote 1]
As an initial matter, respondents assert that Atkinson did not make an adequate objection
to the district court's refusal to give the jury instruction. Therefore, we must first consider
whether Atkinson preserved the issue for our consideration.
NRCP 51 states that [n]o party may assign as error the giving or the failure to give an
instruction unless he objects thereto . . . stating distinctly the matter to which he objects and
the grounds of his objection. However, it is not always necessary to make a formal objection
to preserve a jury instruction issue for appeal.
1
In Barnes v. Delta Lines, Inc., we held that
the requirements of NRCP 51 are satisfied as long as the district court is provided with a
citation to the relevant legal authority that supports the giving of the instruction.
____________________

1
J.A. Jones Constr. v. Lehrer McGovern Bovis, 120 Nev. 277, 285, 89 P.3d 1009, 1015 (2004).
NRCP 51 are satisfied as long as the district court is provided with a citation to the relevant
legal authority that supports the giving of the instruction.
2

Atkinson provided the district court with a written brief on the issue of NRS 455.010's
relevance in her opposition to MGM and Marnell Corrao's motion in limine. The brief stated
that [t]his statute imposes an absolute duty on the owner of the excavation site,
nonperformance of which is negligence as a matter of law. It also stated [t]he jury is
entitled to hear the proper method in which the stairwell should have been secured.
Atkinson did not object immediately after the district court stated that it would not provide
this instruction to the jury. However, during the same hearing on jury instructions, Atkinson
objected to MGM's jury instruction on the standard of care because she believed that NRS
455.010 provided the applicable standard of care that should have been set out in the jury
instruction.
Thus, we conclude that Atkinson's brief on the relevance of NRS 455.010 to this situation,
and her objection on the record that she believed NRS 455.010 supplied the applicable
standard of care, sufficiently complies with NRCP 51 to preserve this issue for appeal.
[Headnotes 2, 3]
A district court's decision to give or decline a proposed jury instruction is reviewed for an
abuse of discretion or judicial error.
3
However, a party is entitled to have the jury instructed
on all of his case theories that are supported by the evidence.
4
Here, Atkinson introduced
evidence to support her theory of negligence per se; consequently, the instruction should have
been given.
[Headnote 4]
NRS 455.010 requires excavators to erect a substantial fence or safeguard around their
work to prevent persons and animals from falling into the excavation:
Any person or persons, company or corporation, who shall dig, sink or excavate, or
cause the same to be done . . . shall, during the time they may be employed in digging,
sinking or excavating, or after they may have ceased work upon or abandoned the same,
erect, or cause to be erected, good and substantial fences or other safeguards, and
keep the same in good repair, around such works or shafts, sufficient to guard
securely against danger to persons and animals from falling into such shafts or
excavations.
____________________

2
99 Nev. 688, 690 n.1, 669 P.2d 709, 710 n.1 (1983); see also Tidwell v. Clarke, 84 Nev. 655, 660-61, 447
P.2d 493, 496 (1968) (stating that even though [t]his court has held to a hard line in interpreting NRCP 51, the
requirements of NRCP 51 do not need to be strictly complied with where counsel calls the court's attention to the
issue of law involved in a clear and timely manner).

3

4
Silver State Disposal v. Shelley, 105 Nev. 309, 311, 774 P.2d 1044, 1045 (1989).
substantial fences or other safeguards, and keep the same in good repair, around such
works or shafts, sufficient to guard securely against danger to persons and animals from
falling into such shafts or excavations.
[Headnote 5]
Atkinson argues that in this case, a violation of the statute constitutes negligence per se. A
statutory violation is negligence per se if the injured party belongs to the class of persons
whom the statute was intended to protect, and the injury suffered is of the type the statute was
intended to prevent.
5
The plain and unambiguous language of NRS 455.010 is intended to
protect members of the public from falling into excavations. In this case, Atkinson entered a
construction site and fell into an excavation pit. Atkinson is within the class of persons that
the statute was designed to protect, and her injury is of the type the statute was intended to
prevent.
MGM contends that Atkinson's proffered jury instruction was not required under Boland v.
Nevada Rock and Sand Co.
6
In Boland, we held that a dirt bike rider inside a 320-acre
commercial gravel pit was not in the class of persons protected by NRS 455.010 because the
rider fell off a hill after he was inside the excavation.
7
That case relied on the holding in
Gard v. United States, in which the United States District Court for the Northern District of
California held that NRS 455.010 does not apply when an individual falls down a mine shaft
after entering the mine through a horizontal tunnel.
8

In Gard, the court stated that the Nevada Legislature enacted NRS 455.010 to protect
individuals from unexpectedly falling into excavated pits and mine shafts.
9
Consequently,
the court determined that the statute did not apply to horizontal tunnels leading into mine
shafts because a fall could be expected when a person knowingly enters a mine.
10
Following
this reasoning, we held in Boland that a dirt bike rider who had already entered the
excavation area could not argue for the application of NRS 455.010 because he knowingly
entered the area and did not unexpectedly fall into a hole or mine shaft.
11

Boland is factually distinguishable from the present case. In Boland, we noted that it
would not be reasonable to require fencing or other safety measures to be placed around a
320-acre gravel pit.
____________________

5
Barnes, 99 Nev. at 690, 669 P.2d at 710.

6
111 Nev. 608, 894 P.2d 988 (1995).

7
Id. at 614, 894 P.2d at 992.

8
420 F. Supp. 300 (N.D. Cal. 1976), aff'd, 594 F.2d 1230 (9th Cir. 1979).

9
Id. at 303.

10
Id. at 303-02.

11
111 Nev. at 614, 894 P.2d at 992.
pit.
12
In addition, we noted that NRS 41.510 applied to the area. NRS 41.510 protects
landowners from liability when their land is used for recreational purposes. Because dirt bike
riders frequently used the gravel pit, we concluded that as a matter of policy, requiring
fencing or safeguards to be erected around the pit would not comport with NRS 41.510.
13
Boland is therefore not controlling. In addition, because Gard is based on a completely
different factual situation involving mine shafts, it is not instructive.
In this case, MGM and Marnell Corrao were required to follow the provisions of NRS
455.010 and secure the excavation area by erecting a fence or other safeguard. Additionally,
Atkinson is within the class of persons protected by the statute, and her injury is the type that
the statute was designed to prevent. Further, Atkinson introduced evidence that she was able
to access the excavation site through the stairwell, which was not secured by fencing.
Consequently, the district court should have given the instruction.
14
Moreover, the failure to
give the instruction was prejudicial to Atkinson's case.
15

CONCLUSION
The district court erred in refusing Atkinson's proffered jury instruction, as she was
entitled to this instruction. Therefore, we reverse the district court's judgment and remand for
a new trial.
____________
120 Nev. 644, 644 (2004) Doctors Company v. Vincent
THE DOCTORS COMPANY, an Inter-Insurance Exchange,
Appellant, v. ROBERT L. VINCENT, Respondent.
No. 36838
October 13, 2004 98 P.3d 681
Appeal from a final judgment in an insurance coverage dispute, challenging an
interlocutory order granting a motion for approval of a good-faith settlement. Second Judicial
District Court, Washoe County; Steven P. Elliott, Judge.
Insured sued insurer and its agent, among others, after claim for medical benefits was
denied. Insured settled with insurer for $2.75 million and with agent for $20,000. The district
court approved both settlements.
____________________

12
Id.

13
Id.

14
On remand, the trial jury should also be instructed under NRS 41.141 at respondents' request.

15
See Barnes, 99 Nev. at 690-91, 669 P.2d at 711 (holding that failure to give negligence per se instruction
was prejudicial to plaintiff's case because instruction would have shifted the burden of proof to [defendants] to
show excuse or justification).
both settlements. Insurer appealed approval of agent's settlement. The supreme court,
Maupin, J., held that: (1) claim that court erred in approving settlement was moot as to
insurer's contribution claim, and (2) trial court erred in approving settlement as in good faith
as to insurer's indemnity claim.
John H. Cotton & Associates, Ltd., and John H. Cotton, Las Vegas, for Appellant.
Jones Vargas and Ryan W. Herrick and Albert F. Pagni, Reno, for Respondent.
1. Contribution.
Joint tortfeasor seeking to perfect a contribution claim in the context of a settlement
must first extinguish the liabilities of the other joint tortfeasors against whom
contribution recovery is sought.
2. Indemnity.
Tortfeasor seeking to perfect an implied indemnity claim in the context of a
settlement is not required to extinguish the liabilities of joint tortfeasors against whom
indemnity recovery is sought.
3. Contribution.
Any joint tortfeasor in a multi-defendant tort action may obtain protection from
claims of contribution and implied indemnity by settling with the tort claimant in good
faith. NRS 17.245.
4. Contribution.
Remedy of contribution allows one tortfeasor to extinguish joint liabilities through
payment to the injured party, and then seek partial reimbursement from a joint
tortfeasor for sums paid in excess of the settling or discharging tortfeasor's equitable
share of the common liability. NRS 17.265.
5. Indemnity.
Implied indemnity allows a complete shifting of responsibility to an indemnity
obligor when the party seeking indemnity has extinguished its liabilities incurred as a
result of the indemnity obligor's active fault.
6. Contribution.
In determining whether a tort settlement is made in good faith, factors for
consideration include: amount paid in settlement, allocation of settlement proceeds
among plaintiffs, insurance policy limits of settling defendants, financial condition of
settling defendants, and existence of collusion, fraud or tortious conduct aimed to injure
the interests of non-settling defendants. In addition, the district court may assess the
relative liability permutations of the particular contribution or indemnity action known
to it, including the strengths and weaknesses of the contribution or indemnity claims.
NRS 17.265.
Medical insurer's settlement with insured for wrongful denial of benefits failed to
extinguish agent's liability to insured, and thus, insurer's claim on appeal that district
court abused its discretion in approving settlement between agent and insured, for
purposes of insurer's contribution claim, was moot. Insurer's failure to extinguish
agent's liability in insurer's settlement immunized agent from statutory contribution
claim.
surer's settlement immunized agent from statutory contribution claim. NRS 17.225(3).
8. Indemnity.
When one party is subject to liability, which, as between that party and another, the
other should bear, the first party is entitled to full indemnity.
9. Indemnity.
The right of indemnity rests upon a difference between the primary, or active, and
the secondary, or passive, liability of two persons, each of whom is made responsible
by the law to an injured party. The difference between primary and secondary liability
depends on a difference in the character or kind of wrongs that cause the injury and in
the nature of the legal obligation owed by each of the wrongdoers to the injured person.
10. Indemnity.
Evidence of only passive negligence is insufficient to establish active
wrongdoing by a party seeking indemnity.
11. Indemnity.
In order for one tortfeasor to be in a position of secondary responsibility vis-a-vis
another tortfeasor, and thus be entitled to indemnification, there must be a preexisting
legal relation between them, or some duty on the part of the primary tortfeasor to
protect the secondary tortfeasor.
12. Indemnity.
Trial court erred in approving settlement between insured and agent as in good faith
without analyzing implications of settlement in terms of insurer's potential implied
indemnity claim against agent after insurer settled with insured, in action resulting from
insurer's wrongful denial of medical benefits. Trial court was required to determine
what part of insurer's settlement accounted for insurer's active fault, and whether, in
light of any settlement amount that accounted for insurer's passive fault, agent's
settlement was fair. NRS 17.245.
OPINION
In this appeal, we consider the procedures for perfecting, as part of a settlement, claims for
contribution among joint tortfeasors and implied indemnity. As discussed below, these
remedies allow persons extinguishing their individual tort liabilities to seek reimbursement in
part or in full from other responsible parties.
[Headnotes 1-3]
The resolution of this appeal centers in large part upon several related statutory principles.
1
First, a joint tortfeasor seeking to perfect a contribution claim in the context of a settlement
must first extinguish the liabilities of the other joint tortfeasors against whom contribution
recovery is sought. Second, a tortfeasor seeking to perfect an implied indemnity claim in the
context of a settlement is not required to extinguish the liabilities of joint tortfeasors
against whom indemnity recovery is sought.
____________________

1
See NRS 17.225 to 17.305.
perfect an implied indemnity claim in the context of a settlement is not required to extinguish
the liabilities of joint tortfeasors against whom indemnity recovery is sought. Third, any joint
tortfeasor in a multi-defendant tort action may obtain protection from claims of contribution
and implied indemnity by settling with the tort claimant in good faith under NRS 17.245.
Fourth, the district court's discretion in determining the good or bad faith of a particular
settlement is not talismanic, but rather, must be exercised based upon a myriad of
considerations.
SUMMARY OF THE PROCEEDINGS IN DISTRICT COURT
Samuel Woods, Jr., brought the action below against respondent, Robert Vincent, and
appellant The Doctors Company (TDC), TDC's affiliate, National Marketing Administration
(NMA), and NMA's agents, David Hemphill and Edwin Hemphill.
2
The suit concerned
attempts by Vincent, an independent insurance agent, to place medical insurance coverage for
Woods with TDC, TDC's acceptance of that coverage, and its ultimate rejection of a claim for
benefits. Shortly before trial, Woods settled with the TDC defendants for $2.75 million and
with Vincent for $20,000. Both settlements were approved by the district court as in good
faith under NRS 17.245. In this appeal, TDC contends that the district court abused its
discretion in approving Vincent's settlement, which effectively cut off TDC's claims against
Vincent for contribution and implied indemnity. Woods is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In February 1998, Woods sought short-term medical coverage through Vincent, an
independent insurance agent. After some inquiries, Vincent assisted Woods in completing a
TDC form application for coverage. Woods claimed that he paid the initial premium to TDC
by delivering a check to Vincent on February 7, 1998. Vincent claimed that he or his assistant
mailed the check with the TDC application form to TDC's insurance administrator, NMA,
shortly before midnight on February 9, 1998. The forwarding envelope bore Vincent's private
meter postage mark of that date. Because Vincent was not a formally designated agent of
TDC at that time, he included his own written application to act as a TDC agent with Woods'
insurance application. Either Vincent or Woods checked a box on the TDC application form
indicating that the effective date of coverage was to be the date after postmark.
Notwithstanding Vincent's representations concerning the date of mailing, the United States
Postal Service {USPS) did not place its postmark on the envelope until February 12, 199S.
____________________

2
TDC, NMA, and NMA's agents, David Hemphill and Edwin Hemphill, will be referenced collectively as
TDC or the TDC defendants. NMA is referred to individually only where necessary for clarity.
mailing, the United States Postal Service (USPS) did not place its postmark on the envelope
until February 12, 1998.
NMA received the envelope on February 17, 1998, and processed the application.
Evidence indicated that NMA initially accepted the coverage as of February 10, 1998,
apparently based upon Vincent's postage meter mark of the previous day. However, based
upon the USPS postmark, coupled with the request that the effective date of the coverage
commence the date after postmark, NMA changed the effective date of the policy to
February 13, 1998.
Ironically, Woods was seriously injured in an accident at his home on February 11, 1998,
between the two possible starting dates for coverage, February 10 and 13, 1998. Based upon
the USPS postmark date of February 12, 1998, TDC ultimately denied Woods' claims for
approximately $350,000 in medical expenses. In this, TDC relied on a preexisting-condition
exclusion in its policy.
Woods filed his complaint in district court against Vincent and the TDC defendants
seeking special, general and punitive damages. The suit against Vincent included claims of
negligence, breach of fiduciary duty and intentional infliction of emotional distress. The
claims against the TDC defendants included: (1) negligence, (2) breach of contract, (3)
estoppel, (4) breach of the implied covenant of good faith and fair dealing, (5) unfair trade
practices, (6) breach of fiduciary duty, and (7) infliction of emotional distress. Woods also
alleged that TDC was vicariously liable for Vincent's actions on an agent/principal theory.
The question of which postage mark triggered coverage became central to the controversy
during discovery. On one hand, the decisions to change the effective date of coverage and
reject Woods' claim for benefits could reasonably be justified by the questionable
circumstances under which Vincent forwarded the application and Woods' coincidental
accident within the disputed coverage window. In this, testimony from postal service
witnesses implied that Vincent backdated his postage meter to conceal his failure to timely
submit the application. On the other hand, several NMA employees gave conflicting
deposition testimony as to what constituted a postmark for purposes of establishing effective
dates for such policies, and TDC apparently lacked policies and procedures governing which
postmark triggered the effective date of coverage under such circumstances. In its totality,
evidence against TDC supported Woods' claims that (1) TDC originally accepted coverage as
of February 10, 1998, thus initially recognizing Vincent's postage meter mark as stimulating
commencement of coverage; (2) TDC only rejected coverage upon learning of Woods' claim
for medical benefits; (3) TDC's separate conduct led to its contractual and extra-contractual
exposure; and (4) given the initial acceptance of coverage as of February 10, 199S, and
given that the TDC application form seemingly empowered Vincent to set the coverage
commencement date, TDC treated Vincent as its agent for the purpose of placing
coverage.
coverage as of February 10, 1998, and given that the TDC application form seemingly
empowered Vincent to set the coverage commencement date, TDC treated Vincent as its
agent for the purpose of placing coverage.
TDC moved for summary judgment on the coverage and vicarious liability issues.
3
After
the district court denied the motion in its entirety, TDC evaluated the potential risk of a
substantial compensatory and punitive damages verdict. Shortly before trial, based upon the
potentially negative evidence that surfaced during discovery, TDC settled with Woods for
$2.75 million. The TDC settlement did not, by its terms, extinguish Vincent's liability.
All parties stipulated in open court to the statutory good faith of the settlement between
Woods and the TDC defendants. At the hearing memorializing the TDC settlement, Vincent's
counsel reported that he too had settled with Woods, but for the relatively nominal sum of
$25,000.
4
After TDC refused to agree to the good faith of Vincent's settlement, Vincent
moved for its approval under NRS 17.245. The briefs for and against approval
comprehensively summarized the history of the case. Although noting the disparity between
the two settlements, Vincent argued that he had done nothing wrong, and that his liability was
only tangential in relation to TDC's mishandling of the claim, i.e., TDC's wrongful refusal to
pay benefits in connection with Woods' accident. TDC argued that the Vincent/Woods'
settlement was not an arm's-length arrangement, that the settlement was improperly
calculated to cut off its vested contribution and indemnity rights, that its exposure was
entirely related to Vincent's failure to timely forward Woods' insurance application, and that
Vincent's nominal settlement was grossly disproportionate to the relative degree of his
exposure to Woods. TDC underscored its arguments that Vincent's settlement was entered
into in bad faith with the fact that Vincent's errors-and-omissions insurance provided liability
coverage with policy limits of $500,000.
Thereafter, without a hearing, the district court determined that Vincent settled with
Woods in good faith:
[Woods] has determined that settlement with Vincent is in his economic best
interest. Therefore, [Woods] is willing to settle this matter for the amount of [$25,000].
Based upon the record or the lack thereof at this point, TDC has failed to show that the
[$25,000] settlement agreed to by [Woods] is disproportionately lower than Vincent's
fair share of the damages.
____________________

3
We note that TDC's motion for summary judgment was narrowly worded, seeking a determination of
noncoverage and a ruling that it was not vicariously responsible for any wrongdoing by Vincent. In his
opposition to the motion, Vincent acknowledged that TDC was not responsible for any wrongdoing by him or on
his behalf.

4
The settlement actually involved payment of $20,000.
disproportionately lower than Vincent's fair share of the damages.
Accordingly, the district court approved Vincent's settlement and entered a final judgment.
On appeal, TDC challenges the order of approval because it effectively barred TDC's claims
for contribution or implied indemnity against Vincent.
5

We affirm in part, reverse in part and remand for further proceedings consistent with this
opinion. TDC failed to perfect its contribution rights, thus rendering moot the question of
whether the good-faith ruling barred TDC's potential contribution claims against Vincent.
Accordingly, we affirm the good-faith determination below insofar as it relates to TDC's
contribution claims. However, the district court apparently failed to assess the good faith of
Vincent's settlement as it related to TDC's potential claims for implied indemnity. Thus, the
matter is reversed in part and remanded for the district court to determine whether the
settlement was in good faith for the purpose of extinguishing TDC's potential implied
indemnity rights.
DISCUSSION
Although we recognize that TDC's separate contribution/indemnity action is not before the
court in this appeal, one of the purposes of the good-faith ruling below was to preempt that
separate action. Consequently, and as is discussed below, the merits of the separate claims by
TDC against Vincent become part of the overall calculus for determining whether the district
court abused its discretion in its good-faith ruling. Thus, to the degree necessary to resolve
this appeal, we will discuss the interplay between the good-faith ruling in the action below
and the merits of the contribution/indemnity action. We also recognize that the procedures for
perfecting contribution and indemnity claims in the context of settlements are rarely used and
that an understandable level of confusion and uncertainty has developed concerning them. For
these reasons, we have determined to provide guidance for future use of these devices by the
bench and bar.
[Headnotes 4, 5]
The remedies of contribution and implied, i.e., noncontractual indemnity allow parties
extinguishing tort liabilities by way of settlement or payment of judgments to seek recovery
from other potential tortfeasors under equitable principles. Contribution is a creature of
statute,
6
while implied indemnity is generally a creation of the common law.
____________________

5
TDC filed a separate contribution and indemnity action in the district court against Vincent, which the
district court stayed pending our resolution of TDC's appeal in this case.

6
See NRS 17.225 to 17.305.
of the common law. Under the Nevada statutory formulation, the remedy of contribution
allows one tortfeasor to extinguish joint liabilities through payment to the injured party, and
then seek partial reimbursement from a joint tortfeasor for sums paid in excess of the settling
or discharging tortfeasor's equitable share of the common liability.
7
Generally stated, implied
indemnity allows a complete shifting of responsibility to an indemnity obligor when the
party seeking indemnity has extinguished its liabilities incurred as a result of the indemnity
obligor's active fault.
8
Under NRS 17.265, the provisions of the contribution statutory
scheme do not impair rights of indemnity and, more particularly, [w]here one tortfeasor is
entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not
contribution, and the indemnity obligor is not entitled to contribution from the obligee for any
portion of his indemnity obligation.
9

TDC contends that the district court abused its discretion in approving Vincent's
settlement as in good faith. Under NRS 17.245, this finding, if upheld, effectively immunizes
Vincent from liability on TDC's contribution and implied indemnity claims:
1. When a release or a covenant not to sue or not to enforce judgment is given in
good faith to one of two or more persons liable in tort for the same injury . . . :
(a) It does not discharge any of the other tortfeasors from liability for the injury . . .
unless its terms so provide, but it reduces the claim against the others to the extent of
any amount stipulated by the release or the covenant, or in the amount of the
consideration paid for it, whichever is the greater; and
(b) It discharges the tortfeasor to whom it is given from all liability for contribution
and for equitable indemnity to any other tortfeasor.
(Emphasis added.)
[Headnote 6]
In In re MGM Grand Hotel Fire Litigation,
10
the Nevada Federal District Court embraced
the following factors in evaluating good-faith issues under NRS 17.245:
[t]he amount paid in settlement, the allocation of the settlement proceeds among
plaintiffs, the insurance policy limits of settling defendants, the financial condition of
settling defendants, and the existence of collusion, fraud or tortious conduct aimed
to injure the interests of non-settling defendants.
____________________

7
See Medallion Dev. v. Converse Consultants, 113 Nev. 27, 31-34, 930 P.2d 115, 118-20 (1997).

8
Id.

9
Because TDC has not indicated whether its rights of indemnity foreclose its contribution claims under NRS
17.265, we have not drawn any conclusions in that regard.

10
570 F. Supp. 913, 927 (D. Nev. 1983).
settling defendants, the financial condition of settling defendants, and the existence of
collusion, fraud or tortious conduct aimed to injure the interests of non-settling
defendants.
11

While the MGM factors may be relevant to a district court's determination of good faith, we
chose not to adopt them as exclusive criteria for determinations of good or bad faith in
Velsicol Chemical v. Davidson.
12
In Velsicol, we held that the determination of a good-faith
settlement should be left to the discretion of the trial court based upon all relevant facts
available, and that, in the absence of an abuse of that discretion, the trial court's findings
should not be disturbed.
13
In such an analysis, a district court may, in addition to the
specifically articulated MGM factors, assess the relative liability permutations of the
particular contribution or indemnity action known to it, including the strengths and
weaknesses of the contribution or indemnity claims. This standard of review vests the district
court with considerable discretion.
Because the rules concerning the perfection of contribution and implied indemnity claims
are not identical, we will deal with the good-faith issues discrete to each of these potential
separate claims.
The good-faith ruling in connection with TDC's claim of contribution under NRS 17.225
TDC argues that the district court's erroneous good-faith ruling improperly voided its
perfected contribution rights. TDC reasons that Vincent, as the last defendant to settle,
cannot, by obtaining a good-faith determination, cut off or extinguish contribution rights
perfected by previously settled defendants. While this argument is valid as far as it goes,
TDC's counsel conceded at the oral argument of this appeal that TDC's settlement on behalf
of the TDC defendants, by its terms, did not extinguish Vincent's liability.
14
This omission is
fatal to TDC's potential contribution claim as a matter of law.
[Headnote 7]
In this connection, NRS 17.225(3) provides:
A tortfeasor who enters into a settlement with a claimant is not entitled to recover
contribution from another tortfeasor whose liability for the injury or wrongful death is
not extinguished by the settlement .
____________________

11
Id.

12
107 Nev. 356, 360, 811 P.2d 561, 563 (1991).

13
Id.

14
According to counsel, the release documents concerning the TDC settlement did not mention Vincent or the
preservation of any claims against him for contribution or implied indemnity. Although the TDC release
documents were not included in the record on appeal, counsel's concession is impliedly confirmed by the
separate stipulation and order for dismissal of Vincent from the Woods' lawsuit.
whose liability for the injury or wrongful death is not extinguished by the settlement . . .
.
Under NRS 17.225(3), once TDC settled without extinguishing Vincent's liability, Vincent
became immune to TDC's contribution action.
15
Accordingly, the ultimate approval of
Vincent's settlement as in good faith did not, in any respect, cut off perfected contribution
rights held by TDC.
16
This being the case, TDC's failure to perfect its contribution rights in
the first instance renders moot any appellate assignments of error concerning the effect of the
good-faith ruling on that claim. Thus, insofar as the good-faith ruling had implications for a
potential contribution claim by TDC against Vincent, the district court committed no abuse of
discretion in approving the settlement.
17

Given the express terms of NRS 17.225, counsel for TDC agreed at the oral argument of
this appeal that reversal of the district court's order would only entitle TDC to press its claim
for implied indemnity against Vincent.
The good-faith ruling and TDC's claim of implied indemnity under NRS 17.245
[Headnotes 8-11]
When one party is subject to liability, which, as between that party and another, the other
should bear, the first party is entitled to full indemnity.
18

The right of indemnity rests upon a difference between the primary [active] and the
secondary [passive] liability of two persons, each of whom is made responsible by the
law to an injured party. The difference between primary and secondary liability
depends on a difference in the character or kind of wrongs that cause the injury and in
the nature of the legal obligation owed by each of the wrongdoers to the injured person.
19

____________________

15
Accordingly, Vincent did not need the protection of the good-faith ruling, at least as to TDC's contribution
claims.

16
NRS 17.245(1)(a) and NRS 17.285(4) reinforce this conclusion. NRS 17.245(1)(a) provides that a release
given in good faith to one of two or more persons liable in tort for the same injury does not discharge any of the
other tortfeasors from liability . . . unless its terms so provide. (Emphasis added.) NRS 17.285(4) bars
contribution rights unless the party seeking contribution has agreed to discharge the common liability during the
pendency of a filed action, has paid the liability and commenced the contribution action within one year
thereafter.

17
In this we do not reach the substantive viability of the good-faith ruling as it relates to TDC's potential
contribution claim.

18
Black & Decker v. Essex Group, 105 Nev. 344, 345, 775 P.2d 698, 699 (1989).

19
Id. (quoting Tromza v. Tecumseh Products Company, 378 F.2d 601, 605 (3d Cir. 1967)).
Evidence of only passive negligence' . . . is insufficient to establish active wrongdoing' by a
party seeking indemnity.
20
Additionally, [i]n order for one tortfeasor to be in a position of
secondary responsibility vis-a-vis another tortfeasor, and thus be entitled to indemnification,
there must be a preexisting legal relation between them, or some duty on the part of the
primary tort-feasor to protect the secondary tortfeasor.
21

TDC bases its implied indemnity claim upon the notion that, but for Vincent's conduct,
TDC would never have been placed in the coverage dilemma described above. In short, to
establish a claim of indemnity against Vincent, TDC must demonstrate that Vincent was
primarily liable for the injuries to Woods.
22

We decided in Medallion Development v. Converse Consultants
23
that claims for implied
indemnity were not barred by a finding that an indemnity obligor settled in good faith under
NRS 17.245. However, following our decision in Medallion, the 1997 Nevada Legislature
amended NRS 17.245 to provide that a good-faith settlement insulates the settling party from
claims of both contribution and implied indemnity. But, in contrast to TDC's contribution
claim, TDC's failure to extinguish Vincent's liability does not bar TDC's claim of implied
indemnity.
24
Because the district court did not hold an evidentiary hearing and made no
findings of fact concerning the indemnity claim, we review the record independently under
MGM and Velsicol to determine whether the district court committed reversible error in
approving the Vincent settlement as in good faith.
25

TDC attacks the good faith of the settlement on the following grounds: that it was entered
into without arm's-length negotiations, that the payment was nominal in relation to Vincent's
actual liability to Woods, that it represented only a minute portion of Vincent's policy limits,
that it was improperly calculated to cut off TDC's rights against Vincent, and that the
settlement did not fairly account for Vincent's potential indemnity liability.
[Headnote 12]
As noted, the district court was not restricted to the MGM factors for determining good
faith, including the fact that Vincent settled for an amount representing only a small
fraction of his insurance limits.
____________________

20
Id.

21
Id. at 346, 775 P.2d at 699-700.

22
See Medallion Development, 113 Nev. at 31-34, 930 P.2d at 118-20.

23
Id.

24
NRS 17.225(3), discussed above, only addresses contribution claims.

25
None of the parties below requested a formal hearing on the good-faith motion. Although formal hearings
are not required in such matters, the district court is empowered to hold hearings, evidentiary or otherwise, either
on its own motion or upon request of the parties. The submission without a hearing in this instance is consistent
with the Local Rules of Practice of the Second Judicial District of Nevada.
tled for an amount representing only a small fraction of his insurance limits. Relative
culpability of the parties to an implied indemnity action is also an important factor in any
determination concerning good faith under NRS 17.245. Here, TDC would be obligated to
pay the benefits only in the event the coverage was placed on an effective date before Woods'
accident; that is, if the accident occurred after the date after postmark. Thus, TDC could
arguably enjoy a right of implied indemnity if it could persuade the fact-finder in the
subsequent indemnity action that Vincent fraudulently backdated his postage meter to cover
up his failure to timely forward the application to TDC, and that TDC's actions in accepting
and then rejecting coverage were passive in relation to Vincent's fraud. However, the
litigation below was marked by considerable disputes over whether TDC initially accepted
the coverage effective before the accident, whether Vincent fraudulently backdated the
application, and whether Vincent's role in the matter affected acceptance of the coverage, e.g.,
whether Vincent's date of postmark governed acceptance of the risk. Because resolution of
these highly contested issues were in large part determinative of whether TDC was actively at
fault in its refusal to cover Woods' February 11, 1998, accident, the validity of the implied
indemnity claim was far from clear.
We acknowledge, as do the parties, that the TDC settlement was designed to account for
its potential joint and several exposures to awards of special and general compensatory
damages, and its several exposure to Woods' claim of punitive damages. To the extent that
TDC's settlement was intended to extinguish its liability in connection with its active fault,
TDC would have no substantive claim in implied indemnity, regardless of whether Vincent's
settlement was entered into in good faith under NRS 17.245.
26
Thus, an erroneous ruling on
that issue would only prejudice TDC to the extent that its settlement extinguished liabilities
that could, as a matter of law, be subject to a right of implied indemnity. Again, although a
claim of active fault on the part of the party seeking indemnity in connection with monies
paid in settlement is an affirmative defense to the separate indemnity action, a district court
may consider active fault issues in deciding whether to approve a separate settlement by the
indemnity defendant as in good faith under NRS 17.245.
The district court's order of approval in this case analyzes the good-faith issue as it relates
to the potential contribution claim:
____________________

26
See Reid v. Royal Insurance Co., 80 Nev. 137, 143-46, 390 P.2d 45, 4849 (1964) (noting that a person may
not seek implied indemnity when found in pari delicto with the person against whom indemnity recovery is
sought); see also Evans v. Dean Witter Reynolds, Inc., 116 Nev. 598, 5 P.3d 1043 (2000).
[b]ased on the record or lack thereof at this point, TDC has failed to show that the [$25,000]
agreed to by [Woods] is disproportionately lower than Vincent's fair share of the damages.
But it contains no such analysis of the settlement in terms of its implication for TDC's
potential implied indemnity claim. As noted, the litigation below over the good faith of
Vincent's settlement was marked by highly contested issues of fact that were in large part
determinative of whether TDC was actively at fault in its refusal to cover Woods' accident.
Because the district court apparently approved the settlement as in good faith without
evaluating the merits of the potential indemnity claim, and because the district court is in a far
superior position to evaluate the factual issues underlying this good-faith determination, we
reverse the order insofar as it relates to TDC's separate indemnity claims and remand this
matter for a complete analysis, taking into consideration the MGM factors, the extent to
which the settlement may not have reflected liability for compensatory and punitive damages
arising from the claims of active fault against TDC, and whether the Vincent settlement was
otherwise fair in relation to TDC's chances of success on the substantive implied indemnity
claim.
27
In this way, the district court can completely determine whether Vincent's settlement
should pass muster under NRS 17.245.
28

CONCLUSION
A tortfeasor seeking to perfect a contribution claim through a prejudgment settlement
process must pay an amount in excess of his equitable share of liability and must explicitly
extinguish the liability of the joint tortfeasor
____________________

27
On remand, the parties may litigate the extent to which the TDC settlement was devoted to paying its
passive liabilities it alleges were caused by Vincent's active fault. From that point of analysis, the district court
may determine from the record in this case whether TDC's indemnity claim is potentially flawed to the extent
that the relatively small settlement satisfied NRS 17.245, or has enough viability that the settlement should be
rejected thereunder. As noted, TDC cannot obtain an implied indemnity award in connection with its separate
active fault and additional punitive liability.

28
We recognize that the 1997 amendments to NRS 17.245, precluding indemnity actions where the indemnity
obligor's settlement is in good faith, are not in doctrinal harmony with a right of implied indemnity. Such factors
as the possibility that the putative indemnity obligor may be completely exonerated, which bear on the good faith
of the obligor's settlement, do not account for the fact that a full shifting of liability may be justified under the
facts at a trial, and that a nominal good-faith settlement should, as a matter of public policy, never insulate a
tortfeasor from indemnity liability. However, the Legislature has determined that the preeminent consideration is
encouragement of settlement and has thus included indemnity as one of the remedies foreclosed in the event of a
good-faith settlement.
We also note that Nevada has not yet embraced a doctrine of implied partial indemnity.
ability of the joint tortfeasor
29
from whom contribution is sought as part of the settlement.
The substantive right to contribution is governed by a factual determination as to whether the
payment has exceeded the settling party's equitable share of the common liability.
30
A party
seeking to perfect contribution as part of a settlement is not required to obtain a formal ruling
that his settlement is in good faith. However, a tortfeasor seeking protection against claims of
contribution by nonsettling tortfeasors should obtain a formal ruling that its settlement is
made in good faith under NRS 17.245.
31

A tortfeasor seeking to perfect an implied indemnity claim via settlement is not required to
extinguish the liability of the indemnity defendant. This having been said, failure to
extinguish the liability of the indemnity defendant leaves the claim in some jeopardy, given
the possibility that the district court, as in this case, could approve a separate subsequent
settlement between the claimant and the potential indemnity defendant. Accordingly, a
settlement that extinguishes the liability of the indemnity plaintiff and the indemnity
defendant preempts the statutory protection provided under NRS 17.245 for an indemnity
defendant who attempts to settle with the underlying plaintiff at a later time. A tortfeasor
seeking to perfect an implied indemnity claim as part of a settlement is not required to obtain
a formal ruling that the settlement is in good faith unless he wishes protection from implied
indemnity claims against him. And a tortfeasor seeking a unilateral settlement and protection
against claims of implied indemnity by nonsettling tortfeasors should obtain a formal ruling
that its settlement is made in good faith under NRS 17.245.
Good-faith determinations are governed by a myriad of considerations as discussed in
MGM and Velsicol, including the liability permutations arising from the merits of the
contribution and indemnity claims. A settling defendant seeking protection from contribution
and implied indemnity claims has the burden of proving that the settlement was in good faith.
And we review good-faith determinations under NRS 17.245 under an abuse of discretion
standard.
____________________

29
A party seeking to perfect a contribution claim via settlement against a potential contribution defendant
whose name is unknown, may extinguish the potential contribution defendant's liability by naming the person or
entity or by fictitious name in the release and reserving the claim in the stipulation for dismissal.

30
A contribution defendant is liable only to the extent of its individual equitable share of the common
liability. See NRS 17.225(2).

31
By implication, NRS 17.245(1) provides a nonsettling defendant a form of contribution as to prior
settlements in good faith because such settlements under subsection 1(a) reduce the claims against nonsettling
tortfeasors by the amount of the settlement, i.e., through an equitable set-off.
dard.
32
We also reiterate our prior pronouncements that relief in contribution and implied
indemnity is unavailable to the extent those claims arise from the intentional or punitive
liability of the party seeking such relief.
33

In summary, we conclude that, under NRS 17.225(3), TDC's appellate claims concerning
the district court's good-faith ruling have been rendered moot to the extent that TDC sought to
preserve its contribution claim.
34
Thus, we affirm the good-faith order insofar as it relates to
TDC's separate contribution claim. However, because the district court apparently failed to
consider the good-faith issues with regard to TDC's efforts to preserve an implied indemnity
claim, we reverse in part and remand this matter for the district court to undertake a complete
analysis of the settlement, taking into consideration the MGM factors, the extent to which the
settlement may not have reflected liability for compensatory and punitive damages arising
from the claims of active fault, and whether the Vincent settlement was fair based upon the
considerable permutations of liability in connection with the substantive implied indemnity
claim.
____________
120 Nev. 658, 658 (2004) Durango Fire Protection v. Troncoso
DURANGO FIRE PROTECTION, INC., a Nevada Corporation, Appellant, v.
FERNANDO TRONCOSO, Respondent.
No. 39856
October 14, 2004 98 P.3d 691
Appeal from a district court order denying an NRCP 60(b) motion to set aside a judgment.
Eighth Judicial District Court, Clark County; Kathy A. Hardcastle, Judge.
Defendant brought motion to set aside judgment entered for plaintiff in action for breach
of contract. The district court denied the motion. Defendant appealed. The supreme court,
Rose, J., held that: (1) the judgment was not a default judgment, and thus, defendant was not
entitled to written notice before entry of judgment; and {2) defendant did not show
excusable neglect, as basis for relief from judgment.
____________________

32
We have not reached any issues concerning claims for contribution or indemnity lodged after entry of
judgment against the tortfeasors. We note in passing that, absent a settlement, payment of the entire judgment
preserves the right to pursue a contribution or implied indemnity claim.

33
See Evans, 116 Nev. 598, 5 P.3d 1043; Black & Decker, 105 Nev. 344, 775 P.2d 698; Piedmont Equip. Co.
v. Eberhard Mfg., 99 Nev. 523, 665 P.2d 256 (1983); Reid, 80 Nev. 137, 390 P.2d 45.

34
We stress that this conclusion has no bearing on whether the district court correctly decided the merits of
the good-faith issue with respect to TDC's attempts to perfect a contribution claim under NRS 17.225 to 17.305.
defendant was not entitled to written notice before entry of judgment; and (2) defendant did
not show excusable neglect, as basis for relief from judgment.
Affirmed.
Michael R. Pontoni, Henderson, for Appellant.
Amesbury & Schutt and John P. Parris, Las Vegas, for Respondent.
The appellate court generally will not address an issue raised for the first time on
appeal.
Trial court's entry of judgment for plaintiff, in action for breach of contract, after
striking defendant's answer was a sanction for defendant's failure to appear at several
hearings and calendar calls rather than a default judgment. Thus, civil procedure rule
requiring written notice before entry of default judgment was not applicable. NRCP
55(b)(2).
3. Judgment.
Although the district court may relieve a party from a final judgment due to
excusable neglect, the district court has wide discretion in determining what neglect is
excusable and what neglect is inexcusable. NRCP 60(b)(1).
Failure of defendant to show up at several hearings and calendar calls in action for
breach of contract did not constitute excusable neglect, and thus, defendant was not
entitled to relief from judgment entered for plaintiff as sanction for defendant's failure
to appear. Even if defendant's counsel was neglectful, defendant had independent notice
of calendar calls, and counsel specifically informed defendant he would be withdrawing
because of separate attorney-client relationship with defendant's estranged wife. NRCP
60(b)(1).
OPINION
Durango Fire Protection, Inc., appeals from a district court order denying its motion to set
aside a judgment arising out of a breach of contract action filed by Fernando Troncoso. After
no one had appeared on Durango's behalf at several hearings and calendar calls, the district
court granted Troncoso's oral motion to strike Durango's answer and entered judgment in
favor of Troncoso. On appeal, Durango contends that (1) because Durango did not receive
notice prior to judgment being entered in Troncoso's favor, as assertedly required by NRCP
55, the judgment is void; (2) neglect of Durango's counsel is reason for relief from judgment
under NRCP {b); and {3) several procedural errors warrant relief from judgment.
60(b); and (3) several procedural errors warrant relief from judgment. Because we conclude
that Durango's grounds for relief from judgment lack merit, we affirm.
In 1999, Fernando Troncoso filed a breach of contract action against Durango Fire
Protection, Inc., and its owner, Julian Montoya. In March 2000, Durango filed its answer to
the complaint.
On June 6, 2001, a discovery conference was held. According to the district court minutes,
Joann Montoya, Secretary-Treasurer of Durango, was present at the discovery conference and
was informed that Durango was required to file a case conference report with Troncoso's
signature before June 29, 2001, and that she needed to secure counsel for Durango to do this
or Durango's answer would be stricken. On July 20, 2001, Troncoso filed a motion to strike
Durango's answer for failure to comply with the discovery commissioner's recommendation.
However, the record shows that motion was denied.
In December 2001, Durango's counsel at the time, J.E. Ring Smith, moved to withdraw. In
early January 2002, the district court twice continued calendar calls because no representative
appeared on behalf of Durango. The district court advised Troncoso's counsel that if a
representative for Durango did not appear at the next calendar call, counsel could file an
appropriate motion. On January 22, 2002, calendar call was held, and no representative for
Durango appeared; therefore, the district court granted Troncoso's oral motion to strike
Durango's answer and entered judgment in favor of Troncoso.
According to the district court's minutes, Smith, Durango's counsel, appeared later and was
advised of the district court's ruling striking Durango's answer. At that time, the district court
granted Smith's motion to withdraw as counsel and instructed him to inform Durango of the
ruling striking its answer and to advise Durango to obtain a new attorney if it wished to go
forward.
On February 25, 2002, the district court entered an order granting Troncoso's oral motion
to strike Durango's answer, entering judgment in favor of Troncoso, and granting Smith's
motion to withdraw as counsel. On April 25, 2002, the district court filed a judgment in favor
of Troncoso in the amount of $15,000, plus $5,975.72 in attorney fees and costs.
On May 10, 2002, Durango filed a motion to set aside the default judgment pursuant to
NRCP 60(b). Durango argued that it was entitled to relief from judgment due to mistake,
fraud, and/or misrepresentation. In an affidavit attached to the motion, Julian Montoya
explained that he had no knowledge of the hearing in which Durango's answer was stricken.
Julian maintained that he and his wife Joann were in the midst of a divorce, and that Joann
was doing everything in her power to ruin him, including not informing him of Durango's
duties in this case.
was doing everything in her power to ruin him, including not informing him of Durango's
duties in this case. Further, Julian maintained that he had communicated with Smith about the
case. According to Julian, Smith told him that he could no longer represent Durango because
he had a separate attorney-client relationship with Joann, but said that he would complete
certain aspects of the case and get back to him. Julian claimed that Smith never got back to
him, and he was never informed that Smith had officially withdrawn. Additionally, Durango
argued that it was entitled to relief based on several procedural errors preceding the entry of
judgment in favor of Troncoso.
The district court found that Durango had ignored the case by failing to appear at several
calendar calls and hearings. The district court stated that it was not persuaded by Durango's
argument that counsel did not inform Julian about any of the calendar calls. Accordingly, the
district court denied Durango's motion to set aside the judgment.
DISCUSSION
On appeal, Durango argues that the district court should have granted relief from judgment
because: (1) the judgment is void, (2) Durango's counsel neglected the case, and (3) several
procedural errors provide grounds for relief.
[Headnotes 1, 2]
Durango argues that the district court's failure to comply with NRCP 55(b)(2) voids the
judgment, and as a result, the district court erred in not granting relief from the judgment. We
note that Durango did not raise this issue below, and we generally will not address an issue
raised for the first time on appeal.
1
However, we will address this issue in order to clarify
that the district court had the discretion to sanction Durango by entering judgment against it
without complying with the notice requirement in NRCP 55(b)(2).
NRCP 55(b)(2) states that a party entitled to a judgment by default shall apply to the
court therefor, and [i]f the party against whom judgment by default is sought has appeared
in the action, he (or, if appearing by representative, his representative) shall be served with
written notice of the application for judgment at least 3 days prior to the hearing on such
application. This court has stated: Written notice of application for default judgment must
be given if the defendant or representative has appeared in the action. The failure to serve
such notice voids the judgment.
2

____________________

1
See Britz v. Consolidated Casinos Corp., 87 Nev. 441, 447, 488 P.2d 911, 915 (1971) (A point not urged in
the trial court, unless it goes to the jurisdiction of that court, is deemed to have been waived and will not be
considered on appeal.).

2
Christy v. Carlisle, 94 Nev. 651, 654, 584 P.2d 687, 689 (1978).
There is no question that Durango made an appearance, given that it filed an answer to
Troncoso's complaint and appeared at the discovery conference. Also, it appears from the
record that Durango was not given written notice prior to the district court's decision to enter
judgment in Troncoso's favor. However, we conclude that written notice was not required, as
we are not convinced that the judgment entered in this case was a default judgment. Instead,
we interpret the district court's action in entering judgment in Troncoso's favor as a sanction
for Durango's continued failure to appear at scheduled proceedings. We have stated that the
district court has the discretion to sanction parties in such a manner.
3
We clarify that such a
sanction does not require that notice first be given pursuant to NRCP 55.
Upon review of the record, we conclude that the district court did not abuse its discretion
in entering judgment against Durango after striking its answer. Durango was on notice that it
was required to appear at several calendar calls and other hearings, yet failed to appear.
Although Julian argues that he did not actually receive notice of the various proceedings,
notice was mailed to his address and placed in Durango's counsel's file at the courthouse.
Because NRCP 55(b) was not implicated by the district court's actions taken to sanction
Durango, no prior notice was required and, thus, the judgment is not void.
[Headnote 3]
For the same reason, we conclude that the district court did not abuse its discretion in
denying Durango's motion for relief from judgment based on attorney neglect.
4
Although the
district court may relieve a party from a final judgment due to excusable neglect,
5
the district
court has wide discretion in determining what neglect is excusable and what neglect is
inexcusable.
6

[Headnote 4]
We note that in Staschel v. Weaver Brothers, Ltd.,
7
we held that attorney neglect
amounting to misconduct is not properly imputed to the client in determining whether a
default judgment should be set aside.
____________________

3
See Young v. Johnny Ribeiro Building, 106 Nev. 88, 92, 787 P.2d 777, 779 (1990) (cautioning litigants and
attorneys that district courts have inherent equitable powers, not specifically proscribed by statute, to dismiss an
action for litigation abuses).

4
Kahn v. Orme, 108 Nev. 510, 513, 835 P.2d 790, 792 (1992) (recognizing that the district court is afforded
broad discretion in ruling on motions for relief from judgment).

5
NRCP 60(b)(1).

6
Lowrance v. Lowrance, 87 Nev. 503, 506, 489 P.2d 676, 678 (1971).

7
98 Nev. 559, 655 P.2d 518 (1982).
set aside. Here, however, Julian received independent notice of the calendar calls. Also,
Smith specifically informed Julian that he would be withdrawing due to a conflict with
Julian's ex-wife. Finally, unlike the attorney in Staschel, there is no evidence in the record
that Smith affirmatively misrepresented the status of the case to Julian. We therefore
conclude that the district court did not abuse its discretion in concluding that Durango had not
established grounds to set aside the judgment.
As previously stated, no evidence supports Durango's claim that it lacked knowledge of
the scheduled hearings. Notice was mailed to Julian's address of record, and Durango's
counsel received notice in his file at the courthouse. Under NRCP 5(b) service by mail is
complete upon mailing. Thus, Durango received notice of the scheduled proceedings, and its
repeated failure to appear was inexcusable neglect.
Finally, Durango argues that several procedural errors justify relief from judgment. Having
considered this argument, we conclude it lacks merit.
CONCLUSION
The district court did not abuse its discretion in sanctioning Durango by striking its answer
and entering judgment in Troncoso's favor. We further conclude that when a district court
sanctions a party in this manner, the notice requirement of NRCP 55 is not implicated.
Accordingly, we affirm the district court's order denying Durango's motion to set aside the
judgment.
Douglas, J., concurs.
I concur in the result, noting that, in my view, Staschel v. Weaver Brothers, Ltd.
1
was
wrongly decided and should be overturned.
____________________

1
98 Nev. 559, 655 P.2d 518 (1982).
____________
120 Nev. 664, 664 (2004) Middleton v. Warden
DAVID STEPHEN MIDDLETON, Appellant, v. WARDEN,
NEVADA STATE PRISON, JOHN IGNACIO, Respondent.
No. 40497
October 14, 2004 98 P.3d 694
Appeal from a district court order denying a post-conviction petition for a writ of habeas
corpus. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
After affirmance of his murder convictions and death sentence, 114 Nev. 1089, 968 P.2d
296 (1998), petitioner sought writ of habeas corpus. The district court denied the petition.
Petitioner appealed. The supreme court held that removal of appointed post-conviction
counsel was warranted because counsel flagrantly and pervasively violated supreme court's
orders and procedural deadlines for submitting opening appellate brief, and the brief
ultimately submitted was wholly substandard and unacceptable.
Vacated and remanded with instructions.
Robert Bruce Lindsay, Reno, for Appellant.
Brian Sandoval, Attorney General, Carson City; Richard A. Gammick, District Attorney,
and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
The highest standards of competence and diligence are expected of appointed capital
defense counsel in all stages of the criminal proceedings. SCR 151, 153, 250.
2. Criminal Law.
When appointed capital defense counsel does not meet the highest standards of
competence and diligence, the supreme court must exercise its inherent authority to sua
sponte remove counsel from representing a capital defendant. SCR 39, 250.
3. Criminal Law.
Removal of capital defendant's appointed counsel was warranted, where counsel
flagrantly and pervasively violated supreme court's orders and procedural deadlines for
submitting opening appellate brief, the brief ultimately submitted was wholly
substandard and unacceptable because it was disorganized and often incoherent, and the
appendix omitted numerous documents and portions of the district court proceedings
that appeared to be critical to the appellate claims. SCR 39, 250.
OPINION
Per Curiam:
This is an appeal from a district court order denying a post-conviction petition for a writ of
habeas corpus. For the reasons stated below, we remove attorney Robert Bruce Lindsay as
appellant David Middleton's post-conviction counsel, vacate the district court order
denying Middleton's habeas corpus petition, and remand this appeal with instructions to
appoint new counsel to represent Middleton and reinitiate post-conviction proceedings in
the district court.
stated below, we remove attorney Robert Bruce Lindsay as appellant David Middleton's
post-conviction counsel, vacate the district court order denying Middleton's habeas corpus
petition, and remand this appeal with instructions to appoint new counsel to represent
Middleton and reinitiate post-conviction proceedings in the district court.
FACTS
Appellant David Middleton was convicted, pursuant to a jury verdict, of two counts of
first-degree murder, in addition to other crimes, for the deaths of Katherine Powell and
Thelma Davila and was sentenced to death. This court affirmed his conviction and death
sentences on direct appeal.
1

Middleton originally filed a post-conviction habeas corpus petition in the district court in
May 1999. About three months later, the district court appointed Washoe County Public
Defenders Mary Lou Wilson and John Calvert to represent him.
2
In May 2000 the district
court removed Wilson and Calvert as Middleton's counsel due to a perceived conflict of
interest.
3
The district court then appointed attorneys Robert Bruce Lindsay and Ian
Silverberg to represent Middleton; it later ordered the documents Middleton filed prior to the
appointment of counsel withdrawn and an amended petition to be filed. Although one year
and seven months had passed since their appointment, Lindsay and Silverberg informed the
district court during a hearing in December 2001 that they had not had enough time to work
on the petition. After several hearings and missed deadlines, in March 2002 Lindsay and
Silverberg filed a 305-page supplemental petition on Middleton's behalf.
At the outset of a two-day evidentiary hearing in June 2002, the district court summarily
dismissed most of the claims raised in the petition. In November 2002 the district court issued
a preliminary order denying Middleton relief on the remaining claims and in January 2003
issued a final order denying Middleton all relief. Lindsay then took on the sole representation
of Middleton on appeal to this court.
After six orders from this court directing Lindsay to file an overdue opening brief, he
finally submitted an 88-page opening brief on December 23, 2003. We then issued an order
on January 21, 2004, directing Lindsay to file an amended brief of not more than S0
pages.
____________________

1
See Middleton v. State, 114 Nev. 1089, 968 P.2d 296 (1998); see also Sheriff v. Middleton, 112 Nev. 956,
921 P.2d 282 (1996).

2
See NRS 34.820(1) (requiring the appointment of counsel for a capital defendant's first post-conviction
habeas corpus petition).

3
Because the Washoe County Public Defender represented Middleton in his direct appeal and because
post-conviction claims respecting that representation may again be presented below, the Washoe County Public
Defender should not be appointed as Middleton's new post-conviction counsel.
uary 21, 2004, directing Lindsay to file an amended brief of not more than 80 pages.
4
Our
order also noted that the submitted brief suggested that Lindsay may misapprehend this
court's rules and case law governing the content, form, and citation requirements of briefs and
appendices in post-conviction capital cases. Thus, to avoid further delay, we reviewed some
of the pertinent law. Among other things, we noted that Lindsay asserted in the brief that this
court's decision in State v. Haberstroh
5
had constrained him to limit the appendix. We
therefore specifically advised Lindsay that Haberstroh should not be read to deter
appendices containing relevant materials referenced in appellant's brief or that may be helpful
to this court's understanding of the nature of the case and issues presented. We explained:
In Haberstroh, the briefs did not contain a single citation to any page in 22 volumes of
the 52-volume appendix submitted in that case. Thus, a large portion of the lengthy
appendix in Haberstroh was never cited in the briefs and was wholly unnecessary to
this court's understanding or resolution of the appeal.
On February 10, 2004, Lindsay submitted an opening brief of exactly 80 pages, which was
filed the next day. This court later discovered that the amended opening brief was simply
the original submitted brief with the final eight pages excised.
DISCUSSION
This court places the highest priority on diligence in the discharge of professional
responsibility in capital cases.
6
Capital cases are distinguishable from other criminal cases
not only by the severity of sentence given to the defendant but also by the often-lengthy
proceedings and complex issues that such a sentence entails.
7
This court recognizes the
unique burdens placed upon defense counsel who represent capital defendants.
8
Yet such
counsel contribute vitality to this court's deliberative process and assist this court in ensuring
that capital cases receive a "just and expeditious final disposition.
____________________

4
See Hernandez v. State, 117 Nev. 463, 468, 24 P.3d 767, 770 (2001) (providing that an 80-page limit
provides a capital appellant with an ample and fair opportunity to obtain an adjudication on the merits); cf.
NRAP 28(g) (providing that the length of appellate briefs shall not exceed 30 pages without this court's
permission).

5
119 Nev. 173, 69 P.3d 676 (2003).

6
SCR 250(1).

7
See Gardner v. Florida, 430 U.S. 349, 357 (1977) (plurality opinion) (recognizing that death is a different
kind of punishment from any other).

8
See Young v. District Court, 107 Nev. 642, 644, 818 P.2d 844, 845 (1991) (recognizing the necessary
latitude defense counsel must have in representing criminal defendants, especially in capital cases).
court in ensuring that capital cases receive a just and expeditious final disposition.
9

[Headnotes 1, 2]
The highest standards of competence and diligence are expected of capital defense counsel
in all stages of the criminal proceedings.
10
When these standards are not met and the
interests of justice demand, this court must exercise its inherent authority to sua sponte
remove counsel from representing a capital defendant.
11
Unfortunately, such is the case here.
[Headnote 3]
Lindsay has repeatedly violated this court's orders and procedural deadlines. And despite
these violations and the generous amount of time afforded Lindsay within which to complete
and file his opening brief and appendix, the work product he ultimately submitted was wholly
substandard and unacceptable.
The rules governing the proper format for briefs and appendices filed before this court are
generally set forth in NRAP 28 through NRAP 32.
12
Flagrant and pervasive violation of
these rules will not be disregarded, especially when instances of such violations impair this
court's ability to meaningfully reach and dispose of the issues raised on appeal. Here,
Lindsay's opening brief and appendix constitute such an instance. His violations of the
relevant NRAP provisions in these submissions are of such a magnitude that they must be
addressed.
The opening brief submitted by Lindsay was disorganized and often incoherent.
Throughout the brief were multiple pages of single-spaced citation to case law with little or
no factual analysis or support.
13
Compounding these deficiencies were improper legal
citations, typographical errors, and arguments with no discernable beginning or end.
Most notable, however, was Lindsay's response to this court's January 21, 2004, order.
Despite this court's explicit directives, Lindsay maintained his incorrect reading of
Haberstroh and failed to include a complete and relevant statement of facts in his opening
brief.
____________________

9
See SCR 250(1).

10
See SCR 250; see also SCR 151 (A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the
representation.); SCR 153 (A lawyer shall act with reasonable diligence and promptness in representing a
client.).

11
See generally Young, 107 Nev. at 646-47, 818 P.2d at 846-47; SCR 39.

12
See SCR 250(7)(c).

13
See NRAP 32(a) (Except for quotations and footnotes, the lines [of a brief] shall be double-spaced.).
ing brief.
14
And no supporting citations to the multiple appendices were provided.
15
To
comply with the 80-page limit, Lindsay made no effort to amend the opening brief and chose
instead to tear out the final eight pages, abruptly ending the discussion of one issue and
completely omitting any discussion of four other issues listed in the brief's table of contents.
The 11-volume appendix filed by Lindsay was also inadequate. Lindsay failed to include
numerous documents and portions of the district court proceedings that appear essential to
addressing the claims he raised.
16
Other documents he included were incomplete, unsigned,
marked up with personal notes, or not stamped by the district court.
These multiple NRAP violations evince a clear disregard by Lindsay for this court, the
rules governing the practice of attorneys before it, and most important, the obligations
incumbent upon him as counsel for a client facing a death sentence. If Lindsay was physically
or mentally unable to diligently submit a competent work product, then it was his obligation
to withdraw as Middleton's counsel.
17
His failure to do so has now fatally impaired this
court's ability to achieve a meaningful disposition of Middleton's appeal and has eroded this
court's confidence in Lindsay's representation of Middleton in the proceedings before the
district court below.
SCR 250(2)(d) provides that counsel appointed to represent a capital defendant in a
post-conviction appeal must be capable and competent to represent the appellant. Lindsay's
performance in this appeal falls far short of this requirement, and we are therefore compelled
to sua sponte remove him as Middleton's post-conviction appellate counsel. We further
prohibit Lindsay from practicing before this court in any future cases without this court's
express prior authorization,
18
and we refer him to the State Bar of Nevada for disability or
disciplinary proceedings regarding his performance.
19

____________________

14
See NRAP 28(a)(3) (providing that a brief must contain a statement of the facts relevant to the issues
presented for review); see also Collins v. Murphy, 113 Nev. 1380, 1385, 951 P.2d 598, 601 (1997).

15
See NRAP 28(e) (Every assertion in briefs regarding matters in the record shall be supported by a
reference to the page of the transcript or appendix where the matter relied on is to be found.).

16
See NRAP 30(b)(3) (providing that an appellant's appendix must include portions of the record essential to
determination of issues raised on appeal); see also NRAP 30(b)(2).

17
See SCR 166(1)(b).

18
See SCR 99; see also NRAP 28A. Lindsay may continue as counsel for the appellants in two cases
presently pending before this court: White v. State, Docket No. 43223, and Fiel v. State, Docket No. 43709.

19
See SCR 104.
CONCLUSION
Middleton must be afforded his statutory right to litigate his post-conviction claims with
the assistance of competent and diligent counsel. Therefore, we remove Lindsay as counsel,
vacate the district court order denying Middleton's habeas corpus petition, and remand. We
instruct the district court to appoint new post-conviction counsel to represent Middleton. New
counsel shall review the prior petitions filed below and revise the pleadings as he or she sees
fit in a supplementary petition. The district court shall take appropriate, reasonable steps to
expedite the proceedings.
____________
120 Nev. 669, 669 (2004) Vest v. State
NOEL VEST, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 43065
October 14, 2004 98 P.3d 996
Motion to remand direct appeal to the district court. Eighth Judicial District Court, Clark
County; John S. McGroarty, Judge.
Defendant was convicted of burglary and other charges. Defendant appealed. While appeal
was pending, defendant filed a motion for a new trial based on newly discovered evidence.
The district court granted the motion. Defendant then filed motion with supreme court to
remand appeal, and State filed opposition. The supreme court held that district court had
statutory authority to grant motion for a new trial while direct appeal was pending.
Motion granted and appeal remanded.
Philip J. Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public Defender, Clark
County, for Appellant.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and
James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
District court had statutory jurisdiction to grant defendant's motion for a new trial on
criminal charges based on newly discovered evidence, despite that appeal from
conviction was pending. NRS 176.515.
120 Nev. 669, 670 (2004) Vest v. State
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
burglary, one count of obtaining and using personal identification information of another, one
count of fraudulent use of a credit or debit card, and eight counts of possession of a credit
card without the cardholder's consent. The district court entered the written judgment of
conviction on March 2, 2004. Appellant filed the notice of appeal on March 29, 2004.
On May 5, 2004, appellant filed a motion for a new trial in the district court based on
newly discovered evidence. The district court entered a written order granting the motion on
July 27, 2004. The State did not appeal from the district court's order.
Appellant filed a motion requesting this court to remand this appeal on September 7, 2004.
In the motion, appellant argues that the instant appeal is now moot in light of the district
court's order. On September 7, 2004, the State filed an opposition to appellant's motion.
Appellant then filed a motion for leave to file a reply to the State's response on September 10,
2004. Cause appearing, we grant that motion and direct the clerk of this court to file the reply
provisionally submitted on September 10, 2004.
The State contends that this appeal should not be remanded and that the district court's
order should be deemed a nullity. Specifically, the State argues that the district court lacked
jurisdiction to grant a motion for a new trial after the notice of appeal had been filed. The
State relies on this court's decision in Layton v. State.
1

In Layton, this court held that [t]he district court has no authority to grant a new trial once
the notice of appeal has been filed.
2
At the time Layton was decided in 1973, NRS
176.515(3) provided: A motion for a new trial based on the ground of newly discovered
evidence may be made only before or within two years after final judgment, but if an appeal
is pending the court may grant the motion only on remand of the case. (Emphasis added.)
However, in 1983, NRS 176.515(3) was amended and the emphasized language was
removed.
3
The statute now provides that [a] motion for a new trial based on the ground of
newly discovered evidence may be made only within 2 years after the verdict or finding of
guilt.
____________________

1
89 Nev. 252, 510 P.2d 864 (1973).

2
Id. at 254, 510 P.2d at 865.

3
1983 Nev. Stat., ch. 571, 2, at 1671.
120 Nev. 669, 671 (2004) Vest v. State
finding of guilt.
4
Based on the plain language of the statute as it presently reads, we
conclude that it is no longer necessary for this court to remand an appeal in order for the
district court to grant a post-judgment motion for a new trial based on newly discovered
evidence.
5

We conclude that the district court's order granting the motion in this case was a final,
independently appealable order.
6
As previously noted, the State did not appeal from the
district court's order granting appellant's motion for a new trial. Therefore, we agree with
appellant that this appeal is now moot. Accordingly, we grant appellant's motion, and we
remand this appeal to the district court for further proceedings.
7

____________
120 Nev. 671, 671 (2004) Maiola v. State
JAMES J. MAIOLA, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 39440
October 26, 2004 99 P.3d 227
Petition for rehearing in an appeal from a district court order denying a motion for return
of property under NRS 179.085. Eighth Judicial District Court, Clark County; Nancy M.
Saitta, Judge.
Drug suspect brought motion for return of property, under statute providing for return of
property to a person aggrieved by unlawful search and seizure in criminal case. The district
court denied the motion. Suspect appealed. The supreme court reversed and remanded. On
rehearing, the supreme court held that: (1) State did not exercise due diligence in attempting
to provide service of process to drug suspect as to civil forfeiture proceeding, and (2) the
district court in which a criminal proceeding was heard has equitable jurisdiction to hear a
motion for return of property after there has been a default judgment in a civil forfeiture
proceeding.
____________________

4
Id.

5
We note that, pursuant to NRAP 4(b)(1), [a] motion for a new trial based on . . . newly discovered evidence
will . . . extend the time for appeal from a judgment of conviction if the motion is made before or within thirty
(30) days after entry of the judgment. In the instant case, the motion did not extend the appeal period because it
was not filed within 30 days after the entry of the judgment of conviction.

6
See NRS 177.015(1)(b).

7
This decision constitutes this court's final decision in this appeal. Any future appeal following the new trial
below shall be docketed in this court as a separate proceeding.
Rehearing granted; reversed and remanded.
Philip J. Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public Defender, Clark
County, for Appellant.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, James
Tufteland, Chief Deputy District Attorney, and Marc P. DiGiacomo and Lawrence James
O'Neale, Deputy District Attorneys, Clark County, for Respondent.
1. Constitutional Law; Controlled Substances.
State did not exercise due diligence in attempting to provide service of process to
drug suspect as to civil forfeiture proceeding, and thus, providing notice by publication
did not satisfy due process. Apparently the same district attorney's office that was
prosecuting suspect in one court was alleging in forfeiture proceeding in another court
that it could not find suspect for service of process, and suspect was technically in
State's custody because he was out on bail. Const. art. 1, 8(5); U.S. Const. amend. 14.
The Due Process Clause requires notice and an opportunity to be heard before the
government deprives a person of his or her property. Const. art. 1, 8(5); U.S. Const.
amend. 14.
3. Forfeitures.
The district court in which a criminal proceeding was heard has equitable
jurisdiction to hear a motion for return of property, under statute providing for return of
property to a person aggrieved by unlawful search and seizure in criminal case, after
there has been a default judgment in a civil forfeiture proceeding. NRS 179.085.
4. Courts.
Ordinarily, one district court lacks jurisdiction to review the acts of other district
courts.
Per Curiam:
We previously issued an opinion in this matter on January 15, 2004. After respondent
petitioned for rehearing, we withdrew that opinion while we considered the petition for
rehearing. We now grant the petition for rehearing
1
and issue this opinion in place of our
prior opinion. On rehearing, we reach the same conclusion as in our prior opinion but for
different reasons.
The principal issue in this appeal is whether the district court in which a criminal
proceeding was heard has jurisdiction to hear a motion for return of property relating to that
criminal proceeding under NRS 179.0S5 after there has been a default judgment in a civil
forfeiture proceeding.
____________________

1
See NRAP 40.
under NRS 179.085 after there has been a default judgment in a civil forfeiture proceeding.
We conclude that it does.
FACTS
On February 10, 2000, appellant James Maiola was arrested and taken into custody by the
Las Vegas Metropolitan Police Department (LVMPD) after detectives conducted a search of
Maiola's residence at 6462 Placer pursuant to a search warrant. The State filed a criminal
complaint against Maiola for manufacturing or compounding a controlled substance,
trafficking in a controlled substance, and possession of a firearm as an ex-felon. At the time
of Maiola's initial arraignment, the district court appointed a public defender to represent
Maiola and set the preliminary hearing date for September 13, 2000.
On August 4, 2000, before Maiola's preliminary hearing, the district attorney filed a civil
complaint on LVMPD's behalf, seeking forfeiture of two of Maiola's assets. The complaint
stated that during a search of Maiola's person, the detectives located $543 in Maiola's pocket.
The detectives also found a firearm described as a .22 caliber AR-7 Explorer rifle in Maiola's
bedroom. Maiola admitted that he had purchased the firearm. The complaint alleged that the
$543 was subject to forfeiture under NRS 453.301(9)
2
and the firearm was subject to
forfeiture under NRS 453.301(10).
3
The complaint also alleged that the firearm was subject
to forfeiture under NRS 202.340 as a dangerous weapon that was in the possession of a
person charged with the commission of a public offense.
On August 11, 2000, having failed to personally serve process on Maiola, the district
attorney filed an affidavit of publication for forfeiture action. The affidavit of publication
included an affidavit of due diligence by William Friedlander, an investigator for the Clark
County District Attorney's Office.
Friedlander verified that after learning that Maiola was no longer in custody, he attempted
to locate Maiola in order to serve him with a summons and complaint for forfeiture. Maiola,
however, was no longer living at 6462 Placer, and the Department of Motor Vehicles listed
3S00 El Conlon as Maiola's address.
____________________

2
NRS 453.301(9) provides that [e]verything of value furnished or intended to be furnished in exchange for a
controlled substance is property subject to forfeiture. NRS 453.301(9) also provides:
If an amount of cash which exceeds $300 is found in the possession of a person who is arrested for a
violation of NRS 453.337 or 453.338, then there is a rebuttable presumption that the cash is traceable to
an exchange for a controlled substance and is subject to forfeiture pursuant to this subsection.

3
NRS 453.301(10) provides that [a]ll firearms . . . in . . . possession of a person who possesses or is
consuming, manufacturing, transporting, selling or under the influence of any controlled substance in violation
of the provisions of NRS 453.011 to 453.552 are subject to forfeiture.
ever, was no longer living at 6462 Placer, and the Department of Motor Vehicles listed 3800
El Conlon as Maiola's address. Friedlander visited that address, but no one answered when he
knocked on the door. Friedlander left two notices at that residence, one on the windshield of a
newly registered car parked in the driveway, and mailed two notices to that address.
Based on Friedlander's affidavit, the district court filed an order for publication on August
11, 2000. From August 17 to September 14, 2000, notice of forfeiture proceedings was
published in the Nevada Legal News pursuant to the district court's order for publication. On
September 13, 2000, while the notice of the forfeiture proceeding was being published in the
Nevada Legal News, Maiola, his counsel and a deputy district attorney were present in court
at the preliminary hearing on the criminal charges.
On October 6, 2000, the district court clerk entered a default against Maiola in the
forfeiture proceeding. On October 13, 2000, the district attorney's office filed a motion for
judgment by default, and on October 17, 2000, a judgment by default against Maiola's assets
of $543 and the AR-7 Explorer .22 caliber rifle was entered.
In the criminal proceedings, Maiola filed a motion to suppress all evidence recovered as a
result of an unlawful search. The district court filed an order granting that motion on
November 1, 2001. On February 2, 2002, the State stipulated to dismiss the criminal case
against Maiola. The district court ordered that the money be returned to Maiola if a forfeiture
action had not been commenced.
On February 12, 2002, Maiola filed a motion for return of property, specifically the $543,
in the court that heard the motion to suppress, pursuant to the provisions of NRS 179.085.
The district court heard the motion and concluded that because the forfeiture action had
already been completed, it had no basis to consider Maiola's motion for return of property.
The district court entered an order denying Maiola's motion for return of property on March 5,
2002. Maiola filed a timely notice of appeal.
DISCUSSION
[Headnote 1]
Maiola alleges that his due process rights have been violated because the State did not
exercise due diligence in notifying him of the forfeiture proceeding. We agree.
[Headnote 2]
The United States Constitution provides that [n]o State shall . . . deprive any person of . .
. property, without due process of law.
4
The Nevada Constitution also provides that [n]o
person shall be deprived of .
____________________

4
U.S. Const. amend. XIV, 1.
be deprived of . . . property, without due process of law.
5
The Due Process Clause requires
notice and an opportunity to be heard before the government deprives a person of his or her
property.
6

In Price v. Dunn, this court noted that the Due Process Clause requires a party to exercise
due diligence in notifying a defendant of a pending action.
7
Where other reasonable
methods exist for locating the whereabouts of a defendant, plaintiff should exercise those
methods.
8
In this case, it appears that the same district attorney's office that was prosecuting
Maiola in one court was alleging in another court that it could not find him for service of
process. Meanwhile, even though Maiola was not in jail, he was still technically in the State's
custody, as he was out on bail.
9
He had a time and date at which he was to appear in court,
and he did appear at that time and date, as did a deputy district attorney. One section of the
district attorney's office cannot ignore information available in another section and claim not
to be able to locate a defendant.
Furthermore, in Jacobs v. Sheriff, this court stated in a case involving a default judgment
in an in rem forfeiture proceeding:
We note that SCR 175 provides that [w]hen a lawyer knows the identity 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.
10

We conclude that the State did not exercise due diligence in attempting to locate Maiola, and
therefore, publishing notice of the forfeiture proceeding was constitutionally inadequate. A
default forfeiture judgment that is not supported by proper service is void.
11

____________________

5
Nev. Const. art. 1, 8(5).

6
Levingston v. Washoe Co., 112 Nev. 479, 484, 916 P.2d 163, 166 (1996), modified on rehearing, 114 Nev.
306, 956 P.2d 84 (1998).

7
106 Nev. 100, 103, 787 P.2d 785, 787 (1990).

8
Id.

9
Woolsey v. State, 111 Nev. 1440, 1443, 906 P.2d 723, 726 (1995) (quoting with approval district court's
statements that an accused person held for prosecution is in lawful custody and that [a]dmission to bail does
not end that custody, but only changes its conditions).

10
108 Nev. 726, 727, 837 P.2d 436, 437 (1992).

11
Browning v. Dixon, 114 Nev. 213, 218, 954 P.2d 741, 744 (1998).
[Headnote 3]
The State argues that the criminal court, which dismissed the case against Maiola after
granting his motion to suppress the evidence and determining that the property had been
illegally seized, has no jurisdiction to rule on any issues relating to the civil forfeiture of
property seized in the same illegal seizure. The State argues that the only proper procedure for
Maiola to follow is to file a motion to set aside the default judgment under NRCP 60(b) in the
forfeiture action. NRCP 60(b) does provide for that remedy, as well as for the remedy of
filing an independent action to relieve a party from a judgment.
12
Those remedies are
certainly theoretically available. However, in this case, as in many forfeiture actions, NRCP
60(b) does not offer a remedy that is, as a practical matter, economically feasible. The cost of
hiring an attorney to file the motion or an independent action under NRCP 60(b) is often
more than the value of the property to be recovered. Allowing the court that determined that
the property was illegally seized to decide whether the property should be returned to the
defendant provides the defendant with an equitable and economically feasible remedy.
[Headnote 4]
Ordinarily, one district court lacks jurisdiction to review the acts of other district courts.
13
However, in the unique situation of forfeitures, when the same district attorney's office is
proceeding on both the criminal case and the forfeiture proceeding, the court can exercise its
jurisdiction by exercising its inherent authority over those who are the officers of the court.
The federal courts have called this anomalous jurisdiction.
14

In Hunsucker v. Phinney, the United States Court of Appeals for the Fifth Circuit
explained it as follows:
The classic statement of the theory is that contained in Judge Hough's opinion in
United States v. Maresca, 266 F. 713, 717 (S.D.N.Y. 1920):
Whenever an officer of the court has in his possession or under his control
books or papers, or (by parity of reasoning) any other articles in which the court
has official interest, and of which any person (whether party to a pending
litigation or not) has been unlawfully deprived, that person may petition the
court for restitution.
____________________

12
NRCP 60(b) provides in relevant 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 proceeding for the following reasons: . . . (3) the
judgment is void . . . . This rule does not limit the power of a court to entertain an independent action to relieve a
party from a judgment, order, or proceeding . . . .

13
Rohlfing v. District Court, 106 Nev. 902, 906, 803 P.2d 659, 662 (1990).

14
Hunsucker v. Phinney, 497 F.2d 29, 32 (5th Cir. 1974).
that person may petition the court for restitution. This I take to be an elementary
principle, depending upon the inherent disciplinary power of any court of record.
Attorneys are officers of the court, and the United States attorney does not by
taking office escape from this species of professional discipline. Thus power to
entertain this motion depends on the fact that the party proceeded against is an
attorney, not that he is an official known as the United States attorney. It is
further true that the right to move does not at all depend on the existence of this
indictment; it might be made, were no prosecution pending.
15

The federal courts have said of anomalous jurisdiction, [t]hough firmly established, this
jurisdiction is an exceptional one.
16
It has been used for returning property to owners after
administrative forfeitures by the government. Although the forfeiture in Maiola's case is a
judicial forfeiture instead of an administrative forfeiture, the same equitable principle applies
to warrant equitable jurisdiction. The district courts also have the inherent authority over
those who are its officers, including the deputy district attorneys. The same district attorney's
office that attempted to prosecute Maiola on the basis of illegally seized evidence and
prosecuted an action to forfeit the illegally seized property has the power and duty to see that
the illegally seized property is returned to its owner. The criminal court, which determined
that the property was illegally seized, has the equitable jurisdiction to return the property to
the owner through its authority over the district attorneys. Requiring the owner of illegally
seized property to file motions or independent actions is often not an adequate remedy, and
the Legislature has made it clear in NRS 179.085 that property illegally seized should be
returned to its owner.
NRS 179.085 provides, in pertinent part:
1. A person aggrieved by an unlawful search and seizure may move the court having
jurisdiction where the property was seized for the return of the property and to suppress
for use as evidence anything so obtained on the ground that:
(a) The property was illegally seized without warrant;
(b) The warrant is insufficient on its face;
(c) There was not probable cause for believing the existence of the grounds on which
the warrant was issued; or
(d) The warrant was illegally executed.
The judge shall receive evidence on any issue of fact necessary to the decision of the
motion.
____________________

15
Id. at 32 n.3.

16
Id. at 32.
2. If the motion is granted the property shall be restored unless otherwise subject to
lawful detention and it shall not be admissible evidence at any hearing or trial.
NRS 179.085(1) strongly suggests that the Legislature also intended to provide an
expeditious method for return of this property by motion. NRS 179.085(1) implies that the
same court that has the jurisdiction to suppress the evidence also has jurisdiction to return the
property, since it equates the court that suppresses evidence with the court that returns
property.
The State also argues that civil procedures in rem are entirely independent of criminal
prosecution and are not constitutionally barred even if no person is ever charged with a crime.
That may be so, but neither can the State benefit by taking property through illegal seizure.
17
Furthermore, this court has stated: Evidence illegally obtained in contravention of the Fourth
and Fourteenth Amendments of the United States Constitution is excluded in forfeiture
proceedings as well as in criminal prosecutions.
18

CONCLUSION
The district court that determines that property is illegally seized has equitable jurisdiction
to determine whether the forfeited property should be returned to its owner. We therefore
reverse the district court's order and remand this matter to the district court for further
proceedings consistent with this opinion.
____________
120 Nev. 678, 678 (2004) United Nat'l Ins. Co. v. Frontier Ins. Co.
UNITED NATIONAL INSURANCE COMPANY, and ASSICURAZIONI GENERALI
S.P.A., Appellants, v. FRONTIER INSURANCE COMPANY, INC., and URIAH
ENTERPRISES, INC., Respondents.
No. 36888
November 10, 2004 99 P.3d 1153
Appeal from summary judgment regarding when an insurance company owes duties to
defend and indemnify an insured under a comprehensive general liability insurance policy.
Eighth Judicial District Court, Clark County; James A. Brennan, Senior Judge.
Insured subcontractor and liability insurer brought subrogation action against prior liability
insurers to recover the cost of defending and settling lawsuits arising out of collapse of sign
erected during period of prior policy.
____________________

17
NRS 179.085; Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965).

18
One 1970 Chevrolet v. County of Nye, 90 Nev. 31, 33, 518 P.2d 38, 39 (1974).
ing period of prior policy. The district court entered summary judgment in favor of plaintiffs.
Prior insurers appealed. The supreme court, Gibbons, J., held that: (1) tangible, physical
injury must occur during policy period for coverage to be triggered; and (2) insured's
allegedly negligent welding of support structure for sign and modifications of bolts were not
property damage during policy period.
Georgeson Thompson & Angaran, Chtd., and Jack G. Angaran, Reno, for Appellants.
Dickerson, Dickerson, Consul & Pocker and Richard J. Pocker, Las Vegas, for
Respondents.
An appeal from an order granting a motion for summary judgment is reviewed de
novo.
2. Judgment.
Summary judgment is appropriate when a case presents no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. NRCP 56(c).
3. Judgment.
Evidence presented in support of a motion for summary judgment must be construed
in a light most favorable to the nonmoving party.
4. Judgment.
The nonmoving party is entitled to have the evidence and all reasonable inferences
accepted as true when a court rules on a summary judgment motion.
5. Judgment.
In response to a motion for summary judgment, the nonmoving party may not rest
upon mere general allegations to defend its position; rather, the nonmoving party must
set forth specific facts demonstrating that the case presents genuine issues of material
fact warranting a trial. NRCP 56(e).
6. Insurance.
Since an insurance policy is a contract of adhesion, its language is broadly
interpreted in order to afford the greatest possible coverage to the insured.
7. Insurance.
An insurance policy may restrict coverage only if the policy's language clearly and
distinctly communicates to the insured the nature of the limitation.
8. Insurance.
Any ambiguity or uncertainty in an insurance policy must be construed against the
insurer and in favor of the insured.
9. Insurance.
The language of an insurance policy will be given its plain and ordinary meaning
from the viewpoint of one not trained in law, meaning that courts will not rewrite
contract provisions that are otherwise unambiguous or increase an obligation to the
insured where such was intentionally and unambiguously limited by the parties.
or increase an obligation to the insured where such was intentionally and
unambiguously limited by the parties.
10. Insurance.
The question of whether an insurance policy is ambiguous turns on whether it
creates reasonable expectations of coverage as drafted.
11. Insurance.
Tangible, physical injury must occur during the period of comprehensive general
liability (CGL) policy for coverage to be triggered under either prong of definition of
property damage as physical injury to or destruction of tangible property which
occurs during the policy period or loss of use of tangible property, if such loss of use is
caused by an occurrence during the policy period.
12. Insurance.
The duty to indemnify arises when an insured becomes legally obligated to pay
damages in the underlying action that gives rise to a claim under the policy.
13. Insurance.
For a liability insurer to be obligated to indemnify an insured, the insured's activity
and the resulting loss or damage must actually fall within the policy's coverage.
14. Insurance.
The liability insurer's duty to defend is broader than the duty to indemnify.
15. Insurance.
There is no duty to defend where there is no potential for liability coverage.
16. Insurance.
A liability insurer owes a duty to defend its insured whenever it ascertains facts that
give rise to the potential of liability under the policy.
17. Insurance.
Once the duty to defend arises, this duty continues throughout the course of the
litigation.
18. Insurance.
If there is any doubt about whether the duty to defend arises, this doubt must be
resolved in favor of the insured.
19. Insurance.
The liability insurer's duty to defend is not absolute. A potential for coverage only
exists when there is arguable or possible coverage.
20. Insurance.
Determining whether a liability insurer owes a duty to defend is achieved by
comparing the allegations of the complaint with the terms of the policy.
21. Insurance.
Subcontractor's allegedly negligent welding of support structure for sign and
modifications of bolts were not property damage during period of subcontractor's
comprehensive general liability (CGL) policy, and, thus, it provided no coverage for
subcontractor's liability for collapse of sign after expiration of policy. The allegedly
improper welding and general negligent acts were intangible, economic injuries and not
the type of physical, tangible injury or destruction to property that a reasonable person
would contemplate as covered.
OPINION
This case arises out of the collapse of the Las Vegas Hilton marquee sign on July 18, 1994.
The district court granted summary judgment against appellants United National Insurance
Company and Assicurazioni Generali S.P.A., holding that they owed defense and settlement
expenses to respondents Frontier Insurance Company, Inc., and Uriah Enterprises, Inc. On
appeal, we are asked to determine when the duty to defend and the duty to indemnify an
insured arise under a comprehensive general liability (CGL) insurance policy covering
occurrences during a policy period. To resolve these issues, we must analyze the meaning
of the word occurrence and the phrase property damage, as defined by the policy.
We conclude that the plain meaning of the language in the CGL insurance policy is
unambiguous. The meaning of the word occurrence and the phrase property damage, read
together, require that a tangible, physical injury occur during the policy period in order to
trigger coverage under an occurrence policy. We also conclude that the duty to defend
arises when there is a potential for coverage based on the allegations in a complaint and the
duty to indemnify arises when there is actual coverage under an insurance policy. Since the
allegations in the complaints against Uriah do not allege that a tangible, physical injury
occurred to the sign during the United and Generali CGL insurance policy period and no
other evidence suggested that the sign sustained any such injury during the policy period, we
conclude that there was both no potential for coverage and no actual coverage under the CGL
insurance policy. We therefore conclude that United and Generali owed no duty either to
defend or indemnify Uriah from lawsuits arising from the sign's collapse.
FACTS
On September 8, 1993, John Renton Young Lighting and Sign Company contracted with
the Las Vegas Hilton Corporation to erect a 362-foot-tall marquee sign on the hotel's
property. The following day, Young Sign Company subcontracted with Uriah to erect
prefabricated steel support components for the sign. At the time, Uriah was insured under a
CGL insurance policy issued by United and Generali, which provided:
The Underwriters will pay on behalf of the Assured all sums which the Assured shall
become legally obligated to pay as damages because of:
A. Bodily Injury or
B. Property Damage
to which this insurance applies, caused by an occurrence, and the Underwriter shall
have the right and duty to defend any suit against the Assured seeking damages on
account of such bodily injury or property damage, even if any of the allegations of the
suit are groundless, false or fraudulent, and may make such investigation and settlement
of any claim or suit as it deems expedient . . . .
(Emphasis added.)
The CGL insurance agreement provided coverage from April 29, 1993, through April 29,
1994. During this time, Uriah paid $40,500 in insurance premiums to United and Generali
and erected the structural steel for the sign, which was completed by December 1993.
On April 29, 1994, the CGL insurance policy issued by United and Generali expired. On
that date, Uriah obtained a new CGL insurance policy from Frontier. About three months
later, on July 18, 1994, the sign collapsed during a violent windstorm.
As a result of the collapse, lawsuits were filed against Uriah. On April 20, 1995, Fireman's
Fund Insurance Company, which was an insurer of Young Sign Company, filed a complaint
naming Uriah as a defendant and alleging negligence in the erection of the sign, as well as
breach of contract and breach of implied warranty. Specifically, Fireman's Fund alleged that
Uriah negligently, carelessly, and improperly modified and welded connections for the sign's
support structure, which resulted in the sign's collapse. On March 8, 1996, Hilton also filed a
complaint naming Uriah as a defendant and alleging negligence, breach of contract, and
breach of implied warranty. Uriah asked both United and Generali to defend and indemnify
Uriah through their designated representative, All American Adjusters/Adjusters Corporation
of America, in March 1995. However, United and Generali did not formally respond to this
request until February 1998, nearly four years after the sign's collapse. They refused to cover
or defend Uriah because the collapse occurred after the expiration of the policy period.
1

Meanwhile, Frontier defended and indemnified Uriah. Eventually, Frontier settled the
lawsuits brought against Uriah by Fireman's Fund and Hilton for $250,000. The costs of
investigating, defending, and settling the lawsuits totaled $696,667.35.
On May 15, 1998, Frontier and Uriah filed an insurance subrogation action against United
and Generali for indemnification of defense and settlement expenses. Both sides moved for
summary judgment.
____________________

1
The parties have not litigated waiver issues in this appeal.
judgment. Frontier and Uriah contended that the complaints' allegations of negligence against
Uriah were broad enough to encompass an occurrence of property damage, as defined by
the CGL insurance policy, triggering United and Generali's duty to defend and indemnify
Uriah. In response, United and Generali contended that the property damage resulting from
the sign's collapse occurred after the CGL insurance policy expired and, therefore, they were
under no obligation to defend or indemnify Uriah.
The district court determined that the CGL policy's language was ambiguous and should
be construed against United and Generali. The district court granted partial summary
judgment in favor of Frontier and Uriah, holding that United and Generali breached a duty to
defend in the lawsuits. Approximately one year later, Frontier and Uriah moved for summary
judgment again, and the district court entered a final judgment in their favor. Frontier and
Uriah were awarded $431,070.95 in damages for defense and settlement expenses arising
from this unfortunate event.
DISCUSSION
[Headnotes 1-5]
An appeal from an order granting a motion for summary judgment is reviewed de novo.
2
Summary judgment is appropriate when a case presents no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.
3
Evidence presented in support
of a motion for summary judgment must be construed in a light most favorable to the
nonmoving party.
4
[T]he nonmoving party is entitled to have the evidence and all
reasonable inferences accepted as true.'
5
In response to a motion for summary judgment,
the nonmoving party may not rest upon mere general allegations to defend its position.
6
Rather, the nonmoving party must set forth specific facts demonstrating that the case presents
genuine issues of material fact warranting a trial.
7

Here, since neither party argues that this case raises an issue involving a disputed material
fact, the only issue we must address is whether the district court properly held that Frontier
and Uriah were entitled to judgment.
____________________

2
Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 110, 825 P.2d 588, 591 (1992).

3
NRCP 56(c).

4
Dermody v. City of Reno, 113 Nev. 207, 210, 931 P.2d 1354, 1357 (1997).

5
Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 1222, 925 P.2d 1175, 1179 (1996) (quoting Wiltsie
v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989)).

6
NRCP 56(e).

7
Id.
were entitled to judgment. Therefore, we must analyze whether United and Generali had a
duty to defend or a duty to indemnify Uriah under the CGL insurance policy. Since insurers
have separate duties to defend and indemnify an insured,
8
each will be discussed separately.
However, before we reach these issues, we must first turn to the policy's language and the law
of contracts.
Language of the CGL insurance policy
[Headnotes 6-10]
We have previously held that [a]n insurance policy is a contract of adhesion.
9
Accordingly, the language of an insurance policy is broadly interpreted in order to afford the
greatest possible coverage to the insured.
10
An insurance policy may restrict coverage only
if the policy's language clearly and distinctly communicates to the insured the nature of the
limitation.
11
It follows that any ambiguity or uncertainty in an insurance policy must be
construed against the insurer and in favor of the insured.
12
However, we have also stated
that the language of an insurance policy will be given its plain and ordinary meaning from
the viewpoint of one not trained in law,
13
meaning, we will not rewrite contract provisions
that are otherwise unambiguous . . . [or] increase an obligation to the insured where such was
intentionally and unambiguously limited by the parties.
14
The question of whether an
insurance policy is ambiguous turns on whether it creates reasonable expectations of coverage
as drafted.
15

In the instant case, the CGL insurance policy provides that [t]he Underwriters will pay on
behalf of the Assured all sums which the Assured shall become legally obligated to pay as
damages because of . . . property damage . . . caused by an occurrence during the policy
period. The parties agree that there must be both an occurrence and property damage
during the policy period for coverage to be effective; however, the parties disagree on when
the occurrence must take place and what constitutes property damage.
____________________

8
CHI of Alaska v. Employers Reinsurance, 844 P.2d 1113, 1115 (Alaska 1993).

9
Farmers Insurance Group v. Stonik, 110 Nev. 64, 67, 867 P.2d 389, 391 (1994).

10
Id.

11
Vitale v. Jefferson Ins. Co., 116 Nev. 590, 594, 5 P.3d 1054, 1057 (2000).

12
Id.

13
Id.

14
Farmers, 110 Nev. at 67, 867 P.2d at 391.

15
Bidart v. American Title, 103 Nev. 175, 178, 734 P.2d 732, 734 (1987).
Occurrence
[Headnote 11]
The word occurrence is defined in the CGL insurance policy as an accident, including
continuous or repeated exposure to conditions, which results in . . . property damage.
Although we have held that a similar insuring clause contained broad language,
16
this
definition is also unambiguous. An ordinary, reasonable person would understand that an
occurrence under the policy is an accident or exposure to conditions that results in property
damage. However, since the definition of the word occurrence includes the phrase
property damage, we must read the two definitions together.
Property damage
The phrase property damage is defined in the CGL insurance policy as follows:
(1) physical injury to or destruction of tangible property which occurs during the policy
period, including the loss of use thereof at any time resulting therefrom, or (2) loss of
use of tangible property which has not been physically injured or destroyed provided
such loss of use is caused by an occurrence during the policy period.
The first prong of the definition applies to physical injury to tangible property which
occurs during the policy period, including the loss of use of tangible property at any time
resulting therefrom. The second prong of the definition applies to the loss of use of tangible
property which has not been physically injured or destroyed, provided such loss of use is
caused by an accident which results in property damage during the policy period. Therefore,
under both prongs of the definition of the phrase property damage, we conclude that
tangible, physical injury to property must occur during the policy period in order for coverage
to be triggered.
In sum, reading the word occurrence and the phrase property damage together, we
conclude that the policy language is unambiguous and requires that tangible, physical injury
must occur during the CGL policy period for coverage to be triggered under either prong of
the definition. This interpretation is supported by decisions in a number of other jurisdictions
that have similarly interpreted identical CGL insurance policies.
17
Having established the
scope of coverage under the policy, we must address the issues of whether United and
Generali had a duty to defend or a duty to indemnify Uriah.
____________________

16
See Vitale, 116 Nev. at 595, 5 P.3d at 1057.

17
See, e.g., Millers Mut. Fire Ins., Etc. v. Ed Bailey, 647 P.2d 1249, 1250-52 (Idaho 1982); Traveler's Ins.
Co. v. C.J. Gayfer's, 366 So. 2d 1199, 1201-02 (Fla. Ct. App. 1979).
scope of coverage under the policy, we must address the issues of whether United and
Generali had a duty to defend or a duty to indemnify Uriah. We will first discuss the duty to
indemnify.
Duty to indemnify
[Headnotes 12, 13]
The duty to indemnify arises when an insured becomes legally obligated to pay damages
in the underlying action that gives rise to a claim under the policy.
18
In other words, for an
insurer to be obligated to indemnify an insured, the insured's activity and the resulting loss
or damage [must] actually fall within the CGL policy's coverage.
19

The record in this case does not reveal whether the district court made an express holding
regarding the duty to indemnify. However, United and Generali argue that the district court's
ruling effectively held that they owed a duty to indemnify Uriah for settlement expenses in
the lawsuits arising from the sign's collapse. Frontier and Uriah have failed to address the
issue of indemnification before this court.
Frontier and Uriah have produced no evidence that the sign experienced tangible, physical
injury during the CGL insurance policy period from April 29, 1993, through April 29, 1994.
Rather, Uriah's own safety officer stated that after inspecting the collapsed sign, he could not
find anything that [Uriah] . . . did that went wrong.
The record reflects that the only tangible, physical injury or loss of use of the sign occurred
when it collapsed on July 18, 1994. We have previously stated that [t]he right to
indemnification for litigation expenses should not depend on the pleading choices of a third
party, who through an excess of caution or optimism may allege far more than he can prove at
trial.
20
Accordingly, we conclude that there was no actual coverage under the CGL
insurance policy and, therefore, United and Generali have no duty to indemnify either
Frontier or Uriah for the settlements reached with Fireman's Fund Insurance Company or the
Las Vegas Hilton Corporation.
Duty to defend
[Headnotes 14-18]
The duty to defend is broader than the duty to indemnify.
21
There is no duty to defend
[w]here there is no potential for coverage.
22

____________________

18
Zurich Ins. Co. v. Raymark Industries, 514 N.E.2d 150, 163 (Ill. 1987).

19
Outboard Marine v. Liberty Mut. Ins., 607 N.E.2d 1204, 1221 (Ill. 1992).

20
Piedmont Equip. Co. v. Eberhard Mfg., 99 Nev. 523, 528, 665 P.2d 256, 259 (1983).

21
Horace Mann Ins. Co. v. Barbara B., 846 P.2d 792, 795 (Cal. 1993).

22
Bidart, 103 Nev. at 179, 734 P.2d at 734 (emphasis added).
In other words, [a]n insurer . . . bears a duty to defend its insured whenever it ascertains facts
which give rise to the potential of liability under the policy.
23
Once the duty to defend
arises, this duty continues throughout the course of the litigation.
24
If there is any doubt
about whether the duty to defend arises, this doubt must be resolved in favor of the insured.
25
The purpose behind construing the duty to defend so broadly is to prevent an insurer from
evading its obligation to provide a defense for an insured without at least investigating the
facts behind a complaint.
26

[Headnotes 19, 20]
However, the duty to defend is not absolute.
27
A potential for coverage only exists
when there is arguable or possible coverage.
28
Determining whether an insurer owes a duty
to defend is achieved by comparing the allegations of the complaint with the terms of the
policy.
29

United and Generali argue that they owed no duty to defend Uriah in the sign-collapse
lawsuits because the complaints did not allege that property damage occurred during the
policy period for which they insured Uriah. In response, Frontier and Uriah argue that
allegations of negligence, breach of contract, and breach of implied warranty in the
complaints filed by Fireman's Fund and Hilton against Uriah created a potential for coverage
under the CGL insurance policy and, therefore, United and Generali owed a duty to defend
Uriah in those lawsuits.
The CGL insurance policy expressly provides that United and Generali had a duty to
defend Uriah against any suit, even if any of the allegations of the suit are groundless, false,
or fraudulent, and may make such investigation and settlement of any claim or suit as it
deems expedient. After the collapse of the sign, two complaints were filed naming Uriah as
a defendant.
[Headnote 21]
Fireman's Fund filed a complaint alleging, among other things, that [p]rior to and on July
18, 1994 . . . [Uriah] owed a duty . . . to exercise due care and caution in the erection of the
sign so as to avoid harming or damaging .
____________________

23
Gray v. Zurich Insurance Company, 419 P.2d 168, 177 (Cal. 1966).

24
Home Sav. Ass'n v. Aetna Cas. & Surety, 109 Nev. 558, 565, 854 P.2d 851, 855 (1993).

25
Aetna Cas. & Sur. Co. v. Centennial Ins. Co., 838 F.2d 346, 350 (9th Cir. 1988).

26
See Helca Min. Co. v. New Hampshire Ins. Co., 811 P.2d 1083, 1090 (Colo. 1991).

27
Aetna Cas. & Sur. Co., 838 F.2d at 350.

28
See Morton by Morton v. Safeco Ins. Co., 905 F.2d 1208, 1212 (9th Cir. 1990).

29
See Helca, 811 P.2d at 1089-90.
as to avoid harming or damaging . . . property. Specifically, Fireman's Fund alleged that
Uriah negligently, carelessly, and improperly modified and welded the connections for the
sign's support structure and [t]hat on July 18, 1994, the support structure for the sign
suddenly, violently and calamitously collapsed causing destruction and damage to property.
Hilton also filed a complaint containing similar allegations against Uriah. Therefore, the
question we must answer is this: Do allegations of general negligence or negligent welding
constitute an allegation of an occurrence of property damage sufficient to create a potential
for coverage under the CGL insurance policy?
In Millers Mutual Fire Insurance v. Ed Bailey, the Supreme Court of Idaho considered
whether a CGL insurance policy, with language identical to the one at hand, extended
coverage to foam insulation installed during the policy period that caught fire after the policy
expired.
30
In reading the language of the policy, the court stated that [t]his policy . . .
contains nothing which suggests that the parties intended the word accident' . . . to extend to
accidents in which the act complained of occurred within the policy period but the damages
did not occur until after the policy had lapsed.
31
The court reasoned, To stretch the scope
of accident backward in time to reach the date of the earliest beginning of any prior event
which might be regarded as having a causal relation to the unlooked-for mishap would
introduce ambiguity where none now exists.'
32
The court held that [t]he policy is
unambiguously limited to injuries that occur during the term of the policy, there was no
coverage under the policy, and the insurer was under no duty to defend the former insured.
33

In the case at bar, the complaints clearly alleged that Uriah was negligent in the erection of
the sign, including improper welding and modifications of the bolts connecting the various
steel components of the sign. The Supreme Court of Illinois recently stated that property
suffers physical, tangible injury when it is altered in appearance, shape, color or in other
material dimension.
34
It follows that to the average mind, tangible property does not
experience physical' injury if that property suffers intangible damage.
35

We view improper welding or general negligent acts as intangible, economic injuries and
not the type of physical, tangible injury or destruction to property that a reasonable person
would contemplate as covered under the policy.
____________________

30
647 P.2d at 1253.

31
Id. at 1252.

32
Id. (quoting Home Mutual Fire Insurance Co. v. Hosfelt, 233 F. Supp. 368, 370 (D. Conn. 1962)).

33
Id. at 1253.

34
Traveler's Ins. Co. v. Eljer Mfg., Inc., 757 N.E.2d 481, 496 (Ill. 2001).

35
Id.
plate as covered under the policy. The complaints did not allege that any physical, tangible
injury to the sign occurred during the United and Generali CGL insurance policy
periodApril 29, 1993, through April 29, 1994. Rather, the complaints only alleged that the
sign suffered physical, tangible injury when it collapsed on July 18, 1994, nearly three months
after the United and Generali policy expired. Therefore, we conclude that there was no
potential, or possible, coverage under the CGL insurance policy and United and Generali
owed no duty to defend Uriah.
36

CONCLUSION
We conclude that United and Generali owed no duty to either defend or indemnify Uriah
under the language of the CGL insurance policy, where the policy period was from April 29,
1993, through April 29, 1994, and the sign collapsed on July 18, 1994. Accordingly, we
reverse the district court's order granting summary judgment in favor of Frontier and Uriah
and, in light of this opinion, remand with instructions to the district court to grant summary
judgment in favor of United and Generali.
Shearing, C. J., Agosti, Rose, Becker, Maupin and Douglas, JJ., concur.
____________
120 Nev. 689, 689 (2004) Health Plan of Nevada v. Rainbow Med.
HEALTH PLAN OF NEVADA, INC., Appellant/CrossRespondent, v. RAINBOW
MEDICAL, LLC, and RESOURCE HEALTHCARE, LLC, aka RESOURCE
PHARMACEUTICAL SERVICES, Respondents/CrossAppellants.
No. 39712
November 10, 2004 100 P.3d 172
Appeal and cross-appeal from a district court order granting a motion to confirm an
arbitration award arising from a contract dispute between a health maintenance organization
and a pharmaceutical services provider. Eighth Judicial District Court, Clark County; Kathy
A. Hardcastle, Judge.
Health maintenance organization (HMO) moved to vacate arbitration award in contract
dispute between HMO and pharmaceutical provider. The district court remanded the case
back to the arbitrator for clarification.
____________________

36
We have carefully reviewed all of Frontier and Uriah's arguments, including whether there was coverage
under the incidental contracts provision or completed operations hazards provision of the policy. We conclude
that these provisions are still bound by the initial policy requirement that there must be an occurrence of
property damage during the policy period in order for there to be coverage and, therefore, these arguments are
without merit.
bitrator for clarification. After clarification by the arbitrator, the district court confirmed the
award. HMO appealed. The supreme court held that: (1) trial court lacked authority to remand
arbitration award, (2) arbitrator did not exceed the scope of his authority, and (3) arbitrator
did not manifestly disregard the law.
Affirmed.
Beckley Singleton, Chtd., and Daniel F. Polsenberg and Beau Sterling, Las Vegas;
Jimmerson Hansen and Lynn M. Hansen, Las Vegas, for Appellant/Cross-Respondent.
Lemons Grundy & Eisenberg and Robert L. Eisenberg, Reno, for
Marquis & Aurbach and Phillip S. Aurbach, Las Vegas, for Respondent/Cross-Appellant
Rainbow Medical, LLC.
McDonald Carano Wilson McCune Bergin Frankovich & Hicks LLP and George F.
Ogilvie III, Las Vegas; Radford J. Smith, Henderson, for Respondent/Cross-Appellant
Resource Healthcare, LLC.
The supreme court reviews questions of law de novo.
2. Arbitration.
Trial court lacked authority to remand arbitration award for clarification. Neither
party to the arbitration contended that the award was ambiguous; rather, one party
argued that the arbitrator's statements regarding a higher mentoring burden
demonstrated that the arbitrator had either converted the provider agreement into a
partnership, thus exceeding his authority, or that the statements evidenced a manifest
disregard of the law. Thus, in either case, the proper remedy would have been to vacate
the award and remand the matter for a new arbitration hearing. NRS 38.237.
3. Arbitration.
Parties moving to vacate an award on the ground that an arbitrator exceeded his or
her authority have the burden of demonstrating by clear and convincing evidence how
the arbitrator exceeded that authority. Absent such a showing, courts will assume that
the arbitrator acted within the scope of his or her authority and confirm the award. NRS
38.241(1)(d).
4. Arbitration.
Arbitrators exceed their powers when they address issues or make awards outside
the scope of the governing contract. NRS 38.241(1)(d).
5. Arbitration.
The broader the arbitration clause in a contract, the greater the scope of an
arbitrator's powers. NRS 38.241(1)(d).
6. Arbitration.
Allegations that an arbitrator misinterpreted the agreement or made factual or legal
errors do not support vacating an award as being in excess of the arbitrator's powers.
Arbitrators do not exceed their powers if their interpretation of an agreement, even if
erroneous, is rationally grounded in the agreement. NRS 38.241(1)(d).
7. Arbitration.
An arbitration award should be enforced so long as the arbitrator is arguably
construing or applying the contract. If there is a colorable justification for the outcome,
the award should be confirmed. NRS 38.241(1)(d).
8. Arbitration.
Arbitrator in contract dispute between pharmaceutical provider and health
maintenance organization (HMO) did not exceed his authority by stating that HMO had
a duty to mentor pharmaceutical provider, and thus, confirmation of arbitration award
to provider based on HMO's denial of a capitation rate increase under the agreement
was warranted. The arbitrator discussed the mentoring concept to the extent that HMO
knew it was contracting with a novice firm with no pharmaceutical provider experience
and that the problems HMO experienced with provider were anticipated and cured.
NRS 38.241(1)(d).
9. Arbitration.
Arbitrator in contract dispute between pharmaceutical provider and health
maintenance organization (HMO) did not manifestly disregard the law by stating that
HMO had a duty to mentor pharmaceutical provider, and thus, confirmation of
arbitration award to provider based on HMO's denial of a capitation rate increase under
the agreement was warranted. The arbitrator did not conclude that the law imposed a
mentoring burden on HMO as a result of the contract, nor did he create a partnership in
contravention of partnership law, but rather he found that HMO was aware of provider's
inexperience in the field and was willing to work with provider and mentor it.
10. Arbitration.
Manifest disregard of the law by an arbitrator goes beyond whether the law was
correctly interpreted, it encompasses a conscious disregard of applicable law.
OPINION
Per Curiam:
In this appeal, we are presented with questions involving Nevada's Uniform Arbitration
Act and the scope of judicial review of an arbitration award.
Appellant Health Plan of Nevada, Inc. (HPN) and respondents Rainbow Medical, LLC
(Rainbow) and Resource Healthcare, LLC (Resource) (the assignee of Rainbow's assets)
entered into a contract under which Rainbow would provide pharmacological services to
HPN members. A dispute arose regarding the quality of services provided by Rainbow and
whether HPN owed Rainbow additional monies under the contract. The matter proceeded to
binding arbitration. The arbitrator found that HPN had breached its duty of good faith and fair
dealing under the contract and that Rainbow had substantially performed under the contract.
The arbitrator awarded Rainbow monetary damages.
HPN moved the district court to vacate the arbitration award, while Rainbow requested
that the court confirm the award. The district court concluded that the arbitrator had exceeded
his authority by imposing burdens upon HPN outside of the contractual terms. Rather than
vacate the award and remand the matter for a new arbitration hearing, the district court asked
the arbitrator to review and clarify his ruling. The district court requested that the arbitrator
indicate the extent to which he had relied on the allegedly improper burden findings in
determining that HPN had breached its covenant of good faith and fair dealing. When the
arbitrator responded that the burden findings played no part in his decision, the district court
confirmed the arbitration award.
On appeal, HPN argues that once the district court determined that the arbitrator exceeded
his authority, the district court should have vacated the award and ordered a new hearing
before a new arbitrator. HPN also argues manifest disregard of the law as an additional
ground for vacating the arbitration award and ordering a new arbitration hearing. Rainbow
asserts that the arbitrator did not exceed his powers or manifestly disregard the law and that
the district court's denial of the motion to vacate and confirmation of the arbitration award
should be affirmed.
Although we conclude that the district court erred in remanding for clarification, the
arbitrator did not exceed his powers or manifestly disregard the law. Therefore, the district
court correctly confirmed the arbitration award.
1

FACTS
HPN is a federally qualified health maintenance organization that provides health care
benefits to its members. Rainbow is a pharmaceutical products and services provider.
Evidence submitted during the arbitration proceeding indicates that HPN's officers and
Rainbow's founder had long-standing social and/or professional relationships. The record
reflects that HPN's president encouraged Rainbow's founder to create Rainbow so that
Rainbow could contract with HPN as a service provider. The record also indicates that this
arrangement would expand HPN's territory and/or member services while allowing Rainbow's
founder to enter a new business market. According to the record, HPN was aware that
Rainbow's founder's previous experience was primarily confined to real estate development
and management.
On August 1, 1995, HPN and Rainbow entered into an agreement under which Rainbow
would provide pharmacological services to HPN members. Rainbow received a capitated or
flat rate per HPN member as opposed to a fee for each service provided.
____________________

1
Although Rainbow and Resource cross-appealed, challenging the district court's denial of punitive damages,
neither party briefed the issue. Thus, we deem the cross-appeal abandoned.
per HPN member as opposed to a fee for each service provided. In calculating the capitation
rate, the parties relied on HPN data reflecting the amount of pharmaceutical services provided
to HPN members in the past. This information is referred to as utilization data. A contract
provision permitted a capitated rate adjustment if utilization varied more than ten percent
from the originally anticipated utilization rate.
In April or May 1996, alleged problems with the quality of Rainbow's services began to
surface. HPN claimed it had received numerous complaints regarding Rainbow's
performance. Rainbow addressed the complaints, substantially curing any alleged breach, but
HPN still had serious concerns as to whether Rainbow would be able to perform its
obligations under the contract.
The parties also disputed Rainbow's service coverage area under the agreement. HPN
conceded that the agreement did not specifically define the service area, but alleged that
Rainbow's capitation rate included HPN's southern Nevada members, and thus, Rainbow's
coverage extended to all of southern Nevada. Rainbow maintained that its delivery area
included only Clark County, Pahrump, and Laughlin. Rainbow also asserted that HPN shifted
costs to Rainbow by constantly increasing the amount of services that Rainbow was supposed
to provide under the capitation agreement. HPN allegedly told Rainbow that Rainbow would
receive a capitation increase for the additional services it provided.
Despite various meetings, the parties were unable to reach a compromise. On May 16,
1997, Rainbow obtained HPN's consent to assign its rights and duties under the provider
agreement to First Class Pharmacy and Regency Health Services. First Class Pharmacy and
Regency Health Services later assigned the contract to Resource Healthcare, LLC. The asset
purchase agreement stipulated that Rainbow retained rights to any retroactive capitation rate
adjustments that might accrue for services performed before the effective time of the
purchase.
On June 20, 1997, Rainbow wrote to HPN requesting a retroactive capitation adjustment
for services provided prior to the assignment. HPN denied Rainbow's request because,
according to HPN, Rainbow had failed to provide the quality of service required under the
contract and had not submitted utilization data supporting the rate request.
After the denial, Rainbow initiated binding arbitration proceedings before the American
Arbitration Association pursuant to its provider agreement with HPN. HPN refused to
arbitrate the dispute and filed a complaint for declaratory relief, alleging that Rainbow no
longer had standing to compel arbitration under the contract. The district court disagreed and
entered an order compelling HPN to arbitrate. HPN appealed the order compelling
arbitration, and this court affirmed the district court's decision compelling arbitration.
bitration, and this court affirmed the district court's decision compelling arbitration.
2

The parties then agreed to an arbitrator. After twenty-two days of reviewing evidence and
evaluating witness testimony, the arbitrator concluded that HPN had breached its duty of
good faith and fair dealing and awarded $5,028,034.20 to Rainbow. The arbitrator found that
Rainbow's service delivery problems had been timely cured and that Rainbow had
substantially complied with the contract. The arbitrator found that HPN was not relieved of
its obligation to pay additional fees to Rainbow under the capitation provisions. In reaching
this conclusion, the arbitrator considered testimony regarding Rainbow's establishment and
the relationship between HPN's president and Rainbow's founder in determining that HPN
was willing to contract with a novice company, with no experience, in order to expand its
markets. The arbitrator found that HPN could not use the service complaints to avoid paying
amounts due under the contract's capitation recalculation provisions and that HPN was
disingenuous in asserting this position. As to the other disputes between the parties, the
arbitrator found that the contract was ambiguous and should be construed against HPN, as it
had drafted the contract.
Among other findings supporting his 24-page decision, the arbitrator included a statement
that HPN's decision to contract with a totally green startup was a policy decision that
imposed a higher mentoring burden. As a newborn Rainbow was entitled to be incubated by
HPN, an affirmative duty to in good faith help Rainbow crawl, walk, and run.
HPN filed a motion to set aside and vacate the arbitration award, claiming that the
arbitrator either exceeded his powers or manifestly disregarded the law. HPN contended that
the newborn statement evidenced that the arbitrator improperly found that a partnership
existed and imposed partnership fiduciary duties upon HPN in contravention of express
language in the agreement that no partnership was created by the contract.
The district court concluded that the arbitrator had exceeded his authority by imposing a
mentoring burden upon HPN as this [was] not a duty recognized by the law. Instead of
vacating the award, however, the district court remanded the case to the arbitrator and asked
him to reexamine his findings in light of the determination that HPN had no legal duty to
mentor and incubate Rainbow. Upon the arbitrator's declaration that the statement was
gratuitous and had no bearing on the award, the district court confirmed the arbitration award.
____________________

2
See Health Plan of Nevada v. Rainbow Medical, LLC, Docket No. 32646 (Order Dismissing Appeal, August
10, 2000).
DISCUSSION
Standard of review
Nevada recognizes both common-law grounds and statutory grounds for examining an
arbitration award. However, the scope of judicial review of an arbitration award is limited and
is nothing like the scope of an appellate court's review of a trial court's decision.
3
The party
seeking to attack the validity of an arbitration award has the burden of proving, by clear and
convincing evidence, the statutory or common-law ground relied upon for challenging the
award.
4

HPN challenges the propriety of the district court's order initially remanding the case to the
arbitrator for clarification. HPN contends that this was not a proper case for clarification
because HPN challenged the award on two grounds, one statutory and one under common
law, neither of which involved clarification of an award.
As to the statutory ground, HPN asserts that the arbitrator exceeded his authority pursuant
to NRS 38.241(1)(d).
5
In the alternative, HPN contends that, under common law, the
arbitrator manifestly disregarded the law. If either ground is proven, HPN asserts that the
proper remedy is vacation of the award and a remand for a new arbitration hearing, not
clarification.
[Headnote 1]
HPN's contentions raise questions of law, which we review de novo.
6

Remand for clarification
NRS 38.237(4), part of Nevada's Uniform Arbitration Act, permits a court, upon the filing
of a motion to confirm, vacate, modify or correct an arbitration award, to remand the matter
to the arbitrator for certain limited action. The arbitrator may correct or modify an award to
address mathematical miscalculations or mistakes in the description of a person, thing or
property referenced in the award.
____________________

3
Bohlmann v. Printz, 120 Nev. 543, 546, 96 P.3d 1155, 1157 (2004); Colmar, Ltd. v. Fremantlemedia N.
America, 801 N.E.2d 1017, 1029 (Ill. App. Ct. 2003).

4
E.D.S. Const. v. North End Health Center, 412 N.W.2d 783, 785 (Minn. Ct. App. 1987); Saville Intern., Inc.
v. Galanti Group, Inc., 438 N.E.2d 509, 511 (Ill. App. Ct. 1982); Korein v. Rabin, 287 N.Y.S.2d 975, 981 (App.
Div. 1968).

5
The 2001 Legislature repealed an older version of the Uniform Arbitration Act and adopted the 2000 version
of the act effective October 1, 2003. The underlying arbitration occurred prior to October 1, 2003. However, the
language of the statutes relevant to this appeal are indentical in both versions and the statutory changes have no
bearing on our decision. Therefore, for convenience' sake, all references to the act cite the Uniform Arbitration
Act of 2000.

6
modify an award to address mathematical miscalculations or mistakes in the description of a
person, thing or property referenced in the award.
7
Remand is also appropriate to correct
technical deficiencies in the form of the award
8
or to request the arbitrator to make a
decision on a submitted claim that was not addressed in the award.
9
Finally, a remand is also
authorized for an arbitrator to clarify an award.
10

[Headnote 2]
HPN contends that, absent one of the statutory grounds enumerated in NRS 38.237, a
district court lacks authority to remand a matter to an arbitrator. HPN asserts that the remand
in this case does not fall within the statutory guidelines and was improper. We agree.
Both parties agree that the award does not contain mathematical miscalculations,
description errors, or technical deficiencies. In addition, the parties do not contend that the
award failed to resolve all submitted claims. Therefore, only the clarification language of
NRS 38.237(4)(c) is at issue.
Commentators and case law establish that a remand for clarification is warranted only
when an award is ambiguous:
11

There are limits to the reasons for which an award may be remanded to the
arbitrators. A remand for clarification is proper when the award itself can be interpreted
in a variety of ways, where an award cannot be understood or where it cannot be
complied with because a party does not comprehend the relief granted. However, a
matter should not be remanded if it is merely to have the arbitrators explain their award.
12

Remands that allow arbitrators to reexamine their decision on the merits are not permitted
under the statute or at common law.
13

Neither HPN nor Rainbow ever contended that the award was ambiguous. HPN only
argued that the arbitrator's statements regarding a "higher mentoring burden" demonstrated
that the arbitrator had either converted the provider agreement into a partnership, thus
exceeding the arbitrator's authority, or that the statements evidenced a manifest
disregard of the law.
____________________

7
NRS 38.237(1)(a); NRS 38.242(1)(a).

8
NRS 38.237(1)(a); NRS 38.242(1)(c).

9
NRS 38.237(1)(b).

10
NRS 38.237(1)(c).

11
1 Larry E. Edmonson, Domke on Commercial Arbitration 40:5, at 40-12 to 40-13 (3d ed. 2003); Green v.
Ameritech Corp., 200 F.3d 967, 977-78 (6th Cir. 2000); Colonial Penn Ins. Co. v. Omaha Indem. Co., 943 F.2d
327, 333-34 (3d Cir. 1991); Foster v. City of Fairbanks, 929 P.2d 658, 660 (Alaska 1996); Hart v. McChristian,
42 S.W.3d 552, 559 (Ark. 2001); Tretina Printing, Inc. v. Fitzpatrick & Associates, Inc., 640 A.2d 788, 795
(N.J. 1994).

12
1 Edmonson, supra note 11, at 40-12 (footnotes omitted).

13
1 id. at 40-13 to 40-14; 3 Thomas H. Oehmke, Oehmke Commercial Artibration 147:1, at 147-1 to 147-2
(3d ed. 2004).
garding a higher mentoring burden demonstrated that the arbitrator had either converted the
provider agreement into a partnership, thus exceeding the arbitrator's authority, or that the
statements evidenced a manifest disregard of the law. In either case, HPN asserts that the
appropriate remedy would be to vacate the award.
14
We therefore conclude that the district
court erred in remanding the matter to the arbitrator with instructions to reexamine his
decision in light of the district court's conclusion that the contract did not impose any
mentoring burden upon HPN.
Having concluded that clarification was not warranted in this case, we now turn to HPN's
contentions that the award should be vacated because the arbitrator exceeded his authority or
manifestly disregarded the law.
Exceeding authority
[Headnote 3]
The Nevada Arbitration Act provides specific grounds for invalidating an arbitration
award.
15
NRS 38.241(1)(d) dictates that a court shall vacate an arbitration award if the
arbitrator exceeded his powers. Courts presume that arbitrators are acting within the scope of
their authority.
16
Parties moving to vacate an award on the ground that an arbitrator exceeded
his or her authority have the burden of demonstrating by clear and convincing evidence how
the arbitrator exceeded that authority. Absent such a showing, courts will assume that the
arbitrator acted within the scope of his or her authority and confirm the award.
17

[Headnotes 4-7]
Arbitrators exceed their powers when they address issues or make awards outside the
scope of the governing contract.
18
The broader the arbitration clause in a contract, the greater
the scope of an arbitrator's powers.
19
However, allegations that an arbitrator misinterpreted
the agreement or made factual or legal errors do not support vacating an award as being in
excess of the arbitrator's powers.
20

____________________

14
We note that the proper remedy, even if HPN's allegations were correct, is not just to vacate the award, but
also to remand the matter for a new arbitration hearing. NRS 38.241(3).

15
NRS 38.241.

16
Perkins Restaurants v. Van Den Bergh Fds., 657 N.E.2d 1085, 1088 (Ill. App. Ct. 1995).

17
Malekzadeh v. Wyshock, 611 A.2d 18, 21 (Del. Ch. 1992); Hilltop Const., Inc. v. Lou Park Apts., 324
N.W.2d 236, 239 (Minn. 1982).

18
Batten v. Howell, 389 S.E.2d 170, 172 (S.C. Ct. App. 1990).

19
Signal Corp. v. Keane Federal Systems, 574 S.E.2d 253, 257 (Va. 2003).

20
Id.; see also Batten, 389 S.E.2d at 172; Jaffa v. Shacket, 319 N.W.2d 604, 607 (Mich. Ct. App. 1982).
Arbitrators do not exceed their powers if their interpretation of an agreement, even if
erroneous, is rationally grounded in the agreement.
21
The question is whether the arbitrator
had the authority under the agreement to decide an issue, not whether the issue was correctly
decided.
22
Review under excess-of-authority grounds is limited and only granted in very
unusual circumstances.
23
An award should be enforced so long as the arbitrator is arguably
construing or applying the contract.
24
If there is a colorable justification for the outcome, the
award should be confirmed.
25

[Headnote 8]
HPN claims that the arbitrator exceeded his authority because one portion of the 24-page
decision mentioned that HPN had a duty to mentor Rainbow. HPN asserts that no
partnership or mentoring duty is contained in the agreement and, therefore, the arbitrator went
beyond the scope of the agreement. We disagree.
The arbitration clause in the contract provided that all disputes regarding the contract
would be arbitrated. It was a general, broad arbitration clause. The parties disputed whether
Rainbow was entitled to a capitation rate increase, the size of the territory to be served and
whether Rainbow's performance excused HPN from paying any increase due. These were the
issues decided by the arbitrator.
HPN takes the mentoring statement out of context. The arbitrator found that because
HPN knew it was contracting with a novice firm with no pharmaceutical provider experience,
it was aware that Rainbow would take some time to come up to speed. The arbitrator
considered the personal relationships and discussions of the principles in reaching this
conclusion. The arbitrator also found that the parties anticipated that Rainbow would have to
learn on the job and that HPN expected, and was prepared to deal with, transition difficulties
due to Rainbow's lack of experience. The arbitrator discussed the mentoring concept to the
extent that HPN was prepared to work with Rainbow and that the problems HPN experienced
initially were anticipated and cured. The arbitrator's total findings demonstrate that he was
construing the contract, and the record supports more than a colorable justification for the
outcome.
____________________

21
Maine State Emp. Ass'n v. State, Etc., 436 A.2d 394, 397 (Me. 1981); National Ave. Bldg. Co. v. Stewart,
910 S.W.2d 334, 349 (Mo. Ct. App. 1995).

22
3 Oehmke, supra note 13, at 147-1 to 147-2; 1 Edmonson, supra note 11, 39:6, at 39-13.

23
Arnold v. Morgan Keegan & Co., Inc., 914 S.W.2d 445, 448 (Tenn. 1996).

24
3 Oehmke, supra note 13, at 147-1 to 147-2.

25
1 Edmonson, supra note 11, at 39-13.
and the record supports more than a colorable justification for the outcome.
Given this background, the arbitrator found that HPN was not acting in good faith when it
denied a capitation rate increase on the grounds of Rainbow's inadequate performance and
that Rainbow's performance was being used as an improper excuse to deny an increase in
violation of HPN's duty of good faith and fair dealing. Finally, the arbitrator concluded that
HPN's other contentions were based on its interpretation of an ambiguous contract, and the
arbitrator noted that as HPN had drafted the contract, any ambiguity must be construed in
Rainbow's favor.
When read as a whole, the arbitrator's decision reflects that he did not convert the contract
into a partnership or impose burdens outside of the contract. Instead, he applied the facts of
the dispute to the contract, reasonably construing the contract and HPN's duty of good faith
and fair dealing. HPN has failed to clearly demonstrate that the arbitrator exceeded his
powers. We now turn to the issue of manifest disregard of the law.
Manifest disregard of the law
[Headnote 9]
HPN contends that even if the arbitrator did not exceed his authority by discussing the
mentoring concept in the award, the application of the mentoring burden constitutes a
manifest disregard of the law and the award should be vacated. We disagree.
[Headnote 10]
As discussed above, the arbitrator did not conclude that the law imposed a mentoring
burden on HPN as a result of the contract, nor did the arbitrator create a partnership in
contravention of partnership law. The arbitrator found that HPN was aware of Rainbow's
inexperience in the field and was willing to work with Rainbow, i.e., mentor it, in return for
the opportunity to use Rainbow's contacts to expand HPN's market. The arbitrator then
concluded that HPN was not acting in good faith when it asserted that Rainbow's
performance problems relieved HPN of its contractual obligation to increase the capitation
rate. However, even if the arbitrator made an error of fact or misapplied the law on this issue,
it would still not amount to a manifest disregard of the law. Manifest disregard of the law
goes beyond whether the law was correctly interpreted, it encompasses a conscious disregard
of applicable law.
26
The record does not support such a conclusion in this case.
____________________

26
Bohlmann, 120 Nev. at 547, 96 P.3d at 1157-58.
CONCLUSION
We recognize that the district court improperly remanded the case to the arbitrator for
clarification. Nevertheless, we conclude that the arbitrator did not exceed the scope of his
authority or manifestly disregard the law. Consequently, we affirm the district court's order
confirming the arbitration award.
____________
120 Nev. 700, 700 (2004) Horne v. City of Mesquite
CHARLES HORNE, in His Individual Capacity, Appellant,
v. THE CITY OF MESQUITE, NEVADA, Respondent.
No. 41705
November 10, 2004 100 P.3d 168
Appeal from a district court declaratory judgment regarding the validity of citizen
initiatives. Eighth Judicial District Court, Clark County; Michael L. Douglas, Judge.
General law city petitioned for judicial confirmation or, in the alternative, for declaratory
judgment regarding the validity of initiative ordinance requiring city to conduct all public
land sales by a public auction or a public sealed bid process and of initiative ordinance
requiring an elected official or public employee to file his or her resignation from office or
employment before seeking election as mayor or city council member. The district court
invalidated in part the public land sales ordinance and completely invalidated the candidacy
eligibility ordinance. Mayor appealed. The supreme court held that: (1) public land sales
ordinance was repugnant to state law and invalid, and (2) candidacy eligibility ordinance was
repugnant to state law and invalid.
Patricia D. Cafferata, Reno; Callister & Reynolds and Matthew Q. Callister, Las Vegas;
Johnson & Kleven, LLC, and Robert D. Johnson and Dale K. Kleven, Las Vegas, for
Appellant.
Terrance P. Marren, City Attorney, Mesquite, for Respondent.
Citizens of general law city could only pass ordinances that were not repugnant to
the Constitutions of the United States or of the State of Nevada or to the statutory
provisions necessary for the municipal government and the management of city affairs.
NRS 266.105(1).
Initiative ordinance that required general law city that was located in a remote, rural
location to conduct all land sales by public auction or public sealed bid process was
repugnant to statute that allowed general law cities to sell property for less than the
appraised value if it was in the best interest of the public, and thus, ordinance was
invalid. Power given to general law cities by statute was vital to the economic
success of such cities.
eral law cities by statute was vital to the economic success of such cities. Restricting
city's ability to reduce the price of public land in appropriate instances would have
made it even more challenging for city to compete for new business, and ordinance
essentially eliminated the portion of statute allowing city to sell land at a price lower
than the appraised price if it was in the best interest of the public. NRS 266.105(1),
266.267(1).
Initiative ordinance that required an elected officer who wished to run for city
council member or mayor mid-term to file a declaration of resignation at least ten days
prior to the opening of the filing period for elective offices of general law city was
repugnant to statute that provided that elected city officials should hold their respective
offices for four years and until their successors were elected and qualified, and thus,
ordinance was invalid. Ordinance effectively required officers to relinquish their
positions prior to the conclusion of their statutorily mandated term of office. NRS
266.105(1), 266.405(1).
1

OPINION
Per Curiam:
This is an appeal from a district court declaratory judgment regarding the validity of two
initiative ordinances approved by the City of Mesquite voters. Mesquite Question 1 (MQ1)
governs public land sales, requiring the City to conduct all public land sales by a public
auction or a public sealed bid process. Mesquite Question 3 (MQ3) governs candidacy
eligibility, requiring an elected official or public employee to file his resignation from
office/employment before seeking election as mayor or city council member.
The district court determined that MQ1 is invalid inasmuch as it conflicts with NRS
266.267(1), NRS 268.050, and NRS 277.050, but determined that the severability clause of
MQ1 saved it from being wholly invalid. As to MQ3, the district court determined that it
directly conflicts with and is totally repugnant to NRS 266.405(1) and, thus, is wholly invalid.
We agree with the district court for the most part. We conclude that MQ1 is wholly, not
partially, invalid because it is repugnant to NRS 266.267(1). Also, we conclude that MQ3 is
wholly invalid because it is repugnant to NRS 266.405(1). Accordingly, we affirm the district
court's judgment in part and reverse in part.
FACTS
The City of Mesquite voters approved two initiative ordinancesMQ1 and MQ3at the
November 5, 2002, general election.
MQ1 states:
____________________

1
An Ordinance amending the Mesquites [sic] Municipal Code; mandating that all public
land sales by the City of Mesquite be conducted through a properly noticed public
auction or open bid process.
Section 1: Amendment of the Mesquite Municipal Code. The Mesquite Municipal
Code is hereby amended to add a new section regarding the sale of public lands to read
as follows: All public land sales by the City of Mesquite must be conducted
through a properly noticed public auction or open to the public sealed bid process.
The City must set a minimum acceptable bid, in the notice for sale.
Section 2: Severability. If any section of this Ordinance or portion thereof is for any
reason held invalid or unconstitutional by any court of competent jurisdiction, such
holding shall not invalidate the remaining provisions of this Ordinance.
Section 3: Effective Date. This Ordinance shall be effective immediately upon
passage by a majority of the voters of the City of Mesquite.
MQ3 states:
2

AN ORDINANCE, AMENDING MESQUITE MUNICIPAL CODE, 1-6-2 TO READ
AS FOLLOWS:
A. No person shall be eligible for the office of Council member or Mayor unless he is a
qualified elector of Mesquite Nevada, at least eighteen (18) years of age, must not be a
debtor to the City, and has been a resident of the City for at least one year immediately
prior to the election in which he is a candidate. He shall hold no other elective public
office, but he may hold a commission as a notary public or be a member of the armed
forces reserve. [No employee of the City or officer thereof, excluding City Council
members, receiving compensation under the provisions of this code or any City
ordinance, shall be a candidate for or eligible for the office of Council member or
Mayor without first resigning from employment or City office.] No officer whose term
of office would continue through the upcoming election or employee of the city,
receiving compensation under the provisions of this code or any City ordinance, shall
be a candidate for or eligible for the office of Council member or Mayor, without
first filing a Declaration of Resignation from office or employment with the
Mesquite City Clerk, which shall become effective at the time of the swearing in of
newly elected City Officers.
____________________

2
The initiative petition repeals the bracketed language and adds the language that is emphasized.
City Officers. This Declaration of Resignation must be filed at least 10 calendar
days preceding the opening of filing for a Declaration of Candidacy for the office he
seeks and shall be published as soon as possible within the afore mentioned 10
calendar days by the City Clerk. This publication shall include all local print media
as well as postings at all regular legal notice posting sites.
EFFECTIVE DATE: This Ordinance shall become effective immediately upon
passage by a majority of the voters of the City of Mesquite Nevada.
CONTINGENCIES: If a change in the district boundaries removes a council member
from his district, his right to continue in office representing the district to which he was
elected shall not be affected.
SEVERABILITY: If any section of this Ordinance or portion thereof is for any reason
held invalid by any court of competent jurisdiction, such holding shall not invalidate
the remaining provisions of this Ordinance.
Following the passage of MQ1 and MQ3, the City of Mesquite petitioned the district court
for judicial confirmation or, in the alternative, for declaratory judgment regarding the legal
validity of the initiative ordinances. The City argued that the initiative ordinances are legally
invalid because they are repugnant to several NRS provisions. Specifically, the City argued
that MQ1 is invalid because its requirement that all public land sales be conducted by the city
council through public auction or sealed bid process deprives the city council of its statutory
discretion to sell public property by other means and at a lower price. Additionally, the City
argued that MQ3 is in direct conflict with NRS 266.405(1), which provides certain elected
city officers with a four-year term.
In response, City of Mesquite Mayor Charles Horne submitted an answer and opposition to
the City's petition. Horne argued that the Nevada Constitution reserves to the citizens of
Mesquite the right to legislate by ballot initiative and that the citizens' initiative powers are
not limited by NRS 266.105(1), which states that all ordinance resolutions passed by the city
council must not be repugnant to the United States or Nevada Constitutions or any provision
of NRS Chapter 266. Alternatively, Horne argued that even if the citizens' initiative powers
were construed to be subject to NRS 266.105(1), the initiative ordinances at issue in this
instance are not repugnant to any NRS provisions.
After hearing argument on the petition, the district court concluded that MQ1 is invalid
because it directly conflicts with NRS 266.267(1), NRS 268.050, and NRS 277.050 inasmuch
as it limits the city council's discretion in conducting public land sales.
its the city council's discretion in conducting public land sales. However, the district court
reasoned that because MQ1 has a severability clause, it could be confirmed in part. Thus, the
district court ruled that MQ1 could be implemented, provided that the word all is omitted
and the statutory discretion given to the City pursuant to NRS 266.267, NRS 268.050, and
NRS 277.050 is inserted before the words public land sales.
The district court next determined that MQ3's requirement that elected city officers who
wish to run for mayor or city council member during their current term file a Declaration of
Resignation ten days before the opening of filing for the office they seek is in direct conflict
with and totally repugnant to NRS 266.405(1), which provides a four-year term for certain
elected officers. The district court reasoned that MQ3 impermissibly shortens an elected
officer's term, and that an initiative ordinance cannot nullify a specific NRS provision in this
manner.
Thereafter, Horne filed a notice of appeal. On appeal, Horne argues that the Mesquite
voters have a fundamental right to enact legislation when public officials are not responsive
to public concerns, as in this case. Also, Horne argues that the constitutional reservation to
the people of the ballot-initiative power is not subject to the limitations of NRS Chapter 266.
And, according to Horne, even if the citizens' initiative powers are construed to be subject to
the provisions of NRS Chapter 266, neither MQ1 nor MQ3 is repugnant to any NRS
provisions.
DISCUSSION
Mesquite is a general law city established and operated under the provisions of NRS
Chapter 266, and Mesquite has not adopted a charter form of government.
3
Consequently,
Mesquite remains controlled by the provisions of NRS Chapter 266. Particularly relevant to
this appeal is NRS 266.105, which states:
1. The city council may make and pass all ordinances, resolutions and orders, not
repugnant to the Constitutions of the United States or of the State of Nevada or to the
provisions of this chapter, necessary for the municipal government and the management
of the city affairs, for the execution of all powers vested in the city, and for making
effective the provisions of this chapter.
Horne argues that only the city council, not the Mesquite voters, is subject to NRS
266.105(1). Horne insists that in Garvin v. District Court, this court clearly made a
distinction between ordinances passed by the governing body and those passed by the voters
by stating that "the electorate is not bound by the statutory requirements that the local
legislative bodies must follow.
____________________

3
See NRS ch. 266 reviser's notes.
ers by stating that the electorate is not bound by the statutory requirements that the local
legislative bodies must follow.
4
This statement, however, must be read in context.
[Headnote 1]
In Garvin, we were attempting to give the citizens' initiative and referendum powers the
authority they deserve by concluding that citizens could pass ordinances related to zoning
issues.
5
Thus, we stated that if a county board of commissioners or city council can enact
zoning legislation, the county and city voters can do the same by initiative.
6
We never
declared that the citizens' initiative power is limitless or that citizens are never bound by
statutory requirements. Indeed, citizens of a locality have only those legislative powers that
the local governing body possesses.
7
Hence, in this instance, Mesquite's citizens, like the city
council, can only pass ordinances that comply with NRS 266.105(1). Consequently, MQ1 and
MQ3 are not permissible if repugnant to the United States or Nevada Constitutions or to any
provision of NRS Chapter 266.
8

MQ1
[Headnote 2]
NRS 266.267 provides the requirements for the sale, lease, or exchange of real property
owned by a city and states, in part:
1. A city council shall not . . . enter into a contract for the sale or exchange of real
property until after the property has been appraised by one disinterested appraiser
employed by the city. Except as otherwise provided in this section and paragraph (a) of
subsection 1 of NRS 268.050, a lease, sale or exchange must be made at or above the
current appraised value of the real property as determined by the appraiser unless the
city council, in a public hearing held before the adoption of the resolution to lease, sell
or exchange the property, determines by affirmative vote of not fewer than two-thirds
of the entire city council based upon specified findings of fact that a lesser value would
be in the best interest of the public. . . .
2. The city council may sell, lease or exchange real property for less than its
appraised value to any person who maintains or intends to maintain a business within
the boundaries of the city which is eligible pursuant to NRS 374.357 for an
abatement from the sales and use taxes imposed pursuant to chapter 374 of NRS.
____________________

4
118 Nev. 749, 764, 59 P.3d 1180, 1190 (2002).

5
Id. at 763, 59 P.3d at 1189.

6
Id. at 764, 59 P.3d at 1190.

7
See NRS 295.220(1) (If a majority of the registered voters voting on a proposed initiative ordinance vote in
its favor, it shall be considered adopted upon certification of the election results and shall be treated in all
respects in the same manner as ordinances of the same kind adopted by the council.).

8
NRS 266.105(1).
tains or intends to maintain a business within the boundaries of the city which is
eligible pursuant to NRS 374.357 for an abatement from the sales and use taxes
imposed pursuant to chapter 374 of NRS.
9

The power given to general law cities, pursuant to NRS 266.267(1), is vital to the
economic success of cities like Mesquite given its remote, rural location. Because it can be
difficult to persuade new businesses to open in the City, restricting the City's ability to reduce
the price of public land in appropriate instances would make it even more challenging for the
City to compete for new business. Yet MQ1 essentially eliminates the portion of NRS
266.267(1) that allows the city council to lease, sell, or exchange land at a price lower than
the appraised price if it is in the best interest of the public. By making the City conduct all
land sales by public auction or bid process, the City cannot ensure that a particular entity is
able to purchase a specific piece of property because the entity could just as easily be outbid
by another for the land. Consequently, MQ1 would likely prevent the city council from ever
exercising its discretion to sell land at less than its appraised value, even when in the City's
best interest.
10
As a result, MQ1 is repugnant to NRS 266.267(1) and, thus, invalid.
Although the district court resolved that MQ1 could be enforced if the word all is
omitted and replaced with language concerning the statutory discretion given to the City
pursuant to NRS 266.267(1), NRS 268.050, and NRS 277.050, we do not consider this
construction to be practicable. Accordingly, we reverse the district court's judgment inasmuch
as it confirmed MQ1 in part.
MQ3
[Headnote 3]
NRS 266.405(1) provides that elected city officers shall hold their respective offices for 4
years and until their successors are elected and qualified.
11

____________________

9
NRS 266.267(1) references NRS 268.050(1)(a), which provides that the governing body of any incorporated
city may reconvey the right, title, and interest of the city in and to any land donated, dedicated, or purchased
under the threat of an eminent domain proceeding for a number of specific public purposes, or land held in trust
for the public for any public use, to the person by whom the land was donated or dedicated or to his heirs,
assigns, or successors.

10
For example, a not-for-profit enterprise such as a hospital might never be able to locate in a rural
community via an inexpensive purchase of public property because a for-profit entity could preempt acquisition
through the MQ1 bidding process.

11
NRS 266.405(1) requires that a general law city have, in addition to the mayor and city council, a city clerk,
city treasurer, a municipal judge, and a city attorney. The statute states that [t]he offices of city clerk, city
treasurer,
MQ3 is in direct conflict with NRS 266.405(1) in that it potentially shortens an elected
officer's term if he or she decides to run for city council member or mayor mid-term. MQ3
requires an elected officer who wishes to run for city council member or mayor mid-term to
file a Declaration of Resignation at least ten days prior to the opening of the filing period
for city elective offices. The resignation is effective upon the swearing in of the newly elected
officers, regardless of whether the officer who filed the Declaration of Resignation wins the
election. Thus, MQ3 effectively requires these officers to relinquish their positions prior to
the conclusion of their statutorily mandated term of office. Consequently, MQ3 is repugnant
to NRS 266.405(1).
Since we hold that the two initiative ordinances, MQ1 and MQ3, are in conflict with
Nevada law, we need not address the claim that both ordinances violate the Nevada and
United States Constitutions.
12

CONCLUSION
MQ1 and MQ3 are impermissibly repugnant to provisions of NRS Chapter 266 and, thus,
unenforceable. Accordingly, we affirm the portion of the district court's judgment concluding
that MQ1 and MQ3 are invalid, but we reverse that part of the district court's judgment
determining MQ1 to be saved by its severability clause.
____________
120 Nev. 707, 707 (2004) State Farm Mut. Auto. Ins. Co. v. Fitts
STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY, Appellant, v. IKE FITTS, Respondent.
No. 42233
November 10, 2004 99 P.3d 1160
Certified question pursuant to NRAP 5 from the United States District Court for the
District of Nevada; Kent J. Dawson, Judge.
Insured brought action against automobile insurer to recover underinsured motorist (UIM)
benefits more than two years after accident. Insurer removed case. The federal district court
certified question. The supreme court, Maupin, J., held that: (1) contractual limitation
provision that requires the insured to demand arbitration or file suit within two years of the
date of the accident violates public policy and is void; and (2) the insured's cause of action
did not accrue, and six-year statute of limitations did not begin to run, until the carrier
formally denied UIM benefits.
____________________
municipal judge and city attorney may be either elective or appointive offices, as provided by city ordinance.

12
See, e.g., Brewery Arts Ctr. v. State Bd. Examiners, 108 Nev. 1050, 1055, 843 P.2d 369, 373 (1992)
(noting that this court will not rule on a constitutional issue unless the ruling is necessary to the disposition of the
case).
Question answered.
Pearson, Patton, Shea, Foley & Kurtz, P.C., and Niels L. Pearson, Las Vegas, for
Appellant.
Crockett & Myers and J. R. Crockett Jr. and James V. Lavelle III, Las Vegas, for
Respondent.
Bradley Drendel & Jeanney and Thomas E. Drendel, Reno, for Amicus Curiae Nevada
Trial Lawyers Association.
1. Insurance.
Contractual limitation provision that requires the insured to demand arbitration or
file suit on any claim for uninsured or underinsured motorist (UM/UIM) benefits within
two years of the date of the accident violates public policy and is void because the
clause may require suit or demand for arbitration even in the absence of an indication
that the insurer will deny the claim, unnecessarily forces the insured to file suit or
demand arbitration within two years, regardless of whether he or she will ultimately
pursue a claim for benefits, and unnecessarily encourages litigation.
2. Insurance.
Uninsured and underinsured motorist (UM/UIM) coverages provide important
protection to the insurance consumer and should not be restricted except for reasons
consistent with consumer protection. NRS 687B.145(2), 690B.020.
Insured's cause of action for breach of contract by underinsured motorist (UIM)
carrier did not accrue, and six-year statute of limitations did not begin to run, until the
carrier formally denied UIM benefits. NRS 11.190(1)(b).
OPINION
In response to a certified question submitted by the Nevada Federal District Court,
1
we
consider whether Nevada automobile insurers may contractually alter the statutory time frame
within which an insured may file a claim for uninsured or underinsured motorist benefits.
Although we do not entirely foreclose the possibility, we hold that the alteration provision
before us is unenforceable and therefore void as against Nevada public policy.
INTRODUCTION
Automobile liability insurance policies issued for delivery in Nevada must, subject to
narrowly defined exceptions, provide uninsured and underinsured motorist protection
____________________

1
NRAP 5.
sured and underinsured motorist protection
2
to any person insured under the policy.
3
UM
and UIM coverages provide for the payment of first-party benefits to the insured based upon
compensatory and general damages sustained in motor vehicle accidents involving uninsured
or underinsured motorists who are liable in tort to the insured.
4

This case involves a claim for UIM benefits lodged by Mr. Ike Fitts with his automobile
liability insurer, State Farm Mutual Automobile Insurance Company. Fitts' policy with State
Farm provided third-party liability and UM/UIM coverages, each with limits of $50,000 per
person injured or killed in a single accident.
Fitts sustained personal injuries in an automobile accident and filed suit against the
adverse driver within the two-year statute of limitations governing tort actions brought in
Nevada.
5
He ultimately reached a $15,000 policy limits settlement with the other driver's
liability insurer.
Fitts presented his UIM claim two years and two months after the accident, asserting that
his damages exceeded $15,000. State Farm denied the claim based upon a limitation
provision in its policy that required the insured to demand arbitration or file suit on any
UM/UIM claim within two years of the date of the accident.
Fitts filed suit against State Farm in state court alleging breach of contract, violations of
the Nevada Unfair Insurance Claim Practices Act, breach of implied covenants of good faith
and fair dealing, intentional refusal to pay insurance benefits, and intentional infliction of
emotional distress. State Farm removed the case to the Nevada Federal District Court.
By stipulation, the federal court submitted the following certified question of law to this
court:
Is the following insurance policy provision for the uninsured and underinsured motorist
coverage enforceable by the issuing carrier: Under the uninsured motor vehicle
coverages, any arbitration or suit against us will be barred unless commenced within
two years after the date of the accident.
____________________

2
Uninsured motorist coverage is sometimes referred to in this opinion as UM coverage. Underinsured
motorist coverage is sometimes referred to in this opinion as UIM coverage.

3
See NRS 690B.020; NRS 687B.145(2).

4
Underinsured motorist protection
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 coverage for bodily injury carried by that
owner or operator.
NRS 687B.145(2).

5
See NRS 11.190(4).
arbitration or suit against us will be barred unless commenced within two years after the
date of the accident.
DISCUSSION
State Farm contends that its UM/UIM limitation provision validly prevents unreasonable
exposure to remote UIM claims.
UM/UIM coverages provide important protection designed to mitigate losses sustained by
policy insureds in connection with collisions with uninsured or inadequately insured drivers.
6
UIM insurance serves an important public purpose to provide maximum and expeditious
protections to the innocent victims of financially irresponsible motorists . . . .'
7
Given the
public policy considerations concerning UM/UIM protection, we review attempts to restrict
such coverage with a high degree of scrutiny.
In Grayson v. State Farm Mutual Automobile Insurance, we embraced the notion that
UM/UIM benefits are contractually based and, thus, UM/UIM claims are governed by the
Nevada six-year statute of limitations for breaches of written agreements.
8
Accordingly, we
held that UIM claims accrue for statute of limitations purposes from the date of claim denial.
9
In this, we observed: there is no reason to time-bar an insured from claiming benefits
bargained for in an insurance contract by beginning the statute of limitations before the
insured is notified that [the] carrier has failed to fulfill its promise to pay a claim.
10

We also stated in Grayson that an insurer may protect itself from remote claims by
implementing explicit, unambiguous time limitations in its insurance contracts.
11
State Farm
took this dictum as an invitation to alter the statutory limitation period by implementing the
two-year provision. Because first-party UM/UIM contractual benefits are based upon
damages sustained in tort at the hands of a third-party driver, State Farm sought to restrict the
window for filing UM/UIM claims in the same way that NRS 11.190 restricts actions in tort.
[Headnotes 1-3]
We conclude that the limitation provision at issue here runs afoul of important public
policy considerations. First, UM/UIM coverages provide important protection to the
insurance consumer and should not be restricted except for reasons consistent with
consumer protection.
____________________

6
Siggelkow v. Phoenix Ins. Co., 109 Nev. 42, 45, 846 P.2d 303, 305 (1993).

7
Grayson v. State Farm Mut. Auto. Ins., 114 Nev. 1379, 1382, 971 P.2d 798, 800 (1998) (quoting Green v.
Selective Ins. Co. of America, 676 A.2d 1074, 1078 (N.J. 1996)).

8
Id.; see also NRS 11.190(1)(b) (stating that a party must commence [a]n action upon a contract, obligation
or liability founded upon an instrument in writing within six years of the breach).

9
114 Nev. at 1381-83, 971 P.2d at 799-800.

10
Id. at 1382, 971 P.2d at 800.

11
Id.
coverages provide important protection to the insurance consumer and should not be
restricted except for reasons consistent with consumer protection. Second, the limitation
clause in question may require suit or demand for arbitration even in the absence of an
indication that the insurer will deny the claim. Third, State Farm's attempt to limit the filing
window to correspond with the Nevada limitation provision concerning tort liabilities
unnecessarily forces the insured to file suit or demand arbitration within two years, regardless
of whether he or she will ultimately pursue a claim for benefits.
12
Accordingly, such clauses
will unnecessarily encourage litigation, which in turn will inevitably result in higher costs to
the insurance consumer and unnecessary consumption of precious judicial resources. Thus,
while an insured may formally or informally pursue a claim for UM or UIM coverage against
his or her insurer starting from the date of the accident,
13
we reaffirm the proposition that a
cause of action for breach of contract against the insurer does not accrue until the insurer
formally denies UIM coverage benefits.
14

Fitts claims that State Farm breached the insurance agreement by refusing to pay UIM
benefits. Because he had six years after claim denial within which to press this claim under
NRS 11.190(1)(b), and because he commenced his action within that period, State Farm may
not deny coverage under the limitation clause at issue here.
We decline to reach the question raised by the parties under Grayson as to the
reasonableness of a shortened contract limitation period running from the date of breach. This
we leave for future consideration, if and when we are presented with a limitation clause
couched in such terms.
CONCLUSION
We answer the certified question in the negative, holding that State Farm's UM/UIM
policy limitation provision is void against public policy.
Shearing, C. J., Agosti, Rose, Becker, Gibbons and Douglas, JJ., concur.
____________________

12
See Bergmann v. Boyce, 109 Nev. 670, 676, 856 P.2d 560, 564 (1993) (NRCP 11 sanctions should be
imposed for frivolous actions.).

13
See Lee v. Allstate Ins. Co., 648 F. Supp. 1295, 1298-99 (D. Nev. 1986); Grayson, 114 Nev. at 1381 n.3,
971 P.2d at 799-800 n.3.

14
Grayson, 114 Nev. at 1381-82, 971 P.2d at 799-800; see also Wille v. Geico Cas. Co., 2 P.3d 888, 892
(Okla. 2000) (adopting the majority view that until a breach of the insurance contract occurs, there is no
controversy under the contract upon which a party may sue).
____________
120 Nev. 712, 712 (2004) University Sys. v. Nevadans for Sound Gov't
UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA; and REGIONAL
TRANSPORTATION COMMISSION OF WASHOE COUNTY, Appellants, v.
NEVADANS FOR SOUND GOVERNMENT, Respondent.
No. 43652
November 10, 2004 100 P.3d 179
Appeal from a district court order granting a preliminary injunction in a matter involving
the constitutional and statutory parameters of the right to access public property to collect
signatures for ballot petitions. Eighth Judicial District Court, Clark County; Kenneth C. Cory,
Judge.
Circulators of referendum and initiative petitions for general election ballot brought action
against state university and county regional transit commission, alleging defendants were
unlawfully restricting access to their property for signature-collecting purposes. The district
court granted preliminary injunction against defendants. Defendants appealed. The supreme
court held that: (1) county regional transit commission's transit hub was limited public
forum; (2) area of state university campus, at which referendum and initiative petitions were
circulated, was limited public forum; (3) transit commission's and university's time, place,
and manner restrictions were constitutionally reasonable; (4) statutory right to circulate
petitions at government-occupied buildings excludes buildings actually physically occupied
by private parties during desired period of signature gathering; and (5) transit commission's
time, place, and manner restrictions were not reasonable, in light of circulators' statutory
rights.
Bart J. Patterson, Associate General Counsel, Las Vegas, for Appellant University and
Community College System of Nevada.
Erickson Thorpe & Swainston, Ltd., and Thomas P. Beko and Rebecca Bruch, Reno, for
Appellant Regional Transportation Commission of Washoe County.
Hansen & Hansen, LLC, and Joel F. Hansen, Las Vegas, for Respondent.
Even if appeal, by state university and county regional transit commission, from
district court's preliminary injunction enjoining them from unlawfully restricting access
to their property by circulators of referendum and initiative petitions for general
election ballot was moot because time period for gathering signatures had ended, the
matter was capable of repetition yet evading review, as exception to mootness doctrine.
Circulators had relatively short time in which to gather signatures because Nevada
Legislature convened biennially, and determining reasonableness of time, place, and
manner restrictions on signature gathering required intensive inquiry by district
court into particular facts of each case.
had relatively short time in which to gather signatures because Nevada Legislature
convened biennially, and determining reasonableness of time, place, and manner
restrictions on signature gathering required intensive inquiry by district court into
particular facts of each case.
2. Action.
The duty of every judicial tribunal is to decide actual controversies by a judgment
that can be carried into effect, and not to give opinions upon moot questions or abstract
propositions, or to declare principles of law that cannot affect the matter in issue before
it.
Even when an appeal is moot, the appellate court may consider it when the matter is
4. Injunction.
Determining whether to grant or deny a preliminary injunction is within the district
court's sound discretion.
Appellate review of the grant or denial of a preliminary injunction is limited to the
record, and the district court's decision will not be disturbed absent an abuse of
discretion or unless it is based on an erroneous legal standard.
Factual determinations by the district court, regarding the grant or denial of a
preliminary injunction, will be set aside only when clearly erroneous or not supported
by substantial evidence, but questions of law are reviewed de novo.
7. Injunction.
Before a preliminary injunction will issue, the movant must show: (1) a likelihood of
success on the merits, and (2) a reasonable probability that the nonmoving party's
conduct, if allowed to continue, will cause irreparable harm for which compensatory
damages is an inadequate remedy.
8. Injunction.
In considering preliminary injunctions, courts weigh the potential hardships to the
relative parties and others, and the public interest.
9. Statutes.
The article of the Nevada Constitution expressly recognizing the right to circulate
referendums and petitions grants no broader protection than the First Amendment to the
United States Constitution and the free speech provision of the Nevada Constitution
grant to any covered expressive activity. Const. art. 1, 9; art. 19, 1; U.S. Const.
amend. 1.
The circulation of ballot petitions constitutes core political speech, for which First
Amendment protection is at its zenith. Nevertheless, the First Amendment does not
grant a circulator the right to access all government property without regard to the
nature of the property or the disruption that might be caused. Const. art. 1, 9; art. 19,
1; U.S. Const. amend. 1.
Public forums, for purposes of analyzing the constitutionality of restrictions placed
on protected speech activities that take place on government property, encompass
places that by long tradition or government fiat have been devoted to assembly and
debate, such as streets and parks. Const. art. 1, 9; U.S. Const. amend. 1.
When the government designates a forum as public, it must intend to open the forum
for use by all or part of the public for discourse, in order for the forum to be a public
forum for purposes of analyzing the constitutionality of restrictions placed on
protected speech activities that take place on government property.
for the forum to be a public forum for purposes of analyzing the constitutionality of
restrictions placed on protected speech activities that take place on government
property. Mere permission to freely go onto government land is not enough to create a
designated public forum, and thus, the government does not create a designated public
forum by permitting limited discourse. Const. art. 1, 9; U.S. Const. amend. 1.
Speech in a public forum may be constitutionally regulated by content-neutral time,
place, and manner restrictions that are narrowly tailored to serve a significant
government interest and leave open ample alternative channels of communication.
Const. art. 1, 9; U.S. Const. amend. 1.
A limited public forum, for purposes of analyzing the constitutionality of restrictions
placed on protected speech activities that take place on government property, is created
when a state designates an area for speech activities by certain groups or for certain
subjects. Const. art. 1, 9; U.S. Const. amend. 1.
For a forum to be a limited public forum, for purposes of analyzing the
constitutionality of restrictions placed on protected speech activities that take place on
government property, the state must respect the lawful boundaries it has itself set for
the forum. Const. art. 1, 9; U.S. Const. amend. 1.
When either nonpublic forums or limited public forums are involved, government
restrictions on time, place, and manner of speech will be upheld as constitutional if they
are viewpoint neutral and related to a legitimate government purpose served by the
forum. Const. art. 1, 9; U.S. Const. amend. 1.
The government's decision to restrict access to a nonpublic forum, for purposes of
speech, need only be reasonable to be constitutional; it need not be the most reasonable
or the only reasonable limitation. Const. art. 1, 9; U.S. Const. amend. 1.
In determining whether a forum is public or nonpublic, for purposes of analyzing the
constitutionality of restrictions placed on protected speech activities that take place on
government property, courts consider the policy and practice of the government and the
nature of the property and its compatibility with expressive activity. Const. art. 1, 9;
The property should not be identified on its own basis, but rather in light of the
access sought, when determining whether the property is a public forum or a nonpublic
forum, for purposes of analyzing the constitutionality of restrictions placed on protected
speech activities that take place on government property. Const. art. 1, 9; U.S. Const.
amend. 1.
County regional transit commission's transit hub was limited public forum, for
purposes of determining the constitutionality of commission's time, place, and manner
restrictions of activities of circulators of referendum and initiative petitions for general
election ballot. While commission had statutory obligation to provide areas for
signature gathering by circulators, the statute gave no right to general public to engage
in any type of speech activity that would normally be permitted in traditional public
forum, and if unrestricted expressive activity was allowed, principal operations of
transportation system could be severely disrupted because hub had limited space
and patrons had limited time to make transit connections.
public forum, and if unrestricted expressive activity was allowed, principal operations
of transportation system could be severely disrupted because hub had limited space and
patrons had limited time to make transit connections. Const. art. 1, 9; art. 19, 1;
Area of state university campus, at which referendum and initiative petitions for
general election ballot were circulated, was limited public forum, for purposes of
determining constitutionality of university's time, place, and manner restrictions of
activities of circulator, where university had designated certain areas as public forums
for speech activity by general public, circulator was not in a designated area, and
circulator was not a student. Const. art. 1, 9; art. 19, 1; U.S. Const. amend. 1; NRS
293.127565.
22. Constitutional Law; Statutes.
County regional transit commission's and state university's time, place, and manner
restrictions for activities of circulators of referendum and initiative petitions for general
election ballot, at transit hub and on campus, were reasonable, as element for
permissible constitutional restrictions in limited public forums; commission required
advance notice, required identification of petition's subject and of petition circulator,
required pre-authorization, restricting physical placement of designated
signature-gathering area, and required circulator to agree, in writing, to abide by certain
guidelines. Const. art. 1, 9; art. 19, 1; U.S. Const. amend. 1; NRS 293.127565.
23. Statutes.
Statute permitting circulators of referendum and initiative petitions to access
government-occupied premises that have not traditionally been accessible for
expressive activities grants petition circulators broader free speech rights than those
protected by the First Amendment. U.S. Const. amend. 1; NRS 293.127565.
24. Statutes.
In construing a statute, a court should consider multiple legislative provisions as a
whole.
25. Statutes.
The language of a statute should be given its plain meaning unless doing so violates
the spirit of the act.
26. Statutes.
When a statute is clear on its face, a court may not go beyond the language of the
statute in determining the legislature's intent.
27. Statutes.
A statute is ambiguous, so that a court may look to reason and public policy to
determine what the legislature intended, when it is capable of being understood in two
or more senses by reasonably informed persons.
28. Statutes.
The meaning of the words used in the statute may be determined by examining the
context and the spirit of the law or the causes that induced the legislature to enact it.
29. Statutes.
A statute must be examined as a whole and, if possible, read to give meaning to all
of its provisions.
30. Statutes.
Occupied, within meaning of statute permitting circulators of referendum and
initiative petitions to access government-occupied premises that have not traditionally
been accessible for expressive activities, means buildings actually physically occupied
by the government during the desired period of signature gathering, and excludes
buildings actually physically occupied by private parties during the desired period of
signature gathering.
buildings actually physically occupied by the government during the desired period of
signature gathering, and excludes buildings actually physically occupied by private
parties during the desired period of signature gathering. NRS 293.127565.
31. Statutes.
Statute providing that public officers may not deny circulators of referendum and
initiative petitions access to government-occupied premises designated for signature
gathering does not preclude reasonable time, place, and manner restrictions on
signature gathering; rather, the statute prohibits viewpoint-based discrimination. NRS
293.127565.
32. Statutes.
County regional transit commission's requirement that circulators of referendum and
initiative petitions at transit hub strictly comply with three-day advance notice
requirement was not a reasonable time, place, or manner restriction, for purposes of
statute permitting circulators of referendum and initiative petitions to access
government-occupied premises that have not traditionally been accessible for
expressive activities. NRS 293.127565.
33. Statutes.
County regional transit commission's requirement that circulators of referendum and
initiative petitions at transit hub stay in designated areas that would allow patrons to
completely avoid the circulators was not a reasonable time, place, or manner restriction,
for purposes of statute permitting circulators of referendum and initiative petitions to
access government-occupied premises that have not traditionally been accessible for
expressive activities. NRS 293.127565.
1

OPINION
Per Curiam:
In this appeal, we examine the constitutional and statutory boundaries of the government's
right to impose time, place, and manner restrictions on the use of its property for
petition-circulating activities. The First Amendment to the United States Constitution and
Article 1, Section 9 of the Nevada Constitution protect the rights of persons to engage in
expressive speech activity. Similarly, Article 19 of the Nevada Constitution expresses the
popular right to circulate referendum and initiative petitions in Nevada. Finally, NRS
293.127565 governs the right to use public buildings to collect petition signatures.
The district court determined that actions taken by certain governmental actors, including
appellants, to restrict respondent's petition-circulating activities on their respective properties
unlawfully violated respondent's constitutional and statutory rights. Further, it determined that
if appellants' actions were allowed to continue, respondent's signature-gathering abilities
would be irreparably harmed.
____________________

1
The Honorable Michael L. Douglas, Justice, voluntarily recused himself from participation in the decision of
this matter.
continue, respondent's signature-gathering abilities would be irreparably harmed.
Accordingly, the district court issued a preliminary injunction, enjoining appellants from
further interfering with respondent's exercise of its rights. This appeal followed.
We conclude that the district court erred in determining that appellants' time, place, and
manner restrictions unconstitutionally violated respondent's right to gather signatures.
Further, we conclude that the district court erred, with respect to appellant University and
Community College System of Nevada, in determining that NRS 293.127565 applied to
prohibit enforcement of the University of Nevada, Las Vegas expressive-activities policy.
Finally, we agree with the district court's conclusion that some provisions within appellant
Regional Transportation Commission's guidelines constitute impermissible restrictions under
NRS 293.127565.
FACTS
In Nevada, petition circulators have a limited amount of time within which to collect
signatures on proposed ballot measures and to transmit their signed petition documents to the
county clerks for signature verification, who must then submit verified petitions to the
Secretary of State for ballot placement within constitutional time frames.
2
From late-2003 to
mid-2004, respondent Nevadans for Sound Government's (NSG) petition circulators gathered
signatures on two petitions containing measures to be placed on the November 2004 ballot: a
referendum petition, with an initial submission deadline of May 18, 2004, and an initiative
petition, with an initial submission deadline of June 15, 2004. On May 28, 2004, NSG filed
an amended complaint in the district court, alleging that various actions taken during the
previous months by Nevada's Department of Motor Vehicles (DMV), and appellants Regional
Transportation Commission of Washoe County (RTC) and University and Community
College System of Nevada (UCCSN), had unlawfully restricted its access to DMV, RTC, and
UCCSN properties for signature collecting purposes. As the DMV has not appealed, only the
RTC and UCCSN actions are at issue.
____________________

2
See Nev. Const. art. 19, 1(2) (providing that a referendum signed by registered voters equaling ten percent
or more of the number of voters who voted at the preceding general election must be submitted for a vote when
filed with the Secretary of State no later than 120 days before the next general election); id. 2(2), (4)
(essentially providing that an initiative proposing a constitutional amendment and signed by registered voters
equaling ten percent or more of the voters who voted at the preceding general election in seventy-five percent of
the counties and the entire state must be filed with the Secretary not less than 90 days before the general
election); NRS 295.056(3), (4) (requiring petitions for constitutional amendment initiatives and referendums to
be submitted to the county clerks for signature verification by the third Tuesday in June and the third Tuesday in
May, respectively).
RTC property
RTC guidelines essentially restrict the use of designated areas to persons who are
gathering signatures for petitions governed by NRS Chapter 293, including initiative,
referendum, and recall of public officer petitions. The guidelines establish that, when
possible, the designated area will be such that . . . [patrons] may use another path that does
not go by signature gatherers or may pass them at a reasonable distance. However, the
precise locations of the designated areas are not indicated in the guidelines. The guidelines
further provide that an RTC request form must be submitted three business days before the
date of the intended activity. The request form asks for the name, telephone number, and
organization of the requestor. It also asks for the subject of the petition, and whether it is for
city, county, or state elections. Finally, it asks the requestor for the dates on which the activity
is to occur. There is a space for the requestor to sign the form, thereby agreeing to comply
with RTC guidelines.
Under the guidelines, only petition circulators gathering signatures on petitions for city,
county, or state-wide elections who have given adequate notice in accordance with [RTC]
guidelines shall be permitted to conduct the signature gathering activity. The guidelines state
that the RTC will contact [the requestor] no later than two business days after receiving [the]
request to confirm that [the requested] activity qualifies under the provisions of NRS
293.127565.
3
Additionally, the guidelines provide that failure to comply with their
restrictions will result in the immediate revocation of any permission to use RTC facilities for
signature gathering.
On May 6, 2004, one of NSG's directors called the RTC to discuss alleged problems that
NSG members had encountered when they attempted to access RTC's CitiCenter hub in Reno
to gather signatures. She was directed to RTC chief legal counsel Stan Peck, on whose
voicemail she left a message. When Peck returned her call, she asserted that she was thereby
notifying him of NSG's intent to petition on RTC premises anytime between then and June
15. Although the NSG director noted her disagreement with Peck's response that she would
first have to fill out some paperwork, Peck nevertheless faxed her copies of the RTC
guidelines and request form.
According to the NSG director, she and her companions arrived that same day (May 6),
began to gather signatures, and were told by RTC employees that they had to sign the request
form or cease gathering signatures. They refused to sign or leave, and were eventually
arrested by Reno police officers. The director testified that, on May 6, no one ever told her
where RTC's designated signature-gathering area was located.
____________________

3
RTC representatives testified that the guidelines have since been amended to provide for RTC's response
within one business day, but that it has never taken longer than two hours to respond to a request.
on May 6, no one ever told her where RTC's designated signature-gathering area was located.
UCCSN property
The University of Nevada, Las Vegas (UNLV) deems its campus and facilities a
non-public forum, except for certain areas expressly listed, which are open to the public for
First Amendment activities. The designated areas include the academic malls and alumni
walk, and are designed to reach approximately seventy-five percent of the students, faculty,
and staff on campus on any given day. The policy requires notification to the University
Public Affairs Office by anyone intending to use the premises for expressive activities.
UNLV also has a form seeking the requestor's name and contact information, which the
requestor must sign. UNLV does not have a set policy regarding how much advance notice
must be given and does not attempt to verify the type of petition being circulated. Further,
although UNLV does not require written acceptance of its guidelines, it expects visitors to
follow those guidelines.
The evidence presented to the district court concerning UCCSN revolved primarily around
an incident outside of UNLV's Artemis W. Ham Concert Hall (Ham Hall) on May 18, 2004.
That night, the Bush Campaign held what UCCSN asserts was a private, ticketed,
invited-guests-only political rally at the hall. The campaign arranged and paid for additional
security directly with the UNLV police department.
An NSG petition circulator testified that he arrived without prior notice on the UNLV
campus around 3:30 or 4:00 p.m. to collect signatures outside Ham Hall. He stated that he
approached the most authoritative person he saw, a UNLV police officer, who directed him
to the other (north) side of the building. The petition circulator testified that he was standing
at the bottom of the northern stairwell, soliciting signatures, when another UNLV police
officer told him that he had to leave because petitioning is not allowed on UNLV property.
According to the circulator, he and the officer had further discourse regarding his
signature-gathering activities, during which the officer blocked his access to exiting persons
and insisted that he move to the side, away from the stairwell. The officer, according to the
circulator, then handcuffed him and led him away from the exit path. The circulator refused
to leave the area and was consequently arrested. He testified that the only other
signature-gathering location offered to him was away from the exits, off UNLV property.
Following the June hearing, the district court determined that NSG's signature-gathering
efforts had been hindered in violation of constitutional and statutory rights and, accordingly,
issued an order granting a preliminary injunction.
granting a preliminary injunction. Specifically, the district court noted the above incidents,
made findings as to similar events at DMV locations, and stated that [t]he record is replete
with testimony of instances where the [government actors] forced [NSG] group members and
agents to leave state public buildings for lack of official authorization to be circulating
petitions on the premises, and instances of denial of [NSG's] asserted right to use the
building[s]. The court rejected appellants' arguments that their actions were taken pursuant
to permissible time, place, and manner restrictions, and enjoined them from further acting to
prevent NSG from the full enjoyment of its rights. In addition, the district court's order
directed the county clerks to accept the two petitions for filing through the close of business
July 20, 2004, and the Secretary of State to expedite his respective ballot duties by
advancing formation of a pro/con committee. UCCSN and RTC appeal from the preliminary
injunction prohibiting them from enforcing their expressive-activity policies.
DISCUSSION
Mootness
[Headnotes 1, 2]
Initially, we note that NSG's signature-gathering activities for the November 2004 ballot
have concluded. Normally, a controversy must be live through all stages of the proceeding.
4
[T]he duty of every judicial tribunal is to decide actual controversies by a judgment which
can be carried into effect, and not to give opinions upon moot questions or abstract
propositions, or to declare principles of law which cannot affect the matter in issue before it.
5
Thus, this court has long recognized that cases presenting live controversies at the time of
their inception may become moot by the occurrence of subsequent events.
6
In the present
matter, when NSG submitted its initiative petition and referendum to the county clerks, it
arguably rendered the appeal moot.
[Headnote 3]
Even when an appeal is moot, however, this court may consider it when the matter is
7
This exception applies to the present controversy.
____________________

4
See Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997); Lewis v. Continental Bank Corp., 494
U.S. 472, 477-78 (1990).

5
NCAA v. University of Nevada, 97 Nev. 56, 57, 624 P.2d 10, 10 (1981).

6
Wedekind v. Bell, 26 Nev. 395, 413-15, 69 P. 612, 613-14 (1902).

7
Traffic Control Servs. v. United Rentals, 120 Nev. 168, 171-72, 87 P.3d 1054, 1057 (2004) (recognizing
that the capable of repetition, yet evading review exception to the mootness doctrine applies when the duration
of the challenged action is relatively short, and there is a likelihood that a similar issue will arise in the
future).
Since Nevada's Legislature convenes biennially, persons soliciting signatures for an
initiative or referendum have a relatively short time in which to gather signatures. Further,
determining whether time, place, and manner restrictions on signature gathering were
reasonable necessarily requires an intensive factual inquiry into the particular facts of each
case. Therefore, a party seeking redress must bring his or her complaint to the district court in
the first instance.
8
It is highly likely that this issue will be raised again in the future, yet
evade review. Accordingly, we conclude that the repetition exception applies and, although
the time for gathering signatures has ended, we will consider this appeal.
The injunction
[Headnotes 4-6]
Determining whether to grant or deny a preliminary injunction is within the district court's
sound discretion.
9
Review on appeal is limited to the record, and the district court's decision
will not be disturbed absent an abuse of discretion or unless it is based on an erroneous legal
standard.
10
Factual determinations will be set aside only when clearly erroneous or not
supported by substantial evidence, but questions of law are reviewed de novo.
11

[Headnotes 7, 8]
NRS 33.010(1) authorizes an injunction when it appears from the complaint that the
plaintiff is entitled to the relief requested and at least part of the relief consists of restraining
the challenged act. Before a preliminary injunction will issue, the applicant must show (1) a
likelihood of success on the merits; and (2) a reasonable probability that the non-moving
party's conduct, if allowed to continue, will cause irreparable harm for which compensatory
damage is an inadequate remedy.
12
In considering preliminary injunctions, courts also
weigh the potential hardships to the relative parties and others, and the public interest.
13

____________________

8
Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 604, 637 P.2d 534, 536 (1981) (noting that when
factual, rather than legal, issues are presented, this court will not exercise its discretion to consider an original
extraordinary writ petition, even when important public interests are involved).

9
Attorney General v. NOS Communications, 120 Nev. 65, 67, 84 P.3d 1052, 1053 (2004); S.O.C., Inc. v. The
Mirage Casino-Hotel, 117 Nev. 403, 407, 23 P.3d 243, 246 (2001); Dangberg Holdings v. Douglas Co., 115
Nev. 129, 142-43, 978 P.2d 311, 319 (1999).

10
Id.

11
S.O.C., Inc., 117 Nev. at 407, 23 P.3d at 246.

12
Id. at 408, 23 P.3d at 246 (citing Dangberg Holdings, 115 Nev. at 142-43, 978 P.2d at 319).

13
See, e.g., Clark Co. School Dist. v. Buchanan, 112 Nev. 1146, 1150, 924 P.2d 716, 719 (1996).
Appellants argue that the district court committed several legal errors in determining that
their actions, allegedly taken pursuant to internal time, place, and manner restrictions,
violated NSG's constitutional and statutory rights. In particular, appellants assert that the
district court improperly failed to consider the character of the forum in which NSG was
attempting to collect signatures, and erroneously interpreted NRS 293.127565 as limiting
their ability to impose reasonable restrictions regarding signature gathering on their premises.
Finally, to the extent that it was used to grant NSG injunctive relief, appellants challenge the
district court's underlying authority to postpone the date by which NSG's petitions had to be
filed. Because this decision addresses the substance of RTC's and UCCSN's appellate
concerns, we do not reach appellants' additional arguments regarding the time extension.
I. Constitutional challenge
Freedom of speech
[Headnote 9]
The First Amendment to the United States Constitution, as applied to state governments
through the Fourteenth Amendment,
14
prohibits a state from abridging the freedom of
speech.
15
Similarly, Article 1, Section 9 of the Nevada Constitution protects the general
right of the people to engage in expressive activities in this state. We have held that Article 1,
Section 9 affords no greater protection to speech activity than does the First Amendment to
the United States Constitution.
16
Further, while Article 19 of the Nevada Constitution
expressly recognizes the right to engage in a specific type of expressive activity, including the
right to circulate referendums and petitions, that provision likewise grants no broader
protection than the First Amendment and Article 1, Section 9 of the Nevada Constitution
grant to any covered expressive activity. Therefore, under the Nevada Constitution, the
appropriate analysis of appellants' restrictions is identical to that under the First Amendment.
17

[Headnote 10]
As pointed out by the district court, the circulation of ballot petitions constitutes core
political speech
18
for which First Amendment protection is at its zenith.
19
Nevertheless,
the First Amendment does not grant a circulator the right to access all "[g]overnment
property without regard to the nature of the property or to the disruption that might be
caused.
____________________

14
Neither appellant contests state actor status.

15
Meyer v. Grant, 486 U.S. 414, 420 (1988) (quoting the First Amendment to the United States Constitution).

16
S.O.C., Inc., 117 Nev. at 415, 23 P.3d at 251.

17
See id.

18
Meyer, 486 U.S. at 422.

19
Amendment does not grant a circulator the right to access all [g]overnment property without
regard to the nature of the property or to the disruption that might be caused.
20

Time, place, and manner restrictions under the First Amendment
[Headnotes 11-13]
When analyzing the constitutionality of restrictions placed on protected speech activities
that take place on government property, the United States Supreme Court has differentiated
between public and nonpublic forums.
21
Public forums encompass places which by long
tradition or government fiat have been devoted to assembly and debate,' such as streets and
parks.
22
Public forums may also be created by government designation.
23
However, when
the government designates a forum as public, it must intend to open the forum for use by all
or part of the public for discourse.
24
Mere permission to freely go onto government land is
not enough to create a designated public forum.
25
Thus, the government does not create a
designated public forum by permitting limited discourse. '
26
Speech in a public forum
may be regulated by content-neutral time, place, and manner restrictions that are narrowly
tailored to serve a significant government interest, and leave open ample alternative channels
of communication.
27

[Headnotes 14-17]
All remaining property is nonpublic fora.
28
Within the non-public forum description, at
least for standard of review purposes, falls a subset, the limited public forum.'
29
A
limited public forum is created when a state designates an area for speech activities by
certain groups or for certain subjects.
____________________

20
Cornelius v. NAACP Legal Defense & Ed. Fund, 473 U.S. 788, 799-800 (1985).

21
International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678-79 (1992); see also Perry Ed.
Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983).

22
S.O.C., Inc., 117 Nev. at 411-12, 23 P.3d at 249 (quoting Perry Ed. Assn., 460 U.S. at 45).

23
Krishna Consciousness, 505 U.S. at 679-80.

24
Id. at 680.

25
Id.

26
PMG Intern. Div. L.L.C. v. Rumsfeld, 303 F.3d 1163, 1170 (9th Cir. 2002) (quoting General Media
Communications, Inc. v. Cohen, 131 F.3d 273, 279 (2d Cir. 1997) (quoting Cornelius, 473 U.S. at 802)).

27
Perry Ed. Assn., 460 U.S. at 45-46.

28
Hills v. Scottsdale Unified School Dist. No. 48, 329 F.3d 1044, 1049 (9th Cir. 2003).

29
Id. (quoting DiLoreto v. Downey Unified School Dist. Bd. Educ., 196 F.3d 958, 965 (9th Cir. 1999)). We
note that some courts differentiate between designated and limited public forums, while others treat them as
indistinguishable. See, e.g., Chiu v. Plano Independent School Dist., 260 F.3d 330,
forum is created when a state designates an area for speech activities by certain groups or for
certain subjects.
30
In limited public forums, the state must respect the lawful boundaries it
has itself set.
31
When either nonpublic or limited public forums are involved, government
restrictions on time, place, and manner will be upheld if they are viewpoint neutral and
related to a legitimate government purpose served by the forum.
32
Moreover, [t]he
government's decision to restrict access to a nonpublic forum need only be reasonable; it
need not be the most reasonable or the only reasonable limitation.
33

[Headnotes 18, 19]
In determining whether a forum is public or nonpublic, courts consider the policy and
practice of the government and the nature of the property and its compatibility with
expressive activity.
34
Thus, when expressive activity would disrupt the principal function of
the propertyfor instance, when the property is being used as a commercial enterprisethe
United States Supreme Court has been reluctant to find that the government intended to
designate the forum public.
35
Finally, the property should not be identified on its own basis,
but rather, in light of the access sought.
36

Forum characterization
In order to properly analyze the validity of appellants' actions, we must first determine the
character of the RTC and UCCSN areas to which NSG petition circulators sought access.
37

____________________
345-46 (5th Cir. 2001) (noting that designated public forum and limited public forum are terms not
synonymous and should not be used interchangeably); Hopper v. City of Pasco, 241 F.3d 1067, 1074-75 (9th
Cir. 2001) (differentiating between designated and limited public forums, but recognizing the inconsistency); cf.
Currier v. Potter, 379 F.3d 716, 728 n.8 (9th Cir. 2004) (treating the terms as indistinguishable without noting
the above Ninth Circuit decisions); S.O.C., Inc., 117 Nev. at 411-12, 23 P.3d at 248 (recognizing three types of
forums identified by the United States Supreme Court: traditional public, designated public, and nonpublic).

30
Hills, 329 F.3d at 1049.

31
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).

32
Hills, 329 F.3d at 1049.

33
Cornelius, 473 U.S. at 808.

34
Id. at 802; see also Hills, 329 F.3d at 1049.

35
See Cornelius, 473 U.S. at 804.

36
Id. at 801.

37
See Bolinske v. North Dakota State Fair Ass'n, 522 N.W.2d 426 (N.D. 1994) (applying a forum analysis to
a regulation limiting speech activities at a state fair).
[Headnote 20]
In contending that the RTC CitiCenter is a limited public forum, RTC asserts that its
primary purpose is to allow the transfer of passengers between buses, not to provide a forum
for the free exchange of ideas.
38
RTC notes that before the 2001 enactment of NRS
293.127565, which mandates that petition circulators be permitted to gather signatures at
government-occupied buildings that are open to the general public,
39
its policy prohibited all
solicitation activities. RTC concedes that, under the statute, it was required to open its
facilities to petition circulators for signature-gathering activities. However, according to RTC,
neither the statute nor RTC guidelines compel it to grant access for expressive activity to the
public at large. Therefore, RTC asserts that with the enactment of NRS 293.127565, the state
purposefully created a limited public forum at certain public buildings, including the RTC
CitiCenter. We agree.
Clearly, the RTC CitiCenter was not designed [for] and dedicated to the advancement of
expressive activities.
40
Although NRS 293.127565 creates an obligation for the CitiCenter to
provide areas for signature gathering, the statute applies only to people gathering signatures
for petitions; it does not grant rights to the general public to engage in any type of speech
activity that would normally be permitted in a traditional public forum. Nor does RTC permit
speech activities on its premises other than those mandated by the statute. Further, the
CitiCenter is of limited space and its patrons have limited time in which to make connections.
41
If unrestricted expressive activity were allowed, the principal operations of the
transportation system could be severely disrupted. Accordingly, we conclude that the RTC
CitiCenter is a limited public forum, and RTC policies should be reviewed under the
reasonableness standard generally applied to time, place, and manner restrictions of limited
public and nonpublic forums.
[Headnote 21]
As for UCCSN, it asserts that UNLV's campus is a nonpublic forum [for which it] has
established designated areas for expressive activities" by the public.
____________________

38
Cf. Lehman v. City of Shaker Heights, 418 U.S. 298, 303-04 (1974) (plurality opinion) (noting that the
city's transportation system involved commercial activities designed to promote the effective, safe, and pleasant
transport of passengers and holding that its buses' advertisement spaces were not a public forum).

39
See NRS 293.127565(1).

40
Hills, 329 F.3d at 1049; see also Cornelius, 473 U.S. at 803.

41
RTC representatives testified that approximately 8,000 passengers pass through the CitiCenter hub each
day. Further, RTC noted that the CitiCenter operates on a pulse system, which results in high, often hectic,
congestion at a certain given time.
pressive activities by the public.
42
Typically, when reviewing restrictions placed on
students' speech activities, courts have found university campuses to be designated public
forums.
43
However, when the rights being restricted belong to nonstudents, courts have
generally held university facilities and campuses to be limited public or nonpublic forums.
44

Recently, the Ohio Court of Appeals addressed the issue of designated areas for speech on
college campuses. In State v. Spingola,
45
Ohio University's regulations permitted the use of
six designated areas for speech activities by anyone who applied for and received a permit.
The court determined that the specifically designated areas were public forums, while the
remainder of the campus was a nonpublic forum.
46

Similarly, UNLV's policies designate certain areas for speech activity by the general
public. The policies state that the rest of UNLV's property is a nonpublic forum for purposes
of expressive conduct. While a policy's language should not be the only factor in
determining which type of forum analysis applies, UNLV's practice appears consistent with
this designation and decisional law. Further, NSG has not demonstrated that its petition
circulator was a UNLV student, or that he was attempting to gather signatures in an area
on UNLV's designated areas list.
____________________

42
See Widmar v. Vincent, 454 U.S. 263, 267 n.5 (1981) (noting that, although, for its students, a public
university is like a public forum, the Court has never held that a campus must make all of its facilities equally
available to students and nonstudents alike, or that a university must grant free access to all of its grounds or
buildings).

43
See, e.g., Pro-Life Cougars v. University of Houston, 259 F. Supp. 2d 575, 582 (S.D. Tex. 2003)
(determining that the university and plaza are public fora designated for student speech); cf. Bourgault v.
Yudof, 316 F. Supp. 2d 411, 420 (N.D. Tex. 2004) (concluding that a university that allowed only university
community members to engage in expressive activities on its property created a limited public forum).

44
See, e.g., ACLU Student Chapter v. Mote, 321 F. Supp. 2d 670, 679 (D. Md. 2004) (concluding that a
university campus became a limited public forum when it purposefully opened its doors through policies
allowing speech activities by outsiders on campus only upon invitation of an insider, or in certain designated
areas); see also Widmar, 454 U.S. at 267 n.5 (noting that decisions of this Court have never denied a
university's authority to impose reasonable regulations compatible with [its] mission upon the use of its campus
and facilities).

45
736 N.E.2d 48, 51 (Ohio Ct. App. 1999).

46
Id. at 53; see also Khademi v. South Orange County Community College, 194 F. Supp. 2d 1011, 1024
(C.D. Cal. 2002) (noting that [t]here is no doubt that the fora at issuethe facilities and areas which the college
has made generally available for use by students and the community at largehave been opened up to the
public, and applying strict scrutiny to the restrictions imposed on expressive activities in those areas); cf. Hays
County Guardian v. Supple, 969 F.2d 111, 114 (5th Cir. 1992) (analyzing restrictions applied to student speech
and recognizing that, when university policy allows any group or person to engage in expressive activities on
its campus, the university is a designated public forum).
a UNLV student, or that he was attempting to gather signatures in an area on UNLV's
designated areas list. Accordingly, we conclude that UNLV is a limited public forum and, in
this instance, that its policies regarding expressive activity in nondesignated areas of its
campus are subject to the same reasonableness review as those pertaining to the RTC
CitiCenter.
Restrictions' reasonableness
[Headnote 22]
At issue in this appeal are the RTC and UNLV policies concerning advance notice,
identification of the petition's subject and the petition circulator, pre-authorization, physical
placement of designated signature-gathering area, and the requirement that a petition
circulator agree, in writing, to abide by certain guidelines. Neither written policy
discriminates amongst signature gatherers based on the content of the petition or the
viewpoint of the petition circulator. Therefore, we must decide whether the policies are
reasonable in light of the RTC CitiCenter's transportation purposes and UNLV's educational
purposes.
47

RTC contends that its guidelines were created in order to accommodate petition circulators
while also ensuring the safety and security of RTC patrons and preserving efficient operations
of its transportation system. It asserts that its policy was implemented to deal with several
concerns. For instance, RTC asserts that requiring advance notice, specification of the
requested information, and petition circulators' agreement to abide by the guidelines allow it
to (1) verify that the petition is an authentic NRS Chapter 293 ballot measure, since no other
expressive activity is permitted at RTC locations; (2) timely procure any additional security it
feels might be necessary to curb potential disturbances arising from the contents of the
petition; (3) prevent confusion and unnecessary confrontations with signature gatherers; (4)
provide any additional employees, supervisors, signage, etc., that might be needed to direct
patrons; and (5) coordinate areas with other groups. In addition, with respect to its
designated-area provision, RTC asserts that its CitiCenter is a cramped area in which
patrons are often pressed up to the curb edges, and through which patrons have to quickly
cross in order to make connections, and notes the potential dangers of permitting groups of
signature gatherers or their equipment to become obstacles to unwary or distracted patrons.
____________________

47
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995); see also Capital Leasing of
Ohio v. Columbus Mun. Airport, 13 F. Supp. 2d 640, 661 (S.D. Ohio 1998) (noting that a standard of review
based on reasonableness is fact-based and is dependent on all the circumstances surrounding [a time, place, and
manner] restriction and the reason for its imposition).
UNLV similarly requires advance notice, although of an undetermined period, and that
requestors fill out and sign a form with their names and contact information, indicating the
type of activity involved. UNLV asserts that it asks for notice and the above information in
order to (1) know who to contact if a problem arises, (2) confirm that the use is
noncommercial, (3) keep track of who is on campus for a legitimate purpose, (4) make any
arrangements for unusual events, and (5) explain and provide a map of the designated areas.
NSG counters that the above restrictions impermissibly impede its ability to get signatures.
According to NSG, the typical volunteer or paid per signature status of petition circulators
makes it very difficult to make long-term plans and to coordinate signature-gathering times
and locations, and the advance notice and form fill-out policies discourage would-be
circulators from deciding, on any given day, to go out and collect signatures. NSG
characterizes as unduly burdensome the RTC guidelines' provision stating that the area should
be in an area avoidable by patrons and UNLV's placement of expressive-activity areas away
from Ham Hall's exits, allegedly off UNLV property, given the fact that signatures often have
to be directly solicited. Accordingly, NSG argues that it should not be required to agree to
abide by the rules, because in doing so, it would in effect be agreeing to their validity.
We conclude that, under the First Amendment, the above time, place, and manner
regulations are permissible restrictions related to legitimate government safety and functional
operating purposes. There is nothing inherently unreasonable in requiring a petition circulator
to provide advance notice of his or her intended signature-gathering activities. Advance
notice serves a variety of purposes, including enabling building operators to better
accommodate multiple signature gatherers and individual petition circulators' particular
needs, and to have a chance to make other employees aware of the intended
signature-gathering activities so that they will be able to adjust their duties accordingly.
Additionally, the RTC and UCCSN requirements that a signature gatherer provide his or
her contact information before being allowed to use RTC and UCCSN property are
reasonable. The information is for internal use and does not affect signature gatherers' choices
to remain anonymous to the general public or appear to make them more susceptible to public
harassment or retaliation. Rather, the requested information is reasonably related to RTC and
UCCSN aims of accommodating all requestors and unusual circumstances while maintaining
safe and efficient operations of their affairs.
RTC's requirement that the subject matter of the petition be revealed is reasonably related
to the advancement of its intent to maintain limited public forum status by permitting only
NRS Chapter 293 petition circulators to engage in signature-gathering activities on its
premises, in accordance with NRS 293.127565.
activities on its premises, in accordance with NRS 293.127565.
48
Although RTC asserts that
it may use the information to act based on the content of the petition, for example, to provide
additional security if deemed necessary, there is no indication that it uses the information in
order to deny any signature gatherer access.
Further, RTC and UNLV requirements that circulators obtain approval or
authorization before using the premises is apparently based on completion of the above
requirements, not on the content of the petition or the viewpoint of the petition circulator.
Thus, those requirements are also reasonable means of controlling access to the limited public
forums, thereby enforcing valid restrictions in light of appellants' principal operations.
49
Similar requirements have been upheld by other jurisdictions.
50

Although the exact location of UNLV's designated expressive-activities area during the
Ham Hall incident is unclear, its desire to keep petition circulators from directly blocking the
building's exits is reasonably related to its purpose of maintaining safety and order at the
high-security event. Similarly, noting the congestion difficulties that the CitiCenter faces and
the bus-transfer methods currently employed there, the RTC guideline provision establishing
the designated area in a location avoidable by patrons is reasonably related the CitiCenter's
purpose as a transportation facility. Finally, it follows that RTC's requirement that a requestor
sign the request form, thereby agreeing to abide by its constitutionally permissible guidelines,
is likewise reasonable.
51

____________________

48
NSG argues that NRS 293.127565 applies to any petition whatsoever, and, therefore, it is unnecessary for
appellants to inquire about a petition's subject. NSG reasons that the statute's language granting access to any
person gathering signatures on a petition clearly defeats the assumption that the statute only applies to NRS
Chapter 293 petitions, despite its inclusion under NRS Chapter 293. NSG is mistaken as to the scope of NRS
293.127565. The statute's inclusion in NRS Chapter 293 clearly denotes its application to a person gathering
signatures on any petition to be submitted for placement on a ballot during any election governed by NRS 293,
including the initiative, referendum, and recall petitions pertaining to cities, see NRS 293.126, counties, and the
state, and there is no indication that it was intended to apply to matters beyond the reach of NRS Chapter 293.

49
Permit requirements are not per se unconstitutional; similar requirements have been upheld even under
strict scrutiny. See, e.g., Thomas v. Chicago Park Dist., 534 U.S. 316 (2002).

50
See, e.g., Bolinske, 522 N.W.2d 426 (concluding that a regulation requiring petition circulators to submit an
application for booth rental at a state fair is constitutional); Spingola, 736 N.E.2d 48 (affirming the
constitutionality of a university's regulation mandating that a requestor fill out a reservation form); Mote, 321 F.
Supp. 2d at 681 (What [the speaker] seeks is the freedom to roam the University campus at will and hand out
leaflets to University students, something which the Constitution does not permit him to do.).

51
We recognize that a facially content-neutral, reasonable restriction may be unconstitutionally applied in a
discriminatory manner. To the extent that NSG asserts that appellants' policies were being applied to NSG
signature gatherers
As the above discussion demonstrates, none of the RTC and UCCSN time, place, and
manner restrictions challenged by NSG discriminates amongst petition circulators based on
the content of the petition or the viewpoint of the petition's promoter. Further, all of the
restrictions are reasonable and all are related to RTC's and UCCSN's goals of promoting
safety and efficiency in conducting, respectively, their legitimate transportation and education
purposes. Finally, we note that there is no indication that either RTC or UCCSN policies were
applied to NSG in a discriminatory manner. Accordingly, we move on to NSG's
statutory-based arguments.
II. Statutory challenge
[Headnote 23]
NSG argues that NRS 293.127565 grants petition circulators broader free speech rights
than those protected by the First Amendment.
52
Use of public buildings to gather signatures on petitions; regulations.
1. At each building that is open to the general public and occupied by the
government of this state or a political subdivision of this state or an agency thereof,
other than a building of a public elementary or secondary school, an area must be made
available for the use of any person to gather signatures on a petition at any time that the
building is open to the public. The area must be reasonable and may be inside or
outside of the building. Each public officer or employee in control of the operation of a
building governed by this subsection shall designate and approve the area required by
this subsection for the building.
2. Before a person may use an area designated pursuant to subsection 1, the person
must notify the public officer or employee in control of the operation of the building
governed by subsection 1 of the dates and times that the person intends to use the area
to gather signatures on a petition. The public officer or employee may not deny the
person the use of the area.
3. A person aggrieved by a decision made by a public officer or employee pursuant
to subsection 1 may appeal the decision to the Secretary of State.
____________________
in a discriminatory manner such that other circulators were allowed to collect signatures at government
locations, while it was denied access, NSG has failed to demonstrate that any other person or group similarly
refused to comply with any of the agencies' policies, but was nonetheless permitted to circulate a petition on
RTC or UCCSN premises. Therefore, there is no indication that appellants' policies were in this manner applied
unconstitutionally to NSG.

52
See S.O.C., Inc., 117 Nev. at 414, 23 P.3d at 250 (noting that states may afford individual rights greater
protections than the minimum protections established by the Federal Constitution).
cision to the Secretary of State. The Secretary of State shall review the decision to
determine whether the public officer or employee designated a reasonable area as
required by subsection 1.
As discussed above, the government is not required to grant access to government
premises for expressive-activity purposes when the premises have not traditionally been open
for such purposes. Thus, to the extent that the statute permits petition circulators to access
government-occupied premises that have not traditionally been accessible for expressive
activities, NSG's assertion is correct.
53

Statutory construction
[Headnotes 24-29]
In construing a statute, it is well-established that a court should consider multiple
legislative provisions as a whole,
54
and the language of a statute should be given its plain
meaning unless doing so violates the spirit of the act.
55
Thus, when a statute is clear on its
face, a court may not go beyond the language of the statute in determining the legislature's
intent.
56
A statute is ambiguous, however, when it is capable of being understood in two or
more senses by reasonably informed persons.
57
When a statute is ambiguous, a court may
look to reason and public policy to determine what the legislature intended.
58
The meaning
of the words used may be determined by examining the context and the spirit of the law or the
causes which induced the legislature to enact it.
59
Finally, a statute must be examined as a
whole and, if possible, read to give meaning to all of its provisions.
60

[Headnote 30]
UCCSN asserts that UNLV rented Ham Hall to a private party for a private function and,
therefore, it was not occupied by the government.
61
Because the statute only applies to
stategovernment-occupied buildings, and the hall was leased to a private,
nonstate-government entity, UCCSN argues that NRS 293.127565 does not apply to UNLV
in the present situation.
____________________

53
No party to this appeal challenges the constitutionality of NRS 293.127565.

54

55
McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986).

56
Id.

57
Id. at 649, 730 P.2d at 442.

58
Id.

59
Id. at 650-51, 730 P.2d at 443.

60
Building & Constr. Trades v. Public Works, 108 Nev. 605, 610, 836 P.2d 633, 636 (1992).

61
As noted above, RTC concedes that the CitiCenter is subject to NRS 293.127565.
government-occupied buildings, and the hall was leased to a private, nonstate-government
entity, UCCSN argues that NRS 293.127565 does not apply to UNLV in the present situation.
62

NRS 293.127565, which applies only to buildings occupied by the government of this
state and its subdivisions and agencies, is ambiguous because occupied generally refers to
the act of being in possession or residence.
63
Although UNLV possesses Ham Hall in the
greater sense, the hall was physically occupied, on the afternoon in question, by a private
party. Consequently, the statute could reasonably be interpreted in more than one way. A
review of NRS 293.127565's legislative history, however, reveals that it was only intended to
apply to buildings that are physically occupied by the government at the time in question.
The statute was enacted by Assembly Bill 443.
64
Originally, the bill applied to buildings
owned and occupied by the government.
65
After some concern that a building merely leased
by the government would thereby be excluded, it was proposed that the language be changed
to owned or occupied. It was noted that the disjunctive would significantly broaden the
number of allowed sites.
66
Finally, the owned or was removed, and the language was
changed to its current form.
67
We thereby recognize the Legislature's intent, whether or not a
building is owned by the government, to include within the statute's reach only buildings
actually physically occupied by the government during the desired period of signature
gathering, and to exclude those buildings when they are occupied by private parties. On
public policy grounds, this construction is reasonable as well; requiring buildings to be
available for signature gathering, no matter who actually possesses the building at the
time in question, could not only place the government in an untenable position, it could
also create serious safety issues for the building's patrons and signature gatherers alike.
____________________

62
NSG counters that it was not attempting to access Ham Hall to gather signatures, but rather the campus
grounds outside the building, and that, by specifically exempting elementary and secondary schools from the
statute's reach, the statute obviously includes University campuses in its reach. NSG's argument fails to
acknowledge the statute's application to buildings only, and thus fails to demonstrate how campus grounds are
buildings included in the statute. It further appears that the statute was not intended to apply to all government
property, but rather to government-occupied buildings. See, e.g., Hearing on A.B. 443 Before the Senate Comm.
on Government Affairs, 71st Leg. (Nev., May 9, 2001); 2 Journal S., 71st Sess. 1697 (Nev. 2001). In this
opinion, we do not reach the question of whether and to what extent NRS 293.127565 applies to university
facilities that are not occupied by private parties for private purposes.

63
See, e.g., Webster's New Collegiate Dictionary 817 (9th ed. 1983) (defining occupy as to take or hold
possession of and to reside in as an owner or tenant).

64
2001 Nev. Stat., ch. 294, 2, at 1347.

65
Hearing on A.B. 443 Before the Senate Comm. on Government Affairs, 71st Leg. (Nev., May 9, 2001); 2
Journal S., 71st Sess. 1697 (Nev. 2001).

66
Hearing on A.B. 443 Before the Senate Comm. on Government Affairs, 71st Leg. (Nev., May 9, 2001).

67
See id; 2 Journal S., 71st Sess. 1697 (Nev. 2001).
construction is reasonable as well; requiring buildings to be available for signature gathering,
no matter who actually possesses the building at the time in question, could not only place the
government in an untenable position, it could also create serious safety issues for the
building's patrons and signature gatherers alike. Accordingly, UNLV's Ham Hall is not, in
this instance, subject to the provisions of NRS 293.127565.
Time, place, and manner restrictions in light of NRS 293.127565
[Headnote 31]
Appellants assert that even if the statute applies to them, it neither provides petition
circulators additional protections beyond the First Amendment, nor abrogates their rights to
impose reasonable restrictions on circulators' activities. In contrast, NSG maintains that
notwithstanding any restrictions' constitutional validity, because the statute provides that the
person in control may not deny petition circulators use of the designated area,
68
appellants
may never refuse circulators an area for failure to comply with all of their restrictions. NSG
reads too much into this language.
Taken out of context, this language is ambiguous. When read within the context of the
statutory provision as a whole, however, the may not deny language simply limits
discretion and thereby prohibits viewpoint-based discrimination in government-occupied
buildings. In other words, this provision reiterates that all NRS Chapter 293 petition
circulators have a right to access public buildings, regardless of the petition's content or the
petitioner's viewpoint. Nothing in NRS 293.127565's may not deny language prohibits the
government from imposing constitutionally permissible time, place, and manner restrictions
on signature-gathering activities in areas included within the statute's reach.
Nonetheless, even though a time, place, or manner restriction may be constitutionally
valid, it might not necessarily comport with the spirit and intent of NRS 293.127565. The
background of Assembly Bill 443 demonstrates that it was created in response to some of the
difficulties petition circulators had encountered when attempting to gather signatures at
government buildings.
69
The aims behind Bill 443 were not only to make clear petitioning
was indeed legal at government buildings open to the public, but also to give both building
operators and signature gatherers guidance as to the anticipated expectations of the other.
70
As noted by the United States Supreme Court, " '[t]he securing of sufficient signatures to
place an initiative [or referendum] measure on the ballot is no small undertaking.
____________________

68
NRS 293.127565(2).

69
Hearing on A.B. 443 Before the Assembly Comm. on Elections, Procedures, and Ethics, 71st Leg. (Nev.,
Apr. 3, 2001).

70
Id.
United States Supreme Court, [t]he securing of sufficient signatures to place an initiative
[or referendum] measure on the ballot is no small undertaking.'
71
Yet the right to initiate
change in this state's laws through ballot proposals is one of the basic powers enumerated in
this state's constitution. Accordingly, NRS 293.127(1)(c) expresses the state's public policy
that election laws, enumerated in NRS Chapter 293, should be liberally construed to
effectuate the will of the people. Correspondingly, any time, place, or manner restriction
associated with buildings to which NRS 293.127565 pertains must not work unreasonably, in
light of the totality of the circumstances, so as to deny a petition circulator his or her right to
gather signatures.
[Headnote 32]
In this instance, the enforcement of the RTC restriction requiring a petition circulator to
agree to abide by its guidelines, when viewed in conjunction with the language of two of the
guidelines' provisions, worked to unreasonably deny NSG its statutory right to use the
CitiCenter for signature-gathering purposes. In particular, RTC violated NSG's statutory
rights when it denied access to the CitiCenter to gather signatures based on NSG's refusal to
sign the form indicating its consent to abide by the three-day advance notice requirement and
the provision regarding the designation of an area that allows patrons to completely avoid
petition circulators.
RTC guidelines mandate that circulators provide three days' notice of any intended
signature-gathering activities.
72
Although RTC testified that it does not actually need three
days to prepare for petition circulators, and that most signature-gathering activity is approved
within two hours, the guidelines did not indicate that the three-day requirement could be
shortened.
Nothing in NRS 293.127565 bars the government from requiring notice in advance;
indeed, there may be instances in which advance notice is absolutely necessary to maintain
the government building's functional operations. Nonetheless, depending on the particular
circumstances involved, the strict application of a precise advance notice requirement may
unreasonably deny petition circulators' their statutory right to gather signatures in government
buildings. The spirit and intent with which NRS 293.127565 was enacted prohibits such a
strict application. Therefore, to the extent to which the language of RTC's three-day advance
notice requirement mandates strict compliance, the provision is unreasonable under the
statute.
____________________

71
Meyer, 486 U.S. at 423 (quoting State v. Conifer Enterprises, Inc., 508 P.2d 149, 155 (Wash. 1973)
(Rosellini, J., dissenting) (internal quotation marks omitted)).

72
Again, we note that RTC guidelines now require only two days' notice.
[Headnote 33]
Further, the RTC provision dictating that a designated area should be one that may be
completely avoided by the public could defeat the public building accessibility purposes of
the statute altogether. As NSG notes, signature gatherers often have to solicit signers. The
enforcement of a restriction allowing the government to locate signature-gathering areas so as
to afford signature gatherers no exposure to the public would unreasonably deny petition
circulators' their statutory rights. Therefore, this provision is also unreasonable under the
statute.
It is no surprise, therefore, that NSG petitioners were unwilling to sign a form agreeing to
abide by RTC guidelines. Signing the form, in effect, would have indicated NSG's consent
with any action RTC then took to disallow its immediate activities, since NSG had not
provided three days' notice, even though NSG had attempted to provide at least some notice.
73
In addition, signing the form would, in effect, have indicated its consent to abide by any
RTC decision to locate the designated area in an unacceptable place, thereby arguably
limiting its statutory right to appeal the reasonableness of the designated area.
74
Therefore,
we conclude that, under these particular circumstances, the enforcement of RTC's guidelines
by requiring NSG petition circulators to sign the RTC request form unreasonably denied NSG
the full enjoyment of the statutory right to gather signatures at the RTC CitiCenter building.
CONCLUSION
Although RTC's and UCCSN's time, place, and manner restrictions are constitutionally
valid, NRS 293.127565 must be liberally construed to effect its intent to provide petition
circulators areas at public buildings in which to conduct signature-gathering activities.
____________________

73
Appellants contend that NSG's failure to fully comply with the statute's notice requirements by notifying
the officer or employee in charge thereby excused them from taking any further action to execute the statute's
directives. This argument is overly technical. Although it is undisputed that NSG signature gatherers failed to
directly notify appellants' designees as NRS 293.127565(2) requires, they did attempt to provide notice. The
NSG director testified that she was referred to RTC's legal counsel, who personally responded to her voicemail
and only faxed her forms with the appropriate person's name at the bottom. The NSG circulator at Ham Hall
testified that he approached a UNLV police officer, who addressed his request without directing him to anyone
else. Thus, it appears that all circulators substantially complied with the requirement that they notify the
responsible person, and that appellants' assertions are without merit. Additionally, although UCCSN is not
required, in this instance, to comply with NRS 293.127565, we note that the district court's instructions directing
appellants to provide, immediately upon circulators' arrival, the contact information of each respective building's
supervisor, and directing appellants to maintain the supervisor or a designee on site at all times that their
properties are open to the public, would appear to reasonably resolve any future issues of this nature.

74
See NRS 293.127565(3).
public buildings in which to conduct signature-gathering activities. Therefore, a time, place,
and manner restriction that applies to buildings under the statute's purview must also comport
with the spirit and intent of NRS 293.127565 in light of the particular circumstances. Three
of RTC's guidelines worked to unreasonably deny NSG its statutory right to gather signatures.
However, UNLV's Ham Hall, occupied by a private party for a private event, does not come
within the statute's purview. Accordingly, we affirm that portion of the preliminary injunction
relating to RTC, to the extent that it relates to the guidelines discussed above, and reverse that
portion of the preliminary injunction pertaining to UCCSN.
____________
120 Nev. 736, 736 (2004) NOLM, LLC v. County of Clark
NOLM, LLC, a Nevada Limited Liability Company, Appellant, v. COUNTY OF
CLARK, a Political Subdivision of the State of Nevada, Respondent.
No. 39508
November 18, 2004 100 P.3d 658
Appeal from a district court order reforming a land sale contract. Eighth Judicial District
Court, Clark County; Ronald D. Parraguirre, Judge.
Purchaser of two parcels of land at public auction brought action against county for
trespass, inverse condemnation, and private nuisance after taxes were assessed on parcels.
County answered and counterclaimed, alleging that it had intended to sell only remnants of
parcels at auction and seeking reformation of deed to correct legal description or rescission.
The district court ordered reformation. Purchaser appealed. The supreme court held that: (1)
reformation was appropriate remedy; (2) county was not judicially estopped from seeking
reformation, despite tax notice; (3) purchaser was entitled to partial tax refund; (4) purchaser
was not entitled to reformation of purchase price; and (5) reformation was not a taking.
Affirmed and remanded with instructions.
Law Offices of Kermitt L. Waters and James Jack Leavitt, Brian C. Padgett, Charles E.
Springer, and Kermitt L. Waters, Las Vegas, for Appellant.
Michael K. Mansfield, Las Vegas, for Respondent.
The supreme court reviews the district court's findings of fact for an abuse of
discretion and will not set aside those findings unless they are clearly erroneous or not
The supreme court reviews the construction of a contract de novo.
3. Reformation of Instruments.
Reformation was appropriate remedy to correct deed to land purchased at public
auction in order to reflect county's intent to sell only part of acreage that remained
following road construction, even though county was unilaterally mistaken and risk of
mistake fell on county; purchaser of land knew of county's mistake but failed to bring
mistake to county's attention. Restatement (Second) of Contracts 166.
4. Estoppel; Reformation of Instruments.
County was not judicially estopped from seeking reformation or rescission of
contract that reflected incorrect description of land sold to purchaser at public auction,
even though county taxed purchaser on entire parcels rather than only on remnants that
county intended to sell to purchaser, where county never asserted a contrary position in
a prior judicial or quasi-judicial proceeding, and taxation was in accordance with the
legal conveyance.
Whether judicial estoppel applies is a question of law subject to de novo review.
6. Estoppel.
The primary purpose of judicial estoppel is to protect the judiciary's integrity, and a
court may invoke the doctrine at its discretion.
7. Estoppel.
Judicial estoppel should be applied only when a party's inconsistent position arises
from intentional wrongdoing or an attempt to obtain an unfair advantage.
8. Estoppel.
Judicial estoppel does not preclude changes in position that are not intended to
sabotage the judicial process.
9. Estoppel.
The doctrine of judicial estoppel generally applies when: (1) the same party has
taken two positions; (2) the positions were taken in judicial or quasi-judicial
administrative proceedings; (3) the party was successful in asserting the first position;
(4) the two positions are totally inconsistent; and (5) the first position was not taken as
a result of ignorance, fraud, or mistake.
Purchaser of land at public auction was entitled to partial refund of property taxes
following reformation of contract to reflect that county only intended to sell remnants
of parcels of land after constructing road; tax bills reflected improvements to parcels,
and purchaser did not and would not benefit from the use of the entire parcels.
11. Equity.
In seeking equity, a party is required to do equity.
Purchaser of land at public auction was not entitled to reformation of purchase price,
even though trial court reformed contract to reflect county's intent to sell only land that
remained after road construction project, where land was purchased for $340,000, and
other bidder was adjoining landowner who knew he was bidding for the remnant
parcels only but was prepared to pay up to $335,000 for the remnant parcels.
13. Eminent Domain.
Reformation of contract to reflect land that county actually intended to sell was not a
taking of landowner's property, which he purchased at public auction, as county
neither condemned his property nor acted to diminish his property's worth.
public auction, as county neither condemned his property nor acted to diminish his
property's worth.
Supreme court would not consider landowner's argument regarding reinstatement of
adult use permit, as landowner did not bring issue to trial court's attention until his
motion for reconsideration, which the district court denied, and landowner could not
appeal order denying reconsideration.
No appeal lies from an order denying reconsideration.
Before Shearing, C. J., Becker and Agosti, JJ.
OPINION
Per Curiam:
The issue in this appeal is whether a deed may be reformed in favor of a unilaterally
mistaken party who bears the risk of the mistake, when the opposing party was aware of the
mistake and sought to use it against the mistaken party. Because we conclude that these
circumstances warrant reformation, we affirm the district court's reformation order, but we
remand for a partial refund to the non-mistaken party.
FACTS
After constructing five lanes of roadway as part of the Desert Inn Arterial across a portion
of real property, Clark County sought to sell the remnant portions of two parcels at public
auction. The County advertised the property for sale but failed to provide a new legal
description of the land. Hence, the legal description of the two parcels to be sold was the
same as when the County had acquired them and reflected two parcels totaling 0.92 acre,
rather than the parcels totaling 0.49 acre that the County intended to sell. Neil Ohriner, the
sole owner of appellant NOLM, LLC, examined the property and realized that the legal
description was incorrect. He then submitted a winning bid of $340,000 at the public auction.
The Grant, Bargain and Sale Deed delivered to escrow described the property as the two
whole parcels, totaling 0.92 acre, rather than the two remnant parcels, totaling 0.49 acre.
Ohriner transferred the deed to NOLM after escrow closed.
1

After the sale, the County taxed Ohriner $1,050,480 on one parcel and $81,310 on the
adjoining parcel. The taxes were assessed on the entire parcels, not just the remnants. Ohriner
brought the issue of the widely disparate tax amounts to the County's attention.
____________________

1
Although NOLM is technically the appellant, we refer to Ohriner as the appellant in this opinion.
issue of the widely disparate tax amounts to the County's attention. After the error was
discovered, the County gave Ohriner two options: he could either voluntarily reform the deed
to describe the remnant pieces or he could rescind the contract for the full purchase price plus
taxes. Ohriner rejected both options. Instead, Ohriner filed a complaint against the County,
alleging claims for trespass, inverse condemnation and private nuisance. The County
counterclaimed, seeking reformation of the deed or rescission of the contract, plus attorney
fees and costs.
The record reveals that although Ohriner knew before purchasing the property that the
legal description was wrong, he intended to take advantage of the County's error by using it as
a bargaining chip if the County opposed his application for an adult use permit on the
property. In fact, Ohriner alerted the County to its mistake when he encountered parking
space problems for his intended use of the property.
The district court ordered Ohriner to reform the contract to reflect the property that the
County had intended to sell. Ohriner filed a motion for reconsideration and clarification,
arguing that, if reformation were appropriate, then the purchase price and property taxes
should have been abated. The district court denied the motion for reconsideration. Ohriner
now appeals.
[Headnotes 1, 2]
This court reviews the district court's findings of fact for an abuse of discretion, and this
court will not set aside those findings unless they are clearly erroneous or not supported by
substantial evidence.
2
However, this court reviews the construction of a contract de novo.
3

Ohriner first argues that the land sale agreement unambiguously conveyed parcels totaling
0.92 acre in size to him, and, because the contract is clear, the district court should have
enforced the contract language.
4
Ohriner next argues that because the district court expressly
found that Clark County bore the risk of its mistake, the district court erred as a matter of law
by ordering reformation of the deed. According to Ohriner, the district court's reformation
contravenes this court's opinion in Home Savers v. United Security Co.,
5
in which we
adopted the unilateral mistake rule, as set forth in section 153 of the Restatement (Second) of
Contracts.
____________________

2
Sandy Valley Assocs. v. Sky Ranch Estates, 117 Nev. 948, 954, 35 P.3d 964, 968 (2001).

3
Farmers Ins. Exch. v. Neal, 119 Nev. 62, 64, 64 P.3d 472, 473 (2003).

4
Ellison v. C.S.A.A., 106 Nev. 601, 603, 797 P.2d 975, 977 (1990) (It has long been the policy in Nevada
that absent some countervailing reason, contracts will be construed from the written language and enforced as
written.).

5
103 Nev. 357, 358-59, 741 P.2d 1355, 1356-57 (1987).
[Headnotes 3]
The parties do not dispute that Clark County was unilaterally mistaken as to the
description of the property being sold, that the risk of mistake fell on the County and that
Ohriner knew about the County's mistake. The issue, then, is whether the district court erred
by ordering reformation of the agreement when there was a unilateral mistake, when the
County bore the risk of this mistake and when Ohriner knew about the mistake but failed to
disclose it to the County.
Section 166 of the Restatement provides that:
If a party's manifestation of assent is induced by the other party's fraudulent
misrepresentation as to the contents or effect of a writing evidencing or embodying in
whole or in part an agreement, the court at the request of the recipient may reform the
writing to express the terms of the agreement as asserted,
(a) if the recipient was justified in relying on the misrepresentation, and
(b) except to the extent that rights of third parties such as good faith purchasers for
value will be unfairly affected.
6

The commentary to Restatement section 166 clarifies that the rule also applies when one party
is mistaken and the other party, aware of the mistake, remains silent, because his silence is
equivalent to an assertion that the writing is as the other understands it to be.
7

Furthermore, section 161 of the Restatement provides that a party's silence regarding a fact
is tantamount to a declaration that the fact does not exist:
(b) where he knows that disclosure of the fact would correct a mistake of the other
party as to a basic assumption on which that party is making the contract and if
non-disclosure of the fact amounts to a failure to act in good faith and in accordance
with reasonable standards of fair dealing.
(c) where he knows that disclosure of the fact would correct a mistake of the other
party as to the contents or effect of a writing, evidencing or embodying an agreement in
whole or in part.
8

Most of the western states are in accord with these rules and allow for reformation of an
instrument where one party makes a unilateral mistake and the other party knew about it but
failed to bring it to the mistaken party's attention.
9
For example, in Kish v. Kustura, an
Oregon case, the parties contracted for the sale of real property.
____________________

6
Restatement (Second) of Contracts 166 (1981).

7
Id. 166, cmt. a.

8
Id. 161.

9
See, e.g., Belk v. Martin, 39 P.3d 592, 599 (Idaho 2001) (holding that, where the respondents had made a
typographical error in the lease and the ap-
Kustura, an Oregon case, the parties contracted for the sale of real property.
10
The initial
agreement was formalized in a letter, but the contract terms differed from the letter. The
appellant knew that the contract terms were different, knew that the other party could not read
or speak English and knew that the other party trusted and relied on her representations as to
the contents of the contract. The appellate court determined that the trial court did not err in
reforming the contract to reflect the parties' agreement as embodied in the letter because the
respondent had proven by clear and convincing evidence that an agreement antecedent to the
written contract existed, that appellant's conduct was inequitable and that the other
contracting party's mistake was not the result of gross negligence.
11

While Oregon case law requires, for contract reformation, the existence of an antecedent
agreement which is not later reflected in the actual contract, this requirement is not fatal to
reformation under the circumstances presented in the case at bar. The record reveals that,
although the County and Ohriner had no prior agreement to sell only the remnant parcels at
the auction, the County thought that it was selling the remnant parcels, not the whole parcels.
Ohriner admitted that he knew of the County's error and remained silent because he hoped to
take advantage of the error. His conduct was inequitable and sufficiently analogous to the
conduct in Kish to allow for contract reformation.
12
Furthermore, under the Oregon criterion
that the mistaken party cannot have committed gross negligence, the County was not grossly
negligent in its mistake because the sale was the result of multiple County departments
attempting to coordinate their respective duties, the County departments were in a period of
flux and the sale of the remnant parcels was assigned to a division that had never before
conducted such sales.
____________________
pellant had known about the error but failed to alert the respondents to it, reformation of the lease was
appropriate); Jones v. Reliable Sec. Incorporation, Inc., 28 P.3d 1051, 1062 (Kan. Ct. App. 2001) ([A] written
instrument may be reformed where there is ignorance or mistake on one side and fraud or inequitable conduct on
the other; this can occur where one party to an instrument has made a mistake and the other knows it and fails to
inform him or her of the mistake or conceals the truth from him or her.); Oftedal v. State ex rel. Transp. Com'n,
40 P.3d 349, 352, 359 (Mont. 2002) (allowing reformation of a contract where a contractor had underbid by
such a large amount that the other party was on notice of the mistaken bid); Diamond v. Granite Falls School
Dist., 70 P.3d 966, 971 (Wash. Ct. App. 2003) (holding that, where the school district knew of appellant's
mistake when the parties entered into a contract, the trial court should have relieved appellant from its unilateral
mistake).

10
79 P.3d 337, 339 (Or. Ct. App. 2003).

11
Id. at 341.

12
Id. at 340 (stating that [i]nequitable conduct includes a party's silence where that party knows that the
other party is materially mistaken as to a writing's scope and effect, but remains silent, hoping to take advantage
of the other's mistake' (quoting Pioneer Resources v. D.R. Johnson Lumber, 68 P.3d 233, 253 (Or. Ct. App.
2003))).
County departments were in a period of flux and the sale of the remnant parcels was assigned
to a division that had never before conducted such sales. Miscommunication between
departments is not gross negligence.
13

In Belk v. Martin, an Idaho case very similar to the case at hand, the Idaho Supreme Court
upheld the trial court's decision to reform a lease agreement so that it reflected the parties'
agreed-upon rent of $14,768.00, rather than the amount of $1,476.80 as written in the lease.
14
The court held that, since the respondents had made a typographical error in the lease and the
appellant had known about the error but failed to alert the respondents to it, reformation of
the lease was appropriate.
15

Like the situation in Belk, in which the respondents intended to lease the land for ten times
more than was reflected in the written instrument, the County in this case intended to sell
only remnant parcels, not the entire parcels. Ohriner knew about the misdescription and failed
to bring it to the County's attention; his conduct was like the Belk appellant's silence. And, as
in Belk, this nondisclosure of a material mistake amounted to inequitable conduct.
Given our own case law, the Restatement (Second) of Contracts, and the trend among
other western states to allow reformation, the district court did not err in reforming the
contract between Ohriner and the County to describe the remnant parcels based on the
County's unilateral mistake.
16

[Headnote 4]
Ohriner also argues that the district court erred by reforming the contract because judicial
estoppel precluded the County from seeking reformation or rescission. Ohriner contends that,
since his purchase of the parcels, the County has recognized Ohriner as owner of the entire
parcels by taxing him on the entire parcels.
____________________

13
Oftedal, 40 P.3d at 359 (noting that mere negligence, such as inadvertence, would not preclude a mistaken
party from obtaining equitable relief from the contract terms).

14
39 P.3d at 596, 599; see also Diamond, 70 P.3d at 971 (concluding that, because the school district knew of
appellant's unilateral mistake, the trial court should have relieved appellant from his mistake).

15
Belk, 39 P.3d at 599; see also Andres v. Claassen, 714 P.2d 963, 969-70 (Kan. 1986) (upholding the
district court's reformation of a contract for the sale of real property, where the buyer inserted a clause that
included the seller's reversionary interest in forty-four acres, which the seller did not intend to sell, without
explaining the effect of the clause to the seller, because a written instrument may be reformed where there is
ignorance or a mistake on one side and fraud or inequitable conduct on the other).

16
We further conclude that the contract reformation did not violate the parties' freedom to contract, as
Ohriner knew what the County intended to sell; Ohriner, in turn, intended to take advantage of the County's
mistake.
[Headnotes 5-9]
Whether judicial estoppel applies is a question of law
17
subject to de novo review. The
primary purpose of judicial estoppel is to protect the judiciary's integrity,
18
and a court may
invoke the doctrine at its discretion.
19
However, judicial estoppel should be applied only
when a party's inconsistent position [arises] from intentional wrongdoing or an attempt to
obtain an unfair advantage.
20
Judicial estoppel does not preclude changes in position that
are not intended to sabotage the judicial process.
21

[T]he doctrine generally applies when (1) the same party has taken two positions;
(2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3)
the party was successful in asserting the first position (i.e., the tribunal adopted the
position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the
first position was not taken as a result of ignorance, fraud, or mistake. '
22

Here, the judicial estoppel doctrine does not even apply, as the County never asserted a
contrary position in a prior judicial or quasi-judicial proceeding. Furthermore, although the
County taxed Ohriner on the entire parcels even though it had only intended to convey
remnant parcels, the taxation was in accordance with the legal conveyance. The County does
not dispute that a legal conveyance of the entire parcels occurred; rather, it contends that it
merely intended to sell the remnant pieces and that Ohriner knew of the County's intent when
he purchased the property. The County's taxation of the entire parcels does not judicially
estop the County from seeking reformation or rescission based on its intent to sell only the
remnants.
[Headnotes 10, 11]
Nevertheless, [i]n seeking equity, a party is required to do equity.'
23
By asking the
district court to invoke its equitable powers, the County should also be required "to do
equity" by refunding the portions of the tax payments corresponding to the portions of
the parcels that the County had intended to retain.
____________________

17
Kitty-Anne Music Co. v. Swan, 4 Cal. Rptr. 3d 796, 800 (Ct. App. 2003).

18
Drain v. Betz Laboratories, Inc., 81 Cal. Rptr. 2d 864, 867 (Ct. App. 1999).

19
New Hampshire v. Maine, 532 U.S. 742, 750 (2001).

20
Kitty-Anne Music, 4 Cal. Rptr. 3d at 800.

21
See U.S. v. Real Property Located at Incline Village, 976 F. Supp. 1327, 1340 (D. Nev. 1997).

22
Furia v. Helm, 4 Cal. Rptr. 3d 357, 368 (Ct. App. 2003) (quoting Thomas v. Gordon, 102 Cal. Rptr. 2d
28, 32 (Ct. App. 2000) (quoting Drain, 81 Cal. Rptr. 2d at 868 (quoting Jackson v. County of Los Angeles, 70
Cal. Rptr. 2d 96, 103 (Ct. App. 1997)))).

23
Transaero Land & Dev. v. Land Title, 108 Nev. 997, 1001, 842 P.2d 716, 718 (1992) (alteration in
original) (quoting Overhead Door Co. v. Overhead Door Corp., 103 Nev. 126, 127, 734 P.2d 1233, 1235
(1987)).
the County should also be required to do equity by refunding the portions of the tax
payments corresponding to the portions of the parcels that the County had intended to retain.
The tax bills were substantial in light of the improvements on the parcels. Because Ohriner
did not and will not benefit from the use of the entire parcels, he should not be required to pay
substantially larger tax bills due to the County's improvements on the entire parcels.
Therefore, we conclude that Ohriner is entitled to a partial refund of his property taxes.
[Headnote 12]
Ohriner further argues that, if the district court properly reformed the contract, then the
district court erred by failing to reform the purchase price. Ohriner contends that he should be
compensated for the 0.43 acre portion of the parcels that he was ordered to re-deed to the
County because, otherwise, the order would constitute an unconstitutional taking for a public
use without just compensation. Ohriner also argues that the adult use permit that the County
issued for the entire 0.92 acre parcels should be reinstated, as the evidence at trial established
that the permit was for the 0.49 acre parcels remaining after Ohriner re-deeded the rest to the
County.
With regard to the sale price, we conclude that Ohriner's argument lacks merit. The record
reveals that, at the auction, the property was appraised at $190,000. Ohriner did not even join
the bidding until the $216,000 level. When everyone else had stopped bidding, Ohriner and
Perry Miscelli continued to bid against each other. Miscelli's last bid was for $335,000.
Ohriner purchased the property with a final bid of $340,000. The evidence showed that
Miscelli was the agent of an adjoining landowner to the parcels, that he knew that he was
bidding for the remnant parcels only and that his principal was prepared to pay up to
$335,000 for the adjoining remnant parcels. Given that at least one other bidder was willing
to pay for the remnant parcels the approximate value that Ohriner paid, and given that
Ohriner intended to use the County's mistake as a bargaining chip in obtaining an adult use
permit, we conclude that the district court did not err by refusing to reduce Ohriner's purchase
price.
[Headnote 13]
As to Ohriner's takings argument, we conclude that it lacks merit because the County
neither condemned his property, nor acted to diminish his property's worth; rather, the
contract was reformed to reflect what the County actually intended to sell and what Ohriner
intended to purchase.
[Headnotes 14, 15]
Finally, regarding the reinstatement of the adult use permit, Ohriner did not bring this
issue to the district court's attention until his motion for reconsideration, which the district
court denied.
his motion for reconsideration, which the district court denied. We note that no appeal lies
from an order denying reconsideration, and therefore, we do not consider Ohriner's argument.
24

Accordingly, we affirm the district court's order reforming the land sale contract and
remand this matter with instructions that the district court amend the order to include a partial
property tax refund to Ohriner.
____________
120 Nev. 745, 745 (2004) United Ins. Co. v. Chapman Indus.
UNITED INSURANCE COMPANY OF AMERICA, an Illinois Corporation, Appellant, v.
CHAPMAN INDUSTRIES, an Illinois Limited Partnership; MYRON CHAPMAN;
and AUDREY SCHLOSSBERG, respondents.
No. 39523
November 19, 2004 100 P.3d 664
Rehearing of an appeal from a judgment in a dissenting shareholder appraisal action.
Second Judicial District Court, Washoe County; Charles M. McGee, Judge.
Dissenting shareholders filed suit for appraisal after merger. The district court entered
judgment for the shareholders regarding valuation, awarded attorney fees and costs to
corporation based on a rejected offer of judgment, and denied prejudgment interest. The
parties appealed. The supreme court affirmed in part, vacated in part, and remanded. On
remand, the district court awarded prejudgment interest based on general interest statute and
awarded attorney fees. Corporation appealed. The supreme court held that: (1) special interest
statute applied to action filed before effective date of statute; and (2) the entire judgment,
including prejudgment interest, did not bear postjudgment interest.
Burton Bartlett & Glogovac and C. Thomas Burton Jr. and Gregory J. Livingston, Reno;
Lemons Grundy & Eisenberg and Robert L. Eisenberg, Reno, for Appellant.
Bible, Hoy & Trachok and Michael D. Hoy, Reno, for Respondents.
1. Interest.
The statutory rate in effect when the 1996 final judgment was entered was the
appropriate rate to use in calculating prejudgment interest in dissenting shareholders'
action filed before effective date of the statute. Thus, special interest statute applicable
to dissenting shareholder actions, rather than general interest statute, applied. NRS
92A.340, 99.040.
____________________

24
Alvis v. State, Gaming Control Bd., 99 Nev. 184, 660 P.2d 980 (1983).
A district court's award of attorney fees will not be disturbed on appeal unless there
is a manifest abuse of discretion.
3. Costs.
Corporation's meritorious claim that prejudgment interest should be calculated
pursuant to special interest statute applicable to dissenting shareholder actions was
clearly brought with reasonable grounds, and thus, shareholders were not entitled to
attorney fees. NRS 18.010(2)(b), 92A.340.
4. Interest.
The entire judgment, including prejudgment interest, in dissenting shareholders'
action did not bear postjudgment interest because special interest statute applicable to
dissenting shareholder actions specifies that interest must be computed from the
effective date of the action until the date of payment and provides for a single rate of
interest from the effective date of the action to the date of payment, whenever that
occurs, regardless of when a judgment is entered. NRS 92A.340.
1

2

Per Curiam:
In this appeal, we consider whether prejudgment interest should be calculated pursuant to
a general interest statute, NRS 99.040, or a specific interest statute, NRS 92A.340, in a
dissenting shareholder action that commenced before NRS 92A.340 was enacted. We
conclude that NRS 92A.340 applies.
FACTS
In 1987, respondents Unicoa Corporation shareholders Myron Chapman, Audrey
Schlossberg, and Chapman Industries (collectively Chapman dissenters) dissented when
Unicoa merged into appellant United Insurance Company of America (United). In 1987, the
Chapman dissenters filed suit, seeking an appraisal and payment for their shares.
____________________

1
The Honorable John M. Iroz, Judge of the Sixth Judicial District Court, was designated by the Governor to
sit in place of The Honorable Myron E. Leavitt, Justice. Nev. Const. art. 6, 4. The Honorable Michael L.

2
On February 11, 2004, this court issued an opinion in this appeal affirming in part, reversing in part and
remanding this matter to the district court for further proceedings. Appellant and respondents timely petitioned
for rehearing. On May 5, 2004, we denied respondents' petition for rehearing. On July 22, 2004, we granted
appellant's petition for rehearing pursuant to NRAP 40 and directed the clerk of this court to withdraw the
previous opinion from publication.
In 1995, before a final judgment was entered in this case, the Legislature enacted NRS
92A.340, providing a specific interest rate to be applied in a dissenting shareholder action.
In 1996, the district court entered judgment for the Chapman dissenters regarding the
stock's valuation, awarded attorney fees and costs to United based on a rejected offer of
judgment, and denied the Chapman dissenters prejudgment interest. The parties appealed.
This court affirmed the stock valuation, but vacated the district court order awarding attorney
fees and costs because the offer of judgment was invalid.
On remand, the district court entered a final judgment for the Chapman dissenters, which
calculated prejudgment interest pursuant to a general interest statute, NRS 99.040. The final
judgment states that the entire judgment, including principal and prejudgment interest, shall
bear postjudgment interest. In the final judgment, the district court awarded attorney fees to
the Chapman dissenters, based on NRS 18.010(2)(b), finding that United's claim to calculate
prejudgment interest pursuant to NRS 92A.340 was brought without reasonable ground. This
appeal followed.
DISCUSSION
[Headnote 1]
United argues that the district court should have calculated prejudgment interest pursuant
to the specific interest statute, NRS 92A.340,
3
rather than the general interest statute, NRS
99.040.
4
Before NRS 92A.340 was enacted,
5
prejudgment interest in a dissenting
shareholder action was calculated under NRS 99.040.
____________________

3
NRS 92A.340, providing the interest rate to be applied in dissenting shareholder actions, states:
Interest payable pursuant to NRS 92A.300 to 92A.500, inclusive, must be computed from the effective
date of the action until the date of payment, at the average rate currently paid by the entity on its principal
bank loans or, if it has no bank loans, at a rate that is fair and equitable under all of the circumstances.

4
NRS 99.040(1) provides, in pertinent part:
When there is no express contract in writing fixing a different rate of interest, interest must be allowed at
a rate equal to the prime rate at the largest bank in Nevada, as ascertained by the commissioner of
financial institutions, on January 1 or July 1, as the case may be, immediately preceding the date of the
transaction, plus 2 percent, upon all money from the time it becomes due . . . .

5
When the Legislature enacted NRS 92A.340 in 1995, it repealed an earlier statute, NRS 78.477 (adopted
1991), which provided a specific interest rate to be applied in a dissenting shareholder action. When this
dissenting shareholder action was commenced in 1987, neither NRS 92A.340 nor its nearly identical
predecessor, NRS 78.477 (adopted 1991), existed.
in a dissenting shareholder action was calculated under NRS 99.040.
6

United asks us to follow our 1984 decision in Bing Construction v. Vasey-Scott
Engineering
7
and conclude that NRS 92A.340 applies. We agree that Bing is controlling. In
that case, a cause of action accrued prior to a statutory amendment that increased the
applicable interest rate. This court concluded that the statutory rate in effect when the
judgment was entered was the appropriate interest rate to apply.
8

Applying the general rule from Bing, we conclude that the statutory rate in effect when the
1996 final judgment was entered was the appropriate rate to use in calculating prejudgment
interest. NRS 92A.340 was enacted before the final judgment was entered. The fact that this
case involves a special interest statute is insufficient to deviate from our standard rule set
forth in Bing. Therefore, we conclude that NRS 92A.340 applies and that the district court
erred in calculating prejudgment interest pursuant to the general interest statute.
Next, United argues that the district court abused its discretion in awarding attorney fees
pursuant to NRS 18.010(2)(b). We agree.
[Headnotes 2, 3]
NRS 18.010(2)(b) provides, in pertinent part, that a district court may award attorney fees
to a prevailing party when the court finds that a claim was brought without reasonable ground
or to harass the prevailing party.
9
A district court's award of attorney fees will not be
disturbed on appeal unless there is a manifest abuse of discretion.
10

Based on our conclusion that NRS 92A.340 applies, United's claim that prejudgment
interest should be calculated pursuant to NRS 92A.340 was clearly brought with reasonable
grounds. Therefore, the district court manifestly abused its discretion in awarding attorney
fees to the Chapman dissenters pursuant to NRS 1S.010{2){b).
____________________

6
See Southdown, Inc. v. McGinnis, 89 Nev. 184, 194, 510 P.2d 636, 642 (1973).

7
100 Nev. 72, 674 P.2d 1107 (1984).

8
See id. at 74 n.1, 674 P.2d at 1108 n.1; see also Wilson v. Pacific Maxon, Inc., 102 Nev. 52, 55, 714 P.2d
1001, 1003 (1986) (concluding that the statutory rate in effect upon entry of judgment was the appropriate rate
to apply, which is consistent with case law interpreting NRS 99.040 to include prejudgment and postjudgment
interest).

9
See also Duff v. Foster, 110 Nev. 1306, 1308-09, 885 P.2d 589, 591-92 (1994) (concluding that the proper
inquiry under NRS 18.010(2)(b) is whether the claim was brought without reasonable grounds), overruled on
other grounds by Halbrook v. Halbrook, 114 Nev. 1455, 971 P.2d 1262 (1998).

10
Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 26, 866 P.2d 1138, 1139-40 (1994).
in awarding attorney fees to the Chapman dissenters pursuant to NRS 18.010(2)(b).
11

[Headnote 4]
Finally, United argues that the district court erred in allowing the entire judgment,
including prejudgment interest, to bear postjudgment interest. We agree.
This court has previously permitted an entire judgment, including prejudgment interest, to
bear postjudgment interest.
12
However, NRS 92A.340, which controls the award of interest
in this case, specifies that interest must be computed from the effective date of the action
until the date of payment. This statute provides for a single rate of interest from the effective
date of the action to the date of payment, whenever that occurs, regardless of when a
judgment is entered. Thus, our general holdings regarding post-judgment interest do not apply
in light of the specific provisions of NRS 92A.340. Accordingly, we conclude that the district
court erred in allowing the entire judgment to bear postjudgment interest.
CONCLUSION
The statutory rate in effect when the final judgment was entered, set forth in NRS
92A.340, was the appropriate rate to calculate interest. Additionally, the district court abused
its discretion in awarding fees under NRS 18.010(2)(b). Therefore, we reverse the portions of
the judgment calculating interest pursuant to NRS 99.040 and awarding attorney fees, and we
remand the matter for further proceedings consistent with this opinion.
____________________

11
See Key Bank v. Donnels, 106 Nev. 49, 53, 787 P.2d 382, 385 (1990) (determining that, where the law was
not free from doubt and a complaint presented complex legal questions concerning statutory interpretation and
legislative intent, the district court abused its discretion in awarding attorney fees on the basis of NRS
18.010(2)(b)); Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 995, 860 P.2d 720, 724 (1993) (noting that an award
made in clear disregard of guiding legal principles may constitute an abuse of discretion).

12
Uniroyal Goodrich Tire v. Mercer, 111 Nev. 318, 325, 890 P.2d 785, 790 (1995) (concluding that the
weight of authority in other jurisdictions favors the allowance of postjudgment interest on prejudgment interest).
____________
120 Nev. 750, 750 (2004) Mainor v. Nault
W. RANDALL MAINOR, Individually; RICHARD A. HARRIS, Individually; MAINOR &
HARRIS, LAWYERS, a Partnership of Professional Corporations; W. RANDALL
MAINOR, a Professional Corporation; and RICHARD A. HARRIS, a Professional
Corporation, Appellants/Cross-Respondents, v. PHILIP M. NAULT and WENDY R.
NAULT, Co-Guardians of the Person and Estate of JASON NAULT, an Adult Ward,
No. 39561
November 22, 2004 101 P.3d 308
Appeal from a final judgment entered after a jury verdict against appellants in a legal
malpractice action, and cross-appeal from a district court order offsetting the final judgment
against respondents. Eighth Judicial District Court, Clark County; Valorie Vega, Judge.
Parents and guardians of incompetent adult son, who was in a permanent vegetative state,
brought legal malpractice action on son's behalf against son's wife and law firm and attorneys
involved in settlement of son's medical malpractice claim. The district court entered judgment
on a jury verdict in favor of parents for $3.25 million, but offset the award by $400,000 to
reflect settlement with one attorney. In cross-appeals, the supreme court held that: (1) district
court had sufficient information to approve medical malpractice settlement for incompetent
adult, (2) failure to appoint an independent guardian did not void medical malpractice
settlement, (3) parents ratified validity of district court's settlement approval by their conduct,
(4) parents were precluded from bringing legal malpractice action on the grounds that wife
was unjustly enriched in medical malpractice settlement, (5) parents were not judicially
estopped from bringing legal malpractice action, (6) attorneys' alleged violation of ethics
rules did not create a cause of action, (7) incompetent son was entitled to be present during
jury selection in legal malpractice trial, and (8) evidence was insufficient to support finding of
legal malpractice.
Reversed.
[Rehearing denied April 13, 2005]
Lemons Grundy & Eisenberg and Robert L. Eisenberg, Reno; Wait Law Firm and Eugene
J. Wait Jr., Reno, for Appellants/Cross-Respondents.
Gary Logan, Las Vegas, for Respondents/Cross-Appellants.
No appeal may be taken from an order denying a post-judgment motion for
judgment notwithstanding the verdict.
The supreme court will not disturb the district court's findings of fact if they are
3. Compromise and Settlement.
District court that approved settlement of medical malpractice claims brought on
behalf of incompetent husband, who was in a permanent vegetative state, by wife had
sufficient information to determine that husband's needs would be met by the settlement
and that the settlement was fair and reasonable, even though the court did not mention
in its approval the amount of money wife received in the settlement; due to the fact that
wife was not a ward under guardianship, the court was not required to approve
settlement on her claims.
4. Compromise and Settlement.
Failure to appoint an independent guardian for husband, who was in a permanent
vegetative state, did not void settlement of husband's medical malpractice claims
entered into by wife, who was husband's guardian; there was no evidence that the
district court that approved the settlement was biased toward any party and, even if the
wife's guardianship created a conflict of interest, there was no evidence that husband's
needs were not fully met by the settlement.
Substantive due process concerns the adequacy of the government's reason for
depriving a person of life, liberty, or property; it is not meant to protect against alleged
fraud upon the court by private individuals.
6. Mental Health.
Although the district court lacked subject matter jurisdiction to enter order
approving settlement of medical malpractice claims of incompetent husband, who was
in a permanent vegetative state, due to the fact that wife, who was husband's guardian,
never sought the guardianship court's approval before agreeing to the settlement, the
district court's order was merely voidable rather than void, where the court could have
reasonably believed that it could finalize the global settlement agreed to by all parties
given that the court had jurisdiction to try the underlying medical malpractice case and
to enter a judgment based upon the verdict. NRS 159.015, NRS 159.093 (2001), NRS
3.223 (1993).
7. Courts.
Lack of subject matter jurisdiction can be raised at any time during court
proceedings and is not waivable.
8. Judgment.
When evidence before the court provides a colorable case for jurisdiction, a district
court order that is made without subject matter jurisdiction is merely voidable rather
than void.
9. Motions.
Orders of the district court are presumptively valid if regular on their face.
10. Mental Health.
Parents of incompetent adult son, who was in a permanent vegetative state, never
attempted to set aside district court's approval of settlement for son's medical
malpractice claims and only contested the allocation to their son, even though the
approval order was voidable due to the failure of son's guardian to obtain permission
from guardianship court to enter into settlement, and thus, parents ratified the
order's validity by their conduct.
of son's guardian to obtain permission from guardianship court to enter into settlement,
and thus, parents ratified the order's validity by their conduct. NRCP 60(b).
Supreme court reviews a summary judgment order de novo.
Parents and guardians of incompetent adult son, who was in a permanent vegetative
state, were precluded from bringing a legal malpractice action on son's behalf against
attorneys and law firm involved in the settlement of son's medical malpractice claims
on the grounds that son's wife, who was his guardian at the time of the settlement, was
unjustly enriched by the allocation of settlement funds, where parents never attempted
to set aside the settlement approval order or modify the settlement approval in an
attempt to recoup the claimed improper division of proceeds given to wife.
13. Implied and Constructive Contracts.
Unjust enrichment occurs whenever a person has and retains a benefit which in
equity and good conscience belongs to another.
14. Estoppel.
Parents and guardians of adult son, who was in a permanent vegetative state, were
not judicially estopped from asserting a legal malpractice action against attorneys and
law firm involved in settling son's medical malpractice claims; settlement agreement
parents entered into in their suit against son's wife for guardianship of son, which stated
that parents would not contest or set aside medical malpractice settlement, did not
constitute judicial endorsement of the parents' position, even though the family court
was required to approve the guardianship settlement to assure that son's interests were
not compromised.
15. Estoppel.
The court may invoke the doctrine of judicial estoppel at its discretion; however,
judicial estoppel is an extraordinary remedy that should be cautiously applied only
when a party's inconsistent position arises from intentional wrongdoing or an attempt to
obtain an unfair advantage.
16. Estoppel.
Judicial estoppel does not preclude changes in position not intended to sabotage the
judicial process.
17. Estoppel.
The doctrine of judicial estoppel generally applies when: (1) the same party has
taken two positions; (2) the positions were taken in judicial or quasi-judicial
administrative proceedings; (3) the party was successful in asserting the first position;
a result of ignorance, fraud, or mistake.
18. Estoppel.
A settlement neither requires nor implies any judicial endorsement of either party's
claims or theories, and thus a settlement does not provide the prior success necessary
for judicial estoppel; because the district court or jury does not determine the facts
when a settlement agreement is presented to the court, it does not constitute a judicial
endorsement of a party's claims.
Supreme court will only reverse a district court's decision to admit expert testimony
on a showing of a clear abuse of discretion.
Supreme court reviews an allegedly erroneous jury instruction for prejudicial error in
light of the evidence.
An attorney's violation of professional rules of responsibility does not create a
private right of action, but is relevant to the standard of care owed by an attorney.
22. Attorney and Client; Evidence.
Attorneys' alleged violation of ethics rules did not create a cause of action for civil
damages in legal malpractice action brought on behalf of incompetent adult by his
guardians; however, the rules served as evidence of the standard of care owed by
attorneys, and thus, expert witnesses in legal malpractice action were entitled to base
their opinions regarding standard of care on the Supreme Court Rules.
23. Trial.
A party is entitled to a jury instruction that is consistent with his theory of the case,
is supported by the evidence, and is in conformance with existing law.
Parents and guardians of adult son, who was in a permanent vegetative state, failed
to preserve on appeal their argument that son was entitled to be present in courtroom
during legal malpractice action under the Americans with Disabilities Act, where
parents failed to raise the issue before the district court.
25. Trial.
A party's constitutional right to be present at his trial is not absolute but rather must
be balanced against the opposing party's right to an impartial jury; when the party's
presence might elicit so much sympathy from the jury that the jury would likely
disregard its duties as instructed and find for the party based on sympathy alone, the
opposing party's right to a fair tribunal would be violated. Const. art. 1, 3.
26. Trial.
Jury sympathy alone in regards to the presence of an injured party at trial is
insufficient to constitute prejudice regarding a defendant's right to a fair trial; there
must exist a likelihood that the jury will disregard its duty to follow the law as
instructed and will find for the injured party solely because of his injury.
27. Mental Health; Trial.
Incompetent ward, who was in a permanent vegetative state, was entitled to be
present during the jury selection in legal malpractice action brought by ward's guardians
against attorneys and law firm involved in settlement of ward's medical malpractice
action; ward's physical condition was unrelated to attorneys' conduct and the
opportunity to see ward was relevant to the issue that ward could live much longer than
was initially expected during settlement negotiations by attorneys.
The supreme court will overturn a jury verdict if substantial evidence does not
support it, assuming that the jury believed the evidence favorable to the prevailing party
and made all reasonable inferences in that party's favor.
The required elements of a legal malpractice claim are: (1) an attorney-client
relationship; (2) a duty owed to the client by the attorney to use such skill, prudence,
and diligence as lawyers of ordinary skill and capacity possess in exercising and
performing the tasks which they undertake; {3) a breach of that duty; {4) the
breach being the proximate cause of the client's damages; and {5) actual loss or
damage resulting from the negligence.
capacity possess in exercising and performing the tasks which they undertake; (3) a
breach of that duty; (4) the breach being the proximate cause of the client's damages;
and (5) actual loss or damage resulting from the negligence.
The supreme court may take cognizance of plain error sua sponte.
31. Evidence.
Testimony from attorney, who testified as an expert witness in legal malpractice
action against attorneys who negotiated settlement of ward's medical malpractice claim,
regarding the amount of money ward, who was in a permanent vegetative state, should
have received in settlement was speculative, and thus, was inadmissible; testimony that
ward should have received 80 percent of the global settlement of both ward and his
wife's claims was not based on any treatise of law or on Nevada law regarding
apportionment of settlement proceeds between an injured spouse and his wife.
Evidence was insufficient to support jury's finding of legal malpractice in action
brought by guardians on behalf of ward, who was in a permanent vegetative state,
against attorneys, who settled ward's medical malpractice claim; evidence indicated that
all of ward's current needs had been met by his annuity and that at the time of
settlement ward was not expected to live long according to doctors, and thus, at the
time of settlement it was not unreasonable for attorneys to have purchased an annuity
that could potentially fall short of ward's expenses 35 years from the date of his injury.
Guardians of ward waived on appeal their argument that the supreme court should
take judicial notice of the egregiousness of the conduct of attorneys, who negotiated
medical malpractice settlement for ward, and order forfeiture of their attorney fees,
where guardians failed to provide any supporting authority for their argument.
1

OPINION
Per Curiam:
Appellants and cross-respondents W. Randall Mainor and Richard A. Harris, individually,
as professional corporations and as a partnership, appeal from the district court's entry of final
judgment pursuant to a jury verdict against Mainor and Harris. Respondents and
cross-appellants Philip Nault and Wendy Nault, as co-guardians of the person and estate of
Jason Nault, crossappeal from a district court order offsetting the final judgment by
$400,000 from a prior settlement with another attorney involved in the underlying case.
____________________

1
The Honorable Janet J. Berry, Judge of the Second Judicial District Court, was designated by the Governor
to sit in place of The Honorable A. William Maupin, Justice. Nev. Const. art. 6, 4. The Honorable Mark
Gibbons, Justice, voluntarily recused himself from participation in the decision of this matter. The Honorable
Michael L. Douglas, Justice, did not participate in the decision of this matter.
appeal from a district court order offsetting the final judgment by $400,000 from a prior
settlement with another attorney involved in the underlying case. We conclude that
insufficient evidence supports the jury's verdict and therefore reverse the district court's
judgment.
Jason Nault, a Southwest Airlines baggage handler, was rendered in a permanent
vegetative state after anesthesia equipment failed during his hernia surgery. His pregnant
wife, Louise Nault, brought a medical malpractice claim on behalf of herself and Jason.
Louise sought the advice of attorney Joe Rolston, for whom she had worked as a secretary.
Rolston agreed to assist Louise but advised her that, as medical malpractice was outside of
his area of expertise, she should hire an attorney with experience in this area. Louise and
Rolston entered into a contingency fee agreement.
After Louise and Rolston interviewed several personal injury attorneys, Louise decided to
retain W. Randall Mainor and the law firm of Mainor & Harris. On June 13, 1994, Louise,
Mainor and Richard A. Harris signed a contingency fee agreement, which established that
Mainor and Harris would receive 33.3 percent of the gross recovery prior to suit and 40
percent after suit was filed. The agreement incorporated the previous retainer agreement with
Rolston.
On June 16, 1994, before the family court had granted guardianship of Jason to Louise,
Mainor filed a lawsuit on behalf of Jason and Louise, seeking damages for Jason's injuries
and Louise's loss of consortium. In March 1996, after nearly two years of contentious
litigation, the parties participated in a full-day settlement conference during which the
mediator valued the case at $6-7 million. The case settled for approximately $17 million.
After settlement, the parties held a meeting to allocate the $17 million. Louise insisted that
Jason's needs were the first priority. Attorney Jamie Chrisman, who represented the workers'
compensation division for Southwest Airlines, was primarily responsible for monitoring
Jason's medical care and medical bills. The estimated cost for all of Jason's needs, including
twenty-four-hour nursing care, physical therapy and all other medical needs, was $20,000 per
month. Because the persons attending the meeting desired a large financial cushion for Jason,
they decided on payments of $32,000 per month that would automatically increase by 2
percent every year for Jason's life. They determined to use the settlement proceeds to
purchase an annuity for Jason to pay a guaranteed stream of tax-free money. Any remaining
settlement money was to be used to provide for Louise and Louise and Jason's baby, Rene.
The attorney fee agreements provided for fees totaling 40 percent of the settlement, or
approximately $6.8 million. Southwest Airlines had a workers' compensation lien on the
settlement for approximately $600,000. Jason's annuity cost $2,503,470 and was expected to
pay approximately $39 million if Jason lived a full life expectancy. Louise's annuity cost
$4,081,142.53 and had an expected payout of $24.8 million. Even though Rene had no claim,
an annuity was also purchased for her at a cost of $437,348, with payments beginning when
Rene reached age eighteen and an expected lifetime payout of $7.4 million. The difference in
costs between Jason's annuity and Louise's annuity was based on their significantly different
life expectancies. The total cost of all three annuities was about $7 million, leaving
approximately $2.5 million, which everyone agreed should go to Louise.
On April 11, 1996, Mainor petitioned the district court for approval of the compromise of
Jason's claim. The petition specifically set forth the fact that the defendant would pay a
guaranteed amount of $32,000 per month, compounded annually for Jason's lifetime, with an
expected value of approximately $39 million if Jason lived a full life expectancy.
On April 19, 1996, the district court, Judge Lee Gates presiding, held a hearing on the
settlement of all claims. The attorneys informed the district court that the total settlement was
$17 million and that $7 million would be paid in the form of annuities. The attorneys
informed the district court that Jason's annuity would pay $32,000 per month for the rest of
his life and that the amount would provide a cushion of over $100,000 per year for
unexpected contingencies. They further informed the district court that Jason's daughter,
Rene, possessed a contingent claim against the defendants in the tort case, and that Rene's
annuity would start paying when Rene turned eighteen, for an estimated $7,494,090 during
her lifetime. They informed the district court that the attorney fees charged to Jason's portion
of the settlement would be $1,668,980 and to Rene's portion would be $291,565.64.
Judge Gates, who had been the trial judge in the underlying tort case, found that the
compromise of Jason's claim and Rene's contingent claim was fair and reasonable.
Accordingly, the district court approved the compromise, as well as the payment of attorney
fees.
Three months after the settlement, Louise offered to buy Jason's parents a new house for
$150,000. They preferred a cash gift, but Louise could not gift $150,000 in cash because of
tax consequences. However, she did give them $30,000 and another $120,000 for a total of
$150,000. She also gave $50,000 to Jason's brother, Kelly Nault, so that he could attend
school to become a physical therapist. She arranged and paid for a ten-day religious
pilgrimage for Jason, which included Jason's nursing staff, Jason's family and Louise's
family, to Lourdes, France, totaling $70,000 in travel expenses.
pilgrimage for Jason, which included Jason's nursing staff, Jason's family and Louise's family,
to Lourdes, France, totaling $70,000 in travel expenses.
Louise housed Jason from December 1996 to May 1997. At the end of April 1997, Louise
asked Wendy and Philip Nault if they could care for Jason in their home, as Louise wished to
return to college to finish her degree. On May 3, 1997, Jason began to reside at his parents'
house.
Louise's relationship with the Naults subsequently deteriorated. They felt that Louise was
mismanaging Jason's estate because several checks to Jason's nurses had been returned for
insufficient funds. In February 1998, the Naults obtained a temporary restraining order
against Louise, which prevented her from taking Jason from his parents' home to visit her
home on his birthday. They also brought a successful guardianship action against Louise to
obtain control over Jason's person and estate.
After Louise relinquished guardianship, the Naults released Louise from all other claims.
On May 11, 1998, the Naults signed a stipulated settlement agreement, in which they
acknowledged the compromise of Jason's claims in the prior tort action and Louise's
acceptance of the compromise on behalf of Jason, Rene and herself. They also acknowledged
that the lump sum payments and annuities had been allocated to Louise, Jason and Rene.
Finally, they expressly agreed not to contest the final settlement of the tort action or any other
issue relating to the $17 million settlement. On June 9, 1998, the district court entered an
order approving the settlement between Louise and the Naults.
As newly appointed guardians, the Naults used Jason's settlement money for the down
payment on a 3,500 square foot home for Jason, but they put title to the house in their own
names, allegedly because the mortgage company would not allow them to put the house in
Jason's name due to his poor credit. They also paid themselves a $4,500 monthly salary and
$5,000 per month for Jason's housing.
Soon after settling with Louise, the Naults, as guardians, retained an attorney and on April
8, 1999, commenced the present action against Louise, Rolston, Mainor, Harris and the law
firm of Mainor & Harris. The complaint essentially alleged that the attorneys should have
recognized that they had a conflict of interest by representing both Jason and Louise, that the
attorneys and Louise conspired to deprive Jason of his money and that Jason received
insufficient compensation in the settlement.
The Naults settled with Rolston for $400,000. They settled with Louise for no money, in
spite of the fact that they alleged that Louise had breached her fiduciary duties to her husband
and conspired to obtain a larger portion of the settlement money than Jason.
Jason. In the second settlement with Louise, the Naults obtained a divorce for Jason from
Louise, Louise withdrew an objection she had filed to the Naults' guardianship accounting,
Louise dismissed a complaint she had filed against Jason's parents and Kelly Nault to recover
large amounts of money she had allegedly loaned to them and Louise renounced any claims
she might have had to any money recovered in the present action.
[Headnote 1]
The action proceeded to trial against Mainor and Harris. After a twelve-day trial, the jury
awarded $3.25 million to Jason's estate against Mainor and Harris. The district court's final
judgment offset the jury's award by $400,000, which reflected Rolston's settlement with the
Naults. Mainor and Harris subsequently moved for a judgment notwithstanding the verdict
(JNOV), or alternatively, to modify the judgment to preclude prejudgment interest. After a
hearing, the district court denied the motion. Mainor and Harris appeal from the final
judgment,
2
and the Naults cross-appeal from the order applying an offset to the judgment.
DISCUSSION
The district court's jurisdiction
Mainor and Harris assert that the district court lacked jurisdiction over the present action
because the district court's settlement approval order in the medical malpractice action was
valid and was never set aside, precluding the present action as an impermissible collateral
attack on a final judgment. Because Mainor and Harris's assertion of collateral estoppel
presupposes the existence of a valid prior order, we will first determine whether the district
court's settlement approval order was valid and then we will turn to the merits of the
collateral estoppel argument.
The Naults contend that the settlement approval order was void for three reasons: (1) lack
of relevant material information, (2) due process violations, and (3) lack of jurisdiction. We
will address each argument in turn.
[Headnotes 2, 3]
First, the Naults' assertion that the district court was not aware of the total amount that
Louise would receive, or the total attorney fees, is inapposite. This court will not disturb the
district court's findings of fact if they are supported by substantial evidence.
____________________

2
Although Mainor and Harris also purport to appeal from the denial of their post-judgment JNOV motion,
no appeal may be taken from an order denying a post-judgment motion for judgment notwithstanding the
verdict. Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 1475 n.1, 970 P.2d 98, 103 n.1 (1998), holding
disfavored on other grounds in GES, Inc. v. Corbitt, 117 Nev. 265, 271, 21 P.3d 11, 15 (2001).
findings of fact if they are supported by substantial evidence.
3
The transcript of the
settlement approval hearing shows that the district court was informed that $7 million would
be used to purchase annuities for Jason, Rene and Louise. Because Jason would receive
$32,000 per month for the rest of his life, and Rene would receive a guaranteed sum of
$1,942,871 over her lifetime, the district court properly determined that the settlement was
fair and reasonable with respect to Jason and Rene. Although there was no mention that
Louise would also receive an annuity and a significant lump sum payment, no approval was
required for the settlement of Louise's claim, as she was not a ward under guardianship.
Regardless of the amount that Louise would receive, the district court had sufficient
information to determine that Jason's needs were met.
[Headnote 4]
Second, the Naults contend that the settlement approval order was void because it violated
Jason's due process rights.
4
They contend that failure to appoint an independent guardian to
represent Jason's interests deprived Jason of procedural due process because of his guardian's
conflict of interest, and the failure to present all material facts to the district court deprived
him of substantive due process.
We conclude that this argument lacks merit. First, procedural due process generally is
violated when the adjudicator, not the guardian, has a conflict of interest.
5
There is no
evidence that the district court was biased toward any party.
[Headnote 5]
Second, even if Louise's guardianship of Jason created a conflict of interest, there was no
evidence at the settlement approval hearing that Jason's needs would not be fully met by the
settlement agreement. The substantive due process claim lacks merit because substantive due
process concerns the adequacy of the government's reason for depriving a person of life,
liberty or property.
6
It is not meant to protect against alleged fraud upon the court by private
individuals.
____________________

3
Keife v. Logan, 119 Nev. 372, 374, 75 P.3d 357, 359 (2003).

4
See Watts v. Pinckney, 752 F.2d 406, 409 (9th Cir. 1985) (noting that a judgment is void if its entry failed to
comply with due process).

5
See, e.g., Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980); Ward v. Village of Monroeville, 409 U.S. 57,
60 (1972); In re Ross, 99 Nev. 1, 9, 656 P.2d 832, 836-37 (1983); Burleigh v. State Bar of Nevada, 98 Nev.
140, 144-45, 643 P.2d 1201, 1203-04 (1982).

6
Erwin Chemerinsky, Constitutional Law Principles and Policies 420 (Richard A. Epstein et al. eds., 1997).
[Headnote 6]
Third, the Naults assert that the order was void for lack of jurisdiction because, without the
appointment of a guardian ad litem for Jason, the family court had exclusive subject matter
jurisdiction over Jason's claims.
NRS 159.093 (1993) provided that:
A guardian of the estate shall demand, sue for and receive all debts and other choses in
action due to the ward. A guardian of the estate, with prior approval of the court by
order, may compound or compromise any such debt or other chose in action and give a
release and discharge to the debtor or other obligor.
7

The 1993 version of NRS 159.015 defined court as any court or judge having jurisdiction
of the persons and estates of minors, incompetent persons, or persons of limited capacity.
The 1993 version of NRS 3.223 provided, in relevant part, that:
1. In each judicial district in which it is established, the family court has original,
exclusive jurisdiction in any proceeding:
(a) brought pursuant to chapter . . . 159 . . . of NRS.
8

When read together, it appears that the family court has exclusive jurisdiction over
guardianships and that the guardian of the ward's estate must seek the family court's approval
before agreeing to a settlement on behalf of the ward. Although Mainor and Harris argue that
NRS 3.220 gives district courts equal coextensive and concurrent jurisdiction and power,
NRS 3.220 is more nuanced than Mainor and Harris suggest because it provides that district
judges have concurrent and coextensive jurisdiction. This allows district judges to preside
over proceedings in districts other than their own, but does not give district courts concurrent
and coextensive jurisdiction over matters reserved to family courts. Furthermore, the
Legislature, by creating family courts and giving them exclusive original jurisdiction over
certain matters, removed oversight of guardianships from the district court's jurisdiction in
jurisdictions that have separate family courts.
[Headnote 7]
Louise's petition for guardianship of Jason made no mention of Jason's potential claims for
medical malpractice. Hence, the guardianship court was not aware that such claims were an
asset of Jason's estate. There is no evidence in the record that Louise ever sought the
guardianship court's approval before agreeing to the settlement of Jason's claims.
____________________

7
The current form of the statute has not changed significantly since 1993.

8
The current form of NRS 3.223 has not changed significantly.
tlement of Jason's claims. Hence, at first blush, it appears that the district court lacked subject
matter jurisdiction to approve the settlement with respect to Jason.
9

[Headnotes 8, 9]
However, when evidence before the court provides a colorable case for jurisdiction, a
district court order is merely voidable rather than void.
10
Here, because the district court had
jurisdiction to try to judgment the underlying medical malpractice case and to enter a
judgment based upon the verdict, the court must have reasonably believed that it could
finalize the global settlement agreed to by all of the parties. No one objected to the district
court's finding that the settlement was fair and reasonable. Moreover, orders of the district
court are presumptively valid if regular on their face.
11
On its face, the district court's order
appears to be a regular settlement approval order. Hence, the order was voidable, but not
void.
[Headnote 10]
The Naults, on Jason's behalf, never attempted to set aside the judgment pursuant to NRCP
60(b) for fraud, lack of good faith or because the order was allegedly void. Subsequently, on
November 15, 2001, in the legal malpractice case, the district court determined that the
district court in the medical malpractice action had subject matter jurisdiction under NRS
3.223 and NRS Chapter 159 to approve the settlement. This finding was proper because the
Naults never moved to set aside the settlement approval order under NRCP 60(b) and did not
contest the global settlement of $17 million. We conclude that the settlement approval order
was voidable, but, since the Naults never attempted to set it aside and in fact did not contest
approval of the global settlement but only the allocation to Jason, their conduct ratified the
order's validity.
We turn now to the issue of whether the legal malpractice suit constituted an
impermissible collateral attack on the order. Mainor and Harris claim that since the district
court's settlement approval order found the allocation to Jason to be fair and reasonable, and
since the Naults never moved to set aside that order, the finding that Jason's portion of the
settlement was fair negates any legal malpractice claim. Furthermore, they contend that the
district court's finding demonstrates that Jason was adequately compensated and suffered no
damages. Hence, they assert that the Naults' claims for malpractice, premised on the theory
that Jason was not adequately compensated, collaterally attacked the final judgment on
the merits.
____________________

9
Lack of subject matter jurisdiction can be raised at any time during the proceedings and is not waivable.
Swan v. Swan, 106 Nev. 464, 469, 796 P.2d 221, 224 (1990).

10
Vaile v. Dist. Ct., 118 Nev. 262, 272, 44 P.3d 506, 512-13 (2002).

11
Charmicor, Inc. v. Bradshaw Finance Co., 92 Nev. 310, 313, 550 P.2d 413, 415 (1976).
claims for malpractice, premised on the theory that Jason was not adequately compensated,
collaterally attacked the final judgment on the merits.
12
Mainor and Harris contend that,
since a district court has no legal authority to alter or vacate another district court's valid
judgment or order,
13
the district court erred by allowing the malpractice case to proceed in
light of the fact that the Naults never tried to set aside the settlement approval order.
[Headnote 11]
While the district court granted Mainor and Harris's motion for summary judgment in part,
the district court partly denied the motion, concluding that the settlement approval order was
valid and that, because the Naults were not seeking to modify the settlement amount, NRCP
60(b) did not bar their legal malpractice claim. This court reviews a summary judgment
order de novo.
14

[Headnote 12]
We conclude that, in the instant case, the Naults are precluded from bringing a legal
malpractice claim. In Malfabon v. Garcia, we held that a former client could sue her attorney
for malpractice even after a settlement agreement had been signed.
15
However, because the
instant case is factually distinguishable from the facts of Malfabon, Malfabon does not affect
our decision today. First, unique to the present case is the fact that the Naults expressly
agreed not to contest the final settlement of the tort action or any other issue relating to the
settlement, and that this agreement was approved by the district court. Second, the Naults
approved of the settlement amount and complain only that the division of the proceeds
was improper.
____________________

12
See Greene v. Dist. Ct., 115 Nev. 391, 395, 990 P.2d 184, 186 (1999) (Undermining the finality of
judgments would have serious repercussions for appellate jurisdiction. Our rules of appellate procedure rely on
the existence of a final judgment as an unequivocal substantive basis for our jurisdiction, and measure important
jurisdictional deadlines from the notice of entry of final judgment.).

13
State Engineer v. Sustacha, 108 Nev. 223, 226 & n.3, 826 P.2d 959, 961 & n.3 (1992) (stating that the
district courts have appellate jurisdiction only in cases arising in justices' courts and other inferior tribunals'
but noting that a district court may review a collateral attack on a judgment if the judgment was void for lack of
subject matter or personal jurisdiction (quoting Nev. Const. art. 6, 6)).

14
Consolidated Generator v. Cummins Engine, 114 Nev. 1304, 1308, 971 P.2d 1251, 1254 (1998). The
district court did not certify the order granting in part and denying in part the motion for summary judgment as
final under NRCP 54(b). Hence, it constituted an unappealable interlocutory order, which this court may now
review. Consolidated Generator, 114 Nev. at 1312, 971 P.2d at 1256 (stating that [a]lthough these orders are
not independently appealable, since [the appellant] is appealing from a final judgment the interlocutory orders
entered prior to the final judgment may properly be heard by this court).

15
111 Nev. 793, 798, 898 P.2d 107, 110 (1995).
settlement amount and complain only that the division of the proceeds was improper.
This second distinction presents us with a unique situation in which the Naults approve of
the total amount of the $17 million settlement secured for all the parties, but dispute the
division of those funds, an issue that was the subject of the district court's settlement approval
order and finding that the settlement was made in good faith. Permitting the Naults to pursue
an independent action as they have done would be unfair for two reasons. First, the Naults are
accepting a portion of the settlement approval that benefits them but are bringing suit to upset
the portion they now oppose without attempting to modify the settlement compromise.
Second, the distribution of a large amount of the proceeds to Louise is left standing without
any attempt to recoup the allegedly excessive amount paid to her. The Naults actually
compounded this situation by giving a full release to Louise for what appears to be very little
compensation. The net result is that the Naults are suing their attorneys for a portion of the
settlement previously approved without taking any action to revise the settlement approval
and recoup the amount they claim due from Louise, the party who was allegedly unjustly
enriched. We do not believe that this is reasonable or equitable.
[Headnote 13]
We have said many times that equity does not favor a person being unjustly enriched.
[U]njust enrichment occurs whenever a person has and retains a benefit which in equity and
good conscience belongs to another.'
16
This is precisely what the Naults claimed in their
lawsuit against Mainor and Harris and Louisethat Louise unjustly benefited from an
excessive award because Louise and the attorneys acted despite conflicts of interest and
therefore breached their fiduciary duties.
Faced with this situation, it was incumbent on the Naults to first move to modify the
good-faith settlement approval and attempt to recoup the claimed improper division of the
settlement proceeds given to Louise. This procedure would have forced the Naults to first
seek relief in the district court that previously approved the settlement and division of
proceeds. This action is consistent with res judicata principles that generally preclude an
independent action when the grievance could or should have been addressed in a pending
matter.
17
Indeed, at least one jurisdiction mandates that a party wishing to challenge the
merits of a good-faith settlement must do so prior to the final judgment by seeking writ
review in the trial court.
____________________

16
Coury v. Robison, 115 Nev. 84, 90, 976 P.2d 518, 521 (1999) (quoting Nevada Industrial Dev. v.
Benedetti, 103 Nev. 360, 363 n.2, 741 P.2d 802, 804 n.2 (1987)).

17
See Pickett v. Comanche Construction, Inc., 108 Nev. 422, 426-427, 836 P.2d 42, 45 (1992).
party wishing to challenge the merits of a good-faith settlement must do so prior to the final
judgment by seeking writ review in the trial court.
18
This procedure encourages settlement
because it helps to ensure that settlements will not be attacked after a final judgment is issued.
In the instant case, the same policy goals are furthered by requiring the Naults to first seek
reapportionment of the settlement, in the court below, before allowing them to recover that
amount as damages in a malpractice suit. In the event that the Naults had established their
claims before the district court that approved the settlement but could not get full satisfaction
of their claim by redistribution of the settlement proceeds, they would then be able to bring an
independent action.
Requiring the Naults to proceed in that manner has several benefits. They would go
directly to the court where the alleged improper action took place, and they would directly ask
the allegedly unjustly enriched party for a portion of the proceeds given to her. This
requirement should not limit a plaintiff from attaining full recovery of damages suffered, nor
should a plaintiff be required to proceed to set aside the good-faith settlement if it would be a
futile act. While the Naults may not have obtained full recoupment from Louise, they would
have mitigated their alleged damages, which the law favors.
19
An independent suit could
then be brought for any additional damage suffered by the Naults. By not proceeding in this
way in a timely manner, the Naults have waived their right to an independent action.
Judicial estoppel
[Headnote 14]
Mainor and Harris next argue that the judicial estoppel doctrine precludes the legal
malpractice action because the doctrine's purpose is to suppress fraud and prevent a party
from changing his or her position depending on the demands of each particular case
concerning the subject matter in controversy.
20
Mainor and Harris assert that the Naults
cannot pursue the legal malpractice claim because the guardianship settlement agreement the
Naults submitted to the district court under oath
21
absolved Louise of all claims relating to
the medical malpractice case and guardianship. Mainor and Harris argue that the family
court's approval of the guardianship settlement agreement constituted judicial
endorsement of both parties' positions.
____________________

18
Main Fiber Products v. Morgan & Franz, 87 Cal. Rptr. 2d 108, 111-12 (Ct. App. 1999).

19
Conner v. Southern Nevada Paving, 103 Nev. 353, 355, 741 P.2d 800, 801 (1987); Automatic
Merchandisers, Inc. v. Ward, 98 Nev. 282, 284, 646 P.2d 553, 554 (1982).

20
Breliant v. Preferred Equities Corp., 112 Nev. 663, 668-69, 918 P.2d 314, 317-18 (1996); Sterling
Builders, Inc. v. Fuhrman, 80 Nev. 543, 550, 396 P.2d 850, 854 (1964).

21
NRS 159.073 (1998).
and Harris argue that the family court's approval of the guardianship settlement agreement
constituted judicial endorsement of both parties' positions.
22
Mainor and Harris argue that,
because the Naults knew that Mainor and Harris represented Louise and Jason in the medical
malpractice suit and that Jason, Louise and Rene would receive annuities and cash payments
from the $17 million settlement, the Naults' legal malpractice action was a change of their
position from the guardianship action, which was barred by judicial estoppel.
Mainor and Harris brought the issue of judicial estoppel to the district court's attention in a
motion for summary judgment, which the district granted in part and denied in part.
Therefore, we conduct de novo review.
23

[Headnotes 15-17]
The primary purpose of judicial estoppel is to protect the judiciary's integrity rather than
the litigants.
24
The court may invoke the doctrine at its discretion.
25
However, [j]udicial
estoppel is an extraordinary remedy that should be cautiously applied only when a party's
inconsistent position [arises] from intentional wrongdoing or an attempt to obtain an unfair
advantage.
26
Judicial estoppel does not preclude changes in position not intended to
sabotage the judicial process.
27

Although not all of these elements are always necessary, the doctrine generally applies
when (1) the same party has taken two positions; (2) the positions were taken in
judicial or quasi-judicial administrative proceedings; (3) the party was successful in
asserting the first position (i.e., the tribunal adopted the position or accepted it as true);
a result of ignorance, fraud, or mistake. '
28

____________________

22
See Reynolds v. C.I.R., 861 F.2d 469, 473 (6th Cir. 1988) (holding that the bankruptcy court's approval of a
prior settlement between the IRS and the taxpayer constituted judicial acceptance of a party's position, which
judicially estopped the IRS from changing its position and attempting to impose liability on the taxpayer's
husband).

23
Consolidated Generator, 114 Nev. at 1308, 971 P.2d at 1254.

24
Drain v. Betz Laboratories, Inc., 81 Cal. Rptr. 2d 864, 867 (Ct. App. 1999).

25
New Hampshire v. Maine, 532 U.S. 742, 750 (2001).

26
Kitty-Anne Music Co. v. Swan, 4 Cal. Rptr. 3d 796, 800 (Ct. App. 2003).

27
See U.S. v. Real Property Located at Incline Village, 976 F. Supp. 1327, 1340 (D. Nev. 1997); Breliant,
112 Nev. at 669, 918 P.2d at 318.

28
Furia v. Helm, 4 Cal. Rptr. 3d 357, 368 (Ct. App. 2003) (quoting Thomas v. Gordon, 102 Cal. Rptr. 2d
28, 32 (Ct. App. 2000) (quoting Drain, 81 Cal. Rptr. 2d at 868 (quoting Jackson v. County of Los Angeles, 70
Cal. Rptr. 2d 96, 103 (Ct. App. 1997)))).
Here, the Naults sued Louise for guardianship of Jason. In the course of that litigation, the
Naults and Louise entered into a settlement agreement, which provided in part that:
WENDY and PHILIP NAULT shall not contest or seek to set aside the settlement or final
resolution of or release of the District Court Action on behalf of JASON NAULT, LOUISE
NAULT or RENE ROSE NAULT. The family court approved this settlement agreement on
June 9, 1998, after a hearing. The 1998 version of NRS 159.073 required Wendy and Philip
to take an oath before the family court would approve their letters of guardianship. Mainor
and Harris argue that this oath, plus the stipulated settlement, constituted an inconsistent
position in judicial proceedings that was judicially accepted by the family court's approval of
the settlement agreement.
[Headnote 18]
This argument lacks merit. First, the protection of the judicial system from parties
asserting inconsistent positions assumes that the inconsistent position was successfully
asserted in a prior judicial proceeding.
29
A settlement neither requires nor implies any
judicial endorsement of either party's claims or theories, and thus a settlement does not
provide the prior success necessary for judicial estoppel.
30
Because the district court or jury
does not determine the facts when a settlement agreement is presented to the court, it does not
constitute a judicial endorsement of a party's claims, even in a situation such as this, where
the family court's approval was required. The family court's approval only assured that Jason's
interests were not compromised by the settlement agreement. Furthermore, the mere fact that
the Naults knew that Mainor, Harris and Rolston were the attorneys in the medical
malpractice claim did not make the attorneys a beneficiary of the settlement agreement
because the settlement did not contemplate releasing the attorneys from any liability for
alleged legal malpractice. While Louise might have been able to assert the settlement
agreement as a defense to the legal malpractice, conspiracy and breach of fiduciary claims,
the attorneys could not. Finally, Mainor and Harris's argument that the Naults essentially
sought to modify the medical malpractice settlement in their legal malpractice claim hinges
on the attorneys' characterization of the Naults' claim as an attempt to redistribute the medical
malpractice settlement proceeds. This characterization is wrong because a legal malpractice
claim focuses on whether the attorneys adhered to the standard of care in their representation
of the case, which is different from the underlying medical malpractice claim.
____________________

29
New Hampshire, 532 U.S. at 750-51; Breliant, 112 Nev. at 669, 918 P.2d at 318.

30
Konstantinidis v. Chen, 626 F.2d 933, 939 (D.C. Cir. 1980).
Admission into evidence of specific ethical rules
31

Mainor and Harris contend that the district court, upon Mainor and Harris's motion,
dismissed all causes of action based upon alleged violations of specific rules of professional
conduct, but subsequently denied Mainor and Harris's motion in limine to preclude evidence
of the professional rules. Mainor and Harris contend that the district court erroneously
instructed the jury on specific professional rules, over their objection, because an alleged
violation of the rules of professional conduct does not create a civil cause of action, as set
forth in the preamble to the American Bar Association Model Rules, which may be used for
guidance in applying the Nevada rules.
32
Mainor and Harris assert that while this court has
never addressed the issue, other jurisdictions have excluded expert opinion testimony and
evidence because the rules were not intended to create a private right of action but a public
remedy by disciplinary action;
33
that the rules are not statutes or regulations but
court-promulgated rules; and that the standards for legal malpractice are well-established by
common law. Mainor and Harris contend that once the jury heard these rules and opinions
regarding violations of the rules, it would have been virtually impossible for the jury to
decide the case based on the appropriate standard of whether an attorney failed to use the
skill, prudence and diligence that a lawyer of ordinary skill and capacity would have used.
Mainor and Harris assert that this error entitles them to a new trial. We disagree.
[Headnotes 19, 20]
Whether the rules establishing professional legal conduct are admissible to ascertain the
standard of care and whether the jury may be instructed regarding the professional rules of
conduct are issues of first impression. This court will only reverse a district court's decision
to admit expert testimony on a showing of a clear abuse of discretion.
34
We have previously
recognized that where the breach of the standard of care is not so obvious that negligence can
be determined as a matter of law, expert evidence is generally required in a legal malpractice
case to establish the attorney's breach of care.
____________________

31
The Naults also claim that Mainor and Harris should have obtained a separate guardian ad litem to protect
Jason's interest because Jason and Louise allegedly had a conflict of interest. We determine this issue is without
merit and, in any event, would not be dispositive of the issues, and therefore, we need not address it here.

32
Cronin v. District Court, 105 Nev. 635, 639-40, 781 P.2d 1150, 1153 (1989).

33
Ex parte Toler, 710 So. 2d 415, 416 (Ala. 1998); Orsini v. Larry Moyer Trucking, Inc., 833 S.W.2d 366,
369 (Ark. 1992); Hizey v. Carpenter, 830 P.2d 646, 653-54 (Wash. 1992).

34
Krause Inc. v. Little, 117 Nev. 929, 934, 34 P.3d 566, 569 (2001).
of care.
35
We review an allegedly erroneous jury instruction for prejudicial error in light of
the evidence.
36

[Headnote 21]
At least one jurisdiction has held that a violation of a professional rule creates a rebuttable
presumption of negligence.
37
Other jurisdictions have held that professional rules are
inadmissible in a legal malpractice claim.
38
The majority of jurisdictions, however, hold that
the violation of professional rules of responsibility does not create a private right of action,
but is relevant to the standard of care.
39

____________________

35
Allyn v. McDonald, 112 Nev. 68, 71, 910 P.2d 263, 266 (1996).

36
See Pfister v. Shelton, 69 Nev. 309, 310, 250 P.2d 239, 239 (1952).

37
Hart v. Comerica Bank, 957 F. Supp. 958, 981 (E.D. Mich. 1997).

38
Ex parte Toler, 710 So. 2d at 416 (holding that the trial judge properly held that evidence of a violation of
the Rules of Professional Conduct could not be used in a legal malpractice action); Orsini, 833 S.W.2d at 369
(holding that the lower court did not err by refusing to admit into evidence the Model Rules of Professional
Conduct because such rules were meant as guidelines only, not to establish a civil cause of action for
malpractice); Webster v. Powell, 391 S.E.2d 204, 208 (N.C. Ct. App. 1990) (holding that the trial court properly
excluded evidence of a breach of a rule of professional conduct because such breach is not a basis for civil
liability and, therefore, was irrelevant to the malpractice claim); Hizey, 830 P.2d at 652-54 (holding that the trier
of fact may not be informed of rules of professional conduct, either through jury instructions or expert testimony,
because the rules were judicially created, rather than legislatively created, were merely guidelines, and provided
an ethical standard distinct from the civil standard).

39
See, e.g., Sears, Roebuck & Co. v. Goldstone & Sudalter, 128 F.3d 10, 19 (1st Cir. 1997) (stating that,
under Massachusetts law, [v]iolations of the rules governing the legal profession are evidence of legal
malpractice); Universal Mfg. Co. v. Gardner, Carton & Douglas, 207 F. Supp. 2d 830, 832-33 (N.D. Ill. 2002)
(stating that, while an alleged violation of ethical rules does not by itself give rise to a claim for malpractice
under Illinois law, the rules of professional conduct may be relevant to determining the standard of care in a
legal malpractice claim); RTC Mortg. Trust 1994 N-1 v. Fidelity Nat. Title, 58 F. Supp. 2d 503, 525 (D.N.J.
1999) (noting that, under New Jersey law, a violation of the rules of professional conduct precluding conflict of
interests could be considered as evidence of malpractice); Elliott v. Videan, 791 P.2d 639, 642 (Ariz. Ct. App.
1989) (holding that the jury was properly instructed regarding professional rules of conduct, with an instruction
that the rules were merely evidence that could be considered in deciding whether the attorney committed
malpractice); Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C., 453 S.E.2d 719, 720-21 (Ga. 1995) (noting that
the rules of professional conduct were relevant to the standard of care because it would not be logical or
reasonable to say that the Bar Rules, in general, do not play a role in shaping the care and skill' ordinarily
exercised by attorneys practicing law in Georgia); Krischbaum v. Dillon, 567 N.E.2d 1291, 1301 (Ohio 1991)
(concluding that the norms of behavior codified in the rules of professional conduct were relevant to what a
reasonable attorney would have done and, therefore, were admissible); DiLuglio v. Providence Auto Body, Inc.,
755 A.2d 757, 772 n.16 (R.I. 2000) (Even though violations of the rules of professional conduct cannot be used
to establish a cause of action or to create any presumption that a legal duty has been breached, the violation of a
profes-
[Headnote 22]
We choose to adopt the majority rule, as it is the better reasoned rule. Because the Nevada
Supreme Court Rules reflect a professional consensus of the standards of care below which
an attorney's conduct should not fall, it would be illogical to exclude evidence of the
professional rules in establishing the standard of care. The district court appropriately struck
the causes of action based on violations of ethical rules because the rules were not meant to
create a cause of action for civil damages. However, the district court did not abuse its
discretion by allowing the Naults' standard of care expert witnesses to base their opinions
upon the Supreme Court Rules because the rules served merely as evidence of the standard of
care, not as a basis for per se negligence.
[Headnote 23]
Furthermore, we conclude that the district court did not err by instructing the jury that
[a]n attorney who represents conflicting interests, without the informed consent of all
affected clients, violates a rule of professional conduct applicable to lawyers who practice in
Nevada. The instruction went on to state that [a] violation of a rule of professional conduct
does not establish an act of legal malpractice. It is merely evidence that you may consider in
your determination of whether the defendants committed legal malpractice. A party is
entitled to an instruction that is consistent with his theory of the case, is supported by the
evidence and is in conformance with existing law.
40
The instruction reflected the law in the
majority view and properly informed the jury that a violation of a rule of professional conduct
alone could not serve as a basis for civil liability. Hence, we conclude that the district court
properly instructed the jury.
Jason Nault's presence in the courtroom
[Headnote 24]
Mainor and Harris contend that the district court improperly denied their motion in limine
seeking to exclude Jason's presence during trial because Jason's presence created unfair
prejudice.
____________________
sional rule may be relevant in determining whether a client may void a transaction on the grounds that the lawyer
breached his fiduciary responsibilities.); Roy v. Diamond, 16 S.W.3d 783, 790-91 (Tenn. Ct. App. 1999)
(concluding that, although professional rules of conduct do not provide a cause of action for civil liability, they
were relevant evidence in determining the standard of care); Two Thirty Nine Joint Venture v. Joe, 60 S.W.3d
896, 905 (Tex. App. 2001) (concluding that the trier of fact could consider a rule of professional conduct in
determining the standard of care because the rules reflected a professional consensus of standards below which
an attorney's conduct should not fall and, therefore, [b]arring the use of the code and denying that the code is
relevant to the duties a lawyer has to his client is not logical and would require the re-creation of a standard of
care without reference to verifiable or pre-existing rules of conduct).

40
Beattie v. Thomas, 99 Nev. 579, 583, 668 P.2d 268, 271 (1983).
during trial because Jason's presence created unfair prejudice.
41
Mainor and Harris contend
that Jason's presence was unhelpful to the jury's determination of the facts and was intended
solely to generate tremendous sympathy for Jason and his parents and undermine Mainor and
Harris's right to a fair trial.
42

This court has never addressed whether the prejudicial effect of the jury venire's view of
the real party in interest outweighs the real party in interest's right to be present at the
proceedings. Other courts have reviewed this issue for an abuse of discretion.
43

The few jurisdictions that have reviewed this issue are divided on the issue of whether a
plaintiff has the right to be present at his own trial. In most of the cases that have considered
the issue, the trial was bifurcated into liability and damages phases, and the appellate courts
concluded that the plaintiff could properly be excluded from the liability phase if his
condition was so sympathetic that the other party's right to a fair trial would have been
unfairly prejudiced.
44
In Helminski v. Ayerst Laboratories, A Division of American Home
Products Corporation, the Sixth Circuit Court of Appeals concluded that the exclusion of a
plaintiff who could comprehend and aid counsel based merely on his or her physical
appearance violated federal due process, but that the exclusion from the liability phase of a
litigant unable to comprehend trial proceedings or aid counsel changed the focus from the
litigant's physical and mental condition to the effect of such condition on the jury.
45
The
Sixth Circuit set forth a two-part test to determine whether a plaintiff should be excluded
from his own trial. First, the party seeking exclusion must show that the other party's presence
would be so prejudicial that it would prevent the jury from performing its duty.
46
Second, if
the court determines that the party's presence would be prejudicial, the court must determine
whether the party can understand the proceedings and assist counsel.
____________________

41
See Morley v. Superior Court of Arizona, Etc., 638 P.2d 1331, 1334 (Ariz. 1981) (concluding that, in the
liability phase of a trial, the defendant's right to an unbiased jury might be prejudiced if the plaintiff's physical
condition is so pitiable that the trial court determines the plaintiff's mere presence would prejudice the jury);
see also Green v. North Arundel Hospital, 730 A.2d 221, 235-36 (Md. Ct. Spec. App. 1999); Bremner By and
Through Bremner v. Charles, 821 P.2d 1080, 1084, 1086 (Or. 1991).

42
The Naults counter that excluding Jason would have violated the Americans with Disabilities Act. The
Naults did not raise this issue before the district court. We need not address an issue raised for the first time on
appeal. Hampe v. Foote, 118 Nev. 405, 409 n.10, 47 P.3d 438, 440 n.10 (2002).

43
Helminski v. Ayerst Lab., A Div. of A.H.P.C., 766 F.2d 208 (6th Cir. 1985); Bremner, 821 P.2d at 1086.

44
Morley, 638 P.2d at 1334; Green, 730 A.2d at 235-36; Bremner, 821 P.2d at 1084, 1086.

45
766 F.2d at 217.

46
Id.
the party can understand the proceedings and assist counsel.
47
The Sixth Circuit determined
that, [i]f the court in its discretion determines that the party's presence would, indeed, be
prejudicial, the court may bifurcate the proceedings into separate trials on liability and
damages, excluding the litigant from the liability phase.
48
The court further noted that
exclusion of a party from the damages portion of the proceedings would be improper because,
while liability should not be premised on the severity of the injuries, damages certainly
should be.
49
The court also noted, however, that if the injury is not due to the defendant's
alleged conduct, there is no basis for exclusion.
50

In Morley v. Superior Court of Arizona, Etc., the Supreme Court of Arizona held that the
trial court did not abuse its discretion by severing the liability and damages phases of a
personal injury action in which the injured party was in a permanent vegetative state because
the two issues were separable and because severance would avoid undue prejudice where the
injured party was excluded from the liability phase but not the damages phase.
51
The
Arizona court determined that a plaintiff could properly be excluded from the liability phase
if his injuries rendered him incapable of contributing to or understanding the proceedings and
if the plaintiff was adequately represented by counsel.
52
The court concluded that exclusion
from the liability phase would be necessary if the plaintiff's mere presence would deny the
defendant's right to an unbiased jury, but that [t]he plaintiff should be allowed to prove
damages by the most direct evidence availablethe plaintiff's own physical condition.
53

The Supreme Court of Indiana, however, has held that an injured plaintiff who was
rendered incapable of understanding the legal proceedings or assisting counsel had the right
to be present at both the liability and damages phases under the Indiana Constitution.
54
The
court stated that:
After examining the historical development of the right to trial by jury and, in
particular, its importance to the founders of this country, we agree with those
jurisdictions that have held that the state constitutional right of trial by jury includes the
ancillary right to be present in the courtroom during both the liability and damage
phase of trial.
____________________

47
Id. at 218.

48
Id. at 217.

49
Id. at 217-18.

50
Id. at 215 n.7.

51
638 P.2d at 1333.

52
Id. at 1334.

53
Id.

54
Jordan ex rel. Jordan v. Deery, 778 N.E.2d 1264, 1271-72 (Ind. 2002).
the liability and damage phase of trial. This is so because without the right to be
present, the right to trial by jury becomes meaningless.
55

The record reflects that the Naults sought to have Jason present during jury selection and
closing arguments. Mainor and Harris sought to exclude Jason's presence entirely. At a
hearing on Mainor and Harris's motion in limine, the district court ruled that Jason would be
allowed to be present during jury selection but not during closing arguments. We conclude
that the district court did not abuse its discretion by allowing Jason to be present during the
jury selection.
Article 1, Section 3 of the Nevada Constitution provides, in relevant part, that [t]he right
of trial by Jury shall be secured to all and remain inviolate forever. Both Article 1, Section
8(5) of the Nevada Constitution and the Fifth Amendment of the United States Constitution
prohibit deprivation of life, liberty, or property, without due process of law.
[Headnote 25]
A party's right to be present at his trial is not absolute but rather must be balanced against
the opposing party's right to an impartial jury. Where the party's presence might elicit so
much sympathy from the jury that the jury would likely disregard its duties as instructed and
find for the party based on sympathy alone, the opposing party's right to a fair tribunal would
be violated. We generally approve and adopt with one modification the approach set forth in
Helminski because it properly balances the parties' respective rights.
56
We believe that a
party should be permitted to attend his or her trial, or every segment of it if the trial is
bifurcated, even though that attendance is very limited.
[Headnotes 26, 27]
After a hearing on the matter, the district court in this case concluded that Jason had a right
to be present during jury selection, but his presence during closing arguments would only
serve to engender sympathy with the jury. The district court did not abuse its discretion. First,
Jason was only present for approximately ten minutes during one and one-half days of jury
selection. Second, Mainor and Harris did not seek to bifurcate the trial under the Helminski
test, and the issues were so intertwined that it would have been nearly impossible to bifurcate
the trial. Moreover, Mainor and Harris did not cause Jason's condition, and, arguably,
Jason's involuntary exclusion would have been improper because his physical condition
was not related to Mainor and Harris's conduct, and the jury could appreciate that fact.
____________________

55
Id.

56
The Helminski test was established before Congress enacted the Americans with Disabilities Act of 1990.
However, the weight of authority suggests that the Helminski test has survived enactment of the ADA. Jordan,
778 N.E.2d at 1267.
Mainor and Harris did not cause Jason's condition, and, arguably, Jason's involuntary
exclusion would have been improper because his physical condition was not related to
Mainor and Harris's conduct, and the jury could appreciate that fact.
57
Third, the Naults
played a videotape, without objection, of a day in Jason's life that depicted Jason shortly after
the injury, when his condition was much worse. Because the videotape was likely to engender
far more sympathy than seeing Jason in his current condition, Mainor and Harris waived any
claims of prejudice by failing to object to the videotape.
58
Fourth, the opportunity to see
Jason was relevant to Mainor and Harris's claim that Jason was likely to die soon. The
difference between Jason's condition just after the incident and his current condition was
relevant to show that Jason's condition had improved and that he could live much longer than
initially expected. Finally, jury sympathy alone is insufficient to constitute prejudice; there
must exist a likelihood that the jury will disregard its duty to follow the law as instructed and
will find for the injured party solely because of his injury.
59

Sufficiency of the evidence regarding damages
Mainor and Harris assert that there was no legal or evidentiary basis for the jury's
determination that Jason was entitled to a larger share of the settlement proceeds because the
Naults failed to show proximate causation. Mainor's efforts resulted in a $17 million
settlement, which provided Jason with more than enough to meet his needs for the rest of his
life. Mainor and Harris assert that, while Jason's life expectancy had changed since the time
of the settlement, it was still very short and there was no evidence that his annuity was
insufficient to meet his needs.
[Headnotes 28-30]
This court will overturn a jury verdict if substantial evidence does not support it, assuming
that the jury believed the evidence favorable to [the prevailing party] and made all
reasonable inferences in [that party's] favor.'
60

____________________

57
See Helminski, 766 F.2d at 215 n.7.

58
Allum v. Valley Bank of Nevada, 114 Nev. 1313, 1324, 970 P.2d 1062, 1069 (1998) ( [f]ailure to object
to asserted errors at trial will bar review of an issue on appeal' (quoting McCullough v. State, 99 Nev. 72, 74,
657 P.2d 1157, 1158 (1983)).

59
Helminski, 766 F.2d at 217; see also Cary By and Through Cary v. Oneok, Inc., 940 P.2d 201, 205 (Okla.
1997) (stating that [a] jury will generally follow the court's instructions and decide a case based on the law
presented).

60
Wohlers v. Bartgis, 114 Nev. 1249, 1261, 969 P.2d 949, 958 (1998) (quoting Bally's Employees' Credit
Union v. Wallen, 105 Nev. 553, 555, 779 P.2d 956, 957 (1989) (alterations in original)).
The required elements of a legal malpractice claim are: (1) an attorney-client
relationship; (2) a duty owed to the client by the attorney to use such skill, prudence,
and diligence as lawyers of ordinary skill and capacity possess in exercising and
performing the tasks which they undertake; (3) a breach of that duty; (4) the breach
being the proximate cause of the client's damages; and (5) actual loss or damage
resulting from the negligence.
61

Mainor and Harris contend that the evidence regarding damages was too speculative to
constitute substantial evidence to support the jury's $3.25 million verdict against them. We
agree. Mainor and Harris objected, by a motion in limine, to testimony that Jason should have
recovered 80 percent of the total settlement, as speculative and lacking foundation. Mainor
and Harris also objected at trial to testimony that Jason's annuity would fall short of his
medical expenses thirty-five years in the future. The district court admitted the testimony over
Mainor and Harris's objections. Although Mainor and Harris do not specifically raise on
appeal the admissibility of that evidence, the error is apparent on the record, and we may
take cognizance of plain error sua sponte.
62

[Headnote 31]
The record reveals that one of the Naults' expert witnesses, an attorney from New York
State, testified that Jason should have received 80 percent of the global settlement. At trial, in
the presence of the jury, the expert discussed this court's decision in General Electric Co. v.
Bush.
63
The expert informed the jury that, in Bush, the jury awarded the injured husband,
whose condition was virtually identical to Jason's, $3,000,000 and awarded the wife $500,000
for her loss of consortium claim. The expert informed the jury that the wife's award in Bush
equated to 14 percent of the verdict. In the present case, however, Jason received only 14
percent of the settlement. The expert therefore testified that the current division of the
settlement was unreasonable and that Jason, as the injured party, should have received 80
percent of the global settlement.
We believe that the expert's reliance on Bush is misplaced. We determined in Bush that the
injured party's wife was entitled to a separate award for loss of consortium and that it did not
amount to a double recovery. Nowhere in our opinion in Bush, do we compare the wife's
award with her husband's, nor did we approve any formula ratio between the two.
____________________

61
Day v. Zubel, 112 Nev. 972, 976, 922 P.2d 536, 538 (1996).

62
Crow-Spieker #23 v. Helms, 103 Nev. 1, 3 n.2, 731 P.2d 348, 350 n.2 (1987).

63
88 Nev. 360, 498 P.2d 366 (1972), abrogated on other grounds by Motenko v. MGM Dist., Inc., 112 Nev.
1038, 1041-42, 921 P.2d 933, 935 (1996).
pare the wife's award with her husband's, nor did we approve any formula ratio between the
two. Therefore, we believe that the expert's reliance on Bush was inappropriate and his
discussion of the case during trial was misleading.
[Headnote 32]
We also believe that this testimony was highly speculative and lacked foundation in that it
was not based on any treatise of law or on Nevada law regarding apportionment of settlement
proceeds between an injured spouse and his wife. Furthermore, testimony indicated that, at
the time of the medical equipment failure and when the settlement sum was allocated, Jason
was not expected to live very long. One doctor predicted that Jason would survive for one
year at most. Based on this information, the attorneys, in allocating the settlement proceeds,
did not anticipate that Jason could have lived as long as he has, much less that he might live
thirty-five more years. Although another expert witness testified that Jason's medical needs
thirty-five years in the future would significantly exceed his monthly annuity, the attorneys'
and Louise's decision to purchase an annuity that could potentially fall short of expenses
thirty-five years from the date of Jason's injury should not be evaluated with the benefit of
20/20 hindsight
64
that Jason would live much longer than the doctors expected. Nor was it
unreasonable for the attorneys to rely upon the doctors' predictions.
Jamie Chrisman, the attorney who had represented Southwest Airlines in the medical
malpractice action, testified that he monitored Jason's care and medical expenses during the
medical malpractice suit. Chrisman testified that it was he who hired experts to determine
Jason's future medical costs if he were to receive the best care that was available. According
to Chrisman, the settlement exceeded their target by more than three times, as they had hoped
for a $5 million settlement. Chrisman also testified that the attorneys worked to achieve
Louise's goal of having some start-up funds to buy a house, modify it for a disabled person
and purchase necessary medical equipment for Jason.
Additionally, trial testimony established that Jason's annuity was not taxable. The evidence
also showed that the approximately $2.5 million lump sum payment to Louise was not
taxable, but, if it had been paid to Jason, approximately $800,000 would have been taken as
tax.
Furthermore, Wendy Nault, Jason's mother and co-guardian, conceded that, although little
was left over per month from Jason's annuity, all of Jason's needs had been met by his
annuity. She also admitted that she and her husband bought a new house for Jason using
his annuity, but took title in their names, and that they pay $5,000 per month on the
mortgage from his annuity.
____________________

64
See Bank of Nevada v. Speirs, 95 Nev. 870, 875, 603 P.2d 1074, 1077 (1979).
admitted that she and her husband bought a new house for Jason using his annuity, but took
title in their names, and that they pay $5,000 per month on the mortgage from his annuity.
Wendy admitted that the family court subsequently ordered them to convey title to the real
property to Jason. She also testified that they had added a pool and jacuzzi to the house, upon
the recommendation of Jason's physical therapist, out of Jason's annuity. Wendy further
testified that, initially, she and her husband paid themselves $4,500 per month from Jason's
annuity as a case management fee, but that the family court had ordered them to reduce that
fee to $1,500 per month as of January 2001.
We conclude that the district court erroneously admitted the speculative damages
testimony and, therefore, no substantial evidence supports the jury's finding that Jason,
through his guardians, met his burden of proof with regard to the damages element of his
legal malpractice claim.
The Naults' claims on cross-appeal
The Naults contend that the district court erroneously reduced the $3.25 million judgment
by the $400,000 settlement. Because the record reveals insufficient evidence to support the
damages element of the Nault's suit, we need not address this issue. Next, without citing any
legal authority, the Naults assert that, because of the blatant conflict of interest, this court may
take judicial notice that neither the district court nor the family court would have approved
the apportionment of the settlement proceeds that provided Jason with 14 percent of the gross
proceeds, Louise with 38 percent and appellants with 40 percent. The Naults contend that
Mainor and Harris drafted an agreement and obtained Louise's signature thereon, stating that
Louise agreed to pay appellants 40 percent of the gross settlement proceeds, irrespective of
whether the district court reduced the attorney fees allowed to appellants. In so doing, the
Naults argue that Mainor and Harris sought to circumvent any subsequent court order which
would reduce their legal fees by implementing an unethical scheme and requiring their client
to become an accomplice to that conspiracy. The Naults argue that this conduct prejudiced the
administration of justice, thereby violating SCR 203(4). The Naults contend, therefore, that
this court should order the appellants to forfeit the entire sum of $1,668,980 that the district
court awarded to them for representing Jason's interests.
[Headnote 33]
As Mainor and Harris counter, the law abhors a forfeiture.
65
Furthermore, the Naults'
complaint did not contain a cause of action seeking forfeiture of fees. The district court
rejected the Naults' request for a jury instruction on forfeiture, but the Naults do not
appeal the rejection of their instruction.
____________________

65
Lynn v. Ingalls, 100 Nev. 115, 119, 676 P.2d 797, 800 (1984).
Naults' request for a jury instruction on forfeiture, but the Naults do not appeal the rejection
of their instruction. Had they done so, the correct remedy by this court, in any event and
assuming for a moment the correctness of the Naults' broader assertion, would have been a
reversal and remand for a new trial with correct jury instructions, not a determination that
they are entitled to forfeiture as a matter of law. Because the Naults fail to provide any
supporting authority for the argument that this court may take judicial notice of the
egregiousness of Mainor and Harris's conduct and order forfeiture of their attorney fees, this
court need not address the Naults' argument.
66

CONCLUSION
Because we conclude that substantial evidence does not support the damages element of
the legal malpractice claim, we reverse the district court's judgment.
____________
120 Nev. 777, 777 (2004) Goodrich & Pennington v. J.R. Woolard
GOODRICH & PENNINGTON MORTGAGE FUND, INC., a Delaware Corporation,
Appellant, v. J.R. WOOLARD, INC., a Nevada Corporation, dba J.R. WOOLARD
APPRAISAL; and JAMES R. WOOLARD, an Individual, Respondents.
No. 40630
December 9, 2004 101 P.3d 792
Appeal from a district court judgment awarding damages following a bench trial. Eighth
Judicial District Court, Clark County; Ronald D. Parraguirre, Judge.
Mortgage lender sued appraiser for professional negligence, breach of statutory duty to
disclose material facts, and negligent misrepresentation, alleging that appraisal failed to note
home's construction deficiencies and that the home was substantially incomplete, and that
lender purchased the home in connection with foreclosure after mortgagors defaulted on the
loan. After a bench trial, the district court awarded lender $37,027.31, representing the
difference between the net proceeds from lender's resale of the home and the loan balance
upon default. Lender appealed. The supreme court held that: the appropriate standard of
damages for negligent-misrepresentation causes of action is based upon out-of-pocket
damages; and (2) appraiser's negligent misrepresentations did not proximately cause
foreclosure of mortgage, and thus, lender was not entitled to recover damages sustained in
connection with foreclosure.
____________________

66
Medical Device Alliance, Inc. v. Ahr, 116 Nev. 851, 863 n.7, 8 P.3d 135, 142 n.7 (2000).
lender was not entitled to recover damages sustained in connection with foreclosure.
Affirmed.
Gordon & Silver, Ltd., and Bradley N. Boodt, Las Vegas, for Appellant.
Law Office of Garry L. Hayes and Garry L. Hayes, Henderson, for Respondents.
The appellate court will uphold a district court's factual findings if supported by
substantial evidence, unless they are clearly erroneous.
2. Fraud.
The appropriate standard of damages for negligent misrepresentation causes of
action is based upon out-of-pocket damages, including: (1) the difference between the
value of what the plaintiff received in the induced transaction and the value given for it,
and (2) pecuniary loss sustained in consequence of the plaintiff's reliance upon the false
representation.
3. Fraud.
The benefit-of-the-bargain rule, as measure of damages for fraud, is a punitive
measure which compels a party guilty of fraud to make good his or her representations,
and under its operation, the parties are placed in the same position as if the
representations had been fully performed.
4. Fraud.
Appraiser's negligent misrepresentations to mortgage lender, before lender made
loan, regarding home's value and state of completion of construction did not
proximately cause foreclosure of mortgage, and thus, lender was not entitled to recover
from appraiser for damages sustained in connection with foreclosure, including loss of
interest between mortgagors' default and lender's resale of home after purchasing it in
connection with foreclosure; loan was clearly high-risk, as reflected by the interest rate,
and appraisal was relied on by lender solely to preserve the value in the collateral, not
to account for possibility of default and foreclosure.
5. Negligence.
Proximate cause is any cause which in natural foreseeable and continuous
sequence, unbroken by any efficient intervening cause, produces the injury complained
of and without which the result would not have occurred.
OPINION
Per Curiam:
Goodrich & Pennington Mortgage Fund, Inc., appeals from a district court judgment
awarding it damages in connection with a negligent appraisal performed by J.R. Woolard,
Inc. Goodrich contends that the district court's award failed to include the entirety of the
damages proximately caused by Woolard's negligence.
of the damages proximately caused by Woolard's negligence. We affirm.
Goodrich loaned John Brown and Thelma Wilson (the Borrowers) the sum of $210,000 for
the purchase of what was represented as a completed private residence. Goodrich's agreement
to fund this loan was based in large part on a defective appraisal report prepared by Woolard
that failed to note construction deficiencies and that the residence was substantially
incomplete. The report appraised the property at $280,000.
1
The Borrowers defaulted on the
loan after making only two payments, and Goodrich commenced foreclosure proceedings by
recording a notice of default and election to sell in a nonjudicial foreclosure sale.
The Borrowers filed for Chapter 13 bankruptcy protection the day before the scheduled
trustee's sale, automatically staying liquidation. Goodrich retained counsel to obtain relief
from the stay. After the bankruptcy court dismissed the Borrowers' case without a discharge
of liability, Goodrich purchased the property for $200,000. Upon taking possession, Goodrich
identified extensive deficiencies that Woolard failed to note in the appraisal report and
certificate. Goodrich then listed the property for resale for $210,990. The property eventually
sold for $190,000, from which Goodrich received net proceeds of $171,733.89.
Goodrich filed a complaint in district court against Woolard for professional negligence,
breach of a statutory duty to disclose material facts, and negligent misrepresentation. At the
ensuing bench trial, Paul Pennington, Goodrich's president and chairman of the board,
testified that Goodrich was purely a mortgage lender, that Goodrich would never have funded
the loan had it known the home was incomplete because it did not fund construction loans,
and that it lost market opportunities to make other loans with the proceeds at a similar rate.
James Woolard admitted at trial that the appraisal report misrepresented the state of
completion of the property and also admitted that Goodrich properly relied upon the report in
determining whether to fund the loan.
Goodrich produced the following evidence of damages:
Principal balance of loan on the Property $208,761.20
Pre-foreclosure accrued interest 38,793.08
Post-foreclosure interest to 12/28/2000 15,530.69
Pre-foreclosure insurance 2,975.34
Post-foreclosure insurance 1,355.12 Foreclosure fees
3,2S4.4S
____________________

1
The sales price of the property was $280,000. The sellers of the property partially financed the sale with a
second mortgage.
Foreclosure fees 3,284.48
Republication and reposting fees 310.00
Attorneys' fees in borrowers' bankruptcy 1,497.00
Brokers' price opinion fees 220.00
Costs for eviction proceedings 500.00
Costs for moving, storage and transportation 1,059.00
[Fee to mortgage broker 6,300.00]
Subtotal [280,585.91]
Less sales proceeds (171,733.89)
Total Claimed Damages (excluding attorney $[108,852.02]
fees & costs and pre-judgment interest)
In awarding judgment in favor of Goodrich, the district court found that the appraisal
report failed to disclose the incomplete construction of the home and that Goodrich was
unaware of the deficient condition of the property. The court also found that, in agreeing to
fund the Borrowers' loan, Goodrich
relied upon the $280,000.00 value attributable to the Property in the Appraisal, and
upon the fact that the Appraisal indicated that the Property was completed except for
floor coverings and front landscaping.
2

The district court then awarded Goodrich $37,027.31 in damages, the difference between
the net sales proceeds and the loan balance upon default.
3
In this, the court limited its
proximate cause findings to the impaired value of the security for the loan. It therefore
narrowed the scope of recoverable damages by drawing a distinction between general and
proximate causation, rejecting those sums Goodrich generally claimed it would not have had
to expend but for Woolard's negligence. More specifically, the district court concluded that
[T]he risk of [the Borrowers] defaulting on the Loan was an assumed and ordinary risk
to [Goodrich] in its normal course of business, and that damages from [the Borrowers']
default were not proximately caused by Woolard's negligence. Despite testimony that
[Goodrich] would not have funded the Loan but for its reliance on Woolard's
inaccurate, misleading and negligent appraisal, the Court concludes that [Goodrich]
relied upon the Appraisal more to preserve its position in the Property than to protect
against losses in the event of a default.
____________________

2
Goodrich withheld $1,800 from the initial distribution of loan proceeds for installation of floor coverings.

3
I.e., the principal loan balance of $208,761.20, less $171,733.89, the sum Goodrich received from resale of
the property after deducting fees, commissions and other sales costs.
Additionally, the district court awarded Goodrich prejudgment interest. Goodrich filed this
timely appeal, claiming that the damage award was insufficient.
DISCUSSION
Woolard concedes that the appraisal misrepresented the value and condition of the real
property that secured the loan, that Goodrich was entitled to rely on the representations, and
that Woolard's negligent misrepresentations induced Goodrich to consummate the loan
transaction. Accordingly, Woolard is subject to liability for the pecuniary loss proximately
caused by Goodrich's justifiable reliance upon the false information.
4
While Woolard's duty
may not extend to losses arising from a subsequent downturn in the real estate market, losses
proven to have been sustained that are within the scope of risk created by the negligently
conducted appraisal are the defendants' responsibility.
5
This appeal concerns the extent of
that liability.
Goodrich argues that the district court's impairment of security measure of damages was
insufficient and did not adequately compensate it for all losses proximately caused by
Woolard's negligent misrepresentations. First, Goodrich asserts that the district court's award
of $37,027.31, based upon impairment of security, was internally inconsistent because it
exceeded the difference between the principal balance of the loan and the actual value of the
property as evidenced by the sale price. Specifically, the loan balance ($208,761.20) less the
resale price ($190,000) is $18,761.20. In this, Goodrich correctly points out that the district
court's award, which was based upon net proceeds of the resale, in fact, included additional
costs such as the broker's commission. Goodrich contends that, to be consistent, the district
court should have also awarded Goodrich all other costs actually incurred in its attempt to
recoup the principal balance of the loan. Second, Goodrich argues that the district court's
conclusion only considered one aspect of Woolard's duty to Goodrich: the duty to accurately
value the property. Goodrich posits that Woolard also breached a second duty by falsely
stating that the property was complete. Thus, Goodrich argues that, because it would never
have funded the loan had it known the true condition of the property, the district court should
have awarded all damages associated with the loan, including lost interest. Third, Goodrich
asserts that, to fully compensate Goodrich for its losses, a benefit-of-the-bargain measure of
damages should govern the resolution of this matter.
____________________

4
See Restatement (Second) of Torts 552 (1977); see also Tuthill Finance v. Greenlaw, 762 A.2d 494, 498
(Conn. App. Ct. 2000).

5
Tuthill, 762 A.2d at 498.
In response, Woolard argues that the district court's out-of-pocket damage award correctly
and fully compensated Goodrich for its losses proximately caused by the negligent appraisal.
More particularly, Woolard asserts that, because Goodrich relied upon the appraisal report to
consider whether its collateral provided adequate security for the loan, Goodrich's
compensable losses were limited to the difference between the principal loan balance and the
amount Goodrich ultimately received from the post-foreclosure sale of the property.
[Headnote 1]
As noted, the district court adopted Woolard's theory of proximate cause. On appeal, we
will uphold a district court's factual findings if supported by substantial evidence, unless they
are clearly erroneous.
6

Formula for computing damages for negligent misrepresentation
[Headnote 2]
Many jurisdictions that have considered the appropriate standard of damages for
negligent-misrepresentation causes of action have adopted damage formulations based upon
out-of-pocket damages.
7
We join those jurisdictions and embrace the notion that damage
awards in connection with negligent-misrepresentation cases include (1) the difference
between the value of what the plaintiff received in the induced transaction and the value
given for it,
8
and (2) pecuniary loss sustained in consequence of the plaintiff's reliance upon
the false representation.
9

[Headnote 3]
Goodrich asks us to adopt a benefit-of-the-bargain formula for damages. This court has
defined benefit-of-the-bargain damages in the fraud context as "the value of what [the
plaintiff] would have received had the representations been true, less what he actually
received.
____________________

6
Edwards Indus. v. DTE/BTE, Inc., 112 Nev. 1025, 1031, 923 P.2d 569, 573 (1996).

7
See Jenkins v. KLT, Inc., 308 F.3d 850 (8th Cir. 2002); Utah Foam Products Co. v. Upjohn Co., 154 F.3d
1212 (10th Cir. 1998); Martha Graham School v. Martha Graham Center, 224 F. Supp. 2d 567 (S.D.N.Y.
2002); Standard Chartered PLC v. Price Waterhouse, 945 P.2d 317 (Ariz. Ct. App. 1996); Hensley v.
McSweeney, 109 Cal. Rptr. 2d 489 (Ct. App. 2001); BDO Seidman, LLP v. Mindis Acquisition, 578 S.E.2d 400
(Ga. 2003); Danca v. Taunton Sav. Bank, 429 N.E.2d 1129 (Mass. 1982); B.F. Goodrich Co. v. Mesabi Tire
Co., 430 N.W.2d 180 (Minn. 1988); Burke v. Harman, 574 N.W.2d 156 (Neb. Ct. App. 1998); First Interstate
Bank of Gallup v. Foutz, 764 P.2d 1307 (N.M. 1988); Janda v. Brier Realty, 984 P.2d 412 (Wash. Ct. App.
1999); Gyldenvand v. Schroeder, 280 N.W.2d 235 (Wis. 1979).

8
See Hanneman v. Downer, 110 Nev. 167, 173, 871 P.2d 279, 283 (1994); Randono v. Turk, 86 Nev. 123,
130, 466 P.2d 218, 223 (1970).

9
See Restatement (Second) of Torts 552B (1977).
the fraud context as the value of what [the plaintiff] would have received had the
representations been true, less what he actually received.
10
This damage measure is akin to
damages available in a contract action for breach of warranty.
11
The benefit-of-the-bargain
rule is a punitive measure which compels [a] party guilty of fraud to make good his or her
representations, and under its operation, the parties are placed in the same position as if the
contract and representations had been fully performed.
12

We reject this damage formulation in favor of the out-of-pocket formula for cases of
negligent misrepresentation. In BDO Seidman, LLP v. Mindis Acquisition,
13
a case with facts
similar to those presented here, the Georgia appellate court drew the following distinction
between the two formulas:
The out-of-pocket measure of damages . . . seeks to place the injured party in the same
place it would have been had there been no injury or breach of duty. . . . A
benefit-of-the-bargain standard gives the wronged party the benefit of the contract he
made, but it also ensures that the fraudfeasor does not enjoy any fruits of his misdeeds.
The dual purposes of this standard have no application in a negligent
misrepresentation case where there was no privity because the defendant was not a
party to the transaction and thus, has not been unjustly enriched.
14

We agree with the Georgia court in drawing a distinction between fraud and negligence for
the purpose of awarding damages, particularly when the defendant, for consideration,
negligently performs a service, which serves to induce the plaintiff into a failed or flawed
transaction with a third party. Here, the district court found no fraud in connection with the
appraisal. Further, Woolard was not a party to the failed loan transaction and was not, as in
the context of a fraud committed as between parties to a transaction, unjustly enriched.
Accordingly, we hold that the out-of-pocket formula applies in this instance.
____________________

10
Collins v. Burns, 103 Nev. 394, 398, 741 P.2d 819, 822 (1987).

11
Kuwaiti Danish Computer v. Digital Equip., 781 N.E.2d 787, 796 n.9 (Mass. 2003); Prosser and Keeton
on Torts 768 (5th ed. 1984); see also NRS 104.2714(2) (The measure of damages for breach of warranty is the
difference at the time and place of acceptance between the value of the goods accepted and the value they would
have had if they had been as warranted, unless special circumstances show proximate damages of a different
amount.).

12
Lightning Litho, Inc. v. Danka Industries, 776 N.E.2d 1238, 1242 (Ind. Ct. App. 2002).

13
578 S.E.2d 400.

14
Id. at 401-02 (emphasis added).
Proximate causation
[Headnote 4]
As noted, an award of damages in a negligent-misrepresentation case includes the actual
loss from the transaction plus consequential damages sustained as a proximate result of the
plaintiff's reliance on the misrepresentation. Here, the district court restricted its award to
damages sustained in connection with impairment of the security for the loan. As noted in the
margin below, this award included a component of consequential damages.
15
Thus, we turn
to the question of whether the district court erred in refusing an award of further
consequential damages under a proximate-cause analysis.
[Headnote 5]
The Restatement defines consequential damages as those of a kind that might
reasonably be expected to result from reliance upon the misrepresentation.
16
Proximate
causation, as determined by the district court, is a subset of cause in fact or actual
causation. As we stated in Dow Chemical Co. v. Mahlum:
17

Causation consists of two components: actual cause and proximate cause. To
demonstrate actual cause . . . , the [plaintiff must] prove that, but for the [product] the
[plaintiff's damages] would not have occurred. The second component, proximate
cause, is essentially a policy consideration that limits a defendant's liability to
foreseeable consequences that have a reasonably close connection with both the
defendant's conduct and the harm which that conduct created.
18

More particularly, we define proximate cause as any cause which in natural [foreseeable]
and continuous sequence, unbroken by any efficient intervening cause, produces the injury
complained of and without which the result would not have occurred.'
19

Woolard concedes that the district court properly awarded impairment of security
damages. However, the valuation of the property was not the only negligent inducement in
the appraisal for Goodrich's funding of the loan. Additionally, the condition of the property as
complete was grossly, albeit nonfraudulently, represented. Thus, beyond impairment of
security damages, the district court could have properly awarded foreclosure expenses and
loss of interest in the event it factually determined that the condition of the property
rendered default on the loan inevitable; i.e.
____________________

15
See infra note 20.

16
Restatement (Second) of Torts 549 cmt. d (1977).

17
114 Nev. 1468, 970 P.2d 98 (1998).

18

19
Taylor v. Silva, 96 Nev. 738, 741, 615 P.2d 970, 971 (1980) (quoting Mahan v. Hafen, 76 Nev. 220, 225,
351 P.2d 617, 620 (1960)).
interest in the event it factually determined that the condition of the property rendered default
on the loan inevitable; i.e., that the total loan package, including the secondary financing, was
approved by the lenders based upon an inflated value, and completion of the property by the
Borrower was not financially feasible. In this, the district court could have considered that the
weak credit history of the Borrowers made foreclosure a distinct and foreseeable possibility.
Thus, the district court could have awarded damages sustained in connection with the
foreclosure, including loss of interest between default and repurchase, in the event it found
that the appraisal was the proximate cause of the foreclosure as well as the proximate cause
of the impairment of Goodrich's security.
Here, however, the parties agree that the loan was clearly high-risk, given that the
stipulated interest rate exceeded twelve percent. Accordingly, the district court could have
reasonably determined that the risk of foreclosure was accounted for by the higher rate of
interest. Thus, while the appraisal misrepresented the property's value and state of
completion, the district court could properly conclude on this evidence that the appraisal was
relied upon solely to preserve the value in the collateral, not to account for the possibility of
default and foreclosure.
20

In light of these permutations, we cannot conclude that the district court clearly erred in
determining that the purpose of the appraisal report was to provide information pertinent to
whether the collateral for the loan was adequate in the event of foreclosure, i.e., that the
purpose of the appraisal was to protect Goodrich's position in the collateral, not to provide
information concerning the likelihood of a default by the Borrowers, necessitating
foreclosure.
CONCLUSION
The district court properly used an out-of-pocket damage-recovery theory to award
Goodrich its damages sustained as a result of Woolard's negligence. Further, we cannot
conclude that the district court clearly erred in its refusal to award Goodrich its lost interest
and other claimed damages incident to the foreclosure.
21
Accordingly, we affirm the district
court's judgment.
____________________

20
The district court's award based upon the net resale proceeds included an award of consequential damages,
to wit: real estate commissions and costs of resale. These consequential damages were related to recapturing the
value of the security and thus were part and parcel of the impairment of the security. The failure to award
expenses in connection with the foreclosure itself, including the bankruptcy costs did not result in an inconsistent
award.

21
See, e.g., Brier Realty, 984 P.2d at 415-16 (holding that purchaser could not, in a
negligent-misrepresentation action, recover for lost profits he allegedly would have recovered had real estate
agent properly represented cost of subdivision of property).
____________
120 Nev. 786, 786 (2004) Metz v. Metz
ROBERT BLAIR METZ, Appellant, v. AMY BETH METZ,
Respondent.
No. 41448
December 9, 2004 101 P.3d 779
Proper person appeal from post-decree district court orders declining to order respondent
to pay child support and denying appellant's motion to modify the child custody arrangement.
Second Judicial District Court, Family Court Division, Washoe County; Scott Jordan, Judge.
Former wife filed motion to modify child custody. Husband filed motion in opposition and
countermotion for child support arrears. The district court denied modification of custody and
determined that it was precluded from requiring wife to pay child support from supplemental
security income (SSI) and social security disability benefits (SSD). Husband appealed. The
supreme court held that: (1) federal exemption of SSI benefits from legal process preempted
state statute that included SSI benefits as income for purposes of calculating child support, (2)
wife's SSD benefits were not subject to federal exemption, and (3) trial court's refusal to
modify child custody was not abuse of discretion.
[Rehearing denied June 7, 2005]
Robert Blair Metz, Reno, in Proper Person.
Amy Beth Metz, Reno, in Proper Person.
1. States.
Under the Supremacy Clause, a federal statute may preempt a state statute when the
two laws conflict. U.S. Const. art. 6, cl. 2.
2. Social Security and Public Welfare.
Supplemental security income (SSI) is a federal social welfare program designed to
assure that the recipient's income is maintained at a level viewed by Congress as the
minimum necessary for the subsistence of that individual. 42 U.S.C. 1381.
Government benefits are means-tested if eligibility for the benefits is determined
based on the recipient's income or resources.
Supplemental security income (SSI) is intended to supplement a recipient's income,
not substitute lost income because of a disability. 42 U.S.C. 1381.
The recipient of supplemental security income (SSI) is not required to pay into the
social security system in order to qualify for SSI benefits. 42 U.S.C. 1381.
120 Nev. 786, 787 (2004) Metz v. Metz
Supplemental security income (SSI) provides a person with a minimum income and
is designed to help poor, needy people. 42 U.S.C. 1381.
Social security disability benefits are intended to replace lost income when an
employee is unable to work after becoming disabled. 42 U.S.C. 405.
8. Statutes.
Statutory construction is a question of law.
9. Statutes.
When the language of a statute is expressly clear and unambiguous, the apparent
intent must be given effect, as there is no room for construction.
10. Statutes.
If a statutory provision is ambiguous, then the court should attempt to follow the
legislature's intent.
11. Statutes.
To ascertain legislative intent, a court may examine the context and spirit of the
statute in question, together with the subject matter and policy involved.
12. Statutes.
Statutes should be interpreted in line with what reason and public policy would
indicate the legislature intended.
13. Statutes.
A statute should be read as a whole to give meaning to all of its parts.
14. Statutes.
No part of a statute should be rendered nugatory, nor any language turned to mere
surplusage, if such consequences can properly be avoided.
15. Statutes.
Statutes with a protective purpose should be liberally construed in order to effectuate
the benefits intended to be obtained.
16. Statutes.
When the legislature makes a substantial change in a statute's language, it indicates a
change in the legislative intent.
17. Child Support.
Gross monthly income, for the purposes of calculating a noncustodial parent's child
support obligation, is not limited to income from employment. NRS 125B.070.
18. Child Support.
Both supplemental security income (SSI) and social security disability benefits
(SSD) qualify as a source of a parent's gross monthly income, for the purposes of
calculating the parent's child support obligation under Nevada law. NRS 125B.070.
19. Child Support; States.
Federal law that exempted social security benefits from legal process brought by any
creditor applied to supplemental security income (SSI), and therefore preempted state
statute that included such benefits as gross monthly income for purposes of calculating
child support, where SSI benefits were not payable based on remuneration for
employment. 42 U.S.C. 407; NRS 125B.070.
20. States.
When a family law statute comes into conflict with a federal statute, the state law
will be preempted if Congress has positively required by direct enactment that
preemption is necessary.
120 Nev. 786, 788 (2004) Metz v. Metz
21. Child Support; States.
Exception to federal law exempting all social security benefits from legal process
brought by any creditor for federal moneys payable based on remuneration for
employment applied to former wife's social security disability benefits, and thus, such
benefits were income for purposes of calculating wife's child support obligation. 42
U.S.C. 407, 659(a).
22. Child Custody.
Trial court's refusal to modify physical custody of child was not abuse of discretion,
despite trial court's failure to provide reasons for denial, where parties had strained
relationship regarding care of child since divorce, and record did not reveal significant
change since entry of previous child custody stipulation.
23. Child Custody.
24. Child Custody.
The supreme court will not disturb the district court's judgment concerning child
custody absent a clear abuse of discretion.
25. Child Custody.
A change of primary physical custody is warranted only when: (1) the circumstances
of the parents have been materially altered; and (2) the child's welfare would be
substantially enhanced by the change.
OPINION
Per Curiam:
In this proper person appeal, the primary issue is whether a Nevada district court has
authority to order a noncustodial parent to pay child support from his or her supplemental
security income and/or social security disability benefits. We conclude that under 42 U.S.C.
407(a), Congress has expressly exempted supplemental security income from child support
payments. Thus, a district court is prohibited from utilizing a noncustodial parent's
supplemental security income in setting a child support obligation. Congress, however, has
waived the exemption with respect to social security disability benefits. Consequently, a
district court may consider these benefits in its child support determination.
FACTS
Appellant Robert Metz and respondent Amy Metz were granted a divorce in 1998. They
have one child, who is approximately eight years old. Under the divorce decree, the parties
were awarded joint legal custody, with Amy having primary physical custody and Robert
having weekend visitation. Robert was required to pay $360 in child support per month under
the statutory formula. The decree also required Amy, who suffers from seizures and
short-term memory loss, to place the child in day care for eight hours each weekday.
120 Nev. 786, 789 (2004) Metz v. Metz
ory loss, to place the child in day care for eight hours each weekday. The parties were
instructed to exchange physical custody of the child at the day care facility.
Since the divorce was entered, the parties have fought bitterly over child custody issues. In
1999, the parties stipulated to a change in the child custody arrangement, which was adopted
by the district court. Under the new arrangement, Robert would have primary physical
custody and Amy would have visitation every other weekend. Amy would also have custody
of the child during the month of July. During July, when Amy had custody, Robert would
have visitation every other weekend. Amy agreed to pay $100 per month in child support.
In September 2002, Amy, proceeding in proper person, filed a motion to modify the child
custody arrangement. Amy contended, among other things, that she could provide the child
with a better home environment. Robert, also in proper person, filed an opposition to Amy's
motion and a countermotion for child support arrears. The matter was set for a hearing.
In January 2003, before the district court ruled on Amy's September 2002 motion to
change custody, Robert filed an ex parte motion for an order to show cause for Amy's alleged
failure to pay child support. Robert further asserted that Amy was interfering with his ability
to tend to the child's medical needs. Also in January, Robert moved to modify the child
custody arrangement. Robert sought sole legal and physical custody.
After a hearing on the parties' motions, the district court entered two orders on April 22,
2003. In one order, the district court, among other things, concluded that because Amy is
receiving supplemental security income (SSI) and social security disability benefits (SSD),
the court is prohibited from ordering her to pay child support. In the other order, the court
denied both parties' motions to modify the child custody arrangement. The order reaffirms the
parties' 1999 child custody stipulation, with two changes. Specifically, since the child is no
longer enrolled in day care, the custody exchanges must now take place at the child's school,
or when the child is not at school, at the Washoe County Sheriff's Department. The order also
allows the parents telephone access to the child. Robert timely appeals from both April
orders.
DISCUSSION
The child support order
[Headnote 1]
Nevada imposes upon both parents the duty to provide child support.
1
Our state's child
support statute authorizes a district court to determine a parent's support obligation based
on his or her "gross monthly income," which could include both SSI and SSD benefits.
____________________

1
NRS 125B.020(1).
120 Nev. 786, 790 (2004) Metz v. Metz
determine a parent's support obligation based on his or her gross monthly income, which
could include both SSI and SSD benefits.
2
Although the United States Supreme Court has
accorded the states great deference in matters regarding family law, under the Supremacy
Clause, a federal statute may preempt a state statute when the two laws conflict.
3
Federal law
exempts certain social security benefits from legal process. Thus, in the present matter we
must determine whether SSI and/or SSD are preempted by federal law from being considered
as gross monthly income under Nevada's child support statute. Making this determination
requires an understanding of the distinction between SSI and SSD. Each is intended to serve a
specific purpose for the recipient.
SSI
[Headnotes 2-6]
As explained by the Indiana Court of Appeals in Cox v. Cox,
4
SSI is a federal social
welfare program designed to assure that the recipient's income is maintained at a level viewed
by Congress as the minimum necessary for the subsistence of that individual. SSI provides
benefits to disabled persons, blind persons, and individuals who are 65 or older.
5
Disabled
persons, to be eligible for SSI, must have a medically determinable physical or mental
disability and be unable to work because of that disability.
6
Additionally, a recipient may not
have more than $2,000 in financial resources.
7
Consequently, SSI is a means-tested
benefit. Government benefits are means-tested if eligibility for the benefits is determined
based on the recipient's income or resources.
8
Further, SSI is intended to supplement a
recipient's income, not substitute lost income because of a disability.
9
The recipient is not
required to pay into the social security system in order to qualify for SSI benefits.
10
Thus,
SSI provides a person with a minimum income and is designed to help poor, needy people.
____________________

2
NRS 125B.070(1)(a).

3
Rose v. Rose, 481 U.S. 619 (1987); see also Davidson v. Velsicol Chemical, 108 Nev. 591, 594, 834 P.2d
931, 932 (1992) (recognizing that federal law may preempt state law when Congress expressly provides for
preemption).

4
654 N.E.2d 275, 277 (Ind. Ct. App. 1995).

5
42 U.S.C. 1381 (2000).

6
20 C.F.R. 416.905(a) (2004) (defining disability for adults).

7
Id. 416.1205(c).

8
Burns v. Edwards, 842 A.2d 186, 190 (N.J. Super. Ct. App. Div. 2004).

9
Id. at 191.

10
See Davis v. Office of Child Support Enforcement, 20 S.W.3d 273, 277 (Ark. 2000).
120 Nev. 786, 791 (2004) Metz v. Metz
SSD
[Headnote 7]
SSD, on the other hand, is a disability insurance program that provides benefits for
disabled workers.
11
SSD benefits are financed from payroll deductions and represent money
that an employee has earned during his or her employment, and that the employer has paid for
the employee's benefit.
12
Thus, SSD is available based on an employee paying into the social
security system during employment. A person is eligible for SSD benefits if certain disability
requirements are met and if other criteria based on contributions into the social security
retirement system are also met.
13
SSD is intended to replace lost income when an employee
is unable to work after becoming disabled.
14

Having explained the nature of SSI and SSD benefits, we now turn to Nevada's child
support statute, to see if these benefits may be considered income used to calculate a parent's
monthly support obligation.
Child support statute
NRS 125B.070, Nevada's child support statute, sets forth a support schedule based upon a
parent's gross monthly income. NRS 125B.070(1)(a) defines gross monthly income as
the total amount of income received each month from any source of a person who is not
self-employed or the gross income from any source of a self-employed person, 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.
This court has not addressed the issue of whether, under Nevada's child support statute, social
security benefits can be considered gross monthly income for the purpose of calculating a
support obligation.
[Headnotes 8-16]
Statutory construction is a question of law.
15
When the language of a statute is expressly
clear and unambiguous, the apparent intent must be given effect, as there is no room for
construction.
____________________

11
See 42 U.S.C. 405 (2000); see also Angela F. Epps, To Pay or Not To Pay, That Is the Question: Should
SSI Recipients Be Exempt from Child Support Obligations?, 34 Rutgers L.J. 63, 64 (2002).

12
42 U.S.C. 405.

13
See 20 C.F.R. 404.315(a).

14
See Lightel v. Myers, 791 So. 2d 955, 959 (Ala. Civ. App. 2000).

15
General Motors v. Jackson, 111 Nev. 1026, 1029, 900 P.2d 345, 348 (1995).
120 Nev. 786, 792 (2004) Metz v. Metz
must be given effect, as there is no room for construction.
16
If, however, a statutory
provision is ambiguous, then this court should attempt to follow the Legislature's intent.
17
To
ascertain legislative intent, a court may examine the context and spirit of the statute in
question, together with the subject matter and policy involved.
18
Statutes also should be
interpreted in line with what reason and public policy would indicate the legislature
intended.
19
In addition, a statute should be read as a whole to give meaning to all of its
parts.
20
No part of a statute should be rendered nugatory, nor any language turned to mere
surplusage, if such consequences can properly be avoided.'
21
Statutes with a protective
purpose should be liberally construed in order to effectuate the benefits intended to be
obtained.
22
Finally, when the Legislature makes a substantial change in a statute's language,
it indicates a change in the legislative intent.
23

[Headnote 17]
This court has construed the meaning of gross monthly income in a prior version of NRS
125B.070. In Rodgers v. Rodgers,
24
we considered whether the statutory definition of gross
monthly income included a parent's community property interest in a new spouse's earnings.
At the time, the statute defined gross monthly income as the total amount of income from
any source of a wage-earning employee or the gross income from any source of a
self-employed person.
25
We construed gross monthly income to be limited to the
parent's income from employment,
26
reasoning that any other interpretation would render
the terms wage-earning employee and self-employed person nugatory.
____________________

16
State, Dep't Human Res. v. Estate of Ullmer, 120 Nev. 108, 113, 87 P.3d 1045, 1049 (2004).

17
County of Clark v. Upchurch, 114 Nev. 749, 753, 961 P.2d 754, 757 (1998); Cleghorn v. Hess, 109 Nev.
544, 548, 853 P.2d 1260, 1262 (1993); McKay v. Bd. of Supervisors, 102 Nev. 644, 649, 730 P.2d 438, 442
(1986).

18
McKay, 102 Nev. at 650-51, 730 P.2d at 443.

19
State, Dep't Mtr. Vehicles v. Vezeris, 102 Nev. 232, 236, 720 P.2d 1208, 1211 (1986) (quotation marks
omitted).

20
Edgington v. Edgington, 119 Nev. 577, 583, 80 P.3d 1282, 1287 (2003).

21
Paramount Ins. v. Rayson & Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970) (quoting Torreyson v.
Board of Examiners, 7 Nev. 19, 22 (1871)).

22
Colello v. Administrator, Real Est. Div., 100 Nev. 344, 347, 683 P.2d 15, 17 (1984).

23
Camino Et Al. v. Lewis, 52 Nev. 202, 210, 284 P. 766, 768 (1930) (Coleman, J., concurring).

24
110 Nev. 1370, 1373, 887 P.2d 269, 271 (1994).

25
Id. (emphasis added).

26
Id.
120 Nev. 786, 793 (2004) Metz v. Metz
The child support statute was revised in 2001, and the term wage-earning employee was
replaced with person who is not self-employed.
27
The legislative history fails to reveal why
the language was changed; the focus of the Assembly hearings was raising the maximum cap
for child support.
28
The substantial change in the statute's language indicates that the
Legislature intended to retreat from the Rodgers interpretation of gross monthly income.
The new language could indicate a complete shift away from income being limited to
employment. Or, since the definition still includes the self-employed language discussed in
Rodgers, the change could indicate that income is still tied to employment, but not just to
wages. Consequently, the definition of gross monthly income is ambiguous.
[Headnote 18]
Our rules of statutory construction yield a conclusion that gross monthly income is no
longer limited to income from employment. The statute provides that income received from
any source, regardless of whether the parent is not self-employed or is self-employed,
should be used to calculate a parent's child support obligation. If given full effect, this any
source language means that income is not limited to employment earnings. Additionally,
Nevada's public policies, to promote the adequate support of children and to encourage both
parents to share the responsibilities of child rearing,
29
are served by including income from
all sources in child support calculations. Finally, as the statute has a protective purposeto
maintain the support of childrenit should be liberally construed to achieve this purpose.
Therefore, we conclude that gross monthly income is not limited to income from
employment but may include income from other sources. Given our conclusion, both SSI and
SSD qualify as a source of a parent's gross monthly income under NRS 125B.070.
Federal preemption
Under 42 U.S.C. 407, Congress has expressly exempted all social security benefits from
legal process brought by any creditor, including attachment, garnishment, levy or execution:
The right of any person to any future payment under this subchapter shall not be
transferable or assignable, at law or in equity, and none of the moneys paid or payable
or rights existing under this subchapter shall be subject to execution, levy,
attachment, garnishment, or other legal process, or to the operation of any
bankruptcy or insolvency law.
____________________

27
2001 Nev. Stat., ch. 386, 1, at 1865.

28
Hearing on A.B. 37 Before the Assembly Comm. on Judiciary, 71st Leg. (February 15, 2001).

29
See NRS 125.460(2).
120 Nev. 786, 794 (2004) Metz v. Metz
isting under this subchapter shall be subject to execution, levy, attachment,
garnishment, or other legal process, or to the operation of any bankruptcy or insolvency
law.
30

In spite of this exemption, however, Congress has consented to income withholding,
garnishment, and similar proceedings for child and spousal support enforcement from federal
moneys payable based on remuneration for employment.
31
The exemption and its
exception propel us to different conclusions regarding SSI and SSD in the context of child
support.
SSI benefits
[Headnote 19]
As explained above, SSI benefits are meant to provide recipients with a minimum income
for self-support and are not paid from wage withholding or other employment funds. SSI
benefits are not funded from payments from any past or present employment.
32
Nor are
recipients required to pay into the social security system in order to qualify for SSI.
Consequently, SSI benefits are not payable based on remuneration for employment, and the
general exemption under 42 U.S.C. 407 applies. As federal law exempts these benefits from
creditors, and Nevada's child support statute includes these benefits as income to be used in
child support calculations, the federal statute conflicts with Nevada's statute.
[Headnote 20]
According to the United States Supreme Court's opinion in Rose v. Rose,
33
when a family
law statute comes into conflict with a federal statute, the state law will be preempted if
Congress has positively required by direct enactment ' that preemption is necessary.
The Rose Court also explained that before a court may consider that federal law as overriding
a state family law, the state law must do major damage to clear and substantial federal
interests.'
34
The Supreme Court has also recognized that [t]he purpose of Congress is the
ultimate touchstone' in every pre-emption case.
35

____________________

30
42 U.S.C. 407(a) (2000).

31
Id. 659(a).

32
Davis, 20 S.W.3d at 276-77.

33
481 U.S. 619, 625 (1987) (quoting Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979), superseded in part
by 45 U.S.C. 231m (1986) (quoting Wetmore v. Markoe, 196 U.S. 68, 77 (1904))).

34
Id. (quoting Hisquierdo, 439 U.S. at 581 (quoting United States v. Yazell, 382 U.S. 341, 352 (1966))).

35
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96,
103 (1963)).
120 Nev. 786, 795 (2004) Metz v. Metz
We previously recognized the federal exemption's preemptive effect in Boulter v. Boulter,
a case involving property division between spouses.
36
In Boulter, the district court dissolved
the parties' thirty-seven-year marriage and incorporated a property settlement agreement into
the divorce decree. Under the agreement, the parties agreed to pool and divide equally the
social security benefits accrued by the husband during the marriage.
37
When the husband
reached retirement, he refused to apply for social security benefits, and the wife moved to
enforce the agreement. The district court granted the wife's motion, and the husband
appealed.
On appeal, we concluded that the state court lacked authority to enforce the marital
settlement agreement's provision dividing social security benefits. In resolving the issue, we
observed that 42 U.S.C. 407's exemption applied to the social security benefits and
concluded that this provision preempted the decree. Accordingly, the district court was
without authority to take any action regarding the parties' social security benefits.
38

As with the social security benefits in Boulter, the federal exemption for SSI benefits also
preempts Nevada law. The purpose of SSI is to provide a recipient with a minimum income
for his or her own needs. Thus, using SSI benefits to satisfy a child support obligation would
do major damage' to a clear and substantial federal interest.
39
Our conclusion is
supported by the law from other jurisdictions as well. A majority of states have expressly
exempted SSI benefits from income considerations under child support statutes.
40
Other
states, through case law, have held that 407(a) prohibits state courts from ordering child
support to come from SSI benefits.
____________________

36
113 Nev. 74, 930 P.2d 112 (1997).

37
Id. at 75 & n.1, 930 P.2d at 112 & n.1.

38
Id. at 76-78, 930 P.2d at 113-14.

39
Davis, 20 S.W.3d at 277; see also Tennessee DHS ex rel. Young v. Young, 802 S.W.2d 594, 597-99 (Tenn.
1990).

40
See Cal. Fam. Code 4058(c) (West 2004) (excluding from annual gross income, funds derived from any
public assistance program); Colo. Rev. Stat. 14-10-115(7)(a)(I)(B) (2004) (providing that [g]ross income'
does not include benefits received from means-tested public assistance programs); Me. Rev. Stat. Ann. tit.
19-A, 2001(5)(G) (West 1998) (providing that [g]ross income does not include that amount of money
received from means-tested public assistance programs, including, . . . supplemental security income); Md.
Code Ann., Fam. Law 12-201(5) (Supp. 2004) (same); N.M. Stat. Ann. 40-4-11.1(C)(2)(a) (Michie 1999)
(providing that gross income' shall not include benefits received from means-tested public assistance
programs); Ohio Rev. Code Ann. 3119.01(C)(7)(a) (Anderson Supp. 2003) (providing that gross income does
not include supplemental security income); Utah Code Ann. 78-45-7.5(3)(b) (2002) (providing that benefits
received from supplemental security income are excluded from gross income); Wash. Rev. Code Ann.
26-19-071(4)(e) (West 2004) (same); W. Va. Code Ann. 48-1-228(9)(d)(3) (Michie 2004) (same); Wyo. Stat.
Ann. 20-2-303(a)(ii) (Michie 2003) (providing that means-tested income sources, such as supplemental
security income, are not considered income).
120 Nev. 786, 796 (2004) Metz v. Metz
prohibits state courts from ordering child support to come from SSI benefits.
41

SSD benefits
[Headnote 21]
In spite of the federal exemption, Congress has consented to income withholding,
garnishment, and similar proceedings for child and spousal support enforcement from federal
moneys payable based on remuneration for employment.
42
Under this exception, because
the SSD program is funded from remuneration for employment, legal process permits
enforcement of child support obligations through execution against SSD benefits.
43
Thus, as
SSD benefits may be used to satisfy a child support order, these benefits may be included in a
parent's gross income for child support considerations.
44

In the present case, the district court did not make specific findings of fact regarding the
amount Amy receives under each benefit, nor did the court discuss Robert's financial
circumstances, although the district court did direct Amy to obtain dependency benefits for
the child. Accordingly, the district court abused its discretion when it declined to consider
Amy's child support obligation.
____________________

41
See Davis, 20 S.W.3d at 276; Becker County Human Services v. Peppel, 493 N.W.2d 573, 576 (Minn. Ct.
App. 1992); Young, 802 S.W.2d at 597-99.

42
42 U.S.C. 659(a) provides:
Consent by the United States to income withholding, garnishment, and similar proceedings for
enforcement of child support and alimony obligations
(a) Consent to support enforcement
Notwithstanding any other provision of law (including section 407 of this title and section 5301 of
Title 38), effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for
employment) due from, or payable by, the United States or the District of Columbia (including any
agency, subdivision, or instrumentality thereof) to any individual, including members of the Armed
Forces of the United States, shall be subject, in like manner and to the same extent as if the United States
or the District of Columbia were a private person, to withholding in accordance with State law enacted
pursuant to subsections (a)(1) and (b) of section 666 of this title and regulations of the Secretary under
such subsections, and to any other legal process brought, by a State agency administering a program
under a State plan approved under this part or by an individual obligee, to enforce the legal obligation of
the individual to provide child support or alimony.

43
Id.

44
See Burns, 842 A.2d at 192 (observing that while SSI benefits are exempt from income for child support
calculations, SSD may be utilized as income when calculating a parent's child support obligation).
120 Nev. 786, 797 (2004) Metz v. Metz
The child custody order
[Headnotes 22-25]
Finally, Robert appeals from the district court order concerning child custody. Matters of
custody, including visitation, rest in the district court's sound discretion.
45
This court will not
disturb the district court's judgment concerning child custody absent a clear abuse of
discretion.
46
A two-prong test has been applied in addressing modifications to child custody
arrangements.
47
A change of primary physical custody is warranted only when: (1) the
circumstances of the parents have been materially altered; and (2) the child's welfare would
be substantially enhanced by the change.
48

Here, the district court's order did not include the court's reasoning for denying Robert's
motion to change custody. Even so, the parties have had a strained relationship regarding the
care of their child since the divorce was entered in 1998. The record does not reveal that any
significant change has occurred since the 1999 child custody stipulation was entered.
Accordingly, the district court did not abuse its discretion when it denied Robert's motion to
change custody.
CONCLUSION
We conclude that SSI and SSD come within the definition of gross monthly income
under the child support statute, and only SSI is preempted by federal law from child support
consideration. Thus, the district court erred in failing to examine Amy's SSD benefits when
reviewing Robert's motion for child support. We therefore reverse that portion of the district
court order that declined to order Amy to pay child support, and we remand this matter to the
district court for further proceedings. With respect to the order concerning child custody, we
conclude that the district court did not abuse its discretion when it denied Robert's motion to
modify the child custody arrangement. Accordingly, we affirm that order.
____________________

45
Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996).

46
Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993); see also NRS 125.480(1) (providing that the
sole consideration in awarding custody of a child is the best interest of the child).

47
Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968).

48
Id. at 711, 447 P.2d at 665.
____________
120 Nev. 798, 798 (2004) Rodriguez v. Dist. Ct.
CHARLES RODRIGUEZ, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, THE
HONORABLE STEVEN E. JONES, District Judge, Family Court Division, and THE
SHERIFF, CLARK COUNTY, Respondents, and NICOLE EDDOWES, Real Party in
Interest.
No. 42991
December 9, 2004 102 P.3d 41
Original proper person petition for a writ of habeas corpus challenging a district court
order that rejected petitioner's request for appointment of counsel and held petitioner in
contempt and sentenced him to serve 25 days in jail, with the possibility of early release upon
payment of $10,000 in child support arrearages.
Former husband was found in contempt of court by the district court for nonpayment of
child support and was ordered to serve 25 days in jail with early release upon payment of
$10,000 in arrearages. Husband petitioned for writ of habeas corpus challenging order. The
supreme court, Rose, J., held that: (1) Sixth Amendment right to counsel did not apply in civil
contempt proceedings; (2) trial court was required to determine whether former husband was
indigent, for purposes of determining whether he was entitled to appointment of counsel; and
(3) due process did not require appointment of counsel in every civil contempt hearing
involving an indigent party facing the threat of incarceration.
Charles Rodriguez, Las Vegas, in Proper Person.
Edward W. Ewert, Deputy District Attorney, Clark County; Beckley Singleton, Chtd., and
Heidi J. Parry Stern and Daniel F. Polsenberg, Las Vegas, for Respondents.
Lyons Law Firm and Keith M. Lyons Jr., Las Vegas, for Real Party in Interest.
1. Criminal Law.
The Sixth Amendment guarantee of the right to counsel applies only in criminal
prosecutions. U.S. Const. amend. 6.
2. Contempt.
Whether a contempt proceeding is classified as criminal or civil in nature depends
on whether it is directed to punish the contemnor or, instead, coerce his compliance
with a court directive.
3. Contempt.
Criminal sanctions for contempt are punitive in that they serve the purpose of
preserving the dignity and authority of the court by punishing a party for offensive
behavior. In contrast, civil contempt is remedial in nature, as the sanctions are
intended to benefit a party by coercing or compelling the contemnor's future
compliance, not punishing them for past bad acts.
nature, as the sanctions are intended to benefit a party by coercing or compelling the
contemnor's future compliance, not punishing them for past bad acts.
4. Contempt.
A civil contempt order is indeterminate or conditional. The contemnor's compliance
is all that is sought and with that compliance comes the termination of any sanctions
imposed.
5. Contempt.
Criminal sanctions for contempt are unconditional or determinate, intended as
punishment for a party's past disobedience, with the contemnor's future compliance
having no effect on the duration of the sentence imposed.
6. Child Support.
Order finding former husband, allegedly indigent, in contempt for nonpayment of
child support and directing that he serve 25 days in jail with early release upon payment
of $10,000 in arrears was civil, and not criminal, in nature, and thus, Sixth Amendment
right to counsel did not apply. U.S. Const. amend. 6.
7. Costs.
The initial burden of establishing indigency in civil proceedings rests with the
petitioner, who must demonstrate not that he is entirely destitute and without funds, but
that payments for counsel would place an undue hardship on his ability to provide the
basic necessities of life for himself and his family. NRS 12.015.
8. Costs.
Factors particularly relevant to the determination of whether a party to a civil
proceeding is indigent are (1) the party's employment status and income, including
income from government sources such as social security and unemployment benefits;
(2) the ownership of any unencumbered assets, including real or personal property and
monies on deposit; and (3) the party's total indebtedness and any financial assistance
received from family or close friends. NRS 12.015.
9. Child Support; Costs.
When confronted with a party who is willfully underemployed, especially for
purposes of avoiding court-ordered support payments, additional inquiry into whether
the party is indigent is required. In such a case, it is prudent for the court to consider the
employability of the nonpaying party and what his ability to pay would be if
employment were pursued and obtained. NRS 12.015.
10. Appeal and Error; Costs.
While the determination of a party's indigency status is generally within the trial
court's sound discretion and, therefore, entitled to great deference on review, it is also
subject to careful scrutiny when it involves the protection of basic constitutional rights.
11. Costs.
Where two people are living together and functioning as a single economic unit,
whether married, related, or otherwise, consideration of their combined financial assets
may be warranted for the purposes of determining a party's indigency status in a civil
proceeding. NRS 12.015.
12. Child Support.
Trial court was required to determine whether former husband was indigent, for
purposes of determining whether he was entitled to appointment of counsel in contempt
proceedings for nonpayment of child support, and to support that determination with
findings regarding his financial status, including any income derived from business he
was awarded in divorce, his employment prospects, and potential ability to pay.
tus, including any income derived from business he was awarded in divorce, his
employment prospects, and potential ability to pay. NRS 12.015.
13. Child Support.
A party cannot be found guilty of contempt for failing to pay child support and
sentenced to jail conditional upon his payment of arrearages unless the trial court first
determines that the individual (1) has the ability to make the payment and (2) willfully
refuses to pay.
Whether due process requirements have been met requires a review of the private
interests at stake, the government's interest, and the risk that the procedures used will
lead to erroneous decisions. U.S. Const. amend. 14.
In determining whether an indigent party in a contempt proceeding based on
nonpayment of child support has a due process right to appointment of counsel, after
balancing each of the due process elements against the other, they as a whole are
measured against the presumption that a right to appointed counsel arises only when the
indigent party may lose his personal freedom. U.S. Const. amend. 14; NRS 12.015.
16. Contempt.
While a contemnor's private liberty interest in personal freedom is indeed an
important interest to consider in determining whether he is entitled to appointment of
counsel, it is not on par with that of the accused in a criminal prosecution.
17. Child Support.
In a contempt hearing for the nonpayment of child support, a party loses his personal
freedom only after the court determines that he has the ability to comply with the child
support order but failed to make an effort to do so.
18. Child Support.
The State's interest in a contempt proceeding for nonpayment of child support, while
primarily based on the welfare of the child, is to ensure that child support orders are
enforced as economically and efficiently as possible.
19. Child Support.
The purpose of child support is to try to prevent the child from experiencing the
effects of poverty and becoming a charge of the State. Thus, the State has a strong
interest in ensuring that support orders are enforced through informal procedures and
that the parties under its jurisdiction obey the orders of family courts as issued.
20. Child Support.
Each of the parties involved in a contempt hearing for the nonpayment of child
support has an important interest in the accuracy of the court's determination as to
whether the defendant complied with the court's initial support order.
Due process does not require the appointment of counsel in every civil contempt
hearing involving an indigent party facing the threat of incarceration. Instead, the trial
court is the proper evaluator of the need for counsel on a case-by-case basis. U.S.
Const. amend. 14.
22. Child Support.
The need for appointed counsel in a civil contempt proceeding for nonpayment of
child support turns on an initial determination of indigency, for unless a party is truly
indigent, the State need not provide representation.
for unless a party is truly indigent, the State need not provide representation. If an
indigent party faces the threat of possible incarceration for the nonpayment of child
support, the court should then seek to balance the private liberty interest at stake, the
government's interest, and the risk of an erroneous finding, taking into account the
complexity of the legal and factual issues and the party's ability to effectively
communicate on his own behalf.
OPINION
This petition presents a question of first impression: Whether an indigent defendant in
family court is entitled to appointed counsel in a contempt hearing when the hearing may
result in the imposition of a jail sentence for the nonpayment of child support.
Charles Rodriguez, petitioner, and Nicole Eddowes, the real party in interest, were
divorced on November 6, 2001. The terms of the initial custody order and divorce decree
awarded primary physical custody of the couple's only child to Eddowes and ordered
Rodriguez to pay child support, along with one-half of the child's insurance premiums, and
one-half of any unreimbursed medical expenses incurred on the child's behalf.
Rodriguez failed to make the payments as required, and on March 1, 2004, the district
court found Rodriguez in contempt of court for the nonpayment of child support and ordered
him to serve 25 days in jail, with the possibility of early release upon payment of $10,000 of
the outstanding arrearages. Rodriguez then filed this petition for a writ of habeas corpus,
challenging the district court's order rejecting his request for the appointment of counsel and
finding him in contempt of court.
We conclude that while a defendant in a contempt proceeding before the family court does
indeed have an important liberty interest at stake, that interest is not so compelling as to
require the appointment of counsel, nor is it on par with the personal liberty interests at issue
in a criminal prosecution or criminal contempt hearing to warrant the right to appointed
counsel in every case. We adopt a discretionary rule involving the nonpayment of support
cases whereby the district court may appoint counsel to assist an indigent defendant when the
circumstances so warrant. Consequently, we grant the petition in part. Rodriguez shall remain
free from confinement until the district court makes the required findings and determinations
of indigency and contempt in accord with this decision.
FACTS
Rodriguez and Eddowes were divorced on November 6, 2001.
1
The terms of the divorce
decree awarded Eddowes primary physical custody of the couple's child and ordered
Rodriguez to pay child support, one-half of the insurance premiums for the child, and
one-half of any unreimbursed medical expenses incurred on the child's behalf.
In explaining its decision in the divorce, the district court found that Rodriguez was
unemployed and underemployed because of a unilateral desire to educate himself and assist in
his divorce and custody proceedings. Noting that Rodriguez's actions thus far did not appear
to be taken for the purpose of avoiding child support, the court warned that any future
noncompliance with subsequent court orders would be considered an attempt to avoid child
support and sanctions could be imposed accordingly. The district court determined that
Rodriguez had the ability to generate income of at least $2,000 per month and observed that it
fully expected Rodriguez to earn an even greater income based upon his representations and
the testimony of witnesses, regarding the business awarded to him in the divorce.
Rodriguez filed an ex parte motion for leave to proceed in forma pauperis on his appeal
from the divorce decree. On February 17, 2002, the district court denied the motion, finding
Rodriguez's claim of financial inability disingenuous and made in bad faith. The district court
noted that, even without considering other outside employment, Rodriguez possessed a
considerable source of income through the operation or sale of the business awarded to him in
the divorce. Noting that it had previously found Rodriguez willfully unemployed, but for
purposes other than the avoidance of child support, the court determined that his failure to
work for the three months following the trial was due to his conscious insistence to remain
unemployed. Therefore, because Rodriguez was fully capable of meeting his obligations, the
court denied his request.
On two subsequent occasions, the district court held Rodriguez in contempt of court for
the nonpayment of child support and for failing to obey the court's order requiring him to pay
his share of the child's medical expenses.
2
On each occasion, Rodriguez asserted that he was
entitled to an attorney because of the possibility that he would be found in contempt and
sentenced to jail. Rodriguez claimed that he was unemployed and unable to meet his
obligations because of the time required to research and appeal the child custody order
issued in this case and another case involving his other child.
____________________

1
The petition for divorce appears to have been filed in July 1999.

2
The first contempt order, issued June 4, 2002, placed Rodriguez in jail for 20 days with the possibility of his
early release upon the payment of $8,000 of the outstanding arrearages. The second order, issued August 19,
2002, was for 25 days, again with early release, this time upon payment of $9,200 of the outstanding amount.
obligations because of the time required to research and appeal the child custody order issued
in this case and another case involving his other child. Rodriguez insisted that he was not
willfully refusing to pay child support and argued that his daughter was not injured by his
actions because his nonpayment was the direct result of his efforts to get custody of her.
At one point, Rodriguez requested a continuance because he was not prepared to go
forward, as he had just returned from a vacation with his daughter at Disneyland. The court
inquired as to where Rodriguez got the money to go to Disneyland, and he stated that his
mother paid for the vacation. The court asked whether Rodriguez had made any child support
payments, and he responded that he had borrowed $100 to make a partial payment following
the first contempt order. The court found that Rodriguez had made a conscious choice to be
unemployed to pursue his appeal, which the court did not accept as a justifiable excuse for his
nonpayment. Additionally, the court denied Rodriguez's request for appointed counsel,
observing that the court's proceedings were civil and not criminal. Given the court's belief
that the facts of the case spoke for themselves, the court did not concur with Rodriguez's
assertion that an attorney was necessary to represent him. The court specifically admonished
Rodriguez to make an effort to secure a job that would generate a salary and enable him to
meet his court ordered child support obligation.
Rodriguez ultimately filed an affidavit of indigency and a motion to reduce the child
support award. Eddowes opposed the motion and filed a countermotion for contempt.
Rodriguez filed an affidavit of indigency on February 13, 2004. At a hearing on February 17,
2004, Rodriguez requested to withdraw his motion to reduce child support until he retained
counsel. The district court noted that because this court had affirmed the decree of divorce,
other issues were moot; however, at the request of Eddowes' counsel, the court decided to
proceed with Eddowes' countermotion for contempt.
Rodriguez again argued that as an indigent person he had the right to appointed counsel
because his liberty interest was on the line. Rodriguez acknowledged that no Nevada statute
provides for such a right, but maintained that other courts dealing with the issue have
concluded that there is such a right to counsel. Despite Rodriguez's arguments, the court
denied his request for counsel and proceeded with the contempt hearing. However, the court
instructed Eddowes that she must file a motion to show cause before the court could hear the
matter.
On March 1, 2004, the court heard Eddowes' motion to show cause. Eddowes informed the
court that since October 2002, Rodriguez had been paying less than one-third of the monthly
child support ordered. Rodriguez stated that he had the right to an attorney, he could not
afford an attorney, and he was not qualified to represent himself.
attorney, he could not afford an attorney, and he was not qualified to represent himself.
Rodriguez insisted that without an attorney he could not get a fair hearing and that the district
court and this court had continued to discriminate against him. The court inquired whether
Rodriguez was employed and why he had not paid his support obligation. Insisting that he
was indigent, Rodriguez refused to answer the court's questions without the presence of
counsel.
The court observed that Rodriguez had presented no evidence to demonstrate that his
unemployment was involuntary, as he was physically able to work but refused to obtain a job.
The court noted that Rodriguez's voluntary choice to pursue his appeal of the custody award
and child support order did not eradicate his duty to pay child support. The district court once
again found Rodriguez in contempt of court for failing to pay child support and this time
ordered him to serve 25 days in jail, with early release if he paid $10,000 of the more than
$18,000 outstanding in arrears. Once again, the court directed Rodriguez to make all
reasonable efforts to obtain employment, either through self-employment in the business
awarded to him in the divorce or regular employment.
Thereafter, Rodriguez filed this original petition for a writ of habeas corpus challenging
the district court order holding him in contempt and ordering him to serve 25 days in jail,
with the possibility of early release upon his payment of $10,000 of the outstanding
arrearages. We ordered a temporary stay of the district court's contempt order and Rodriguez's
release from custody pending our review of the matter.
DISCUSSION
Rodriguez argues that his incarceration without the assistance of court-appointed counsel
violates the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and
Article 1, Section 8(5) of the Nevada Constitution. This being an issue of first impression, we
feel it is important to set forth the legal principles upon which our reasoning relies.
Sixth Amendment right to counsel
[Headnotes 1-6]
At the outset, we note that the Sixth Amendment guarantee of the right to counsel applies
only in criminal prosecutions.
3
Whether a contempt proceeding is classified as criminal or
civil in nature depends on whether it is directed to punish the contemnor or, instead, coerce
his compliance with a court directive.
4
Criminal sanctions are punitive in that they serve
the purpose of preserving the dignity and authority of the court by punishing a party for
offensive behavior.
____________________

3
Argersinger v. Hamlin, 407 U.S. 25 (1972).

4
Matter of Water Rights of Humboldt River, 118 Nev. 901, 909, 59 P.3d 1226, 1231 (2002) (citing Warner v.
District Court, 111 Nev. 1379, 1383, 906 P.2d 707, 709 (1995)).
are punitive in that they serve the purpose of preserving the dignity and authority of the court
by punishing a party for offensive behavior.
5
In contrast, civil contempt is said to be
remedial in nature, as the sanctions are intended to benefit a party by coercing or compelling
the contemnor's future compliance, not punishing them for past bad acts.
6
Moreover, a civil
contempt order is indeterminate or conditional; the contemnor's compliance is all that is
sought and with that compliance comes the termination of any sanctions imposed.
7
Criminal
sanctions, on the other hand, are unconditional or determinate, intended as punishment for a
party's past disobedience, with the contemnor's future compliance having no effect on the
duration of the sentence imposed.
8

The contempt order issued in the present case is civil. The district court's intent was to
compel Rodriguez's compliance with the support order for the benefit of his daughter, not to
punish him for any ongoing noncompliance.
9
Consequently, the Sixth Amendment right to
counsel is inapplicable.
The determination of indigency
Determining that the proceedings in this case are civil and not criminal does not fully
resolve the underlying issue of whether an indigent defendant threatened with incarceration
must be appointed counsel in every case. The threshold question is whether a finding of
purposeful underemployment is an appropriate basis to defeat a petitioner's claim of
indigency.
[Headnote 7]
Determining whether a particular party meets the standard for indigency is a fact-intensive
inquiry.
10
The initial burden of establishing indigency rests with the petitioner,
11
who must
demonstrate not that he is entirely destitute and without funds, but that payments for
counsel would place an undue hardship on his ability to provide the basic necessities of
life for himself and his family.
____________________

5
Warner, 111 Nev. at 1382-83, 906 P.2d at 709.

6
Id. at 1383, 906 P.2d at 709 (citing Hicks v. Feiock, 485 U.S. 624, 631-33 (1988)).

7
Id.; see also State ex rel. Dept. of Human Services v. Rael, 642 P.2d 1099, 1102 (N.M. 1982).

8
Warner, 111 Nev. at 1383, 906 P.2d at 709.

9
We note that this is the third contempt order issued against Rodriguez in this case. While one could argue
that to some extent the court punished Rodriguez when it sentenced him to 25 days in jail, quite clearly, if the
court intended to punish instead of coerce, the sentence for a third ongoing violation of a court directive would
show an increase beyond the previous 20- and 25-day coercive jail sentences. However, putting a father in jail
for an extended stay is counterproductive to the ultimate goal of coercing his payment of child support.

10
State v. Vincent, 883 P.2d 278, 283 (Utah 1994).

11
Nikander v. Dist. Ct. in & for First. Jud. Dist., 711 P.2d 1260, 1262 (Colo. 1986).
not that he is entirely destitute and without funds, but that payments for counsel would place
an undue hardship on his ability to provide the basic necessities of life for himself and his
family.
12

Under Nevada criminal procedure, a criminal defendant may request the appointment of
counsel by submitting an affidavit of indigency.
13
Under NRS 171.188(3), when such a
request is made, the judge must consider the application and may, after making further
inquiry as necessary, appoint counsel if he or she (a) [f]inds that the defendant is without
means of employing an attorney; and (b) [o]therwise determines that representation is
required.
14
That statute, however, applies in criminal cases, and as we have already noted,
the contempt hearing in this case was civil, not criminal in nature.
[Headnotes 8-11]
In the context of civil litigation, the general rule is that courts look to a party's current
financial status, including the party's income, property, and other resources, to determine that
party's present ability or, more importantly, inability to prosecute or defend an action.
15
When considering an indigency application, a trial judge must consider a party's complete
financial picture, balancing income and assets against debts and liabilities, taking into
account the cost of a party's basic needs and living expenses.
16
Particularly relevant to this
inquiry are (1) the party's employment status and income, including income from government
sources such as social security and unemployment benefits,
17
(2) the ownership of any
unencumbered assets, including real or personal property and monies on deposit,
18
and
finally, (3) the party's total indebtedness and any financial assistance received from family
or close friends.
____________________

12
Vincent, 883 P.2d at 283; see also Nikander, 711 P.2d at 1262 (In order to be deemed indigent, the
defendant need not be destitute; rather, it is sufficient that the defendant lack the necessary funds, on a practical
basis, to retain competent counsel.).

13
NRS 171.188(1), (2).

14
While this statute specifically applies to criminal commitments, its applicability in the context of family law
is seen by reference to it in NRS 62D.030(2), calling for the appointment of counsel to represent a child, who is
alleged to be delinquent or in need of supervision, of an indigent parent or guardian.

15
NRS 12.015; see Nikander, 711 P.2d at 1263 ( The relevant consideration in determining indigency is
whether the petitioner's current financial status affords him equal access to the legal process.' (quoting March
v. Municipal Court for San Francisco Judicial District, 498 P.2d 437, 442 (Cal. 1972))).

16
Nikander, 711 P.2d at 1262.

17
See Vincent, 883 P.2d at 283; Hill v. State, 805 S.W.2d 651, 652-53 (Ark. 1991).

18
Hill, 805 S.W.2d at 652-53; Nikander, 711 P.2d at 1262.
financial assistance received from family or close friends.
19
Additionally, when confronted
with a party who is willfully underemployed, especially for purposes of avoiding court
ordered support payments, additional inquiry is required. In such a case, it is prudent for the
court to consider the employability of the nonpaying party and what his or her ability to pay
would be if employment were pursued and obtained.
20
We note that while the determination
of a party's indigency status is generally within the trial court's sound discretion and,
therefore, entitled to great deference on review, it is also subject to careful scrutiny when it
involves the protection of basic constitutional rights.
21

[Headnote 12]
Here, Rodriguez filed an affidavit of indigency pursuant to NRS 171.188 of Nevada's
criminal procedure code, outlining his current financial status and attesting to the fact that he
is without means to employ an attorney. In the affidavit, Rodriguez notes that he does not
own an interest in any real estate or personal property of any value. He states that while he
has borrowed money from his mother, she has no more money to loan [him] to obtain
counsel, and that he is not receiving assistance from any government agencies at this time.
Although the district court made summary findings that Rodriguez was underemployed,
the court did not make specific findings regarding indigency and his potential ability to pay.
The court referenced the business awarded to Rodriguez in the divorce, but made no specific
findings concerning the type and value of the business or what Rodriguez has done with the
business to this point.
____________________

19
E.g., Vincent, 883 P.2d at 283-84. Particularly relevant is a party's ability to borrow funds. More pertinent
to the situation presented here, where two people are living together and functioning as a single economic unit,
whether married, related, or otherwise, consideration of their combined financial assets may be warranted. See
id. at 283 n.6 (citing Kelsey v. Hanson, 818 P.2d 590, 592 (Utah Ct. App. 1991) (allowing consideration of
financial aid from family or friends in indigency determinations); Hill, 805 S.W.2d at 653 (permitting
consideration of a defendant's control or discretionary use of funds raised by others when determining
indigency); Nikander, 711 P.2d at 1262 (requiring that indigency determinations must be based on the complete
financial situation including all sources of income)).

20
We believe that this case presents one of the limited scenarios where consideration of a party's earning
capacity is relevant. Cf. Vincent, 883 P.2d at 283-84 (noting that where a party claiming indigency chooses to be
employed when it is convenient but then conveniently elects unemployment to claim indigency, a trial court
could reasonably conclude that that party is attempting to manipulate the justice system).

21
See Nikander, 711 P.2d at 1262 (discussing the standard of review applicable in cases involving the
determination of indigency and the appointment of counsel and entitlement to a free transcript for purposes of
appeal).
point. In addition, the district court made passing reference to Rodriguez's living arrangement
and the level of support received from his mother, but made no specific factual findings of
indigency. In this case, the district court should fully examine the facts underlying its
conclusion that petitioner is underemployed and determine whether he is indigent given the
relevant factors above.
Due process right to appointed counsel
Rodriguez contends that notwithstanding the indigency determination, due process
requires that counsel be appointed for the contempt hearing because he faced the threat of
potential confinement, which became the actual result. To address this contention and provide
guidance for the district court, we consider the remaining issues raised by Rodriguez.
Although we already concluded that these particular proceedings are civil, because Rodriguez
faced the threat of imprisonment, the fundamental requirements of due process must also be
met.
22

A number of courts have addressed the issue of whether due process requires the
appointment of counsel for an indigent party in a contempt proceeding involving the
nonpayment of child support that may result in a jail sentence.
23
Three divergent positions
emerge: (1) an absolute right to appointed counsel for indigent parties, (2) no right to
appointed counsel, and (3) the discretionary appointment of counsel on a case-by-case basis.
Courts taking the view urged by Rodriguez, that any deprivation of liberty as the result of a
contempt proceeding requires the appointment of counsel, eschew the distinction between
civil and criminal contempt, instead relying on the determination of indigency as the critical
factor in the analysis.
24

In Walker v. McLain, the Tenth Circuit Court of Appeals, relying on Lassiter v.
Department of Social Services,
25
held that due process requires the appointment of counsel
in a nonsupport hearing where a party threatened with incarceration can establish indigency
under the standards applicable in a criminal case.
____________________

22
The language in Article 1, Section 8(5) of the Nevada Constitution mirrors the Due Process Clauses of the
Fifth and Fourteenth Amendments to the United States Constitution: No person shall be deprived of life,
liberty, or property, without due process of law.

23
E.g., Walker v. McLain, 768 F.2d 1181 (10th Cir. 1985); Andrews v. Walton, 428 So. 2d 663, 666 (Fla.
1983); Mead v. Batchlor, 460 N.W.2d 493 (Mich. 1990); Duval v. Duval, 322 A.2d 1, 4 (N.H. 1974); Rael, 642
P.2d 1099; McBride v. McBride, 431 S.E.2d 14 (N.C. 1993); Peters-Riemers v. Riemers, 663 N.W.2d 657 (N.D.
2003).

24
Walker, 768 F.2d 1181; Mead, 460 N.W.2d 493; McBride, 431 S.E.2d 14; Peters-Riemers, 663 N.W.2d
657.

25
452 U.S. 18 (1981) (adopting discretionary factors for the appointment of counsel from Mathews v.
Eldridge, 424 U.S. 319, 335 (1976)).
gency under the standards applicable in a criminal case.
26
The court opined that the right to
counsel should not turn on whether the proceeding is characterized as criminal or civil but,
rather, whether the proceeding may result in a deprivation of the defendant's physical liberty.
27
Thus, because the court focused its inquiry on the petitioner's alleged indigency and his
inability to meet his support obligations, it concluded that the trial court's failure to warn
him of his right to appointed counsel was dispositive.
28

State courts following this line of reasoning discount the argument that the contemnor
holds the keys to the jailhouse door because, as they see it, the existence of a purge clause
does not diminish the liberty interests at stake when an indigent defendant is unable to pay the
arrearages to procure his release.
29
For these courts, the risk that an indigent defendant could
be jailed erroneously if not provided with counsel outweighs the government's interests
because other viable alternative means exist to compel compliance with a child support order.
The proffered examples include income withholding, federal and state tax intercept,
establishing a lien against real and personal property, and requiring a hearing before a referee.
30

[Headnote 13]
However, the Supreme Court of Florida in Andrews v. Walton
31
found this reasoning
unpersuasive, and we tend to agree. As that court noted, consistent with due process, a party
cannot be found guilty of failing to pay child support and sentenced to jail conditional upon
his payment of arrearages unless the trial court first determines that the individual (1) has the
ability to make the payment and (2) willfully refuses to pay.
32
The Florida court noted that
when these requirements are met, an indigent party cannot be imprisoned because, upon a
showing of indigency, the trial court cannot make the essential finding that the indigent parent
has the ability to pay.
33
Thus, the court held that a parent is never entitled to
court-appointed counsel in nonsupport proceedings "because if the parent has the ability
to pay, there is no indigency, and if the parent is indigent, there is no threat of
imprisonment.
____________________

26
768 F.2d at 1185.

27
Id. at 1183.

28
Id. at 1185.

29
Peters-Riemers, 663 N.W.2d at 664-65 ([T]he argument that . . . the defendant holds the keys to the
jailhouse door does not apply to diminish the defendant's liberty interest. A defendant found in contempt and
incarcerated does not hold the keys to the jailhouse door if the defendant cannot pay. (citations omitted)); see
also McBride, 431 S.E.2d at 18-19; Mead, 460 N.W.2d at 501-04.

30
Mead, 460 N.W.2d at 503.

31
428 So. 2d at 665-66.

32
Id. at 666.

33
Id.
to court-appointed counsel in nonsupport proceedings because if the parent has the ability to
pay, there is no indigency, and if the parent is indigent, there is no threat of imprisonment.
34

However compelling the straightforward analysis of Andrews may be, it fails to recognize
that in certain instances, the intricacies of the law or complexities of a case may warrant the
appointment of counsel. Under due process considerations, we must assess to what extent
representation by appointed counsel is required to ensure a fundamentally fair contempt
hearing.
[Headnotes 14, 15]
The United States Supreme Court in Lassiter recognized that an indigent party's right to
counsel depends initially on whether that party will lose his physical liberty if he loses the
litigation.
35
After noting that as a litigant's interest in personal liberty diminishes, so does
his right to appointed counsel, the Court, relying on Mathews v. Eldridge, applied a
three-part balancing test to determine whether the interests of due process have been met.
36
This test requires a review of the private interests at stake, the government's interest, and the
risk that the procedures used will lead to erroneous decisions.
37
After balancing each of
these elements against the other, they as a whole are measured against the presumption that a
right to appointed counsel arises only when the indigent party may lose his personal freedom.
38

Relying on Lassiter, the Supreme Court of New Mexico in State ex rel. Department of
Human Services v. Rael, held that due process does not require the appointment of counsel
every time an indigent party faces the possibility of imprisonment for civil contempt due to
the nonpayment of child support.
39
The court opined that the trial court is the proper forum
to determine the need for counsel, taking into account relevant factors such as the party's
ability to understand the proceeding, the complexity of the issues, and the defenses that
might be presented.
____________________

34
Id.

35
452 U.S. at 25-27 (holding that due process does not require the appointment of counsel in every
proceeding regarding the termination of parental rights).

36
Id. at 26-27.

37
Id. at 27 (citing Mathews v. Eldridge, 424 U.S. 319 (1976)); Rael, 642 P.2d at 1102-03 (applying the
Lassiter analysis in the context of civil contempt for nonpayment of child support).

38
Lassiter, 452 U.S. at 27; id. at 26-27 (In sum, the Court's precedents speak with one voice about what
fundamental fairness' has meant when the Court has considered the right to appointed counsel . . . . The case of
Mathews v. Eldridge, 424 U.S. 319, 335 [(1976)], propounds three elements to be evaluated in deciding what
due process requires, viz., the private interest at stake, the government's interest, and the risk that the procedures
used will lead to erroneous decisions. We must balance these elements against each other, and then set their net
weight in the scales against the presumption that there is a right to appointed counsel only where the indigent, if
he is unsuccessful, may lose his personal freedom.).

39
642 P.2d 1099, 1103 (N.M. 1982).
that the trial court is the proper forum to determine the need for counsel, taking into account
relevant factors such as the party's ability to understand the proceeding, the complexity of the
issues, and the defenses that might be presented.
40
The court adopted a case-by-case analysis,
providing the trial court with discretion to determine whether fundamental fairness requires
the appointment of counsel in any given case.
41
We believe, consistent with Lassiter, that
this case-by-case approach is the best rule of law.
A. The private interests at stake
[Headnotes 16, 17]
While a contemnor's private liberty interest in personal freedom is indeed an important
interest to consider, it is not on par with that of the accused in a criminal prosecution. In the
setting of a contempt hearing for the nonpayment of child support, a party loses his personal
freedom only after the court determines that he has the ability to comply with the child
support order but failed to make an effort to do so.
42
While it very well may be true that an
indigent party in a nonsupport hearing cannot be said to hold the keys to his salvation, this
does not mean that the liberty interests at stake mirror those of a criminal defendant. The real
issue before the trial court is not the contemnor's ability to comply, but his unwillingness to
do so.
The facts of this case demonstrate quite strikingly why this is true. The district court found
Rodriguez in contempt not because of any inability to pay, but in contrast, because of his
willful refusal to do so. At the time it entered the divorce decree, the district court determined
that Rodriguez possessed the ability to generate income, either through the business awarded
to him in the divorce or other outside employment. Rodriguez argues that he is indigent not
because of any inability to secure employment but, instead, because of the considerable time
he devoted to appealing the child custody orders for his two children.
43
Finding his
arguments unpersuasive, the district court declared Rodriguez willfully underemployed. The
trial court admonished Rodriguez to seek employment and begin paying on his obligations. It
was because of his unwillingness to comply that the court elected to employ more coercive
measures.
____________________

40
Id. at 1104.

41
Id.

42
See id. at 1102-03 (noting that the property interest at stake in a nonsupport contempt hearing is slight
because it has already been adjudicated in the original paternity and support suit).

43
Rodriguez is also appealing another child custody order not involving Eddowes or her daughter.
To allow a party's willful unemployment to require appointment of counsel would reward
that party for electing indigency to the detriment of his own child. We do not believe that is
what the Supreme Court meant when it recognized fundamental fairness as one of the
cornerstones to due process.
44

B. Governmental interests at issue
[Headnotes 18, 19]
The State's interest, while primarily based on the welfare of the child, is to ensure that
child support orders are enforced as economically and efficiently as possible. The added cost
of appointed counsel and lengthened time required for formal litigation run counter to the
State's interest.
45
In addition, the purpose of child support is simply to try to prevent the child
from experiencing the effects of poverty and becoming a charge of the state. Thus, the State
has a strong interest in ensuring that support orders are enforced through informal procedures
and that the parties under its jurisdiction obey the orders of family courts as issued.
C. Risk of erroneous decisions
[Headnote 20]
Each of the parties involved in a contempt hearing for the nonpayment of child support has
an important interest in the accuracy of the court's determination as to whether the defendant
complied with the court's initial support order.
46
The State has an interest in seeking
enforcement, and the contemnor has an interest in ensuring, in the case of payments actually
made, that all transactions are properly accounted for at the hearing. However, the legal and
factual issues in a nonsupport hearing are rarely complex. The only issue before the court is a
determination of whether a valid support order remains in force and, more importantly,
whether the defendant, if capable of making the payments, willfully failed to comply.
47
Thus,
the facts are normally determined by reference to court documents, accurate record keeping,
and simple accounting.
____________________

44
Lassiter, 452 U.S. at 24-25 (For all its consequence, due process has never been, and perhaps can never
be, precisely defined. . . . [D]ue process is not a technical conception with a fixed content unrelated to time,
place and circumstances. Rather, the phrase expresses the requirement of fundamental fairness, a requirement
whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an
uncertain enterprise which must discover what fundamental fairness consists of in a particular situation by first
considering any relevant precedents and then by assessing the several interests that are at stake. (citations and
quotation marks omitted)).

45
Rael, 642 P.2d at 1103.

46
Id.

47
Id.
[Headnote 21]
On balance, these factors demonstrate that fundamental fairness does not require the
appointment of counsel in every nonsupport contempt hearing when a party faces
incarceration. In contrast, it would be the exception, not the rule, for a case to present such
legal and factual complexities so as to require the aid of counsel. In only the rarest of cases
would a party be unable to comprehend the nature of court ordered child support, or not
understand the proceedings and why he or she is before the court on a charge of contempt.
Unless they are wholly incapable of determining whether the court ordered support remains in
effect, rarely would defenses amount to more than marshaling the financial facts of whether
he or she has made the required payments and conducting simple bookkeeping. Moreover, the
personal liberty interests at stake in a civil contempt hearing are diminished because in most
cases, the contemnor holds the keys to his freedom through willful compliance. The
deprivation of that interest is equally surpassed by the interests of the State and those of the
adverse party in seeing that the court's child support order is obeyed. The risk of erroneous
findings is not generally of such magnitude that the addition of counsel would significantly
improve the court's fact-finding function.
[Headnote 22]
Due process does not require the appointment of counsel in every civil contempt hearing
involving an indigent party facing the threat of imprisonment. Instead, the trial court is the
proper evaluator of the need for counsel on a case-by-case basis. The need for appointed
counsel turns on an initial determination of indigency, for unless a party is truly indigent, the
state need not provide representation. If an indigent party faces the threat of possible
incarceration for the nonpayment of child support, the court should then seek to balance the
private liberty interest at stake, the government's interest, and the risk of an erroneous finding,
taking into account the complexity of the legal and factual issues and the party's ability to
effectively communicate on his own behalf. By this, we do not mean to imply that
appointment of counsel is inappropriate in every nonsupport hearing. Surely, a case may arise
that requires appointed counsel to ensure that the defendant understands the law and has a
fundamentally fair opportunity to present a defense.
The order of contempt
Because Rodriguez apparently elects not to seek employment, the State possesses a limited
set of available options to compel his compliance. The alternative means of coercion noted
above could have little effect in this case.
have little effect in this case. Rodriguez willfully elects not to produce income. Without
income there is nothing to withhold, no federal income tax to intercept, and establishing a
lien against an individual's real or personal property is of little consequence where that party
elects to have none. The district court sentenced Rodriguez to serve 25 days in jail with the
possibility of early release upon his payment of a portion of the support payments in arrears.
While we express no opinion on the $10,000 figure selected by the district court, we note that
without specific findings regarding Rodriguez's current financial status, or the status of the
business awarded to him in the divorce, we are concerned whether Rodriguez actually
possesses the ability to secure his freedom. As previously noted, this is an important
distinction between civil and criminal contempt. Assuming the district court, after making
proper findings, selects an appropriate figure for Rodriguez to pay to purge his contempt, the
liberty interest at stake is diminished because Rodriguez in fact, is in control of his own
destiny. Moreover, the legal and factual circumstances presented are not complex. Rodriguez
appears to be able to marshal the facts and present his position to the court.
Accordingly, we grant the petition in part and direct the clerk of this court to issue a writ
of habeas corpus instructing the district court to make specific findings concerning
Rodriguez's indigency, to hold a further hearing if necessary, and thereafter to determine
whether Rodriguez is in contempt of court, the penalty for such contempt, and the amount
that will be necessary to purge that contempt. Rodriguez shall remain free from custody until
these determinations are made. The remaining relief requested by Rodriguez is denied.
Maupin and Douglas, JJ., concur.
____________
120 Nev. 815, 815 (2004) Walker v. Dist. Ct.
SAM D. WALKER, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE
HONORABLE DONALD M. MOSLEY, District Judge, Respondents, and THE
STATE OF NEVADA, Real Party in Interest.
No. 42627
December 9, 2004 101 P.3d 787
Original petition for a writ of mandamus or prohibition.
State filed a motion to unseal defendant's criminal records related to prior drug-related
charges for the purpose of inspection in connection with federal drug trafficking prosecution.
The district court granted motion. Defendant filed original petition for a writ of mandamus or
prohibition. The supreme court held that: (1) statute allowing a prosecuting attorney to reopen
sealed criminal records related to dismissed charges upon a showing that, based on newly
discovered evidence, a person had been arrested for the same or similar offense and that he
would likely stand trial for the offense did not permit State to unseal defendant's record in
prior drug prosecution on the basis that he was being prosecuted in a federal case for a
different drug-related charge; and (2) statute governing reopening of sealed records for the
purpose of obtaining information relating to codefendants or other persons who were
involved in case that was subject matter of sealed record did not permit State to unseal
defendant's criminal records to use information to impeach or to enhance sentence.
Petition granted.
Law Office of John J. Momot and John J. Momot, Las Vegas, for Petitioner.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, James
Tufteland, Chief Deputy District Attorney, and Sonia V. Jimenez, Deputy District Attorney,
Clark County, for Real Party in Interest.
1. Courts; Mandamus; Prohibition.
Writ relief is an extraordinary remedy within the sound discretion of the supreme
court.
2. Prohibition.
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 court's
jurisdiction.
3. Mandamus.
requires as a duty resulting from an office, trust or station or to control an arbitrary or
4. Courts; Mandamus; Prohibition.
Neither a writ of prohibition nor a writ of mandamus will issue if there is a plain,
speedy, and adequate remedy at law; however, where circumstances reveal urgency or
strong necessity, or where an important issue of law needs clarification and public
policy is served by the supreme court's invocation of its original jurisdiction, the court
may consider a petition for extraordinary relief.
Because statutory construction is a question of law, the supreme court reviews the
district court's interpretation of a statute de novo, without deference to the district
court's conclusions.
6. Statutes.
When interpreting a statute, the supreme court first looks to the statute's plain
language.
7. Statutes.
Whenever possible, statutes should be given their plain meaning and must be
construed as a whole and not be read in a way that would render words or phrases
superfluous or make a provision nugatory.
8. Records.
Statute allowing a prosecuting attorney to reopen sealed criminal records related to
dismissed charges upon a showing that, based on newly discovered evidence, a person
had been arrested for the same or similar offense and that he would likely stand trial for
the offense did not permit State to unseal defendant's record in prior drug prosecution
on the basis that defendant was being prosecuted in a federal case for, among other
things, a different drug-related charge, where there was no evidence that defendant's
subsequent arrest was in any way connected to his prior conduct. NRS 179.295(2).
9. Records.
The use of the phrase similar offense in statute permitting a prosecuting attorney
to reopen sealed criminal records related to dismissed charges upon a showing that,
based on newly discovered evidence, a person has been arrested for the same or similar
offense and that he will likely stand trial for the offense allows the State to review the
records even if the newly discovered evidence shows that perhaps the person committed
a slightly different crime than the one for which he was previously charged; it does not,
however, permit the State to use the unsealed records against a defendant in an
unconnected trial. NRS 179.295(2).
10. Records.
Statute governing reopening of sealed records for the purpose of obtaining
information relating to codefendants or other persons who were involved in the case
that was the subject matter of the sealed record did not permit State to unseal
defendant's criminal records so that the information contained in the sealed record
could be used either to impeach defendant if he testified in a subsequent and unrelated
adjudicative hearing or to enhance any sentence imposed pursuant to federal sentencing
guidelines in subsequent proceeding. NRS 179.295(3).
11. Records.
Statute under which a court may permit a prosecuting attorney or defendant in a
criminal action to inspect a sealed record for the purpose of obtaining information
relating to codefendants or other persons who were involved in the case that is the
subject matter of the sealed record does not permit any prosecuting attorney to apply for
an inspection of sealed records to obtain information that will be used against a
defendant in a subsequent criminal proceeding. NRS 179.295(3).
OPINION
Per Curiam:
This original petition for a writ of mandamus or prohibition challenges a district court
order granting the State's motion to unseal Sam Walker's criminal records for the purpose of
inspection pursuant to NRS 179.295. Because Walker's petition involves an important issue
of law that we should clarify, the interpretation of NRS 179.295, and because Walker has
demonstrated that the district court manifestly abused its discretion in granting the State's
motion, we grant Walker's petition for writ relief.
1

On October 2, 1998, the district court ordered certain criminal records pertaining to
Walker sealed in accordance with Nevada law. The order encompassed drug-related charges
stemming from an arrest in 1989. It is unclear whether the original charges were dismissed or
whether Walker petitioned for his records to be sealed, but the district court proceeded under
the theory that Walker's records were sealed due to the dismissal of the charges in 1989.
On June 12, 2003, members of the North Las Vegas Police Department SWAT team
served a search warrant. The SWAT team found Walker at the residence where the search
was conducted and arrested him for drug trafficking, possession of a short-barrel shotgun, and
being a convicted person in possession of a firearm. The State filed no charges related to this
arrest; instead, the federal government is prosecuting Walker.
During this search, the State discovered documents indicating that Walker was involved in
a prior criminal case, later sealed, which is the subject of the present litigation. The State filed
a motion to unseal Walker's criminal records for the purpose of inspection pursuant to NRS
179.295, which states in pertinent part:
2. If a person has been arrested, the charges have been dismissed and the records of
the arrest have been sealed, the court may order the inspection of the records by a
prosecuting attorney upon a showing that as a result of newly discovered evidence, the
person has been arrested for the same or similar offense and that there is sufficient
evidence reasonably to conclude that he will stand trial for the offense.
____________________

1
See Falcke v. Douglas County, 116 Nev. 583, 586, 3 P.3d 661, 662-63 (2000) (observing that this court may
grant a writ petition where an important issue of law needs clarification and public policy is served by this
court's invocation of its original jurisdiction' (quoting Business Computer Rentals v. State Treas., 114 Nev. 63,
67, 953 P.2d 13, 15 (1998))).
ered evidence, the person has been arrested for the same or similar offense and that
there is sufficient evidence reasonably to conclude that he will stand trial for the
offense.
3. The court may, upon the application of a prosecuting attorney or an attorney
representing a defendant in a criminal action, order an inspection of such records for the
purpose of obtaining information relating to persons who were involved in the incident
recorded.
The State argued that unsealing Walker's criminal records was permissible under NRS
179.295(2) based on its belief that the records from 1989 related to controlled-substance
trafficking, and Walker is now being prosecuted by the federal government for similar
charges stemming from his 2003 arrest. In the alternative, the State argued that subsection 3
provides a separate, independent ground for unsealing Walker's records.
Walker opposed the State's motion contending that his criminal records from 1989 could
not be unsealed because the State wanted to turn the information over to the U.S. Attorney's
Office to use against him for impeachment purposes at the ensuing trial related to his 2003
arrest, a wholly separate incident unrelated to the 1989 charges. Walker argued that unsealing
his criminal records for such a purpose is not the proper function of NRS 179.295.
After a hearing on the motion, the district court agreed with the State's position,
concluding that Walker's criminal records could be unsealed because he was currently being
prosecuted for drug trafficking, which is a similar offense to Walker's 1989 criminal charge,
and further concluding that Walker would sustain no prejudice because the purpose of the
request did not involve reopening of the 1989 charges. The district court granted the State's
motion and ordered Walker's records unsealed. Walker filed this petition for a writ of
prohibition or mandamus, and this court granted a stay of the district court's order pending
resolution of the matter.
DISCUSSION
As this court has noted, where the records of a criminal conviction are sealed by a district
court pursuant to specific statutory authority, that conviction may not be disclosed in a public
proceeding such as a criminal trial absent specific statutory authority providing for such
disclosure.
2
Thus, the issue in this case is not, as the district court resolved, whether Walker
would suffer prejudice by the release of his records, but rather, whether the district court has
the statutory authority to unseal Walker's records in this case.
____________________

2
Yllas v. State, 112 Nev. 863, 866, 920 P.2d 1003, 1005 (1996).
court has the statutory authority to unseal Walker's records in this case.
Standard of review
[Headnotes 1-4]
Writ relief is an extraordinary remedy within the sound discretion of this court.
3
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 court's jurisdiction.
4
A writ of
mandamus is available to compel the performance of an act that the law requires as a duty
resulting from an office, trust or station or to control an arbitrary or capricious exercise of
discretion.
5
Neither writ will issue if there is a plain, speedy, and adequate remedy at law.
6
However, where circumstances reveal urgency or strong necessity,
7
or where an
important issue of law needs clarification and public policy is served by this court's
invocation of its original jurisdiction,'
8
this court may consider a petition for extraordinary
relief.
9

[Headnotes 5-7]
Because statutory construction is a question of law, this court reviews the district court's
interpretation of a statute de novo, without deference to the district court's conclusions.
10
When interpreting a statute, we first look to the statute's plain language.
11
Whenever
possible, [s]tatutes should be given their plain meaning and must be construed as a whole
and not be read in a way that would render words or phrases superfluous or make a provision
nugatory.'
12

____________________

3
State v. Dist. Ct., 116 Nev. 953, 957, 11 P.3d 1209, 1211 (2000).

4
NRS 34.320.

5
NRS 34.160; see Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603, 637 P.2d 534, 536 (1981).

6
NRS 34.170; NRS 34.330.

7
Falcke, 116 Nev. at 586, 3 P.3d at 662.

8
Id. at 586, 3 P.3d at 662-63 (quoting Business Computer Rentals, 114 Nev. at 67, 953 P.2d at 15).

9
EICON v. State Bd. of Exam'rs, 117 Nev. 249, 253, 21 P.3d 628, 630 (2001).

10
Salas v. Allstate Rent-A-Car, Inc., 116 Nev. 1165, 1168, 14 P.3d 511, 513-14 (2000).

11
Id.

12
Mangarella v. State, 117 Nev. 130, 133, 17 P.3d 989, 991 (2001) (quoting Charlie Brown Constr. Co. v.
Boulder City, 106 Nev. 497, 502, 797 P.2d 946, 949 (1990), overruled on other grounds by Calloway v. City of
Reno, 116 Nev. 250, 993 P.2d 1259 (2000)).
Interpretation of NRS 179.295(2)
[Headnote 8]
Upon review of the plain language of NRS 179.295(2), we conclude that the district court
misinterpreted the statute. The district court interpreted NRS 179.295(2) to allow a
prosecuting attorney to unseal criminal records any time a defendant is charged with a crime
that is similar to the crime involved in the sealed records. The district court determined that
this was the only way to give effect to the phrase same or similar offense. We disagree.
[Headnote 9]
NRS 179.295(2) allows a prosecuting attorney to reopen sealed criminal records related to
dismissed charges upon a showing that, based on newly discovered evidence, a person has
been arrested for the same or similar offense and that he will likely stand trial for the offense.
NRS 179.295(2) allows the State to review the criminal records to see whether there is now
sufficient evidence to bring the person to trial on the dismissed charges. The use of the phrase
similar offense allows the State to review the records even if the newly discovered evidence
shows that perhaps the person committed a slightly different crime than the one for which he
was previously charged. It does not, however, permit the State to use the unsealed records
against a defendant in an unconnected trial. Moreover, to allow the prosecution to use the
statute as the district court suggests, i.e., any time that a defendant is charged with a similar
offense, would essentially be reading the language upon a showing that as a result of newly
discovered evidence out of the statute. The words selected by the Legislature are to be given
their plain meaning, and this court is reticent to construe the words in such a way as to render
them mere surplusage.
13

Walker was charged with a drug-related crime in 1989, and the criminal records were
sealed in 1998. Now, in 2003, the State wants to reopen those criminal records on the basis
that Walker is being prosecuted in a federal case for, among other things, a different
drug-related charge. Walker was not arrested as a result of newly discovered evidence related
to the 1989 charge; instead, he was arrested on entirely new allegations based on conduct
occurring in 2003. The State presented no evidence that Walker's 2003 arrest was in any way
connected to his conduct in 1989. Therefore, NRS 179.295(2) does not provide the district
court with the authority to unseal Walker's 1989 records.
____________________

13
Cf. Charlie Brown Constr. Co., 106 Nev. at 502-03, 797 P.2d at 949 (It is elementary that statutes, or in
this case municipal enactments, must be construed as a whole and not be read in a way that would render words
or phrases superfluous . . . . And, there is a presumption that every word, phrase and provision in the enactment
has meaning.).
Interpretation of NRS 179.295(3)
[Headnote 10]
The State argues, citing Yllas v. State, that NRS 179.295(3) provides a separate,
independent exception that allows a district court to unseal Walker's records in this case.
14
However, Yllas is not on point. In that case, the issue was whether the prosecution may, as the
State suggested it intends to do here, use the information from a sealed record to impeach a
criminal defendant at a subsequent trial. In holding that the prosecution in a criminal case
may not use sealed records for such a purpose, we noted in Yllas that no request to unseal the
record was made in that case.
15
Even if such a request had been made, NRS 179.295(3) does
not permit the State to impeach a witness unless it is prepared to prove the conviction by
producing a copy of the judgment of conviction, which it cannot do unless the record is
unsealed.
16

[Headnote 11]
A plain reading of NRS 179.295(3) indicates that the court may permit a prosecuting
attorney or defendant in a criminal action to inspect a sealed record for the purpose of
obtaining information relating to codefendants or other persons who were involved in the
case that is the subject matter of the sealed record. That section does not, as the State
suggests, permit any prosecuting attorney to apply for an inspection of [sealed] records to
obtain information that will be used against a defendant in a subsequent criminal
proceeding. Moreover, a brief review of the legislative history supports our reading of the
statute.
17

Walker's criminal records were sealed in 1998, and the State now wishes to unseal them so
that the information contained in the sealed record can be used either to impeach Walker
should he testify or to enhance any sentence imposed pursuant to the federal sentencing
guidelines. In either case, it is the State's intent to use the information against Walker in a
subsequent and unrelated adjudicative hearing. Somewhat surprisingly, the State did not even
suggest that its intent is to garner information on any person involved in Walker's original
case, a purpose that may permit the inspection of a sealed criminal record under certain
circumstances.
____________________

14
112 Nev. at 866-67, 920 P.2d at 1005.

15
Id. at 867, 920 P.2d at 1005.

16
See id. (A sealed judgment of conviction cannot support impeachment of a witness, because the witness is
entitled to deny that conviction, and the proceedings leading to it are deemed never to have occurred.'
(quoting NRS 179.285 (amended 2001))).

17
See Hearing on A.B. 491 Before the Senate Judiciary Comm., 56th Leg. (Nev., April 6, 1971) (comment of
Grant Davis reminding the committee that S.B. 32 was amended to provide that sealed records could be opened
if they pertain to codefendants and noting that A.B. 491 would be amended to incorporate the same language
used).
suggest that its intent is to garner information on any person involved in Walker's original
case, a purpose that may permit the inspection of a sealed criminal record under certain
circumstances. We decline to permit the use of NRS 179.295(3) as the State suggests.
CONCLUSION
Because NRS 179.295 does not permit Walker's records to be unsealed under the
circumstances, we conclude that the district court manifestly abused its discretion when it
ordered Walker's criminal records unsealed. Accordingly, we grant the petition and direct the
clerk of this court to issue a writ of mandamus instructing the district court to vacate its order
granting the State's motion to unseal Walker's criminal records.
____________
120 Nev. 822, 822 (2004) Banks v. Sunrise Hospital
OTHO LEE BANKS, as Guardian ad Litem for JAMES LEE BANKS, JR.; and JAMES LEE
BANKS,
JR., Individually, Appellants/Cross-Respondents, v. SUNRISE HOSPITAL,
Respondent/Cross-Appellant.
No. 38801
December 17, 2004 102 P.3d 52
Appeal and cross-appeal from a judgment on a jury verdict in a medical malpractice suit
and appeal from an order denying a motion for a new trial. Eighth Judicial District Court,
Clark County; Michael A. Cherry, Judge.
Patient and his guardian ad litem sued hospital, surgeon, and anesthesiologist for medical
malpractice, alleging that patient suffered cardiac arrest while undergoing rotator cuff
surgery, and in an amended complaint alleged hospital's negligent maintenance of anesthesia
equipment. The surgeon and anesthesiologist settled shortly before trial. At retrial after first
jury trial resulted in mistrial because of hung jury, the district court entered judgment on
jury's verdict finding hospital liable, but reduced the jury's award of $6,903,044.61 with
prejudgment interest by the $1.9 million paid by the surgeon and anesthesiologist in their
settlement. Cross-appeals were taken. The supreme court, Agosti, J., held that: (1) hospital
had duty to preserve anesthesia equipment used in patient's surgery; (2) res ipsa loquitur
instruction was warranted; (3) opinion testimony regarding possibility that anesthesia
equipment malfunctioned during patient's surgery was based on reasonable degree of medical
probability; (4) forensic economist's testimony concerning value of hedonic loss, i.e., loss of
enjoyment of life, was warranted; and {5) hospital was entitled to offset under tortfeasor
contribution statute.
life, was warranted; and (5) hospital was entitled to offset under tortfeasor contribution
statute.
Affirmed.
Maupin, J., with whom Becker, J., agreed, dissented in part.
Albert D. Massi, Ltd., and Patricia J. Bowling, Las Vegas; Myers & Gomel, P.C., and
Jeffrey R. Gomel, Las Vegas, for Appellants/Cross-Respondents.
Dennett & Winspear, LLP, and Ryan L. Dennett, Las Vegas; Hall, Prangle & Schoonveld,
LLC, and Kenneth M. Webster, Las Vegas; Cooper & Scully, P.C., and R. Brent Cooper and
Diana L. Faust, Dallas, Texas, for Respondent/Cross-Appellant.
An appeal does not lie from a district court order that denies a post-judgment motion
for judgment notwithstanding the verdict (JNOV).
Hospital had duty to preserve anesthesia equipment used in patient's surgery;
patient's cardiac arrest while under anesthesia for rotator cuff surgery at hospital, and
patient's subsequent persistent vegetative state, put hospital on notice that an error may
have occurred in the operating room, whether caused by the physicians or the
equipment, so that litigation was foreseeable, although hospital had arranged, before the
surgery, to sell the anesthesia equipment.
When a potential for litigation exists, the litigant is under a duty to preserve
evidence which it knows or reasonably should know is relevant to the action.
4. Trial.
Instructing jurors that they could infer that if the anesthesia equipment used in
patient's surgery had been preserved and tested that it would have been found to be not
operating properly was warranted as sanction for hospital's spoliation of evidence, in
action alleging hospital's medical malpractice through negligent maintenance of the
anesthesia equipment, relating to hospital's sale of the equipment after the surgery,
without recording the equipment's serial numbers, though there was no evidence that
hospital willfully disposed of the equipment in order to frustrate discovery in
subsequent litigation proceedings, where hospital's failure to document which machines
were used in patient's surgery prevented patient's guardian ad litem from investigating
the machinery's functionality as part of investigation of patient's catastrophic injury.
5. Trial.
A party is entitled to jury instructions on every theory of her case that is supported
by the evidence.
The appellate court will review a district court's decision to give a particular
instruction for an abuse of discretion or judicial error.
7. Health.
Res ipsa loquitur instruction, based on statutory rebuttable presumption of medical
malpractice which arises when patient suffers injury during course of treatment to
part of body not directly involved in treatment or proximate thereto, was warranted,
where patient underwent surgery for treatment to his shoulder, but he suffered
injury to his brain, causing his vegetative state.
ing course of treatment to part of body not directly involved in treatment or proximate
thereto, was warranted, where patient underwent surgery for treatment to his shoulder,
but he suffered injury to his brain, causing his vegetative state. NRS 41A.100(1)(d).
8. Evidence.
The district court may generally admit expert testimony on matters outside the
average person's common understanding. NRS 50.275.
9. Evidence.
Expert testimony must be relevant, and its probative value must not be substantially
outweighed by the danger of unfair prejudice. NRS 48.035, 50.275.
Because the admission of expert testimony is in the sound discretion of the district
court, the appellate court will not reverse the district court's decision absent an abuse of
discretion. NRS 50.275.
11. Evidence.
Expert testimony, from patient's experts, on hospital's duty to preserve the anesthesia
equipment used in patient's surgery was warranted, in action alleging hospital's medical
malpractice through negligent maintenance of the equipment. As sanction for hospital's
spoliation of the equipment, trial court instructed jurors they could draw adverse
inference that if the equipment had been preserved and tested it would have been found
to be not operating properly, and the expert testimony assisted jury in relation to its
prerogative to draw a negative inference. NRS 41A.100(1).
12. Evidence.
Opinion testimony of patient's expert, regarding possibility that anesthesia
equipment malfunctioned during patient's surgery, satisfied requirement, for admission
of medical expert testimony in medical malpractice actions, of being based on
reasonable degree of medical probability. Expert testified that everyone he had spoken
to who had used, for any length of time, the anesthesia machine used in patient's
surgery had experienced failures in the machine's interlock system, and expert was
unable to examine the specific machine used in patient's surgery because hospital had
sold it.
13. Evidence.
Generally, a medical expert is expected to testify only to matters that conform to the
reasonable degree of medical probability standard.
14. Evidence.
Forensic economist's testimony concerning value of hedonic loss, i.e., loss of
enjoyment of life, was warranted, in action alleging hospital's medical malpractice
through negligent maintenance of anesthesia equipment used in patient's surgery; such
testimony assisted jury in determining the monetary value of the pleasure of living that
patient would be denied as a result of his permanent vegetative state.
15. Damages.
Hedonic damages are monetary remedies awarded to compensate injured persons
for their noneconomic loss of life's pleasures or the loss of enjoyment of life.
16. Damages.
While an award for pain and suffering compensates the injured person for the
physical discomfort and the emotional response to the sensation of pain caused by the
injury itself, hedonic damages for loss of enjoyment of life compensate for the
limitations, resulting from the defendant's negligence, on the injured person's ability to
participate in and derive pleasure from the normal activities of daily life, or for the
individual's inability to pursue his talents, recreational interests, hobbies, or
avocations.
derive pleasure from the normal activities of daily life, or for the individual's inability
to pursue his talents, recreational interests, hobbies, or avocations.
17. Damages.
Damages for hedonic loss, i.e., damages for loss of enjoyment of life, are treated as a
factor in determining pain and suffering awards, rather than being treated as a separate
and distinct compensatory award.
18. Trial.
On a motion for directed verdict, the district court may not judge the credibility of
the witnesses or the weight of the evidence. NRCP 50(a).
19. Trial.
If there is conflicting evidence on a material issue, or if reasonable persons could
draw different inferences from the facts, the question is one of fact for the jury and not
one of law for the court, on a motion for directed verdict. NRCP 50(a).
20. Trial.
In ruling on a directed verdict motion, the district court must view the evidence and
all inferences therefrom in a light most favorable to the nonmoving party. NRCP 50(a).
21. Health.
To recover for medical malpractice based on hospital's negligent maintenance of
anesthesia equipment, patient's guardian ad litem had to demonstrate that hospital's
conduct departed from the accepted standard of medical practice, that hospital's conduct
was both the actual and proximate cause of patient's injury, and that patient suffered
damages.
22. Health.
Whether anesthesia equipment malfunctioned during patient's rotator cuff surgery at
hospital, causing patient's cardiac arrest and subsequent permanent vegetative state, was
issue for jury, in action alleging hospital's medical malpractice through negligent
maintenance of anesthesia equipment.
The appellate court reviews a district court's denial of a new trial motion for an
abuse of discretion. NRCP 59.
24. Health.
Instruction on concurrent proximate causes was warranted, in action alleging
hospital's medical malpractice through negligent maintenance of anesthesia equipment
used during patient's surgery, where patient's guardian ad litem and hospital presented
conflicting evidence regarding whether patient's cardiac arrest during surgery was
caused by anesthesiologist's negligence or instead by hospital's negligent maintenance
of anesthesia equipment.
25. Evidence; Health.
Substantial evidence established that it was probable that patient, who was in
permanent vegetative state after surgery, probably was conscious of pain, as was
required for award for pain and suffering damages, in action alleging hospital's medical
malpractice through negligent maintenance of anesthesia equipment used in the
surgery; nurse testified that during five-year period, patient occasionally smiled during
a comedy show on television or when his family visited, and that patient had tears at
times based on news and various exchanges with family members.
26. Damages.
Equitable offset under tortfeasor contribution statute, for patient's pretrial
settlements with surgeon and anesthesiologist, was warranted with respect to
nonsettling hospital's liability for damages, in action for hospital's medical
malpractice through failure to maintain anesthesia equipment used in patient's
surgery; hospital did not have unclean hands, because hospital's conduct was
negligent, rather than intentional.
respect to nonsettling hospital's liability for damages, in action for hospital's medical
malpractice through failure to maintain anesthesia equipment used in patient's surgery;
hospital did not have unclean hands, because hospital's conduct was negligent, rather
than intentional. NRS 17.245.
27. Negligence.
Tortfeasor contribution statute, allowing a plaintiff to settle with one tortfeasor
without losing the right to proceed against additional tortfeasors, but precluding the
parties from informing the jury as to either the existence of a settlement or the sum
paid, does not preclude a nonsettling tort-feasor from pointing the blame at a settling
tortfeasor or from arguing that the nonsettling tortfeasor was not responsible for the
plaintiff's injury. NRS 17.245.
28. Negligence.
Comparative negligence statute, stating that if a codefendant settles with the plaintiff
in a case in which the nonsettling defendant asserts a comparative negligence defense,
the jury may not consider the settling codefendant's comparative negligence or the
settlement amount, does not preclude a nonsettling defendant from attempting to
establish that either no negligence occurred or that the entire responsibility for the
plaintiff's injuries rests with nonparties, including those who have separately settled
their liabilities with the plaintiff. NRS 41.141(3).
29. Negligence.
A nonsettling defendant's mere assertion of comparative negligence as an affirmative
defense, without formal offer of proof regarding the affirmative defense, does not
implicate the comparative negligence statute stating that if a codefendant settles with
the plaintiff in a case in which the nonsettling defendant asserts a comparative
negligence defense, the jury may not consider the settling codefendant's comparative
negligence or the settlement amount. NRS 41.141(3).
30. Damages.
Hospital was entitled to offset under tortfeasor contribution statute, with respect to
its liability to patient for damages for hospital's medical malpractice through negligent
maintenance of anesthesia equipment used during surgery, in amount of arbitrator's
$100,000 award to patient in arbitration conducted pursuant to patient's pretrial
settlement with surgeon, though arbitrator found surgeon's conduct did not fall below
standard of care and awarded patient the minimum award provided for in the agreement
if arbitrator found for surgeon. NRS 17.245(1)(a).
Statutory interpretation is a question of law and is reviewed de novo.
32. Statutes.
If more than one reasonable meaning can be discerned from the statute's language, it
is ambiguous, and the plain meaning rule does not apply; instead, the court looks to the
statute's terms and context, along with reason and public policy to ascertain the
33. Statutes.
When interpreting a portion of a statute, the court reads the statute as a whole and
gives meaning to all of its parts where possible.
34. Statutes.
Statutory interpretation should avoid absurd results.
35. Death.
The limitations period for a wrongful death claim against a health care provider
begins to run when the patient dies, under limitations statute providing that an action
for death against a provider of health care may not be commenced more than four years
after the date of injury. The relevant injury is the legal injury, and death is an
essential element of a wrongful death claim.
injury is the legal injury, and death is an essential element of a wrongful death claim.
NRS 41A.097(1).
OPINION
[Headnote 1]
On August 25, 1995, James Banks, Jr. (James), while undergoing rotator cuff surgery at
Sunrise Hospital, suffered cardiac arrest. James has since that time persisted in a permanent
vegetative state. James and his guardian ad litem, Otho Lee Banks (collectively, Banks) sued
Sunrise Hospital, the surgeon and the anesthesiologist. The surgeon and anesthesiologist
settled with Banks shortly before trial. A jury found Sunrise liable for James's injury and
awarded substantial damages. Subsequently, the district court reduced the jury award by the
sums paid by the surgeon and the anesthesiologist in settlement of Banks's claims against
them and entered judgment in that amount. It later denied Sunrise's motion for a new trial.
1
Sunrise appeals, alleging that various reversible errors occurred at trial, and Banks
cross-appeals, challenging the district court's reduction of the jury award.
We conclude that Sunrise has failed to demonstrate error that would entitle it to a reversal
or a new trial. We also conclude that the district court properly reduced the jury award by the
sums paid in settlement by the surgeon and the anesthesiologist. Accordingly, we affirm the
district court's judgment and order.
FACTUAL BACKGROUND
On August 25, 1995, fifty-one-year-old James Banks, Jr., was admitted to Sunrise Hospital
for rotator cuff surgery. Prior to the surgery, the orthopedic surgeon, Dr. James Manning,
discussed with James the risks of the surgery. Additionally, Dr. Robert L. Kinsman, the
anesthesiologist, discussed the risks associated with the use of anesthesia. James signed an
informed consent form that detailed the risks associated with surgery and with anesthesia.
Doctors performed surgery on James in operating room number 8, utilizing the hospital's
equipment, which included a Narkomed II anesthesia machine.
____________________

1
Even though Sunrise states that it also appeals from the district court's order denying its motion for judgment
notwithstanding the verdict, an appeal does not lie from a district court order that denies a post-judgment motion
for judgment notwithstanding the verdict. See Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 1475 n.1, 970
P.2d 98, 103 n.1 (1998), modified on other grounds by GES, Inc. v. Corbitt, 117 Nev. 265, 271, 21 P.3d 11,
14-15 (2001).
II anesthesia machine. The Narkomed II provides oxygen and anesthetic agents to patients.
Only anesthesiologists are qualified to operate the Narkomed II. Dr. Kinsman, an independent
contractor hired by Sunrise to operate the equipment during James's surgery, utilized the
equipment to anesthetize James and to monitor his physiological condition.
Immediately before James's surgery, Dr. Manning performed surgery on a different patient
in operating room number 8, for which Dr. Kinsman was also the anesthesiologist and had
used the same equipment. During the course of the first surgery, the equipment presented no
problems. Dr. Kinsman checked the anesthesia and monitoring equipment before using it in
James's surgery.
During the course of James's surgery, Dr. Kinsman monitored James's condition
continuously. Near the end of surgery, Dr. Kinsman noticed a decrease in James's blood
pressure. Concerned that the blood pressure would continue to decrease, Dr. Kinsman turned
off the nitrous oxide, decreased the anesthesia and increased the oxygen. About a minute
later, James's blood pressure dropped again. Dr. Kinsman administered Robinal to increase
the heart rate, which would then increase blood pressure, but to no avail. As James's blood
pressure was still dropping, Dr. Kinsman turned off all of the anesthetic agents and gave
James one hundred-percent oxygen. He also administered ephedrine to increase the pulse rate
and blood pressure. Dr. Kinsman checked the endotracheal tube, the circuit ventilation of the
Narkomed II and the placement of the intravenous tube (IV) in an attempt to find out what
was wrong. After a second administration of ephedrine, James went into cardiac arrest. Dr.
David Navratil, a cardiologist, was summoned and assisted Doctors Manning and Kinsman in
an effort to resuscitate and stabilize James. Physicians attempted a precordial thump to shock
James's heart back to a normal rhythm, attempted cardiopulmonary resuscitation, gave James
atropine to get his heart started and administered electrical shock twice before James was
finally resuscitated. Concerned that the open shoulder wound would become infected, and to
alleviate the need for future surgeries, physicians finished the surgery. Dr. Kinsman was
unsure of the cause of James's cardiac arrest but stated that James was stable for completion
of the shoulder surgery. The physicians continued to use the same equipment to complete the
surgery. Following surgery, James failed to regain consciousness and has since persisted in a
permanent vegetative state.
Immediately after the incident, Sunrise completed an occurrence report. The report did not
indicate any problems with the anesthesia equipment, and therefore, the equipment continued
to be used in Sunrise's operating rooms for several months following James's injury until
November 1995, when Sunrise sold the Narkomed II anesthesia machine involved in
James's surgery, along with several other Narkomed II machines, to the same buyer.
Narkomed II anesthesia machine involved in James's surgery, along with several other
Narkomed II machines, to the same buyer. The sale was pursuant to a contract executed by
Sunrise several months before James's surgery. As part of the construction of new operating
rooms, Sunrise's parent corporation had contracted to purchase new anesthesia equipment to
standardize the equipment and as part of the normal replacement of equipment. Prior to the
transfer, Sunrise received no complaints concerning any of the equipment.
On April 24, 1996, James and Otho Lee Banks, as guardian ad litem for James, brought
negligence claims against Sunrise, Dr. Kinsman and Dr. Manning in a complaint to the
Medical Legal Screening Panel. Banks did not allege negligent maintenance or any cause of
action concerning equipment malfunction. Banks relied upon an affidavit of anesthesiologist
Dr. Casey Blitt, who stated that Dr. Kinsman's care fell below the standard of care in that he
failed to recognize, respond to and reverse decreasing blood pressure and pulse rate in the
absence of blood loss, and that he failed to use appropriate resuscitation protocol including,
but not limited to[,] failure to use the appropriate drugs of choice in this setting. Dr. Blitt
further opined that James sustained permanent, irreversible hypoxic brain damage. The
Panel determined that there was no reasonable probability of medical malpractice on the part
of Dr. Manning or Sunrise, but was unable to reach a decision as to Dr. Kinsman. Shortly
thereafter, Banks sued Dr. Manning, Dr. Kinsman and Sunrise. The complaint did not allege
negligent maintenance against Sunrise, although it did contain a Doe/Roe allegation of
negligent maintenance of the equipment.
2

On March 2, 1999, nearly four years after James's injury and more than two years after
filing the complaint, Banks was granted leave, over Sunrise's objection, to file a first amended
complaint in which Banks asserted an additional claim of negligence pertaining to the
anesthesia equipment. The district court directed Banks to file a second amended complaint
alleging faulty or negligent maintenance of equipment and to also include the previously
alleged res ipsa loquitur claim. The district court dismissed all other claims. On the eve of
trial, Banks settled with both Dr. Manning and Dr. Kinsman.
Before trial, Banks sought sanctions against Sunrise based upon Sunrise's failure to
preserve the anesthesia equipment that had been used during James's surgery. The district
court determined that Sunrise's failure to identify the specific machines used during James's
surgery before selling the anesthesia equipment constituted spoliation of evidence and
so, as a sanction the district court instructed the jury that:
____________________

2
A work-related injury necessitated James's surgery, which was being covered by his workers' compensation
carrier. Several companies responsible for payment of the workers' compensation claim filed a complaint in
intervention. Before the second trial commenced, the plaintiffs in intervention dismissed their claims against
Sunrise.
James's surgery before selling the anesthesia equipment constituted spoliation of evidence
and so, as a sanction the district court instructed the jury that:
Sunrise Hospital had a duty to identify all of the anesthesia equipment and monitors
which were used in the Banks surgery. Defendant Sunrise failed in this duty and
because of its failure, no independent review or inspection of the equipment could ever
be done. You may infer that had the equipment been preserved and tested that it would
have been found to be not operating properly.
The first jury trial resulted in a mistrial because of a hung jury. The case was reassigned to
another judge, who, over Sunrise's objection, refused to reconsider the above-described
sanction excluding evidence. At the second trial, the jury rendered a verdict in favor of
Banks, awarding $5,412,030.88 in damages, which totaled $6,903,044.61 after adding the
prejudgment interest on the past damages. The district court subsequently reduced the jury
award by the combined $1.9 million paid in settlement by Doctors Manning and Kinsman
3
and entered a second amended judgment in the amount of $4,825,450.17. The district court
then denied Sunrise's motion for judgment notwithstanding the verdict or a new trial. Sunrise
thereafter timely appealed from the second amended judgment and the order denying its new
trial motion, assigning numerous errors in the district court proceedings. Banks also appealed,
contesting the district court's reduction of the jury award by the sums paid in settlement of his
claims against Doctors Manning and Kinsman.
4

DISCUSSION
Sanctions and adverse inference instruction
[Headnote 2]
Sunrise contends that the district court abused its discretion when it imposed sanctions
against Sunrise for spoliation of evidence. We have held that discovery sanctions are within
the power of the district court and this court will not reverse the particular sanctions imposed
absent a showing of abuse of discretion.
5

[Headnote 3]
When a potential for litigation exists, the litigant is under a duty to preserve evidence
which it knows or reasonably should know is relevant to the action.
____________________

3
This included $1.8 million from the settlement with Dr. Kinsman and $100,000 from the arbitration
agreement with Dr. Manning.

4
Pursuant to NRAP 28(h), Banks is deemed the appellant.

5
GNLV Corp. v. Service Control Corp., 111 Nev. 866, 869, 900 P.2d 323, 325 (1995).
know is relevant to the action.'
6
Here, James's cardiac arrest while under anesthesia and his
subsequent persistent vegetative state put Sunrise on notice that an error may have occurred
in the operating room, whether caused by the physicians or the equipment and, therefore, that
litigation was foreseeable. Consequently, Sunrise had a duty to preserve information relating
to the attending physicians and the equipment.
Here, although Sunrise had a prearranged contract to sell the anesthesia equipment, after
James's injury, it was on notice that certain equipment could be the subject of litigation. In
fact, if the equipment had been functioning properly, it is reasonable under any circumstance
to infer that Sunrise would have wanted to preserve it in order to protect itself from a false
claim of negligence. Moreover, the district court heard expert testimony that the medical
industry was aware of a problem with Narkomed II anesthesia machines relating to
improperly maintained or checked interlock devices. In addition, testimony was presented
that Sunrise had a duty, when faced with a cardiac arrest for no apparent reason, to identify
and sequester the equipment until Sunrise investigated and determined whether the equipment
was a factor in the cardiac arrest and oxygen deprivation.
[Headnote 4]
Given this evidence, the district court determined that Sunrise had, at the very least, a duty
to record the machine's serial numbers. Sunrise's failure to document which machines were
used in James's surgery prevented Banks from investigating the machinery's functionality as
part of the investigation of James's injury. Accordingly, we perceive no abuse of discretion on
the part of the district court in imposing sanctions, including the court's decision to instruct
the jury that it could draw an adverse inference concerning the functionality of the equipment
based upon Sunrise's failure to preserve it. We note, in passing, that the district court did not
instruct the jury that it shall draw an adverse inference from Sunrise's disposal of the
equipment, only that it may draw an adverse inference. Under the facts of this case, the
district court did not abuse its discretion in imposing sanctions even though there was no
evidence that Sunrise willfully disposed of the machines in order to frustrate discovery in
subsequent litigation proceedings. We emphasize that our holding is limited to the facts of
this case, considering the catastrophic nature of James's injury, the unique position of Sunrise
and its knowledge concerning the incident, and should therefore be narrowly construed.
____________________

6
Id. (quoting Fire Ins. Exchange v. Zenith Radio Corp., 103 Nev. 648, 651, 747 P.2d 911, 914 (1987)).
Res ipsa loquitur
[Headnotes 5, 6]
Sunrise contends that the district court abused its discretion when it submitted a res ipsa
loquitur instruction to the jury. [A] party is entitled to jury instructions on every theory of
her case that is supported by the evidence.
7
We will review a district court's decision to give
a particular instruction for an abuse of discretion or judicial error.
8

[Headnote 7]
NRS 41A.100 has replaced the doctrine of res ipsa loquitur in medical malpractice cases.
9
A rebuttable presumption of medical malpractice applies when the plaintiff has provided
some evidence of one of the factual predicates enumerated in NRS 41A.100(1).
10
NRS
41A.100(1)(d) provides that a rebuttable presumption of medical malpractice arises when the
patient suffers an injury during the course of treatment to a part of the body not directly
involved in the treatment or proximate thereto.
In Johnson v. Egtedar,
11
we held that the district court erred in refusing the appellant's
proffered jury instruction on res ipsa loquitur. During surgery to appellant's lower back, the
surgeon operated at the wrong level of appellant's spine, puncturing her spinal dura, psoas
major muscle, colon and left ureter, causing severe personal injuries. We concluded that the
circumstances justified an instruction on NRS 41A.100(1)(d) because the appellant had
sought treatment to her lower back but suffered injury to her colon and ureter, parts of the
body not directly or proximately related to lower back surgery.
12

Similarly, in Born v. Eisenman,
13
we concluded that the district court erred when it
precluded the appellant from presenting a res ipsa loquitur theory to the jury. Several days
after Born underwent surgery to have her uterus and ovary removed, she complained of
severe pelvic pain. Doctors determined that Born's left ureter had been ligated during surgery.
About a week later, Born underwent a second surgery to repair the ligated ureter. During that
procedure, the surgeon also removed a partially diseased right ovary. Over two years later,
Born sought treatment for pain in her abdomen, which she had experienced since the second
surgery.
____________________

7
Johnson v. Egtedar, 112 Nev. 428, 432, 915 P.2d 271, 273 (1996).

8
Ringle v. Bruton, 120 Nev. 82, 90, 86 P.3d 1032, 1037 (2004).

9
Johnson, 112 Nev. at 433, 915 P.2d at 273-74.

10
Id. at 433-34, 915 P.2d at 274.

11
Id. at 434, 915 P.2d at 275.

12
Id.

13
114 Nev. 854, 859, 962 P.2d 1227, 1231 (1998).
Doctors discovered that a portion of her small bowel had been cut during the closure
procedure from the second surgery.
We concluded in Born that the district court should have instructed the jury based upon
NRS 41A.100(1)(e) because a surgical procedure was performed on the wrong organ or the
wrong part of a patient's body.
14
Although Born was decided based upon NRS
41A.100(1)(e) rather than NRS 41A.100(1)(d), the case is nonetheless instructive and its
reasoning applies here. Born suffered an injury to her ureter during the course of treatment to
her uterus and ovary and later suffered an injury to her bowel during the course of treatment
to her ureter and ovary. These facts demonstrate that submission of an instruction under either
(d) or (e) would have been appropriate.
The instant case is similar to Johnson and Born. James underwent surgery for treatment to
his shoulder, but suffered an injury to his brain, causing his vegetative state. The brain is not
directly or proximately related to the rotator cuff surgery. Therefore, the district court did not
abuse its discretion when it submitted a res ipsa loquitur instruction to the jury.
Expert testimony
[Headnotes 8-10]
NRS 50.275 provides, 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. Accordingly, the district court may generally
admit expert testimony on matters outside the average person's common understanding.
15
Such testimony must also be relevant and its probative value must not be substantially
outweighed by the danger of unfair prejudice.
16
Because the admission of expert testimony is
in the sound discretion of the district court, we will not reverse the district court's decision
absent an abuse of discretion.
17

Duty to sequester
[Headnote 11]
Sunrise contends that the district court abused its discretion when it permitted Banks to
introduce expert testimony on Sunrise's duty to preserve the anesthesia equipment. During the
course of trial, Banks's expert witnesses, Robert Morris and Dr.
____________________

14
Id. at 859, 962 P.2d at 1230-31.

15
See Mercado v. Ahmed, 974 F.2d 863, 870 (7th Cir. 1992).

16
K-Mart Corporation v. Washington, 109 Nev. 1180, 1186, 866 P.2d 274, 278 (1993); NRS 48.035.

17
Krause Inc. v. Little, 117 Nev. 929, 933-34, 34 P.3d 566, 569 (2001).
trial, Banks's expert witnesses, Robert Morris and Dr. Casey Blitt, testified that Sunrise had a
duty to sequester the anesthesia equipment after James's cardiac arrest. At the conclusion of
the case, the district court instructed the jury, as we previously discussed, that Sunrise had a
duty to identify all the equipment and monitors used in James's surgery.
The evidence concerning Sunrise's duty to preserve the evidence assisted the jury in
relation to its prerogative to draw a negative inference from Sunrise's consummated sale of
the equipment. Consequently, this evidence assisted the jury in understanding the pertinent
issue of whether the anesthesia equipment had malfunctioned during James's surgery. We
note that pursuant to NRS 41A.100(1), expert testimony is required in medical malpractice
actions to establish the accepted standard of care. We do not believe the district court could
therefore be in error in admitting evidence concerning a duty to sequester the equipment, as
the existence of such a duty seems to assume a standard of care relevant to the issues being
litigated. Therefore, we conclude that the district court did not abuse its discretion when it
permitted Banks's experts to testify concerning Sunrise's duty to sequester the equipment.
Opinion testimony
[Headnote 12]
Sunrise contends that the district court abused its discretion when it admitted the opinion
testimony of expert Robert Morris concerning the anesthesia equipment's malfunctioning.
Sunrise contends that Morris's testimony was speculative and that he could only offer
opinions as to mere possibilities and not to a reasonable degree of probability.
[Headnote 13]
As mentioned, NRS 41A.100(1) provides that expert testimony is required in medical
malpractice cases to establish the accepted standard of care, a breach of that standard and
causation. Generally, a medical expert is expected to testify only to matters that conform to
the reasonable degree of medical probability standard.
18
In United Exposition Service Co. v.
SIIS, we concluded that a finding of negligence in a medical malpractice case cannot be
based solely upon possibilities and speculative testimony.
19
In United Exposition, we stated
that [a] testifying physician must state to a degree of reasonable medical probability that the
condition in question was caused by the industrial injury, or sufficient facts must be shown
so that the trier of fact can make the reasonable conclusion that the condition was caused
by the industrial injury.
____________________

18
Brown v. Capanna, 105 Nev. 665, 671-72, 782 P.2d 1299, 1304 (1989); see also Prabhu v. Levine, 112
Nev. 1538, 1544, 930 P.2d 103, 108 (1996); Fernandez v. Admirand, 108 Nev. 963, 972-73, 843 P.2d 354, 360
(1992).

19
109 Nev. 421, 424, 851 P.2d 423, 425 (1993).
facts must be shown so that the trier of fact can make the reasonable conclusion that the
condition was caused by the industrial injury.
20
We determined that the speculative nature
of the expert's opinion that the injury possibly could have been' a precipitating factor was
insufficient to support a finding of causation between the defendant's negligence and the
plaintiff's injuries.
21

During his deposition, Morris described his role in the case as follows: I have to[,] using
my experience and knowledge[,] come up with possible causes of things related to devices
that might have contributed to the adverse event. (Emphasis added.) At trial, Morris testified
as to the possible ways in which the interlock system on a Narkomed II could fail. At one
point, Morris stated that [a]ny device can fail any time. He also testified that [e]veryone I
have spoken to who had Narkomed 2's for any length of time experienced failures in the
interlock system. Finally, Morris admitted that, under the circumstances, he could not
determine whether the equipment contributed to James's injury since he was unable to
examine the equipment because Sunrise had failed to properly identify which machines were
used during James's surgery.
Morris's testimony and opinions established that it was possible for the Narkomed II's
interlock device to malfunction intermittently. His testimony was also helpful to establish the
standard of care for preserving the identity of the machines and providing grounds for the
imposition of sanctions for failure to preserve evidence. It assisted the jury in understanding
how the machines could have malfunctioned and why it was reasonable to draw an adverse
inference from Sunrise's failure to identify the machines. Accordingly, we conclude that the
district court did not abuse its discretion when it permitted Morris to give opinion testimony
based on less than a reasonable degree of probability.
Hedonic damages
[Headnote 14]
Sunrise contends that the district court erred in permitting expert testimony concerning the
monetary range of hedonic damages, i.e., loss of enjoyment of life damages.
[Headnotes 15, 16]
We turn first to whether hedonic damages are a compensable element of damages. The
term hedonic is derived from the Greek language and refers to the pleasures of life.
22
Hedonic damages are therefore monetary remedies awarded to compensate injured
persons for their noneconomic loss of life's pleasures or the loss of enjoyment of life.
____________________

20
Id. at 424-25, 851 P.2d at 425.

21
Id. at 425, 851 P.2d at 425 (stating that [a] possibility is not the same as a probability).

22
The American Heritage Dictionary 610 (1980).
therefore monetary remedies awarded to compensate injured persons for their noneconomic
loss of life's pleasures or the loss of enjoyment of life. The Supreme Court of South Carolina
has succinctly explained hedonic loss, as distinguished from pain and suffering:
An award for pain and suffering compensates the injured person for the physical
discomfort and the emotional response to the sensation of pain caused by the injury
itself. Separate damages are given for mental anguish where the evidence shows, for
example, that the injured person suffered shock, fright, emotional upset, and/or
humiliation as the result of the defendant's negligence.
On the other hand, damages for loss of enjoyment of life compensate for the
limitations, resulting from the defendant's negligence, on the injured person's ability to
participate in and derive pleasure from the normal activities of daily life, or for the
individual's inability to pursue his talents, recreational interests, hobbies, or avocations.
23

Awarding damages for hedonic losses appears to be a recent concept. The long-standing
objection to such an award was the fear of speculativeness and duplication.
24
While the
majority of jurisdictions recognize hedonic loss as a recoverable element of damages, the
jurisdictions differ as to how hedonic loss should be presented and awarded. In particular,
jurisdictions disagree as to whether an expert should be permitted to testify concerning the
value of hedonic loss. Some jurisdictions will not permit an expert to testify concerning the
value of a person's life on the grounds that the loss is subjective, that the damages are
incapable of being accurately measured or that the methods used by experts to measure
hedonic losses are unreliable.
25
Other courts permit experts, such as economists, to testify
concerning the value of hedonic loss,
26
recognizing that the jury is ultimately responsible for
computing damages
____________________

23
Boan v. Blackwell, 541 S.E.2d 242, 244 (S.C. 2001) (citation omitted).

24
Pierce v. New York Central Railroad Company, 409 F.2d 1392, 1399 (6th Cir. 1969); see, e.g., McAlister
v. Carl, 197 A.2d 140, 143-46 (Md. 1964).

25
Mercado, 974 F.2d at 871 (noting that expert testimony did not provide expert assistance to the jury);
Kurncz v. Honda North America, Inc., 166 F.R.D. 386, 388-90 (W.D. Mich. 1996) (noting that expert opinion
testimony on hedonic damages is unreliable and unhelpful); Scharrel v. Wal-Mart Stores, Inc., 949 P.2d 89, 92
(Colo. Ct. App. 1998) (noting that the expert's opinions on hedonic loss did not assist the jury).

26
See Sherrod v. Berry, 629 F. Supp. 159, 164 (N.D. Ill. 1985), rev'd on other grounds, 856 F.2d 802 (7th
Cir. 1988); Couch v. Astec Industries, Inc., 53 P.3d 398, 403 (N.M. Ct. App. 2002); Lewis v. Alfa Laval
Separation, Inc., 714 N.E.2d 426, 436 (Ohio Ct. App. 1988).
damages
27
and that expert testimony will often assist the jury in making its determination.
28

We agree with these latter jurisdictions. In Nevada, the district court has discretion to
qualify a witness as an expert.
29
As noted above, if an expert's specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue, the expert
may testify to matters within the scope of such knowledge.
30
This rule is tempered by NRS
48.035(1), which prohibits the admission of relevant evidence where its probative value is
substantially outweighed by the danger of unfair prejudice, of confusion of the issues or of
misleading the jury. Furthermore, the jury must find that the party will probably suffer such
damages in the future.
31

Here, Banks offered Robert Johnson, a forensic economist, as an expert on hedonic
damages to assist the jury in determining the monetary value of the pleasure of living that
James will be denied as a result of his injury. In cases permitting experts to testify as to the
value of hedonic loss, economists have used various methods to arrive at their conclusions.
32
Johnson's methodology for the valuation of hedonic damages is called the willingness to
pay theory. Johnson testified that he relied on particular studies written about and evaluated
by other authors concerning two methods under the willingness to pay theory. The first
method, the survey method, asks people how much they are willing to spend to reduce the
probability of death from 3 deaths per 20,000 to 1 death per 20,000. The second method, the
wage risk method, examines the salary people in high fatality risk jobs receive and the
amount of money people are willing to forego to work a lower fatality risk job. Johnson then
extrapolated a total value of hedonic damages from the differentials in salary.
33
Using these
two methods, Johnson determined that a low $2.5 million to an average of $8.7 million with
no ceiling was the tangible value of a person's life.
Johnson's methodology for the valuation of hedonic damages assisted the jury to
understand the amount of damages that would compensate James for the loss of his
enjoyment of life.
____________________

27
See Canterino v. The Mirage Casino-Hotel, 117 Nev. 19, 24, 16 P.3d 415, 418 (2001).

28
Sherrod, 629 F. Supp. at 163-64; Couch, 53 P.3d at 403.

29
Mahlum, 114 Nev. at 1482, 970 P.2d at 108.

30
NRS 50.275.

31
Sierra Pacific v. Anderson, 77 Nev. 68, 76, 358 P.2d 892, 896 (1961).

32
See Mercado, 974 F.2d at 871; Kurncz, 166 F.R.D. at 388-91; Lewis, 714 N.E.2d at 434-35; see also
Stephen T. Riley, The Economics of Hedonic Damages, Nevada Lawyer, Aug. 1993, at 25-28.

33
See Hein v. Merck & Co., Inc., 868 F. Supp. 230, 233-34 (M.D. Tenn. 1994).
compensate James for the loss of his enjoyment of life. Johnson's valuation theories were
matters within the scope of his specialized knowledge concerning the monetary value of
intangibles. Moreover, the probative value of Johnson's testimony was not substantially
outweighed by the danger of unfair prejudice. Therefore, the district court properly exercised
its discretion in qualifying Johnson as an expert and permitting him to testify concerning
hedonic damages. We observe that Sunrise had the ability to use traditional methods of
disputing Johnson's testimony, such as presenting witnesses on its behalf to persuade the jury
that Johnson's methods were inaccurate or unreliable. The jury was then free to determine
whether Johnson's valuation theories were credible and to weigh his testimony accordingly.
34

[Headnote 17]
With respect to an award of hedonic damages, some jurisdictions permit an award of
hedonic damages as a separate and distinct compensatory award, in addition to the three
common compensatory damages of lost earnings, medical expenses and pain and suffering.
35
These jurisdictions believe that compensating a victim for hedonic loss in a separate award
prevents inadequate awards to the victim
36
and facilitates judicial review.
37
Other
jurisdictions permit the trier of fact to treat hedonic loss as a factor in determining general
damage awards or pain and suffering awards.
38
These courts reason that, because of the
intangible nature of hedonic loss, separating hedonic loss into a distinct category will produce
duplicative damage awards or overcompensate the victim.
39

For example, in Huff v. Tracy,
40
a California court determined that the injured plaintiff,
who suffered severe lacerations to his tongue during an automobile accident that
permanently impaired his sense of taste, was entitled to argue, as one factor for a pain
and suffering award, that he should receive compensation of his loss of enjoyment of life.
____________________

34
Krause, 117 Nev. at 933, 34 P.3d at 569.

35
See Thompson v. National R. R. Passenger Corp., 621 F.2d 814, 824-25 (6th Cir. 1980); Fantozzi v.
Sandusky Cement Products Co., 597 N.E.2d 474, 486-87 (Ohio 1992).

36
Boan, 541 S.E.2d at 245 (noting that permitting hedonic damages as a separate damages award minimizes
the risk of under- or overcompensating the victim by the jury).

37
Pierce, 409 F.2d at 1399; Fantozzi, 597 N.E.2d at 486; see also Thompson, 621 F.2d at 824 (recognizing
that a pain and suffering [award] compensates the victim for the physical and mental discomfort caused by the
injury, whereas a hedonic damage award compensates the victim for the limitations on the person's life created
by the injury).

38
See Loth v. Truck-A-Way Corp., 70 Cal. Rptr. 2d 571, 575 (Ct. App. 1998); Poyzer v. McGraw, 360
N.W.2d 748, 753 (Iowa 1985); First Trust Co. v. Scheels Hardware, 429 N.W.2d 5, 13-14 (N.D. 1988);
Missouri Pac. R. Co. v. Lane, 720 S.W.2d 830, 834 (Tex. App. 1986); Judd v. Rowley's Cherry Hill Orchards,
Inc., 611 P.2d 1216, 1221 (Utah 1980); Flannery v. United States, 297 S.E.2d 433, 438 (W. Va. 1982).

39
Poyzer, 360 N.W.2d at 753; Flannery, 297 S.E.2d at 438.

40
129 Cal. Rptr. 551, 553 (Ct. App. 1976).
tongue during an automobile accident that permanently impaired his sense of taste, was
entitled to argue, as one factor for a pain and suffering award, that he should receive
compensation of his loss of enjoyment of life. The court noted that California did not have a
rule restrict[ing] a plaintiff's attorney from arguing this element [of damages] to a jury.
41
The court analogized the treatment of hedonic loss to the treatment of mental damages,
another element of a pain and suffering award of damages.
42

We agree with California and those jurisdictions permitting plaintiffs to seek
compensation for hedonic loss as an element of the general award for pain and suffering. Like
California, Nevada does not restrict a plaintiff's attorney from arguing hedonic damages.
Moreover, by including hedonic losses as a component of pain and suffering, we perceive no
problem of confusion or duplication of awards by the jury. Accordingly, we hold that hedonic
damages may be included as an element of a pain and suffering award of damages.
Here, however, the district court permitted the jury to award hedonic damages as a
separate and distinct damage award, rather than including hedonic loss as a component of the
pain and suffering damages award. Although the district court erroneously permitted the jury
to give Banks a separate award for hedonic damages, the error was not prejudicial because the
jury could have easily added the value of the hedonic loss to the pain and suffering award.
Therefore, the record does not reveal that the hedonic damages award was duplicative or
excessive. Accordingly, the error was harmless.
Directed verdict motion
[Headnotes 18-20]
At the conclusion of the trial, Sunrise moved for a directed verdict. NRCP 50(a) states that
a motion for a directed verdict shall be denied [i]f the evidence is sufficient to sustain a
verdict for the opponent. The district court may not judge the credibility of the witnesses or
the weight of the evidence.
43
Further, [i]f there is conflicting evidence on a material issue,
or if reasonable persons could draw different inferences from the facts, the question is one of
fact for the jury and not one of law for the court.
44
In ruling on a directed verdict motion,
the district court must view the evidence and all inferences therefrom in a light most
favorable to the non-moving party.
45
We apply this same standard on appeal.
46

____________________

41
Id.

42
Id.

43
See Broussard v. Hill, 100 Nev. 325, 327, 682 P.2d 1376, 1377 (1984).

44
Id.

45
Chowdhry v. NLVH, Inc., 109 Nev. 478, 482, 851 P.2d 459, 462 (1993).

46
Id.
[Headnotes 21, 22]
To recover for medical malpractice based on negligent maintenance of equipment, Banks
had to demonstrate that Sunrise's conduct departed from the accepted standard of medical
practice, that Sunrise's conduct was both the actual and proximate cause of James's injury and
that James suffered damages.
47
The adverse inference instruction, discussed above, permitted
the jury to infer that, had Sunrise preserved the equipment, it would have been found in a
defective condition. The uncontroverted evidence at trial demonstrated that the anesthesia
equipment was not preserved. Banks also introduced expert physician testimony
demonstrating that the failure of the Narkomed II would have caused James's injury.
Therefore, the jury could have reasonably determined that Sunrise's conduct departed from
the accepted standard of care and that Sunrise's failure to maintain equipment actually and
proximately caused James's injury. Conflicting evidence existed as to whether the
equipment's malfunctioning caused James's injury. Viewing the evidence and the inferences
therefrom in the light most favorable to Banks, we conclude that the district court properly
denied Sunrise's motion for a directed verdict.
Similarly, because conflicting evidence existed as to whether James's brain injury was
proximately related to his rotator cuff surgery, the res ipsa loquitur issue was one for the jury,
not the court. Accordingly, viewing the evidence in a light most favorable to Banks, we
conclude that the district court properly denied Sunrise's motion for a directed verdict.
New trial
[Headnote 23]
We review a district court's denial of a new trial motion for an abuse of discretion.
48
Sunrise contends that the jury manifestly disregarded numerous jury instructions, warranting
a new trial under NRCP 59(a)(5).
49
Sunrise argues that the jury disregarded instructions (1)
stating that the plaintiff must prove by a preponderance of the evidence that the defendant
was negligent and that the negligence was the proximate cause of the plaintiff's injuries; (2)
defining proximate cause; (3) defining preponderance of evidence; (4) stating that the
plaintiff had the burden of establishing all the facts necessary to prove negligence and
causation, except as stated in the res ipsa loquitur instruction and the adverse inference
instruction; {5) setting forth the hospital's duty to use reasonable care to maintain
equipment; and {6) stating that "[t]he fact that a particular injury suffered by a patient as
a result of an operation is something that rarely occurs does not in itself prove that the
injury was probably caused by negligence.
____________________

47
See Prabhu, 112 Nev. at 1543, 930 P.2d at 107.

48
Id.

49
NRCP 59(a)(5) provides that the district court may grant a new trial if [m]anifest disregard by the jury of
the instructions of the court materially affected a party's substantial rights.
struction; (5) setting forth the hospital's duty to use reasonable care to maintain equipment;
and (6) stating that [t]he fact that a particular injury suffered by a patient as a result of an
operation is something that rarely occurs does not in itself prove that the injury was probably
caused by negligence.
50

Because the evidence does not support Sunrise's allegation that the jury disregarded the
above jury instructions, we conclude that Sunrise's argument is without merit. For instance,
the jury could have reasonably found that Sunrise was negligent in its duty to maintain
equipment based on evidence that the equipment was fifteen years old; that while Sunrise had
regularly scheduled maintenance checks, the checks may have been insufficient; that because
the equipment was not available for inspection, experts were unable to testify to a reasonable
degree of certainty that the equipment was functioning properly; and that no one in the
operating room had heard alarms which should have sounded once James's blood pressure
dropped. The jury also may have concluded that, despite Sunrise's testimony that Dr.
Kinsman's negligence was the sole proximate cause of James's cardiac arrest, Banks's
witnesses' testimony that the malfunctioning equipment would have affected James's
ventilation was more persuasive. Finally, although Sunrise presented physician testimony that
cardiac arrests and vasovagal events could occur during outpatient surgery, the jury could
reasonably have found that Banks's expert's testimony, that such events did not usually occur
during outpatient surgery in the absence of negligence, was more persuasive.
Sunrise also contends that it was deprived of a fair trial
51
as a result of the district court's
decision to instruct the jury with Jury Instruction Nos. 22, 27, 28
52
and 32. Additionally,
Sunrise claims that these instructions should not have been given to the jury as they were not
supported by the evidence. Finally, Sunrise claims these instructions misstate the law.
53

[Headnote 24]
Jury Instruction No. 22 read:
____________________

50
Sunrise also takes issue with the res ipsa loquitur instruction. However, as discussed above, substantial
evidence supported the jury's verdict as to the res ipsa loquitur issue.

51
NRCP 59(a)(1) provides for a new trial upon a showing of [i]rregularity in the proceedings of the court,
jury, master, or adverse party, or any order of the court, or master, or abuse of discretion by which either party
was prevented from having a fair trial.

52
We concluded above that the district court properly submitted Jury Instruction No. 27, the res ipsa loquitur
instruction, and Jury Instruction No. 28, the adverse inference instruction.

53
NRCP 59(a)(7) provides for a new trial upon a showing of [e]rror in law occurring at the trial and objected
to by the party making the motion.
There may be more than one proximate cause of an injury. When negligent conduct
of two or more persons contributes concurrently as proximate causes of an injury, the
conduct of each of said persons is a proximate cause of the injury regardless of the
extent to which each contributes to the injury. A cause is concurrent if it was operative
at the moment of injury and acted with another cause to produce the injury. It is no
defense that the negligent conduct of a person not joined as a party was also a
proximate cause of the injury.
This instruction is substantively identical to Nevada Pattern Civil Jury Instruction (Nev. Civ.
J.I.) No. 405, which is an adaptation of California Civil Jury Instruction (BAJI) No. 3.77. The
comment to BAJI 3.77 states that a trial court should give this instruction whenever the issue
of negligence of two or more defendants or contributory negligence is submitted to the jury.
54
In the instant case, the parties presented conflicting testimony over the cause of James's
injury: Banks argued that the malfunctioning equipment caused James's injury, and Sunrise
attempted to direct the blame at Dr. Kinsman. The district court explained that this instruction
was a standard instruction included in every negligence case. The instruction cautioned jurors
that, even if Sunrise was not the sole cause of the injury, but a contributing cause, the jury
could still find Sunrise liable. The instruction is also consistent with our previous holding that
[w]here two or more causes proximately contribute to the injuries complained of, recovery
may be had against either one or both of the joint tort-feasors.
55

[Headnote 25]
Jury Instruction No. 32 instructed the jury that there is no definite method of calculating
compensation for pain and suffering. Sunrise argues that instructing the jury that damages for
pain and suffering were recoverable is an error of law because such an award requires that the
injured person be conscious of the pain. We have held that, in order to award damages for
pain and suffering, a jury must find substantial evidence that the damages are probable.
56
In
the instant case, jurors had the ability to view a video of James throughout the course of his
day. Additionally, at trial, Charles Braden, James's nurse, testified that James was able to
respond to his environment. Braden, through his five years of assisting James, stated that
James would occasionally smile during a comedy show on television or when his family
visited and had tears at times based on news and various exchanges with family members.
____________________

54
BAJI 3.77 (9th ed. West 2002).

55
Mahan v. Hafen, 76 Nev. 220, 225, 351 P.2d 617, 620 (1960).

56
Sierra Pacific, 77 Nev. at 75, 358 P.2d at 896.
members. Although Sunrise's physician expert testified that persons with hypoxic brain injury
are unable to react to their environment, the expert based his testimony on his observations of
the video. The expert never personally met with James. Accordingly, the jury was free to
weigh the credibility of the witnesses on whether James was conscious of his pain and
suffering. The above jury instruction simply instructed the jury that it would be responsible
for calculating the damages. Accordingly, Sunrise's argument that a new trial is warranted is
without merit.
Reduction of the jury award
Unclean hands
[Headnote 26]
Banks contends that, because the right of offset is an equitable remedy and because
Sunrise has unclean hands, Sunrise is not entitled to a reduction of the jury award. Banks
relies on this court's decision in Evans v. Dean Witter Reynolds, Inc.,
57
for the proposition
that the district court should not reduce a judgment against an intentional tortfeasor by a
settlement from a joint tortfeasor. In Evans, the tortfeasors, a stockbroker and stock brokerage
firm, intentionally converted a client's securities. We concluded that the intent behind the
Nevada contribution' statutes prohibits one intentional tortfeasor from taking advantage of
restitution made by another.
58

The instant case is unlike Evans. While Sunrise acted improperly in its failure to preserve
the anesthesia equipment, Sunrise was not an intentional tortfeasor because its acts were not
intended or designed to cause harm to James. Accordingly, this argument is without merit.
Reference to Dr. Robert Kinsman's negligence
Banks contends that Sunrise was not entitled to an offset for the sum paid in settlement of
his claim against Dr. Kinsman because the jury heard evidence of Dr. Kinsman's negligence
and, therefore, properly accounted for it in its judgment.
[Headnote 27]
NRS 17.245(1)(a) allows a plaintiff to settle with one tortfeasor without losing the right to
proceed against additional tortfeasors. However, to prevent double recovery to the plaintiff,
the statute also provides that claims against nonsettling tortfeasors must be reduced by the
amount of any settlement with settling tortfeasors. Moreover, while a plaintiff may proceed
against an additional tortfeasor, in order to prevent improper speculation by the jury, the
parties may not inform the jury as to either the existence of a settlement or the sum paid.
____________________

57
116 Nev. 598, 609-10, 5 P.3d 1043, 1050 (2000).

58
Id. at 611, 5 P.3d at 1051.
feasor, in order to prevent improper speculation by the jury, the parties may not inform the
jury as to either the existence of a settlement or the sum paid.
59

Here, Sunrise did not elicit testimony or expose the jury to the fact that Dr. Kinsman had
entered into settlements with Banks, nor did it mention the sum paid. NRS 17.245 does not
prevent a defendant from pointing the blame at another defendant or from arguing that it was
not responsible for the plaintiff's injury. Therefore, Sunrise was free to argue that Dr.
Kinsman's negligence proximately caused James's injury, rather than the equipment
malfunction. This line of argument did not compromise Sunrise's rights to an equitable setoff
under NRS 17.245.
[Headnotes 28, 29]
We likewise reject Banks's contentions that the jury reduced the verdict based upon
alleged violations of NRS 41.141(3), which states that if a codefendant settles with the
plaintiff in a case in which the remaining defendant asserts a comparative negligence defense,
the jury may not consider the codefendant's comparative negligence or the settlement amount.
60
We conclude that NRS 41.141(3) has no bearing on the issues of whether Sunrise could
argue a nonparty's fault in this instance and whether such an argument per force leads to the
conclusion that the jury reduced the award based upon the nonparty's relative culpability.
First, NRS 41.141 only prevents admission of evidence in support of a comparative fault"
or apportionment analysis of the case as to nonparties, and a jury may only "compare"
the negligence as between parties and nonparties.
____________________

59
Moore v. Bannen, 106 Nev. 679, 680-81, 799 P.2d 564, 565 (1990).

60
NRS 41.141 provides, in pertinent part:
1. In any action to recover damages for death or injury to persons or for injury to property in which
comparative negligence is asserted as a defense, the comparative negligence of the plaintiff or his
decedent does not bar a recovery if that negligence was not greater than the negligence or gross
negligence of the parties to the action against whom recovery is sought.
2. In those cases, the judge shall instruct the jury that:
(a) The plaintiff may not recover if his comparative negligence or that of his decedent is greater than
the negligence of the defendant or the combined negligence of multiple defendants.
(b) If the jury determines the plaintiff is entitled to recover, it shall return:
(1) By general verdict the total amount of damages the plaintiff would be entitled to recover
without regard to his comparative negligence; and
(2) A special verdict indicating the percentage of negligence attributable to each party
remaining in the action.
3. If a defendant in such an action settles with the plaintiff before the entry of judgment, the
comparative negligence of that defendant and the amount of the settlement must not thereafter be
admitted into evidence nor considered by the jury. The judge shall deduct the amount of the settlement
from the net sum otherwise recoverable by the plaintiff pursuant to the general and special verdicts.
parative fault or apportionment analysis of the case as to nonparties, and a jury may only
compare the negligence as between parties and nonparties.
61
Nothing in NRS 41.141
prohibits a party defendant from attempting to establish that either no negligence occurred or
that the entire responsibility for a plaintiff's injuries rests with nonparties, including those
who have separately settled their liabilities with the plaintiff. Second, the fact that Sunrise
pleaded comparative negligence as an affirmative defense is not pertinent to whether Sunrise
could argue its defense theory of third-party culpability. Third, the defense was abandoned.
62
Fourth, neither party submitted a comparative negligence instruction nor requested special
verdict forms delineating the comparative negligence of Sunrise and Dr. Kinsman. In light of
the above, there is no indication that the jury accounted for Dr. Kinsman's negligence in its
award of damages. Accordingly, we conclude that this argument is without merit.
No finding of liability
[Headnote 30]
Banks also contends that the district court improperly reduced the jury award by the sum
paid in settlement on his claim against Dr. Manning because the arbitrator did not find Dr.
Manning negligent. Banks relies on an Ohio appellate decision for the proposition that the
defendant must demonstrate that his former codefendants were at least partially responsible
for tort damages before he is entitled to an offset.
63

[Headnotes 31-34]
The controlling law in Nevada, however, is NRS 17.245(1)(a), which provides:
1. When a release or a covenant not to sue or not to enforce judgment is given in
good faith to one of two or more persons liable in tort for the same injury or the same
wrongful death:
____________________

61
See Warmbrodt v. Blanchard, 100 Nev. 703, 709, 692 P.2d 1282, 1286 (1984) (holding that district court
erred in instructing the jury to consider and apportion negligence of nonparties to the trial via special verdict).

62
Mere assertion of comparative negligence as an affirmative defense does not, in any case, implicate the
operation of NRS 41.141. See Buck v. Greyhound Lines, 105 Nev. 756, 763-64, 783 P.2d 437, 442 (1989); see
also Carlton v. Manuel, 64 Nev. 570, 576, 187 P.2d 558, 561 (1947) (noting that, although the appellant raised
an affirmative defense, where the record did not disclose any formal offer of proof regarding the affirmative
defense, the affirmative defense was abandoned).

63
In re Miamisburg Train Derailment, 725 N.E.2d 738, 747 (Ohio Ct. App. 1999).
(a) It does not discharge any of the other tortfeasors from liability for the injury or
wrongful death unless its terms so provide, but it reduces the claim against the others to
the extent of any amount stipulated by the release or the covenant, or in the amount of
the consideration paid for it, whichever is the greater.
Statutory interpretation is a question of law and is reviewed de novo.
64
When interpreting a
statute, we give words their plain meaning unless attributing the plain meaning would violate
the spirit of the statute.
65
If more than one reasonable meaning can be discerned from the
statute's language, it is ambiguous, and the plain meaning rule does not apply.
66
Instead, we
look to the statute's terms and context, along with reason and public policy to ascertain the
67
When interpreting a portion of a statute, we read the statute as a whole
and give meaning to all of its parts where possible.
68
Finally, statutory interpretation should
avoid absurd results.
69

Here, the statute is couched in terms of a release or covenant not to sue, i.e., a settlement
before a verdict is reached. Although the statute states persons liable, requiring a final
judgment of liability would create absurd results when read in context with the prejudgment
language. The express language of the statute contemplates that the defendant and plaintiff
have worked out a settlement prior to a final judgment of liability. Therefore, the plain
meaning of the statute does not require that a party be found liable. Here, Banks and Dr.
Manning opted to settle the matter through an arbitration agreement that included a minimum
$100,000 award to Banks if the arbitrator found in favor of Dr. Manning and a maximum
$1,000,000 if the arbitrator found Dr. Manning liable. Because the arbitrator determined that
Dr. Manning's conduct did not fall below the standard of care, the arbitrator awarded Banks
$100,000 as agreed. The parties entered into the agreement in good faith, and the agreement
addressed the same injury for which the jury found Sunrise liable. Thus, the district court
properly reduced the jury award by the settlement amount from Dr. Manning and Banks's
argument is without merit.
____________________

64
Barrick Goldstrike Mine v. Peterson, 116 Nev. 541, 545, 2 P.3d 850, 852 (2000).

65
McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986).

66
Id. at 649, 730 P.2d at 442.

67
Id. at 649-51, 730 P.2d at 442-43.

68
Building & Constr. Trades v. Public Works, 108 Nev. 605, 610, 836 P.2d 633, 636 (1992).

69
General Motors v. Jackson, 111 Nev. 1026, 1029, 900 P.2d 345, 348 (1995).
Potential wrongful death claimants
Banks contends that the Kinsman and Manning settlements were given, at least in part, in
exchange for the release of potential wrongful death claims by prospective heirs. Banks
asserts that reducing the jury award by the settlement amounts pertaining to wrongful death
claims does not promote the policy against double recovery.
[Headnote 35]
Sunrise responds that the statute of limitations for a wrongful death action had run by the
time the parties settled in October 1999. NRS 41A.097(1) states that an action for injury or
death against a provider of health care may not be commenced more than 4 years after the
date of injury. Sunrise contends that, because James was injured in August 1995, the
wrongful death action was time barred after August 1999. However, we have previously held
that injury in NRS 41A.097 pertains to legal injury.
70
Because death is an essential
element of a wrongful death claim, the legal injury here is death. Because the record reveals
that James was alive at the time of this appeal, Sunrise's argument is without merit.
We have previously held that a wrongful death claim pertains to the injury suffered by the
heirs rather than by the decedent.
71
A California appellate court held that, where a judgment
did not include damages for wrongful death claimants, the settlement amounts to the potential
wrongful death claimants could not be used to offset the judgment against the nonsettling
defendant.
72
Here, the jury's award did not include damages for the potential wrongful death
claimants. Nor does the record reveal that the jury considered these claims. Although the
record indicates that the potential wrongful death claimants were signatories on the settlement
agreements, the record is devoid of any evidence indicating that the potential wrongful death
claimants benefited from, were entitled to or received any portion of the settlement amount. It
appears that the entire settlement amount went to Banks. Therefore, Banks would have
received double recovery if the district court had failed to reduce the jury award by the
settlement amounts.
CONCLUSION
We conclude that Sunrise has failed to demonstrate error that would entitle it to a reversal
or a new trial. We also conclude that Banks has failed to demonstrate that the reduction of the
jury award was improper.
____________________

70
Fernandez v. Kozar, 107 Nev. 446, 449, 814 P.2d 68, 70 (1991).

71
Id.

72
Wilson v. John Crane, Inc., 97 Cal. Rptr. 2d 240, 250 (Ct. App. 2000).
award was improper. Accordingly, we affirm the judgment and order of the district court.
Shearing, C. J., Rose, Gibbons and Douglas, JJ., concur.
Maupin, J., with whom Becker, J., agrees, concurring in part and dissenting in part:
The majority opinion today addresses a myriad of undecided issues concerning tort
litigation in Nevada. These include duties of a potential defendant to preserve evidence, the
scope of expert testimony concerning preservation issues, the scope of the doctrine of res ipsa
loquitur, whether Nevada recognizes the concept of hedonic damages, whether expert
testimony is admissible in aid of a claim for hedonic damages, and the extent to which
defendants in different scenarios are entitled to equitable offsets for pretrial settlements. I
agree that expert evidence is admissible on questions of evidence spoliation, that general
damage awards may include hedonic damages for conscious loss of enjoyment of life, that
expert testimony may assist the fact-finder in resolving hedonic damage claims, and that
defendants are entitled to equitable offsets in negligence actions regardless of whether the
settlement monies are paid pursuant to an arbitration agreement and regardless of whether a
defendant at trial argues that the settling defendant was at fault. I conclude, however, that the
district court erred in its sanction instruction concerning preservation of evidence and in its
application of the doctrine of res ipsa loquitur. In my view, these two errors require reversal
and remand to the district court for retrial.
DISCUSSION
In light of Sunrise's failure to preserve either the Narkomed II anesthesia machine or
records that would enable Mr. Banks's attorneys to trace the machine for testing, the district
court gave the following instruction:
Sunrise Hospital had a duty to identify all of the anesthesia equipment and monitors
which were used in the Banks surgery. Defendant Sunrise failed in this duty and
because of its failure, no independent review or inspection of the equipment could ever
be done. You may infer that had the equipment been preserved and tested that it would
have been found to be not operating properly.
In this instruction, the district court applied an absolute pre-litigation duty upon a potential
defendant to preserve evidence. This action unfairly and retrospectively imposed a duty to
preserve evidence at a time many months before the plaintiff first generated even so much as
a remote reference to the evidence and years before the plaintiff took formal action against
the defendant in connection with it.
fore the plaintiff took formal action against the defendant in connection with it. Additionally,
the instruction found as a matter of law that the duty had been breached.
The case authority which the majority relies upon imposes sanctions for destruction or loss
of evidence where a potential plaintiff discarded critical evidence prior to filing suit and then
proceeded with the action.
1
Because a potential plaintiff has absolute control over whether to
file a lawsuit and which theories of recovery he or she chooses to allege, it is perfectly
appropriate to impose a duty to preserve evidence and impose sanctions in connection with its
loss or destruction. However, a broad duty to preserve becomes problematic when applied to
a potential defendant who may either never be sued or be sued upon a particular theory.
In a perfect world, a hospital or physician should investigate all possible reasons for a
catastrophic surgical result, and any person involved in a catastrophic event would be wise to
undertake some sort of investigation and preserve evidence to guard against the possibility of
impending litigation. But the majority applies a wide ranging preservation duty under a very
discrete set of circumstances. In my view, we should not impose a presuit duty upon a
defendant unless there is evidence that supports an inference that the destruction was
calculated to gain a competitive advantage in the event of litigation.
2
Here, Banks never
claimed that Sunrise willfully destroyed evidence to avoid exposure to this case, and the
claim that the machine was implicated in Mr. Bank's profound neurological damage did not
surface until well after the machine was turned over to a purchaser under an agreement that
predated the surgery.
Having said this, the jury should have been allowed to hear evidence concerning the
possibilities if testing had been available and been instructed on permissible inferences from
the loss of the machine. However, the district court should not have instructed the jury that an
absolute duty existed to preserve evidence and that Sunrise breached this duty, particularly
when there was no indication that the machine was implicated until Mr. Banks filed his initial
complaint some seven months after the disposal of the machine, the original complaint only
referred to the machine in connection with allegations against fictitiously named defendants,
the anesthesiologist renounced any difficulty with the machine, the defendant disposed of
the equipment pursuant to an agreement that predated the surgery, and Mr.
____________________

1
See Fire Ins. Exchange v. Zenith Radio Corp., 103 Nev. 648, 651, 747 P.2d 911, 914 (1987). Although Fire
Ins. Exchange embraced a general duty to preserve relevant evidence that would apply to any party on notice of
litigation, the decision did not flush out public policy considerations concerning when a defendant has such a
duty.

2
See Stubli v. Big D International Trucks, 107 Nev. 309, 810 P.2d 785 (1991) (Rose, J., dissenting)
(concluding that loss of evidence was not entirely willful and that sanction of dismissal was too harsh).
the anesthesiologist renounced any difficulty with the machine, the defendant disposed of the
equipment pursuant to an agreement that predated the surgery, and Mr. Banks failed to allege
any claims against Sunrise concerning the machine until some four years after the fact.
The majority imposes a duty to preserve evidence, which a potential defendant knows or
should know may be relevant to an unfiled action. This standard, in its broad application,
forces potential parties to anticipate or speculate as to the mere prospect of a particular type
of suit, and likewise imposes sanctions for a failure to do so. While this case is marked by a
compelling and tragic set of circumstances, this is not the way to provide a just adjudication
of Mr. Banks's claims against the hospital.
Res ipsa loquitur
In my view, this is also not a res ipsa loquitur case. NRS 41A.100 requires that medical
malpractice claims be supported by expert opinion testimony. Such evidence, however, is
unnecessary when the claimant offers some evidence of one or more of the circumstances
enumerated in NRS 41A.100(1)(a) through (e), which embody former res ipsa loquitur
principles. The majority concludes that the district court properly instructed the jury under
NRS 41A.100(1)(d). Paragraph (d) forgives the expert testimony requirement when the injury
occurs during the course of treatment to a part of the body not directly involved in the
treatment or proximate thereto. The majority embraces this provision, reasoning that Mr.
Banks's brain was not proximately or directly related to his rotator cuff surgery. I respectfully
disagree.
To explain, the damage claim in this case was based upon profound and irreversible brain
injury secondary to complications of general anesthesia. The use of general anesthesia, i.e.,
the sedation of the central nervous system, was part and parcel of the surgical treatment of the
patient. Because sedation of the central nervous system constitutes treatment directly
involving the brain, NRS 41A.100(1)(d) is not implicated.
CONCLUSION
In my view, the district court erred in the construct of its spoliation instruction and in its
res ipsa loquitur instructions under NRS 41A.100(1)(d). Accordingly, while I agree with the
majority in all other respects, I would reverse and remand this matter for retrial.
____________
120 Nev. 851, 851 (2004) State, Dep't of Transp. v. Cowan
THE STATE OF NEVADA, DEPARTMENT OF TRANSPORTATION,
Appellant/Cross-Respondent, v. STUART A. COWAN and BARBARA L. COWAN,
dba LOU'S TEXACO, Respondents/Cross-Appellants.
No. 39188
December 17, 2004 103 P.3d 1
Appeal and cross-appeal from a final judgment in a condemnation action. Eighth Judicial
District Court, Clark County; Ronald D. Parraguirre, Judge.
Nevada Department of Transportation (NDOT) condemned property on which lessees
operated a franchised gasoline station with convenience store. The district court entered
judgment on jury's award, which included $260,000 as compensation for lost business
goodwill. Cross-appeals were taken. The supreme court, Shearing, C. J., held that: (1) lessees
were entitled to compensation for destruction of their business, as exception to undivided-fee
rule; and (2) business goodwill, rather than lost profits, was appropriate measure of damages
for destruction of lessees' business.
Affirmed.
Maupin and Gibbons, JJ., dissented in part.
Brian Sandoval, Attorney General, Brian R. Hutchins, Chief Deputy Attorney General,
and Liesl K. Freedman, Senior Deputy Attorney General, Carson City, for
Appellant/Cross-Respondent.
Law Offices of Kermitt L. Waters and James Jack Leavitt, Brian C. Padgett, Charles E.
Springer, and Kermitt L. Waters, Las Vegas, for Respondents/Cross-Appellants Stuart and
Barbara Cowan, d/b/a Lou's Texaco.
A. Grant Gerber & Associates and A. Grant Gerber, Elko; Pacific Legal Foundation and
J. David Breemer and James S. Burling, Sacramento, California, for Amicus Curiae Pacific
Legal Foundation.
David J. Roger, District Attorney, and Robert J. Gower, Deputy District Attorney, Clark
County, for Amicus Curiae Clark County.
Jason S. Cook, Las Vegas; Defenders of Property Rights and Nancie G. Marzulla,
Washington, D.C., for Amicus Curiae Defenders of Property Rights.
Jones Vargas and Ann Morgan, Reno, for Amicus Curiae Airport Authority of Washoe
County.
Andrew A. List, Carson City, for Amici Curiae Nevada Association of Counties and
Nevada League of Cities and Municipalities.
1. Eminent Domain.
Lessees' counterclaim for inverse condemnation was inappropriate, where State
exercised the formal power of eminent domain by filing its complaint for title to the
parcel and naming lessees as parties.
2. Eminent Domain.
Inverse condemnation is an action against a governmental defendant to recover the
value of property which has been taken in fact by the governmental defendant, even
though no formal exercise of the power of eminent domain has been attempted by the
taking agency.
3. Eminent Domain.
Lessees of condemned land were entitled to compensation for destruction of their
business, as exception to undivided-fee rule, by which condemned property is first
valued as though it were unencumbered and then total award is apportioned among
various interests; lessees had operated a franchised gasoline station with convenience
store on the land, and they were unable to relocate their business because oil companies
were not extending new leases for gas station franchises in Las Vegas area, which
meant lease's value was inextricably tied to unique location of the condemned real
estate. Const. art. 1, 8(6); NRS 37.115.
4. Eminent Domain.
Ordinarily, under the undivided-fee rule, by which the condemned property is first
valued as though it were unencumbered and then the total award is apportioned among
the various interests, the lessee of the condemned land would be compensated only for
the value of the leasehold, but not for damages based on any business loss. NRS
37.115.
5. Eminent Domain.
Traditionally, damage to a business, as opposed to the taking or damaging of its
physical assets, has been treated as a noncompensable loss in a condemnation
proceeding, even when the damage or destruction occurs because a condemning agency
takes the land on which the business is conducted. Since the business is not taken for
use as a going concern, the condemnor does not acquire the going-concern value of the
business and should not be required to compensate for that which is not taken.
6. Eminent Domain.
Business goodwill, rather than lost profits, was appropriate measure of damages for
destruction of business operated by lessees of condemned land; lessees had operated a
franchised gasoline station with convenience store on the land, and they were unable to
relocate their business because oil companies were not extending new leases for gas
station franchises in Las Vegas area. Const. art. 1, 8(6); NRS 37.115.
7. Good Will.
There is no single method to value goodwill; the method used will depend on the
circumstances in each case, and more importantly, on the type of business being valued.
8. Eminent Domain.
Generally, no compensation is awarded, in condemnation cases, for anticipated
profits at the location taken by condemnation.
9. Evidence.
Evidence of the price land lessees had paid, five years before condemnation of the
land, to purchase the business-goodwill interest in the gasoline station franchise they
operated on the land was admissible, when measuring damages for destruction of
their business, which could not be relocated; five-year gap in time was not so
remote, nor any increase in business value so extensive, that original purchase price
was unfair criterion for jury to consider in calculating damages.
gasoline station franchise they operated on the land was admissible, when measuring
damages for destruction of their business, which could not be relocated; five-year gap
in time was not so remote, nor any increase in business value so extensive, that original
purchase price was unfair criterion for jury to consider in calculating damages.
10. Eminent Domain.
The trial court is permitted wide discretion in determining the admissibility of
evidence in a condemnation action.
11. Evidence.
Probative value of comparable California land sales and appraisals was substantially
outweighed by danger of unfair prejudice, for purposes of determining condemnees'
damages in Nevada condemnation proceeding; California property sales and appraisals
were not probative of the real property situation in Nevada, and such evidence would be
highly confusing and misleading to jury. NRS 48.035(1).
12. Eminent Domain.
Lost business opportunity is not a compensable item for condemnation unless
specific statutes or constitutional provisions require such compensation.
1

OPINION
This is an appeal and cross-appeal from a judgment awarding damages to the lessee of
property that was condemned by the Nevada Department of Transportation (NDOT). The
lessees, Stuart A. and Barbara L. Cowan, appeal numerous rulings by the district court,
claiming that they received an inadequate damages and attorney fees award. NDOT appeals
on the ground that the district court erred in awarding damages for the goodwill value of the
Cowans' business and in calculating the costs and attorney fees award.
FACTS
In November 1999, the State condemned a one-half acre parcel of real property to expand
Interstate 15 in Las Vegas, Nevada. Before the condemnation, the Cowans conducted
business as Lou's Texaco on the parcel, which was located on the corner of Sahara Avenue
and Rancho Drive. Lou's Texaco included a gasoline station franchise and a convenience
store.
The Cowans had purchased this gas station franchise in October 1994 from the previous
leasehold owners for $410,000, which included $260,000 for business goodwill. They paid
$100,584 annually for the gasoline station lease and operated Lou's Texaco from 1994
until the condemnation in 1999.
____________________

1
The Honorable Robert E. Rose, Justice, voluntarily recused himself from participation in the decision of this
matter. The Honorable Michael L. Douglas, Justice, did not participate in the decision of this matter.
nually for the gasoline station lease and operated Lou's Texaco from 1994 until the
condemnation in 1999.
Equilon Enterprises owned the real property upon which Lou's Texaco operated its
business. The parties agree that Lou's Texaco was strategically located to attract business near
the Interstate 15 on- and off-ramps, near two restaurants, and adjacent to a hotel casino. Stuart
Cowan testified that the freeway and street traffic passing the gas station exceeded 400,000
cars daily.
In response to the State's condemnation action, the Cowans filed an inverse condemnation
claim against the State, seeking compensation for lost business opportunity and lost business
goodwill. Before trial, the State moved to dismiss the Cowans' counterclaim and to exclude
evidence of lost business opportunity and lost business goodwill. The district court denied the
State's motion to dismiss the inverse condemnation counterclaim and permitted the Cowans
to present lost business goodwill evidence, but excluded evidence of lost business
opportunity.
Stuart Cowan testified that he was unable to find a comparable gas station franchise
available for purchase in the Las Vegas area. John Arfuso, an experienced Las Vegas gas
station franchise operator, testified that oil companies have systematically discontinued the
extension of new gas station franchise leases in the Las Vegas area, rendering such new leases
unavailable.
The jury awarded the Cowans $260,000 as compensation for lost business goodwill. The
State appeals from this portion of the judgment and asserts that just compensation in the
condemnation context does not include recovery for lost business goodwill. The State also
challenges the district court's calculation of costs and attorney fees. The Cowans cross-appeal,
contending that numerous errors before, during, and after trial resulted in an inadequate
recovery, and that they did not receive just compensation for the loss of their business. They
also appeal the amount of attorney fees awarded.
DISCUSSION
Inverse condemnation
[Headnotes 1, 2]
The Cowans attempted to characterize their counterclaim as one for inverse condemnation,
and the district court agreed with the characterization. Inverse condemnation is an action
against a governmental defendant to recover the value of property which has been taken in
fact by the governmental defendant, even though no formal exercise of the power of eminent
domain has been attempted by the taking agency.
2
Here, the State exercised the formal
power of eminent domain by filing its complaint for title to the parcel and naming the
Cowans as parties.
____________________

2
Thornburg v. Port of Portland, 376 P.2d 100, 101 n.1 (Or. 1962), quoted in United States v. Clarke, 445
U.S. 253, 257 (1980).
mal power of eminent domain by filing its complaint for title to the parcel and naming the
Cowans as parties. Thus, an inverse condemnation counterclaim by the Cowans was
inappropriate in this case, and the arguments based on the finding of inverse condemnation
are without merit.
Compensation for loss of a business in a condemnation action
[Headnotes 3-5]
The State argues that the award of damages for lost business goodwill is reversible error.
Generally speaking, this court's case law supports the State's position. In Clark County v. Sun
State Properties, we held that NRS 37.115 codifies the undivided-fee rule, by which the
condemned property is first valued as though it were unencumbered and then the total award
is apportioned among the various interests.
3
Ordinarily, under the undivided-fee rule, the
lessee would be compensated only for the value of the leasehold, but not for damages based
on any business loss.
4
This court in Sun State Properties explained the reasoning behind the
rule as follows:
The duty of the public to make payment for the property which it has taken is not
affected by the nature of the title or by the diversity of interests in the property. The
public pays what the land is worth, and the amount so paid is to be divided among the
various claimants, according to the nature of their respective estates.
5

Under this rule, the State is required to pay for what it gains, namely, the real property, but
not for the loss to the business owner. Traditionally, damage to a business (as opposed to the
taking or damaging of its physical assets) has been treated as a noncompensable loss, even
when the damage or destruction occurs because a condemning agency takes the land on which
the business is conducted.
6
Since the business is not taken for use as a going concern, the
condemnor does not acquire the going-concern value of the business and should not be
required to compensate for that which is not taken.
7
In this case, NDOT is not getting any
benefit from the business, as it is acquiring only the real property.
However, this court has recognized that under certain exceptional circumstances, the
business owner may be compensated over and above the value of the real property.
____________________

3
119 Nev. 329, 337, 72 P.3d 954, 959 (2003).

4
Id. at 336-37, 72 P.3d at 958-59.

5
Id. at 336, 72 P.3d at 958 (quoting 4 Julius L. Sackman, Nichols on Eminent Domain 12.05[1], at 12-104
(rev. 3d ed. 2002)).

6
8A Patrick J. Rohan & Melvin A. Reskin, Nichols on Eminent Domain 29.02[1], at 29-12 to 29-18 (3d ed.
2004) [hereinafter Nichols].

7
Kimball Laundry Co. v. U. S., 338 U.S. 1, 11-12 (1949).
above the value of the real property. In National Advertising Co. v. State, Department of
Transportation, this court recognized that when the condemnation of the real property results
in the business being destroyed, the business owner should be compensated.
8
Specifically,
this court reasoned that lessees of billboards should be compensated for lost billboard
advertising income when the State condemned the underlying property and the billboards
could not be relocated.
9

The instant case is analogous to National Advertising. The evidence presented at trial
supported the finding that when the Sahara-Rancho property was condemned, the Cowans'
business was destroyed. The Cowans were unable to relocate their business because oil
companies were not extending new leases for gas station franchises in the Las Vegas area.
Consequently, the lease's value was inextricably tied to the unique location of the real estate
that was condemned. In this situation, we conclude that the undivided-fee rule does not
adequately compensate the lessee for what was taken. The Nevada Constitution mandates that
[p]rivate property shall not be taken for public use without just compensation.
10
Therefore,
the State must compensate the Cowans for the destruction of their business.
Measure of damages
[Headnote 6]
The district court determined that the measure of damages is the business's goodwill. This
measure has support in treatises and case law from other jurisdictions. In Nichols on Eminent
Domain, the damages issue is discussed as follows:
If the business cannot be relocated, or is relocated only at a substantial cost of
patronage and profits, the business owner suffers the loss of an intangible business
asset, in addition to whatever tangible assets may have been taken. This intangible asset
is commonly referred to as business goodwill. While different jurisdictions vary slightly
in their definitions of goodwill, the term generally is used to describe that component of
value attributed to a business's reputation in the community, loyal customer base and
ability to attract new customers. This intangible element imbues a business with value
which cannot be accounted for by a mere examination of its physical or tangible assets;
in short, where the whole business exceeds the sum of its tangible parts, business
goodwill accounts for the additional value.
____________________

8
116 Nev. 107, 113, 993 P.2d 62, 66 (2000).

9
Id. at 113-14, 993 P.2d at 66-67.

10
exceeds the sum of its tangible parts, business goodwill accounts for the additional
value.
11

Two Michigan cases, in which compensation for goodwill was allowed, involved facts
similar to our present case. In Michigan State Highway Commission v. L & L Concession Co.,
12
the concessionaire at a racetrack that had been condemned was compensated for his
business's going-concern value. The court held that the business's value could be recovered
separate and apart from the leasehold value. In City of Lansing v. Wery,
13
a restaurant on
condemned property could not be relocated. The court determined that where special facts
similar to those present in L & L exist, a court may properly consider goodwill as evidence of
the value of the leasehold or the capacity of the realty for use.
14
We agree with these
authorities that business goodwill is the appropriate measure of damages in cases such as this
one; accordingly, the district court did not err in admitting evidence of business goodwill.
[Headnotes 7, 8]
Even so, the Cowans argue that the trial court erred by not allowing evidence of lost
business opportunity or lost income. Actually, although the district court stated that projected
lost income would not be allowed, the testimony of the Cowans' appraiser did include this
information. The Cowans cite our decision in National Advertising for the proposition that
lost income should be allowed.
15
Although we did allow compensation in the form of lost
income in that case, it is distinguishable because goodwill cannot be valued for billboards,
but it can be assessed for an existing business. Additionally, as recognized in one treatise,
[t]here is no single method to value goodwill. The method used will depend on the
circumstances in each case, and more importantly, on the type of business being valued.
16
Generally, no compensation is awarded for anticipated profits at the location taken by
condemnation.
17
The noncondemnation cases that the Cowans cite are inapposite. Valuation
based on business goodwill is a more appropriate measure of the Cowans' damages.
____________________

11
8A Nichols, supra note 6, 29.01[1], at 29-5 to 25-6 (footnotes omitted).

12
187 N.W.2d 465 (Mich. Ct. App. 1971).

13
242 N.W.2d 51 (Mich. Ct. App. 1976).

14
Id. at 54.

15
116 Nev. 107, 993 P.2d 62 (2000).

16
8A Nichols, supra note 6, 29.07[2][a], at 29-54 (footnote omitted).

17
Id. 29.05[4], at 29-44 to 29-47 (cases cited therein).
Admission of original purchase price
[Headnote 9]
The Cowans maintain that the district court abused its discretion in admitting evidence of
the price they paid to purchase the business-goodwill interest in their franchise in 1994.
According to the Cowans, this 1994 amount did not fairly reflect the value of their business
goodwill on the date the State took the property in 1999, and the admission of this amount
prejudiced their case. We do not agree that the district court abused its discretion.
[Headnote 10]
The trial court is permitted wide discretion in determining the admissibility of evidence in
a condemnation action.
18
Here, the district court allowed evidence of the original price that
the Cowans paid for the business-goodwill interest in 1994. The five-year gap in time from
the date the Cowans purchased the franchise in 1994 until the date the State condemned the
property in 1999 was not so remote, nor any increase in business value so extensive, that the
original purchase price was an unfair criterion for the jury to consider in calculating damages.
Therefore, we conclude that the district court did not abuse its discretion in admitting
evidence of the price that the Cowans paid for business goodwill when they purchased the
franchise.
Comparable California sales
[Headnote 11]
The Cowans maintain that the district court abused its discretion, resulting in substantial
prejudice to their case, when it excluded evidence of comparable California sales and
appraisals. The Cowans assert that this evidence should have been admitted because
comparable properties could not be found in the Clark County area.
In Nevada, the district court has discretion to exclude evidence pursuant to NRS
48.035(1).
19
This court has noted,
NRS 48.035 allows the district court to exclude evidence if the probative value of
the evidence is substantially outweighed by the danger of unfair prejudice or undue
delay. Even if evidence is otherwise admissible, a trial court may exclude the evidence
after striking a proper balance between the probative value of the evidence and its
prejudicial dangers.
____________________

18
See City of Elko v. Zillich, 100 Nev. 366, 369, 683 P.2d 5, 7 (1984) (noting that the trial court is allowed
wide discretion in passing on matters relating to expert testimony).

19
NRS 48.035(1) states: 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.
gers. A district court's decision whether to exclude or admit evidence will only be
reversed if it is manifestly wrong.
20

Here, the district court excluded evidence of California property sales and appraisals
because it was not probative of the real property situation in Nevada and it would be highly
confusing and misleading to this jury. The district court did not abuse its discretion in
excluding this evidence.
Exclusion of gaming value
[Headnote 12]
The Cowans allege that the district court also erred in not considering the gaming value of
the business. Their contention that they had an unrestricted gaming license to install thirteen
slot machines, even though they had not installed them, is not supported by the record.
Furthermore, lost business opportunity is not a compensable item for condemnation unless
specific statutes or constitutional provisions require such compensation.
21
We conclude that
the district court did not abuse its discretion in excluding such evidence.
Evidence of value
Additionally, the Cowans argue that the $260,000 award they received is too low and was
not in the range of testimony presented. It is true that the Cowans presented testimony that
they should be awarded between $1.6 and $1.8 million. However, the jury was free to
disbelieve that testimony, particularly since part of that testimony was based on inappropriate
factors such as lost business income and lost business opportunity. Other evidence, including
the purchase price five years earlier, suggested a lower value. Consequently, the district court
did not err in entering judgment on the jury's verdict.
22

Attorney fees and costs
The district court awarded the Cowans attorney fees in the amount of $97,650, based on
$325 per hour for the estimated number of hours.
____________________

20
Schlotfeldt v. Charter Hosp. of Las Vegas, 112 Nev. 42, 45-46, 910 P.2d 271, 273 (1996) (citation omitted)
(quoting Daly v. State, 99 Nev. 564, 567, 665 P.2d 798, 801 (1983)).

21
Winooski Hydroelectric Co. v. Five Acres of Land, 769 F.2d 79 (2d Cir. 1985) (applying Vermont law);
Orange Cty. Flood Cont. Dist. v. Sunny Crest Dairy, Inc., 143 Cal. Rptr. 803 (Ct. App. 1978).

22
K-Mart Corporation v. Washington, 109 Nev. 1180, 866 P.2d 274 (1993) (observing that damages awards
within a jury's province are generally infirm only if influenced by passion or prejudice).
number of hours. The Cowans argue that the attorney fees should have been much higher,
based on the contingency fee agreement they had with their attorneys, since the federal
Uniform Relocation Assistance and Real Property Acquisitions Policies Act
23
requires
payment of fees actually incurred in an inverse condemnation proceeding. As explained
above, however, this was not an inverse condemnation proceeding.
The State argues that the Cowans' counsel did not properly demonstrate the amount of
hours worked and that costs exceeded statutory limits. We disagree and conclude that the
district court's award of attorney fees and costs was not an abuse of discretion.
Miscellaneous allegations
The Cowans assert that the State's attorney and the State's expert witness engaged in
misconduct. These allegations are without merit because there was no contemporaneous
objection
24
and because the alleged misconduct was appropriate cross-examination.
Post-trial motions
The Cowans also assert that the district court committed numerous errors which
substantially prejudiced their case. The Cowans argue that the district court should have
granted their post-trial motion to enter a judgment notwithstanding the verdict, grant a new
trial or grant an additur. We disagree. The district court did not abuse its discretion, and the
fact that the jury verdict was less than the Cowans anticipated does not justify reversing the
jury's verdict.
CONCLUSION
We affirm the district court's judgment.
Agosti and Becker, JJ., concur.
Maupin, J., concurring in part and dissenting in part:
I concur with the majority that Stuart and Barbara Cowan were entitled to recover
goodwill as part of the jury's determination of fair market value, and that the district court
properly considered their claim for attorney fees generated in connection with the
condemnation action.
1

____________________

23
42 U.S.C. 4601-4655 (2000) (codified in Nevada by NRS 342.105).

24
Ringle v. Bruton, 120 Nev. 82, 86 P.3d 1032 (2004).

1
I also agree that the district court did not abuse its discretion in the admission of the original purchase price
of the property, and that admissibility of such evidence should remain within the district court's sound discretion,
considering whether the original purchase was remote in time, whether the original purchase was voluntary and
whether economic or physical conditions
I would, however, reverse and remand this matter for a new trial. Given the lack of local
comparative sales information available to the parties below, the district court should have
allowed the Cowans to present evidence of comparable sales from other states. In my view,
they established an adequate predicate for these proofs.
Gibbons, J., concurring in part and dissenting in part:
I concur with the majority that business owners must be compensated for the fair market
value of their business when the business cannot be relocated. However, the district court
abused its discretion by admitting into evidence the original purchase price of the business
and precluding the respondents from introducing evidence of comparable sales and appraisals
from California.
The majority acknowledges that the Cowans are entitled to the fair market value of their
business. The fair market value of the business must be calculated as of the date of
condemnation as set forth in NRS 37.120(1). The condemnation occurred in November 1999.
The original price paid for the business by the Cowans in 1994 may have some slight
historical relevance, but should have been excluded from evidence because of the danger of
unfair prejudice, confusion of the issues, and the potential to mislead the jury.
1
Subject to the
exception set forth in NRS 37.120(1), I further believe that the valuation as of the date of the
actual commencement of the trial also has a danger of creating the same unfair prejudice.
With reference to the comparable California sales and appraisals, the evidence showed that
there were insufficient comparable sales in Clark County to utilize for appraisal purposes.
Therefore, the Cowans should have the right to present sales and appraisal information
through expert opinion testimony based upon comparable California sales pursuant to NRS
50.275 and NRS 50.285. The Cowans' expert would be subject to cross-examination by the
State of Nevada. It would be up to the trier of fact to determine how much weight should be
given to the testimony of an expert appraiser who utilizes valuations from comparable
California sales.
____________________
concerning the property have changed. See Epstein v. City and County of Denver, 293 P.2d 308, 310 (Colo.
1956). That said, I also believe that district courts in this state should provide limiting instructions concerning
the probative value of such evidence. Accordingly, in my view, juries in eminent domain actions should be
advised that evidence of the original purchase price, while admissible, is not determinative of value, but is
relevant to provide orientation and context for the various opinions of the value of the property as of the date of
taking.

1
NRS 48.035(1).
____________
120 Nev. 862, 862 (2004) Nevada Comm'n on Ethics v. Ballard
NEVADA COMMISSION ON ETHICS, Appellant, v. WILLIAM BOYD BALLARD, II; J.
BUFFALO JIM BARIER; CAROLYN ANN BAUER; NANCY A. BRODIE; DOUG
BROZYNA; DANIEL COOK; DENNIS GOMEZ; CHRISTOPHER HOLLOMAN
HANSEN; DAWN PIZZORNO HANSEN; JOSHUA HANSEN; NICHOLAS
ALEXANDER HANSEN; RUTH HANSEN; JESSE DOMINIC HARRIS; MARK A.
HOLLOMAN; DAVID G. HOLMGREN; JACKIE A. HOLMGREN; DANIEL
JOSEPH; GREGORY RICHARD MILLER; DANIEL PATRICK NIGHTINGALE;
JOHN MICHAEL NIGHTINGALE; SHEILA ANN NIGHTINGALE; JUSTIN
RAMSAIER; PATRICIA SAYE; MARIANNE STEVENS; ZACHARY MICHAEL
TRIGGS; SARAH JANE NIGHTINGALE WECKERLY; and MERRITT K.
YOCHUM, Respondents.
No. 41785
December 17, 2004 102 P.3d 544
Appeal from a district court order concluding that the Nevada Commission on Ethics
lacked the power to (1) determine whether a political candidate's financial disclosure
statement was adequate, or (2) seek fines against any of the respondents who timely filed a
statement. First Judicial District Court, Carson City; William A. Maddox, Judge.
The supreme court held that: (1) Commission was authorized to determine adequacy of
financial filing and impose fine, (2) candidates' filings were inadequate, and (3) financial
disclosure statute was not unconstitutionally vague.
Reversed.
Nevada Commission on Ethics and Nancy L. Varnum, Carson City, for Appellant.
Hansen & Hansen, LLC, and Joel F. Hansen and Jonathan J. Hansen, Las Vegas, for
Respondents.
Christopher Holloman Hansen, Henderson, in Proper Person.
Brian Sandoval, Attorney General, and Joshua J. Hicks, Deputy Attorney General, Carson
City, for Amicus Curiae.
1. Statutes.
If statutory language is unambiguous, the supreme court may not look to extrinsic
sources to decipher the statute's meaning.
2. Elections.
Commission on Ethics had implicit statutory authority under the Ethics in
Government Law to determine the adequacy of a political candidates' financial
disclosure statement and the power to seek the statutorily accrued civil penalties
against candidates who failed to comply with financial filing requirements, where
the statute gave the Commission the power to recover and waive or reduce
penalties for failing to comply with financial disclosure requirements.
rily accrued civil penalties against candidates who failed to comply with financial filing
requirements, where the statute gave the Commission the power to recover and waive
or reduce penalties for failing to comply with financial disclosure requirements. NRS
281.571(1), 281.4635(2)(b), 281.471(4); NRS 281.581 (2001).
3. Elections.
Political candidates' Notices in Lieu of Statement of Financial Disclosure in which
candidates refused to provide financial information on Fifth Amendment grounds did
not amount to the required financial disclosures to run for political office. U.S. Const.
amend. 5; NRS 281.561(1).
The vagueness doctrine is based upon the principle that a statute which either forbids
or requires the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application, violates the first
essential of due process of law.
5. Elections.
Statute that required political candidate to file with the Commission on Ethics a
statement of financial disclosure that recited candidate's length of residence, sources of
income, real estate interests, names of creditors, gifts, business entity interests, and
public offices presently held, and that imposed a civil penalty on a candidate who failed
to file his statement of financial disclosure in a timely manner was not
unconstitutionally vague. NRS 281.571(1).
1

OPINION
Per Curiam:
In this appeal, we must decide whether the Nevada Commission on Ethics had the
authority to (1) determine whether respondents' Notice[s] in lieu of Statement of Financial
Disclosure and related filings satisfied NRS 281.561's requirement that a political candidate
file a financial disclosure statement;
2
and (2) seek civil penalties against respondents for
violating NRS 281.561. Because we conclude that the Commission acted within its authority,
we reverse.
BACKGROUND
Respondents were candidates for public office in Nevada's 2002 general election.
3
Under
NRS 281.561(1), each respondent was required to file a financial disclosure statement with
the Commission.
____________________

1
The Honorable Michael L. Douglas, Justice, voluntarily recused himself from participating in the decision of
this matter.

2
Unless otherwise noted, all statutory references are to the 2001 Nevada Revised Statutes, as they were in
place when the relevant events occurred. Effective January 1, 2004, amendments to NRS Chapter 281
transferred many of the Commission's duties regarding financial disclosure statements to the Secretary of State.
2003 Nev. Stat., ch. 476, 23, 26, 29, at 3020-22.

3
NRS 281.4323 defines a candidate as any person [w]ho files a declaration of candidacy, [w]ho files an
acceptance of candidacy, or [w]hose name appears on an official ballot at any election.
required to file a financial disclosure statement with the Commission.
4
NRS 281.571(1)
prescribes the statement's contents: length of residency, sources of income, real estate
holdings, names of creditors, gift information, business holdings, and the titles of any public
offices held at the time.
5
The Commission distributed Financial Disclosure Statement
forms that elicited this information.
Instead of filling out the forms and providing the information requested, each respondent
filed with the Commission a Notice in lieu of Statement of Financial Disclosure" andJor
simply wrote on the form, "I plead the 5th" or "See Notice.
____________________

4
NRS 281.561(1) provides, in relevant part:
[I]f a candidate for public office . . . is entitled to receive compensation for serving in the office in
question, he shall file with the commission . . . a statement of financial disclosure, as follows:
(a) A candidate for nomination, election or reelection to public office shall file a statement of
financial disclosure no later than the 10th day after the last day to qualify as a candidate for the office.

5
NRS 281.571(1) provides, in relevant part:
Statements of financial disclosure . . . must contain the following information concerning the candidate
for public office . . . :
(a) His length of residence in the State of Nevada and the district in which he is registered to vote.
(b) Each source of his income, or that of any member of his household who is 18 years of age or
older. No listing of individual clients, customers or patients is required, but if that is the case, a general
source such as professional services must be disclosed.
(c) A list of the specific location and particular use of real estate, other than a personal residence:
(1) In which he or a member of his household has a legal or beneficial interest;
(2) Whose fair market value is $2,500 or more; and
(3) That is located in this state or an adjacent state.
(d) The name of each creditor to whom he or a member of his household owes $5,000 or more, except
for:
(1) A debt secured by a mortgage or deed of trust of real property which is not required to be
listed pursuant to paragraph (c); and
(2) A debt for which a security interest in a motor vehicle for personal use was retained by the
seller.
(e) If the candidate for public office or public officer has received gifts in excess of an aggregate
value of $200 from a donor during the preceding taxable year, a list of all such gifts, including the
identity of the donor and value of each gift, except:
(1) A gift received from a person who is related to the candidate for public office or public
officer within the third degree of consanguinity or affinity.
(2) Ceremonial gifts received for a birthday, wedding, anniversary, holiday or other
ceremonial occasion if the donor does not have a substantial interest in the legislative, administrative or
political action of the candidate for public office or public officer.
(f) A list of each business entity with which he or a member of his household is involved as a trustee,
beneficiary of a trust, director, officer, owner in whole or in part, limited or general partner, or holder of a
class of stock or security representing 1 percent or more of the total outstanding stock or securities issued
by the business entity.
(g) A list of all public offices presently held by him for which this statement of financial disclosure is
required.
lieu of Statement of Financial Disclosure and/or simply wrote on the form, I plead the 5th
or See Notice. The notices were nearly identical to each other, asserting that the
Commission is violative of unalienable God given rights and part of a conspiracy to
establish a Civil Religion. The notices also provided various commentary upon or questions
regarding the statutorily required information. For instance, the notices stated that only gold
or silver is income, and that the signatory respondent had no income to report because he or
she had received no gold or silver. The notices also asked the Commission to define the
symbol $, to indicate whether real property under the control of the Federal government
is under the jurisdiction of the State of Nevada, and to indicate whether the form's reference
to this state is to Nevada, a state of the union or the corporate STATE OF NEVADA?
The Commission found that respondents violated NRS 281.561 and notified respondents
that they were subject to civil penalties under NRS 281.581 for failing to file financial
disclosure statements.
6
Following a hearing to consider any requests to waive or reduce the
penalties, the Commission voted to seek a judicial declaration as to whether respondents'
filings were statutorily sound.
____________________

6
NRS 281.581 provides, in relevant part:
1. A candidate for public office . . . who fails to file his statement of financial disclosure in a timely
manner pursuant to NRS 281.561 is subject to a civil penalty and payment of court costs and attorney's
fees. Except as otherwise provided in subsection 3, the amount of the civil penalty is:
(a) If the statement is filed not more than 7 days late, $25 for each day the statement is late.
(b) If the statement is filed more than 7 days late but not more than 15 days late, $175 for the first 7
days, plus $50 for each additional day the statement is late.
(c) If the statement is filed more than 15 days late, $575 for the first 15 days, plus $100 for each
additional day the statement is late.
2. The commission may, for good cause shown, waive or reduce the civil penalty.
3. The civil penalty imposed for a violation of this section must not exceed the annual compensation
for the office for which the statement was filed.
4. The civil penalty must be recovered in a civil action brought in the name of the State of Nevada by
the commission in a court of competent jurisdiction and deposited by the commission in the account for
credit to the state general fund in the bank designated by the state treasurer.
5. If the commission waives a civil penalty pursuant to subsection 2, the commission shall:
(a) Create a record which sets forth that the civil penalty has been waived and describes the
circumstances that constitute the good cause shown; and
(b) Ensure that the record created pursuant to paragraph (a) is available for review by the general
public.
Ultimately, the Commission petitioned the district court under NRS 43.100 to examine
and determine the Commission's authority to decide whether respondents had filed financial
disclosure statements and to impose civil penalties against respondents. Respondents opposed
the petition. The district court concluded that the Commission's authority was limited to
reviewing the filings for timeliness, and that any authority to determine the adequacy of a
filing would need to be granted by the Nevada Legislature. Consequently, the district court
ruled that the Commission could not fine any respondent who timely filed a financial
disclosure document. The Commission appealed.
DISCUSSION
[Headnote 1]
As this case turns on the interpretation of Nevada's Ethics in Government Law,
7
a purely
legal question, we review the district court's order de novo.
8
We interpret the statutes that
comprise the ethics law according to their plain meaning and in the context of the entire
statutory scheme, consistent with the spirit of the law.
9
If statutory language is unambiguous,
we may not look to extrinsic sources to decipher the statute's meaning.
10

[Headnote 2]
Subsection (1) of NRS 281.581 states that [a] candidate for public office . . . who fails to
file his statement of financial disclosure in a timely manner . . . is subject to a civil penalty
ranging from $25 up to the amount of the political office's annual compensation. Subsections
(2) and (4) authorize the Commission to waive or reduce the penalty for good cause and
require the Commission to recover any penalty in a civil action. If the Commission has the
power to recover and waive or reduce penalties, then axiomatically, the Commission must
also have the power to determine whether a candidate has filed a financial disclosure
statement. And until the Commission reviews a candidate's filing to see that the document
contains the information mandated by NRS 281.571(1), the Commission cannot discern
whether the candidate has filed a financial disclosure statement. Consequently, the
Commission's express statutory power to recover and waive or reduce penalties necessarily
depends on the implicit power to determine whether a candidate's filing qualifies as a
financial disclosure statement.
____________________

7
See NRS 281.411 to 281.581.

8
Construction Indus. v. Chalue, 119 Nev. 348, 351, 74 P.3d 595, 597 (2003).

9
See Edgington v. Edgington, 119 Nev. 577, 582-83, 80 P.3d 1282, 1286 (2003); 2A Norman J. Singer,
Statutes and Statutory Construction 162-65 (6th rev. ed. 2000).

10
Rosequist v. Int'l Ass'n of Firefighters, 118 Nev. 444, 448, 49 P.3d 651, 653 (2002).
Our conclusion is supported by other provisions of the Ethics in Government Law. For
instance, NRS 281.4635(2)(b) recognizes that one of the duties of the Commission's
executive director is [t]he review of statements of financial disclosure. If the Legislature
had intended to limit the scope of review to the simple task of ascertaining timeliness, the
Legislature could have said as much, and would not have needed to compel the director to
employ such persons as are necessary to carry out any of his duties.
11
Further, NRS
281.471(4) requires the Commission to [i]nform the Attorney General or district attorney of
all cases of noncompliance with the requirements of [NRS Chapter 281]. The Commission
cannot determine whether a candidate has complied with NRS 281.561(1)'s requirement of
filing a financial disclosure statement unless the Commission reviews the contents of the
candidate's filing. And if the Legislature had intended to limit the Commission's review to
timeliness, the Legislature would have used a more restrictive phrase than all cases of
noncompliance. Finally, the Commission's power to review a candidate's filing to determine
whether the required disclosures are present is consistent with the policy rationale for the
Ethics in Government Law, which is to promote the integrity and impartiality of public
officers through disclosure of potential conflicts of interest.
12

[Headnote 3]
Thus, we conclude that the Commission was vested by statute with the power to determine
the adequacy of a candidate's financial disclosure statement.
13
We also conclude that the
Commission had the power to seek the statutorily-accrued civil penalties against respondents.
14
Respondents' Notices in Lieu of Statement of Financial Disclosure and related filings were
so devoid of the necessary information that they could not be considered financial disclosure
statements.
15
However, because the Commission did not institute a civil action to recover
the penalties while it had the statutory authority to do so, any such action now falls to the
Secretary of State.
____________________

11
NRS 281.4635(2).

12
NRS 281.421.

13
We are not persuaded by respondents' argument that NRS 281.465 limits the Commission's review power.
That statute simply states that the Commission has jurisdiction to investigate alleged violations of NRS
Chapter 281 by present and former public officer[s] or employee[s]. NRS 281.465(1)(a). The Commission's
jurisdiction to investigate is not at issue in this case, as the Commission did not investigate respondents. Rather,
the Commission simply reviewed respondents' filings for compliance with statutory requirements. We note, too,
that the Commission has not claimed the power to verify the accuracy of submitted information.

14
NRS 281.581.

15
See NRS 281.571(1); cf. Beatty v. C.I.R., 667 F.2d 501, 502 (5th Cir.), clarified on reh'g, 676 F.2d 150
(5th Cir. 1982) (holding that petitioner's tax return, which answered questions with Object Self Incrimination
and included a memo explaining the purported legal grounds for objection, did not constitute a tax return for
purposes of the Internal Revenue Code); United
action to recover the penalties while it had the statutory authority to do so, any such action
now falls to the Secretary of State.
16

Respondents contend that they cannot be penalized because the disclosure statutes are
unconstitutional. Specifically, respondents argue that the statutes are vague, have a chilling
effect on respondents' rights of religion, speech and assembly, and violate the Fourth and
Fifth Amendments to the United States Constitution. Respondents' arguments lack merit.
[Headnotes 4, 5]
First, [t]he vagueness doctrine is based upon the principle that a statute which either
forbids or requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application, violates the first
essential of due process of law.'
17
There is nothing vague about statutes that require a
candidate for public office to file with the Commission . . . a statement of financial
disclosure that recites length of residence, source[s] of income, real estate [interests],
name[s] of . . . creditor[s], gifts, business entity [interests], and public offices
presently held, and that impose a civil penalty on [a] candidate . . . who fails to file his
statement of financial disclosure in a timely manner.
18

Second, respondents offered no evidence below to show that the financial disclosure
statutes had a chilling effect on the exercise of any First Amendment rights.
19
Consequently,
we do not reach the issue.
20

____________________
States v. Verkuilen, 690 F.2d 648, 654 (7th Cir. 1982) (concluding that defendant's filing of an income tax form
containing the responses Object: Self-incrimination or None did not constitute a tax return under the Internal
Revenue Code).

16
See supra note 2. We need not reach respondents' argument that the Commission's financial disclosure
statement forms unconstitutionally required the signatory to affirm rather than swear to the accuracy and
completeness of supplied information. Respondents are not subject to any penalties for omitting an
affirmancethey are subject to penalties for failing to file financial disclosure statements.

17
Matter of T.R., 119 Nev. 646, 652, 80 P.3d 1276, 1280 (2003) (quoting Connally v. General Const. Co.,
269 U.S. 385, 391 (1926)).

18
NRS 281.561; NRS 281.571; NRS 281.581; see also Dunphy v. Sheehan, 92 Nev. 259, 263-64, 549 P.2d
332, 335 (1976) (declaring the prior Ethics in Government Law unconstitutionally vague for requiring, under
penalty of perjury, disclosures of certain interests located within the jurisdiction of the officer's public agency'
(quoting former NRS 281.650(3))).

19
The First Amendment states: Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances. U.S. Const. amend. I.

20
See Regency Sav. Bank v. Chavis, 776 N.E.2d 876, 880-81 (Ill. App. Ct. 2002); Williams v. Casualty
Reciprocal Exchange, 929 S.W.2d 802, 810 (Mo. Ct. App. 1996).
Finally, the financial disclosure statutes do not implicate Fourth and Fifth Amendment
concerns.
21
Respondents are required to file financial disclosure statements only if they run
for public office, a purely voluntary act.
22

CONCLUSION
Because the Commission had the statutory authority to determine whether respondents'
filings qualified as financial disclosure statements and to seek civil penalties against
respondents, we reverse the district court's order.
23

____________
120 Nev. 869, 869 (2004) Bergna v. State
PETER MATTHEW BERGNA, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 40434
December 20, 2004 102 P.3d 549
Motion for bail pending appeal of a judgment of conviction, upon jury verdict, of
first-degree murder. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
The supreme court held that: (1) defendant's conviction for murder did not preclude
application for bail pending appeal as matter of law; (2) automatic remand to trial court to
make findings on motion for bail pending appeal was not warranted for supreme court to
conduct independent review of motion, overruling In re Austin, 86 Nev. 798, 477 P.2d 873
(1970), and Lane v. State, 98 Nev. 458, 652 P.2d 1174 (1982); and (3) defendant was not
entitled to bail pending appeal.
Motion denied.
[Rehearing denied March 24, 2005]
Richard F. Cornell, Reno, for Appellant.
____________________

21
The Fourth Amendment prohibits unreasonable governmental searches and seizures. U.S. Const. amend.
IV. The Fifth Amendment states, among other things, that no person shall be compelled in any criminal case to
be a witness against himself. U.S. Const. amend. V.

22
See Bullock v. Carter, 405 U.S. 134, 142-43 (1972); Barry v. City of New York, 712 F.2d 1554, 1564 (2d
Cir. 1983) (doubting that the Fourth Amendment applies to requirements that candidates for public office file
financial disclosure statements); Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 189-90 (2004)
(stating that the Fifth Amendment prohibits only compelled and incriminating testimony, and only protects
against disclosures that the witness reasonably believes might be used in a criminal prosecution or could lead to
other evidence that might be used in such a prosecution).

23
Respondents' request for sanctions is denied.
and David W. Clifton, Chief Deputy District Attorney, Washoe County, for Respondent.
1. Bail.
Nothing in statutory scheme governing bail precluded trial court's discretion to grant
application for bail pending appeal of defendant convicted of first-degree murder. NRS
178.484 et seq.
2. Bail.
There is no constitutional right to bail following conviction and pending appeal.
3. Statutes.
In interpreting legislative intent, the court generally looks first to the plain meaning
of a statute.
4. Statutes.
Where legislative intent can be clearly discerned, it is the duty of the court to
construe the provision whenever possible to give effect, rather than to nullify, that
intent.
5. Statutes.
Statutes within a scheme and provisions within a statute must be interpreted
harmoniously with one another in accordance with the general purpose of those statutes
and should not be read to produce unreasonable or absurd results.
6. Statutes.
The court liberally construes inconsistencies or ambiguities in criminal provisions in
the defendant's favor.
7. Bail.
The strength and quality of the evidence and other indicia of guilt, as well as the
nature and circumstances of the offense, are factors quite properly considered in any
evaluation of whether it appears that an appeal is frivolous or taken for delay, as
grounds for denying bail pending appeal, or of whether the applicant's release on bail
would pose a danger to the community or a risk of flight. NRS 178.488(1).
8. Bail.
Evidence relating to an applicant's commission of a violent and serious felony and
the manner in which it was committed is highly relevant to the danger that might be
posed by the applicant's release, for the purposes of a motion for bail pending appeal.
NRS 178.488(1).
9. Bail.
The nature and quality of alleged legal errors at trial may raise serious concerns
respecting the validity of a conviction and may weigh heavily in favor granting an
application for bail pending review. NRS 178.488(1).
10. Criminal Law.
Trial court's failure to make written findings as to whether defendant convicted of
first-degree murder posed risk of flight or danger to community in support of order
denying motion for bail pending appeal did not warrant automatic remand for it to make
such findings in order for supreme court to conduct independent review of similar
motion presented to it if the record, as provided by the parties on appeal, provided
adequate basis for the court to independently resolve matter; overruling In re Austin, 86
Nev. 798, 477 P.2d 873 (1970), and Lane v. State, 98 Nev. 458, 652 P.2d 1174 (1982).
NRS 178.488(1).
11. Bail.
In a motion to the supreme court for bail pending appeal, the burden shall be on the
applicant to provide the court with those parts of the record of the proceedings below
that are essential to the court's thorough understanding of the application. In opposing
the motion, the State may also provide the court with any additional, appropriate parts
of the transcript or record below that support the State's position.
12. Bail.
The supreme court will not decline to review a motion for bail pending appeal solely
because of the absence of specific findings by the trial court if the record before it
otherwise provides an adequate basis for the court to independently resolve the matter.
13. Bail.
Defendant convicted of first-degree murder was not entitled to bail pending appeal;
defendant failed to show that bail would not pose danger to community or risk of flight,
in view of evidence at trial indicating that defendant planned and committed
particularly violent, premeditated murder under circumstances designed to escape
detection, and there was no showing that alleged errors at trial eroded or undermined
the validity of conviction and sentence. NRS 178.488(1).
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, upon a jury verdict, of first-degree
murder. Appellant Peter Matthew Bergna has filed a motion for bail pending appeal in this
court pursuant to NRS 178.488. The State opposes the motion. In resolving this motion, we
address as a matter of first impression the State's contention that a defendant convicted of
first-degree murder is statutorily precluded from receiving bail pending appeal under any
circumstances. We have also revisited this court's decisional law defining standards and
procedures applicable to motions for bail pending appeal. Although we reject the State's
contention, we nonetheless conclude that bail pending appeal is not warranted under the
revised standards we adopt today.
Appellant Bergna was tried twice before a jury. After the first trial, the jury was unable to
agree on a verdict, and the district court declared a mistrial. Bergna was released from
custody on bail under certain specified conditions prior to his second trial. Following the
second trial, the jury found Bergna guilty of first-degree murder. He was sentenced to serve a
term of life in the Nevada State Prison with the possibility of parole. After perfecting an
appeal to this court, Bergna filed a motion in the district court seeking bail pending appeal.
The State opposed the motion, and the district court conducted a lengthy hearing, where
counsel for Bergna and the State presented extensive argument.
a lengthy hearing, where counsel for Bergna and the State presented extensive argument.
Following the hearing, the district court entered a written order stating simply:
The Court has read and considered the legal memoranda and exhibits submitted in
support of and in opposition to Defendant's Motion for Bail Pending Appeal, and
considered the arguments presented by both parties at the hearing held on this matter . .
. .
Accordingly, the motion is DENIED.
Thereafter, Bergna filed the instant motion for bail pending appeal with this court. As noted,
the State opposes the motion.
[Headnote 1]
As a threshold matter, we first address the State's contention that, under this state's
statutory scheme, Nevada courts are without jurisdiction to grant bail as a matter of law once
proof is evident and presumption [is] great that [a defendant] has committed murder of the
first degree.
[Headnote 2]
As this court stated in In re Austin, There is little question that there is no constitutional
right to bail following conviction and pending appeal . . . .
1
The State argues that a
defendant convicted of first-degree murder is not only without any constitutional entitlement
to bail pending appeal, but is statutorily precluded from receiving bail under any
circumstances. The State's contention is primarily premised upon its interpretation of NRS
178.484(4), which provides that, prior to trial, a person charged with first-degree murder may
be released on bail:
unless the proof is evident and the presumption great by any competent court or
magistrate authorized by law to do so in the exercise of discretion, giving due weight to
the evidence and to the nature and circumstances of the offense.
More specifically, the State asserts that where a defendant has been tried and convicted by
a jury of first-degree murder, the issue of whether the proof is evident and the presumption is
great has been affirmatively resolved by a jury beyond a reasonable doubt. Therefore, the
State maintains, in enacting NRS 178.484(4), the Legislature intended that the courts of this
state are without jurisdiction to grant an application for release on bail pending appeal
following the applicant's conviction of first-degree murder. We disagree.
____________________

1
86 Nev. 798, 801, 477 P.2d 873, 875 (1970) (citing Polito v. State, 70 Nev. 525, 275 P.2d 884 (1954); State
v. McFarlin, 41 Nev. 105, 167 P. 1011 (1917)).
[Headnotes 3-6]
In interpreting legislative intent, this court generally looks first to the plain meaning of a
statute.
2
Where legislative intent can be clearly discerned, it is the duty of this court to
construe the provision whenever possible to give effect, rather than to nullify, that intent.
3
Statutes within a scheme and provisions within a statute must be interpreted harmoniously
with one another in accordance with the general purpose of those statutes and should not be
read to produce unreasonable or absurd results.
4
As a general rule, this court also liberally
construes inconsistencies or ambiguities in criminal provisions in the defendant's favor.
5

NRS Chapter 178 is replete with clear and unambiguous references to the discretionary
power of the courts to grant bail pending appeal or other review following a conviction. For
example, NRS 178.488(1) quite plainly states: Bail may be allowed pending appeal or
certiorari unless it appears the appeal is frivolous or taken for delay. NRS 178.488(3) further
empowers district courts, district judges, this court, and any of the justices of this court to
grant bail pending appeal or certiorari. The language of NRS 178.4875(1), which specifies
where subsequent proceedings for the forfeiture of any bail pending appeal or other review of
a conviction must take place, also illustrates that the Legislature contemplated that an
applicant could be granted release on bail pending appeal or other post-conviction review.
6
Although NRS 178.4871 and 178.4873 specifically address conditions under which a
petitioner pursuing a post-conviction writ of habeas corpus may be released on bail, they also
clearly evince a legislative intent to permit bail following a conviction. Reading these
provisions together, we discern no legislative intent to deprive the courts of this state of
jurisdiction to release a defendant convicted of first-degree murder on bail pending appeal. To
the contrary, to adopt the interpretation proposed by the State, would nullify the numerous,
unambiguous expressions of legislative intent within the provisions cited above expressly
contemplating bail pending appeal.
We also reject the State's contention that reading the plain language of NRS Chapter 178
to permit bail pending appeal creates a bizarre incongruity by requiring a standard for
release on bail after conviction that is extraordinarily less onerous than the standard to be
applied before conviction.
____________________

2
Washington v. State, 117 Nev. 735, 738-39, 30 P.3d 1134, 1136 (2001).

3
See Sheriff v. Luqman, 101 Nev. 149, 155, 697 P.2d 107, 111 (1985).

4
Washington, 117 Nev. at 739, 30 P.3d at 1136.

5
Id.

6
If the court admits a petitioner to bail pending review of his petition or pending appeal, any subsequent
proceeding for forfeiture of the bail must take place in the proceeding on the petition.
standard to be applied before conviction. The State apparently contends that, while bail must
be denied prior to trial where the proof of guilt is evident and the presumption is great, the
strength of the proof and presumption of guilt may not be considered after conviction in
evaluating an applicant's request for bail pending appeal. Our reading of NRS Chapter 178,
however, does not preclude a court empowered to consider a request for bail pending appeal
from evaluating the strength and quality of the evidence and other indicia of guilt, as well as
the nature and circumstances of the offense, in resolving an application for bail pending
appeal.
[Headnotes 7-9]
In our view, such factors are quite properly considered in any evaluation of whether, under
NRS 178.488(1), it appears that the appeal is frivolous or taken for delay, or of whether the
applicant's release on bail would pose a danger to the community or a risk of flight.
7
The
mere fact of a conviction does not end the court's authority to evaluate the quality of the legal
and factual underpinnings of a conviction in considering a motion for bail or to give due
weight to the evidence and to the nature and circumstances of the offense.
8
While the
evidence in support of the conviction in one case may be overwhelming, in another it may be
quite tenuous. As in the instant case, evidence relating to an applicant's commission of a
violent and serious felony and the manner in which it was committed is highly relevant to the
danger that might be posed by the applicant's release. Still in other circumstances, the nature
and quality of alleged legal errors at trial may raise serious concerns respecting the validity of
a conviction and may weigh heavily in favor granting an application for bail pending review.
In sum, we conclude that NRS 178.484(4) does not conflict, but rather can be read in
harmony, with NRS 178.488(1), as well as with the other factors relevant to the consideration
of a motion for bail pending appeal of a conviction of first-degree murder.
[Headnote 10]
Having concluded that Nevada courts are not statutorily precluded from granting an
application for bail pending appeal of a conviction of first-degree murder, we next consider
Bergna's claims that his admission to bail pending appeal is warranted under the standards
and procedures governing bail pending appeal as set forth in In re Austin
9
and Lane v. State.
10
As detailed below, the procedural posture of the instant application, and of other recent
such applications pursued in this court, has prompted us to revisit and revise the
standards and procedures articulated in Austin and Lane.
____________________

7
See Lane v. State, 98 Nev. 458, 652 P.2d 1174 (1982); In re Austin, 86 Nev. 798, 477 P.2d 873 (1970).

8
NRS 178.484(4).

9
86 Nev. 798, 477 P.2d 873.

10
98 Nev. 458, 652 P.2d 1174.
such applications pursued in this court, has prompted us to revisit and revise the standards
and procedures articulated in Austin and Lane. Under these revised standards, we conclude
that Bergna has failed to demonstrate that bail pending appeal is warranted under the facts
and circumstances of his case.
In Austin, this court announced the general rule that has governed our review of
applications for bail pending appeal for over three decades:
When presented with an application [for bail pending appeal], neither the court nor
any of its justices should conduct a separate fact-finding proceeding. Seldom will the
trial transcript or record be available to the court or its members to aid in passing on
such a bail application here. Accordingly, we must make our independent judgment on
a review of the reasons relied upon by the lower court.
11

In Lane, we summarized the Austin rule as requiring a district court to set forth its reasons
for denying bail in order to enable this court to resolve a subsequent motion for bail pending
appeal.
12
We in fact remanded the Lane matter to the district court for a hearing and
additional findings.
13

Lane and Austin also provided guidance on those factors relevant to the district court's
resolution of a motion for bail pending appeal:
Bail pending appeal may be denied if an appellant's release poses a risk of flight or
danger to the community, or if the appeal appears frivolous or taken for delay.
14

Austin quoted with approval the holding in Weaver v. United States,
15
If [the judge] views
appellant's release as posing a risk of danger or flight, he should point to those factors in the
record which foreshadow such a possibility.'
16

The district court's order denying bail in the instant case does not comply with these
directives. The order sets forth no specific findings or reasons as to why the district court
rejected Bergna's application. Moreover, the transcript of the bail hearing sheds little light on
the district court's reasoning and reflects only that the district court did not consider Bergna's
appeal to be frivolous. Thus, the record before us does not disclose the district court's findings
as to whether Bergna's release would pose a risk of flight or danger to the community.
____________________

11
86 Nev. at 802, 477 P.2d at 876.

12
98 Nev. at 459, 652 P.2d at 1174.

13
Id. at 460, 652 P.2d at 1175.

14
Id. at 459-60, 652 P.2d at 1174-75 (citing Austin, 86 Nev. at 801-02, 477 P.2d at 875-76; NRS
178.488(1)).

15
405 F.2d 353 (D.C. Cir. 1968).

16
86 Nev. at 801, 477 P.2d at 875-76 (quoting Weaver, 405 F.2d at 354).
or danger to the community. If we were to follow the exacting procedure employed in Lane,
we might well have remanded the question of bail back to the district court under these
circumstances for the limited purpose of conducting a hearing at which the court shall
inquire into whether bail pending appeal should be denied because of a risk of flight or a
danger to the community.
17
We conclude, however, that given the realities of present day
appellate practice, such a procedure is no longer warranted.
While many of the realities of appellate practice remain the same today as at the time
Austin and Lane were decided, there are distinctions that have contributed to our decision to
revisit the standards and procedures established in those decisions. For example, in most
criminal cases, much of the record of the proceedings below, including computer-generated
transcripts, is available to counsel and this court relatively soon after an appeal is filed.
Additionally, since 1996, this court's rules have not required the district court clerks to engage
in the cumbersome process of compiling, indexing, and transmitting records on appeal in
most cases; rather, we have placed the burden on counsel for the parties to provide this court
with an appropriate appellate appendix.
18
Thus, as the instant case illustrates,
19
this court
need no longer be concerned to the same degree as were the courts in Austin and Lane with
the unavailability of trial or other relevant transcripts or parts of the record to assist the court
in reviewing applications for bail pending appeal.
[Headnote 11]
Therefore, to the extent that Austin and Lane suggest that this court will automatically or
mechanically remand a bail matter to the district court for a hearing and more specific
findings where the district court fails to specify adequate reasons for its decision, we hereby
overrule those decisions.
20
Instead, we conclude that the burden shall be on the applicant to
provide this court with those parts of the record of the proceedings below that are essential to
this court's thorough understanding of the application.
21
In opposing the motion, the State
may also provide this court with any additional, appropriate parts of the transcript or
record below that support the State's position.
____________________

17
98 Nev. at 460, 652 P.2d at 1175.

18
See NRAP 10(b); see also NRAP 3C (setting forth rules of procedure for fast track criminal appeals).

19
Bergna's motion for bail in this case was filed in this court well after the opening brief and appendix.

20
Where the record and circumstances warrant such a remand, however, this court will not hesitate to utilize
such a procedure. We also note that a hearing in the court below on a motion for bail will rarely be required. The
trial judge, having presided over the proceedings and heard the evidence, will generally be in a position to
resolve the motion without conducting a separate hearing.

21
Pursuant to NRS 177.145(2), such an application in this court must be upon notice to the opposing party
and shall show that [a]pplication has been made [to the district court] and denied, with the reasons given for
the denial.
ing the motion, the State may also provide this court with any additional, appropriate parts of
the transcript or record below that support the State's position.
[Headnote 12]
We do not mean to suggest that a district judge should feel free to ignore the obligation to
provide a reasoned and thorough explanation of findings supporting the denial of a motion for
bail pending appeal. We encourage the district courts to set forth such findings either in a
written order or on the record. The judge who presided over the trial and has heard the
evidence presented at trial is in a unique position to evaluate the factors relevant to a request
for bail pending appeal, and this court will give great respect to the trial judge's assessment of
those factors based upon his or her knowledge of the evidence, the legal issues, and the
applicant. We hold only that this court will not decline to review a motion for bail pending
appeal solely because of the absence of specific findings by the trial court if the record before
us otherwise provides an adequate basis for this court to independently resolve the matter.
In exercising our independent judgment on such matters, this court will be guided by the
factors enumerated in Austin and Lane, i.e., whether the appeal is frivolous or taken for delay
and whether the applicant's release may pose a risk of flight or danger to the community. We
emphasize that an applicant who has been convicted of a violent, serious offense and who
faces a substantial term of imprisonment will shoulder a heavy burden to demonstrate, not
only that the appeal is not frivolous, nor taken for delay, but also that his or her release will
not pose a risk of flight or danger to the community. As noted in our discussion above of the
State's contention respecting NRS 178.484(4), the nature and quality of the evidence adduced
at trial and the circumstances of the offense are highly relevant considerations in evaluating
these factors. In addition, as Austin explains, evaluation of these concerns may encompass a
wide range of information, including the applicant's prior criminal record, attempted escapes
from confinement, community associations, and employment status.
22

We disavow Austin, however, to the extent that it approves and adopts the procedural
ruling of Chief Justice Warren in Leigh v. United States
23
that bail pending appeal is to be
denied only in cases in which, from substantial evidence, it seems clear that the right to bail
may be abused or the community may be threatened by the applicant's release.
____________________

22
86 Nev. at 802, 477 P.2d at 876 (citing Ex Parte Wheeler, 81 Nev. 495, 500, 406 P.2d 713, 716 (1965)).
Additionally, we note that NRS 178.4853 provides a list of similar factors that the court should consider, at a
minimum, in deciding whether to release an applicant prior to trial without bail. These factors are nonetheless
relevant to the resolution of a motion for bail pending appeal.

23
82 S. Ct. 994 (1962).
by the applicant's release.'
24
Leigh interpreted the 1956 version of Federal Rule of Criminal
Procedure 46(a)(2). That version of the federal rule is no longer in effect, and the quoted
language from Leigh has been substantially undermined by subsequent amendments to the
rule and by congressional enactments. Federal Rule of Criminal Procedure 46(c) presently
provides: The provisions of 18 U.S.C. 3143 govern release pending sentencing or appeal.
The burden of establishing that the defendant will not flee or pose a danger to any other
person or to the community rests with the defendant. (Emphasis added.) As Austin noted,
this court is at liberty to follow Leigh or interpret the Nevada statutes in any other manner we
deem reasonable. In light of the subsequent evolution of the federal law and our perception of
the prevailing practice of Nevada courts, we no longer deem the Leigh standard to be
reasonable.
[Headnote 13]
Applying the standards set forth in this opinion to the instant case, in light of the
seriousness of the violent offense of which he was convicted and the life sentence imposed
below, we conclude that Bergna has failed to fulfill his heavy burden of demonstrating that
his release on bail pending appeal will pose no danger to the community or risk of flight.
Although we agree that the appeal is not frivolous, Bergna has failed to sufficiently
undermine the quality and strength of the evidence presented at trial that he planned and
committed a particularly violent, premeditated murder under circumstances designed to
escape detection. Nor has he alleged or established any errors at trial that so erode or
undermine the validity of the conviction and sentence that we can confidently conclude that
his release on bail poses no danger of further violence or risk of flight. Under these
circumstances, having exercised our independent judgment based upon our review of the
record provided, we conclude that Bergna has not established that his release on bail is
warranted. Accordingly, we deny the motion.
____________________

24
86 Nev. at 801, 477 P.2d at 875 (quoting Leigh, 82 S. Ct. at 996).
____________
120 Nev. 879, 879 (2004) Butler v. State
JOHN EDWARD BUTLER, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 41283
December 20, 2004 102 P.3d 71
Appeal from a judgment of conviction of two counts of first-degree murder with the use of
a deadly weapon and sentences of death. Eighth Judicial District Court, Clark County;
Michael L. Douglas, Judge.
The supreme court, Shearing, C. J., held that: (1) evidence of defendant's gang affiliation
was admissible under statute governing admission of evidence of other crimes, wrongs, or
acts; (2) state's cross-examination of witness regarding her prior conviction for attempted
forgery was proper; (3) in a matter of first impression, trial court's denial of defendant's
request to allow both of his counsel to individually address jury during penalty phase was
erroneous; (4) erroneous instruction regarding limited use of other matter evidence, given
during penalty phase, was not harmless; (5) prosecutor's comments during closing argument
in penalty phase, referring to defense expert witness as that high falootin' expert, and his
testimony as an infomercial, were improper; (6) prosecutor's comments during closing
argument in penalty phase, twice remarking about how much money defense experts were
being paid for their testimony, were improper; and (7) cumulative impact of errors committed
during penalty phase deprived defendant of fair hearing and required remand for new penalty
phase hearing.
Gibbons, J., dissented in part.
David M. Schieck, Special Public Defender, and Lee Elizabeth McMahon, Deputy Special
Public Defender, Clark County; Sciscento & Montgomery and Joseph S. Sciscento, Las
Christopher J. Laurent and James Tufteland, Chief Deputy District Attorneys, Clark County,
for Respondent.
1. Criminal Law.
The decision to admit gang-affiliation evidence rests within the discretion of the trial
court.
2. Criminal Law.
Prior to admission of gang-related evidence, the trial court must determine whether
(1) the evidence is relevant, (2) it is proven by clear and convincing evidence, and {3)
its probative value is not substantially outweighed by the danger of unfair
prejudice.
convincing evidence, and (3) its probative value is not substantially outweighed by the
danger of unfair prejudice.
3. Criminal Law.
Evidence of capital murder defendant's gang affiliation was admissible under statute
governing admission of evidence of other crimes, wrongs, or acts; evidence was
relevant to show defendant's motive, it provided common thread that connected story of
events, its probative value outweighed its prejudicial effect, and trial court gave
appropriate cautionary instruction to jury on use of evidence before deliberations. NRS
48.035(3), 48.045(2).
4. Criminal Law.
Capital murder defendant's gang affiliation constituted an act, for purposes of
determining whether evidence of his gang affiliation was admissible under statute
governing admission of evidence of other crimes, wrongs, or acts, and under statute
providing that evidence of another act may be admissible if act is so closely related to
crime charged that ordinary witness cannot describe crime charged without referring to
the other act or crime; definition of act as written in both statutes was broad enough to
encompass gang affiliation as a continuous act. NRS 48.035(3), 48.045(2).
5. Witnesses.
Statute governing evidence of character and conduct of a witness permits
impeaching a witness on cross-examination with questions about specific acts as long
as the impeachment pertains to truthfulness or untruthfulness, but, in doing so, the State
may generally not impeach a witness on a collateral matter or by introducing extrinsic
evidence; if the witness denies a specific act on cross-examination, the State may not
introduce extrinsic evidence to the contrary. NRS 50.085(3).
6. Witnesses.
State's cross-examination of witness, which consisted of asking witness questions
relating to her prior conviction for attempted forgery, was proper, under statute
governing evidence of character and conduct of a witness, in capital murder
prosecution; attempted forgery was crime involving dishonesty and conduct that went
to witness's veracity, and there was no indication that State attempted to impeach
witness by introducing extrinsic evidence. NRS 50.085(3).
7. Criminal Law.
A trial court's discretion to waive notice requirements under statute requiring the
State to give the defense notice of any known rebuttal alibi witnesses not less than ten
days after receipt of defendant's witnesses should be exercised whenever good cause
appears, and a good cause finding will be upheld on appeal absent a manifest abuse of
that discretion. NRS 174.233.
8. Criminal Law.
Trial court did not abuse its discretion in finding that there was good cause to waive
notice requirements of statute requiring State to give defense notice of any known
rebuttal alibi witnesses not less than ten days after receipt of defendant's witnesses, after
State sought to have rebuttal alibi witness testify; State had previously given capital
murder defendant at least some verbal notice of its intent to call rebuttal alibi witness,
witness's testimony went to fact that was important for jury to consider in the interest of
truth, and defendant failed to specify how he could have impeached witness's testimony
even if he had been given timely notice, and thus failed to show prejudice. NRS
174.233.
9. Criminal Law.
The interpretation of a statute is a question of law subject to de novo review by the
supreme court.
10. Statutes.
Statutes should be given their plain meaning and must be construed as a whole and
not be read in a way that would render words or phrases superfluous or make a
provision nugatory.
11. Statutes.
Every word, phrase, and provision of a statute is presumed to have meaning, and it is
only when the plain meaning of a statute is ambiguous that the supreme court will look
beyond the language to consider its meaning in light of its spirit, subject matter, and
public policy.
Trial court's denial of capital murder defendant's request to allow both of his counsel
to individually address jury during penalty phase was erroneous, as statute governing
number of counsel who may argue a case extended to defendant option of having both
of his counsel address jury. NRS 175.151.
13. Statutes.
The term may, as it is used in legislative enactments, is often construed as a
permissive grant of authority.
Instruction regarding limited use of other matter evidence, given during penalty
phase of capital murder prosecution, was erroneous, as it did not include clear
admonition that other matter evidence was not to be used in determining existence or
weight of aggravating circumstances; trial court gave admonition, but then contradicted
it, which made instruction confusing and inadequate. NRS 175.552(3).
Erroneous instruction regarding limited use of other matter evidence, given during
penalty phase of capital murder prosecution, was not harmless; due to erroneous
instruction, it was likely that jurors considered all evidence presented against defendant
in deciding whether mitigating circumstances outweighed aggravating circumstance,
instead of discriminating between evidence relevant to rebut defendant's alleged
mitigators and other evidence not relevant to that issue, and, thus, there was strong
likelihood that defendant had been prejudiced by this instruction.
16. Criminal Law.
To determine if prejudicial prosecutorial misconduct occurred, the relevant inquiry is
whether a prosecutor's statements so infected the proceedings with unfairness as to
make the results a denial of due process. U.S. Const. amend. 14.
17. Criminal Law.
A criminal conviction is not to be lightly overturned on the basis of a prosecutor's
comments standing alone, and the alleged improper remarks must be read in context.
Prosecutor's comments during closing argument in penalty phase of capital murder
prosecution regarding victims' alleged screams and victim's alleged begging before
being shot were improper with respect to comments about victims' alleged screams;
there was evidence in record regarding victim's begging before being shot, but there
was no evidence as to sounds that victims might have made before being killed, and
thus it was improper for State to frame reference to screams as fact.
as to sounds that victims might have made before being killed, and thus it was improper
for State to frame reference to screams as fact.
Any error with respect to prosecutor's remarks during closing argument in penalty
phase of capital murder prosecution regarding victims' alleged screams and victim's
alleged begging before being shot was harmless at most; inferences State asked jurors
to draw were reasonable under facts of case.
20. Criminal Law.
It is improper to argue facts or inferences not supported by the evidence.
21. Criminal Law.
Disparaging remarks directed toward defense counsel have absolutely no place in a
courtroom, and clearly constitute misconduct; it is not only improper to disparage
defense counsel personally, but also to disparage legitimate defense tactics.
prosecution, implying that defense counsel were deceptive in presenting their
arguments, constituted a form of disparagement of defense counsel and were improper;
defendant not only had legal right, but his counsel had ethical duty, to present all
evidence in mitigation of a death sentence. NRS 200.035(7).
prosecution, referring to defense expert witness as that high falootin' expert, and his
testimony as an infomercial, were improper.
prosecution, twice remarking about how much money defense experts were being paid
for their testimony, were improper, as remarks implied that defendant was wasting
taxpayer dollars by calling expert witness to testify.
25. Criminal Law.
The cumulative effect of errors may violate a defendant's constitutional right to a fair
trial even though errors are harmless individually.
Supreme court would consider on appeal effect of prosecution's improper closing
remarks made during penalty phase of capital murder prosecution, even though
defendant failed to object to some of these remarks, as court had statutory duty to
review every death sentence and consider, among other things, whether it was imposed
under influence of passion, prejudice or any arbitrary factor. NRS 177.055(2).
Cumulative impact of erroneous instruction regarding other matter evidence, given
during penalty phase of capital murder prosecution, taken together with other penalty
hearing errors in form of improper closing argument by prosecutor, deprived defendant
of fair hearing, thus requiring remand for new penalty hearing.
1

____________________

1
OPINION
Appellant John Butler was convicted by a jury of two counts of first-degree murder with
the use of a deadly weapon and was thereafter sentenced by the jury to death. On appeal, we
affirm Butler's convictions, but we vacate his death sentences and remand for a new penalty
hearing.
FACTS
I. Guilt phase
John Butler was an influential member of a white supremacist gang known as the
Independent Nazi Skinheads (INS). The victims Linn Newborn, an African-American male,
and Daniel Shersty, a Caucasian male, were members of a rival nonracist gang known as
Skinheads Against Racial Prejudice (SHARP). Newborn was a leader of SHARP.
INS was distinguishable from SHARP by its manner of dress and beliefs. The members of
these two gangs clashed because of opposing views on racism. INS members want to preserve
the white race without pollution from other races; SHARP members want to promote racial
unity. According to Las Vegas Metropolitan Police Department (LVMPD) Officer Greg
Damarin, a former gang unit detective, both INS and SHARP are violent skinhead gangs.
On the evening of July 3, 1998, Newborn was at his place of work, Tribal Body Piercing.
The Stakeout Bar and Grill was located in the same shopping center as Tribal Body Piercing,
and Carolyn Trotti was also at work that night tending the bar. Trotti identified Melissa Hack,
an INS member and Butler's girlfriend, as one of two girls that had been in and out of the bar
four or five times that night. Newborn and Shersty later told friends that they were going to
party that night with a couple of girls they had met at Newborn's work when Newborn had
pierced one of them. Newborn and Shersty were never heard from again.
On the morning of July 4, 1998, Butler called Joey Justin and said that he needed help
doing something but did not want to talk about it over the phone. Butler and Melissa later
picked up Justin and drove to a dirt road in the desert. On the way there, Butler said that he
needed help picking up some mistakes they left out there from the night before, including a
beer bottle with Melissa's fingerprints on it and shotgun shells. Butler warned Justin that he
would possibly see one or two bodies. After arriving, Justin saw a blood-covered body on the
ground. He and Melissa began picking up the pieces of a broken bottle in the dirt when
they noticed someone was approaching.
up the pieces of a broken bottle in the dirt when they noticed someone was approaching.
Justin yelled for Butler.
Anthony Harris, his father James, and a family friend were riding recreational all terrain
vehicles (ATVs) in the desert when they came upon a body, later identified as Shersty's,
which was covered with blood and lying on the ground. The ATV riders next saw two males,
one of whom Anthony Harris identified as Butler, and a female approaching from the desert.
The approaching group waved their hands. Butler yelled to ask whether the ATV riders had a
cellular phone to call the police.
Butler and his companions got inside their car. The female covered her face and ducked
down. James Harris used his cellular phone to call the police. Butler drove toward the ATV
riders. As the car passed, Butler stopped to say that his girlfriend was sick and that he could
not stay. Anthony Harris wrote the vehicle's license plate number in the dirt. Butler noticed
this and told Anthony that it was unnecessaryButler would give him a pager number.
2
Butler soon drove away.
While Butler drove Justin home, Butler told him that if the police asked, he should say that
they were out looking for a place to ignite fireworks. Butler explained that he and Melissa's
brother, Ross Hack, who was also an INS member, ambushed the two victims in the desert
the previous night, after Melissa and one of her friends went to Tribal Body Piercing to set up
a date with them. One of the girls got pierced. Then the girls drove out to the desert with the
victims, who were planning to drink and party. Butler said that he ran up with a shotgun and
killed one victim right away. Ross Hack then used a .32 caliber gun and shot at the other
victim but ran out of bullets. Butler chased this victim into the desert and killed him with a
shotgun. Butler told Justin that he would be placed in Butler's INS crew if he proved he could
be trusted.
LVMPD officers responded to a call that morning and found Shersty's body partially under
his vehicle. Officers recovered one 12-gauge shotgun shell. Medical Examiner Giles Green
autopsied Shersty's body. The head bore bruises and abrasions. The body had a shotgun
wound to the side of the chest and two .32 caliber bullet wounds to the face and neck areas.
The wounds indicated that Shersty was shot at a fairly close range. Examiner Green believed
that the cause of Shersty's death was homicide. He opined that it would have taken some time
for Shersty to die from hemorrhaging and disruption of breathing.
Newborn's friends had reported him missing. Two days later, LVMPD officers returned to
the desert and found his body as well as shotgun shells in the area.
____________________

2
Anthony was not certain whether Butler actually left a number. According to Justin, Butler gave the ATV
riders a number, but he had never seen Butler with a pager.
as shotgun shells in the area. An open knife was lying at the foot of the body. Examiner
Green also autopsied Newborn's body. It had maggots and was partly decomposed. The right
side of his body and abdomen bore shotgun wounds as did the left side of his back, shoulder,
and arm, indicating that he was shot at least twice with a shotgun. A small caliber gunshot
wound was also found behind his ear. A bullet recovered from the head wound was later
identified by a firearms expert as being a .38 caliber. Examiner Green believed that the cause
of Newborn's death was homicide. Among other things, a partially obliterated store receipt for
beer purchased at 12:34 a.m. on July 4, 1998, was also recovered.
Ten days later, LVMPD gang unit detectives found Butler standing by a vehicle next to
Justin. Butler made eye contact with the detectives and ran as they approached. One officer
gave chase and recovered a .32 caliber handgun in Butler's trail. A K-9 officer and his dog
later found Butler hiding in the brush where he was arrested.
3
Butler stipulated that he was in
possession of the handgun found on the day of his arrest. A firearms expert determined that
the handgun fired the two bullets recovered from Shersty's body, but could not tie the .38
caliber bullet recovered from Newborn's body to a particular weapon.
After his arrest, Butler agreed to give a statement to LVMPD Homicide Sergeant Ken
Hefner. Butler claimed that he, Melissa, and Justin went to the desert on the morning of July
4 to scout for a location to ignite fireworks. He was driving down a dirt road when they
discovered a body lying next to a car. Butler claimed that they decided to contact the police
by hiking into the desert to some houses but hailed some ATV riders instead when he learned
that they had a cellular phone. Butler admitted that he told the ATV riders that it was not
necessary to write down the license plate number of the car he was driving and that he left
without leaving the pager number he promised. Butler also admitted that he was involved
with a racist skinhead gang, he knew the victims were members of an antiracist skinhead
gang, and there had been conflicts between the two gangs. Butler blamed coincidence for why
he happened to be in the area where the two victims were found.
Butler was later housed at a detention center in the same cell as inmate Richard Fishburn
and shared a module with inmates Don Savage and Brian Jones. According to these three
inmates, Butler made several inculpatory statements to them about the murders. The State
produced other witnesses and evidence to prove Butler's guilt.
____________________

3
During the investigation into the killings, officers checked into many other possible suspects, including Ross
Hack. It was believed, however, that Ross Hack had fled to the Czech Republic.
To rebut the State's case against him, Butler presented several witnesses to testify
regarding his whereabouts on the night of the murders. Many witnesses placed Butler at the
home of his mother, Cynthia Glosson. Other witnesses placed Butler at the home of his
brother, Lonnie Butler. Some witnesses also placed Butler at a Stratosphere Hotel and Casino
fireworks event that allegedly occurred that night. Melissa's father, Jacob Hack, believed that
Butler stayed the night at his house. Butler attempted to show that alleged skinhead Daniel
Hartung was responsible for the killings. He also tried to discredit the identification of
Melissa by the Stakeout's bartender, Carolyn Trotti. The State presented witnesses in rebuttal.
The jury found Butler guilty of two counts of first-degree murder with use of a deadly
weapon.
II. Penalty phase
The State presented victim impact witnesses during the penalty hearing. Dorothy Pinella,
Shersty's aunt, testified about the impact of his death on his family. Shersty was a former
member of the United States Air Force. She expressed sorrow for Butler and forgiveness of
him. Lionel Newborn, Newborn's father, testified regarding his close relationship with his son
and the impact of his death on his family. Newborn was also the father of a young son.
Officer Damarin testified that Butler had worked as a police informant in various cases
and for his efforts had received various benefits in prosecutions against him. He also testified
that when Butler was arrested in this case, he possessed a stolen jeep, had two outstanding
warrants for felony possession of a stolen vehicle, and had the key to the jeep and a small bag
of methamphetamine. Inside the jeep, officers found a letter that had been sent from inside of
a prison or jail and addressed to Polar Bear (Butler's moniker). It stated, in part, Do you
know this punk ass SHARP named Spit [Newborn's moniker]? You pulled a gun on his
bitch.' The letter writer also wanted this punk Spit to know that he can be reached out and
touched.
Other witnesses testified for the State regarding Butler's lengthy criminal history and
prison record and specifically noted several separate instances of prisoner misconduct by
Butler that resulted in disciplinary segregation. It was also shown that Butler had been
arrested or cited 32 times for various misdemeanor and felony offenses.
The defense presented several witnesses to provide testimony about Butler's chaotic
childhood. Butler's mother, Cynthia Glosson, testified that she left Butler's father before his
birth and that Butler grew up as a child without his father's involvementButler had never
seen his biological father. Glosson repeatedly moved between various states. Sometimes she
and her children lived with her parents, who were alcoholics and abusive.
lived with her parents, who were alcoholics and abusive. She remarried twice and eventually
moved her three sons, including Butler, to Las Vegas. Once in Las Vegas, Glosson lived with
her children in a nightly-basis motel where she cleaned rooms, getting paid $2 per room. She
became a manager at this hotel, but later lost her job. Butler did not adjust to his new high
school; he often ditched school and was brought home for curfew violations. Around this
time, an electrician and convicted pedophile named Richard Bridges offered to train Butler as
an apprentice. Before meeting Bridges, Butler was a normal, loving, good kid. After
spending time with Bridges, Butler's personality changed. He became evasive and addicted to
crack cocaine, which was given to him by Bridges. Butler ended up in a juvenile detention
facility for violating juvenile probation. He eventually earned his GED and later fathered a
son whom he loved. Glosson expressed her love for Butler, saying that he was one-third of
her heart.
Kim Kaigler, a friend of Bridges, testified that Bridges had multiple prior convictions for
sex crimes involving young boys in California. Kaigler first met Butler when he was about 14
years old. He was thin and dirty. Bridges bought Butler nice things and later made sexual
advances on him. In response, Butler became scared and asked Bridges to stop, getting tears
in his eyes.
Butler's uncle John Fahreny also testified. Fahreny reiterated Glosson's description of
Butler's grandmother as a violent alcoholic and described how Butler witnessed many
instances of abuse by her. Fahreny introduced Butler to marijuana when he was about 12 or
13 years old. Fahreny saw Butler in Las Vegas a few years later, and Butler introduced
Fahreny to prostitutes and crack cocaine. Fahreny said he would attempt to maintain a close
relationship with Butler even while Butler was in prison.
Clinical and forensic psychologist Mark Cunningham testified as an expert witness
regarding United States Justice Department statistics and concluded that Butler's childhood
placed him in a high-risk category for violent criminal behavior. Dr. Cunningham noted,
among other things, the absence in Butler's childhood of a positive male role model, his
mother's alcohol and illegal drug abuse, and his chaotic and unstable home life. These factors
were compounded by the traumatic sexual abuse Butler suffered as a teenager. Butler became
affiliated with the skinhead gangs while he was in prison.
LVMPD Gang Unit Intelligence Officer Dante Tromba testified that he had known Butler
since 1998 and that other prison inmates felt that Butler was a stand up kind of guy.
According to Officer Tromba, while Butler was incarcerated in the Clark County Detention
Center (CCDC), he risked his own safety by assisting with finding weapons and drugs and
alerting officers to racial and gang problems both inside the facility and in the community.
gang problems both inside the facility and in the community. Butler had also volunteered to
participate in the youth diversion program. Butler's only problems while incarcerated at
CCDC concerned a shank and a disrespectful comment. Two prison inmates also testified
favorably on Butler's behalf.
Butler made a statement in allocution, expressing sorrow for the families of Shersty and
Newborn as well as his own family. He stated that he had turned his life around since being
incarcerated.
The sole aggravator found for each murder was that each was committed by a person who
had, in the immediate proceeding, been convicted of more than one offense of murder. And as
to mitigating circumstances, the jury found that Butler had a lifelong dysfunctional family,
had lifelong habitual drug abuse, suffered sexual abuse and poverty, and lacked a father figure
and positive male role model. As to each murder count, the jury found that the aggravating
circumstance outweighed the mitigating circumstances and imposed a sentence of death.
III. Motion for a new trial
Butler moved for a new trial based on the State's failure to disclose evidence that Carolyn
Trotti, the bartender for the Stakeout Bar, identified a defense alibi witness, Katie Wilson, as
the second woman she saw with Melissa on the night of the murders. Butler argued that this
new information brought into question Trotti's identification of Melissa. The trial court
ordered a new penalty hearing. The parties cross-appealed. This court affirmed the denial of
the new trial motion with respect to the guilt phase, but reversed the order with respect to the
penalty phase, concluding that the evidence was not material and did not make a different
result reasonably probable in the penalty phase. However, this court shared the trial court's
concern about the State's failure to promptly notify the defense of this evidence.
4

On March 17, 2003, the district court entered its judgment of conviction and sentenced
Butler to death. This appeal followed, raising several issues concerning the guilt and penalty
phases of Butler's trial.
DISCUSSION
Admissibility of gang-affiliation evidence
Butler contends that the trial court erred in allowing the State to introduce evidence about
his INS gang affiliation. We disagree.
____________________

4
State v. Butler, Docket No. 37591 (Order Affirming in Part, Reversing in Part and Remanding, May 14,
2002).
[Headnotes 1, 2]
The decision to admit gang-affiliation evidence rests within the discretion of the trial
court.
5
Prior to its admission, however, the trial court must determine whether (1) the
evidence is relevant, (2) it is proven by clear and convincing evidence, and (3) its probative
value is not substantially outweighed by the danger of unfair prejudice.
6
This court has
repeatedly held that gang-affiliation evidence may be relevant and probative when it is
admitted to prove motive.
7

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.
Additionally, NRS 48.035(3) provides in part that evidence of another act may be admissible
if the act 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. When admitting evidence under NRS 48.035(3), upon request, the trial
court must give a cautionary instruction to the jury.
8

[Headnotes 3, 4]
Here, evidence of Butler's INS gang affiliation was essential to show his motive for
murdering Newborn and Shersty. The evidence provided the common thread that connected
the story of events. Moreover, the trial court properly held a pretrial Petrocelli hearing and
determined that the evidence was relevant, was proven by clear and convincing evidence, and
was more probative of motive than it was prejudicial. And the trial court gave an appropriate
cautionary instruction to the jury on the use of the evidence before deliberations. We
conclude that the trial court did not abuse its discretion in admitting evidence of Butler's INS
gang affiliation.
9

____________________

5
See Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985), modified on other grounds by Sonner v.
State, 112 Nev. 1328, 1334, 930 P.2d 707, 711-12 (1996).

6
See Qualls v. State, 114 Nev. 900, 902, 961 P.2d 765, 766 (1998); Tinch v. State, 113 Nev. 1170, 1176, 946
P.2d 1061, 1064-65 (1997).

7
See, e.g., Lara v. State, 120 Nev. 177, 180, 87 P.3d 528, 530 (2004); Lay v. State, 110 Nev. 1189, 1195-96,
886 P.2d 448, 452-53 (1994).

8
See NRS 48.035(3).

9
Butler also raises several subarguments to this issue. Butler contends that the admission of the
gang-affiliation evidence violated his First Amendment
Impeaching a witness with a prior gross misdemeanor conviction
Butler contends that the State engaged in deliberate misconduct by impeaching defense
witness Katie Wilson on cross-examination with questions relating to her prior conviction for
attempted forgerya gross misdemeanor. We disagree.
The State acknowledges that NRS 50.095 did not authorize cross-examining Wilson on
her prior gross misdemeanor conviction.
10
However, because the crime of forgery involves
dishonesty, the State maintains that the questioning went to Wilson's veracity and that
pursuant to NRS 50.085 the trial court properly overruled Butler's objection.
[Headnote 5]
Specific instances of the conduct of a witness, for the purpose of attacking or
supporting his credibility, other than conviction of crime, may not be proved by
extrinsic evidence. They may, however, if relevant to truthfulness, be inquired into on
cross-examination of the witness himself or on cross-examination of a witness who
testifies to an opinion of his character for truthfulness or untruthfulness . . . .
This court has held that NRS 50.085(3) permits impeaching a witness on cross-examination
with questions about specific acts as long as the impeachment pertains to truthfulness or
untruthfulness.
11
Yet this court has cautioned that in so doing the State may generally not
impeach a witness under NRS 50.085(3) on a collateral matter or by introducing extrinsic
evidence.
12
If the witness denies a specific act on cross-examination, the State may not
introduce extrinsic evidence to the contrary.
____________________
rights and cites to Dawson v. Delaware, 503 U.S. 159, 165-67 (1992), for support. Unlike the facts in Dawson,
we conclude that Butler's gang affiliation was relevant to his motive. See Lay v. State, 110 Nev. 1189, 1196-97,
886 P.2d 448, 452-53 (1994). Butler also contends that evidence of his gang affiliation was not an act or crime
contemplated within the meaning of either NRS 48.045(2) or NRS 48.035(3). We conclude that the definition of
an act as it is written in both of these statutes is broad enough to encompass gang affiliation as a continuous act.
See Black's Law Dictionary 25 (6th ed. 1990) (defining an act as an [e]xpression of will or purpose, carrying
idea of performance; primarily that which is done or doing; exercise of power, or effect of which power exerted
is cause; a performance; a deed). Although Butler was not charged with a gang enhancement, the admission of
that evidence was not therefore per se precluded. Compare Qualls, 114 Nev. at 901-02, 961 P.2d at 766, with
Tinch, 113 Nev. at 1173, 946 P.2d at 1063.

10
See Sheriff v. Hawkins, 104 Nev. 70, 75, 752 P.2d 769, 773 (1988) (recognizing that mere arrests and
convictions for misdemeanors may not ordinarily be admitted even for the limited purpose of attacking a
witness's credibility).

11
Collman v. State, 116 Nev. 687, 703, 7 P.3d 426, 436 (2000).

12
Id.
nies a specific act on cross-examination, the State may not introduce extrinsic evidence to the
contrary.
13

[Headnote 6]
Attempted forgery is a crime involving dishonesty and conduct that goes to Wilson's
truthfulness as a witness. There is also no indication that the State attempted to impeach
Wilson by introducing extrinsic evidence. Rather, the State merely asked her questions about
the prior conviction on cross-examination, which she answered. We conclude that under these
particular facts, the State's cross-examination of Wilson was proper pursuant to NRS
50.085(3).
Notice requirements of NRS 174.233 regarding rebuttal alibi witnesses
Butler contends that the State failed to comply with the notice requirements of NRS
174.233 and the trial court abused its discretion by finding good cause for waiving the
statute's requirements. We disagree.
Butler presented numerous alibi witnesses, some of whom testified that Butler was with
them on the night of July 3, 1998, during a music and fireworks event at the Stratosphere
Hotel and Casino. Later, the State sought to call Gerald Scott, the Stratosphere's Hotel Fire
Safety Manager, as a rebuttal alibi witness to testify that there were no fireworks events held
by the hotel on July 3, 1998. Butler objected, contending that the State failed to satisfy NRS
174.233.
NRS 174.233(2) requires the State to give the defense notice of any known rebuttal alibi
witnesses [n]ot less than 10 days after receipt of the defendant's list of witnesses. NRS
174.233(5) provides:
If the prosecuting attorney fails to file and serve a copy on the defendant of a list of
witnesses as required by this section, the court may exclude evidence offered by the
State in rebuttal to the defendant's evidence of alibi. . . . For good cause shown the court
may waive the requirements of this section.
[Headnote 7]
In Evans v. State,
14
this court reviewed the notice requirements in an earlier version of
this statute containing nearly identical language. This court reasoned that the primary purpose
of the statute is to counter the ease with which an alibi can be fabricated and defend the
State's interest in protecting against a belated alibi defense, adding that "the exclusion
provisions [of the statute] should not be blindly employed to make the criminal
prosecution a game.
____________________

13
See McKee v. State, 112 Nev. 642, 646-47, 917 P.2d 940, 943 (1996); Rowbottom v. State, 105 Nev. 472,
485, 779 P.2d 934, 942 (1989).

14
112 Nev. 1172, 1189-90, 926 P.2d 265, 276-77 (1996) (reviewing NRS 174.087, which was replaced in
1997 with NRS 174.233).
fend the State's interest in protecting against a belated alibi defense, adding that the
exclusion provisions [of the statute] should not be blindly employed to make the criminal
prosecution a game.
15
A trial court's discretion under this notice statute should be exercised
whenever good cause appears, and a good cause finding will be upheld on appeal absent a
manifest abuse of that discretion.
16

[Headnote 8]
Here, although the trial court acknowledged that the State failed to comply with the notice
requirements of NRS 174.233, the trial court found that the State had previously given Butler
at least some verbal notice of its intent to call Scott as a rebuttal alibi witness. It also found
that Scott's testimony went to a fact that was important for the jury to consider in the interest
of truth. We note that Butler has failed to specify how he could have impeached Scott's
testimony even if given timely notice under NRS 174.233 and has therefore shown no
prejudice. We conclude that the trial court's good cause finding was reasoned and well within
its discretion as contemplated by the statute.
17

Interpretation of NRS 175.151
Butler contends that the trial court erred in refusing to allow both of his counsel to
individually address the jury during the penalty hearing. Butler contends NRS 175.151 gives
him that right. We agree.
[Headnotes 9-11]
The interpretation of a statute is a question of law subject to de novo review by this court.
18
Statutes should be given their plain meaning and must be construed as a whole and not be
read in a way that would render words or phrases superfluous or make a provision nugatory.
____________________

15
Id. at 1190, 926 P.2d at 277 (internal quotation marks and citations omitted).

16
Id.

17
Butler also contends that the reasonable doubt instruction as set forth in NRS 175.211 that was given to the
jury at the close of the guilt phase violated his due process rights. This court has repeatedly affirmed the
constitutionality of NRS 175.211 and has done so in light of its impact upon a defendant's due process rights in
particular. See, e.g., Buchanan v. State, 119 Nev. 201, 221, 69 P.3d 694, 708 (2003); Lord v. State, 107 Nev. 28,
38-40, 806 P.2d 548, 554-56 (1991). When doing so, this court has looked at whether the jury was correctly
instructed on the defendant's presumption of innocence and the State's burden of proof. See, e.g., Middleton v.
State, 114 Nev. 1089, 1111-12, 968 P.2d 296, 311 (1998); Bollinger v. State, 111 Nev. 1110, 1114-15, 901 P.2d
671, 674 (1995). Here, the jury was properly instructed regarding both matters, and we conclude that this issue
warrants no further discussion.

18
State v. Kopp, 118 Nev. 199, 202, 43 P.3d 340, 342 (2002).
provision nugatory.
19
Further, every word, phrase, and provision of a statute is presumed to
have meaning.
20
Only when the plain meaning of a statute is ambiguous will this court look
beyond the language to consider its meaning in light of its spirit, subject matter, and public
policy.
21

Although this court has recognized that NRS 175.151 speaks to the number of counsel
authorized to argue a case,
22
this issue is one of first impression. NRS 175.151 provides:
If the indictment or information be for an offense punishable with death, two counsel
on each side may argue the case to the jury, but in such case, as well as in all others, the
counsel for the State must open and conclude the argument. If it be for any other
offense, the court may, in its discretion, restrict the argument to one counsel on each
side.
[Headnotes 12, 13]
NRS 175.151 contains two sentences, each addressing separate and distinct grants of
authorityone applying to capital defendants, the other applying to noncapital defendants. In
order to discern a reasonably plain meaning from this statute, both sentences must be read in
conjunction with each other. Our attention is specifically drawn to the word may as it
appears twice in NRS 175.151, once in each of the statute's two sentences. May, as it is
used in legislative enactments, is often construed as a permissive grant of authority,
23
and it
is used permissively in this statute as well. However, the word may as it is used in the first
sentence of the statute gives the discretion in capital cases to the counsel for each party, not
the trial court; whereas in the second sentence, the word may gives the discretion in
noncapital cases to the trial court.
We reach this conclusion because the second sentence of the statute expressly states that
for any noncapital offense, the court may, in its discretion, restrict the argument to one
counsel on each side. The statute contains no express grant of discretionary authority to the
trial court to deny such a request in the first sentence when referring to capital defendants. On
the contrary, the first sentence provides that "counsel .
____________________

19
Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 502, 797 P.2d 946, 949 (1990), overruled on
other grounds by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000).

20
Id. at 502-03, 797 P.2d at 949.

21
Zabeti v. State, 120 Nev. 530, 534, 96 P.3d 773, 775 (2004); Moore v. State, 117 Nev. 659, 661-62, 27
P.3d 447, 449 (2001).

22
Layton v. State, 91 Nev. 363, 366, 536 P.2d 85, 87 (1975).

23
See, e.g., S.N.E.A. v. Daines, 108 Nev. 15, 19, 824 P.2d 276, 278 (1992); Givens v. State, 99 Nev. 50, 54,
657 P.2d 97, 100 (1983), overruled on other grounds by Talancon v. State, 102 Nev. 294, 721 P.2d 764 (1986).
first sentence provides that counsel . . . may argue to the jury. Moreover, reading the statute
to give discretion to the trial court in both capital and noncapital cases would render the entire
first sentence and its distinct wording superfluous.
By construing the textual provisions of NRS 175.151 as a whole, the statute's plain
language reasonably extends to capital defendants the option of having both of their counsel
address the jury and allows that option as to all other criminal defendants only at the
discretion of the trial court. A capital defendant's request to have both of his counsel argue
should be honored pursuant to NRS 175.151. We conclude that the trial court erred in
denying Butler's request.
24

Other matter evidence jury instruction
Butler contends that the trial court erroneously instructed the jury regarding the limited use
of other matter evidence admitted against him during the penalty hearing. He contends that
the instruction was confusing and inadequate. We agree.
Instruction No. 6, ostensibly based on Hollaway v. State,
25
provided:
As to evidence concerning any other matter which the court deems relevant to
sentence. It must be relevant, to be relevant, like mitigating evidence, it must relate to
the offense, defendant or victim. Furthermore, under Nevada Statutory sentencing
scheme, the State can offer this evidence for only one purpose: for jurors to consider in
deciding on an appropriate sentence after they have determined whether the defendant
is or is not eligible for death.
Other matter evidence is not admissible for use by the jury in determining the
existence of aggravating circumstances or in weighing them against mitigating
circumstances.
Three purposes are proper: to prove an enumerated aggravator, to rebut specific
mitigating evidence, or to aid the jury in determining the appropriate sentence after any
enumerated aggravating circumstances have been weighed against any mitigating
circumstances. Once the jurors determine whether or not the defendant is death-eligible,
then they must consider all the relevant evidence to determine the appropriate sentence
for the defendant.
Butler did not object to Instruction No. 6, but unsuccessfully requested further instruction
pursuant to Hollaway. Butler argued that "only evidence that's been previously designated
as proper rebuttal evidence can be argued by the State as evidence that would be
considered in the weighing process of aggravation versus mitigation.
____________________

24
Butler also contends that defense counsel should argue last at the penalty hearing. This court recently
rejected this argument in Johnson v. State, 118 Nev. 787, 805-06, 59 P.3d 450, 462 (2002), and his claim is
without merit.

25
116 Nev. 732, 6 P.3d 987 (2000); see also Evans v. State, 117 Nev. 609, 635-37, 28 P.3d 498, 516-17
(2001).
that only evidence that's been previously designated as proper rebuttal evidence can be
argued by the State as evidence that would be considered in the weighing process of
aggravation versus mitigation. Concerned about invading the jury's province, the trial court
refused the request.
NRS 175.552(3) provides in relevant part that during a penalty phase 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.
This court interpreted this statute in Hollaway, stating: Other matter' evidence is not
admissible for use by the jury in determining the existence of aggravating circumstances or in
weighing them against mitigating circumstances. Such use of this evidence would undermine
the constitutional narrowing process which the enumeration and weighing of specific
aggravators is designed to implement.
26
Rather, this court held that the State may introduce
other matter evidence for only one purpose: for jurors to consider in deciding on an
appropriate sentence after they have determined whether the defendant is or is not eligible for
death.
27

This court therefore directed the district courts at capital penalty hearings to ascertain the
purpose for which the State offers any evidence and to inform the jury of the evidence's
proper use.
28
In regard to other matter evidence, the court must admonish the jury that
the evidence is not to be used in determining the existence or the weight of aggravating
circumstances.
29

[Headnote 14]
Instruction No. 6 is problematic because it first gave this admonition and then contradicted
it. After explaining the proper use of other matter evidence, the instruction stated: Three
purposes are proper: to prove an enumerated aggravator, to rebut specific mitigating
evidence, or to aid the jury in determining the appropriate sentence after any enumerated
aggravating circumstances have been weighed against any mitigating circumstances. This
statement was used completely out of context and implied that the three purposes were all
proper for other matter evidence. Neither this instruction nor the jury instructions as a
whole explained that these three purposes serve to distinguish three categories of State's
evidence and that only the last purpose applies to other matter evidence. The instruction
failed to describe the three categories of evidence and to explain that they are distinguished
because only certain evidence should be considered in determining death eligibility, i.e.
____________________

26
Hollaway, 116 Nev. at 746, 6 P.3d at 997 (internal citations omitted).

27
Id.

28
Id.

29
Id.
termining death eligibility, i.e., in finding aggravating circumstances and in weighing them
against mitigating circumstances. The instruction was self-contradictory, and a reasonable
juror could have been misled to consider other matter evidence in determining that Butler
was death eligible.
[Headnote 15]
The State argues that even if this is true, the error was harmless because the evidence for
the one aggravator found by the jurythat Butler committed multiple murderswas
conclusive. This argument is persuasive in regard to the jury's finding of the aggravating
circumstance, but it fails to address the jury's weighing of that aggravating circumstance
against the mitigating circumstances.
Because of the erroneous instruction, it is likely that jurors considered all the evidence
presented against Butler in deciding whether the mitigating circumstances outweighed the
aggravating circumstance instead of discriminating between evidence relevant to rebut
Butler's alleged mitigators and other evidence not relevant to that issue. For example, because
Butler did not argue lack of a prior criminal history as a mitigating circumstance, the jurors
should not have considered the State's extensive evidence of his criminal history in
determining whether Butler was death eligible. But the instruction failed to clearly instruct
them not to do so.
We conclude that there was a strong likelihood that Butler was prejudiced by this
instruction. In reaching this conclusion, we stress that Butler presented compelling evidence
of extreme neglect and abuse in his childhood, which the jurors obviously recognized in
finding several mitigating circumstances, while the State alleged and the jury found only one
aggravating circumstance.
Allegations of prosecutorial misconduct
Butler contends that the State committed several instances of prosecutorial misconduct
during the penalty hearing.
[Headnotes 16, 17]
whether a prosecutor's statements so infected the proceedings with unfairness as to make the
results a denial of due process.
30
However, a criminal conviction is not to be lightly
overturned on the basis of a prosecutor's comments standing alone,' and the alleged
improper remarks must be read in context.
31

Butler first contends that the State improperly alluded to evidence not in the record in an
attempt to mislead the jury with the following remarks:
____________________

30
Thomas v. State, 120 Nev. 37, 47, 83 P.3d 818, 825 (2004).

31
Hernandez v. State, 118 Nev. 513, 525, 50 P.3d 1100, 1108 (2002) (quoting United States v. Young, 470
U.S. 1, 11 (1985)).
In all reality, what happened here, ladies and gentlemen, when you sat back and saw
what came from the witness stand, is basically a sanitized process where: You didn't get
to see exactly what happened; you weren't out there; you didn't get to hear the screams;
you didn't get to see Spit running through the desert, running from somebody shooting
him with a shotgun; you didn't get to hear, as Dan Savage [sic] testified, and I
[Defense Counsel]: Your Honor, I'm going to object.
I don't think it's proper to refer to the victims without any evidence as to what went
on out there.
THE COURT: I'll allow the argument.
[Prosecutor]: If you'll recall, in my closing argument in our guilt phase, I asked you
to remember what you saw in the notes.
I had an opportunity to look it up in the transcript and Don Savage testified the
victim on the bumper was looking up, begging; said Spit was running from his attacker.
Basically, we know Spit, Lin, was being tracked down and shot, shot multiple times;
and we know he was shot in the desert.
We know that Dan was shot right in the mouth.
[Headnotes 18-20]
It is improper to argue facts or inferences not supported by the evidence.'
32
Here,
Butler's objection focuses on the State alluding to Newborn's and Shersty's alleged screams
and Shersty's alleged begging before being shot. The State is correct that there was evidence
that Shersty was looking upward and begging before being shot and that Newborn was shot in
the back while fleeing. Butler is correct that there was no evidence about the sounds Newborn
and Shersty may have made before being killed. It was improper for the State to frame the
reference to the screams as fact, which it appears to have done. Yet we conclude that the
inferences the State asked the jurors to draw were reasonable under the facts of this case and
any error in the remarks was harmless at most.
Next, Butler contends that the State improperly implied that defense counsel were
deceptive and disparaged them with the following remarks:
Keep your eye on the ball. The defense is holding the ball in the dirt. They want you
to be distracted from what the issue is, look away from the crime that was committed.
____________________

32
Thomas, 120 Nev. at 48, 83 P.3d at 825 (quoting Williams v. State, 103 Nev. 106, 110, 734 P.2d 700, 703
(1987)).
is, look away from the crime that was committed. They want you to look back 20 years,
as if somehow that mitigates what happened two years ago on the 4th of July.
James Therber said: You can fool most of the people all the time.
Do not be fooled. What we have had here is a very creative argument. What we've
had here this last week has been an infomercial: Buy this product.
Let's look at this productand the defense has been marketing this product. This
product is the defendant doesn't merit death for his actions. And they have used some
techniques to market this product.
First of all, they want you to somehow believe that his childhood, his experiences,
and because of that circumstance in which he was in, which probably many, many,
many thousands, millions, are in, is somehow a mitigator, somehow mitigates against
that brutal murder that occurred in the desert.
He wants special consideration. Many of you probably know people who had similar
upbringings, come from families where the parents were alcoholics, where you have
friends who abused drugs, friends who have been sexually abused, and yet, somehow,
that's an excuse for his action.
It should be insulting.
[DEFENSE COUNSEL]: Your Honor, object.
May we approach for a moment on this?
THE COURT: Yes.
[Headnote 21]
Disparaging remarks directed toward defense counsel have absolutely no place in a
courtroom, and clearly constitute misconduct.
33
And it is not only improper to disparage
defense counsel personally, but also to disparage legitimate defense tactics.
34

[Headnote 22]
Here, the State used many adjectives and analogies in these remarks that portrayed Butler's
presentation of mitigating evidence and defense tactics as a dirty technique in an attempt to
fool and distract the jury, implying that Butler's counsel acted unethically in his defensethis
was a form of disparagement of counsel. Butler not only has a legal right, but his counsel
have an ethical duty, to present all evidence in mitigation of a death sentence.
35
The
presentation of mitigating evidence during the penalty phase is essentially the heart of a
defense.
____________________

33
McGuire v. State, 100 Nev. 153, 158, 677 P.2d 1060, 1063-64 (1984).

34
See Evans, 117 Nev. at 632, 28 P.3d at 514; Leonard v. State, 114 Nev. 1196, 1212-13, 969 P.2d 288,
298-99 (1998).

35
See NRS 200.035(7).
tially the heart of a defense. The State is not permitted to disparage Butler's counsel and
defense tactics through the use of cleverly crafted rhetoric. We conclude that the State's
remarks were improper.
Butler finally contends that the State committed misconduct by disparaging his witnesses
in two separate instances:
They brought in that high falootin' expert, getting paid over $200 an hour, and we
saw the infomercial complete with testimonials: Just like Ronco; set it and forget it. Put
him in life without the possibility; put him there. He'll be in ad seg forever. You don't
have to worry about it. Set it and forget it.
. . . .
These pseudo experts, who come in here, as employment. Mr. Esten who came in
here to give you testimony about Ely State Prison, and yet he knew nothing about it,
nothing about it.
Clark County paid him $125or 120 plus dollars an hour to be here, and they could
have just brought Mr. McDaniel in, who is the warden there, but he wouldn't have
given that spin, that marketing. He wouldn't have given what they wanted.
This court held in Sipsas v. State
36
that it was improper for the State to characterize a
defendant's expert medical witness as the following: The hired gun from Hot Tub Country.
Have stethoscope, will travel. And in McGuire v. State
37
this court held that it was improper
for the State to refer to the fact that the costs of medical witnesses who had testified [for the
defendant] at trial had been paid for at county expense by such persons as the jurors
themselves.
[Headnotes 23, 24]
Referring to a defense expert witness in the case at hand as that high falootin' expert and
his testimony as an infomercial was improper, analogous to the abusive remarks
condemned in Sipsas. Based on McGuire, it was also improper for the State to twice remark
about how much money the defense experts were being paid for their testimony. And the
State's remarks further implied that Butler was wasting taxpayer dollars by calling James
Esten as an expert witness. We conclude that these final remarks were again improper.
38

____________________

36
102 Nev. 119, 125, 716 P.2d 231, 234-35 (1986).

37
100 Nev. at 158, 677 P.2d at 1064.

38
Butler cites to other instances of alleged prosecutorial misconduct where his objections were generally
sustained by the trial court. We have reviewed those remarks and conclude that they do not entitle Butler to
relief. In light of our decision to remand Butler's appeal for a new penalty hearing, those remarks do not warrant
further discussion.
Cumulative error
[Headnote 25]
The cumulative effect of errors may violate a defendant's constitutional right to a fair trial
even though errors are harmless individually.
39
Here, we reject Butler's assignments of error
respecting the guilt phase of his trial. However, the following errors occurred during the
penalty phase of his trial: (1) the trial court improperly denied Butler's request that both of his
counsel argue pursuant to NRS 175.151, (2) the trial court gave the jury an erroneous
instruction regarding the use of other matter evidence, and (3) the State made several
inflammatory and disparaging remarks to the jury.
[Headnote 26]
The State notes that Butler did not object to some of its penalty hearing remarks and
contends that these remarks were not properly preserved for appellate review. NRS
177.055(2) requires this court to review every death sentence and consider, among other
things, whether it was imposed under the influence of passion, prejudice or any arbitrary
factor. We will therefore consider the effect of these remarks and any other error on the
jury's sentencing decision.
40

[Headnote 27]
Although overwhelming evidence supports Butler's two convictions, he was entitled to a
hearing that was fair before the jury decided to impose a penalty of death. The strong
likelihood that Butler was prejudiced by the erroneous other matter evidence instruction
may have been sufficient to constitute reversible error in itself. Viewed with the other penalty
hearing errors, we conclude that the cumulative impact of these errors deprived Butler of that
fair hearing. We therefore remand his case for a new penalty hearing.
CONCLUSION
We affirm Butler's two convictions for first-degree murder with the use of a deadly
weapon. Due to cumulative error during the penalty hearing, we vacate Butler's death
sentences and remand for a new penalty hearing.
Rose and Becker, JJ., concur.
____________________

39
Hernandez, 118 Nev. at 535, 50 P.3d at 1115.

40
Under NRS 177.055(2)(c), we must also consider whether the evidence supports the aggravating
circumstance in this case. It clearly does: Butler was convicted of more than one offense of murder in this
proceeding. Because we are remanding for a new penalty hearing, we do not reach a determination under NRS
177.055(2)(e) as to whether the death sentence is excessive. If upon remand the State seeks the death penalty
and the jury returns a death sentence, we will make that determination with regard to the evidence presented at
the new penalty hearing.
Agosti, J., with whom Maupin, J., agrees, concurring:
I write separately to express my disagreement with that portion of the majority's analysis
which characterizes as misconduct the State's remarks in closing argument concerning
defense expert testimony. I see a great difference between disparaging or belittling an expert
as [t]he hired gun from Hot Tub Country
1
and calling an expert high falootin', which is
hyperbole, but not misconduct. I also believe that the money charged by an expert is very
proper impeachment material and properly referred to in argument. In this instance, the State's
reference to the fact that Clark County paid Mr. Esten's fee is not misconduct. The
prosecutor's statement in this case is a far cry from the comment in Sipsas,
2
where the
prosecutor's remark was calculated to make the jurors feel cheated as taxpayers and to thereby
build resentment against Sipsas, the defendant.
Having said that, I believe that even without its determination of prosecutorial misconduct
the majority's conclusion that Butler is entitled to a new sentencing hearing is proper.
Gibbons, J., concurring in part and dissenting in part:
I concur that Butler's guilt phase conviction should be affirmed. I respectfully disagree
with the majority's conclusion that we should reverse the jury's decision to sentence Butler to
death.
We have previously held that jury instruction errors are harmless if the State proves that
the error did not contribute to the verdict. We have also held that opposing counsel's failure to
object to alleged misconduct at trial precludes appellate review. These principles, which are
based on a reasoned balance of the public's interests in substantial justice and judicial
economy and the defendant's interest in a fundamentally fair trial, must guide our decision
today.
The district court did not abuse its discretion by denying Butler's motion to have two defense
attorneys argue at sentencing
The majority concludes that reversal is proper because the district court erred in denying
Butler's motion to allow both of his attorneys to argue at sentencing. I disagree.
NRS 175.151 states:
If the indictment or information be for an offense punishable with death, two counsel
on each side may argue the case to the jury, but in such case, as well as in all others, the
counsel for the State must open and conclude the argument. If it be for any other
offense, the court may, in its discretion, restrict the argument to one counsel on each
side.
____________________

1
Sipsas v. State, 102 Nev. 119, 124-25, 716 P.2d 231, 234 (1986).

2
Id. at 125, 716 P.2d at 234-35.
(Emphasis added.) The district court interpreted NRS 175.151 as granting discretion to the
district court to allow defense counsel to divide the sentencing argument. The majority
concludes that the statute grants discretion to the capital defendant, or more realistically to
defense attorneys, to determine how they will organize the allotted argument time at
sentencing. Though NRS 175.151 was enacted in 1967, this is our first opportunity to
interpret its language.
Statutory interpretation is a question of law reviewed de novo.'
1
In interpreting a
statute, we will not look beyond the statutory language unless the language is ambiguous.
2
NRS 175.151 is not ambiguous; the statute clearly makes discretionary the division of a
capital defendant's sentencing argument. The only question is upon whom the discretion is
bestowed. The majority concludes that the Legislature intended to grant discretion to the
capital defendant. I disagree.
The majority's conclusion is based on the fact that NRS 175.151's second sentence
specifically refers to the district court judge, whereas the first sentence does not. Thus, the
majority reasons, the Legislature must have intended that the discretion granted in the first
sentence extend to the capital defendant. This interpretation would be monumental indeed,
for it would mark the only time that the Legislature extended authority to a litigant to control
trial procedure. All other discretion regarding evidence, criminal procedure or civil procedure
resides with the district court judge. The notion that death is different
3
does not justify
such a drastic deviation from the Legislature's logical determination that the district court
judge alone is entitled to exercise discretion over procedures in the district court.
The district court's interpretation of NRS 175.151 is consistent with the maxim expressio
unius est exclusio alterius.
4
This court has, for more than a century, recognized that the
Legislature's mention of one thing or person is in law an exclusion of all other things or
persons.
5
The Legislature expressly states that the district court would have the discretion to
restrict counsel's argument at sentencing in a noncapital prosecution. Under expressio unius
est exclusio alterius, the district court also has the discretion to allow both defense counsel to
argue at a capital sentencing. As noted above, this interpretation is consistent with the
remainder of the Nevada Revised Statutes governing trial procedure.
____________________

1
Firestone v. State, 120 Nev. 13, 16, 83 P.3d 279, 281 (2004) (quoting Construction Indus. v. Chalue, 119
Nev. 348, 351, 74 P.3d 595, 597 (2003)).

2
State v. Kopp, 118 Nev. 199, 202, 43 P.3d 340, 342 (2002).

3
See, e.g., Rummel v. Estelle, 445 U.S. 263, 272 (1980); Rhyne v. State, 118 Nev. 1, 15, 38 P.3d 163, 172
(2002) (Becker, J., concurring).

4
Expression of one thing is the exclusion of another. Black's Law Dictionary 692 (4th ed. 1968).

5
V. & T. R.R. Co. v. Elliott, 5 Nev. 358, 364 (1870).
The district court's interpretation is also consistent with the legislative history behind NRS
175.151. In passing Assembly Bill 81, the Legislature explicitly stated that it intended to
provide for the just determination of every criminal proceeding. [The bill's] provisions shall
be construed to secure simplicity in procedure, fairness in administration and the elimination
of unjustifiable expense and delay.
6
This statement clarifies the policy behind granting
discretion to the district court judge alone. The Legislature could only have intended that the
discretion fall to the district court judge.
Having determined that NRS 175.151 extends discretion to the district court, the only
remaining question is whether the district court abused that discretion by denying Butler's
motion. An abuse of discretion occurs if the district court's decision is arbitrary or capricious
or if it exceeds the bounds of law or reason.
7
The district court did not abuse its discretion;
Butler's motion was denied on the very grounds that the Legislature intended to further. The
district court determined that allowing two attorneys with distinct styles to argue essentially
the same thing to a single jury would hinder the public's interest in simple procedure and
eliminating unjustifiable delay. Furthermore, Butler has failed to demonstrate any prejudice
based upon the fact that only one of his attorneys presented his closing argument.
Any error in the jury instructions was harmless
The majority concludes that reversal is proper because Instruction 6 improperly or
incompletely stated the standard for the jury's consideration of other matter evidence at
sentencing. I disagree. The jury instruction error, if any, was harmless. Accordingly, I would
affirm the sentence.
We have long held that [a]ll instructions to a jury should be read in the light of each other
and considered in their entirety.
8
No reversible error exists, even if instructions are
erroneous or incomplete, so long as, when read together, the instructions are consistent and
state correct principles of law, and are not calculated to mislead the jury.
9

In Hollaway v. State,
10
we held that if the State seeks the death penalty, the jury must be
instructed that:
In determining whether mitigating circumstances exist, jurors have an obligation to
make an independent and objective analysis of all the relevant evidence.
____________________

6
1967 Nev. Stat., ch. 523, 4, at 1398.

7

8
Cutler v. P.S.P.M. Co., 34 Nev. 45, 54, 116 P. 418, 422 (1911).

9
Id.

10
116 Nev. 732, 6 P.3d 987 (2000).
analysis of all the relevant evidence. Arguments of counsel or a party do not relieve
jurors of this responsibility. Jurors must consider the totality of the circumstances of the
crime and the defendant, as established by the evidence presented in the guilt and
penalty phases of the trial. Neither the prosecution's nor the defendant's insistence on
the existence or nonexistence of mitigating circumstances is binding upon the jurors.
11

Butler's jury received this exact instruction in Instruction 17. In Hollaway, we also noted that
the jury, at sentencing, must be instructed on the types of evidence that may be admitted and
the use for which each type of evidence could be used at sentencing.
12
Butler's jury was so
instructed.
Regarding other matter evidence, we first noted that the jury must be instructed on the
relevance of other matter evidence:
To be relevant, like mitigating evidence, it must relate to the offense, defendant or
victim. Furthermore, under Nevada's statutory sentencing scheme, the State can offer
this evidence for only one purpose: for jurors to consider in deciding on an appropriate
sentence after they have determined whether the defendant is or is not eligible for death.
13

Second, we noted that the jury must be instructed that such evidence is not admissible for
use by the jury in determining the existence of aggravating circumstances or in weighing
them against mitigating circumstances.
14
Finally, we noted that the district court must
instruct the jury as to the proper uses of evidence at sentencing. Three purposes are proper:
to prove an enumerated aggravator, to rebut specific mitigating evidence, or to aid the jury in
determining the appropriate sentence after any enumerated aggravating circumstances have
been weighed against mitigating circumstances.
15

Instruction 6 was not erroneous because it correctly states Nevada law. In fact, Instruction
6 recites our Hollaway decision verbatim, though admittedly out of order. Instruction 6 reads:
As to evidence concerning any other matter which the court deems relevant to sentence.
It must be relevant, to be relevant, like mitigating evidence, it must relate to the offense,
defendant or victim. Furthermore, under Nevada Statutory sentencing scheme, the State
can offer this evidence for only one purpose: for jurors to consider in deciding on an
appropriate sentence after they have determined whether the defendant is or is not
eligible for death.
____________________

11
Id. at 744, 6 P.3d at 995-96.

12
Id. at 744-47, 6 P.3d at 996-97.

13
Id. at 746, 6 P.3d at 997 (citation omitted).

14
Id.

15
Id.
pose: for jurors to consider in deciding on an appropriate sentence after they have
determined whether the defendant is or is not eligible for death.
Other matter evidence is not admissible for use by the jury in determining the
existence of aggravating circumstances or in weighing them against mitigating
circumstances.
Three purposes are proper: to prove an enumerated aggravator, to rebut specific
mitigating evidence, or to aid the jury in determining the appropriate sentence after any
enumerated aggravating circumstances have been weighed against any mitigating
circumstances. Once the jurors determine whether or not the defendant is death-eligible,
then they must consider all the relevant evidence to determine the appropriate sentence
for the defendant.
The majority concludes that Butler's sentence must be reversed because Instruction 6 is
incomplete and misleading. This conclusion is based on the fact that Instruction 6 first
admonished the jury not to consider other matter evidence in the aggravation/mitigation
balance and then contradicted that admonition by instructing the jury as to the proper uses of
other matter evidence. I disagree.
In Hollaway, we set forth the purposes for which other matter evidence may and may not
be used. Butler's jury was instructed, according to Hollaway, on what use to give other matter
evidence. If Instruction 6 is not an exact replica of our Hollaway decision, it is at the very
least a competent reproduction. I fail to see how an instruction can be error when its
language so closely follows that of the case which sets the standard. That the majority would
prefer that the jury be instructed in a different order is irrelevant. As the district court
instructed, [Y]ou are to consider all the instructions as a whole and regard each in the light
of all the others. Instruction 6 was not erroneous because, read as a whole, it correctly
instructed the jury on the proper uses of other matter evidence.
Furthermore, even if Instruction 6 was erroneous, the error was harmless. A jury
instruction error is harmless when it is clear beyond a reasonable doubt' that the error
would not contribute to a rational jury's decision.
16
This court has noted that the harmless
error standard creates a balancing test whereby overwhelming evidence of guilt may render
even constitutional errors insignificant.
17

In this case, the State presented overwhelming evidence to support the aggravator for the
death penalty. During the sentencing phase, the evidence showed that Butler had been
arrested or cited 32 times for various criminal offenses.
____________________

16
Wegner v. State, 116 Nev. 1149, 1155, 14 P.3d 25, 30 (2000) (quoting Neder v. United States, 527 U.S. 1,
18 (1999)).

17
State v. Carroll, 109 Nev. 975, 977, 860 P.2d 179, 180 (1993).
phase, the evidence showed that Butler had been arrested or cited 32 times for various
criminal offenses. In addition to his lengthy criminal history, the State presented evidence of
Butler's misconduct as a prisoner which required his segregation from other inmates. Officer
Damarin testified that at the time of his arrest, Butler had two outstanding warrants for
possession of a stolen vehicle and that he was in possession of both a stolen vehicle and
methamphetamine when he was taken into custody. Inside the stolen vehicle, police officers
found a letter, addressed to Butler from a prison inmate, encouraging Butler to reach out and
touch one of the victims. Furthermore, in orchestrating the underlying murders, Butler
convinced female associates to lure the two victims, both members of a rival gang, into the
desert on the ruse of partying with them. Butler and another gang member lay in wait in the
desert for their arrival and then ambushed the victims, shooting both victims numerous times
at close range. Accordingly, I would hold that the error, if any, was harmless and affirm
Butler's sentence.
Butler failed to object to the prosecutor's alleged misconduct
The majority concludes that reversal is necessary because the prosecutor committed
misconduct by suggesting that the jury make reasonable inferences from witness testimony
and by referring to the defense expert as high falootin'. The majority reaches this
conclusion even though Butler made no objection to either statement during closing
argument. I disagree.
In Ringle v. Bruton, we held that [o]pposing counsel's failure to object to attorney
misconduct at trial generally precludes review.
18
By failing to object at the appropriate time,
counsel waives appellate review of any error that may result from the alleged misconduct.
19
Thus, Butler waived appellate review of the prosecutor's statements when he failed to object
at sentencing. Butler is not entitled to sandbag the State by saving his objection for appeal
in order to secure reversal and an undeserved second bite from the district court's apple.
In Ringle, we held that requiring timely and appropriate objections ensures the accuracy of
our decisions in two ways. First, by reviewing only objected-to misconduct, we restrict
ourselves, properly, to deciding actual controversies.
20
Second, by requiring timely and
appropriate objections, we conserve judicial resources by encouraging trial counsel to
"take[ ] issue" with inappropriate conduct at a time when the conduct can be corrected.
____________________

18
120 Nev. 82, 94, 86 P.3d 1032, 1040 (2004).

19
Id.

20
The failure to object to allegedly prejudicial remarks at the time an argument is made, and for a
considerable time afterwards, strongly indicates that the party . . . did not consider the arguments objectionable
at the time they were delivered, but made that claim as an afterthought. Beccard v. Nevada National Bank, 99
Nev. 63, 65-66, 657 P.2d 1154, 1156 (1983), quoted in Ringle, 120 Nev. at 95, 86 P.3d at 1040.
and appropriate objections, we conserve judicial resources by encouraging trial counsel to
take[ ] issue with inappropriate conduct at a time when the conduct can be corrected.
21

Timely objections enable the district court to instruct the jury to disregard improper
statements, thus remedying any potential for prejudice.
22
Judicial economy requires that we
encourage good trial practice, and we do not encourage good trial practice by granting new
penalty phases for errors that could have been corrected with a simple objection by an alert
attorney. Neither do we further judicial economy by second-guessing the district court and
finding prejudice in a statement so banal as to warrant no objection below.
Though Ringle was a civil case involving an employment contract, I suggest that the
policies supporting our decision are equally applicable in a criminal case.
23
Judicial economy
is no less important in a criminal case, even if the defendant's crime makes him eligible for
the death penalty. Indeed, the gravity of the potential result makes it even more important that
counsel diligently object to improper argument and avoid even the potential for prejudice.
This result would not punish the criminal defendant for the errors of his attorney. Our system
already provides for reversal of criminal sentences that result from attorney error.
24

The majority's conclusion in this case serves to discourage diligent trial practice, further
inundate already overworked district courts, and reward Butler for his failure to make the
simple objection that would have immediately resolved the alleged error. Further, a new
penalty phase will require the families of Butler's victims to relive the gruesome and
premeditated deaths of their loved ones.
Reversal on grounds of attorney misconduct is improper unless the misconduct so
completely permeates the proceeding that the jury's verdict was based on passion and
prejudice as opposed to law and fact.
25
Butler has made no showing that the prosecution's
statements so aroused the jury's passion. In fact, the statements are nothing more than
rhetorical hyperbole.
There is no cumulative error
The majority concludes that reversal is proper because Butler's sentencing was the result of
cumulative error below. I disagree. While [t]he cumulative effect of errors may violate a
defendant's constitutional right to a fair trial even though errors are harmless individually,
____________________

21
Ringle, 120 Nev. at 94-95, 86 P.3d at 1040.

22
Id. at 95, 86 P.3d at 1040.

23
See Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 229 (2001).

24
Strickland v. Washington, 466 U.S. 668, 686-87 (1984); accord Lara v. State, 120 Nev. 177, 179-80, 87
P.3d 528, 530 (2004).

25
Ringle, 120 Nev. at 94, 86 P.3d at 1040.
constitutional right to a fair trial even though errors are harmless individually,
26
the district
court committed only one error and it was harmless. Accordingly, I would affirm Butler's
sentence.
____________
120 Nev. 908, 908 (2004) Matter of Mosley
In the Matter of THE HONORABLE DONALD M. MOSLEY,
District Court Judge, County of Clark, State of Nevada.
THE HONORABLE DONALD M. MOSLEY, District Court Judge, County of Clark, State
of Nevada, Appellant, v. NEVADA COMMISSION ON JUDICIAL DISCIPLINE,
Respondent.
No. 39336
December 21, 2004 102 P.3d 555
Appeal from a decision of the Nevada Commission on Judicial Discipline, which imposed
discipline upon a district court judge, including a public reprimand, a fine, and attendance at
an ethics course.
The supreme court, Shearing, C. J., held that: (1) judge improperly used his judicial
letterhead for two letters to principals at his child's school; (2) judge's conduct in issuing,
without notice to district attorney, own recognizance (OR) release of former employee of
judge's friend did not violate judicial conduct rules; (3) judge improperly conducted ex parte
communication with criminal defendant's attorney; (4) judge should have recused himself
immediately upon learning that criminal defendant had information relevant to judge's child
custody dispute with his former girlfriend; and (5) statements that Commission's Executive
Director made in newspaper article were proper.
Maupin, J., with whom Becker, J., and Puccinelli, D. J., agreed, dissented in part. Rose, J.,
dissented in part. Gibbons, J., dissented.
Dominic P. Gentile, Ltd., and Dominic P. Gentile, Las Vegas; Neil G. Galatz & Associates
and Neil G. Galatz, Las Vegas; Thomas F. Pitaro, Las Vegas, for Appellant.
David F. Sarnowski, Executive Director, Nevada Commission on Judicial Discipline,
Carson City; Sinai Schroeder Mooney Boetsch Bradley & Pace and Mary E. Boetsch, Reno,
for Respondent.
Georgeson Thompson & Angaran, Chtd., and Harold B. Thompson, Reno, for Amicus
Curiae Nevada District Judges Association.
____________________

26
Hernandez v. State, 118 Nev. 513, 535, 50 P.3d 1100, 1115 (2002).
1. Judges.
State district court judge's conduct in using his judicial letterhead for two letters to
principals at his child's school, stating that judge had been awarded custody of his and
his former girlfriend's child and asking school to prohibit former girlfriend from
visiting child at school, violated judicial conduct rule prohibiting a judge from lending
the prestige of judicial office to advance the judge's private interests; objective
reasonable person could conclude the judge was attempting to gain a personal
advantage, even if principals had already known the judge was a district court judge and
even if the principals did not provide special treatment to judge. NCJC Canon 2B.
2. Judges.
Requiring state district court judge to attend a general ethics course for judges, at his
own expense, was warranted as disciplinary sanction for judge's conduct in using his
judicial letterhead for two letters to principals at his child's school stating that judge had
been awarded custody of his and his former girlfriend's child and asking school to
prohibit former girlfriend from visiting child at school, in violation of judicial conduct
rule prohibiting a judge from lending the prestige of judicial office to advance the
judge's private interests. NCJC Canon 2B.
3. Judges.
When determining whether a judge has violated the judicial conduct rule prohibiting
a judge from lending the prestige of judicial office to advance the judge's private
interests, the judge is not to be evaluated by a subjective standard, but by the standard
of how an objective reasonable person would view the judge's conduct. NCJC Canon
2B.
4. Judges.
State district court judge's conduct in issuing, without notice to district attorney, own
recognizance (OR) release of former employee of judge's friend, who had been arrested
pursuant to bench warrant for failing to comply with requirements of plea bargain in
case in which former employee was awaiting sentencing from another judge, did not
violate judicial conduct rules requiring judges to maintain high standards of conduct,
requiring judges to comply with the law and to promote public confidence in integrity
and impartiality of judiciary, and prohibiting ex parte communications, where it was
common practice for district judges to respond to calls from the public for OR releases,
and district attorneys had acquiesced in the policy of issuing OR releases ex parte.
NCJC Canons 1, 2A, 3B(7).
5. Judges.
State district court judge's conduct in meeting in his chambers with attorney
representing criminal defendant whose sentencing following plea bargain had been
assigned to judge and who was living with judge's former girlfriend, with whom judge
was in bitter custody dispute regarding judge's and former girlfriend's child, violated
judicial conduct rule prohibiting ex parte communications; neither attorney nor judge
notified district attorney, judge and attorney discussed merits of criminal defendant's
case, i.e., criminal defendant's alleged cooperation with police, which would be relevant
to criminal defendant's sentencing, and attorney intended to gain procedural advantage
by causing judge to recuse himself from sentencing if criminal defendant and his wife
testified in child custody matter. NCJC Canon 3B(7).
6. Judges.
Public censure was warranted as disciplinary sanction for state district court judge's
conduct, in violation of judicial conduct rule prohibiting ex parte communications, in
meeting, without notice to district attorney, in his chambers with attorney representing
criminal defendant whose sentencing following plea bargain had been assigned to judge
and who was living with judge's former girlfriend, with whom judge was in bitter
custody dispute regarding judge's and former girlfriend's child.
was living with judge's former girlfriend, with whom judge was in bitter custody
dispute regarding judge's and former girlfriend's child. NCJC Canon 3B(7).
7. Judges.
State district court judge, to whom sentencing after plea bargain had been reassigned
with respect to criminal defendant who was living with judge's former girlfriend with
whom judge was involved in bitter custody battle regarding judge's and former
girlfriend's child, was required, under judicial conduct rules requiring judges to
maintain high standards of conduct, requiring judges to promote public confidence in
integrity and impartiality of judiciary, and prohibiting judges from allowing
relationships to influence judicial judgment, to recuse himself immediately upon
learning that criminal defendant and his wife had information relevant to the custody
case, rather than waiting for day of child custody hearing at which criminal defendant
and defendant's wife would testify. NCJC Canons 1, 2A, 2B.
8. Judges.
Fine of $5,000 was warranted as disciplinary sanction for judge's failure to recuse
himself immediately, in violation of judicial conduct rules requiring judges to maintain
high standards of conduct, requiring judges to promote public confidence in integrity
and impartiality of judiciary, and prohibiting judges from allowing relationships to
influence judicial judgment, as soon as judge learned that criminal defendant, whose
sentencing following plea bargain had been assigned to judge, had information relevant
to judge's child custody dispute with judge's former girlfriend, with whom criminal
defendant was living. NCJC Canons 1, 2A, 2B.
9. Judges.
State district court judge did not have due process right to present expert testimony,
at Commission on Judicial Discipline's disciplinary hearing, regarding whether judge
had violated judicial conduct rules, even if the hearing presented issues of first
impression; Commission determined it did not need expert assistance, and expert's
testimony could well have been cumulative because both sides had elicited from
witnesses opinions on judicial ethics. Const. art. 1, 8; U.S. Const. amend. 14; NRS
50.275.
10. Evidence.
The goal of expert testimony is to provide the trier of fact a resource for ascertaining
truth in relevant areas outside the ken of ordinary laity. NRS 50.275.
11. Judges.
Statements that Executive Director of Commission on Judicial Discipline made in
newspaper article, that every state has a judicial discipline commission, that
constitutionality of Nevada's commission had been upheld by the court, and that
Executive Director did not know of any judicial discipline commission that had been
held unconstitutional, were permissible statements clarifying procedural aspects of
disciplinary proceedings.
1

____________________

1
The Honorable Andrew J. Puccinelli, Judge of the Fourth Judicial District Court, was designated by the
Governor to sit in place of The Honorable Myron E. Leavitt, Justice. Nev. Const. art. 6, 4. The Honorable
Michael L. Douglas, Justice, did not participate in the decision of this matter.
OPINION
On May 22, 2000, a special prosecutor for the Nevada Commission on Judicial Discipline
(the Commission) filed charges against the Honorable Donald M. Mosley, District Judge for
the Eighth Judicial District Court. The complaint contained the following allegations:
Count I, that Judge Mosley violated Nevada Code of Judicial Conduct (NCJC) Canon 2B
in August 1999 by writing a letter on official judicial letterhead to the principal at his son's
school;
Count II, that Judge Mosley violated NCJC Canon 2B in February 1998 by writing a letter
on official judicial letterhead to the principal at his son's school;
Count III, that Judge Mosley violated NCJC Canons 1, 2, 2A, 2B and 3B(7) in August
1999 by engaging in an ex parte conversation with his friend, Barbara Orcutt, regarding the
arrest and release of Robert D'Amore;
Count IV, that Judge Mosley violated NCJC Canons 1, 2, 2A and 2B in August 1999 by
ordering the release of Robert D'Amore on his own recognizance (OR), without notifying the
district attorney's office, after the police arrested D'Amore on a bench warrant issued by a
different district court judge;
Count V, that Judge Mosley violated NCJC Canon 3B(7) by engaging in an ex parte
telephone conversation with Catherine Woolf, an attorney representing Joseph McLaughlin in
a criminal case that was assigned to Judge Mosley's chambers for sentencing;
Count VI, that Judge Mosley violated NCJC Canon 3B(7) in August 1997 by engaging in
an ex parte conversation in his chambers with Woolf;
Count VII, that Judge Mosley violated NCJC Canon 3B(7) in August 1997 by participating
in an ex parte conversation with Woolf, McLaughlin and McLaughlin's wife;
Count VIII, that Judge Mosley violated NCJC Canons 1, 2, 2A and 2B by failing to recuse
himself from McLaughlin's criminal case until after Mrs. McLaughlin had testified in Judge
Mosley's custody case;
Count IX, that Judge Mosley violated NCJC Canons 1, 2 and 2B by communicating with
McLaughlin's wife regarding McLaughlin's incarceration;
Count X, that Judge Mosley violated NCJC Canons 1, 2 and 2B by assisting McLaughlin's
wife in obtaining the return of her vehicle; and
Count XI, that Judge Mosley violated NCJC Canons 1, 2, 2A and 2B by continuing to
communicate with McLaughlin and his wife after October 10, 1997, the date of Judge
Mosley's recusal in the McLaughlin case, the continued communication creating an
appearance that Judge Mosley was rewarding the McLaughlins for assisting him in his
custody dispute.
wife after October 10, 1997, the date of Judge Mosley's recusal in the McLaughlin case, the
continued communication creating an appearance that Judge Mosley was rewarding the
McLaughlins for assisting him in his custody dispute.
From February 25, 2002, through February 28, 2002, the Commission conducted a formal
evidentiary hearing. The Commission concluded that Judge Mosley had committed the
violations alleged in Counts I, II, III, IV, VI, VII, and VIII, and dismissed Counts V, IX, X,
and XI. The Commission also determined that the appropriate discipline was to require Judge
Mosley to attend the first general ethics course at the National Judicial College at his own
expense, to pay a $5,000 fine, and to receive strongly worded censures for violating ethics
rules.
Judge Mosley appeals, alleging that there was insufficient evidence to support the
Commission's findings and that the Commission erred in other respects. We conclude that
clear and convincing evidence supports the Commission's findings on all counts but Counts
III and IV and affirm the Commission's determination of the appropriate discipline for Judge
Mosley.
DISCUSSION
Standard of review
Rule 25 of the Procedural Rules for the Nevada Commission on Judicial Discipline (CPR)
provides that [c]ounsel appointed by the commission to present the evidence against the
respondent have the burden of proving, by clear and convincing legal evidence, the facts
justifying discipline in conformity with averments of the formal statement of charges. In
Goldman v. Nevada Commission on Judicial Discipline, this court held that Article 6, Section
21 of the Nevada Constitution does not contemplate this court's de novo or independent
review of factual determinations of the commission on appeal.
2
This court went on to say:
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.
3

____________________

2
108 Nev. 251, 267, 830 P.2d 107, 117-18 (1992), overruled on other grounds by Matter of Fine, 116 Nev.
1001, 1022 n.17, 13 P.3d 400, 414 n.17 (2000); see also Nev. Const. art. 6, 21.

3
108 Nev. at 267, 830 P.2d at 118.
Counts I & II: Use of judicial letterhead
[Headnotes 1, 2]
The evidence adduced at the hearing established that Judge Mosley and his ex-girlfriend,
Terry Mosley, who is also referred to as Terry Figliuzzi, have a child named Michael. Judge
Mosley and Figliuzzi have been involved in a bitter child custody dispute. In June 1998,
Judge Mosley was awarded custody of Michael. After that custody order was issued, Judge
Mosley sent two letters to Michael's school. Both of those letters were written on Eighth
Judicial District Court letterhead. The letters explained that Judge Mosley had been awarded
custody of his son, and asked that the school prohibit Figliuzzi from visiting Michael at
school.
The letters were addressed to the principals of Michael's school, Diane Reitz and Frank
Cooper. Reitz testified that it was part of the school's procedure to have a letter along with a
custody order placed in the student's file. Reitz and Cooper testified that they were not
influenced by the fact that Judge Mosley was a district court judge and that they knew, before
receiving the letters, that he was a judge.
The Commission found that Judge Mosley violated NCJC Canon 2B. For Counts I and II,
the Commission ordered Judge Mosley to attend the first available general ethics course at the
National Judicial College at his own expense.
NCJC Canon 2B provides, in pertinent part:
A judge shall not allow family, social, political or other relationships to influence the
judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial
office to advance the private interests of the judge or others; nor shall a judge convey or
permit others to convey the impression that they are in a special position to influence
the judge.
Whether judicial letterhead may be used for personal reasons is an issue of first impression
for this court. While NCJC Canon 2B does not specifically address the use of judicial
letterhead for personal purposes, the commentary to NCJC Canon 2B provides some
guidance:
Judges should distinguish between proper and improper use of the prestige of office in
all of their activities. For example, it would be improper for a judge to allude to his or
her judgeship to gain a personal advantage such as deferential treatment when stopped
by a police officer for a traffic offense. Similarly, judicial letterhead must not be used
for conducting a judge's personal business.
A judge must avoid lending the prestige of judicial office for the advancement of the
private interests of others. For example, a judge must not use the judge's judicial
position to gain advantage in a civil suit involving a member of the judge's family.
ample, a judge must not use the judge's judicial position to gain advantage in a civil suit
involving a member of the judge's family.
Judge Mosley asserts that he did not violate NCJC Canon 2B because both school
principals knew that he was a district court judge before he sent letters to them on judicial
letterhead. Judge Mosley also contends that because principals Cooper and Reitz did not
provide special treatment to Judge Mosley, he was not advancing his position by using his
judicial letterhead.
[Headnote 3]
The United States Supreme Court, in interpreting a section of the federal judicial code, has
held that a judge is not to be evaluated by a subjective standard, but by the standard of an
objective reasonable person, because people who have not served on the bench are often all
too willing to indulge suspicions and doubts concerning the integrity of judges.
4
In Inquiry
Concerning a Judge, an Alaska Supreme Court justice sent three letters on judicial chambers
stationery to opposing counsel regarding a personal matter.
5
The court held that it was
irrelevant that the intended recipients of the letters were not influenced in fact by the
chambers stationery.
6
The court noted that using judicial stationery for personal reasons
would likely cause the public to believe that the justice is unable to distinguish his judicial
activities from his personal ones. This failure to maintain separate interests could lead a
reasonable person to believe that petitioner's judicial decision-making ability similarly might
be flawed.
7

In interpreting the judicial canons, we adopt the objective reasonable person standard. In
applying that standard, we conclude that there was clear and convincing evidence produced at
the evidentiary hearing that an objective reasonable person could conclude that Judge Mosley
wrote letters on his judicial letterhead to his son's school in an attempt to gain a personal
advantage in violation of NCJC Canon 2B.
Counts III & IV: Ex parte communication and own recognizance (OR) release
[Headnote 4]
District Judge John McGroarty testified that in 1999 he was assigned a criminal case
concerning Robert D'Amore. According to Judge McGroarty, the case originally involved a
burglary and a theft, which was eventually negotiated to attempted theft.
____________________

4
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864-65 (1988).

5
822 P.2d 1333, 1336 (Alaska 1991).

6
Id. at 1341.

7
Id.
Judge McGroarty, the case originally involved a burglary and a theft, which was eventually
negotiated to attempted theft. Judge McGroarty stated that the plea bargain required D'Amore
to make restitution payments of $10,000 a month. Additionally, Judge McGroarty testified
that because D'Amore failed to attend some hearings or make payments, he issued a bench
warrant for $10,000. At the time Judge McGroarty issued the bench warrant, D'Amore had
entered a plea but had not been sentenced. D'Amore was eventually arrested on the bench
warrant.
Barbara Orcutt testified that in August 1999, she learned that D'Amore, a former
employee, had been arrested on a bench warrant. Orcutt stated that she called her friend,
Judge Mosley, to see if he would issue an OR release because D'Amore's mother was
concerned about D'Amore's health, and he would not be a flight risk.
Judge McGroarty testified that Judge Mosley contacted him and asked if he would mind if
Judge Mosley issued an OR release for D'Amore. Judge McGroarty testified that he would
not have issued an OR release because of the preexisting bench warrant. Additionally,
however, Judge McGroarty stated that he did not find his conversation with Judge Mosley
unethical. Judge McGroarty also testified that Judge Mosley had the power to issue an OR
release without consulting him and that the same type of situation had happened once or
twice before. When Judge McGroarty was asked whether a judge with equal jurisdiction had
overridden one of his bench warrants, he answered [n]ot of equal jurisdiction.
Peter Dustin, an investigative aide for the Las Vegas Metropolitan Police Department,
testified that he had several contacts with D'Amore. Dustin stated that he received a telephone
call from Judge Mosley in August 1999 asking him what he knew about D'Amore. According
to Dustin, he told Judge Mosley that D'Amore was a con man and that . . . if he was out he'd
probably do it again.
Judge Mosley stated that in his twenty-three years' experience as a district court judge, he
never called a district attorney regarding an OR release. Alexandra Chrysanthis, the district
attorney in D'Amore's case, testified that she would have objected to issuing D'Amore an OR
release had she been contacted. Judge Mosley testified that he had already made the decision
to grant the OR release before he spoke with Judge McGroarty, but called Judge McGroarty
as a matter of courtesy and policy. Further, Judge Mosley stated that Judge McGroarty
responded to his query about an OR release, Mos, it's your call. Judge Mosley ultimately
called the jail and granted D'Amore an OR release.
The Commission found that Judge Mosley violated NCJC Canons 1,
8
2,
9
2A and 3B(7)
10
by engaging in an ex parte communication with Orcutt regarding D'Amore's arrest and release
and violated NCJC Canons 1, 2, 2A and 2B by ordering the release of D'Amore on his OR at
Orcutt's request, without notifying the district attorney's office. The discipline that the
Commission ordered for the violations in Counts III and IV was a strongly worded censure.
Judge Mosley contends that the special prosecutor did not provide clear and convincing
evidence that he engaged in an improper ex parte communication with Orcutt. Instead, he
asserts that his ex parte communications were expressly authorized by law.
____________________

8
NCJC Canon 1 provides, in pertinent part: A judge should participate in establishing, maintaining and
enforcing high standards of conduct, and shall personally observe those standards so that the integrity and
independence of the judiciary will be preserved.

9
NCJC Canon 2 provides, in relevant part:
A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes
public confidence in the integrity and impartiality of the judiciary.
B. A judge shall not allow family, social, political or other relationships to influence the judge's
judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private
interests of the judge or others; nor shall a judge convey or permit others to convey the impression that
they are in a special position to influence the judge.

10
NCJC Canon 3B(7) provides:
A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer,
the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made to the judge outside the presence of the parties
concerning a pending or impending proceeding except that:
(a) Where circumstances require, ex parte communications for scheduling, administrative purposes or
emergencies that do not deal with substantive matters or issues on the merits are authorized; provided:
(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result
of the ex parte communication, and
(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte
communication and allows an opportunity to respond.
(b) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding
before the judge if the judge gives notice to the parties of the person consulted and the substance of the
advice, and affords the parties reasonable opportunity to respond.
(c) A judge may consult with court personnel whose function is to aid the judge in carrying out the
judge's adjudicative responsibilities or with other judges.
(d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers
in an effort to mediate or settle matters pending before the judge.
(e) A judge may initiate or consider any ex parte communications when expressly authorized by law
to do so.
According to Judge Mosley, it was common practice in the Eighth Judicial District for a
district judge to respond to calls from the public, police, district attorneys, and defense
attorneys regarding OR releases. Judge Mosley also asserts that under the totality of the
circumstances,
11
including the common practice in the district and the fact that his conduct
in speaking to Orcutt was not considered unethical by the other district judges, he should not
be found to have violated the code of conduct.
Testimony from a number of district court judges established that for many years, the
custom and practice of some judges in Clark County was consistent with Judge Mosley's ex
parte conversations with Orcutt. The judges testified that they would get calls from police
officers, defense attorneys and private citizens requesting OR releases, bail reductions or bail
increases for defendants in custody. This practice continued with the acquiescence of every
district attorney for over thirty years.
The practice usually occurred in situations in which the accused had not been brought
before a magistrate for an initial appearance, and it was understood that such relief would be
reviewed at the first appearance before the judge assigned to the case. Since all of the district
attorneys during the entire period acquiesced in the policy, it cannot be said that the ex parte
conversations were not approved by the opposing party. The district attorney at the time of
Judge Mosley's hearing and the judges who had been in private practice all had participated in
the custom of getting OR releases for clients and others. Also, police frequently relied upon
getting an OR release from a judge to help them in their law enforcement activities.
Judge Mosley's contact with Orcutt and his release of D'Amore was within the spirit of the
local practice. It is true that the local practice violated the Canons to the extent that the
general public may not have known about the procedures available and OR releases were
frequently granted upon the requests of a judge's family or friends, thus creating an
appearance of special favors. But, because of the custom and practice in Clark County,
however flawed, with the acquiescence of the district attorneys, we reverse the Commission's
finding that Judge Mosley violated NCJC Canons 1, 2, 2A and 3B(7) as alleged in Counts III
and IV.
12

____________________

11
See In re Greenberg, 318 A.2d 740, 741 (Pa. 1974) (noting that it is the court's duty to consider the
totality of all the circumstances when determining questions pertaining to professional and judicial discipline).

12
Although we reverse the findings of the Commission in this instance, nothing in our decision should be read
to suggest the judges in Clark County may continue the practices that do not comply with the recently enacted
Rule 3.80 of the Rules of Practice of the Eighth Judicial District Court.
Counts VI, VII, and VIII: Ex parte communication and delayed recusal
[Headnotes 5-8]
Joseph McLaughlin was charged with first-degree kidnapping with use of a deadly
weapon, robbery with use of a deadly weapon, burglary with use of a deadly weapon and
cheating at gambling. McLaughlin was represented on these charges by attorney Catherine
Woolf. Pursuant to plea negotiations, McLaughlin pleaded guilty to robbery and burglary
without the use of a deadly weapon, and agreed to testify against his co-defendant. In July
1997, McLaughlin's case was transferred to Judge Mosley.
Woolf testified that around August 1997, McLaughlin told her that Figliuzzi was living at
his house, and that he was unhappy with the way she was taking care of Michael, her son with
Judge Mosley. Woolf testified that McLaughlin was unaware at this time that his case had
been reassigned to Judge Mosley. Woolf also testified that she told McLaughlin that if he
cooperated with Judge Mosley in the child custody case, Judge Mosley would have to recuse
himself in McLaughlin's criminal case. She testified that she was unhappy that McLaughlin's
case had been transferred to Judge Mosley because he was known as a harsh sentencer.
Woolf subsequently met with Judge Mosley in his chambers. Only Woolf and Judge
Mosley were present, and neither Woolf nor Judge Mosley notified the district attorney.
Woolf testified that she stated at the beginning of the meeting that McLaughlin had been
assigned to his chambers for sentencing. Woolf testified that she informed Judge Mosley that
District Judge Gene Porter had taken McLaughlin's plea and that McLaughlin was
cooperating with the authorities on this case and on another case. Woolf also testified that
McLaughlin's sentencing date had been continued due to his cooperation in the other criminal
case. Woolf testified that they then discussed the information that McLaughlin and his wife
had concerning Michael. Woolf testified that Judge Mosley asked Woolf to meet with Judge
Mosley's attorney, Carl Lovell. Woolf stated that Judge Mosley never indicated at this
meeting that he was planning to recuse himself from McLaughlin's criminal case.
A second meeting took place at Lovell's office with Judge Mosley, Lovell, Woolf,
McLaughlin, and McLaughlin's wife. Woolf testified that at the meeting, Judge Mosley
discussed his son and the custody battle, asking a series of questions regarding Figliuzzi and
Michael. Woolf stated that at some point in the conversation, Woolf again mentioned that
Judge Mosley was assigned to McLaughlin's case. Lovell testified that he first became aware
at this meeting that McLaughlin's criminal case had been assigned to Judge Mosley. After the
meeting, the McLaughlins signed affidavits for Judge Mosley to use in his custody case.
According to Woolf's testimony, the McLaughlins testified in Judge Mosley's custody case
on October 10, 1997. At that point, Woolf stated that she had not received notification that
Judge Mosley had recused himself from McLaughlin's criminal case. Lois Bazar, Judge
Mosley's judicial assistant, testified that on the morning of October 10, 1997, the first day of
the child custody hearing, Judge Mosley told Bazar to recuse him from McLaughlin's case.
The district court entered the actual recusal order into the minutes on the afternoon of
October 10, 1997. Judge Mosley admitted that the recusal order was entered after
McLaughlin's wife testified in his custody case. Bazar testified that Judge Mosley's normal
practice was to wait until the next scheduled court date before he would recuse himself, and
that recusing himself before the date for McLaughlin's court appearance deviated from Judge
Mosley's normal practice.
The Commission held that Judge Mosley violated NCJC Canon 3B(7) for engaging in an
ex parte meeting with Woolf in his chambers as alleged in Count VI, that he violated NCJC
Canon 3B(7) by engaging in an ex parte meeting with Woolf and the McLaughlins at Lovell's
office as alleged in Count VII, and that he violated NCJC Canons 1, 2, 2A and 2B by failing
to recuse himself from the McLaughlin case until October 10, 1997, the date of the custody
hearing, as alleged in Count VIII. The discipline that the Commission imposed for Count VI
was a strongly worded censure, for Count VII attendance at the National Judicial College
ethics course, and for Count VIII a $5,000 fine.
Judge Mosley argues that his conversations were not ex parte communications because the
merits of the McLaughlin case were not discussed during the meetings. However, Woolf
testified that they did discuss the merits of McLaughlin's case. Woolf told him about
McLaughlin's plea and alleged that he was cooperating with the police. This is the very
information that a sentencing judge would considerthe fact that McLaughlin was
cooperating with authorities and testifying in another case. It is information that is not
appropriate for ex parte conversations and should only be communicated with the district
attorney present. The Commission could choose to believe Woolf's testimony.
Judge Mosley also argues that this situation concerned an emergency involving his son's
welfare. Even if an emergency was involved, the conditions under which ex parte meetings
are allowed were not followed, as NCJC Canon 3B(7)(a) provides, in pertinent part:
Where circumstances require, ex parte communications for . . . emergencies that do
not deal with substantive matters or issues on the merits are authorized; provided:
(i) the judge reasonably believes that no party will gain a procedural or tactical
advantage as a result of the ex parte communication, and
(ii) the judge makes provision promptly to notify all other parties of the substance of
the ex parte communication and allows an opportunity to respond.
Substantive matters in McLaughlin's case were discussed at the ex parte meeting, and
Judge Mosley did not notify the district attorney's office after the meeting took place.
Furthermore, there is also evidence that Woolf intended to gain a procedural advantage as a
result of these ex parte communications because she hoped Judge Mosley would have to
recuse himself if the McLaughlins testified at Judge Mosley's custody hearing. Even if the
judge did not know this, the judge had to realize that the McLaughlins would expect to get an
advantage in the criminal case by testifying in favor of the judge on a matter important to the
judge.
Count VIII addresses the timing of Judge Mosley's recusal from the McLaughlin case.
Judge Mosley did not recuse himself from that case until October 10, 1997, the day of the
child custody hearing. Since McLaughlin's attorney had not been notified of any recusal by
Judge Mosley by the time of the hearing, it can be inferred that the McLaughlins did not
know. Mrs. McLaughlin had already testified on behalf of Judge Mosley by the time of the
recusal.
Since Judge Mosley had not recused himself, the McLaughlins may reasonably have
believed that if they testified favorably to Judge Mosley in his child custody case,
McLaughlin would have an advantage at sentencing. Judge Mosley's delay in recusing
himself also raises the implication that he wanted to make sure the testimony was in his favor,
not that he wanted to see if the testimony was genuine, as he alleges.
Judge Mosley asserts that a recusal is not required at any particular time so long as it is
accomplished. Judge Mosley also argues that judges do not have a duty to recuse themselves
unless a clear and valid reason exists for doing so.
13
Therefore, Judge Mosley argues that he
was not unreasonable in waiting to determine whether the McLaughlins' testimony was
genuine before he recused himself.
We conclude that Judge Mosley is wrong. Judge Mosley should have recused himself
immediately after he received a telephone call from Woolf notifying him that the
McLaughlins had information about his custody case and that Mr. McLaughlin was assigned
to his chambers for sentencing.
____________________

13
See Ham v. District Court, 93 Nev. 409, 414, 566 P.2d 420, 423 (1977) (noting that [a] judge has a
discretion to disqualify himself as a judge in a case if he feels he cannot properly hear the case because his
integrity has been impugned' (quoting State v. Allen Superior Court No. 3, 206 N.E.2d 139, 142 (Ind. 1965))).
his chambers for sentencing. As the Wisconsin Supreme Court observed in Disciplinary
Proceedings Against Carver,
14
there is a danger that a judge's failure to immediately recuse
himself would lead others to conclude that the judge was not going to do so. A reasonable,
objective observer could conclude that the judge was using his position for personal
advantage, thereby diminishing public confidence in the integrity and impartiality of the
judiciary. Therefore, we conclude that the Commission did not err in determining that Judge
Mosley violated NCJC Canons 1, 2, and 3B(7).
Expert witness
[Headnote 9]
Judge Mosley asserts that the Commission violated the Due Process Clauses of the Nevada
and United States Constitutions by excluding the testimony of his expert witness, Professor
Stempel. Stempel had been watching the proceedings from the beginning and was to act as a
summary witness, stating his opinion as to whether Judge Mosley had violated the rules of
ethics.
[Headnote 10]
Under the Commission rules, the Nevada rules of evidence apply. NRS 50.275 provides
that an expert may testify [i]f scientific, technical or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue. We have held that
[w]hether expert testimony will be admitted, as well as whether a witness is qualified to be
an expert, is within the district court's discretion, and this court will not disturb that decision
absent a clear abuse of discretion.
15
The goal of expert testimony is to provide the trier of
fact a resource for ascertaining truth in relevant areas outside the ken of ordinary laity.'
16
The Commission determined that its members did not require expert assistance to decide
whether Judge Mosley's conduct violated the canons. The Commission had that discretion. As
an article in the Judicial Conduct Reporter states:
Judicial conduct organizations often have the difficult job of determining ethical
issues of first impression in their states, or perhaps, nationally. That important job
should not be delegated to an expert witness in a proceeding. No legal scholar or judge
familiar with the customs of a judicial community possesses unique knowledge of
ethical standards that is more reliable than the independent decision-making of the
members of the judicial conduct organization.
____________________

14
531 N.W.2d 62, 69 (Wis. 1995).

15
Mulder v. State, 116 Nev. 1, 12-13, 992 P.2d 845, 852 (2000).

16
Prabhu v. Levine, 112 Nev. 1538, 1547, 930 P.2d 103, 109 (1996) (quoting Townsend v. State, 103 Nev.
113, 117, 734 P.2d 705, 708 (1987)).
of the judicial conduct organization. By relying on their own expertise as
representatives of the public and legal community, rather than the opinions of experts, a
judicial conduct commission fulfills its official public responsibility to formulate the
appropriate ethical standards for their states.
17

Judge Mosley argues that other witnesses were used as experts and asked hypothetical
questions, and therefore, he had a right to call his expert. Considering that both sides had
elicited opinions on ethics throughout the hearing from most witnesses, the testimony could
well have been cumulative. We conclude that the Commission did not abuse its discretion in
excluding Judge Mosley's expert witness.
Hypothetical questions
During the evidentiary hearing, the Commission members asked a number of hypothetical
questions of various witnesses. Judge Mosley contends that his due process rights were
violated when the commissioners and the special prosecutor asked unqualified expert
witnesses hypothetical questions. We disagree.
NRS 50.265 provides that lay witness testimony must be [r]ationally based on the
perception of the witness and [h]elpful to a clear understanding of his testimony or the
determination of a fact in issue. The hypothetical questions that the Commission asked of
judges and attorneys were all questions that would be helpful to determine a fact in issue,
since most of the questions related to Judge Mosley's defense that his actions were part of a
common practice in the Eighth Judicial District. The suggestion that the judges and attorneys
were unqualified to give their observations and opinions on the common practice in the
district is without merit. Both sides asked hypothetical questions of witnesses, most without
objection. The Commission was within its discretion to ask the questions and did not violate
Judge Mosley's right to due process.
The Commission's public statements
[Headnote 11]
Finally, Judge Mosley contends that the Commission made an improper statement in
violation of CPR 7. We disagree.
CPR 7 provides:
In any case in which the subject matter becomes public, through independent
sources, or upon a finding of reasonable probability and filing of a formal statement of
charges, the commission may issue statements as it deems appropriate in order to
confirm the pendency of the investigation, to clarify the procedural aspects of the
disciplinary proceedings, to explain the right of the respondent to a fair hearing
without prejudgment, and to state that the respondent denies the allegations.
____________________

17
Marla N. Greenstein & Steven Scheckman, The Judicial Ethics Expert Witness, Jud. Conduct Rep., Winter
2001, at 1.
order to confirm the pendency of the investigation, to clarify the procedural aspects of
the disciplinary proceedings, to explain the right of the respondent to a fair hearing
without prejudgment, and to state that the respondent denies the allegations. At all
times, however, the commission, its counsel and staff shall refrain from any public or
private discussion about the merits of any pending or impending matter, or discussion
which might otherwise prejudice a respondent's reputation or rights to due process.
On May 9, 2000, Leonard Gang, the Executive Director of the Judicial Discipline
Commission at that time, stated in a Las Vegas Review-Journal article that:
[H]e could not speak about Mosley's contentions that the commission is
unconstitutional.
Gang said every state has a judicial discipline commission, and the constitutionality
of Nevada's commission has been upheld by the court.
The commissions around the United States are all pretty similar, Gang said. I
know of no one that has been found unconstitutional.
Judge Mosley asserts that Gang's comments created an appearance of partiality on the part of
the Commission because Gang directly attacked the merits of Judge Mosley's legal position.
We conclude that Judge Mosley's argument is without merit. Gang's comment merely
discussed the law and did not address the merits of Judge Mosley's case.
CONCLUSION
We affirm the Commission's determination that Judge Mosley violated NCJC Canons 1, 2,
2A, 2B, and 3B(7) in Counts I, II, VI, VII and VIII and the imposition of the discipline
requiring Judge Mosley to attend the next general ethics course at the National Judicial
College, to pay a $5,000 fine to the Clark County library or a related library foundation, and
to receive censures for unethical conduct. We reverse the determination of violations in
Counts III and IV.
Agosti, J., concurs.
Maupin, J., with whom Becker, J., and Puccinelli, D. J., agree, concurring in part and
dissenting in part:
I agree with our affirmation today of the discipline imposed by the Nevada Commission on
Judicial Discipline in connection with Counts I, II, VI, VII and VIII of the complaint against
Judge Mosley. In accordance with the majority, I would reverse the discipline imposed under
Count III.
cipline imposed under Count III. Departing from the majority, I would affirm the discipline
imposed with regard to Count IV. I write separately with regard to the discipline under
Counts III and IV. Count III concerns Judge Mosley's discussions with Barbara Orcutt; Count
IV concerns the release of Robert D'Amore.
For many years, magistrates and district judges in Clark County have released persons
charged with nonviolent offenses based upon ex parte communications with attorneys and
persons from the community at large, governed by the considerations set forth in NRS
178.4853. This practice has continued with the tacit agreement of the Clark County District
Attorney's Office under the administrations of Roy Woofter, George Holt, Bob Miller, Rex
Bell and Stewart Bell. However, this practice was generally restricted to situations in which
the accused had not been brought before a magistrate for an initial appearance, and it was
generally understood that such relief would be denied when another judge had been assigned
to the case. With the reservations noted by the majority, the practice provided essential
compliance with our judicial canons, and very few abuses of the practice have been
documented. In fact, the police and the district attorneys have for many years frequently relied
upon ex parte applications for release of inmates in aid of law enforcement initiatives.
1

In my view, the communications between Ms. Orcutt and Judge Mosley did not violate the
local practice. Thus, I agree with the majority in its reversal of the discipline imposed in
connection with Count III of the complaint. However, Judge Mosley should have never
proceeded to release D'Amore on his own recognizance. D'Amore had apparently absconded
following entry of a negotiated plea of guilty to a felony and was in custody pursuant to a
bench warrant. Under these circumstances, Judge John McGroarty, the presiding judge in the
case, was not inclined to release D'Amore, and Judge Mosley must have known that the
district attorney would have opposed the release.
____________________

1
I am the first to admit that the general practice was in part flawed because the general public did not have
access to the practice except through persons acquainted with municipal judges, justices of the peace and district
court judges. This court, in its recent changes to the Rules of Practice for the Eighth Judicial District, specifically
delineated the circumstances under which judges may reduce bail without contact with the state pursuant to
ADKT 340. In my dissent, I noted my preference for creating
an on-call system for judges and deputy district attorneys and deputy city attorneys to review informal
applications for bail reductions; in this way, general access to bail reductions prior to an initial
appearance would be achieved.
In the Matter of the Proposed Eighth Judicial District Court Rule (EDCR 3.80) Regarding Release From
Custody or Bail Reduction, ADKT 340 (Order Adopting Rule 3.80 of the Rules of Practice for the Eighth
Judicial District Court of the State of Nevada, May 23, 2003).
have opposed the release. Finally, the evidence before the Commission suggests that, while
Judge Mosley contacted Judge McGroarty, he did so only as a formality, having determined
to release D'Amore in any event. In short, this exercise of judicial power had every
appearance of an act of favoritism taken without regard to its merits.
Because Judge Mosley's release of D'Amore was not in conformity with the then-accepted
practice of issuing such releases without initiating contact with the district attorney's office,
and because this release clearly implicates Canon 2 of the Nevada Code of Judicial Conduct,
we should affirm the Commission's imposition of discipline under Count IV of the complaint.
Rose, J., concurring in part and dissenting in part:
I concur with the majority's conclusion, except that I do not believe that there was clear
and convincing evidence produced to support the allegations made in Count VII, concerning
the ex parte communications in Lovell's office. The record indicates that during Mr. Pitaro's
cross-examination of Woolf, he specifically asked Woolf whether the communication in
Lovell's office as alleged in Count VII was an improper ex parte communication. Woolf
responded negatively and explained that nothing about the case was discussed other than the
fact that McLaughlin was a defendant in front of Judge Mosley. Thus it appears that, although
Judge Mosley did engage in communications with McLaughlin and Woolf absent the
presence of, or notification to, the State, the communications at Lovell's office did not pertain
to the merits of McLaughlin's pending criminal proceeding. The Commission was presented
with no testimony to show that the merits of McLaughlin's case were discussed during the
communications at Lovell's office. To the contrary, other than Woolf's mention of the
procedural posture of McLaughlin's case, it appears that Judge Mosley's communications with
McLaughlin and Woolf were limited to the subject of Terry Figliuzzi's parenting of Michael,
and these communications did not affect the substance or merits of the State's prosecution of
McLaughlin.
1
While Judge Mosley may have been using his position as a judge presiding
over McLaughlin's case to obtain favorable evidence in his custody case with Terry Figliuzzi,
that is not the charge brought against him. Therefore, I conclude that there was by definition
no violation of the ban on ex parte contacts concerning a pending or impending proceeding,
and Judge Mosley did not violate NCJC Canon 3(B)(7) as regards Count VII.
____________________

1
See Matter of Varain, 114 Nev. 1271, 1277, 969 P.2d 305, 309 (1998) (observing that the judge's brief
communication with the defendant did not affect the substance or merits of the State's prosecution).
I respectfully dissent from the majority's conclusion that we should affirm the decision of
the Nevada Commission on Judicial Discipline.
We have previously held that precluding the admission of evidence that supports an
expert's opinion may constitute an abuse of discretion.
1
In Born v. Eisenman,
2
a patient sued
two surgeons for medical malpractice in performing an abdominal surgery. The surgeons'
experts testified that the patient's injuries could not have resulted from the surgeons'
negligence because such result was medically impossible.
3
Judge Mosley, as the presiding
district judge, precluded the patient's expert from referring to a prior Colorado case describing
a similar surgical event, and the jury found for the surgeons.
4
We reversed Judge Mosley's
decision and concluded that he abused his discretion by prohibiting the patient's expert from
referring to the Colorado case while allowing the surgeons' experts to testify as to medical
impossibility.
5

The case at bar goes a step further. Jeffrey Stempel, a professor of law and author of
several articles on legal ethics, proposed to testify on Judge Mosley's behalf. Professor
Stempel attempted to render an opinion on the judicial ethics questions in this case, but the
Commission precluded his testimony.
In Pineda v. State, we held that a defendant is entitled to call an expert witness when the
expert's testimony will be helpful to the trier of fact and corroborates the theory of defense.
6
We held that [t]he due process clauses in our constitutions assure an accused the right to
introduce into evidence any testimony or documentation which would tend to prove the
defendant's theory of the case.'
7
Judge Mosley planned to call Professor Stempel to testify
regarding whether Judge Mosley violated the code of judicial conduct. Professor Stempel's
testimony was intended to advance Judge Mosley's theory of the case. Accordingly, due
process requires that Judge Mosley be allowed to present that testimony.
The majority cites to an article from the Judicial Conduct Reporter to support its decision
to deny Judge Mosley's right to due process. The authors of that article conclude that [n]o
legal scholar or judge . . . possesses unique knowledge of ethical standards that is more
reliable than the independent decisionmaking of the members of the judicial conduct
organization.
____________________

1
Born v. Eisenman, 114 Nev. 854, 962 P.2d 1227 (1998).

2
Id. at 855-56, 962 P.2d at 1228.

3
Id. at 858, 962 P.2d at 1229-30.

4
Id. at 857-58, 962 P.2d at 1229-30.

5
Id. at 861, 962 P.2d at 1231.

6
120 Nev. 204, 213, 88 P.3d 827, 833-34 (2004).

7
Id. at 214, 88 P.3d at 834 (quoting Vipperman v. State, 96 Nev. 592, 596, 614 P.2d 532, 534 (1980)
(emphasis added)).
making of the members of the judicial conduct organization.
8
I disagree. Judge Mosley's
right to procedural due process trumps the authors' opinions.
Apart from due process considerations, there are other valid justifications for admitting
expert testimony on judicial ethics. West Virginia University College of Law Professor Carl
M. Selinger has detailed three such justifications: (1) the inaccessibility of legal ethics law,
(2) the advantage of objectivity, and (3) the advantage of cross-examination.
9

First, the relative inaccessibility of legal ethics law supports the admission of expert
testimony. [A]s more ethics rules are drafted to cover only lawyers in particular practice
contexts, it is possible for such rules to be much more accessible to, and readily understood
by some lawyers than others.
10
Such inaccessibility may support the admission of expert
testimony even where the decision maker is relatively familiar with the rules at issue. This is
true because the decision to consider expert testimony, subject to cross-examination, is
superior to relying only on the judge's, or a law clerk's, independent research, or on the
arguments of non-scholar advocates.
11
I suggest that this proposition is also applicable to
cases tried before the Commission on Judicial Discipline.
Further, the admission of expert testimony provides the advantage of objectivity. From
the point of view of achieving justice, the main advantage that can be cited for the admission
of legal ethics expert testimony is that it provides decisionmakers with more objective
analysis of the issues than they would gain from advocacy alone.
12
This is true because the
scholar expert has no attorney-client relationship with the accused; thus, he has no duty to
tailor his testimony regarding the alleged ethical violations to fit the defense's theory of the
case. Indeed, such tailoring would ruin the scholar's reputation as an expert in the field whose
opinions could be trusted by courts and disciplinary bodies.
13

Finally, the admission of expert testimony provides the advantage of cross-examination.
As Professor Selinger states, the opportunity for cross-examination allows for a more
thorough analysis of the expert's opinion regarding ethical violations:
____________________

8
Marla N. Greenstein & Steven Scheckman, The Judicial Ethics Expert Witness, Jud. Conduct Rep., Winter
2001, at 1.

9
See Carl M. Selinger, The Problematical Role of the Legal Ethics Expert Witness, 13 Geo. J. Legal Ethics
405, 409-18 (2000). Though Professor Selinger ultimately concluded that other ethical concerns outweigh these
justifications, he did not suggest that the justifications are without merit. Rather, his article endorsed the use of
ethics experts as advocates, as opposed to expert witnesses, as a better means of determining whether particular
activities constitute ethical violations. Id.

10
Id. at 411.

11
Id.

12
Id. at 414.

13
Id.
for cross-examination allows for a more thorough analysis of the expert's opinion regarding
ethical violations:
[I]f an expert testifies before the court, cross-examination is available. Thus, the bases
of the expert's conclusions can be tested. However, if the court simply reads law review
articles or books written by that same expert, cross-examination is not available and it
is more difficult to attack the reliability of the opinions expressed.
14

Thus, this testimony allows the decision maker to consider the expert's objective opinion
regarding the alleged ethical violations. Admission further subjects the testimony to scrutiny
from both the disciplinary body and opposing counsel. I submit that this system, though not
universally endorsed, is preferable to the decision to deny Judge Mosley's right to present
expert testimony in support of his theory of the case.
In conclusion, the Commission's actions were improper and constitute an abuse of
discretion. Judge Mosley had a due process right to present expert testimony in support of his
theory of the case. Furthermore, Professor Stempel's testimony may have been helpful to the
Commission in reaching its decision. Accordingly, I would reverse the decision and remand
this case to the Commission with instructions to consider Professor Stempel's testimony.
____________
120 Nev. 928, 928 (2004) Seres v. Lerner
DONNA SERES, Appellant, v. JIMMY A. LERNER,
Respondent.
No. 40938
December 21, 2004 102 P.3d 91
Appeal from an order of the district court granting a motion to dismiss. Second Judicial
District Court, Washoe County; Brent T. Adams, Judge.
Daughter of manslaughter victim brought action against felon, who wrote a book regarding
the killing of the victim, under the Son of Sam law, seeking recovery of felon's book
proceeds. The district court found law to be unconstitutional and dismissed action. Daughter
appealed. The supreme court, Maupin, J., held that: (1) law constituted State action for
purposes of First Amendment, (2) law was a content-based restriction on speech, and (3) law
was unconstitutionally overinclusive under the First Amendment.
Affirmed.
____________________

14
Id. at 417 (quoting Charles W. Ehrhardt, The Conflict Concerning Expert Witnesses and Legal
Conclusions, 92 W. Va. L. Rev. 645, 672 (1990)).
Hardy & Associates and Ian E. Silverberg, Reno, for Appellant.
Law Offices of Freeman & Routsis and Scott N. Freeman, Reno; Law Offices of Kenneth
E. Lyon and Kenneth E. Lyon III, Reno, for Respondent.
Brian Sandoval, Attorney General, and Robert E. Wieland, Deputy Attorney General,
Carson City, for Amicus Curiae.
1. Appeal and Error; Constitutional Law.
Supreme court presumes that a statute is constitutional and reviews a statute's
constitutionality de novo.
The party challenging the statute bears the burden of proving that the statute is
unconstitutional.
First Amendment jurisprudence dictates that legislatively created content-based
restrictions on speech satisfy strict scrutiny review under which any such measure must
address a compelling state interest and be narrowly tailored to achieve that interest;
overinclusive content-based measures fail this level of scrutiny. U.S. Const. amend. 1.
The First Amendment protects individuals only against government, not private,
infringements upon free speech rights. U.S. Const. amend. 1.
The Son of Sam law, which allowed a felony victim to recover from the felon any
monetary proceeds the felon might generate from published materials based upon or
substantially related to the offense, constituted state action for purposes of the First
Amendment's free speech protection, even though the law did not provide for direct
confiscation by the state for placement of proceeds received by the offender in a
state-managed escrow account; the law contemplated enforcement under the state's levy
and execution statutes, and thus, judicial enforcement of the legislation involved state
action restricting speech. U.S. Const. amend. 1; NRS 217.007.
A statute is content neutral for First Amendment purposes if it serves objectives that
are not related to the expression's content, even though it might unintentionally affect
certain speakers or messages. U.S. Const. amend. 1.
If the proposed expression's contents must be reviewed in order to determine
whether the statute applies, then the statute is a content-based restriction on speech
under the First Amendment. U.S. Const. amend. 1.
The Son of Sam law, which allowed a felony victim to recover from the felon any
substantially related to the offense, was a content-based restriction on speech for
purposes of the First Amendment; the statute placed a direct financial burden only on
speech with a specified and particular content, that being reference to the felony itself.
U.S. Const. amend. 1; NRS 217.007.
Although the Son of Sam law, which allowed a felony victim to recover from the
felon any monetary proceeds the felon might generate from published materials based
upon or substantially related to the offense, served a compelling state interest in the
compensation of crime victims and in the prevention of direct profiteering from
criminal misconduct, the law was overinclusive, and thus, violated the First
Amendment in that the law provided recovery of proceeds from any contribution to any
material that was based upon or substantially related to the felony, even works only
partially or tangentially related to the felony and not calculated to exploit criminal
misconduct, and was not limited to convicted felons. U.S. Const. amend. 1; NRS
217.007.
1

OPINION
In this appeal, we consider the constitutionality of NRS 217.007, Nevada's Son of Sam
law. In general terms, NRS 217.007 allows a felony victim to recover from the felon any
substantially related to the offense. Damage awards derived from actions brought after
expiration of applicable statutes of limitation for tort damages are limited to publication
proceeds. We hold that NRS 217.007 violates the First Amendment of the United States
Constitution.
In 1998, a district court in Washoe County, Nevada, convicted respondent Jimmy Lerner
of manslaughter in connection with the death of Mark Slavin. While incarcerated in the
Nevada State Prison, Lerner wrote a book entitled, You Got Nothing Coming, Notes from a
Prison Fish, which was published by Broadway Books and Random House in 1999. This
book detailed Lerner's imprisonment and contained descriptions of the events surrounding the
killing of Mr. Slavin.
Appellant Donna Seres, Mr. Slavin's sister, sued Lerner pursuant to NRS 217.007 on
behalf of her mother, Gertrude Slavin, after expiration of the statute of limitations for
bringing a wrongful death action.
2
Seres sought recovery of Lerner's book proceeds,
imposition of a constructive trust and an accounting.
The district court granted Lerner's motion to dismiss Seres's NRS 217.007 action under
Simon & Schuster, Inc. v. Members of New York State Crime Victims Board,
____________________

1

2
See NRS 11.190.
New York State Crime Victims Board,
3
a 1991 United States Supreme Court decision, which
voided a similar Son of Sam statute based upon First Amendment considerations. Seres filed
her timely notice of appeal. We affirm.
DISCUSSION
This appeal concerns Lerner's successful challenge to the validity of NRS 217.007 under
the First Amendment to the United States Constitution.
Standard of review
[Headnotes 1, 2]
We presume that a statute is constitutional and review a statute's constitutionality de novo.
4
The party challenging the statute bears the burden of proving that the statute is
unconstitutional.
5

[Headnote 3]
First Amendment jurisprudence dictates that legislatively created content-based
restrictions on speech satisfy strict scrutiny review under which any such measure must
address a compelling state interest and be narrowly tailored to achieve that interest.
6
Overinclusive content-based measures fail this level of scrutiny.
Historical perspectives
New York enacted the first Son of Sam law
7
in 1977, in response to the possibility that
David Berkowitz, a serial killer popularly known as the Son of Sam, might sell the
publication rights to his memoirs. The measure was calculated to ensure that monies received
by criminals in connection with published storytelling about their criminal activities be made
available to compensate victims.
8
The statute required that entities contracting with an
accused or convicted person for the production of a work depicting his or her crime submit
the contract to a crime victim's board and turn over any income owed to the perpetrator to the
board for deposit in an escrow account administered by the state.
9
The measure defined
persons convicted of a crime in such a way as to include individuals who had never been
accused or convicted.
____________________

3
502 U.S. 105 (1991).

4
United States v. State Engineer, 117 Nev. 585, 603, 27 P.3d 51, 62 (2001) (Becker, J., concurring in part
and dissenting in part).

5
Id. (Becker, J., concurring in part and dissenting in part).

6
Simon & Schuster, 502 U.S. at 118.

7
See N.Y. Exec. Law 632-a(1) (McKinney 1982).

8
Simon & Schuster, 502 U.S. at 109.

9
Id.
individuals who had never been accused or convicted.
10
A victim of the crime could then
commence a civil suit to recover a money judgment against the perpetrator and obtain funds
from the escrow account.
11
The statute also provided a right of recovery, based upon a
hierarchy of priorities, by state victims' compensation funds and/or the offender's other
creditors. Following New York's lead, the federal government and a majority of states have
enacted similar Son of Sam statutes.
12

In Simon & Schuster, the United States Supreme Court voided New York's Son of Sam
law as inconsistent with the First Amendment.
13
The Court first determined that the measure
was content-based because [i]t single[d] out income derived from expressive activity for a
burden the State place[d] on no other income, and it [was] directed only at works with a
specified content.
14
Having determined that the measure was content based, the Court went
forward with its strict scrutiny analysis, concluding that, while compensating victims of
crimes and preventing profit from criminal wrongdoing were compelling state interests, the
New York statute was not narrowly tailored to meet those goals because it applied to a
potentially very large number of works.
15
More particularly, the Court found the statute
significantly overinclusive because it applied to the entirety of proceeds from works on any
subject, provided that they expressed the author's thoughts or recollections about his crime,
however tangentially or incidentally, and regardless of whether the work was written for
nonexploitative purposes.
16
The Court also found the New York statute overinclusive
because the board could seize proceeds from works by persons never prosecuted or convicted,
when the author included an admission in the published work.
17
In this, the Court noted,
among other things, that the entire proceeds could be seized even though the act admitted did
little harm.
18
In light of the Simon & Schuster decision, several state courts have examined
the constitutionality of their respective Son of Sam laws.
____________________

10
Id. at 110.

11
Id. at 109-10; N.Y. Exec. Law 632-a(4), 632-a(7) (McKinney 1982).

12
Simon & Schuster, 502 U.S. at 115; see 18 U.S.C. 3681 (2000); Karen M. Ecker & Margot J. O'Brien,
Note, Simon & Schuster, Inc. v. Fischetti: Can New York's Son of Sam Law Survive First Amendment
Challenge?, 66 Notre Dame L. Rev. 1075, 1075-76 n.6 (1991) (listing the federal government and
approximately forty states as having passed similar laws to redirect criminal profits).

13
502 U.S. at 115, 123.

14
Id. at 116.

15
Id. at 121.

16
Id. at 121-22.

17
Id. at 121.

18
Id. at 123.
decision, several state courts have examined the constitutionality of their respective Son of
Sam laws.
19

Nevada's Son of Sam statute
The Nevada Legislature first enacted a Son of Sam law in 1981.
20
Like the New York
statute, the initial Nevada legislation required payment of a felon's publication proceeds into a
fund to provide victim compensation and to prevent profiteering from criminal misconduct.
21
In 1993, the Nevada Legislature revised its Son of Sam statute, recodified as NRS 217.007, in
an attempt to address the constitutional issues raised in [Simon & Schuster].
22

NRS 217.007 now provides:
1. A victim may commence any action specified in NRS 11.190, 11.215 or 207.470
which arises from the commission of a felony, against the person who committed the
felony within 5 years after the time the person who committed the felony becomes
legally entitled to receive proceeds for any contribution to any material that is based
upon or substantially related to the felony which was perpetrated against the victim.
2. If the limitation period established in NRS 11.190, 11.215 or 207.520 has
otherwise expired, the liability of the person committing the felony to a victim imposed
under this section must be limited to the value of the proceeds received by the person
who committed the felony for any contribution to material that is based upon or
substantially related to the felony which was perpetrated against the victim.
3. For purposes of this section:
(a) Material means a book, magazine or newspaper article, movie, film, videotape,
sound recording, interview or appearance on a television or radio station and live
presentations of any kind.
(b) Proceeds includes money, royalties, real property and any other consideration.
(c) Victim means any person:
____________________

19
E.g., Keenan v. Superior Court, 40 P.3d 718, 731 (Cal. 2002) (declaring California's Son of Sam statute
unconstitutional under the First Amendment); In re Opinion of the Justices to the Senate, 764 N.E.2d 343 (Mass.
2002) (ruling that proposed Son of Sam legislation violated the right of freedom of speech of both the federal
and state constitutions); Bouchard v. Price, 694 A.2d 670 (R.I. 1997) (concluding that the criminal royalties act
was inconsistent with the First Amendment).

20
See NRS 217.265 (repealed 1993 and replaced by NRS 217.007).

21
Nevada Legislative Counsel Bureau, Research Div., 67th Leg., Summary of Legislation 2 (Nev. 1993).

22
Id.; see also S.B. 291, 67th Leg. (Nev. 1993).
(1) Against whom a crime has been committed;
(2) Who has been injured or killed as a direct result of the commission of a crime; or
(3) Who is the surviving spouse, a parent or a child of such a person.
23

The legislative history summarizes that the revision was designed to extend[ ] the statute
of limitations for a victim of a felony with respect to money or property gained by the
offender as a result of notoriety.
24
Notably, the revisions eliminated the state-administered
fund feature of the old legislation.
The district court's ruling
The district court found a First Amendment violation despite its determination that NRS
217.007, a content-based restriction on speech, addresses compelling state interests in
reimbursing crime victims and prohibiting profiteering from criminal activity. Given a
distinct chilling effect upon an author's incentive to create expressive conduct not covered by
statute, the district court concluded that the Legislature failed to narrowly tailor the measure
to those interests. Mirroring the strict scrutiny approach taken by the United States Supreme
Court in Simon & Schuster, the court observed:
NRS 217.007 is overinclusive. NRS 217.007 allows actions against proceeds from
expressive conduct substantially related to the felony which was perpetrated against
the victim. During the hearing on this matter, plaintiff's counsel agreed that the statute
would allow recovery of proceeds from a book that is two-thirds about prison
experience or religious conversion and one-third about the felony resulting in
imprisonment. NRS 217.007 would allow recovery of proceeds from a book that is
ninety percent about religious matters and ten percent about the felony. Counsel from
the Office of the Nevada Attorney General seemed to agree. The statute thereby
achieves the compelling state interest of preventing a felon from profiting by
commission of a felony. However, it does so by chilling the incentive to create
expressive conduct that has little or no relationship to the exploitation of criminal
misdeeds. . . . Thus, NRS 217.007 . . . cannot survive the strict scrutiny analysis.
25

____________________

23
Seres, as Mr. Slavin's sister, does not qualify as a victim under NRS 217.007(3)(c), but her mother, on
whose behalf Seres sued, does qualify.

24
Nevada Legislative Counsel Bureau, Research Div., 67th Leg., Summary of Legislation 2 (Nev. 1993).

25
The district court additionally concluded that NRS 217.007 is underinclusive, i.e., so narrowly tailored that
it fails to support a compelling state interest. Because we conclude that NRS 217.007 is overinclusive and
therefore can-
The parties raise issues concerning whether NRS 217.007 involves state action, is content
based, and narrowly addresses compelling state interests. Because our agreement with the
district court overturns a comprehensive piece of state legislation enacted with a most
salutary purpose, this opinion separately resolves each of the First Amendment issues raised
by the parties.
State action
[Headnotes 4, 5]
It is fundamental that the First Amendment protects individuals only against government,
not private, infringements upon free speech rights.
26
We have recognized that the First
Amendment only applies to the abridgment of the right of free speech by the federal or state
government.
27
Thus, to apply to the states, the infringement must involve state action.
28

Appearing as amicus curiae, the Attorney General posits that NRS 217.007 does not
involve state action because it involves no direct regulation of expressive conduct by the
State, does not provide for automatic confiscation of funds by the state, and authorizes no
mechanism for the state to take any action against the offender. From this, both Seres and the
Attorney General argue that the 1991 revisions deleting the state-fund provision that marked
the original Nevada legislation eliminated any vestige of state action. Lerner argues that NRS
217.007 is a statute of general applicability, implicating state action.
Certainly, in contrast to the New York Son of Sam statute, NRS 217.007 does not provide
for direct confiscation by the state for placement of proceeds received by the offender in a
state-managed escrow account. We conclude, however, that judicial enforcement of state
legislation involves state action restricting speech implicating the First Amendment. As noted
below, NRS 217.007 legislatively creates an independent cause of action that contemplates
enforcement under the state's levy and execution statutes. Thus, while NRS 217.007
eliminated state confiscation and administration of funds that marked Nevada's first Son of
Sam legislation, the measure still implicates state action for First Amendment purposes.
29

____________________
not be so construed as to satisfy a strict scrutiny review, we need not address the district court's additional
determination that the statute is underinclusive.

26
George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1229 (9th Cir. 1996); see also Rendell-Baker v.
Kohn, 457 U.S. 830, 837 (1982).

27
S.O.C., Inc. v. The Mirage Casino-Hotel, 117 Nev. 403, 410, 23 P.3d 243, 247 (2001).

28
Id.

29
See Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).
Content-based restriction
[Headnotes 6, 7]
As stated in Simon & Schuster, [a] statute is presumptively inconsistent with the First
Amendment if it imposes a financial burden on speakers because of the content of their
speech.
30
A statute is neutral if it serves objectives that are not related to the expression's
content, even though it might unintentionally affect certain speakers or messages.
31
However, if the proposed expression's contents must be reviewed in order to determine
whether the statute applies, then the statute is a content-based restriction on speech.
32
And,
as noted, the Simon & Schuster Court concluded that the New York Son of Sam law was
content based because it single[d] out income derived from expressive activity for a burden
the State place[d] on no other income, and it [was] directed only at works with a specified
content.
33

[Headnote 8]
In line with Simon & Schuster, we conclude that, to the extent NRS 217.007 allows the
filing of claims after the expiration of statutes of limitation for wrongful death and other tort
claims, it is a content-based statute.
34
First, the Nevada Son of Sam statute explicitly and
exclusively applies to income received from speech concerning the crime committed. Second,
the Attorney General's theory that NRS 217.007 merely extends the statute of limitations
governing tort actions is unpersuasive because that extension exclusively relates to
proceeds of public expression.
____________________

30
502 U.S. at 115 (citing Leathers v. Medlock, 499 U.S. 439, 447 (1991)).

31
State ex rel. Napolitano v. Gravano, 60 P.3d 246, 252 (Ariz. Ct. App. 2002); see Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 47-48 (1986) (content-neutral regulations of speech are subject to an intermediate
level of scrutiny, thus they must further an important governmental interest that is unrelated to the suppression of
free speech and any incidental burden on free speech is no greater than necessary to further that interest).

32
Opinion of the Justices, 764 N.E.2d at 348.

33
502 U.S. at 116; see also Keenan, 40 P.3d at 728 (holding that a statute was content based because it
explicitly targets and confiscates a convicted felon's proceeds from speech or expressive conduct that includes
the story of the felon's crime); Opinion of the Justices, 764 N.E. 2d at 347-48 (concluding that proposed bill was
a content-based regulation because it burdens only expression with a particular content and placed a financial
burden on the speakers based upon the content of their speech); Bouchard, 694 A.2d at 676 (concluding that the
statute was content-based regulation because of its singular focus on the content of an expressive activity).

34
In her claim of content-neutrality, Seres relies upon State ex rel. Napolitano v. Gravano, 60 P.3d 246, 251
(Ariz. Ct. App. 2002), in which the Arizona Court of Appeals addressed whether the forfeiture of book royalties
under a racketeering statute violated the guarantee of freedom of speech. Seres's reliance upon Napolitano is
misplaced. NRS 217.007 is not a racketeering statute of general application and relates solely to compensation
generated from expressions concerning the perpetrator's crime against the victim. NRS 217.007(1), (2).
governing tort actions is unpersuasive because that extension exclusively relates to proceeds
of public expression.
35
Accordingly, NRS 217.007 places a direct financial burden only on
speech with a specified and particular content, that being reference to the felony itself.
Because NRS 217.007 is a content-based restriction on speech, the statute must pass a strict
scrutiny level of review, in line with relevant case authority.
Strict scrutiny/overinclusiveness
[Headnote 9]
We agree with the parties that Nevada has compelling interests in the compensation of
crime victims and in the prevention of direct profiteering from criminal misconduct.
36
Consequently, we consider whether the Nevada Legislature narrowly tailored NRS 217.007 to
meet these compelling interests.
Given the elimination of the former provisions requiring the payment of proceeds into a
state fund, two aspects of NRS 217.007 give rise to a strict scrutiny analysis under Simon &
Schuster: first, that the victim's ability to recover the proceeds from any contribution to any
material that is based upon or substantially related to the felony, and second, that potential
defendants in NRS 217.007 actions need not have been convicted for the crime against the
victim.
____________________

35
NRS 217.007 is probably content neutral to a narrow degree that is not implicated in this case. If the victim
commences litigation against the perpetrator within the applicable statute of limitations governing actions in tort,
and the plaintiff obtains a traditional damage recovery, the victim may execute upon any asset held by the
perpetrator, regardless of its source. Thus, to the extent that NRS 217.007 allows execution upon proceeds from
published works concerning the crime in the context of ordinary tort litigation, it adds nothing to the general
content-neutral civil remedies for felonious misconduct that preexisted its enactment. Having said this, to the
extent that the measure would allow recovery in an amount in excess of a traditional tort-based recovery, see
discussion infra, it remains a content-based restriction on speech.

36
NRS 217.007 limits recoveries to the proceeds of the felon's speech concerning the crime committed
against the victim. In this connection, the Court in Simon & Schuster observed:
The Board cannot explain why the State should have any greater interest in compensating victims from
the proceeds of such storytelling than from any of the criminal's other assets. Nor can the Board offer
any justification for a distinction between this expressive activity and any other activity in connection
with its interest in transferring the fruits of crime from criminals to their victims. Thus even if the State
can be said to have an interest in classifying a criminal's assets in this manner, that interest is hardly
compelling.
502 U.S. at 119-20. Based upon this observation, the Court restricted its narrowing analysis to considerations
of victim compensation and prevention of criminal profiteering. Id. at 116-20; see also, Keenan, 40 P.3d at 728;
Opinion of the Justices, 764 N.E.2d at 349-50; Bouchard, 694 A.2d at 676. We have limited our narrowing
analysis accordingly.
In Keenan v. Superior Court, the Supreme Court of California considered a statute that
imposed an involuntary trust
37
upon all a convicted felon's proceeds from speech or
expression on any theme or subject which includes the story of the felony, except by mere
passing mention.
38
Relying primarily upon Simon & Schuster, the court struck down the
statute because it
entrusts and permanently confiscates all income, whenever received, from all
expressive materials, whatever their subject, theme, or commercial appeal, that include
a substantial description of such offenses, whatever their nature and however long in
the past they were committed.
39

NRS 217.007 places no direct restraint on speech and does not provide for sequestration of
funds and administration of them by a state agency. However, similar to the California law
stricken in Keenan, NRS 217.007 provides for recovery of proceeds from any contribution to
any material that is based upon or substantially related to the felony. Accordingly, the
primary impediment to its validity stems from its potential application to works only partially
or tangentially related to the crime committed. As noted, Seres concedes that the entire
proceeds from Lerner's book are subject to recovery under NRS 217.007, and that the book
only partially relates to the events leading up to and including the homicide of Mr. Slavin.
Thus, although NRS 217.007 does not restrict a felon from engaging in whatever speech or
expression he desires, it penalizes that speech based upon its discrete content by seizing all
proceeds, regardless of the extent to which the work relates to the crime against the victim.
40
This breadth of coverage violates Simon & Schuster.
Given this statutory predicament, the Attorney General would have us narrowly interpret
NRS 217.007 to achieve constitutional harmony. In this, the Attorney General suggests our
embrace of the view that the statute simply extends the applicable statute of limitations with
a limitation on such recoveries, and that the statute really adds nothing substantive to
preexisting tort remedies.
____________________

37
40 P.3d at 721; see also Simon & Schuster, 502 U.S. at 108-09 (all proceeds are placed in a
state-established escrow account); Opinion of the Justices, 764 N.E.2d at 350 (the income derived from
materials which were substantially related to a crime were placed in a state-established escrow account);
Bouchard, 694 A.2d at 673 (profits that a criminally responsible person would otherwise collect from the
commercial exploitation of a felony are diverted to a criminal royalties fund).

38
40 P.3d at 731 (third emphasis added).

39
Id. at 732-33.

40
Cf. Com. v. Power, 650 N.E.2d 87, 90 (Mass. 1995) (stating that a probationary condition did not implicate
First Amendment rights because it allowed the defendant to speak on any subject desired, but permissibly
prohibited the defendant from profiting financially from speech regarding the crimes).
tations with a limitation on such recoveries, and that the statute really adds nothing
substantive to preexisting tort remedies. As discussed below, we reject that notion. Exploring
other attempts at narrowing the reach of NRS 217.007, we could restrict its scope to
apportioned proceeds directly related to the felon's speech concerning his misconduct, giving
the ability to attach only those proceeds substantially related to the felony.
41
This would
involve a rewriting of NRS 217.007 by judicial fiat, limiting recoverable damages under the
measure to [the portion of] proceeds received . . . for any contribution to material . . . based
upon or substantially related to the felony.
42
Unfortunately, this approach is unworkable.
Judges and juries sitting as fact-finders could not possibly apportion the publication proceeds
with any real certainty, leaving the distinct possibility that such apportionments would of
necessity encompass proceeds from portions of works not calculated to exploit criminal
misconduct. Accordingly, in the absence of a practicable restriction on the statutory language,
the measure improperly chills nonexploitative expression unrelated to the crime. We
therefore cannot narrowly tailor NRS 217.007 by judicial interpretation to cure its
overinclusiveness.
Addressing the second aspect of NRS 217.007 that implicates Simon & Schuster, the
provision does not restrict the realm of possible defendants to convicted felons. In Opinion of
the Justices to the Senate, the Supreme Judicial Court of Massachusetts addressed a proposed
statutory definition of a defendant as a person who is the subject of pending criminal
charges or has been convicted of a crime or has voluntarily admitted the commission of a
crime.'
43
The court concluded that the proposed Massachusetts statute was significantly
overinclusive because it would extend to persons never charged with any crime.
44
Similarly,
in Simon & Schuster, the United States Supreme Court voided the following provision as
overinclusive:
any person convicted of a crime in [New York] either by entry of a plea of guilty or by
conviction after trial and any person who has voluntarily and intelligently admitted the
commission of a crime for which such person is not prosecuted.
45

____________________

41
See State of Nevada v. Glusman, 98 Nev. 412, 419, 651 P.2d 639, 644 (1982) (stating that statutes should
be construed, if reasonably possible, so as to be in harmony with the constitution).

42
NRS 217.007(2).

43
764 N.E.2d at 345 (quoting S. B. 1939, proposed Mass. Gen. Laws ch. 258D, 1 (2001)).

44
Id. at 348-49.

45
502 U.S. at 110 (quoting N.Y. Exec. Law 632-a(10)(b) (McKinney Supp. 1991) (emphasis added)).
In holding that this aspect of the New York statute failed strict scrutiny, the Court made the
following observation:
Should a prominent [unaccused or unconvicted] figure write his autobiography at the
end of his career, and include in an early chapter a brief recollection of having stolen . .
. a nearly worthless item as a youthful prank, the Board would control his entire income
from the book for five years, and would make that income available to all of the
author's creditors, despite the fact that the statute of limitations for this minor incident
had long since run. That the Son of Sam law can produce such an outcome indicates
that the statute is, to say the least, not narrowly tailored to achieve the State's objective
of compensating crime victims from the profits of crime.
46

We conclude that the express application of the Nevada statute to the person who
committed the felony suffers from the same defect as identified in Simon & Schuster and
Opinion of the Justices.
47
First, NRS 217.007 provides no definition of the person who
committed the felony. Second, the statute contains no conviction qualifier. This said, in light
of the Legislature's attempts in the recodification of NRS 217.007 to comply with Simon &
Schuster, we could narrowly construe this statute and limit its scope to convicted felons.
48
However, this construction would only address one of the overinclusivity problems identified
in Simon & Schuster and its progeny. Accordingly, a narrow construction limiting NRS
217.007 to publication proceeds generated by convicted felons would not rescue the measure
from its primary infirmityoverinclusiveness.
Argument by the Attorney General that NRS 217.007 simply extends the statute of limitations
governing actions in tort
The Attorney General argues that NRS 217.007 simply extends the statute of limitations
otherwise applicable to tort claims with a limitation on damages, and thus creates no new or
separate cause of action.
49
From this, the Attorney General reasons that the measure is
content neutral and creates no overbreadth problems under the First Amendment. We
disagree.
____________________

46
Id. at 123.

47
The measure in Keenan only applied to convicted felons.

48
See A.B. 268, 63d Leg. (Nev. 1985) (amended to add [i]f 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).

49
Seres filed an amended complaint, which included a wrongful death cause of action against Lerner.
Certainly, to the extent that a victim may bring a traditional cause of action for personal
injury, property loss or wrongful death within the applicable statute of limitations for such
matters, Nevada levy and execution laws concerning the felon's misconduct, provide for
execution against proceeds from publications, along with any other nonexempt assets. Thus,
aside from the possibility that recoveries under NRS 217.007 may exceed the value of
judgments rendered in connection with traditional tort-based actions, the provision adds
nothing to the remedies previously available to victims, in terms of assets subject to execution
upon judgments. Accordingly, to the extent that a claimant would file suit under NRS
217.007 before expiration of the statutes of limitations cited within it, subject to the single
exception noted immediately above, the provision is a nullity for First Amendment purposes.
50

However, to the extent that NRS 217.007 operates after expiration of a particular
limitation period, it creates a separate cause of action that limits victims to recovery of a
felon's publication proceeds. First, the statutory cause of action arises upon the felon's
entitlement to proceeds from published material, not the actual harm inflicted upon the
victim. Second, awards under this statute would not be restricted in any way by the law of
damages governing traditional causes of action in tort. More particularly, although damages
awarded under NRS 217.007 are limited to publication proceeds, such an award could exceed
a tort-based damage award. Going further, while NRS 217.007(1) stipulates that the victim
may commence any action specified in NRS 11.190, NRS 11.215 or NRS 207.470 upon the
felon's entitlement to publication proceeds, this language only defines the nature of a victim's
liability claim.
51
In short, entitlement to proceeds stimulates the viability of the new cause of
action; thus, NRS 217.007 does not renew or revive a wrongful death claim otherwise barred
by the statutes of limitation recited within it. We therefore conclude that this new cause of
action expands upon traditional content-based remedies that exist separate and apart from
NRS 217.007. In this expansion, the constitutional infirmities identified above mandate our
declaration today that the measure fails to meet First Amendment muster.
CONCLUSION
The United States Supreme Court in Simon & Schuster voided the New York Son of Sam
legislation under the First Amendment based upon blanket and total confiscation of proceeds
from content-based works, regardless of incidental references to the crime committed,
and regardless of whether the author sustained a conviction in connection with an
offense against a crime victim.
____________________

50
See supra note 36.

51
See NRS 41.133 (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.).
content-based works, regardless of incidental references to the crime committed, and
regardless of whether the author sustained a conviction in connection with an offense against
a crime victim.
We conclude that NRS 217.007 is a content-based restriction on speech, the validity of
which is subject to Simon & Schuster's strict scrutiny analysis. Although the measure
addresses compelling state interests in compensating victims and prevention of criminal
profiteering, it suffers from overinclusiveness because it regulates more speech than is
necessary to serve the state's interest. Clearly, NRS 217.007 allows recovery of proceeds from
works that include expression both related and unrelated to the crime, imposing a disincentive
to engage in public discourse and nonexploitative discussion of it.
52
We therefore hold that
NRS 217.007 violates the First Amendment of the United States Constitution.
Finally, although we have analyzed NRS 217.007 under a complex strict scrutiny analysis
required by a majority of justices in Simon & Schuster, we are mindful of the internal debate
within the Supreme Court concerning the propriety of the strict scrutiny approach in First
Amendment cases. In his concurrence to Simon & Schuster, Justice Kennedy resurrects the
controversy over whether First Amendment jurisprudence should continue to use equal
protection considerations, such as strict scrutiny and whether compelling state interests are
narrowly addressed, when the primary issue concerns content-based restrictions on speech. In
this, he observes:
The New York statute . . . imposes severe restrictions on authors and publishers,
using as its sole criterion the content of what is written. The regulated content has the
full protection of the First Amendment and this, I submit, is itself a full and sufficient
reason for holding the statute unconstitutional. In my view it is both unnecessary and
incorrect to ask whether the State can show that the statute is necessary to serve a
compelling state interest and is narrowly drawn to achieve that end.' That test or
formulation derives from our equal protection jurisprudence, and has no real or
legitimate place when the Court considers the straightforward question whether the
State may enact a burdensome restriction of speech based on content only, apart
from any considerations of time, place, and manner or the use of public forums.
____________________

52
At the oral argument of this appeal, Lerner's counsel stressed that Lerner would never have written his book
had he known of the financial disincentives of NRS 217.007. Interestingly, Lerner renounces this representation
in his forward to the paperback edition in the following terms:
Money was not a factor in writing the book. I wrote to save my sanity, to save my life. For a long time I
was just keeping a diary, a journal. I finally wanted it published because I felt I had something important
to say.
Jimmy Lerner, You Got Nothing ComingNotes From a Prison Fish, XV (Broadway Books 2003). The lack of
any actual chilling effect on Lerner's First Amendment rights does not obviate his challenge to the facial validity
of NRS 217.007.
place when the Court considers the straightforward question whether the State may
enact a burdensome restriction of speech based on content only, apart from any
considerations of time, place, and manner or the use of public forums.
Here, a law is directed to speech alone where the speech in question is not obscene,
not defamatory, not words tantamount to an act otherwise criminal, not an impairment
of some other constitutional right, not an incitement to lawless action, and not
calculated or likely to bring about imminent harm the State has the substantive power to
prevent. No further inquiry is necessary to reject the State's argument that the statute
should be upheld.
Borrowing the compelling interest and narrow tailoring analysis is ill advised when
all that is at issue is a content-based restriction, for resort to the test might be read as a
concession that States may censor speech whenever they believe there is a compelling
justification for doing so. Our precedents and traditions allow no such inference.
. . . .
The inapplicability of the compelling interest test to content-based restrictions on
speech is demonstrated by our repeated statement that above all else, the First
Amendment means that government has no power to restrict expression because of its
message, its ideas, its subject matter, or its content.
53

While this approach is inviting, a majority of the Supreme Court has rejected it, and the
parties to this appeal have not requested that we resolve this matter as one of Nevada
constitutional law in line with Justice Kennedy's views. We will therefore defer consideration
of this simpler approach for future litigation.
In light of the above, we affirm the district court order dismissing the action below.
Shearing, C. J., Agosti, Rose, Becker and Gibbons, JJ., concur.
____________________

53
502 U.S. at 124-26 (Kennedy, J., concurring in judgment) (emphasis added) (citations omitted).
____________
120 Nev. 944, 944 (2004) Smith v. State
CHARLES RENE SMITH, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 42765
December 23, 2004 102 P.3d 569
Appeal from a judgment of conviction pursuant to a jury verdict. Eighth Judicial District
Court, Clark County; Michael A. Cherry, Judge.
Following a jury trial, defendant was convicted in the district court of burglary. Defendant
appealed. The supreme court held that: (1) trespass is not a lesser-included offense of
burglary, and (2) alleged prosecutorial misconduct concerning references to defendant's prior
burglary conviction amounted to harmless error.
Affirmed.
Philip J. Kohn, Public Defender, and Dianne M. Dickson and Gary H. Lieberman, Deputy
Public Defenders, Clark County, for Appellant.
James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
Trespass is not a lesser-included offense of burglary; recognizing that Kiper v. State,
98 Nev. 593, 655 P.2d 526 (1982), and Block v. State, 95 Nev. 933, 604 P.2d 338
(1979), have been superseded by statutory amendment. NRS 205.060(1), 207.200(1)(a).
2. Criminal Law.
For purposes of applying elements test to determine whether lesser-included offense
instructions are required, test is met when all of the elements of the lesser offense are
included in the elements of the greater offense.
3. Criminal Law.
Alleged prosecutorial misconduct concerning references to defendant's prior
burglary conviction during cross-examination and closing arguments amounted to
harmless error in prosecution for burglary; State presented overwhelming evidence of
guilt, which included testimony that defendant broke into apartment with intent to steal
and that defendant had possession of victim's personal property when arrested. NRS
205.060(1).
4. Criminal Law.
Defendant preserved for appellate review his claim that prosecutor engaged in
prosecutorial misconduct during cross-examination and closing arguments at trial for
burglary by referencing defendant's prior burglary conviction, where defendant tendered
a timely objection in trial court.
5. Criminal Law.
In considering whether prosecutorial misconduct warrants reversal of a conviction,
supreme court considers the nature of the evidence presented against the defendant.
120 Nev. 944, 945 (2004) Smith v. State
6. Criminal Law.
If the issue of guilt or innocence is close, and if the State's case is not strong,
prosecutorial misconduct will probably be considered prejudicial.
7. Criminal Law.
Where evidence of guilt is overwhelming, even aggravated prosecutorial misconduct
may constitute harmless error.
Before Shearing, C. J., Rose and Douglas, JJ.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, upon a jury verdict, of one count of
burglary. Appellant Charles Rene Smith's primary contention is that the district court erred in
refusing his proffered jury instruction on the lesser crime of trespass. We hold that, under the
elements test set forth in Blockborger v. United States,
1
the crime of trespass is not a
lesser-included offense of burglary. Therefore, we conclude that the district court did not err
in refusing Smith's requested instruction.
FACTS
On July 10, 2003, at approximately 11:00 p.m., the victim awoke to the noise of glass
breaking in his Las Vegas apartment. He went into the kitchen to investigate and observed
someone trying to get inside the apartment through a broken window. The victim, recognizing
the urgency of the situation, locked himself in the master bathroom and called 9-1-1. While
the victim was on the phone with the 9-1-1 operator, the perpetrator, whom the victim later
identified at trial as appellant Smith, broke down the master bedroom door and began rifling
through the dresser drawers. Smith also kicked down the master bathroom door and stared at
himself in the mirror, while the victim observed hidden in the shower.
Las Vegas Metropolitan Police Officer Shannon Kelly arrived at the apartment and
arrested Smith. At the time of his arrest, Smith had the victim's wallet, identification, credit
card, cash, and watches in his pocket. Officer Kelly testified at trial that she questioned Smith
about the incident, and he explained that he was in the apartment looking for items that he
could take and sell. Officer Kelly also testified that Smith was apologetic and acknowledged
that he was being arrested for burglary. Smith's trial testimony, however, contradicted Officer
Kelly's. At trial, Smith testified that he was so intoxicated when he entered the apartment that
he did not know why he was there, and that he did not recall making any incriminating
statements to Officer Kelly.
____________________

1
284 U.S. 299 (1932).
120 Nev. 944, 946 (2004) Smith v. State
he did not know why he was there, and that he did not recall making any incriminating
statements to Officer Kelly.
2

During a hearing conducted outside the presence of the jury, Smith's counsel requested a
jury instruction on trespass as a lesser-included offense of burglary. Defense counsel argued
that Smith was only guilty of the lesser crime of trespass because he did not intend to commit
larceny when he entered the apartment. The State opposed the request, arguing that Smith
never testified that he entered the apartment to vex or annoy, and if the jury believed that
Smith had no intent to steal in entering the apartment, then Smith was guilty of the crime of
home invasion. The district court, without explaining the basis for its ruling, refused Smith's
request for a trespass instruction.
After a two-day jury trial, Smith was convicted of burglary. The district court sentenced
Smith to serve a prison term of 48 to 120 months. Smith filed this timely appeal.
DISCUSSION
[Headnote 1]
Smith first contends that the district court erred in refusing to instruct the jury on the crime
of trespass because it is a lesser-included offense of burglary. We disagree.
[Headnote 2]
In Barton v. State, this court expressly adopted the elements test set forth in Blockborger
for the determination of whether lesser-included offense instructions are required.
3
The
test is met when all of the elements of the lesser offense are included in the elements of the
greater offense.
4
In other words, under a strict application of Blockborger, an offense is
lesser included only where the defendant in committing the greater offense has also
committed the lesser offense.
Applying the elements test to this case, we conclude that trespass is not a lesser-included
offense of burglary. NRS 207.200(1)(a) provides that a person is guilty of trespass where
under circumstances not amounting to a burglary . . . [the person g]oes . . . into any building
of another with intent to vex or annoy the owner or occupant thereof, or to commit any
unlawful act.
5
The elements of the crime of trespass are defined in a manner that excludes
acts that constitute burglary.
____________________

2
Although Smith's trial testimony was not transcribed due to an equipment malfunction, the parties do not
dispute the substance of the testimony.

3
117 Nev. 686, 694, 30 P.3d 1103, 1108 (2001).

4
Id. at 690, 30 P.3d at 1106; see also Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966).

5
Cf. NRS 205.060(1) (A person who . . . enters any . . . apartment . . . with the intent to commit grand or
petit larceny, assault or battery on any person or any felony, is guilty of burglary.).
120 Nev. 944, 947 (2004) Smith v. State
ner that excludes acts that constitute burglary. Therefore, under the plain language of NRS
207.200(1)(a), the elements of trespass are not an entirely included subset of burglary
because, by definition, trespass cannot be committed when entry into a building is
accompanied by a burglarious intent. Because the offenses of burglary and trespass each
require proof of a fact which the other does not, trespass is not a lesser-included offense of
burglary under the Blockborger test.
6

As Smith correctly notes, this court has previously held that trespass is a lesser-included
offense of burglary.
7
Our prior holdings in this respect, however, preceded the Legislature's
1989 amendment of the trespass statute, which added the language under circumstances not
amounting to a burglary.
8
The plain language of the 1989 amendment rendered the offenses
of trespass and burglary mutually exclusive, altering the essential elements of the trespass
offense so as to exclude entry into a dwelling with the intent to commit any of the offenses
listed in NRS 205.060(1).
9
To the extent that our prior holdings may define trespass as a
lesser-included offense of burglary, they are hereby overruled. Accordingly, we conclude that
the district court did not err by refusing Smith's proposed jury instruction on trespass.
10

[Headnotes 3, 4]
Smith also contends that the prosecutor engaged in prejudicial misconduct in referencing
his prior burglary conviction during Smith's cross-examination and in closing arguments.
11
We conclude that any prosecutorial misconduct was harmless in this case.
[Headnotes 5-7]
In considering whether prosecutorial misconduct warrants reversal of a conviction, this
court considers the nature of the evidence presented against the defendant.
____________________

6
Blockborger, 284 U.S. at 304 (citing Gavieres v. United States, 220 U.S. 338, 342 (1911)). For example, as
noted above, under NRS 205.060(1), burglary requires proof that the accused acted with the intent to commit
grand or petit larceny, assault or battery, or any felony. Trespass, on the other hand, requires proof that the
accused acted with the intent to vex or annoy the owner or occupant, or to commit any unlawful act other than
those offenses specifically listed in NRS 205.060(1).

7
See Kiper v. State, 98 Nev. 593, 595, 655 P.2d 526, 526-27 (1982); Block v. State, 95 Nev. 933, 936, 604
P.2d 338, 341 (1979).

8
1989 Nev. Stat., ch. 466, 1, at 997.

9
Although, under the 1989 amendment, trespass is no longer a lesser-included offense of burglary, we note
that the amendment also renders it legally impossible for a person to commit both burglary and trespass based on
the same act.

10
See Walker v. State, 110 Nev. 571, 574, 876 P.2d 646, 649 (1994) (discussing the circumstances when a
defendant is entitled to a requested jury instruction on a particular offense).

11
Smith properly preserved this assignment of error by tendering a timely objection below.
120 Nev. 944, 948 (2004) Smith v. State
presented against the defendant.
12
If the issue of guilt or innocence is close, [and] if the
state's case is not strong, prosecutor[ial] misconduct will probably be considered prejudicial.
13
However, [w]here evidence of guilt is overwhelming, even aggravated prosecutorial
misconduct may constitute harmless error.
14

In this case, the State presented overwhelming evidence of Smith's guilt. At trial, Smith
conceded that he broke into the victim's home and that he had possession of the victim's
personal property when he was arrested. Although Smith alleged that he was too intoxicated
to form the intent to steal, the State presented ample evidence that Smith entered the
apartment with the intent to commit larceny. Officer Kelly testified that Smith told her that he
entered the apartment with the intent to steal and Smith was apologetic, acknowledging that
he was being arrested for burglary. Moreover, the jury could have inferred that Smith had the
intent to steal from the fact that he broke into the apartment late at night, as well as from
Smith's actions once inside. We therefore conclude that the alleged isolated instances of
prosecutorial misconduct, if any, amounted to harmless error.
Having considered Smith's contentions and concluded that they lack merit, we affirm the
____________
120 Nev. 948, 948 (2004) Nevada Power Co. v. Dist. Ct.
NEVADA POWER COMPANY, a Nevada Corporation, Petitioner, v. THE EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE
COUNTY OF CLARK, and THE HONORABLE KATHY A. HARDCASTLE,
District Judge, Respondents, and BONNEVILLE SQUARE ASSOCIATES, LLC, a
Nevada Limited Liability Company and UNION PLAZA OPERATING COMPANY,
dba THE PLAZA HOTEL AND CASINO, a Nevada Corporation; for Themselves
and Others Similarly Situated, Real Parties in Interest.
No. 41215
December 23, 2004 102 P.3d 578
Original petition for a writ of prohibition, or in the alternative, a writ of mandamus,
challenging the district court's jurisdiction over claims against a public utility.
Electricity customers brought class action against electrical utility for deceptive and unfair
trade practices, breach of the covenant of good faith and fair dealing, and breach of
contract, based on the placement of electric meters on primary side of transformers in
their buildings, which allegedly resulted in overbilling for electricity lost during
conversion process.
____________________

12
Oade v. State, 114 Nev. 619, 624, 960 P.2d 336, 339 (1998).

13
Garner v. State, 78 Nev. 366, 374, 374 P.2d 525, 530 (1962).

14
King v. State, 116 Nev. 349, 356, 998 P.2d 1172, 1176 (2000).
of good faith and fair dealing, and breach of contract, based on the placement of electric
meters on primary side of transformers in their buildings, which allegedly resulted in
overbilling for electricity lost during conversion process. Utility brought motion to dismiss
for lack of subject-matter jurisdiction and lack of primary jurisdiction. The district court
denied the motion. Utility petitioned for writ relief. The supreme court held that: (1) writ of
prohibition was appropriate means to challenge trial court's exercise of jurisdiction, (2)
district court had original jurisdiction over the claims, and (3) district court could refuse to
defer primary jurisdiction to Public Utilities Commission (PUC).
Petition denied.
Lemons Grundy & Eisenberg and Robert L. Eisenberg, Reno; Morse & Mowbray and
Harold M. Morse and William R. Morse, Las Vegas; Stephen F. Smith, Associate General
Counsel, Las Vegas, for Petitioner.
Beckley Singleton, Chtd., and Daniel F. Polsenberg, Las Vegas; Gerard & Osuch, LLP,
and Robert B. Gerard and Lawrence T. Osuch, Las Vegas, for Real Parties in Interest.
Richard L. Hinckley, Commission General Counsel, and Jan Cohen and Marguerite Edith
Russell, Assistant General Counsel, Carson City, for Amicus Curiae Public Utilities
Commission of Nevada.
Writ relief is an extraordinary remedy that will only issue at the discretion of the
supreme court.
2. Prohibition.
A writ of prohibition is available to arrest the proceedings of any tribunal when such
proceedings are without or in excess of the jurisdiction of such tribunal.
3. Electricity.
Writ of prohibition was appropriate means for electrical utility to challenge district
court's exercise of jurisdiction over customers' complaint, and thus supreme court
would entertain petition for writ of prohibition; utility claimed that Public Utilities
Commission (PUC) had either original or primary jurisdiction over allegations that
utility undertook deceptive and unfair trade practices, breached covenants of good faith
and fair dealing, and breached contracts in connection with placement of electric meters
on primary side of transformers in customers' buildings.
4. Prohibition.
A petition for a writ of prohibition is an appropriate means of challenging the district
court's exercise of jurisdiction.
5. Public Utilities.
Because the Public Utilities Commission (PUC) is a creature of statute, it has no
inherent power; rather, its powers and jurisdiction are determined by statute. NRS
704.010.
The Public Utilities Commission (PUC) has only those powers and jurisdiction as
are expressly or by necessary or fair implication conferred by statute.
Any enlargement by implication of express powers of the Public Utilities
Commission (PUC) must be fairly drawn and fairly evident from agency objectives and
powers expressly given by the legislature.
Any doubt about the existence of power or authority of the Public Utilities
Commission (PUC) must be resolved against finding of such power or authority.
Where power is clearly conferred on the Public Utilities Commission (PUC) or fairly
implied, and is consistent with the purposes for which the PUC was established by law,
the existence of the power should be resolved in favor of the commissioners so as to
enable them to perform their proper functions of government.
The only limit on the authority of the Public Utilities Commission (PUC) to regulate
utility rates is the legislative directive that rates charged for services provided by a
public utility must be just and reasonable and that it is unlawful for a public utility to
charge an unjust or unreasonable rate. NRS 704.040(1), (2).
The Public Utilities Commission (PUC) has authority to regulate the service
standards and practices of public utilities. NRS 704.010 et seq.
The rates fixed and regulations prescribed by the Public Utilities Commission (PUC)
are lawful and reasonable until modified by the PUC or by a court on judicial review.
NRS 704.130.
The power to prescribe rates for a public utility company is a legislative function as
distinguished from judicial power.
A challenge to the reasonableness of a rate or regulation fixed by the Public Utilities
Commission (PUC) must be presented first to the PUC before it may be presented to
the courts for judicial review. NRS 703.373703.376.
The exhaustion of administrative remedies doctrine is concerned with the timing of
judicial review of administrative action.
The doctrine of exhaustion of administrative remedies applies only when an
administrative agency has original jurisdiction.
17. Electricity.
District court, rather than Public Utilities Commission (PUC), had original
jurisdiction over customers' claims against electrical utility for deceptive and unfair
trade practices, breach of the covenant of good faith and fair dealing, and breach of
contract; complaint focused on utility's misrepresentations and failures to disclose
information regarding meter placement to certain of its customers, which allegedly
resulted in overbilling, and PUC lacked authority to award the compensatory, special,
and punitive damages that customers sought.
tive damages that customers sought. Const. art. 6, 6(1); NRS 41.600(2)(d),
703.374703.376.
18. Electricity.
District court could refuse to defer primary jurisdiction to Public Utilities
Commission (PUC) in action by electrical utility customers against utility for unfair
trade practices and other claims stemming from placement of meters on primary side of
transformers, which allegedly resulted in overbilling for electricity lost during
conversion process; only issue which required PUC's expertise was percentage of
electricity used by transformers in conversion process, and PUC had determined
appropriate loss factor and directed utility to file revised tariff. NRS 704.130.
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.
In every case the question is whether the reasons for the existence of the doctrine of
primary jurisdiction are present and whether the purposes it serves will be aided by its
application in the particular litigation.
Application of the doctrine of primary jurisdiction is discretionary with the court.
1

OPINION
Per Curiam:
This original writ petition challenges the district court's jurisdiction over a class action
complaint against petitioner Nevada Power Company that alleges causes of action for
deceptive and unfair trade practices, breach of the covenant of good faith and fair dealing, and
breach of contract. We address two principal issues. First, does the district court have
subject-matter jurisdiction to entertain a complaint against a public utility that alleges causes
of action for unfair and deceptive trade practices, breach of the covenant of good faith and
fair dealing, and breach of contract? Second, if the district court does have jurisdiction over
those claims, does the Public Utilities Commission of Nevada (PUC) have primary
jurisdiction over them so that the district court should defer to the PUC? We conclude that
the district court has subject-matter jurisdiction over the claims against Nevada Power and
properly chose to exercise that jurisdiction. Accordingly, we deny the petition.
____________________

1
The Honorable Janet J. Berry, Judge of the Second Judicial District Court, was designated by the Governor
to sit in place of The Honorable Myron E. Leavitt, Justice. Nev. Const. art. 6, 4. The Honorable Michael L.
FACTS
2

Petitioner Nevada Power is a regulated public utility that provides electric power to more
than 657,000 residential and commercial customers in southern Nevada. The real parties in
interest are Bonneville Square Associates, LLC, and Union Plaza Operating Company.
3
Bonneville is primarily engaged in the business of owning commercial office buildings and
has its principal place of business in Las Vegas, Nevada. Union Plaza is engaged in the
business of hotel and gaming operations and also has its principal place of business in Las
Vegas. Bonneville and Union Plaza are commercial customers of Nevada Power.
Nevada Power classifies its customers by size and the voltage level at which service is
taken and charges its customers based on rates approved by the PUC. Nevada Power
classified Bonneville and Union Plaza as Large General Service-Secondary (LGS-S)
customers and charged them at the LGS-S rate.
The LGS-S customers receive service at an incoming voltage of approximately 12,000
volts. That voltage must be reduced or converted to 480 volts before the customer can use the
power. As part of its service to LGS-S customers, Nevada Power provides an on-site
transformer to perform this conversion. The transformer uses energy in the conversion
process. As the owner of the transformer, Nevada Power is responsible for its maintenance
and upkeep, including the energy used in the conversion process. The LGS-S rate includes
costs related to the maintenance and upkeep of the transformers and the energy lost in the
conversion process.
Another class of Nevada Power customers of similar size and receiving a similar incoming
voltage level own their own transformers. These customers are charged at the Large General
Service Primary (LGS-P) rate. Because an LGS-P customer owns the transformer and
provides for its maintenance and upkeep, including the energy lost in the conversion process,
the LGS-P rate does not include those costs and is therefore lower than the LGS-S rate.
The customer is charged for electricity based on a meter reading. Meters can be placed on
either side of a transformer: on the primary side of the transformer, before the conversion
process, or on the secondary side of the transformer, after the conversion process. Because
energy is lost in the conversion process, the meter's placement affects the amount of
electricity that the customer is charged for using.
____________________

2
Our recitation of the facts is taken from the real parties' allegations in their first amended complaint.

3
Bonneville and Union Plaza filed suit as representatives for a class of similarly situated Nevada Power
customers. It appears that the district court has not yet certified the class. Accordingly, and for the sake of
efficiency, we refer solely to Bonneville and Union Plaza as the real parties in interest in this original
proceeding.
tomer is charged for using. The LGS-S customer, since it does not own the transformer, does
not use the energy lost in the conversion process. Thus, the meter usually is placed on the
secondary side of the transformer, after the conversion has taken place, so that the LGS-S
customer is not charged for energy that it did not use. In contrast, the LGS-P customer is
usually metered on the primary side of the transformer to account for the energy used by its
transformer.
When Union Plaza built its two towers in 1971 and 1983, Nevada Power prepared the
plans for the placement of the meters and transformers needed for the towers. Although
Nevada Power had classified Union Plaza as an LGS-S customer, Nevada Power's plans
called for the meters to be placed on the primary side of the transformers for both towers.
When Nevada Power presented the plans to Union Plaza, it represented that primary side
placement of the meters was in Union Plaza's best interest because Nevada Power would pay
for the meters and installation costs if the meters were placed on the primary side of the
transformers. Nevada Power did not disclose that because Union Plaza was an LGS-S
customer, metering on the primary side would result in it being charged twice for the lost
energy.
In 1990, Bonneville expanded its office building in Las Vegas. As part of the expansion,
Bonneville planned to install a new meter and transformer. Nevada Power prepared the plans
for the placement of the meter and transformer. Although Nevada Power was charging
Bonneville at the LGS-S rate, Nevada Power prepared plans that placed the meter on the
primary side of the transformer and represented to Bonneville that this meter placement was
in Bonneville's best interest because Nevada Power would pay for the meter and installation
costs if it were placed on the primary side. As in its interactions with Union Plaza, Nevada
Power did not disclose that because Bonneville was an LGS-S customer, metering on the
primary side would result in it being charged twice for the lost energy.
Bonneville and Union Plaza, individually and on behalf of others similarly situated, filed
in the district court a class action complaint against Nevada Power. In the first amended class
action complaint, Bonneville and Union Plaza asserted claims for unfair and deceptive trade
practices, breach of the covenant of good faith and fair dealing, and breach of contract. All
three claims are based on the general allegation that Nevada Power deliberately and
knowingly engaged in a pattern and practice of misleading or failing to disclose material facts
that caused some of its LGS-S customers to be metered on the primary side while being
charged the higher LGS-S tariff rate. Bonneville and Union Plaza seek special and
compensatory damages and, for the unfair-and-deceptive-trade practices claim, punitive
damages.
Nevada Power filed a motion to dismiss for lack of subject-matter jurisdiction and lack of
primary jurisdiction. It argued that Bonneville and Union Plaza's claims essentially
challenged the tariff rate and the placement of their meters. According to Nevada Power,
those claims are within the PUC's exclusive jurisdiction and therefore the district court lacks
subject-matter jurisdiction. Alternatively, Nevada Power argued that, at the very least, the
PUC has primary jurisdiction over the claims and therefore the district court should defer to
the PUC and dismiss the complaint. Bonneville and Union Plaza opposed the motion, taking
issue with Nevada Power's characterization of their claims and arguing that the district court,
not the PUC, has jurisdiction over those claims.
After hearing arguments, the district court summarily denied the motion. Nevada Power
then filed this original petition, and the district court stayed further proceedings in the
underlying case.
DISCUSSION
Writ relief
[Headnotes 1, 2]
Writ relief is an extraordinary remedy that will only issue at the discretion of this court.
4
A writ of prohibition is available to arrest[ ] the proceedings of any tribunal . . . when such
proceedings are without or in excess of the jurisdiction of such tribunal.
5

[Headnotes 3, 4]
Nevada Power argues that the district court lacks subject-matter jurisdiction to entertain
the complaint filed by Bonneville and Union Plaza because the PUC has either original or
primary jurisdiction over the allegations in the complaint. A petition for a writ of prohibition
is an appropriate means of challenging the district court's exercise of jurisdiction.
6
Accordingly, we will entertain the petition for a writ of prohibition. But, because we conclude
that the district court did not exceed its jurisdiction, we deny writ relief.
Jurisdiction
The overarching issue in this case is the jurisdiction of the PUC and the district court over
the causes of action alleged by Bonneville and Union Plaza.
____________________

4
Ashokan v. State, Dep't of Ins., 109 Nev. 662, 665, 856 P.2d 244, 246 (1993).

5
NRS 34.320.

6
South Fork Band, Te-Moak Tribe v. Dist. Ct., 116 Nev. 805, 811, 7 P.3d 455, 459 (2000) (We have held
that a writ of prohibition is an appropriate vehicle through which to challenge the district court's improper
exercise of jurisdiction.); see also Snooks v. District Court, 112 Nev. 798, 919 P.2d 1064 (1996) (granting
petition for writ of prohibition where district court lacked jurisdiction over complaint filed by non-Indian against
Indian for incident that occurred on Indian land or in Indian country).
ville and Union Plaza. In their amended complaint, Bonneville and Union Plaza alleged three
causes of action against Nevada Power: unfair and deceptive trade practices,
7
breach of the
covenant of good faith and fair dealing, and breach of contract. Bonneville and Union Plaza
alleged that Nevada Power represented to them that placement of the meter on the primary
side of the transformer was in their best interest because Nevada Power would pay for the
meter, installation costs and equipment if the meter was placed on the primary side, whereas
Bonneville and Union Plaza would have to bear those costs if the meter was placed on the
secondary side of the transformer. Bonneville and Union Plaza further alleged that Nevada
Power never disclosed material facts that their status as LGS-S customers entitled them to
metering on the secondary or low side of the transformer and that Nevada Power failed to
disclose that metering on the primary side for LGS-S customers would result in excessive
billing. These general allegations appear to form the basis for all three causes of action
stated in the amended complaint. Additionally, the cause of action for deceptive trade
practices alleges that the rate being charged to LGS-S customers is in violation of state
statute, namely NRS 704.040, because the service furnished under the LGS-S rate schedule is
not just and reasonable as some LGS-S customers are metered properly on the secondary or
low side of the transformer (post-transformer) while other LGS-S customers are metered
improperly on the primary or high side of the transformer (pre-transformer). The amended
complaint seeks special damages equal to the energy lost each month in the conversion
process and, for the deceptive-trade-practices claim, punitive damages.
[Headnotes 5-9]
As we recognized in Consumers League v. Southwest Gas, the Nevada Legislature has
created a comprehensive statutory scheme for the regulation of public utilities.
8
As part of
that scheme, the Legislature created the PUC.
9
Because the PUC is a creature of statute, it
has no inherent power; rather, its powers and jurisdiction are determined by statute.
____________________

7
In their deceptive-trade-practices claim, Bonneville and Union Plaza specifically allege that Nevada Power's
conduct violates NRS 598.0915(5), (7) and (15), and NRS 598.0923(2) and (3). NRS Chapter 598 generally
provides for a public cause of action for deceptive trade practices. NRS 41.600, however, provides for a private
cause of action by a person who is a victim of consumer fraud and defines consumer fraud to include [a]
deceptive trade practice as defined in NRS 598.0915 to 598.0925, inclusive. NRS 41.600(2)(d). We are not
presented with and express no opinion regarding the merits of the deceptive-trade-practices claim, or the other
claims, alleged in the amended complaint.

8
94 Nev. 153, 157, 576 P.2d 737, 739 (1978).

9
The Legislature created the PUC in 1997. 1997 Nev. Stat., ch. 482, 65, at 1904 (amending NRS 704.010);
id. 332, at 2020 (amending NRS 703.010). Before that, the same authority over the regulation of public
utilities resided with the Public Service Commission of Nevada. 1911 Nev. Stat., ch. 162, 1, at 322.
statute, it has no inherent power; rather, its powers and jurisdiction are determined by statute.
10
The PUC thus has only those powers and jurisdiction as are expressly or by necessary or
fair implication conferred by statute.
11
Any enlargement of express powers by implication
must be fairly drawn and fairly evident from agency objectives and powers expressly given by
the legislature.
12
Any doubt about the existence of [the PUC's] power or authority must be
resolved against finding of such power or authority.
13
But where power is clearly conferred
or fairly implied, and is consistent with the purposes for which the [PUC] was established by
law, the existence of the power should be resolved in favor of the commissioners so as to
enable them to perform their proper functions of government.
14

The Legislature has expressly given the PUC authority to supervise and regulate the
operation and maintenance of public utilities in accordance with the provisions of NRS
Chapter 704.
15
NRS Chapter 704 sets forth the general statutory framework for the
regulation of public utilities and the setting of rates that public utilities may charge their
customers. In enacting NRS Chapter 704, the Legislature declared the following purpose and
policy:
1. To confer upon the Commission the power, and to make it the duty of the
Commission, to regulate public utilities to the extent of its jurisdiction;
2. To provide for fair and impartial regulation of public utilities;
____________________

10
50-919 Op. Att'y Gen. 468, 470 (1950) (stating that [a]ll powers and jurisdiction of the PUC's
predecessor must be found within the four corners of the statutes creating it, since it is a tribunal of purely
statutory creation); 57-326 Op. Att'y Gen. 275, 275-76 (1957) (stating that PUC's predecessor was a creature of
statute and thus derived its powers from statutory provisions); 73B C.J.S. Public Utilities 159, at 408 (2004)
(A public service or public utilities commission derives its authority, powers, duties, and jurisdiction from . . .
statutory provisions.).

11
57-326 Op. Att'y Gen. 275, 276 (1957); see also Chugach v. Regulatory Com'n of Alaska, 49 P.3d 246, 251
(Alaska 2002) (stating that regulatory commission is administrative agency that has whatever powers are
expressly granted by legislature or conferred upon it by implication as necessarily incident to exercise of express
powers); Union Pacific v. State ex rel. Corp. Com'n, 990 P.2d 328, 329 (Okla. Civ. App. 1999) (stating that
corporation commission has only such authority as is expressly or by necessary implication conferred by statute);
US West v. Public Service Com'n, 998 P.2d 247, 249 (Utah 2000) (stating that public service commission has no
inherent regulatory powers other than those expressly granted or clearly implied by statute); 73B C.J.S. Public
Utilities 159, at 408.

12
73B C.J.S. Public Utilities 159, at 409.

13
Id. 166, at 413.

14
Id. at 413-14.

15
NRS 703.150.
3. To provide for the safe, economic, efficient, prudent and reliable operation and
service of public utilities; and
4. To balance the interests of customers and shareholders of public utilities by
providing public utilities with the opportunity to earn a fair return on their investments
while providing customers with just and reasonable rates.
16

[Headnotes 10-12]
The PUC has authority to regulate utility rates under NRS 704.100 to 704.130 and NRS
704.210. We have described that power as being plenary,
17
meaning that it is broadly
construed.
18
The only limit on the PUC's authority to regulate utility rates is the legislative
directive that rates charged for services provided by a public utility must be just and
reasonable
19
and that it is unlawful for a public utility to charge an unjust or unreasonable
rate.
20
The PUC also has authority to regulate the service standards and practices of public
utilities in accordance with various provisions in NRS Chapter 704.
21
Under NRS 704.130,
the rates fixed and regulations prescribed by the PUC are lawful and reasonable until
modified by the PUC or by a court on judicial review.
22

The statutory scheme also authorizes the PUC to entertain customer complaints against a
public utility related to the reasonableness of a rate, regulation, measurement, practice or act.
Specifically, NRS 703.310(1) provides that the PUC's Division of Consumer Complaint
Resolution must investigate a complaint against a public utility that an unjust or unreasonable
rate is being charged for regulated services or that a regulation, measurement, practice or act
affecting or relating to the production, transmission or delivery or furnishing of power or
any service in connection therewith or the transmission thereof" is unreasonable,
insufficient or unjustly discriminatory.
____________________

16
NRS 704.001.

17
Consumers League, 94 Nev. at 157, 576 P.2d at 739.

18

19
NRS 704.040(1).

20
NRS 704.040(2).

21
See generally NRS 704.143-.320.

22
1. All rates, charges, classifications and joint rates fixed by the Commission are in force, and are
prima facie lawful, from the date of the order until changed or modified by the Commission, or pursuant
to NRS 703.373 to 703.376, inclusive.
2. All regulations, practices and service prescribed by the Commission must be enforced and are
prima facie reasonable unless suspended or found otherwise in an action brought for the purpose,
pursuant to the provisions of NRS 703.373 to 703.376, inclusive, or until changed or modified by the
Commission itself upon satisfactory showing made, or by the public utility by filing a bond pursuant to
NRS 703.374.
connection therewith or the transmission thereof is unreasonable, insufficient or unjustly
discriminatory. If the Division is unable to resolve the complaint, it must transmit the
complaint, the results of its investigation, and its recommendation to the PUC.
23
The PUC
then determines whether there is probable cause for the complaint and, if so, conducts a
hearing on the complaint.
24
Under NRS 704.120, the PUC has authority to give prospective
relief from an unjust, unreasonable, or unjustly discriminatory rate, regulation, practice or
service by substituting a just and reasonable rate, regulation, practice or service after an
investigation and a hearing.
25

The PUC's decision on a complaint against a public utility is subject to judicial review
under NRS 703.373.
26
Judicial review under the statute is limited to the record,
27
and the
court may set aside the PUC's decision only under certain circumstances.
28
Any party may
then appeal the district court's judgment to this court under NRS 703.376.
____________________

23
NRS 703.310(2).

24
Id.

25
1. If, upon any hearing and after due investigation, the rates, tolls, charges, schedules or joint rates
shall be found to be unjust, unreasonable or unjustly discriminatory, or to be preferential, or otherwise in
violation of any of the provisions of this chapter, the Commission shall have the power to fix and order
substituted therefor such rate or rates, tolls, charges or schedules as shall be just and reasonable.
2. If it shall in like manner be found that any regulation, measurement, practice, act or service
complained of is unjust, unreasonable, insufficient, preferential, unjustly discriminatory or otherwise in
violation of the provisions of this chapter, or if it be found that the service is inadequate, or that any
reasonable service cannot be obtained, the Commission shall have the power to substitute therefor such
other regulations, measurements, practices, service or acts and make such order relating thereto as may be
just and reasonable.
. . . .
5. The Commission may at any time, upon its own motion, investigate any of the rates, tolls, charges,
rules, regulations, practices and service, and, after a full hearing as above provided, by order, make such
changes as may be just and reasonable, the same as if a formal complaint had been made.

26
NRS 703.373(1) provides: Any party of record to a proceeding before the Commission is entitled to
judicial review of the final decision.

27
NRS 703.373(4) states: The review must be conducted by the court without a jury and be confined to the
record.

28
NRS 703.373(6) provides that the court may set aside the PUC's decision if the appellant's substantial rights
have been prejudiced because the decision: (a) violates constitutional or statutory provisions, (b) exceeds the
PUC's statutory authority, (c) was made upon unlawful procedure, (d) was affected by other error of law, (e) is
clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, or (f) was
arbitrary or capricious or characterized by abuse of discretion.
party may then appeal the district court's judgment to this court under NRS 703.376.
[Headnotes 13-16]
The statutory scheme supports the conclusion that the PUC has original jurisdiction over
the regulation of utility rates and service. As we explained in Garson v. Steamboat Canal Co.,
[t]he power to prescribe rates for . . . a public utility company is a legislative function as
distinguished from judicial power.
29
The Legislature has delegated that power to the PUC.
30
Moreover, the Legislature has provided a vehicle for the PUC to entertain complaints
against a public utility as to the reasonableness of a rate, regulation, or service, subject to
limited judicial review.
31
Because that power rests first with the PUC, the courts lack
subject-matter jurisdiction except on review as provided in NRS 703.373 to NRS 703.376.
32
In other words, a challenge to the reasonableness of a rate or regulation fixed by the PUC
must be presented first to the PUC before it may be presented to the courts for judicial
review. This is essentially the doctrine of exhaustion of administrative remedies: The
exhaustion doctrine is concerned with the timing of judicial review of administrative action.'
The doctrine applies only when an administrative agency has original jurisdiction.
33

[Headnote 17]
While the PUC has original jurisdiction over utility rates and service, NRS 41.600 permits
a victim of consumer fraud, including a deceptive trade practice as defined in NRS 598.0915
to 598.0925,
34
to bring an action in court. And the Nevada Constitution states that the
district courts have original jurisdiction in all cases excluded by law from the original
jurisdiction of justices' courts.
35
Additionally, courts in other jurisdictions have taken the
position that the courts have jurisdiction over contract and common-law tort claims
against a public utility.
____________________

29
43 Nev. 298, 312, 185 P. 801, 805 (1919).

30
Id.

31
NRS 703.310-.376; see also NRS 704.130 (providing that rates fixed by the PUC are prima facie lawful
and regulations prescribed by the PUC are prima facie reasonable until changed or modified by the PUC or on
judicial review); Garson, 43 Nev. at 313, 185 P. at 805-06 (explaining that a court may review reasonableness of
rate set by Public Service Commission but lacks any authority to set utility rates itself).

32
See State, Dep't of Taxation v. Scotsman Mfg., 109 Nev. 252, 849 P.2d 317, 319 (1993) (stating that failure
to exhaust administrative remedies deprives the district court of subject matter jurisdiction).

33
Campbell v. Mountain States Tel. & Tel. Co., 586 P.2d 987, 990 (Ariz. Ct. App. 1978) (quoting 3 K. Davis,
Administrative Law Treatise 20.01 at 57 (1958)), quoted in Qwest Corp. v. Kelly, 59 P.3d 789, 795 (Ariz. Ct.
App. 2002).

34
NRS 41.600(2)(d).

35
taken the position that the courts have jurisdiction over contract and common-law tort claims
against a public utility.
36
The question, then, is whether the claims alleged in the amended
complaint are within the PUC's exclusive original jurisdiction or are within the district court's
original jurisdiction. To answer that question, we must look at the substance of the claims,
not just the labels used in the amended complaint.
37

Nevada Power and the PUC, as amicus curiae, argue that the amended complaint
challenges the reasonableness of the LGS-S rate and a tariff that permits Nevada Power to
place meters on the primary side of the transformer.
38
Consequently, they assert that the PUC
has exclusive original jurisdiction and that Bonneville and Union Plaza must challenge the
rate and tariff through the administrative proceedings provided by NRS 703.310-.370. We
disagree with their characterization of the claims in the amended complaint.
While the amended complaint includes allegations regarding the meter's proper placement
and the reasonableness of the LGS-S rate when the meter is placed on the primary side of the
transformer, Bonneville and Union Plaza are not asking the district court to determine the
reasonableness of the meter tariff or the LGS-S rate. The meter tariff is permissive; it allows a
public utility to meter on the primary side, but it does not set forth the circumstances in which
the utility may do so or require that the utility do so in any particular circumstance. Similarly,
the LGS-S rate in effect at the times alleged in the complaint did not account for primary-side
metering. The meter tariff and the LGS-S rate are relevant to the causes of action alleged in
the amended complaint, but those issues are not predominant. Rather, the causes of action
focus on Nevada Power's misrepresentations and failures to disclose information to certain of
its customers, resulting in over billing. These claims fall within the district court's original
jurisdiction over claims sounding in tort, contract, and consumer fraud.
39

____________________

36
See, e.g., Gayheart v. Dayton Power & Light Co., 648 N.E.2d 72, 76 (Ohio Ct. App. 1994); see also 73B
C.J.S. Public Utilities 244, at 495.

37
State ex rel. v. Court of Common Pleas, 776 N.E.2d 92, 97 (Ohio 2002).

38
Rule 2(J), approved by the PUC, provides: Where a transformer bank having a capacity of 750 Kva or
more is installed exclusively to serve one Customer, the Utility may meter such service at primary service
voltage.

39
Nevada Power's reliance on Southwest Gas v. Public Service Commission, 86 Nev. 664, 474, P.2d 379
(1970), as support for the argument that the claims in this case are within the PUC's exclusive jurisdiction, is
misplaced. Southwest Gas was decided in the context of judicial review of a Public Service Commission order,
and we did not address the commission's jurisdiction over the customer complaints at issue. Rather, the opinion
addresses the commission's jurisdiction only in the context of the relief that it awarded against the public utility.
Id. at 664, 667-69, 474 P.2d at 381, 382-83.
Moreover, it appears that the PUC does not have authority to award the compensatory,
special, and punitive damages that Bonneville and Union Plaza seek. Although Nevada
Power suggests that the PUC can provide similar relief through refunds
40
and civil penalties,
41
these options, even if they are available, are not equivalent to the relief sought by
Bonneville and Union Plaza in the amended complaint. The PUC's lack of power to grant the
relief Bonneville and Union Plaza seek in their suit further supports our conclusion that the
PUC lacks exclusive original jurisdiction over the amended complaint.
42

The causes of action alleged and the relief sought in the amended complaint are not clearly
within the PUC's exclusive jurisdiction. And, as previously noted, we must resolve any doubt
about the existence of the PUC's authority against finding such authority. Accordingly, we
conclude that the PUC does not have exclusive original jurisdiction over the causes of action
alleged in the amended complaint and that the district court has original jurisdiction to
entertain the amended complaint.
43

[Headnote 18]
Nevada Power alternatively argues that even if the district court has original jurisdiction,
the PUC has primary jurisdiction because the amended complaint raises issues related to rates
and service that are within the specialized knowledge of the PUC and its staff. Based on the
doctrine of primary jurisdiction, Nevada Power argues that the district court should have
deferred jurisdiction to the PUC and dismissed the amended complaint.
____________________

40
Neither Nevada Power nor the PUC has cited a statute that expressly permits the PUC to grant refunds. Our
research revealed one statute, NRS 703.375, related to refunds, but it addresses refunds where a court
determines on judicial review that a public utility has collected excessive rates. However, our decision in
Southwest Gas suggests that although the PUC may not engage in retroactive rate making, it may order refunds
as a sanction where a public utility has failed to comply with rules and regulations that affected customers' bills.
86 Nev. 662, 474 P.2d 379.

41
See NRS 703.380 (authorizing the PUC to file a complaint in district court against a public utility seeking
civil penalties not to exceed $1,000 per day when a public utility violates an applicable provision of NRS
Chapter 703, 704, 704B, 705 or 708, violates a rule or regulation of the PUC, or fails, neglects, or refuses to
comply with a PUC order or a district court order requiring compliance with a PUC order).

42
Cf. Ambassador Ins. Corp. v. Feldman, 95 Nev. 538, 539, 598 P.2d 630, 631 (1979) (concluding that
because insurance commissioner was powerless to award damages caused by defamation, the doctrine of
exhaustion of administrative remedies is not applicable).

43
We also reject Nevada Power's reliance on the filed-rate doctrine as barring Bonneville and Union Plaza
from seeking the requested relief in the district court.
[Headnotes 19-21]
Primary jurisdiction is a concept of judicial deference and discretion.
44
The United
States Supreme Court has explained that primary jurisdiction applies where a claim is
originally cognizable in the courts, and comes into play whenever enforcement of the claim
requires the resolution of issues which, under a regulatory scheme, have been placed within
the special competence of an administrative body.
45
As we explained in Sports Form v.
Leroy's Horse & Sports, 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.
46
The doctrine is premised on two policies: (1) the desire
for uniformity of regulation and, (2) the need for an initial consideration by a tribunal with
specialized knowledge.'
47
Thus, [i]n every case the question is whether the reasons for the
existence of the doctrine are present and whether the purposes it serves will be aided by its
application in the particular litigation.
48
Application of the doctrine is discretionary with the
court.
49

Based on our review of the amended complaint, we conclude that the district court could
have deferred action under the primary jurisdiction doctrine for the PUC to address one issue
implicated in the amended complaint: the percentage of electricity used by the transformers in
the conversion process. This technical issue lies within the specialized knowledge of the PUC
and its trained staff. Additionally, it appears that this issue requires uniformity of regulation.
However, during the proceedings in district court, Nevada Power presented a tariff filing to
the PUC explicitly asking that the PUC approve a tariff that sets the percentage loss factor.
Bonneville and Union Plaza intervened in the PUC proceedings. After the original writ
petition was filed in this court, the PUC determined the appropriate transformer loss factor
and directed Nevada Power to file a revised tariff. Thus, the PUC has now spoken on this
issue and applied its expertise to determine the percentage of electricity used by the
transformers in the conversion process. Under NRS 704.130, the PUC's determination is
prima facie reasonable unless it is found otherwise on judicial review.
____________________

44
Rinaldo's Const. v. Michigan Bell, 559 N.W.2d 647, 652 (Mich. 1997) (quotation marks omitted).

45
United States v. Western Pac. R. Co., 352 U.S. 59, 63-64 (1956).

46
108 Nev. 37, 41, 823 P.2d 901, 903 (1992).

47
Id. (quoting Kapplemann v. Delta Air Lines, 539 F.2d 165, 169 (1st Cir. 1976)).

48
United States v. Western Pac. R. Co., 352 U.S. 59, 64 (1956).

49
Rabon v. City of Seattle, 34 P.3d 821, 824 (Wash. Ct. App. 2001).
Because the PUC has now addressed the transformer-loss-factor issue, we conclude that that
issue does not warrant application of the primary jurisdiction doctrine. We further conclude
that to the extent any other issues in this case are within the PUC's concurrent jurisdiction, the
district court properly exercised its discretion in refusing to defer primary jurisdiction to the
PUC.
CONCLUSION
The causes of action alleged in Bonneville and Union Plaza's amended complaint are
within the original jurisdiction of the district court. Furthermore, the district court properly
exercised its discretion in refusing to defer primary jurisdiction to the PUC. Accordingly, the
district court has not exceeded its jurisdiction. We therefore deny the petition.
____________
120 Nev. 963, 963 (2004) Young v. State
TERRELL COCHISE YOUNG, Appellant, v. THE STATE
No. 35423
December 23, 2004 102 P.3d 572
Appeal from a judgment of conviction. Eighth Judicial District Court, Clark County; Mark
W. Gibbons, Judge.
1

Defendant was convicted in the district court of burglary while in possession of a firearm,
conspiracy to commit robbery and/or kidnapping and/or murder, four counts of robbery with
the use of a deadly weapon, four counts of first-degree kidnapping with the use of a deadly
weapon, and four counts of murder with the use of a deadly weapon. Defendant appealed.
The supreme court held that: (1) district court abused its discretion in denying defendant's
motion for substitution of counsel, (2) district court's inquiry into the irreconcilable
differences between defendant and defense counsel was inadequate, (3) prosecutor's reference
to a biblical passage during penalty phase was improper, but (4) the improper reference did
not rise to the level of plain error.
Connolly & Fujii and Karen A. Connolly, Las Vegas, for Appellant.
____________________

1
Although then-Judge Gibbons sentenced appellant and signed the judgment of conviction, Judge Joseph S.
Pavlikowski presided over the pretrial proceedings and the jury trial.
120 Nev. 963, 964 (2004) Young v. State
Clark A. Peterson, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Supreme court reviews the denial of a motion for substitution of counsel for abuse of
discretion.
2. Criminal Law.
A defendant's right to substitution of counsel is not without limit.
3. Criminal Law.
Absent a showing of adequate cause, a defendant is not entitled to reject his
court-appointed counsel and request substitution of other counsel at public expense.
4. Criminal Law.
Three factors are relevant in reviewing a district court's denial of a motion for
substitution of counsel: (1) the extent of the conflict between the defendant and
counsel, (2) the adequacy of the court's inquiry into the defendant's complaint, and (3)
the timeliness of the motion and the extent of any inconvenience or delay.
5. Criminal Law.
District court abused its discretion in denying defendant's motion for substitution of
counsel; defendant complained to the district court about his counsel on five separate
occasions, his motions were made over a period of three and one-half months, and,
even after the district court ordered counsel to visit defendant weekly, counsel violated
the district court's order and visited him only once.
6. Criminal Law.
District court's inquiry into the irreconcilable differences between defendant and
defense counsel was inadequate; although on five occasions defendant's motion for
substitution of counsel was raised before the district court, the district court conducted
an exceedingly abbreviated inquiry of the conflict at issue, the district court also did not
explore the degree to which the lack of communication and animosity between
defendant and his counsel had prevented his counsel from adequately preparing for
trial, and the district court did not inquire into the length of the continuance that would
be required for new counsel to prepare defendant's case, nor did it attempt to gauge the
degree of inconvenience that a delay in defendant's case would cause.
7. Criminal Law.
Prosecutor's reference to a biblical passage during penalty phase of defendant's
murder trial, which basically said that the Bible required the death penalty for the
defendant once he was found guilty, was improper.
8. Criminal Law.
Prosecutor's improper reference to a biblical passage during penalty phase of
defendant's murder trial, which basically said that the Bible required the death penalty
for the defendant once he was found guilty, did not rise to the level of plain error. NRS
178.602.
9. Criminal Law.
Generally, for the supreme court to consider whether a prosecutor's remarks were
improper, the defendant must have objected to them at the time, allowing the district
court to rule upon the objection, admonish the prosecutor, and instruct the jury.
120 Nev. 963, 965 (2004) Young v. State
10. Criminal Law.
The supreme court may address an unpreserved claim of prosecutorial misconduct if
it amounts to plain error that affected defendant's substantial rights. NRS 178.602.
2

OPINION
Per Curiam:
Appellant Terrell Cochise Young appeals from his judgment of conviction. Young argues
that the district court abused its discretion in denying his motion for substitution of counsel.
Young maintains that the district court failed to conduct an adequate inquiry before
dismissing his motion.
We conclude that the district court abused its discretion when it denied Young's motion to
dismiss and appoint new counsel. We hold that three factors are relevant in reviewing a
district court's denial of a motion for substitution of counsel: (1) the extent of the conflict
between the defendant and counsel, (2) the adequacy of the court's inquiry into the
defendant's complaint, and (3) the timeliness of the motion and the extent of any
inconvenience or delay. Following an analysis of these three factors, we conclude that the
district court abused its discretion in denying Young's motion. We therefore reverse Young's
conviction and remand for appointment of new counsel and a new trial.
3

FACTS
Young was charged with one count of burglary while in possession of a firearm, one count
of conspiracy to commit robbery and/or kidnapping and/or murder, four counts of robbery
with use of a deadly weapon, four counts of first-degree kidnapping with use of a deadly
weapon, and four counts of murder with use of a deadly weapon.
____________________

2
The Honorable Mark Gibbons, Justice, did not participate in the decision of this matter.

3
Young presents several additional claims that we need not address given our decision. Young argues that
the district court erred in: (1) denying his motion to suppress, (2) denying his right to a fair and impartial jury of
his peers, (3) denying his right to a fair and impartial jury because of failure to dismiss a potential juror for
cause, (4) permitting evidence of prior bad acts, (5) holding numerous off-the-record conferences, (6) denying
his right to a fair trial by requiring him to wear a stun belt and shackles, (7) forcing his mother to testify in
shackles, and (8) instructing the jury with erroneous and unconstitutional instructions. Young also argues that
gross prosecutorial misconduct affected both the penalty and guilt phases of his trial, and that his conviction
should be reversed because of cumulative error. Finally, Young claims that there was insufficient evidence to
convict him. We have considered this argument and conclude that it lacks merit.
120 Nev. 963, 966 (2004) Young v. State
of a deadly weapon, four counts of first-degree kidnapping with use of a deadly weapon, and
four counts of murder with use of a deadly weapon. Thereafter, the State filed a notice of its
intent to seek the death penalty. Young was ultimately convicted, pursuant to a jury verdict,
of all the charges and was sentenced to numerous prison terms, including several terms of life
without the possibility of parole.
On October 6, 1998, after the public defender's office was conflicted out of Young's case
because of its simultaneous representation of Young's codefendant, Donte Johnson, the
district court appointed Lew Wolfbrandt and Marty Hastings to represent Young.
On May 12, 1999, Young filed a motion to dismiss Wolfbrandt and Hastings and appoint
new counsel. Young complained of counsel's failure to communicate with him, failure to file
a motion for bail, refusal to speak with Young's friends and family, and failure to file
discovery requests. At the hearing on his motion on June 9, 1999, Young complained that
Wolfbrandt had not been to see him in the eight months since his appointment. Young said
that he felt that Wolfbrandt was not assisting him since he had not spoken with anyone in his
defense. Young indicated that he was unable to communicate with Wolfbrandt and stated that
there had been a complete lack of communication with Wolfbrandt for eight months. Young
insisted that he could not go to trial with Wolfbrandt representing him. Wolfbrandt responded
that he always accepted Young's calls when he was in the office; he had spoken with Young's
aunt and girlfriend; he had an investigator working on the case; Hastings had visited Young
several times in jail; and they were ready for trial, although they were receiving more
evidence from the State. Wolfbrandt also admitted that for safety reasons he had not provided
Young with a copy of the discovery, but that at Young's insistence he was beginning to copy
his file. The district court denied Young's motion and told Young that if he was still
concerned at the time of calendar call, he could talk to the court about it at that time. Young
continued to protest, and the district court responded: I did hear what you said. If you feel
they are not ready for trial and will not represent you on the 17th (referring to the June 17,
1999, calendar call) then I will not go to trial on that date.
At a later hearing on another matter in Young's case, on June 23, 1999, Young again
complained that he needed a new attorney because me and Mr. Wolfbrandt have no
communication. I justI don't think he is fighting for my life. The hearing continued, and
Young insisted that the district court was not listening to him. When Young was given the
opportunity to speak, he claimed that Wolfbrandt was not working to save his life. He also
stressed that Wolfbrandt had only been to see him once during the preceding eight months.
120 Nev. 963, 967 (2004) Young v. State
preceding eight months. Wolfbrandt explained that Young did not seem to understand that
they were working on his case from outside the jail. The district court ordered Wolfbrandt to
see Young at least once a week until August 30, 1999, the date tentatively set for trial. The
district court then told Young that his motion would be heard at the time of trial.
Thereafter, Young filed another motion to dismiss Wolfbrandt and Hastings and appoint
new counsel, with a memorandum to the court. Young repeated his previous complaints and
added that Wolfbrandt had failed to investigate, failed to file motions, and had violated the
district court's order of weekly visitation. At calendar call on August 17, 1999, Young
complained that he should be permitted to argue his motion. He was allowed to continue, and
he repeated all the complaints he had already made to the district court with the addition of
mentioning Wolfbrandt's violation of the order for weekly visits. Young complained that
Wolfbrandt was ineffective. He stated that Wolfbrandt had not been to see him during the
initial eight months after his appointment, even though Young's family members called
Wolfbrandt requesting that he visit Young. Young questioned how his counsel could be ready
for trial when he had never even had a conversation with Wolfbrandt about the trial. Young
insisted they were not ready. Young expressed discontent with Wolfbrandt's failure to file any
motions on his behalf. Young also explained that in the ten weeks that had passed since the
district court ordered Wolfbrandt to visit Young weekly, Wolfbrandt had only visited once.
Young indicated the visit occurred only after Young had written a letter to the district court
complaining, and the district court had called Wolfbrandt. Young expressed his frustration
with the lack of communication.
Wolfbrandt explained that he did not frequently go to the jail, but that he had done a
tremendous amount of work on the case. He represented that they were ready to go to trial.
Again, Young began to protest, and the district court cut him short, stating, That is enough,
Mr. Young. The district court passed the matter over to the following hearing.
During a subsequent calendar call on August 26, 1999, Young asked if he was going to be
allowed to argue his motion to dismiss his counsel. The district court stated that Wolfbrandt
would continue as attorney of record and explained to Young that his motion would be passed
over until the first day of trial.
On August 30, 1999, Young was again permitted to argue his motion to dismiss counsel.
He complained that Wolfbrandt should be dismissed for ineffectiveness, laziness, and
unprofessional behavior. Young then proceeded to repeat all his previous complaints, adding
that Wolfbrandt's prior position as a law clerk for the judge was preventing the court from
dismissing him. Wolfbrandt explained to the district court that he had filed all the motions
he considered to be meritorious, including a motion to suppress; he had adopted all the
motions that were filed in Young's coconspirator's case; he had not visited Young weekly,
but at the visits that occurred, he obtained the information he needed; he had some
conversations with Young's family and friends but had not discussed all matters because
of attorney-client privilege; he had accepted all calls from Young when he was in his
office; he had provided Young with a copy of virtually all the discovery and the transcripts
from Young's coconspirator's trial; and he was ready to go to trial.
120 Nev. 963, 968 (2004) Young v. State
plained to the district court that he had filed all the motions he considered to be meritorious,
including a motion to suppress; he had adopted all the motions that were filed in Young's
coconspirator's case; he had not visited Young weekly, but at the visits that occurred, he
obtained the information he needed; he had some conversations with Young's family and
friends but had not discussed all matters because of attorney-client privilege; he had accepted
all calls from Young when he was in his office; he had provided Young with a copy of
virtually all the discovery and the transcripts from Young's coconspirator's trial; and he was
ready to go to trial. The district court denied Young's motion to discharge Wolfbrandt.
4

DISCUSSION
Request for substitution of counsel
[Headnotes 1-3]
We review the denial of a motion for substitution of counsel for abuse of discretion.
5
A
defendant's right to substitution of counsel is not without limit.
6
Absent a showing of
adequate cause, a defendant is not entitled to reject his court-appointed counsel and request
substitution of other counsel at public expense.
7
While we have previously held that
[w]here a motion for new counsel is made considerably in advance of trial, the [district]
court may not summarily deny the motion but must adequately inquire into the defendant's
grounds for it,
8
we have not specifically addressed what constitutes an adequate inquiry.
[Headnote 4]
Young cites to authority from the Court of Appeals for the Ninth Circuit,
9
suggesting that
there are three factors to consider in reviewing a district court's denial of a motion for
substitution of counsel. The three factors, as set forth in United States v. Moore, are: (1) the
extent of the conflict; (2) the adequacy of the inquiry; and (3) the timeliness of the motion.
10
Importantly, the court noted that while a defendant is not entitled to have a particular attorney
serve as counsel, if the complete collapse of the attorney-client relationship is evident, a
refusal to substitute counsel violates a defendant's Sixth Amendment rights.
____________________

4
At trial, Young engaged in repetitive disruptive tactics, including personal attacks upon his counsel. Because
these events took place after the district court denied Young's motion for substitution of counsel, they are
irrelevent to our decision and are not discussed. We do not condone such tactics and note Young's conduct
negatively influenced consideration of his appeal.

5
Gallego v. State, 117 Nev. 348, 362, 23 P.3d 227, 237 (2001).

6
Id.

7
Id.

8
Id. at 363, 23 P.3d at 237.

9
U.S. v. Moore, 159 F.3d 1154, 1158-59 (9th Cir. 1998).

10
Id.
120 Nev. 963, 969 (2004) Young v. State
torney serve as counsel, if the complete collapse of the attorney-client relationship is evident,
a refusal to substitute counsel violates a defendant's Sixth Amendment rights.
11
We have not
previously adopted the standard enunciated by the Ninth Circuit; however, we find the
three-part inquiry required by the Ninth Circuit to be a reasonable approach. We therefore
hold that in reviewing a denial of substitution of counsel, we will consider the three factors
enumerated above.
[Headnote 5]
In applying this three-factor analysis, we conclude all three factors weigh in favor of our
determination that the district court abused its discretion in denying Young's motion for
substitution of counsel.
Extent of conflict
There is no question that there was a significant breakdown in the relationship between
Young and Wolfbrandt and Hastings. On five separate occasions, Young complained to the
district court about his counsel. Twice, Young filed motions for substitution of counsel,
describing a significant conflict and complete breakdown of communication. Young also
consistently complained to the district court that Wolfbrandt had not been to see him at the
jail. Even after the district court ordered Wolfbrandt to visit Young weekly, Wolfbrandt
violated the district court's order and visited him only once.
In Moore, the Ninth Circuit found that an irreconcilable conflict existed upon an
examination of similar facts.
12
In that particular case, the defendant complained on four
separate occasions that he could not communicate with his attorney and that his attorney had
failed to properly investigate and prepare for trial.
13
The court found that in consistent,
persistent representations to the court, Moore presented strong evidence of an irreconcilable
conflict.
14
Here, our conclusion is the same. Young's representations to the court, combined
with his attorney's flagrant violation of the district court's order to visit Young on a weekly
basis constitute strong evidence of an irreconcilable conflict.
Timeliness of motion
In Moore, the court evaluated the timeliness of a motion to substitute counsel by balancing
a defendant's constitutional right to counsel against the inconvenience and delay that would
result from the substitution of counsel.
____________________

11
Id. at 1158.

12
Id. at 1159-60.

13
Id. at 1156.

14
Id. at 1159.
120 Nev. 963, 970 (2004) Young v. State
the substitution of counsel.
15
In Moore, the court found a motion to substitute counsel timely
when the defendant made multiple motions, the first of which was over a month prior to the
start of trial.
16

Young made multiple motions for substitute counsel. Notably, Young made his first
motion to substitute counsel on May 12, 1999, over three and one-half months before his trial
started. While it is true that Young's last attempt for substitution of counsel was made on the
first day of trial, we note that this was not the first time that Young attempted to have his
counsel replaced. Additionally, it was the district court's repeated continuance of Young's
motion that created the need for Young to argue his motion on the eve of trial. There is no
proof in the record that Young filed his motions for dilatory tactics or bad-faith interference
with the administration of justice. Also, had the district court inititally granted Young's
motion, the extent of resulting inconvenience or delay in his trial would have been minimal, if
at all. Thus, we conclude Young's motions were timely.
Adequacy of inquiry
[Headnote 6]
As the court did in Moore, we conclude that the district court should have made a more
thorough inquiry into the substance of Young's alleged conflict with Wolfbrandt and
Hastings, as Young's own description of the problem and the district court's observations
provided an insufficient basis for reaching an informed decision. In Moore, the defendant
raised the irreconcilable-differences issue on four separate occasions before the district court
engaged in any inquiry on the issue.
17
At that point, the trial court allowed both parties to
speak, and made general inquiries into the nature of the conflict, but still failed to examine
the severity of the discord between Moore and his counsel.
18
It was only after the district
court received a letter from Moore describing the conflict that the court endeavored to make a
more extensive analysis.
19
The Ninth Circuit found these inquiries insufficient because the
district court still failed to address any of the factors outlined in United States v. D'Amore.
20

____________________

15
Id. at 1161 (citing United States v. D'Amore, 56 F.3d 1202, 1206 (9th Cir. 1995)).

16
Id. at 1161.

17
Id. at 1160.

18
Id.

19
Id.

20
Id.
120 Nev. 963, 971 (2004) Young v. State
Likewise, the district court's inquiry into the irreconcilable differences between Young and
Wolfbrandt and Hastings was inadequate. Although on five occasions Young's motion for
substitution of counsel was raised before the district court, the district court conducted an
exceedingly abbreviated inquiry of the conflict at issue. For example, the district court failed
to inquire in any depth about Young's complaints regarding a lack of communication,
Wolfbrandt's failure to file any pretrial motions, Wolfbrandt's failure to contact any witnesses,
and more importantly, why Wolfbrandt had violated the district court's order to visit Young
weekly. The district court also did not explore the degree to which the lack of communication
and animosity between Young and his counsel had prevented his counsel from adequately
preparing for trial.
Additionally, the district court did not inquire into the length of the continuance that would
be required for new counsel to prepare Young's case, nor did the district court attempt to
gauge the degree of inconvenience that a delay in Young's case would cause.
21

In our view, the district court need not invade the attorney-client privilege unless
absolutely necessary; however, the district court's respect for the privilege should not prevent
it from engaging in a genuine inquiry into the quality of defense counsel's representation. We
consider the adequacy of the district court's inquiry a crucial component and one we will not
overlook on appellate review. Thus, the district court's failure to conduct a more adequate
inquiry was error.
We wish to stress that the defendant in a criminal case may not, as a matter of law, create a
conflict requiring substitution of appointed counsel under the first factor. Rather, we place the
onus upon defense counsel to establish and attempt in good faith to maintain the
attorney-client relationship. In turn, the district court is charged with stewardship, in line with
the three factors discussed above, over counsel's good-faith participation in the defense.
Miscellaneous claim of error
[Headnotes 7-10]
We also wish to address one instance of prosecutorial misconduct that occurred during the
penalty phase of Young's trial. We note that Young failed to object to this particular instance
of misconduct. Generally, for us to consider whether a prosecutor's remarks were improper,
the defendant must have objected to them at the time, allowing the district court to rule
upon the objection, admonish the prosecutor, and instruct the jury.
____________________

21
Id. at 1161 (citing D'Amore wherein the Ninth Circuit utilized four factors to assess the adequacy of the
trial judge's inquiry: (1) whether the trial judge considered the length of continuance needed for a new attorney
to prepare, (2) the degree of inconvenience the delay would cause, (3) the degree animosity between the attorney
and client prevented adequate preparation for trial, and (4) why the motion to substitute counsel was not made
earlier).
120 Nev. 963, 972 (2004) Young v. State
the time, allowing the district court to rule upon the objection, admonish the prosecutor, and
instruct the jury.
22
Under NRS 178.602, we may nevertheless address the claim if it amounts
to plain error that affected his substantial rights.
23

Young argues that the prosecutor improperly recited a passage from the Book of Proverbs
in the Bible: for there shall be no rewards to evil man. The candle of the wicked shall be put
out. The prosecutor is basically saying that the Bible requires the death penalty for the
defendant once he is found guilty. This is unacceptable. We agree with the court in Romine v.
Head that [t]he possibility always exists that some jurors will be at least as impressed by
Biblical authority as by the authority of a court or legal scholar.
24
There is ample
opportunity for quotation of biblical passages in the courtroom, but not when the passage
directs the finding that the jury is considering. However, we conclude that the specific
instance of misconduct cited by Young does not rise to the level of plain error.
CONCLUSION
Weighing all of the factors, we conclude that the district court abused its discretion in
denying Young's repeated motions for substitution of counsel. Accordingly, we reverse and
remand this case to the district court for appointment of new counsel and for a new trial.
____________
120 Nev. 972, 972 (2004) University & Cmty. Coll. Sys. v. Sutton
THE STATE OF NEVADA, UNIVERSITY AND COMMUNITY COLLEGE SYSTEM,
Appellant, v. RICHARD L. SUTTON, Respondent.
No. 39568
December 28, 2004 103 P.3d 8
Appeal from a final judgment in an employment case. Eighth Judicial District Court, Clark
County; Mark W. Gibbons, Judge.
Tenured professor at state university brought breach of contract action against university,
after university terminated his employment based on professor's unsatisfactory evaluations
from eight years ago. The district court denied university summary judgment and entered
judgment on a jury verdict in favor of professor. University appealed. The supreme court,
Leavitt, D. J., held that: (1) university's qualified immunity did not preclude breach of
contract action, {2) district court was not limited to review of university's administrative
decision terminating professor, {3) issue preclusion did not prevent professor from
arguing university did not have just cause in termination, {4) evidence regarding
professor's teaching performance during the year he was terminated was relevant, {5)
prior judgment reinstating professor was admissible, {6) trial court did not abuse its
discretion in denying university's motion to amend pleading, and {7) university breached
the implied covenant of good faith and fair dealing in terminating professor.
____________________

22
Riley v. State, 107 Nev. 205, 218, 808 P.2d 551, 559 (1991).

23
NRS 178.602 provides, Plain errors or defects affecting substantial rights may be noticed although they
were not brought to the attention of the court. See also Rowland v. State, 118 Nev. 31, 38, 39 P.3d 114, 118
(2002).

24
253 F.3d 1349, 1368 (11th Cir. 2001).
contract action, (2) district court was not limited to review of university's administrative
decision terminating professor, (3) issue preclusion did not prevent professor from arguing
university did not have just cause in termination, (4) evidence regarding professor's teaching
performance during the year he was terminated was relevant, (5) prior judgment reinstating
professor was admissible, (6) trial court did not abuse its discretion in denying university's
motion to amend pleading, and (7) university breached the implied covenant of good faith
and fair dealing in terminating professor.
Affirmed.
Bart J. Patterson, Associate General Counsel, University and Community College System
of Nevada, Las Vegas, for Appellant.
Respondent.
Supreme court reviews summary judgment orders de novo.
2. Judgment.
Summary judgment is only appropriate when, after a review of the record in a light
most favorable to the nonmoving party, there remain no issues of material fact and the
moving party is entitled to judgment as a matter of law.
3. Judgment.
In determining whether summary judgment is proper, the nonmoving party is
entitled to have the evidence and all reasonable inferences accepted as true.
4. States.
A discretionary state agency act, for which qualified immunity applies, requires
personal deliberation and judgment. NRS 41.032(2).
5. States.
When a state agency act is ministerial or operational, the qualified immunity for
discretionary acts does not apply. NRS 41.032(2).
6. Colleges and Universities.
State university's qualified immunity for discretionary acts did not preclude
professor's lawsuit for breach of employment contract that was entered into pursuant to
a court order in previous litigation that reinstated his employment as a tenured
professor, until, according to the specific terms of the contract, such time as his tenure
might be revoked by hearing held pursuant to the university code. NRS 41.032(2).
District court was not limited to review of state university's administrative decision
terminating professor, and thus, professor was entitled to proceed to trial on his breach
of contract claim against university, where the question before the court was not
judicial review of a decision terminating a tenured faculty member, but rather whether
the professor's employment contract allowed the university to proceed with termination
hearing in the first place.
8. Contracts.
Factual disputes regarding breach of contract are questions for a jury to decide.
9. Administrative Law and Procedure; Colleges and Universities.
In former professor's breach of contract action brought against state university,
district court did not abuse its discretion in denying university's request to apply issue
preclusion based on previous termination hearing to prevent professor from arguing that
university did not have just cause for terminating him; termination hearing did not
address professor's employment contract, but rather dealt with allegations dating back
eight years, and thus, the issues decided in the termination hearing were not identical to
the issues presented in the breach of contract action.
10. Judgment.
The doctrine of issue preclusion provides that any issue that was actually and
necessarily litigated in the first case will be estopped from being relitigated in the
second case.
Issue preclusion may apply to administrative proceedings.
12. Appeal and Error; Judgment.
The supreme court performs a de novo review of whether issue preclusion is
available; however, once it is determined that issue preclusion is available, the actual
decision to apply it is left to the discretion of the district court.
13. Judgment.
The three part test for applying issue preclusion is: (1) the issue decided in the prior
litigation must be identical to the issue presented in the current action, (2) the initial
ruling must have been on the merits and have become final, and (3) the party against
whom the judgment is asserted must have been a party or in privity with a party to the
prior litigation.
14. Appeal and Error; Evidence.
The decision to admit or exclude relevant evidence, after balancing the prejudicial
effect against the probative value, is within the sound discretion of the trial judge, and
the trial court's determination will not be overturned absent manifest error or abuse of
discretion.
Evidence regarding professor's teaching performance during the year he was
terminated from state university was relevant to professor's breach of contract claim
against university, even though such evidence was not admitted at professor's
termination hearing, where termination hearing focused on allegations of unsatisfactory
performance that occurred eight years previously and did not involve professor's
contract claims. NRS 48.015.
Prior judgment reinstating professor at state university was admissible in professor's
breach of contract action against university after he was again terminated from his
employment; judgment was relevant to the issue of whether the parties intended the
employment contract as an integration of their prior stipulation in the judgment that
required university to continue professor's employment unless and until such time as his
tenure was revoked by hearing held pursuant to the university code.
17. Appeal and Error; Judgment.
Normally, the legal operation and effect of a judgment must be ascertained by a
construction and interpretation of it, which presents a question of law for the supreme
court.
18. Pleading.
Trial court did not abuse its discretion in denying state university's motion to amend
its pleadings in breach of contract action to include an affirmative defense of waiver
regarding professor's claim that university was not permitted to conduct termination
hearing, where the motion to amend was made after the close of evidence, during
arguments over jury instructions, and the defense asserted matters that were
clearly within university's knowledge at least nine months before trial.
was not permitted to conduct termination hearing, where the motion to amend was
made after the close of evidence, during arguments over jury instructions, and the
defense asserted matters that were clearly within university's knowledge at least nine
months before trial. NRCP 8(c), 15(b).
19. Trial.
A directed verdict is proper when the evidence is so overwhelming for one party that
any other verdict would be contrary to the law.
20. Trial.
The trial court must view the evidence and all inferences most favorably to the party
against whom motion for directed verdict is made.
21. Estoppel.
A waiver is an intentional relinquishment of a known right.
22. Estoppel.
To be effective, a waiver must occur with full knowledge of all material facts.
23. Pleading.
An affirmative defense not pleaded in the answer is waived.
24. Appeal and Error; Pleading.
A motion for leave to amend a pleading is left to the sound discretion of the trial
judge, and the trial judge's decision will not be disturbed absent an abuse of discretion.
State university engaged in grievous and perfidious misconduct in terminating
professor for a second time, and thus, breached the implied covenant of good faith and
fair dealing in professor's employment contract, where professor was terminated, after
winning reinstatement through previous litigation against university, based upon events
that predated his current employment contract, evidence indicated that the university
intended to terminate professor before termination hearing under university code had
convened, and evidence indicated that professor's department did not have a publication
requirement, even though the university claimed it terminated professor in part due to
his failure to publish a paper.
26. Contracts.
Every contract imposes upon the contracting parties the duty of good faith and fair
dealing.
27. Torts.
A breach of the implied covenant of good faith and fair dealing does not give rise to
tort liability unless there is a special relationship between the tort-victim and the
tortfeasor.
28. Torts.
Tort liability for breach of the implied covenant of good faith and fair dealing is
appropriate where the party in the superior or entrusted position has engaged in
grievous and perfidious misconduct.
29. Damages.
A successful plaintiff in a tort action for a breach of the implied covenant of good
faith and fair dealing is entitled to compensation for all of the natural and probable
consequences of the wrong, including injury to the feelings from humiliation, indignity,
and disgrace to the person.
1

____________________

1
The Honorable Michelle Leavitt, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable
OPINION
By the Court, Leavitt, D. J.:
The University of Nevada, Las Vegas (UNLV) terminated the employment of Richard L.
Sutton, a tenured professor. Sutton sued UNLV, asserting claims of breach of contract, breach
of the implied covenant of good faith and fair dealing, and violation of substantive and
procedural due process. In the alternative, Sutton sought judicial review of UNLV's
administrative decision to terminate his employment. UNLV moved for summary judgment,
claiming statutory immunity from civil liability under its discretionary employment power.
Alternatively, UNLV moved to limit the district court to judicial review. The district court
denied summary judgment and rejected the claim that this case should be treated as a judicial
review of an administrative decision.
Following a jury trial, the district court, based upon the jury verdict, entered judgment for
Sutton on the claims of breach of contract and breach of the implied covenant of good faith
and fair dealing. UNLV now appeals the final judgment, contending that the district court
erred in denying its motion for summary judgment and made multiple errors at trial.
In 1974, UNLV hired Sutton as an associate professor. Sutton became a tenured professor
in 1978.
Under the University and Community College System of Nevada (UCCSN) Code, all
professors are required to undergo an annual evaluation based on their research, teaching and
service. The code provides that a tenured professor may be terminated if he or she receives
overall unsatisfactory ratings for two consecutive years. If a university seeks to terminate a
professor, the code requires, as part of its administrative procedure, a complaint and a
hearing. The process includes a university-appointed administrative code officer and a
university-appointed faculty hearing committee. The committee takes evidence and thereafter
makes a recommendation to the university president. The code requires that the hearing be
held and a recommendation made to the university president no later than six months after the
complaint was filed with the administrative code officer.
____________________
Myron E. Leavitt, Justice. The Honorable Steven Dobrescu, Judge of the Seventh Judicial District Court, was
designated by the Governor to sit in place of The Honorable Mark W. Gibbons, Justice. Nev. Const. art. 6, 4.
In both 1990 and 1991, Sutton received consecutive unsatisfactory annual evaluations,
which is cause for termination under the previously described terms of the UCCSN code. On
December 18, 1992, UNLV filed a complaint against Sutton with its administrative code
officer. UNLV scheduled a hearing for May 7, 1993, within the required six-month time
period. The hearing did not take place, however, because the parties believed they had
reached a settlement. The settlement required that Sutton immediately tender a resignation
letter effective at the end of the following academic year. In exchange, UNLV agreed to
cancel the hearing and offer Sutton a nontenured teaching contract. The administrative code
officer sent an unsigned, university-prepared draft settlement agreement to Sutton. Prior to
signing it, Sutton penned interlineations to the agreement, which he believed reflected the
actual terms the parties had agreed to. Of significance were Sutton's interlineated terms
indicating his employment was guaranteed through the 1993/94 academic year and that he
would be eligible for cost-of-living increases. Sutton signed and delivered the interlineated
agreement to UNLV, along with his resignation letter. Subsequently, UNLV unilaterally
altered the document by removing all but the page containing Sutton's signature and replaced
Sutton's interlineated document with their first non-interlineated draft and appending the page
with Sutton's signature to the original draft. UNLV then signed the settlement agreement.
Later, UNLV offered Sutton a 1993/94 employment contract that did not contain the
guarantee language that Sutton had written into the agreement. After Sutton refused to sign
the 1993/94 employment contract without the guarantee language, UNLV terminated his
employment.
Sutton, in February 1995, filed a complaint in district court alleging breach of contract
(Sutton I). The case proceeded to trial in April 1999, but prior to the jury verdict, Sutton and
UNLV stipulated to a form of judgment. The stipulation indicated that if the jury believed
Sutton's interlineated settlement document represented the true settlement between the
parties, then UNLV would concede that it had breached the contract and Sutton would be
entitled to six years of back pay and reinstatement as a tenured professor. The jury returned a
verdict in favor of Sutton. The stipulation was incorporated into the judgment and required
UNLV to continue [Sutton] in his employment unless and until such time as his tenure is
revoked by hearing held pursuant to the university code.
In June 1999, UNLV tendered the court-ordered 1999/2000 employment contract to
Sutton. The contract contained an integration clause but made no reference to the parties'
stipulation for a hearing as referenced in the judgment. Prior to tendering the courtordered
employment contract to Sutton, UNLV Provost Douglas Ferraro and university counsel
recommended to UNLV President Carol Harter that Sutton's 1990 and 1991 unsatisfactory
evaluations proceed anew to a code hearing.
ordered employment contract to Sutton, UNLV Provost Douglas Ferraro and university
counsel recommended to UNLV President Carol Harter that Sutton's 1990 and 1991
unsatisfactory evaluations proceed anew to a code hearing. President Harter testified
regarding the need for the hearing and said, We [Provost Douglas Ferraro and President
Harter] did not believe in the justice of the judgment and believed that it needed to go
forward as it would have in 1991, in that area, exactly the way it would have gone forward
had we been back at that point. Thereafter, in June 1999, UNLV filed another complaint
pursuant to its administrative process against Sutton for the 1990 and 1991 unsatisfactory
evaluations. UNLV determined the administratively mandated six-month deadline within
which to hold a hearing did not apply to the time that had passed between the parties' 1993
settlement and UNLV's 1999 administrative complaint against Sutton because, as Harter
testified:
What happened whenwhen professor Sutton agreed to sign a letter of resignation
back in 1992 or -3, we accepted that in lieu of having this hearing. We believed the
letter of resignation effectively vacated the need to have the hearing. When the Court
then decided, in 1999, that the entire activity was essentially vacated, it put us back in
time to the period in 1992 where we were required, within six months, to have the
hearing. In other words, the intervening years had effectively suspended the six month
period, in our judgment and in the judgment of the counsel of the university system.
The faculty hearing committee conducted a hearing within six months of UNLV'S June 1999
complaint and recommended termination of Sutton's employment. The president adopted the
recommendation, and Sutton's employment was terminated effective December 21, 1999.
Sutton timely appealed to the Board of Regents. Following a hearing, the Board of Regents
upheld the president's decision.
Sutton then filed a second lawsuit in district court, which is the subject of this appeal
(Sutton II). Sutton claimed breach of contract and breach of the implied covenant of good
faith and fair dealing and sought declaratory relief for violations of his substantive and
procedural due process rights. Sutton sought relief based on the 1999 court-ordered contract
referenced in the judgment. According to Sutton, the contract as well as the Sutton I judgment
prohibited UNLV from using the 1990 or 1991 evaluations as a basis for terminating his
employment. Alternatively, Sutton's complaint petitioned for judicial review and/or a writ of
certiorari in the event the district court determined the case was entitled only to judicial
review of an administrative decision.
Eight months after filing its answer, UNLV filed a motion for summary judgment on all
claims. UNLV argued that the decision to terminate a tenured faculty member's employment
is within its discretionary power, and therefore, UNLV is statutorily immune from civil
liability. Alternatively, UNLV sought to dismiss the contract claims, vacate the trial, and
proceed as a judicial review. The district court denied UNLV's motion, concluding as a matter
of law that termination of a tenured professor is not a discretionary act and that tenure would
be illusory if UNLV could terminate a tenured professor at its discretion. Consequently, the
district court held that the decision to terminate Sutton was not a discretionary act, but rather
it was a ministerial act which requires due process and for which immunity is not available.
The district court further found judicial review unwarranted and determined that Sutton was
entitled to proceed with a civil action for breach of contract.
The case proceeded to trial with the jury returning a verdict in Sutton's favor on his claims
of breach of contract and breach of the implied covenant of good faith and fair dealing.
Pursuant to a pre-verdict stipulation between the parties, the district court reinstated Sutton as
a tenured professor at UNLV. Thereafter, UNLV filed this timely appeal.
DISCUSSION
UNLV asserts first that the district court erred when it denied UNLV's motion for
summary judgment because: (1) university employment decisions are discretionary and
therefore UNLV is entitled to statutory immunity from civil liability, and (2) the judgment in
the previous lawsuit required Sutton to undergo a code hearing and Sutton's sole remedy is
therefore judicial review. Second, UNLV claims that the district court made multiple errors at
trial.
I. District court denial of summary judgment
[Headnotes 1-3]
UNLV contends the district court erred by denying its motion for summary judgment to
dismiss the entire action. This court reviews summary judgment orders de novo.
2
Summary
judgment is only appropriate when, after a review of the record in a light most favorable to
the nonmoving party, there remain no issues of material fact and the moving party is entitled
to judgment as a matter of law.
3
In determining whether summary judgment is proper, the
nonmoving party is entitled to have the evidence and all reasonable inferences accepted
as true.
____________________

2
University of Nevada, Reno v. Stacey, 116 Nev. 428, 431, 997 P.2d 812, 814 (2000).

3
nonmoving party is entitled to have the evidence and all reasonable inferences accepted as
true.
4

In this appeal, we must determine whether the trial court erred when it denied UNLV's
motion for summary judgment, holding that revocation of tenure is a ministerial act and that
judicial review was not warranted.
A. UNLV breached the 1999/2000 court-ordered contract, and therefore, the court is
not required to determine whether the university's actions were ministerial or
discretionary in nature
In University of Nevada, Reno v. Stacey, this court held that a state university's decision to
grant or deny tenure to a nontenured professor is a discretionary act, consequently the
university is immune from civil liability.
5
This court was called upon to determine whether
the district court erred in denying UNR's motion for summary judgment based upon the
employment contract that the parties had executed. UNR contended that summary judgment
was required since its decision to deny tenure was discretionary under the employment
contract. Stacey contended that UNR was contractually obligated to grant him tenure because
he had obtained excellent evaluations over the years.
6

We agreed with UNR and held that because the contract was unambiguous, its plain
meaning controlled our analysis.
7
Numerous contractual provisions negated any theory that
tenure was automatic. Instead, the contract provided that tenure was a privilege and that
making a decision of such import involved consideration of numerous criteria. The
contractual provisions clearly indicated the grant of tenure required the exercise of discretion
and subjective decision making.
8

[Headnotes 4, 5]
Furthermore, although the contract provisions controlled our analysis, we agreed with
UNR's contention that it was immune from suit because its actions were discretionary.
9
NRS
41.032(2) provides qualified immunity to state agencies in the performance of discretionary
acts. A discretionary act requires personal deliberation and judgment.
10
But when an act is
ministerial or operational, the qualified immunity for discretionary acts does not apply.
____________________

4
Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989).

5
116 Nev. at 432, 997 P.2d at 814.

6
Id. at 430-31, 997 P.2d at 813-14.

7
Id. at 433, 997 P.2d at 815.

8
Id. at 431-32, 997 P.2d 814-15.

9
Id. at 434-35, 997 P.2d at 816.

10
Id. at 434, 997 P.2d at 816 (citing Parker v. Mineral County, 102 Nev. 593, 595, 729 P.2d 491, 493
(1986)).
the qualified immunity for discretionary acts does not apply.
11
In Stacey, we concluded that a
university's decision to grant tenure is discretionary and that therefore, the university is
statutorily immune from liability.
12

[Headnote 6]
We are now called upon to determine whether UNLV may be held civilly liable for breach
of contract in terminating a tenured faculty member. We conclude, based upon the specific
facts presented, that UNLV may be sued for breach of contract. Nothing in Stacey indicates a
university is immune from civil liability for breach of contract. Stacey simply held that, as a
matter of law, the contract at issue indicated that granting tenure was a discretionary decision.
13

Here, UNLV entered into a contract with Sutton pursuant to a court order and reinstated
his employment as a tenured professor, until, according to the specific terms of the contract,
such time as his tenure is revoked by hearing held pursuant to the UCCSN code. We conclude
that UNLV's president erroneously concluded that UNLV could proceed anew on the original
1992 complaint. First, the judgment in Sutton I reinstated Sutton's tenured employment by an
integrated agreement that did not mention the prior evaluations. Second, the code prohibits
the waiver of the requirement that hearings on tenure be conducted within six months of the
filing of an administrative termination complaint. Third, the agreement incorporated the
university code. Fourth, while the stipulated judgment allowed UNLV to initiate new
proceedings at its discretion, the university erroneously pressed forward on the allegations of
the 1992 complaint. Thus, UNLV breached the Sutton I settlement when it proceeded on the
original 1992 complaint in 1999.
Because the hearing violated the specific terms of the contract, we are not required to
evaluate UNLV's employment decision as discretionary or ministerial and whether immunity
attaches. The jury was required to make a factual determination as to whether the hearing was
even appropriate based upon the contract's terms. Therefore, the district court properly
allowed the breach-of-contract claims to proceed to trial.
B. Judicial review of UNLV's decision
[Headnote 7]
UNLV contends alternatively that Sutton was limited in the district court to judicial review
of UNLV's administrative procedure's conclusions only, and that the trial court erred by
allowing Sutton to proceed to trial on his breach-of-contract claims. We disagree.
____________________

11
Andolino v. State of Nevada, 97 Nev. 53, 55, 624 P.2d 7, 9 (1981).

12
116 Nev. at 434-35, 997 P.2d at 816.

13
Id. at 433, 997 P.2d at 815.
We are mindful of the precedent that decisions made at the university level are generally
limited to judicial review.
14
In Stacey, we stated:
[W]e are not unaware of the long-standing precedent recognizing that faculty
appointment at the university level is an area poorly suited for judicial supervision, and
thus one where judicial restraint must be exercised. See Kunda v. Muhlenberg College,
621 F.2d 532 (3d Cir. 1980); Faro v. New York Univ., 502 F.2d 1229 (2d Cir. 1974).
Indeed, other jurisdictions have held that a university's decision to grant tenure is a
discretionary exercise of judgment that should not be actionable unless arbitrary or
unconstitutional. See Harrison v. Goldstein, 611 N.Y.S.2d 623 (N.Y. App. Div. 1994);
Coe v. Board of Regents, 409 N.W. 2d 166 (Wis. Ct. App. 1987); Goodisman v. Lytle,
724 F.2d 818 (9th Cir. 1984).
15

We have further emphasized the importance of academic freedom in our society by
reaffirming our commitment to protect a university's inherent right to govern itself within
constitutional limitations.
16

In the present case, however, Sutton did not simply challenge UNLV's hearing process or
the results of that process. His complaint alleged that, based on his 1999 employment
contract, UNLV had no authority to hold the hearing. The 1999 contract contained an
integration clause
17
and further included the provisions of the UCCSN code, which also
contain an integration clause.
18
The UCCSN code requires UNLV to hold a hearing and
make a recommendation to the university president within six months of the
administrative complaint's filing.
____________________

14
Richardson v. Bd. Regents, 70 Nev. 347, 269 P.2d 265 (1954).

15
116 Nev. at 433-34, 997 P.2d at 815.

16
Id. at 434, 997 P.2d at 816.

17
The integration clause in the 1999 contract reads as follows:
THE UNIVERSITY OF NEVADA SYSTEM CODEThe University of Nevada System Code, the
official document governing personnel matters and procedures, is a regularly published document and is
available at each institution. The Code is incorporated herein and by this reference made a part of this
contract. The Code requires that all terms and conditions of employment be specified in this document.
Any other terms, understandings, promises, prior negotiations or representations, or conditions not
specified in the REMARKS section on the reverse side of this document, or attached to and made a part
of this contract, shall not be considered a part of the contract of employment. This contract is not binding
or of any legal effect until duly executed by both the appointee and the appointing officer.

18
Section 5.4.3 of the UCCSN code provides:
All employment contracts shall be in writing and shall specify therein the terms and conditions of
employment. The provisions of the University and Community College System of Nevada Code in their
entirety, shall be a part of the terms and conditions of every employment contract, except as may be
varied in writing by the parties to the contract. Any understanding, promise, term, condition or
representation not contained in the contract is of no effect.
(Second emphasis added.)
UCCSN code requires UNLV to hold a hearing and make a recommendation to the university
president within six months of the administrative complaint's filing. The code does not allow
the parties to waive the six-month requirement. Here, UNLV held the hearing almost seven
years after the unsatisfactory evaluations in 1990 and 1991, and the 1999 hearing related only
to Sutton's conduct and evaluations in 1990 and 1991. If the contract did not allow the
hearing, then UNLV breached the contract by proceeding with the hearing, and the result of
the hearing and any decision rendered is of no effect.
Thus, the question before the district court was not judicial review of a decision
terminating a tenured faculty member's employment, but whether a court-ordered contract
allowed UNLV to proceed with the hearing. If the district court were limited to judicial
review of UNLV's administrative decision in this case, then one party to the
contractUNLVwould be in a position to determine whether the contract had been
breached.
[Headnote 8]
Factual disputes regarding breach of contract are questions for a jury to decide. After such
questions are first decided by the jury, judicial review of UNLV's decision would then be
appropriate but only if UNLV did not violate the terms of the 1999 contract by proceeding
with the code hearing. We therefore conclude that the district court did not err by allowing the
breach-of-contract claims to proceed to trial.
II. Pretrial motion and trial decisions by the district court
A. The district court appropriately denied UNLV's request to apply issue preclusion
based on the special code hearing
[Headnote 9]
UNLV contends the district court erred by denying a pretrial motion to establish issue
preclusion based on the UCCSN code hearing. UNLV argues that the hearing process and the
subsequent appeal to the Board of Regents established that UNLV terminated Sutton with just
cause. Therefore, UNLV sought to prevent Sutton from arguing at trial that UNLV did not
have just cause to terminate his employment.
[Headnote 10]
The general rule of issue preclusion is that if an issue of fact or law was actually
litigated and determined by a valid and final judgment, the determination is conclusive in a
subsequent action between the parties. '
19
The doctrine provides that any issue that was
actually and necessarily litigated in [case I] will be estopped from being relitigated in
[case II].
____________________

19
Executive Mgmt. v. Ticor Title Ins. Co., 114 Nev. 823, 835, 963 P.2d 465, 473 (1998) (quoting University
of Nevada v. Tarkanian, 110 Nev. 581, 599,
issue that was actually and necessarily litigated in [case I] will be estopped from being
relitigated in [case II].'
20

[Headnotes 11, 12]
Issue preclusion may apply to administrative proceedings.
21
The availability of issue
preclusion is a mixed question of law and fact. However, the legal issues predominate.
22
This court performs a de novo review of whether issue preclusion is available.
23
Once it is
determined that issue preclusion is available, the actual decision to apply it is left to the
discretion of the district court.
24

[Headnote 13]
The three part test for applying issue preclusion is:
(1) the issue decided in the prior litigation must be identical to the issue presented in
the current action; (2) the initial ruling must have been on the merits and have become
final; and (3) the party against whom the judgment is asserted must have been a party or
in privity with a party to the prior litigation.
25

The issues decided during the 1999 UCCSN code hearing, and the subsequent appeal to
the Board of Regents, were not identical to the issues presented in Sutton's district court
complaint. The hearing panel did not consider Sutton's 1999 contract or his performance in
1999. To the contrary, the panel only heard evidence regarding events which took place in
1990 and 1991.
Sutton sought relief for breach of the 1999 contract. Since the special hearing held by
UNLV did not address Sutton's 1999 contract, but rather allegations dating back to 1990-91,
the district court did not abuse its discretion in denying the request to apply issue preclusion.
B. The district court did not abuse its discretion in excluding the hearing officer's
report and record
[Headnote 14]
UNLV argues the district court abused its discretion in excluding the hearing officer's
report and record, which recommended Sutton's termination.
____________________
879 P.2d 1180, 1191 (1994) (quoting Charles A. Wright, Law of Federal Courts 100A, at 682 (4th ed.
1983))).

20
Id. (quoting Tarkanian, 110 Nev. at 599, 879 P.2d at 1191 (alteration in original)).

21
Britton v. City of North Las Vegas, 106 Nev. 690, 799 P.2d 568 (1990).

22
Davis & Cox v. Summa Corp., 751 F.2d 1507, 1519 (9th Cir. 1985).

23
Id.

24
Id.

25
Executive Mgmt., 114 Nev. at 835-36, 963 P.2d at 473-74 (quoting Tarkanian, 110 Nev. at 598, 879 P.2d
at 1191).
Sutton's termination. The trial court excluded the report at trial under NRS 48.035.
26
The
court did, however, admit the index to the special code hearing record. The decision to admit
or exclude relevant evidence, after balancing the prejudicial effect against the probative
value, is within the sound discretion of the trial judge, and the trial court's determination will
not be overturned absent manifest error or abuse of discretion.
27
We conclude the district
court's decision was not manifestly erroneous or an abuse of discretion.
C. The district court properly admitted evidence not presented at the special code
hearing
[Headnote 15]
UNLV also contends the district court erred by admitting evidence at trial that was not
admitted at the administrative hearing, such as Sutton's 1999 teaching performance.
According to UNLV, Sutton agreed to a process by which he could be terminated, and
therefore, only evidence presented at the special code hearing should have been presented to
the jury. As discussed above, however, evidence at the UCCSN code hearing was limited to
matters from 1990 and 1991, and Sutton was required to defend himself at the special hearing
eight years after the events occurred. In contrast, Sutton's complaint in district court focused
on the breach of his 1999 contract with UNLV. The 1999 contractual issues were not at issue
at the UCCSN code hearing. Therefore, the district court did not err in admitting relevant
evidence.
28

D. The district court properly admitted the 1999 judgment
[Headnote 16]
UNLV contends the district court erred by allowing the jury to interpret the meaning of the
Sutton I judgment. The stipulation, entered into by the parties in open court (Sutton I),
required UNLV to continue [Sutton] in his employment unless and until such time as his
tenure is revoked by hearing held pursuant to the university code. UNLV argues that the
stipulation authorized UNLV to conduct the hearing and prevented Sutton from arguing at
trial that UNLV could not conduct the hearing. We disagree.
[Headnote 17]
Normally, the legal operation and effect of a judgment must be ascertained by a
construction and interpretation of it,' which presents a question of law for the court.
____________________

26
NRS 48.035(1) provides: 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.

27
Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 1506, 970 P.2d 98, 123 (1998), overruled in part on other
grounds by GES, Inc. v. Corbitt, 117 Nev. 265, 21 P.3d 11 (2001).

28
NRS 48.015.
presents a question of law for the court.
29
However, in the instant matter, the parties'
stipulation, which became a part of the judgment, was admitted by the district court at trial.
Sutton sought and was denied a partial summary judgment before trial. Sutton suggested in
his summary judgment motion that the UCCSN code, which was incorporated into his 1999
contract, did not permit UNLV to terminate his employment because the hearing was held
more than six months after the filing of the initial administrative complaint. UNLV opposed
that motion, arguing that the stipulation contained in the 1999 judgment did allow the parties
to proceed with a hearing in 1999.
We conclude the district court did not err by admitting the 1999 judgment into evidence.
The judgment was relevant to the issue of whether the parties intended the 1999 contract as
an integration of their prior stipulation. Further, the judgment was relevant to President
Harter's motive in pursuing the hearing, despite the six-month rule. The jury was entitled to
review the 1999 judgment in light of all the other evidence presented.
E. The district court did not err in denying UNLV's motion for directed verdict on the
issue of the integration clause, failing to allow an amendment, and refusing to
instruct the jury regarding waiver
[Headnote 18]
UNLV claims the district court erred by denying its motion for a directed verdict and
motion for a new trial, all related to the integration clause. UNLV further argues the district
court erred by refusing an amendment to its answer to conform to the evidence presented at
trial to include the affirmative defense of waiver. Moreover, UNLV contends the district
court erred in not instructing the jury on waiver.
[Headnotes 19, 20]
The district court denied the motion for directed verdict on the grounds that UNLV failed
to plead waiver as a defense in its answer, and Sutton's actions were an issue of fact for the
jury to decide. A directed verdict is proper when the evidence is so overwhelming for one
party that any other verdict would be contrary to the law.
30
[T]he trial court must view the
evidence and all inferences most favorably to the party against whom the motion is made.
31
We must apply the same standard upon review.
32

____________________

29
Ormachea v. Ormachea, 67 Nev. 273, 291-92, 217 P.2d 355, 364-65 (1950) (quoting Aseltine v. District
Court, 57 Nev. 269, 273, 62 P.2d 701, 702 (1936)).

30
Bliss v. DePrang, 81 Nev. 599, 602, 407 P.2d 726, 727-28 (1965).

31
Id.

32
Id. at 601, 407 P.2d at 727.
[Headnotes 21, 22]
A waiver is an intentional relinquishment of a known right. . . . [T]o be effective, a
waiver must occur with full knowledge of all material facts.
33
Therefore, we must
determine whether there is insufficient evidence to permit any finding other than that Sutton
waived the mandatory six-month deadline for a hearing that was incorporated into the
judgment through the integration clause.
UNLV contends that Sutton never objected to the hearing going forward in November
1999, and his failure to object constitutes a waiver of his right otherwise to object. However,
Sutton contends he participated in the hearing because he believed UNLV would proceed,
whether or not he attended, and he wanted to tell his side of the case. Moreover, President
Harter testified that she made the decision to go forward with the hearing without regard to
the six-month rule under the code, without consulting with Sutton.
The evidence presented was not so overwhelming that any other verdict would be contrary
to the law. Sutton presented evidence that he did not intentionally waive the six-month
deadline and, further, that the six-month time period could not be waived by either party to
the contract. Consequently, the district court did not err in denying UNLV's motion for a
directed verdict.
As mentioned, the district court did not allow UNLV to amend its answer to assert waiver
as an affirmative defense. UNLV first raised the issue of waiver as a defense to Sutton's
cross-motion for summary judgment. UNLV further asserts it included the issue of waiver in
its separately filed pretrial memorandum. According to UNLV, its twelfth affirmative defense
of estoppel was consistent with the waiver defense. Finally, UNLV contends it presented
evidence of waiver without objection by Sutton.
[Headnote 23]
NRCP 8(c) requires waiver to be pleaded affirmatively in the answer.
34
An affirmative
defense not pleaded in the answer is waived.
35
However, NRCP 15(b) allows a party to move
to amend its pleadings to conform to the evidence presented at trial.
____________________

33
Thompson v. City of North Las Vegas, 108 Nev. 435, 439, 833 P.2d 1132, 1134 (1992).

34
NRCP 8(c) states:
Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord
and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in
bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches,
license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other
matter constituting an avoidance or affirmative defense.

35
Tobler & Oliver Constr. v. Nevada St. Bank, 89 Nev. 269, 271, 510 P.2d 1364, 1365 (1973).
its pleadings to conform to the evidence presented at trial.
36
[T]he liberal policy provided in
Rule 15(a) does not mean the absence of all restraint. Were that the intention, leave of court
would not be required. The requirement of judicial approval suggests that there are instances
where leave should not be granted.'
37
We conclude that the district court did not abuse its
discretion in denying UNLV's motion to amend.
[Headnote 24]
UNLV's motion to amend the pleadings was made after the close of evidence, during
arguments over jury instructions and after the court's refusal to give an instruction regarding
waiver. The proposed amendment alleged a defense that UNLV contends is not a trivial
matter and, further, which goes to the heart of Sutton's claim that UNLV was not allowed to
conduct the November 1999 hearing. The defense asserts matters that clearly were within
UNLV's knowledge at least nine months before trial. The district court had the discretion to
refuse UNLV's amendment of its pleading at the close of evidence. A motion for leave to
amend is left to the sound discretion of the trial judge, and the trial judge's decision will not
be disturbed absent an abuse of discretion.
38
We conclude the district court did not abuse its
discretion in declining to allow the amendment to include waiver and also conclude the
district court properly denied the requested jury instruction.
F. The district court did not err in denying the motion for a directed verdict on Sutton's
claim for breach of the implied covenant of good faith and fair dealing
[Headnote 25]
UNLV contends the district court erred by denying its motion for a directed verdict on
Sutton's claim for breach of the implied covenant of good faith and fair dealing.
____________________

36
NRCP 15(b) states:
Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated in all respects as if they had been raised in
the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any party at any time, even after
judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is
objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may
allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action
will be subserved thereby and the objecting party fails to satisfy the court that the admission of such
evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a
continuance to enable the objecting party to meet such evidence.

37
Ennes v. Mori, 80 Nev. 237, 243, 391 P.2d 737, 739 (1964) (quoting Schick v. Finch, 8 F.R.D. 639, 640
(S.D.N.Y. 1944)).

38
Stephens v. Southern Nevada Music Co., 89 Nev. 104, 105, 507 P.2d 138, 139 (1973).
covenant of good faith and fair dealing. According to UNLV, Sutton did not produce
evidence that UNLV engaged in grievous and perfidious misconduct. Further, UNLV
contends that Sutton failed to prove damages or offer expert testimony in support thereof. We
disagree.
[Headnotes 26-29]
In reviewing an order denying a motion for a directed verdict, the evidence must be
viewed in the light most favorable to the party against whom the motion is made. The
standard of review is whether, based on the evidence, a reasonable person would have
necessarily reached a different conclusion.
39
It is well settled in Nevada that every contract
imposes upon the contracting parties the duty of good faith and fair dealing.
40
However, a
breach of this duty does not give rise to tort liability unless there is a special relationship
between the tort-victim and the tortfeasor.
41
Tort liability for breach of the implied covenant
of good faith and fair dealing is appropriate where the party in the superior or entrusted
position' has engaged in grievous and perfidious misconduct.'
42
Furthermore, a successful
plaintiff is entitled to compensation for all of the natural and probable consequences of the
wrong, including injury to the feelings from humiliation, indignity and disgrace to the person.
43

At trial, Sutton presented evidence that after winning reinstatement after six years of
exclusion from UNLV, President Harter conducted a hearing to fire him under his new 1999
contract, in violation of the UCCSN code, based upon events which predated the contract,
because UNLV didn't believe in the justice of the [1999 jury trial] judgment. UNLV
claimed that it terminated Sutton in 1999 because of his successive poor evaluations in 1990
and 1991, poor student evaluations, and his failure to publish a paper. However, the jury
heard evidence that for the years 1990 and 1991, neither the College of Business nor the
Department of Public Administration ever adopted a publication requirement. The jury
further received evidence that Sutton had in fact prepared a research paper; Sutton's former
department chairman testified that the paper was superbly written. Additionally, there was
evidence that UNLV indicated to Sutton's department chairman in 1999, even before the
UCCSN code hearing had convened, that Sutton would not be around to teach in the spring.
Finally, Sutton testified he was "crushed" by being fired for the second time and became
the "laughing-stock" at UNLV.
____________________

39
Drummond v. Mid-West Growers, 91 Nev. 698, 542 P.2d 198 (1975).

40
Hilton Hotels v. Butch Lewis Productions, 109 Nev. 1043, 1046, 862 P.2d 1207, 1209 (1993).

41
K Mart Corp. v. Ponsock, 103 Nev. 39, 732 P.2d 1364 (1987).

42
Great American Ins. v. General Builders, 113 Nev. 346, 355, 934 P.2d 257, 263 (1997) (quoting Ponsock,
103 Nev. at 49, 732 P.2d at 1370).

43
Lerner Shops v. Marin, 83 Nev. 75, 79, 423 P.2d 398, 401 (1967).
he was crushed by being fired for the second time and became the laughing-stock at
UNLV.
We conclude that the district court did not err in denying UNLV's motion for a directed
verdict as a reasonable person would not have necessarily come to a different conclusion with
respect to bad faith. Furthermore, Sutton was not required to present expert testimony
regarding his subjective emotional distress because Sutton only requested compensation for
past humiliation and emotional distress.
44

We have considered the other issues raised by UNLV and conclude they are without merit.
45

CONCLUSION
We affirm the district court's judgment.
Shearing, C. J., Agosti, Rose, Becker and Maupin, JJ., and Dobrescu, D. J., concur.
____________
120 Nev. 990, 990 (2004) Matter of Estate of Bowlds
In the Matter of the Estate of JOHN W. BOWLDS.
CRIS CRIS and CATHY CRIS, Executors of the Estate of JOHN WESLEY BOWLDS,
Appellants/Cross-Respondents, v. AMERICAN CANCER SOCIETY,
Respondent/Cross-Appellant.
No. 40482
December 29, 2004 102 P.3d 593
Appeal and cross-appeal from a district court order concerning awards of attorney and
executor fees in a probate proceeding. Eighth Judicial District Court, Clark County; Mark W.
Gibbons, Judge.
Primary beneficiary of estate challenged executors' accounting. The district court deducted
certain brokerage commissions, awarded statutory fees and extraordinary professional fees on
reduced basis, approved 5 percent fee agreement with attorneys, and denied executors' request
for fees for new counsel representing them in accounting challenge.
____________________

44
See id. at 79-80, 423 P.2d at 401 (This court, however, has limited the claim for future pain and suffering
arising from subjective physical injury, and in such cases the claim must be substantially supported by expert
testimony to the effect that future pain and suffering is a probable consequence rather than a mere possibility.
(citing Curti v. Franceschi, 60 Nev. 422, 111 P.2d 53 (1941); Gutierrez v. Sutton Vending Serv., 80 Nev. 562,
397 P.2d 3 (1964))).

45
UNLV also contended the jury was not properly instructed regarding just cause for Sutton's dismissal.
Based on our decision in this matter, we conclude this issue lacks merit.
ing challenge. Parties appealed. The supreme court, Maupin, J., held that: (1) trial court erred
as matter of law in finding fee arrangement reasonable based solely on local custom and
practice, (2) denial of extraordinary fees to attorneys was not abuse of discretion, (3)
assessment of excess brokerage commissions against attorneys was warranted, (4) failure to
hold executors jointly and severally liable for assessment of excess brokerage commissions
was manifest error, and (5) refusal to reimburse executors for attorney fees for separate
counsel was not abuse of discretion.
Cary Colt Payne, Las Vegas; Kyle & Kyle and Joseph F. Kyle, Las Vegas, for
Appellants/Cross-Respondents Cris Cris and Cathy Cris.
Lionel Sawyer & Collins and Dana A. Dwiggins and Mark A. Solomon, Las Vegas, for
Respondent/Cross-Appellant American Cancer Society.
1. Executors and Administrators.
A district court enjoys wide discretion in awarding attorney fees in estate matters,
even those set by agreement, however, this discretion is limited only to the degree that
such awards must be reasonable. NRS 150.060.
Attorney fee awards in estate matters are reviewed for abuse of discretion.
Trial court erred as matter of law in relying solely on local custom and practice in
awarding attorney fees of 5 percent of gross value of estate for probating estate, without
specifically finding that such fees were reasonable in consideration of statutory factors
governing award of such fees, and in spite of probate commissioner's testimony that he
did not believe the 5 percent fee was reasonable. NRS 150.060; SCR 155(1).
Attorney fees for probating estate based on percentage of gross value of estate are
not per se reasonable and, when challenged, must be independently reviewed by the
district court for reasonableness based upon consideration of all of the factors set forth
in rule governing awards of attorney fees. SCR 155(1).
Trial court did not abuse its discretion in denying extraordinary attorney fees to law
firm probating estate for its actions allegedly outside scope of fee agreement; agreement
limited extraordinary fees to trial-related activities, little if any of the fees requested
related to trial activities, remainder of extraordinary expenses were within scope of
what was normally expected of probate attorneys. SCR 155(1).
Assessment of excess brokerage commissions, incurred in selling securities of estate,
against attorneys representing estate was warranted; attorneys recommended using
brokers who did not offer the lowest commissions, and attorneys had prior personal
or business relationships with higher-cost brokers that were recommended to
executors of estate.
torneys recommended using brokers who did not offer the lowest commissions, and
attorneys had prior personal or business relationships with higher-cost brokers that were
recommended to executors of estate.
Failure to hold executors jointly and severally liable with attorneys representing
estate for excess brokerage commissions incurred in selling estate securities was
manifest error; executors failed to utilize low-cost broker for sales, executor had 20
years' experience as broker and knew that commissions varied and were negotiable,
executors failed to negotiate for lowest possible commission and committed waste upon
estate.
Refusal to reimburse executors of estate for attorney fees for separate counsel hired
to represent executors in beneficiary's challenge to accounting was not abuse of
discretion, even though executors claimed that attorneys retained to probate estate had
conflict of interest regarding accounting that required retaining separate counsel;
challenge centered primarily on attorney fees for estate attorneys, and attorneys were
permitted by rule regarding lawyer as witness to continue to represent estate while
testifying regarding their fee arrangement with executors. SCR 178(1)(b).
OPINION
In this appeal, we consider a long-standing local practice in Clark County, Nevada, under
which district judges routinely award attorney fees in probate matters based upon the gross
value of the decedent's estate.
We hold that an agreement between an estate and its counsel, providing for payment to
counsel of 5 percent of the estate's gross value, is not per se reasonable. Thus, district courts
exercising judicial oversight in probate matters must independently review challenged fee
agreements for reasonableness under NRS 150.060(1) and Supreme Court Rule 155(1).
We also consider separate district court rulings rejecting claims against the estate for
extraordinary attorney fees and costs of administration and assessing estate attorneys for
unnecessary brokerage charges incurred by the estate as a result of their advice.
John Bowlds died in 1999 with an estate valued in excess of 7 million dollars, consisting
largely of real estate and corporate securities. The will gifted the bulk of Bowlds' estate to
respondent/cross-appellant, The American Cancer Society (ACS). Mr. Bowlds named his tax
preparers, appellants/cross-respondents Cris and Cathy Cris, as executors.
The executors retained the law firm of Kyle & Kyle to assist them in the administration of
the estate. In accord with the custom and practice in Clark County, the agreement between the
executors and Kyle & Kyle provided that the attorneys would receive a fee equal to 5 percent
of the gross value of the estate, plus $250 per hour for extraordinary fees.
Administration of the estate required satisfaction of a single creditor's claim, liquidation of
highly marketable securities, and distribution of property in Nevada and Louisiana. Kyle &
Kyle advised the executors to sell the estate's securities through three different brokers to
avoid the appearance of favoritism that might arise from use of the executors' personal
broker. Two of these brokers charged sales commissions of nearly 5 percent, and the other
charged approximately 1 percent. The executors ultimately filed an amended accounting
seeking approval of the 5 percent attorney fee, statutory administrative fees, extraordinary
administrative and accounting services they themselves had performed, extraordinary attorney
fees, and the brokerage commissions.
ACS formally objected to the accounting. In summary, ACS alleged that: the basic fee
agreement with Kyle & Kyle was unreasonable, the extraordinary attorney fee request was
unjustified, the executors' claim for fees in excess of statutory fees involved services
ordinarily provided by an estate's personal representatives or was otherwise unreasonable, the
executors breached their fiduciary duties by paying excess brokerage commissions, and the
executors mishandled the estate's federal tax returns.
The executors answered the objection through their counsel, asserting that the estate was
complex; that the 5 percent fee agreement was customary in Clark County and therefore per
se reasonable; that the estate owed extraordinary attorney fees in addition to the 5 percent fee;
and that the expenditures to the executors for tax preparation and accounting services were
reasonable and resulted in considerable savings in costs that would have been necessitated by
retention of outside preparers. They also asserted that the brokerage fees, which averaged 3
percent, were not excessive.
The executors separately retained Cary Colt Payne, Esq., to represent them in connection
with the ACS challenge proceedings, having concluded that the challenge created a possible
conflict of interest with Kyle & Kyle. The executors ultimately sought reimbursement for Mr.
Payne's fees from the estate.
Following an evidentiary hearing on the ACS objections to the accounting, the district
court approved the basic 5 percent fee arrangement. The court then proceeded to rule upon
the other challenges as follows. First, concluding that Kyle & Kyle improperly advised the
executors to liquidate the securities through the three brokers, the district court deducted
the brokerage commissions that exceeded 1 percent, amounting to $106,991, from the
firm's attorney fees.
brokers, the district court deducted the brokerage commissions that exceeded 1 percent,
amounting to $106,991, from the firm's attorney fees.
1
Second, the court awarded the
executors statutory fees in excess of $150,000, plus extraordinary professional and
bookkeeping fees on a reduced basis in the amount of $20,000. Third, the court denied Kyle
& Kyle's request for extraordinary fees. Finally, the court denied the executors' request for
reimbursement for Mr. Payne's fees, assessing that expense as an off-set against the executors'
statutory fees.
On appeal, the executors challenge the denial of extraordinary attorney fees, fees for Mr.
Payne's services, and partial denial of the executors' request for nonstatutory professional and
bookkeeping fees. The ACS cross-appeal challenges the district court's grant of attorney fees
in accordance with the 5 percent custom and practice, and its decision to deduct the excess
brokerage commissions solely from Kyle & Kyle's attorney fees.
DISCUSSION
Attorney fees based upon 5 percent of gross estate value
ACS asserts that the district court erred in upholding the 5 percent fee agreement with
Kyle & Kyle based exclusively upon local custom and practice in Clark County.
The executors testified at the hearing that they agreed to the fee arrangement based upon
Kyle & Kyle's representations that the range for attorney fees in Nevada was 5 to 8 percent.
They also confirmed their failures to determine whether such an arrangement was reasonable
under the circumstances, negotiate an hourly arrangement, or seek competitive proposals
from other firms. The executors defended the fee agreement with the deposition of attorney
Harry Claiborne, Esq., who testified that Clark County attorneys routinely charged 5 percent
fees in probate matters and that such fees were per se reasonable.
Gardner Jolley, Esq., a Las Vegas attorney, testified as a probate expert for ACS that the
Bowlds' estate required only routine and simple administration. In this, he stressed that no one
contested the will, the estate administration involved only one creditor's claim, and the real
estate and securities sales were relatively uncomplicated. Going further, Mr. Jolley rejected
the notion that the customary 5 percent fee was per se reasonable. Rather, he stated that this
figure provided a good starting point from which to judicially evaluate attorney fees in
probate cases. He finally concluded that Kyle & Kyle's fee agreement in this matter was
unreasonable under the applicable statutory provisions and Nevada Supreme Court Rules
NRS 150.060
____________________

1
The broker who charged 1 percent was willing to handle the entirety of the sales transactions.
NRS 150.060
2
and SCR 155.
3
These measures, when read together, subject estate attorney
fees to district court approval based upon SCR criteria for reasonableness.
The Clark County Probate Commissioner testified on behalf of Kyle & Kyle that he based
over 50 percent of his fee recommendations in Clark County probate matters on the 5 percent
custom and practice, and that he routinely recommended confirmation of unchallenged 5
percent fee agreements to Clark County probate judges. Although stating on
cross-examination that such arrangements were not per se reasonable and not customary in
other judicial districts in Nevada, he indicated that Kyle & Kyle reasonably relied upon the
local custom and practice in setting its fee structure.
Despite its belief that Kyle & Kyle failed to earn the fees charged under the agreement, the
district court approved the 5 percent charges based upon the local custom and practice
described by the probate commissioner. This approval occurred without a review of the fee
structure under either NRS 150.060 or SCR 155.
ACS asserts that, under NRS 150.060, a district court is not bound by a fee agreement
between an attorney and an estate, and that a district court must review such agreements for
reasonableness under SCR 155. ACS also argues that Kyle & Kyle's fee agreement was not
per se reasonable and was, in fact, unenforceable under the factors enumerated in SCR
155(1). Thus, ACS claims that the district court erred in its failure to follow the strictures of
the statute and court rule.
____________________

2
NRS 150.060(1) states in relevant part:
Attorneys for personal representatives are entitled to reasonable compensation for their services, to be
paid out of the decedent's estate. The amount must be fixed by agreement between the personal
representative and the attorney, subject to approval by the court, after petition, notice and hearing as
provided in subsection 2.

3
Supreme Court Rule 155(1) states:
1. A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness
of a fee include the following:
(a) The time and labor required, the novelty and difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(b) The likelihood, if apparent to the client, that the acceptance of the particular employment will
preclude other employment by the lawyer;
(c) The fee customarily charged in the locality for similar legal services;
(d) The amount involved and the results obtained;
(e) The time limitations imposed by the client or by the circumstances;
(f) The nature and length of the professional relationship with the client;
(g) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
(h) Whether the fee is fixed or contingent.
tures of the statute and court rule. We agree that the district court did not comply with NRS
150.060 and SCR 155(1).
[Headnotes 1, 2]
A district court enjoys wide discretion in awarding attorney fees in estate matters, even
those set by agreement. This discretion is limited only to the degree that such awards must be
reasonable.
4
We review such awards for abuse of that discretion.
5

We have stated in considering a previous version of NRS 150.060 that
only the court can determine the amount of compensation to be allowed. Any
agreement between an executor and his attorney with regard to the attorney's
compensation can be disregarded by the court.
6

NRS 150.060(1) further provides that [a]ttorneys for personal representatives are entitled to
reasonable compensation for their services.
[Headnote 3]
As noted, the district court approved the Kyle & Kyle arrangement based upon the probate
commissioner's testimony that such agreements were customary in Clark County. We note,
however, that the probate commissioner also testified that he did not believe the fee was
reasonable in this case. Thus, taken in its entirety, the commissioner's testimony did not
support the district court's ruling.
While the Kyle & Kyle fee reflected customary charges for such services in the local
community under SCR 155(1), this factor is only correlative, not determinative, of the
reasonableness of a particular fee structure. For example, it is equally if not more important to
evaluate fee arrangements under the remaining seven SCR 155(1) factors. For example, we
cannot discern from this record whether the 5 percent fee was justified by the time and labor
involved, whether the firm's retention preempted the taking of other business, or whether the
firm's experience and abilities in such matters commanded such generous compensation. As a
matter of public policy, these determinations should be made under all of the SCR 155
considerations.
[Headnote 4]
We therefore conclude that the district court erred, as a matter of law, in its sole reliance
on the local custom and practice. We therefore hold that such arrangements are not per se
reasonable and, when challenged, must be independently reviewed by the district court
for reasonableness based upon consideration of all of the factors set forth in SCR 155.
____________________

4
See NRS 150.060(1); Mau v. Woodburn, 80 Nev. 184, 188, 390 P.2d 721, 723 (1964).

5
Mau, 80 Nev. at 188, 390 P.2d at 723.

6
Id.
therefore hold that such arrangements are not per se reasonable and, when challenged, must
be independently reviewed by the district court for reasonableness based upon consideration
of all of the factors set forth in SCR 155.
7
Accordingly, we reverse the district court's fee
approval in this instance and remand this matter for a determination as to whether the Kyle &
Kyle agreement is reasonable. If the district court cannot approve the existing agreement
under SCR 155, it must conduct proceedings to determine a reasonable fee.
Extraordinary attorney fees
[Headnote 5]
The executors argue that the denial of extraordinary attorney fees under the Kyle & Kyle
arrangement is not supported by substantial evidence. Kyle & Kyle sought extraordinary fees
for responding to the ACS objection, seeking appointment of special administrators,
reviewing the contents of Bowlds' safe, handling the stock sales, filing revised letters
testamentary, clerical work, interaction concerning funeral arrangements, work in connection
with ancillary probate proceedings in Louisiana, reviewing Bowlds' mail, and showing
residential estate property to a potential purchaser.
The executors' fee agreement with Kyle & Kyle provides that, in addition to the 5 percent
fee for probating the estate, the firm could submit hourly charges for extraordinary services,
including time
[s]pent in trial, pretrial conferences, hearings or meetings with Court or Court
personnel, research, settlement negotiations, conferences, discovery, investigation,
filing suit or activities on behalf of the client to settle his/her claims, including any
ancillary probate proceedings which may be required in Louisiana or any other state.
The extraordinary-fee provision limited such compensation to time spent in trial, along
with other litigation and settlement activities. The record suggests that, while Kyle & Kyle
devoted some effort to the Louisiana proceedings and defended the estate's position
concerning the ACS objection to the amended accounting, much of the claim for
extraordinary fees involved services normally expected of probate attorneys, as well as
nonlegal and clerical services. Further, beyond the fee challenge, Kyle & Kyle was not
required to engage in additional extraordinary activities such as the defense of will contests or
complex creditor claims. And, given the actual work performed, and given the generosity of
the 5 percent fee arrangement, it was not unreasonable for the district court to reject
additional charges in connection with that arrangement, or in connection with any other
litigation activity.
____________________

7
Unchallenged fee arrangements remain subject to discretionary review under NRS 150.060 and SCR 155.
court to reject additional charges in connection with that arrangement, or in connection with
any other litigation activity. Accordingly, we cannot conclude that the district court abused its
discretion in denying the extraordinary-fee request. We note, however, that the rejection of
the extraordinary-fee request may have been driven by the approval of the basic fee
agreement. Whether or not the district court upholds the 5 percent basic fee agreement on
remand, the district court may consider all relevant SCR 155 factors in crafting a reasonable
overall compensation package for the estate's attorneys.
Assessment of brokerage commissions against Kyle & Kyle
[Headnote 6]
The executors assert that the district court erred in assessing the brokerage fees against
Kyle & Kyle, claiming that the commissions were not excessive. ACS defends this
assessment, arguing that the issue before the district court was not whether 5 percent
commissions were in and of themselves reasonable, but rather, whether the executors
breached their fiduciary duty by paying the commissions when a lower rate was readily
available. Additionally, on cross-appeal, ACS further asserts that the court should have found
the executors jointly and severally liable with Kyle & Kyle for the excessive brokerage
commissions. We agree with ACS in both respects.
The executors testified at the accounting hearing that, while their personal stockbroker at
Morgan Stanley Dean Witter was willing to liquidate the stocks for a 1 percent commission,
Kyle & Kyle advised them to use three different brokers to avoid the appearance of
favoritism. Although one of the executors, Mr. Cris, had been a licensed stockbroker for
many years and was aware that brokerage fees varied within that industry, he made no
attempt to negotiate the commissions. In this, he simply assumed that whatever price the
brokers charged would be fair.
ACS presented evidence that the Bowlds' estate could have paid substantially less in
brokerage commissions for the sale of the estate's securities through competitive bidding or
negotiation. Expert testimony also suggested that, because the two high-commission brokers
were not members of the New York Stock Exchange, they were required to process the sales
transactions at increased costs through intermediaries. And, as noted, one of the brokers was
willing to liquidate all of the securities for a 1 percent commission. We therefore conclude
that substantial evidence supports the district court's conclusion that the executors paid
excessive commissions on the stock sales.
The district court was also justified in its assessment of the excess charges against Kyle &
Kyle. First, Mr. Cris and Mr. Kyle testified that Mr. Kyle chose the two more expensive
brokerage houses.
houses. Second, Mr. Kyle confirmed that one of these firms served as his personal broker and
that he had previously engaged in an employment relationship with a broker from the other.
Third, he picked these firms in lieu of having one firm handle all of the transactions at a
lower price.
Regarding the ACS challenge on cross-appeal, a personal representative may reasonably
rely on legal advice from counsel.
8
However, given that Mr. Cris had been a licensed
stockbroker for 20 years, it was unreasonable for him to rely on Kyle & Kyle's advice to use
the two higher priced brokerage firms without inquiring as to their commissions or attempting
to negotiate them. Aside from his brokerage experience, Mr. Cris should have been aware of
the variation in brokerage commissions, given that his personal broker, Morgan Stanley,
charged 1 percent. This relatively low commission, compared with those charged by the other
two firms, should have alerted Mr. Cris to the possibility of selling all of the estate's securities
for a lower fee.
[Headnote 7]
The executors, in their fiduciary capacity, were under a duty to conserve estate assets.
9
Although the district court made no express findings that the executors breached their
fiduciary duties,
10
Mr. Cris must have understood that, regardless of his attorney's advice, he
was committing waste against the estate. Accordingly, we conclude that the district court
manifestly erred in its failure to jointly and severally assess the excess commissions against
both the executors and the attorneys.
We therefore affirm the order deducting the excess brokerage commissions from Kyle &
Kyle's fees. We reverse the order, in part, to the extent that it fails to hold the executors
jointly and severally liable for the excess commissions.
Fees for the executors' accounting services
The executors assert that the district court erred by reducing their request for professional
and bookkeeping fees. A personal representative may obtain compensation for extraordinary
services under NRS 150.030, but a district court has the discretion to award such
compensation.
____________________

8
Matter of Estate of Thomas, 532 N.W.2d 676, 686 (N.D. 1995).

9
See NC Illinois Trust v. First Illini Bancorp, 752 N.E.2d 1167, 1180 (Ill. App. Ct. 2001).

10
See In re Estate of Scheibe, 140 N.W.2d 196, 198 (Wis. 1966) (observing that an executor must act not
only honestly or with good faith in the narrow sense but must also exercise the duty of loyalty toward the
beneficiary for whose benefit the power of sale is to be exercised and with such care and skill as a man of
ordinary prudence would exercise in dealing with his own property); Kane v. Girard Trust Co., 40 A.2d 466,
469 (Pa. 1945) (holding that a fiduciary has the obligation to reasonably attempt to obtain the best price for
estate property).
under NRS 150.030, but a district court has the discretion to award such compensation.
11
Based upon testimony that substantially undermined this claim, we conclude that the district
court did not abuse its discretion in its partial award of professional fees to the executors.
Fees for alternate counsel
The executors assert that the district court abused its discretion in denying payment of Mr.
Payne's fees. They claim that the additional fees were necessitated because a temporary
conflict of interest arose between the estate and Kyle & Kyle pending judicial resolution of
the ACS objection to the firm's fee agreement. Appellants rely upon NRS 132.135 for the
proposition that expenses of estate administration include the fees of any attorney retained
by a personal representative.
[Headnote 8]
SCR 178(1)(b) provides that a lawyer may not act as an advocate at trial in which the
attorney is likely to be a necessary witness, except when the attorney's testimony relates to
the nature and value of legal services rendered in the case. This rule essentially allows an
attorney to continue representing a client even if that attorney must testify regarding his or her
fees, as such testimony generally does not implicate a conflict of interest. Here, Mr. Kyle's
testimony largely related to the nature and value of his legal services. Further, the executors
have never contested the validity of the basic attorney fee arrangement and continue to urge
its validity before this court. Accordingly, there was no conflict concerning the fee
arrangement requiring the retention of outside counsel.
While attorneys for personal representatives are entitled to reasonable compensation from
an estate under NRS 150.060, such payments must at least generally benefit the estate.
12
Because Payne's retention was unnecessary, we conclude that the district court did not abuse
its discretion under NRS 150.060 in denying an award of fees for Payne's services.
____________________

11
NRS 150.030 states:
Such further allowances may be made as the court deems just and reasonable for any extraordinary
services, such as:
1. Management, sales or mortgages of real or personal property.
2. Contested or litigated claims against the estate.
3. The adjustment and payments of extensive or complicated estate taxes.
4. Litigation in regard to the property of the estate.
5. The carrying on of the decedent's business pursuant to an order of the court.
6. Such other litigation or special services as may be necessary for the personal representative to
prosecute, defend or perform.

12
See, e.g., Matter of Estate of Rohrich, 496 N.W.2d 566, 571 (N.D. 1993) (stating that an attorney's services
must benefit the estate to justify compensation from estate assets).
court did not abuse its discretion under NRS 150.060 in denying an award of fees for Payne's
services.
13

CONCLUSION
We reverse that portion of the district court's order approving the 5 percent fee agreement.
We therefore remand this matter to the district court for review of the entirety of the Kyle
firm's charges, in accordance with this opinion. We affirm the portion of the order below
denying the executors' professional fees in part and denying reimbursement for fees generated
in connection with their retention of alternate counsel. We also affirm the portion of the order
assessing the amount of $106,990.61 against the firm of Kyle & Kyle for excess brokerage
commissions paid in connection with the liquidation of securities. Finally, we remand this
matter for the district court to amend its order to include the imposition of joint and several
liability against the executors for the excess commissions assessed against Kyle & Kyle.
____________
120 Nev. 1001, 1001 (2004) Means v. State
CLYDE MEANS, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 40898
December 29, 2004 103 P.3d 25
Appeal from a district court's denial of a post-conviction petition for a writ of habeas
corpus. Fifth Judicial District Court, Nye County; Robert W. Lane, Judge.
The supreme court, Agosti, J., held that: (1) petitioner was entitled to inspect his former
counsel's notes from petitioner's case file after former counsel used notes to refresh his
recollection while testifying at evidentiary hearing; (2) work product doctrine did not apply to
shield notes that had been written by petitioner's former counsel from inspection by
petitioner; (3) habeas petitioner must prove disputed factual allegations underlying his
ineffective-assistance claim by preponderance of evidence, overruling, Davis v. State, 107
Nev. 600, 817 P.2d 1169 (1991), Lenz v. State, 97 Nev. 65, 624 P.2d 15 (1981), and Warden
v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974); (4) error in holding petitioner to clear and
convincing burden of proof with respect to establishing facts on petitioner's claim for
ineffective assistance was not harmless;
____________________

13
We recognize that Payne also submitted arguments defending the brokerage arrangements and the
executors' claims for extraordinary fees. To the extent that he did so, his efforts benefited the executors, not the
estate.
120 Nev. 1001, 1002 (2004) Means v. State
(5) petitioner was not entitled to evidentiary hearing on his claim that psychotropic
medications that he had allegedly been taking for manic depression rendered him incompetent
to enter plea; (6) petitioner was entitled to evidentiary hearing on claim that trial court's
failure during plea canvass to inform him that sentence of lifetime supervision would follow
his prison term rendered his guilty plea unintelligent and involuntary; and (7) petitioner was
not entitled to default judgment pursuant to rules of civil procedure, after State failed to
timely respond to petition.
Robert E. Glennen III, Pahrump, for Appellant.
Brian Sandoval, Attorney General, Carson City; Robert S. Beckett, District Attorney, and
Sharon Y. Dockter, Deputy District Attorney, Nye County, for Respondent.
JoNell Thomas, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.
1. Criminal Law.
The supreme court reviews the district court's resolution of discovery disputes for an
2. Criminal Law.
Supreme court reviews a district court's decision to admit or exclude evidence at
hearings and trials for an abuse of discretion.
3. Criminal Law.
It is within the district court's sound discretion to admit or exclude evidence, and the
supreme court will not overturn the district court's decision absent manifest error.
4. Witnesses.
Habeas petitioner was entitled to inspect his former counsel's notes from petitioner's
case file after former counsel used notes to refresh his recollection while testifying at
evidentiary hearing, and testified directly from notes, under statute allowing adverse
party to inspect any writing used to refresh a witness's recollection. NRS 50.125(1)(b).
5. Criminal Law.
Work product doctrine did not apply to shield notes that had been written by habeas
petitioner's former counsel from inspection by petitioner, in habeas proceeding in which
petitioner argued that former counsel had been ineffective in failing to appeal
petitioner's conviction, where former counsel, in giving testimony, had refreshed his
memory with the notes. NRS 50.125(1)(b).
6. Habeas Corpus.
In a post-conviction habeas petition, the supreme court evaluates claims of
ineffective assistance of counsel under Strickland. U.S. Const. amend. 6.
7. Criminal Law.
Strickland test for claims of ineffective assistance of counsel dictates that the
supreme court's evaluation begins with the strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance.
120 Nev. 1001, 1003 (2004) Means v. State
that counsel's conduct falls within the wide range of reasonable professional assistance.
8. Habeas Corpus.
Within the context of the strong presumption that counsel's conduct might be
considered sound trial strategy, a habeas petitioner asserting ineffective assistance must
demonstrate that his counsel's performance was deficient, falling below an objective
standard of reasonableness, and that counsel's deficient performance prejudiced the
9. Habeas Corpus.
To establish prejudice based on counsel's deficient performance, a habeas petitioner
asserting ineffective assistance must show that, but for counsel's errors, there is a
reasonable probability that the outcome would have been different. U.S. Const. amend.
6.
10. Criminal Law.
For purposes of a claim of ineffective assistance, court may evaluate the questions of
deficient performance and prejudice in either order and need not consider both issues if
the defendant fails to make a sufficient showing on one. U.S. Const. amend. 6.
11. Habeas Corpus.
A habeas corpus petitioner must prove the disputed factual allegations underlying his
ineffective-assistance claim by a preponderance of the evidence, overruling, Davis v.
State, 107 Nev. 600, 817 P.2d 1169 (1991), Lenz v. State, 97 Nev. 65, 624 P.2d 15
(1981), Warden v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974). U.S. Const. amend. 6.
12. Habeas Corpus.
When a habeas petitioner alleges ineffective assistance of counsel, he must establish
the factual allegations which form the basis for his claim of ineffective assistance by a
preponderance of the evidence; next, petitioner must establish that those facts show
counsel's performance fell below a standard of objective reasonableness, and, finally,
the petitioner must establish prejudice by showing a reasonable probability that, but for
counsel's deficient performance, the outcome would have been different. U.S. Const.
amend. 6.
13. Habeas Corpus.
Trial court's error in holding habeas petitioner to clear and convincing burden of
proof with respect to establishing facts on petitioner's claim for ineffective assistance
was not harmless; petitioner's claim was that his former counsel had failed to file direct
appeal, despite petitioner's request that they do so, evidence on this issue involved
directly conflicting testimony, and thus burden of proof to which petitioner had been
held could have made a difference in trial court's factual findings. U.S. Const. amend.
6.
14. Habeas Corpus.
A post-conviction habeas petitioner is entitled to an evidentiary hearing only if he
relief; however, if the record belies the petitioner's factual allegations, the petitioner is
not entitled to an evidentiary hearing.
15. Habeas Corpus.
Habeas petitioner was not entitled to evidentiary hearing on his claim that
psychotropic medications that he had allegedly been taking for manic depression
rendered him incompetent to enter plea; psychiatrist and forensic research specialist
who had examined petitioner both indicated that petitioner was competent, transcript
of petitioner's plea indicated that petitioner responded appropriately to questions
and appeared to be fully cognizant of proceedings, and neither petitioner, his
counsel, nor trial court raised concerns about petitioner's mental competence.
120 Nev. 1001, 1004 (2004) Means v. State
titioner was competent, transcript of petitioner's plea indicated that petitioner responded
appropriately to questions and appeared to be fully cognizant of proceedings, and
neither petitioner, his counsel, nor trial court raised concerns about petitioner's mental
competence.
16. Mental Health.
At or before trial, the test to be applied in determining competency must be whether
the defendant has sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding, and whether he has a rational as well as factual
understanding of the proceedings against him.
17. Criminal Law.
For a guilty plea to be valid, defendant must voluntarily enter the plea under
circumstances that are fundamentally fair; if defendant is unaware of the direct
consequences of the plea, he cannot knowingly and voluntarily enter a plea of guilty.
18. Habeas Corpus.
Habeas petitioner was entitled to evidentiary hearing on claim that trial court's
failure during plea canvass to inform him that sentence of lifetime supervision would
follow his prison term rendered his guilty plea unintelligent and involuntary; lifetime
supervision term had been set out in written guilty plea memorandum, but record
indicated that defendant had not signed memorandum until after he had pleaded guilty,
at his sentencing hearing, and hence record did not belie petitioner's allegation that he
had been unaware of lifetime supervision requirement at time he entered his plea. NRS
176.0931.
19. Criminal Law.
Failure of trial court to inform a defendant who enters guilty plea that he will be
subject to lifetime supervision upon release from prison may not constitute reversible
error if the totality of the circumstances revealed by the record otherwise demonstrate
that the defendant was aware of the consequence prior to entry of the plea, and was so
informed either by the written plea agreement, by counsel, or in some other manner.
NRS 176.0931.
20. Habeas Corpus.
Habeas petitioner was not entitled to evidentiary hearing on issue of whether his
counsel's alleged failure to investigate and failure to set aside petitioner's guilty plea
constituted ineffective assistance; petitioner had admitted his guilt not only in district
court, but also to all of his psychological evaluators, and petitioner failed to
demonstrate, if indeed counsel failed to investigate his case, how such failure had
prejudiced him. U.S. Const. amend. 6.
21. Habeas Corpus.
Habeas petitioner was not entitled to default judgment pursuant to rules of civil
procedure, after State failed to timely respond to petition; while question of sanctions in
event of State's failure to respond was not addressed in habeas post-conviction statutes,
it was equally true that those statutes specifically addressed the only ways in which
these cases could be resolved, and thus default judgment was inappropriate in habeas
context. NRS 34.770(1); NRCP 55.
22. Habeas Corpus.
Because of the unique nature of post-conviction habeas corpus proceedings,
reference to the rules of civil procedure is only appropriate when the statutes governing
post-conviction practice do not address the issue presented. NRS 34.360 et seq.
120 Nev. 1001, 1005 (2004) Means v. State
OPINION
In this appeal, we consider whether a post-conviction habeas petitioner should have been
permitted to inspect and introduce his former attorney's notes from the case file into evidence
after former counsel used the notes to refresh his recollection while testifying at the
post-conviction evidentiary hearing. We also consider the proper burden of proof that a
petitioner carries on disputed factual questions in the context of a post-conviction hearing.
Finally, we consider whether granting a default judgment pursuant to the Nevada Rules of
Civil Procedure is appropriate when the State is tardy in responding to a petition for
post-conviction relief.
We conclude that the district court improperly denied petitioner access to his former
attorneys' notes. We further conclude that petitioner's burden of proof on disputed factual
issues underlying a claim of ineffective assistance of counsel is by a preponderance of the
evidence and that it was error to require petitioner to prove by clear and convincing evidence
that he had instructed his attorneys to appeal his conviction. Finally, we conclude that the
district court properly denied petitioner's motion for default judgment.
FACTS
Appellant Clyde Means pleaded guilty to and was convicted of attempted sexual assault
upon his nineteen-year-old son. The victim alleged that Means had sexually assaulted him on
at least three separate occasions while they lived in Nevada. Means had first pleaded not
guilty to one count of open or gross lewdness and three counts of sexual assault.
At trial, after the jury was empaneled but before any evidence was presented, the district
court conducted a hearing outside the jury's presence to determine whether to admit evidence
of Means's prior bad acts.
1
After the district court ruled that the prior bad acts were
admissible, the State and defendant, through his attorneys, negotiated a plea bargain. In return
for Means's plea of guilty to attempted sexual assault, the State agreed to dismiss all other
charges.
Pursuant to the agreement, Means entered a plea of guilty. During the plea canvass, Means
stated that his guilty plea was not the result of any threats or persuasion, but was his own
idea. The district court informed Means that he would face two to twenty years in prison, up
to a $10,000 fine and be required to pay restitution; Means was also told that probation
was not available to him.
____________________

1
Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), modified in part on other grounds by Sonner v. State,
112 Nev. 1328, 1333-34, 930 P.2d 707, 711-12 (1996) and superseded by statute on other grounds as stated in
120 Nev. 1001, 1006 (2004) Means v. State
years in prison, up to a $10,000 fine and be required to pay restitution; Means was also told
that probation was not available to him. Means indicated that he understood. The district
court did not inform Means that he would be subject to lifetime supervision by the State's
Division of Parole and Probation upon his release from prison.
At Means's sentencing hearing, the district court noted that the statutory sentence was
between two to twenty years incarceration in prison and lifetime supervision upon release.
The State Division of Parole and Probation recommended that Means be sentenced to a
minimum of 57 months and a maximum of 144 months incarceration with lifetime
supervision. The victim requested that Means receive the maximum penalty.
2
The district
court sentenced Means to the maximum penalty and informed him that he would be subject to
lifetime supervision upon his release from prison.
Means did not appeal from his sentence. He subsequently filed a proper person petition in
the district court for post-conviction relief. Means alleged that his guilty plea was not entered
intelligently and voluntarily because he was on medication for manic depression and that his
defense counsel's assistance was ineffective for failing to obtain a competency evaluation and
for failing to directly appeal Means's conviction upon his request; Means also alleged that his
sentence violated his constitutional right against cruel and unusual punishment and that the
provision in the sentence requiring lifetime supervision constituted double jeopardy and also
violated the Equal Protection Clause.
The district court appointed post-conviction counsel to represent Means. After a hearing,
the court denied the habeas petition in part and granted Means's request for an evidentiary
hearing regarding the issue of his defense counsel's failure to pursue an appeal.
Before the evidentiary hearing, Means requested the notes and files kept by his former
attorneys during the course of their representation of Means in the criminal case. Apparently,
his former counsel turned over the file but removed their notes.
3
During the evidentiary
hearing, one of Means's former attorneys, Christian Bryner, referred to those notes while
being questioned. Means moved to inspect those notes and to have them introduced as
evidence. After the parties briefed the issue of whether an attorney's notes should be released
to a former client and after an in camera inspection of the notes, the district court denied
Means's motion. Subsequently, the district court denied Means's petition for post-conviction
relief.
____________________

2
NRS 176.015(3)(a), (b).

3
In violation of NRS 50.125(2), the parties did not submit the file to this court under seal, so we are unable to
determine what counsel gave to Means.
120 Nev. 1001, 1007 (2004) Means v. State
Means now appeals the denial of his petition. He argues that the district court erred by
ruling that he was not entitled to his trial attorneys' notes, applying the wrong burden of
proof, refusing to conduct a hearing on the validity of his plea, concluding that his former
defense counsel provided adequate assistance and denying his motion for a default judgment.
DISCUSSION
Access to counsel's notes
In connection with his factual claim that he had instructed his former attorneys to appeal
his conviction and sentencing, Means requested the attorneys' file. Means claimed that his
former attorneys' failure to appeal amounted to ineffective assistance of counsel, entitling him
to post-conviction relief. Counsel disputed the factual claim that Means had asked them to
file an appeal. His former attorneys, Lamond Mills and Bryner, acquiesced in Means's request
for production of their trial file but, as previously mentioned, they withheld their written
notes. Bryner referred to those notes while testifying at Means's post-conviction hearing.
Means requested that the district court allow him to inspect the notes and thereafter admit
those notes into evidence, but the district court refused.
Means claims that this was error since Bryner used the notes to refresh his recollection at
the hearing. Under NRS 50.125, Means argues, he was entitled to inspect the notes and
introduce them into evidence. Means further argues that NRS 7.055 requires the discharged
attorney to deliver everything prepared for the client, including notes. Finally, Means
contends that the attorneys could not invoke the work product privilege found in NRCP
26(b)(3) to justify withholding their notes because the privilege is meant to protect a party
from disclosing to an opposing party mental impressions, conclusions, opinions and legal
theories. Means asserts that Bryner and Mills represented him and so he is not and cannot be
an opposing party within the meaning of the rule; Means also asserts that the rule does not
apply when a former client seeks his former counsel's notes in a post-conviction proceeding
where the former counsel is a witness.
[Headnotes 1-3]
We review the district court's resolution of discovery disputes for an abuse of discretion.
4
We also review a district court's decision to admit or exclude evidence at hearings and trials
for an abuse of discretion.
____________________

4
Lisle v. State, 113 Nev. 679, 695, 941 P.2d 459, 470 (1997), limited on other grounds by Middleton v. State,
114 Nev. 1089, 1117 n.9, 968 P.2d 296, 315 n.9 (1998).
120 Nev. 1001, 1008 (2004) Means v. State
discretion. It is within the district court's sound discretion to admit or exclude evidence,
5
and
this court will not overturn [the district court's] decision absent manifest error.
6

NRS 50.125(1)(b) allows an adverse party to inspect any writing used to refresh a
witness's recollection. It further allows the adverse party to cross-examine the witness about
the writing and to introduce into evidence relevant portions affecting the witness's credibility.
7
NRS 50.125(2) allows the district court to inspect and excise irrelevant portions of the
writing used to refresh memory before providing it to the adverse party.
[Headnote 4]
Bryner, at the State's request, used his file and notes to refresh his recollection as to the
number of times he had communicated with Means. The district court also asked Bryner if his
notes indicated that Means had requested Bryner to file an appeal. Bryner testified that
nothing in his notes indicated that Means wanted to appeal his conviction. The district court
refused Means's request to inspect the notes but reserved a final ruling until the parties had
briefed the issue. The court later heard oral argument on the issue and subsequently denied
Means's motion. The district court erred. Because Bryner used the notes to refresh his
recollection and testified directly from the document, Means was entitled to inspect the notes.
8

The State argues that the work product doctrine protects not only the client but also the
attorney and therefore shields an attorney from having to disclose the contents of a client's file
to the client. The State contends that trial preparation would be impaired if defense counsel
knew his preparation notes would potentially be open to review at subsequent proceedings;
there being no way, other than through self-serving and selective trial preparation for an
attorney to protect him or herself from misuse of damaging information in the client's file, the
attorney's preparation of a case would necessarily be impacted. The State argues that an
attorney's notes should only be discoverable if the former client first demonstrates a
substantial need for the notes and secondly that he cannot obtain the same information
elsewhere without undue hardship. The State describes this as the federal approach and urges
this court to adopt it to protect an attorney's work product in a criminal case from disclosure
to the attorney's client.
9

____________________

5
Tabish v. State, 119 Nev. 293, 308 n.33, 72 P.3d 584, 594 n.33 (2003).

6
Collman v. State, 116 Nev. 687, 702, 7 P.3d 426, 436 (2000).

7
NRS 50.125(1)(c)-(d).

8
NRS 50.125(1)(b).

9
FRCP 26(b)(3) provides that material prepared in anticipation of litigation is discoverable only upon a
showing that the party seeking discovery has sub-
120 Nev. 1001, 1009 (2004) Means v. State
Most federal authority addresses attorney files and the work product doctrine in the
context of opposing a demand for disclosure made by counsel representing a party adverse to
the client, rather than the former client.
10
In deciding whether to provide opposing counsel
with access to information that is otherwise protected from disclosure as work product, one
factor the federal courts consider is whether the information is factual or constitutes the
attorney's opinions, mental impressions, trial tactics and conclusions. While the court may
release factual work product to opposing counsel upon a showing of substantial need and
inability to acquire equivalent information without undue hardship under FRCP 26(b)(3),
discovery of the attorney's mental impressions generally requires a higher showing of need or
is undiscoverable altogether.
11

In Spivey v. Zant, a post-conviction habeas corpus proceeding similar to the case at hand,
the petitioner alleged that either he was without counsel or his counsel had no notice of the
trial court's order requiring him to submit to psychological examination.
12
Prior to trial, the
petitioner had fired his attorney. The trial court subsequently appointed another attorney.
However, in the interim, the district court ordered the petitioner to submit to a psychological
examination to determine his competency to stand trial and also to ascertain his mental
condition at the time of the offense. In conducting discovery prior to the post-conviction
habeas hearing, the petitioner sought, by subpoena duces tecum, his former counsel's notes to
aid him in establishing as a fact, the date when counsel was notified of the court's order
compelling the psychological examination.
____________________
stantial need of the materials in the preparation of the party's case and that the party is unable without undue
hardship to obtain the substantial equivalent of the materials by other means.

10
See, e.g., FTC v. Grolier Inc., 462 U.S. 19, 30 (1983) (Brennan, J., concurring); United States v. Nobles,
422 U.S. 225, 237 (1975) (relying on Hickman v. Taylor, 329 U.S. 495, 511 (1947)); Westinghouse v. Republic
of the Philippines, 951 F.2d 1414, 1429 (3d Cir. 1991); In re Doe, 662 F.2d 1073, 1078 (4th Cir. 1981).

11
Upjohn Co. v. United States, 449 U.S. 383, 400 (1981) (stating that Rule 26 accords special protection to
work product revealing the attorney's mental processes); In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th
Cir. 1994) (stating that [o]pinion work product is even more scrupulously protected [than fact work product] as
it represents the actual thoughts and impressions of the attorney); Duplan Corp. v. Moulinage et Retorderie de
Chavanoz, 509 F.2d 730, 734 (4th Cir. 1974) (stating that [i]n our view, no showing of relevance, substantial
need or undue hardship should justify compelled disclosure of an attorney's mental impressions, conclusions,
opinions or legal theories); see also In re Special September 1978 Grand Jury, 640 F.2d 49, 63 (7th Cir. 1980)
(concluding that, in the case of client fraud, factual information furnished to the attorney by the client was
discoverable, whereas the attorney's mental impressions, conclusions and legal tactics were not).

12
683 F.2d 881, 881-82 (5th Cir. 1982).
120 Nev. 1001, 1010 (2004) Means v. State
was notified of the court's order compelling the psychological examination. The district court
granted the former counsel's motion to quash the subpoena. During the evidentiary hearing,
petitioner's former counsel refreshed his recollection with his file. The petitioner's current
counsel requested that the district court review the file in camera and permit petitioner access
to all discoverable contents, but the district court refused. On appeal, the Fifth Circuit held
that the district court erred by quashing the subpoena.
13
The court concluded that the work
product doctrine did not protect the attorney's file from disclosure to the attorney's client.
14
The court also noted that the work product doctrine only prevents disclosure of the attorney's
mental impressions, conclusions, opinions and legal theories.
15

[Headnote 5]
Like the petitioner in Spivey, Means sought his own former attorneys' notes. The work
product doctrine is most commonly and appropriately invoked when opposing counsel
attempts to access a criminal defendant's file. Such is not the case at hand. Means's former
attorneys' notes were relevant to support or negate Means's assertion that he had asked
counsel to appeal his conviction. Such an inquiry did not seek counsel's mental impressions.
At the hearing, former counsel, acting as a witness, refreshed his memory with the notes.
Under that circumstance, Means was entitled under the statute to demand to see the notes. We
conclude that the work product doctrine is not an exception to the inspection rights conferred
in NRS 50.125 and does not shield an attorney from having to disclose his notes to his former
client when the attorney, in giving testimony, has refreshed his memory with the notes. In
refusing Means access to his former counsel's notes, the district court erred.
____________________

13
Id. at 885.

14
Id.

15
Id. Spivey's attorney had offered to take Spivey's former counsel's file after counsel's mental impressions or
legal theories had been excised. However, when the attorney's mental impressions are at issue, at least one
federal court has allowed discovery of attorney files containing the attorney's mental impressions, opinions, legal
theories and conclusions. In Holmgren v. State Farm Mutual Automobile Insurance Co., 976 F.2d 573, 577 (9th
Cir. 1992), the Ninth Circuit Court of Appeals held that FRCP 26(b)(3) permitted discovery of attorney work
product in a bad-faith suit against an insurance company, where the insurance company's adjusters prepared
estimates valuing the insured's claim, the insurance company's intent was the pivotal issue and the party seeking
the valuation demonstrated a compelling need for the material because the information was not otherwise
available. See also Donovan v. Fitzsimmons, 90 F.R.D. 583, 588 (N.D. Ill. 1981) (concluding that, where the
attorney's communications to the client were at issue, the work product doctrine did not protect the attorney's file
from discovery).
120 Nev. 1001, 1011 (2004) Means v. State
Burden of proof
In his petition for post-conviction relief, Means claimed he was deprived of a direct appeal
without his consent due to his counsel's ineffectiveness. After conducting an evidentiary
hearing solely on this issue, the district court denied the claim, finding that Means had not
established the facts by clear and convincing evidence. On appeal, Means argues that the
district court failed to apply the correct burden of proof. In briefing this matter on appeal, the
State has elected not to address this argument.
[Headnotes 6-10]
In a post-conviction habeas petition, we evaluate claims of ineffective assistance of
counsel
16
under the test established in Strickland v. Washington.
17
In that 1984 decision, the
United States Supreme Court created a fair, workable and, as it turns out, durable standard
that replaced Nevada's traditional farce and sham test.
18
Strickland dictates that our
evaluation begins with the strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.
19
The Court further explained that the
defendant must overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.'
20
Within the context of this strong
presumption, the petitioner must demonstrate that his counsel's performance was deficient,
falling below an objective standard of reasonableness, and that counsel's deficient
performance prejudiced the defense.
21
To establish prejudice based on counsel's deficient
performance, a petitioner must show that, but for counsel's errors, there is a reasonable
probability that the outcome would have been different.
22
A court may evaluate the questions
of deficient performance and prejudice in either order and need not consider both issues if the
defendant fails to make a sufficient showing on one.
23
Yet the claim that ineffective
assistance of counsel prejudiced the petitioner is distinct from its factual nucleus. In
Strickland, the Court did not set forth the specific burden that the petitioner carries in proving
the factual allegations that form the basis of an ineffective-assistance-of-counsel claim.
____________________

16
See, e.g., Kirksey v. State, 112 Nev. 980, 987, 923 P.2d 1102, 1107 (1996).

17
466 U.S. 668, 687 (1984).

18
Warden v. Lyons, 100 Nev. 430, 432, 683 P.2d 504, 505 (1984).

19
466 U.S. at 689.

20
Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

21
Id. at 687.

22
Id. at 694.

23
Id. at 697.
120 Nev. 1001, 1012 (2004) Means v. State
basis of an ineffective-assistance-of-counsel claim.
24
Neither has this court clarified that
burden of proof.
Some Nevada authority signals that the petitioner must prove the factual allegations
underlying an ineffective-assistance-of-counsel claim by clear and convincing evidence. In
Davis v. State, we indicated, consistent with previous decisions, that strong and convincing
proof' was necessary to overcome the presumption that defense counsel fully discharged his
duties.
25
However, many federal courts have applied the preponderance standard to the
underlying facts alleged in the petition.
26
In Alcala v. Woodford, the Ninth Circuit Court of
Appeals echoed other federal cases in stating that a habeas petitioner must prove the factual
allegations underlying claims of ineffective assistance by a preponderance of the evidence.
27
Similarly, the Fifth Circuit Court of Appeals noted in James v. Cain, that [a] petitioner who
seeks to overturn his conviction on grounds of ineffective assistance of counsel must prove
his entitlement to relief by a preponderance of the evidence.
28

[Headnotes 11, 12]
Choosing consistency with federal authority, we now hold that a habeas corpus petitioner
must prove the disputed factual allegations underlying his ineffective-assistance claim by a
preponderance of the evidence.
29
To the extent that our decision today conflicts with the
"strong and convincing" language of Davis and its predecessors, we expressly overrule
those cases.
____________________

24
See generally id.

25
107 Nev. 600, 602, 817 P.2d 1169, 1170 (1991) (quoting Lenz v. State, 97 Nev. 65, 66, 624 P.2d 15, 16
(1981)); see also Warden v. Lischko, 90 Nev. 221, 223, 523 P.2d 6, 7 (1974), overruled in part on other
grounds by Pellegrini v. State, 117 Nev. 860, 886, 34 P.3d 519, 536 (2001).

26
See, e.g., Triana v. U.S., 205 F.3d 36, 40 (2d Cir. 2000); McKenzie v. McCormick, 27 F.3d 1415, 1418-19
(9th Cir. 1994) (citing Johnson v. Zerbst, 304 U.S. 458, 469 (1938) for the proposition that a petitioner must
convince the district court of the facts underlying an alleged constitutional error by a preponderance of the
evidence). Notably, when the Fifth Circuit Court of Appeals considered Washington v. Strickland, the court
relied on earlier circuit cases in stating that the petitioner asserting ineffective assistance of counsel must prove
his entitlement to relief by a preponderance of the evidence. 693 F.2d 1243, 1250 (5th Cir. 1982) (citing United
States v. Killian, 639 F.2d 206, 210 (5th Cir. 1981); Mays v. Balkcom, 631 F.2d 48, 52 n.1 (5th Cir. 1980);
Marino v. United States, 600 F.2d 462, 464 (5th Cir. 1979)). While the United States Supreme Court reversed, it
did not address whether preponderance was the correct burden of proof.

27
334 F.3d 862, 869 (9th Cir. 2003).

28
56 F.3d 662, 667 (5th Cir. 1995).

29
In Hogan v. Warden, 109 Nev. 952, 960, 860 P.2d 710, 716 (1993) (quoting Sawyer v. Whitley, 505 U.S.
333, 336 (1992)), we held that a post-conviction habeas petitioner who was attempting to overcome a procedural
default by demonstrating he was ineligible for the death penalty due to actual innocence was required to prove
by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the
petitioner
120 Nev. 1001, 1013 (2004) Means v. State
the strong and convincing language of Davis and its predecessors, we expressly overrule
those cases. Therefore, when a petitioner alleges ineffective assistance of counsel, he must
establish the factual allegations which form the basis for his claim of ineffective assistance by
a preponderance of the evidence. Next, as stated in Strickland, the petitioner must establish
that those facts show counsel's performance fell below a standard of objective reasonableness,
and finally the petitioner must establish prejudice by showing a reasonable probability that,
but for counsel's deficient performance, the outcome would have been different.
In this case, the evidence before the district court at the post-conviction evidentiary
hearing primarily consisted of Means's testimony and that of his former attorneys. Mills, who
had acted as lead counsel, testified that he did not recall discussing appeal rights with Means's
family because there were no appeal issues to discuss. Bryner testified that, a couple of weeks
after Means was sentenced, Means called him and expressed concern that the sentence that
had been imposed against him was greater than the maximum sentence allowed
30
and also
that he did not want to have lifetime supervision imposed upon him. Bryner testified that he
did not recall that Means had asked for an appeal. Bryner further testified that he told Means
that the incorrect sentence could be resolved by a motion or by a telephone call, as it was a
clerical error. However, Bryner took no action on Means's behalf. Bryner further testified that
he researched the lifetime supervision portion of the sentence and informed Means that, after
he had finished serving his prison sentence and some time had lapsed after his release from
prison, Means could seek to have the lifetime supervision provision removed. Bryner testified
that Means seemed satisfied with that answer.
In contrast, Means testified that his sentence differed from the punishment for which he
had bargained because he was never informed about the lifetime supervision component until
it was imposed. Means stated that, based on the imposition of the lifetime supervision term,
he called Mills's office, spoke to Bryner and asked Bryner to file an appeal. Means testified
that Bryner questioned him about who would pay for an appeal and indicated that he, Bryner,
would need to speak to Mills. Means testified that approximately four weeks after that
telephone conversation, he called Mills's office again, and Bryner informed him that Mills's
office had refused to handle the matter.
____________________
eligible for the death penalty under the applicable state law.' Our holding today is limited to a petitioner's
burden of proof of facts underlying claims of ineffective assistance of counsel that are raised in a post-conviction
habeas petition that are not otherwise procedurally barred. This court's prior holding in Hogan remains
unaffected and intact.

30
On August 20, 2001, the district court sentenced Means to 240 months with a minimum parole eligibility of
133 months. On January 10, 2002, the district court issued an amended judgment of conviction correcting the
parole eligibility to 96 months.
120 Nev. 1001, 1014 (2004) Means v. State
proximately four weeks after that telephone conversation, he called Mills's office again, and
Bryner informed him that Mills's office had refused to handle the matter.
[Headnote 13]
Where there is credible, conflicting evidence, the burden of proof may make a difference
in the district court's factual findings. Here, the evidence about whether Means requested his
attorneys to file a direct appeal involved directly conflicting testimony. Because the district
court required Means to prove by clear and convincing evidence that he had asked his
attorneys to pursue an appeal, Means's rights were prejudiced. The record before us does not
disclose whether the district court's factual determination that Means had not asked his
attorneys to appeal would have been different had Means only been required to establish this
fact by a preponderance of the evidence.
By holding Means to an impermissibly higher burden of proof, we cannot conclude that
the district court's error was harmless beyond a reasonable doubt.
31
If the evidence is
persuasive when the burden of a preponderance of the evidence is applied, then Means would
be entitled to post-conviction relief because, as we discuss later in this opinion, prejudice is
presumed. It is entirely possible that evidence may be persuasive under a preponderance
standard although not under more stringent standards such as proof by clear and convincing
evidence or the criminal standard requiring proof beyond a reasonable doubt.
Because Means is entitled to present his evidence and have disputed factual matters judged
by a preponderance of the evidence, and because Means was, at the post-conviction hearing,
improperly refused the opportunity to inspect his counsel's notes, we are compelled to reverse
and remand for a new evidentiary hearing so that the district court may, first, permit Means
access to the notes Bryner relied upon to refresh his memory and, second, afford Means the
opportunity to prove by a preponderance of the evidence that his counsel had a professional
obligation to file an appeal.
If the trier of fact believes Bryner's testimony that Means contacted him, well within the
time to file an appeal, and complained about his allegedly illegal sentence and the imposition
of lifetime supervision, Means may be entitled to relief. While Means must prove by a
preponderance of the evidence the factual underpinnings concerning what issues he raised
with his attorneys, if he shows that he asked for an appeal, the legal conclusion to be drawn is
settled. In Davis v. State, we recognized that, if a defendant who was convicted pursuant to a
guilty plea asks for an appeal, and counsel fails to appeal, prejudice to the defendant is
presumed.
32
That is, if counsel fails to file an appeal despite the defendant's request,
counsel rendered ineffective assistance.
____________________

31
See Collman v. State, 116 Nev. 687, 724, 7 P.3d 426, 450 (2000).

32
115 Nev. 17, 20, 974 P.2d 658, 660 (1999).
120 Nev. 1001, 1015 (2004) Means v. State
is, if counsel fails to file an appeal despite the defendant's request, counsel rendered
ineffective assistance.
33
Moreover, we also held that [a]n attorney has a duty to perfect an
appeal when a convicted defendant expresses a desire to appeal or indicates dissatisfaction
with a conviction.'
34
Under the circumstances of this case, even assuming that Means did
not specifically request an appeal, and even if Means did not have the financial resources to
retain Bryner and Mills to file an appeal, it may well have been incumbent upon counsel to
inform Means of his right to appeal and to file an appeal on his behalf.
35

Remaining claims pertaining to guilty plea
Means asserts that the district court erred by denying him an evidentiary hearing on other
claims raised in his habeas petition because he set forth specific allegations that were not
belied by the record.
36
Means specifically alleges that, because he was taking medication for
his manic depression when he entered his guilty plea, he was not competent to plead guilty,
and the district court should have held an evidentiary hearing to determine whether he entered
his plea knowingly and intelligently. Means further contends that the district court should
have held a hearing on whether his plea was voluntary because, at the time he pleaded guilty,
the district court did not mention that as a result of the conviction he would be subjected to
lifetime supervision upon his release from prison. The State responds only to the first
argument.
When the district court granted an evidentiary hearing on Means's claim that his counsel
was ineffective in failing to perfect an appeal after Means asked for an appeal, the court also
denied all other claims set forth by Means. In its order, the district court found the following
claims by Means to be without merit: claims that his plea was involuntary because the court's
sentencing canvass was inadequate as a matter of law and that the court violated the
Fourteenth Amendment
37
when it failed to request a competency hearing. The court stated
that the record clearly demonstrated that during the court's canvass Means received a
complete explanation of the nature of the charge, possible penalties and the right to a trial.
The court stated that Means had competent counsel present, and Means had indicated that
he understood his rights, that he was pleading guilty because he was guilty, and that "no
promises had been made to him.
____________________

33
Id.

34
Id. (quoting Lozada v. State, 110 Nev. 349, 354, 871 P.2d 944, 947 (1994)).

35
See Thomas v. State, 115 Nev. 148, 150, 979 P.2d 222, 223 (1999) (recognizing that under certain
circumstances counsel will have an obligation to advise a defendant who pleaded guilty of the right to appeal,
including where the defendant inquires about an appeal or where the defendant may benefit from receiving
advice regarding an appeal).

36
Marshall v. State, 110 Nev. 1328, 1331, 885 P.2d 603, 605 (1994).

37
U.S. Const. amend. XIV.
120 Nev. 1001, 1016 (2004) Means v. State
sel present, and Means had indicated that he understood his rights, that he was pleading guilty
because he was guilty, and that no promises had been made to him.
We conclude that the district court correctly denied Means an evidentiary hearing on his
contention of mental incompetence. However, the contention that Means knew nothing about
mandatory lifetime supervision merited an evidentiary hearing; the district court erred in
denying him a hearing on this issue.
[Headnote 14]
A post-conviction habeas petitioner is entitled to an evidentiary hearing only if he
38
However, if the record belies the petitioner's factual allegations, the petitioner is not entitled
to an evidentiary hearing.
39

[Headnote 15]
Means's allegation that the psychotropic medications he was taking for manic depression
rendered him incompetent is belied by the record. At Means's initial arraignment, the district
court asked him if he had ever been treated for a mental disorder. To his counsel's surprise,
Means answered in the affirmative. After allowing Means and his counsel an opportunity to
confer, the district court asked them if they were okay. Means's counsel responded in the
affirmative. Although the district court's initial canvass, by itself, was tenuous in resolving
the question of Means's mental competency, the results of Means's subsequent examinations
by Dr. Robert Brewer, a psychiatrist licensed in Nevada, and Dr. Gary Solomon, a forensic
research specialist, indicate that Means was competent. Additionally, at the request of the
Division of Parole and Probation's Pre-sentence Investigation Unit, John S. Pacult, a licensed
clinical social worker, completed a psychosexual evaluation of Means. Pacult met with
Means for four hours. He indicated that Means was oriented to person, time and place, and
that he appeared to be of average intelligence, and his thought process and memory appeared
intact. Both the initial arraignment transcript and the transcript of Means's plea indicate that
Means responded appropriately to questions and appeared to be fully cognizant of the
proceedings. Finally, neither Means, his counsel nor the district court raised concerns about
Means's mental competence. It was not until the habeas corpus petition that Means raised the
issue.
[Headnote 16]
At or before trial, [t]he test to be applied in determining competency must be whether
[the defendant] has sufficient present ability to consult with his lawyer with a reasonable
degree of rational understandingand whether he has a rational as well as factual
understanding of the proceedings against him.
____________________

38
Thomas, 120 Nev. at 44, 83 P.3d at 823.

39
Id.
120 Nev. 1001, 1017 (2004) Means v. State
ability to consult with his lawyer with a reasonable degree of rational understandingand
whether he has a rational as well as factual understanding of the proceedings against him.'
40
The record supports the conclusion that Means understood the proceedings and was able to
rationally consult with his counsel. Therefore, the district court did not err by denying an
evidentiary hearing on this allegation as the allegation is belied by the record.
Means next contends that he was never informed that a sentence of lifetime supervision
would follow his prison term and that, without a full awareness of the sentence, his guilty
plea was unintelligent and involuntary. Means asserts that the district court erred in refusing
him an evidentiary hearing on this issue.
[Headnote 17]
For a guilty plea to be valid, the defendant must voluntarily enter the plea under
circumstances that are fundamentally fair.
41
If the defendant is unaware of the direct
consequences of the plea, the defendant cannot knowingly and voluntarily enter a plea of
guilty.
42
In Palmer v. State, we held that lifetime supervision imposed pursuant to NRS
176.0931 is a direct consequence of a guilty plea, and therefore, a defendant pleading guilty
must be aware of it to enter a knowing and voluntary plea.
43

[Headnotes 18, 19]
Here, when Means entered his guilty plea, the district court, in its canvass, failed to inform
Means that his conviction required that he be subject to lifetime supervision upon release
from prison. However, that failure may not constitute reversible error if the totality of the
circumstances revealed by the record otherwise demonstrate that the defendant was aware of
the consequence prior to entry of the plea, and was so informed either by the written plea
agreement, by counsel, or in some other manner.
44

[Headnote 20]
The record indicates that the lifetime supervision term was specifically set out in the
written guilty plea memorandum. However, the record also indicates that although Means
pleaded guilty on May 15, 2001, he did not sign the plea memorandum until August 20, 2001,
at his sentencing hearing. Hence, the record does not belie Means's allegation that he was
unaware of the lifetime supervision requirement at the time that he entered his guilty plea.
____________________

40
Melchor-Gloria v. State, 99 Nev. 174, 179-80, 660 P.2d 109, 113 (1983) (second alteration in original)
(quoting Dusky v. United States, 362 U.S. 402, 402 (1960)).

41
Bryant v. State, 102 Nev. 268, 273, 721 P.2d 364, 368-69 (1986).

42
Palmer v. State, 118 Nev. 823, 825, 59 P.3d 1192, 1193 (2002).

43
Id. at 825, 829-31, 59 P.3d at 1193, 1196-97.

44
Id. at 831, 59 P.3d at 1197.
120 Nev. 1001, 1018 (2004) Means v. State
plea. The record reveals that, during his plea canvass, Means was not questioned as to
whether he understood that he would be subject to lifetime supervision. The fact that the
record also contains a plea agreement signed more than three months after Means pleaded
guilty reveals nothing because the correct inquiry concerns what Means knew at the time he
entered his plea. Therefore, the district court erred by denying Means an evidentiary hearing
on this claim.
45
Upon remand, Means is entitled to pursue the claim that his conviction was
obtained in violation of the United States Constitution and the Nevada Constitution
46
because his guilty plea was unknowing, involuntary and unintelligent and entered without
knowledge of all the direct consequences.
47
To sustain his claim, Means must, consistent
with our earlier comments, establish by a preponderance of the evidence the fact that he
entered his guilty plea without knowledge that he would be subject to lifetime supervision
upon his release from prison.
Petitioner's motion for a default judgment
Finally, Means claims that the district court erred by refusing to enter a default judgment
in his favor after the State failed to timely respond to his habeas corpus petition. The record
reveals that Means petitioned the district court for a writ of habeas corpus on April 5, 2002.
On April 11, 2002, the district court ordered the State to respond to the petition within
forty-five days of the date of its order. On or about June 26, 2002, the district court, receiving
no response from the State, set the matter for a hearing.
On August 12, 2002, Means moved for a default judgment based upon the State's
unresponsiveness. The State did not file a response to Means's petition until September 25,
2002, over five months after it was ordered to respond to Means's petition and four months
after the deadline to respond that was imposed by the district court. On September 27, 2002,
the State opposed Means's motion for default judgment. On October 9, 2002, the district court
denied Means's motion for default judgment.
____________________

45
Means also argues that the district court erred by denying him an evidentiary hearing on defense counsel's
alleged failure to investigate and failure to set aside the plea. The alleged failure to investigate is belied by the
record. Although Means now claims his innocence, he admitted his guilt not only in the district court but also to
all of the psychological evaluators. Furthermore, Means does not demonstrate, if indeed his counsel failed to
investigate his case, how such failure prejudiced the defense. Therefore, this argument lacks merit. Finally,
regarding Means's argument that counsel was ineffective for failing to move to withdraw Means's guilty plea
before sentencing, the record does not reveal that Means demonstrated a desire to withdraw his plea before
sentencing. Therefore, this argument must fail as well.

46
NRS 34.724(1).

47
Mabry v. Johnson, 467 U.S. 504, 508-09 (1984).
120 Nev. 1001, 1019 (2004) Means v. State
Means claims error in the district court's denial of his motion for default judgment, arguing
that since a convicted person's failure to meet statutory timelines is a proper ground for
summary dismissal of a petitioner's habeas corpus writ petition, so should the State be equally
bound by procedural rules or face the identical sanction.
The statutory provisions governing post-conviction habeas procedures are silent with
respect to consequences in the event the State fails to abide by procedural rules.
48
These
same provisions do specifically address, in contrast, the consequences if a habeas petitioner
fails to comply. NRS 34.800 and NRS 34.810 allow the district court to dismiss a petition if
the habeas petitioner fails to comply with procedural rules. NRS 34.780 incorporates the
Nevada Rules of Civil Procedure in post-conviction habeas proceedings to the extent that
those rules do not conflict with NRS 34.360 to 34.830.
[Headnotes 21, 22]
We conclude that the default provisions of NRCP 55 are inapplicable to post-conviction
habeas proceedings. In Beets v. State,
49
we addressed the propriety of a district court
entertaining and denying a petitioner's motion for partial summary judgment in the context of
a post-conviction habeas proceeding. We determined that the statutes governing
post-conviction habeas proceedings do not provide for summary judgment as a method for
determining the merits of issues raised in these types of proceedings.
50
If the rules of civil
procedure governing summary judgment are inappropriate for post-conviction cases, then
permitting entry of default pursuant to NRCP 55 is even more inappropriate. In Beets, we
noted that habeas corpus proceedings are uniqueneither civil nor criminal for all purposes.
Because of the unique nature of post-conviction habeas corpus proceedings, we recognized in
Beets and reaffirm here that reference to the rules of civil procedure is only appropriate when
the statutes governing post-conviction practice do not address the issue presented.
51

While it is true that the question of sanctions in the event of the State's failure to respond is
not addressed in the post-conviction statutes, it is equally true that the statutes specifically
address the only ways in which these cases can be resolved. The post-conviction statutes limit
the availability of relief by the grounds upon which relief can be based,
____________________

48
See NRS 34.720 to 34.830.

49
110 Nev. 339, 341, 871 P.2d 357, 358 (1994).

50
Id.

51
Id.; see also Mazzan v. State, 109 Nev. 1067, 1070, 863 P.2d 1035, 1036 (1993).
120 Nev. 1001, 1020 (2004) Means v. State
upon which relief can be based,
52
and the time period within which the petition must be
brought.
53
If a petitioner sets forth adequate legal and factual grounds and if the petition is
timely, then the petition may only be resolved through an evidentiary hearing. NRS 34.770(1)
specifically states that a petitioner must not be discharged or committed to the custody of a
person other than the respondent unless an evidentiary hearing is held. This is entirely
inconsistent with disposition of the petition through entry of a default judgment. The district
court in this case was within the proper exercise of its discretion when it considered the
State's very untimely answer.
We note, in passing, that the unavailability of default judgment as a sanction against the
State for its disregard of court imposed deadlines does not mean the district court is powerless
to sanction the State for dilatory conduct. The district court, in its sound discretion, may
consider sanctions, including but not limited to the imposition of an attorney fee or other
monetary sanctions, or in the most egregious cases, an order of confinement of the person at
fault.
CONCLUSION
For the foregoing reasons, we reverse the district court's denial of the relief prayed for in
Means's habeas corpus petition and remand for an evidentiary hearing to determine whether
Means was deprived of his right to appeal due to ineffective assistance of counsel, and also to
determine if Means's guilty plea was entered with knowledge that upon release from prison he
would be subjected to lifetime supervision, all by a preponderance of the evidence. Further,
this matter is remanded to allow Means the opportunity to inspect the notes reviewed by
Bryner in aid of his testimony at the first post-conviction hearing.
____________________

52
NRS 34.724.

53
NRS 34.726.
____________
120 Nev. 1021, 1021 (2004) Borger v. Dist. Ct.
ALAN M. BORGER, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
HONORABLE NANCY M. SAITTA, District Judge, Respondents, and JAMES V.
LOVETT, M.D., F.A.C.S., Individually; LEWIS & LOVETT, LTD., dba DESERT
WEST SURGERY; DIPAK K. DESAI, M.D., F.A.C.G., Individually; and
ENDOSCOPY CENTER OF SOUTHERN NEVADA, L.L.C., dba
GASTROENTEROLOGY CENTER OF NEVADA, Real Parties in Interest.
No. 42128
December 29, 2004 102 P.3d 600
Original petition for a writ of mandamus challenging district court orders dismissing a
medical malpractice action and denying a motion to amend the malpractice complaint.
Patient brought a medical malpractice action against two physicians, and physician filed a
motion to dismiss the complaint. The district court dismissed the action against one physician
and denied patient's motion to amend the malpractice complaint. Patient filed a petition for a
writ of mandamus. The supreme court, Maupin, J., held that patient's medical expert affidavit
from gastroenterologist met the affidavit requirement for medical malpractice cases.
Petition granted.
John L. Hilts, Las Vegas; Leslie H. Wolf, Incline Village, for Petitioner.
Lauria Tokunaga & Gates, LLP, and Anthony D. Lauria, Sacramento, California, for Real
Parties in Interest Dipak Desai and Endoscopy Center of Southern Nevada, d/b/a
Gastroenterology Center of Nevada.
Lewis Brisbois Bisgaard & Smith, LLP, and V. Andrew Cass and Jeffrey D. Olster, Las
Vegas, for Real Parties in Interest James Lovett and Lewis & Lovett, d/b/a Desert West
Surgery.
1. Mandamus.
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
2. Mandamus.
Mandamus is an extraordinary remedy, and the decision as to whether a petition will
be entertained lies within the sound discretion of the court.
3. Health.
Patient's medical expert affidavit from gastroenterologist met the affidavit
requirement for medical malpractice cases, even though the patient's complaint was
filed against general surgeon and statute required a patient to file an affidavit from
a medical expert who practiced in an area of medicine that was "substantially
similar to the type of practice engaged in at the time of the alleged malpractice";
general surgeon's diagnosis and treatment of patient implicated the practice of
gastroenterology, which was expert's area of expertise.
tient's complaint was filed against general surgeon and statute required a patient to file
an affidavit from a medical expert who practiced in an area of medicine that was
substantially similar to the type of practice engaged in at the time of the alleged
malpractice; general surgeon's diagnosis and treatment of patient implicated the
practice of gastroenterology, which was expert's area of expertise. NRS 41A.071.
The supreme court reviews a district court's conclusions of law, including statutory
interpretations, de novo.
5. Health.
A patient who filed a medical malpractice case and failed to attach a medical expert
affidavit to his complaint was not entitled to leave to amend his complaint to comply
with the medical expert affidavit requirement; the statute pertaining to the filing of a
medical expert affidavit mandated dismissal for failure to attach a medical expert
affidavit to a malpractice complaint. NRS 41A.071.
Although the Legislature is certainly empowered to define substantive legal
remedies, the judiciary has the inherent power to govern its own procedures.
7. Courts.
The judiciary has inherent powers to administer its affairs, which include
rule-making and other incidental powers reasonable and necessary to carry out the
duties required for the administration of justice.
OPINION
This original petition for a writ of mandamus challenges district court orders dismissing
petitioner's medical malpractice action and denying his motion to amend his malpractice
complaint. Because the petition involves important issues of law concerning the expert
witness certification requirements of recently enacted NRS 41A.071, issues that merit
clarification to further judicial economy in this case and in general, we grant this petition for
writ relief.
1

In January 1998, petitioner Alan Borger consulted with real party in interest James Lovett,
M.D., a general surgeon, for treatment of recurrent lower digestive tract difficulties.
Eventually, in early 1999, Dr. Lovett secured a clinical consultation from real party in
interest, Dipak Desai, M.D., a gastroenterologist. Dr. Desai diagnostically confirmed that
Borger suffered from a condition known as Crohn's disease
____________________

1
See Falcke v. Douglas County, 116 Nev. 583, 586, 3 P.3d 661, 662-63 (2000); Smith v. District Court, 113
Nev. 1343, 1344, 950 P.2d 280, 281 (1997).
tion known as Crohn's disease
2
and agreed with Dr. Lovett's recommendations for surgical
intervention. On March 26, 1999, in accordance with the joint assessment, Dr. Lovett
performed a colectomy
3
and ileostomy
4
upon Borger.
Unfortunately, Borger's condition did not improve over time. In January 2002, Borger
began treatment with a second gastroenterologist, Marc Kudisch, M.D. Dr. Kudisch
ultimately concluded that Dr. Desai misdiagnosed Borger with Crohn's disease, and that Dr.
Lovett recommended and performed an unnecessary and overly aggressive surgical
procedure. On June 24, 2002, Borger filed a complaint for medical malpractice against Drs.
Lovett and Desai with the Nevada medical-legal screening panel.
5

When Borger initiated the panel proceedings, all medical malpractice actions were subject
to statutory prescreening by medical-legal screening panels.
6
This statutory mechanism
prohibited the filing of malpractice actions in district court without prior resort to the
prescreening procedures.
7
Complaints for panel review were lodged with the Division of
Insurance of the Nevada Department of Business and Industry
8
and, under certain
circumstances, were subject to dismissal or rejection by the panel if filed without an affidavit
from a medical expert in support of the malpractice claim.
9
Findings of the panel in favor of
or against the medical provider were admissible in any ultimate trial proceedings in district
court.
10

During the summer of 2002, while Borger's claim remained pending before the screening
panel, the Governor of Nevada called the Legislature into special session to address a
perceived medical malpractice insurance crisis. The Legislature, among other things, enacted
various measures limiting or capping noneconomic damages in medical malpractice cases,
11
tied damage limitations to procurement by medical providers of minimum professional
liability coverage,
____________________

2
Chronic regional inflammation of the small intestines, including the ileum. Taber's Cyclopedic Medical
Dictionary 433, 890 (Clayton L. Thomas ed., 16th ed. 1989).

3
Surgical excision of a portion of or the entire colon. Attorney's Illustrated Medical Dictionary C60 (2002).

4
Surgical creation of an external opening into the ileum (portion of the small intestine) through the abdominal
wall. Id. at I2.

5
See NRS 41A.016(1) (repealed 2002); NRS 41A.039(1) (repealed 2002).

6
See NRS 41A.016(1) (repealed 2002).

7
Id.

8
See NRS 41A.039(1) (repealed 2002); NRS 41A.005 (repealed 2002).

9
See NRS 41A.039(2) (repealed 2002); NRS 41A.069 (repealed 2002); NRS 41A.100 (repealed 2002).

10
See NRS 41A.016(2) (repealed 2002).

11
NRS 41A.031(1).
ity coverage,
12
changed the rules concerning joint and several liability of multiple
malpractice defendants,
13
repealed provisions requiring prescreening of cases by
medical-legal screening panels,
14
and provided for mandatory settlement conferences.
15
NRS 41A.071, enacted as part of the special legislative package, requires that medical
malpractice complaints filed on or after October 1, 2002,
16
be accompanied by affidavits of
merit from medical experts.
17
Under this provision, the affiant must practice or have
practiced in an area that is substantially similar to the type of practice engaged in at the time
of [the defendant's] alleged malpractice.
18
A district court must dismiss, without
prejudice, any malpractice complaint filed in violation of NRS 41A.071.
Under the special session legislation, malpractice plaintiffs could elect to proceed under
the repealed statutory format in actions filed with the Division of Insurance or in district court
before October 1, 2002. Because Borger claimed considerable noneconomic damages, he
elected to proceed under the old system, under which damage awards were not subject to
monetary limitations.
On December 19, 2002, before the conclusion of the screening panel proceedings, Borger
filed his first formal complaint in district court for medical malpractice against the real parties
in interest: Dr. Lovett, Lewis & Lovett, Ltd., d/b/a Desert West Surgery, Dr. Desai and his
corporate affiliate, Endoscopy Center of Southern Nevada, L.L.C., d/b/a Gastroenterology
Center of Nevada. Pertinent to these proceedings, the complaint alleged (1) that Dr. Lovett
and Dr. Desai misdiagnosed Borger's condition, (2) that Dr. Lovett's conduct fell below the
standard of care by performing the wrong surgical procedure, and (3) that the surgical result
obtained was deficient. No affidavit of merit accompanied the initial complaint. On March 7,
2003, Borger filed an amended complaint in the matter, which incorporated an affidavit of
Dr. Kudisch supporting the allegations against both physicians. At that point, the parties
stipulated to stay the district court proceedings until the medical-legal screening panel
concluded its prescreening functions.
19

____________________

12
NRS 41A.031(3), (4).

13
NRS 41A.041(1).

14
See, e.g., NRS 41A.016 (repealed 2002).

15
NRS 41A.081(1).

16
2002 Nev. Stat. Spec. Sess., ch. 3, 8, 75, at 8, 27.

17
The statute also contemplates that the affidavit be attached to the complaint filed with the district court
clerk. There was no such requirement under the former statutes governing medical malpractice cases.

18
NRS 41A.071.

19
It is unclear, given his election to proceed under the old system, why Borger proceeded in district court
prior to the termination of panel proceedings.
After the panel made findings in favor of the defense, Dr. Lovett and Lewis & Lovett, Ltd.,
d/b/a Desert West Surgery, moved to dismiss Borger's complaint for failure to submit an
affidavit of merit by an expert in Dr. Lovett's area of practicegeneral surgery. Although
conceding that Dr. Kudisch's affidavit supported claims against Dr. Desai, both being
gastroenterologists, Dr. Lovett argued that Borger's failure to supply an affidavit from a
general surgeon mandated dismissal of the action against him.
Borger argued in response that Dr. Kudisch practiced within a discipline substantially
similar to that practiced by Dr. Lovett in his assessment, diagnosis and treatment of Borger.
Alternatively, Borger sought leave to amend his complaint to comply with NRS 41A.071. In
this, Borger attached the affidavit of a general surgeon to his proposed amended complaint.
The district court dismissed the case against Dr. Lovett and his professional corporation
and denied Borger's motion to amend, as follows:
The expert in this case Dr. Kudisch is a gastroenterologist. Gastroenterology is not an
area that is substantially similar to the type of practice engaged in by [Dr. Lovett] at the
time of the alleged malpractice, and therefore the affidavit is insufficient to satisfy the
statutory requirement. . . . [As to the motion to amend] . . . [t]he remedy for failure to
attach an appropriate supporting affidavit is dismissal without prejudice.
Borger's mandamus petition requests relief from this order.
DISCUSSION
[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, or to control an arbitrary or
20
A writ of mandamus is not available where the
petitioner has a plain, speedy, and adequate remedy at law.
21
Mandamus is an extraordinary
remedy, and the decision as to whether a petition will be entertained lies within the sound
discretion of this court.
22
Because this petition raises important legal issues that are likely to
be the subject of extensive litigation in the near term within the Nevada district court system,
because inconsistent rulings at that level may likely result, and because avoidance of multiple
actions in connection with Borger's claims will conserve judicial resources here and in the
district court, we elect to resolve this petition on its merits.
____________________

20
Brewery Arts Ctr. v. State Bd. Examiners, 108 Nev. 1050, 1053, 843 P.2d 369, 372 (1992); see also NRS
34.160.

21
Widdis v. Dist. Ct., 114 Nev. 1224, 1227, 968 P.2d 1165, 1167 (1998); see also NRS 34.170; NRS 34.330.

22
Brewery Arts Ctr., 108 Nev. at 1053, 843 P.2d at 372.
of multiple actions in connection with Borger's claims will conserve judicial resources here
and in the district court, we elect to resolve this petition on its merits.
23

Affidavit requirements under NRS 41A.071
[Headnotes 3, 4]
Although Borger filed his action with the Division of Insurance in June 2002, before the
effective date of the newly created legislative scheme, elected to proceed under the repealed
system, and supported his case with expert opinions before the screening panel, the parties
agree that the affidavit requirements of NRS 41A.071 apply to these proceedings. Borger,
however, contends that the district court incorrectly interpreted the language of this statute.
We review a district court's conclusions of law, including statutory interpretations, de novo.
24

As noted, the special legislative package repealed the former statutory construct under
which a panel of doctors and lawyers pre-screened medical malpractice complaints.
Accordingly, the expert affidavit requirements of NRS 41A.071 are designed to account for
the abolition of the screening panels and to ensure that parties file malpractice cases in good
faith, i.e., to prevent the filing of frivolous lawsuits.
25
In its entirety, NRS 41A.071 provides:
____________________

23
Business Computer Rentals v. State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998) (noting that when an
important issue of law needs clarification and public policy is served by this court's invocation of its original
jurisdiction, [the] consideration of a petition for extraordinary relief may be justified (citing Ashokan v. State,
Dept. of Ins., 109 Nev. 662, 667, 856 P.2d 244, 247 (1993))).
Dr. Lovett contends that this court should deny Borger's petition because he has another remedy at
lawcertification of finality and direct appeal under NRCP 54(b). While this remedy was available, NRCP
54(b) certifications are discretionary. In any event, we have determined, for the reasons stated, to reach the
merits of this writ petition.
We note in passing Borger's concern that writ relief is his only adequate remedy because the applicable statute
of limitations has now run upon his claims against Dr. Lovett. Whether this is so depends in large part on the
extent to which the limitation period was tolled during the pendency of the action before the medical-legal
screening panel and later in court. In this connection, the legislative history of the new malpractice legislation is
silent on the tolling issue (the special session legislation repealed the tolling provisions concerning pendency of
actions before medical-legal screening panels as part of the overall repeal of that process). Because of the result
reached in this matter today, we need not reach the tolling question with respect to this matter, or generally, as to
actions commenced on or after October 1, 2002. However, it would appear that the Legislature intended that the
limitation period governing malpractice actions be tolled during the actual pendency of any such action.

24
Birth Mother v. Adoptive Parents, 118 Nev. 972, 974, 59 P.3d 1233, 1235 (2002).

25
Hearing on S.B. 2 Before the Senate Comm. of the Whole, 18th Special Sess. (Nev., July 30, 2002)
(statement of Mr. Bill Bradley, Attorney, Nevada
If an action for medical malpractice . . . is filed in the district court, the district court
shall dismiss the action, without prejudice, if the action is filed without an affidavit,
supporting the allegations contained in the action, submitted by a medical expert who
practices or has practiced in an area that is substantially similar to the type of practice
engaged in at the time of the alleged malpractice.
Dr. Lovett takes a literal approach to this provision, contending that an affiant supporting
allegations against a malpractice defendant must certify that he or she specifically engages in
the same type of practice area as the defendant. That is, a complaint against a general surgeon
must be supported by an affidavit from a general surgeon. Accordingly, Dr. Lovett reasons
that, regardless of the discipline of medicine implicated by the patient's need for surgical
intervention, a solely clinical subspecialist in the field of medicine involved may not support
a complaint by the patient against a surgeon. This approach was seemingly taken by the
district court below. Thus, despite the fact that Dr. Lovett's diagnosis and treatment clearly
involved issues related to the practice of gastroenterology, the district court ruled that NRS
41A.071 prohibits a clinical expert in that field of medicine from addressing Dr. Lovett's
diagnosis and treatment of Borger.
The Legislature has not provided an explanation or guidance for courts to resolve disputes
over whether an affiant practices in an area that is substantially similar to the type of practice
engaged in at the time of the alleged malpractice.
26
However, in addressing a similarly
worded testimonial requirement, the Connecticut Appellate Court has held that [t]he
threshold question of admissibility is governed by the scope of the witness' knowledge and
not the artificial classification of the witness by title.
____________________
Trial Lawyers Association); cf. NRS 41A.100(1) (eliminating the requirement for expert testimony under certain
situations implicating the doctrine of res ipsa loquitur). Interestingly, it appears that while a complaint
implicating the doctrine of res ipsa loquitur must be supported by an expert affidavit, the plaintiff may present
his or her res ipsa case at trial without any expert support. We leave any questions of inconsistencies between
NRS 41A.071 and NRS 41A.100(1) for future litigation. Also, the parties to this appeal have not raised
questions implicating the doctrine of res ipsa loquitur.

26
NRS 41A.071. Dr. Lovett relies heavily upon case law construing the Michigan malpractice affidavit
requirement. That authority is inapposite because the Michigan statute requires that a malpractice complaint
against a board certified specialist be supported by an affidavit of merit from a physician with the same board
certification as the defendant. See Mich. Comp. Laws 600.2912d(1), 600.2169(1)(a) (2000); Wang v.
Sporleder, No. 244611, 2004 WL 316410, at *1 (Mich. Ct. App. Feb. 19, 2004) (unpublished opinion); Alliet v.
Berenholz, No. 242469, 2004 WL 258201, at *1 (Mich. Ct. App. Feb. 12, 2004) (unpublished opinion) (If the
defendant is board certified in a specialty, the expert witness must be board certified in the same specialty.).
This requirement is much more restrictive and specific than that contained in NRS 41A.071.
the artificial classification of the witness by title.
27
Although the Nevada special session
legislation does not allow unrestricted use of medical expert witnesses who testify based upon
acquired knowledge outside the witness' area of present or former practice and prohibits
testimony based upon knowledge solely obtained for the purpose of the litigation, the
legislation allows medical experts to testify in medical malpractice cases where their present
or former practice reasonably relates to that engaged in by the defendant at the time of the
alleged professional negligence. Thus, the Connecticut view provides a partial framework for
our interpretation of NRS 41A.071.
Applying the Nevada statute to the matter at hand, we conclude that the district court erred
in its dismissal of the action below. First, the statute does not require that the affiant practice
in the same area of medicine as the defendant; rather, it requires that the affiant practice in an
area substantially similar to that in which the defendant engaged, giving rise to the
malpractice action. Second, the district court erred in its determination that Dr. Kudisch's area
of practice was not substantially similar to that in which Dr. Lovett engaged with respect to
this particular patient. The diagnosis and treatment rendered by Dr. Lovett implicates Dr.
Kudisch's area of expertise, the practice of gastroenterology. Thus, the statute was not
violated when Dr. Kudisch drew conclusions about perceived deficiencies in Dr. Lovett's
diagnosis, choice of treatment modality and the surgical result obtained. Third, because NRS
41A.071 governs the threshold requirements for initial pleadings in medical malpractice
cases, not the ultimate trial of such matters, we must liberally construe this procedural rule of
pleading in a manner that is consistent with our NRCP 12 jurisprudence.
28

In light of the above, the attachment of Dr. Kudisch's affidavit to Borger's amended
complaint for medical malpractice met the requirements of NRS 41A.071.
Remedies for noncompliance with NRS 41A.071
[Headnote 5]
Borger alternatively contends that, rather than dismiss the action, the district court should
have allowed him the opportunity to amend his complaint to include an affidavit of a
general surgeon.
____________________

27
Marshall v. Yale Podiatry Group, 496 A.2d 529, 531 (Conn. App. Ct. 1985).

28
See Capital Mortgage Holding v. Hahn, 101 Nev. 314, 315, 705 P.2d 126, 126 (1985) (On a motion to
dismiss for failure to state a claim for relief, the trial court and this court must construe the pleadings liberally
and draw every fair intendment in favor of the plaintiff.). We note, however, that the qualifications generally
required of trial experts under NRS 41A.100(2) are identical to those required of medical expert affiants under
NRS 41A.071. In this, we cannot conclude that the expert witness qualification requirement of NRS 41A.100(2)
compels a different level of scrutiny than that applied today to NRS 41A.071.
amend his complaint to include an affidavit of a general surgeon. Dr. Lovett responds that the
mandatory dismissal feature of NRS 41A.071 forecloses such an option. Although our ruling
above obviates any need to reach the question of whether the district court should have
granted leave to amend, we will address Borger's alternative claim. We do so because this
issue is likely to arise in a substantial number of cases statewide.
29

[Headnotes 6, 7]
Whether NRS 41A.071 prohibits such amendments raises an interesting issue of
separation of powers. Although the Legislature is certainly empowered to define substantive
legal remedies, [t]he judiciary has the inherent power to govern its own procedures.
30
Going further, the judiciary, as a coequal branch of government, has inherent powers to
administer its affairs, which include rule-making and other incidental powers reasonable and
necessary to carry out the duties required for the administration of justice.
31
Thus, we must
resolve the question of whether NRS 41A.071 prohibits amendments, to effect compliance
with it, in a manner that does not improperly restrict the discretion of district courts in the
procedural management of litigation, which includes conservation of judicial resources.
We note that NRS 41A.071 is silent as to whether a district court may grant leave to
amend where compliance with it is lacking. Notwithstanding this omission, we conclude that
NRS 41A.071 clearly mandates dismissal, without leave to amend, for complete failure to
attach an affidavit to the complaint. This interpretation is consistent with the underlying
purpose of the measure, which is to ensure that such actions be brought in good faith based
upon competent expert opinion. In this, the statute clearly works against frivolous lawsuits
filed with some vague hope that a favorable expert opinion might eventually surface. To this
extent, NRS 41A.071 does not unduly impinge upon the inherent power of the judiciary to
economically and fairly manage litigation.
Our resolution of the basic affidavit requirement does not end this analysis. A different
problem of interpretation will arise in the event of a legitimate dispute over whether a filed
affidavit of merit complies with the statute. Because NRS 41A.071 contains no explicit
prohibition against amendments, and because legislative changes in the substantive law may
not unduly impinge upon the ability of the judiciary to manage litigation, we conclude that a
district court, within its sound discretion and considering the need for judicial economy, may
grant leave to amend malpractice complaints supported by disputed affidavits under
circumstances where justice so requires.
____________________

29
See supra note 23.

30
State v. Connery, 99 Nev. 342, 345, 661 P.2d 1298, 1300 (1983).

31
Goldberg v. District Court, 93 Nev. 614, 615-16, 572 P.2d 521, 522 (1977) (citations omitted).
judicial economy, may grant leave to amend malpractice complaints supported by disputed
affidavits under circumstances where justice so requires. Retention of this discretion in
conjunction with the requirements of NRS 41A.071 is consistent with well-recognized
notions of separation of legislative and judicial powers.
CONCLUSION
Because the district court manifestly abused its discretion in granting Dr. Lovett's motion
to dismiss, because our intervention to correct that error will further important considerations
of judicial economy to prevent multiple proceedings arising from the same case, and because
the issue here is in need of clarification for the bench and bar in general, we grant the petition.
Accordingly, we direct the clerk of this court to issue a writ of mandamus instructing the
district court to vacate its order of dismissal and reinstate petitioner's action against real
parties in interest James Lovett, M.D., and Lewis & Lovett, Ltd., d/b/a Desert West Surgery.
____________
120 Nev. 1030, 1030 (2004) State v. Catanio
THE STATE OF NEVADA, Appellant, v. CAMERON SCOTT
CATANIO, Respondent.
No. 42628
December 29, 2004 102 P.3d 588
Appeal from a district court order dismissing charges of lewdness with a minor. Second
Judicial District Court, Washoe County; Steven R. Kosach, Judge.
After defendant was charged with three counts of lewdness with a minor, defendant filed a
motion to dismiss the charges. The district court dismissed the charges against defendant. The
State appealed. The supreme court held that evidence was sufficient to establish probable
cause to believe that defendant committed lewdness with a minor, despite lack of physical
contact between defendant and victims.
and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Appellant.
Law Offices of John E. Oakes and John E. Oakes and Justin E. Oakes, Reno, for
Respondent.
1. Infants.
Evidence was sufficient to establish probable cause to believe that defendant
committed lewdness with a minor, even though defendant did not have physical contact
with the victims; defendant offered the victims money to masturbate in his presence.
NRS 201.230.
2. Criminal Law.
Statutory interpretation is a question of law subject to de novo review.
3. Statutes.
For the purpose of statutory interpretation, the supreme court must attribute the plain
meaning to a statute that is not ambiguous.
4. Statutes.
For the purpose of statutory interpretation, an ambiguity arises where the statutory
language lends itself to two or more reasonable interpretations.
5. Statutes.
Legislative intent is the controlling factor in statutory construction.
6. Statutes.
For the purpose of statutory interpretation, the supreme court looks to reason and
public policy to discern legislative intent.
7. Statutes.
When ambiguous, criminal statutes must be strictly construed and resolved in favor
of the defendant.
8. Infants.
Statute prohibiting lewdness with a minor, which addresses acts upon or with the
body . . . of a child, does not require any physical contact between the perpetrator and
the minor; language providing that an act may be committed with the minor's body
indicates that the minor's body is the object of attention, and a perpetrator who
threatens, coerces, or otherwise instigates a lewd act but has no physical contact with
the victim may thus satisfy the elements of the statute. NRS 201.230(1).
OPINION
Per Curiam:
FACTS
This is the State's appeal from a district court order granting respondent Cameron
Catanio's motion to dismiss three counts of lewdness with a minor based on a determination
that the State failed to present sufficient evidence for the required finding of probable cause at
the grand jury proceedings.
1
The district court concluded that Catanio's conduct did not
satisfy all of the essential elements of lewdness with a minor. We disagree and therefore
reverse.
Catanio worked as a teacher's aide for special education students and as a volunteer
assistant track coach at a middle school in Reno, Nevada.
____________________

1
The other counts are not at issue.
Nevada. During the fall of 2002, Catanio befriended three 13-year-old boys at the school and
began giving the boys candy on a daily basis. Over time, Catanio's gifts became more
elaborate, personal and inappropriate. His gifts included a video game system and games, air
pistols, ammunition, protective gear, pornographic materials, handcuffs and condoms.
In December 2002, after a snowball fight with the three boys, Catanio offered the boys
cash, which he never paid, if the boys would masturbate behind some bushes. Two of the
boys went behind some bushes and did so while Catanio watched their backs from his parked
car. A few days later, Catanio bought a cellular phone for one of the boys; they used the
phone for late night conversations in which they discussed sex and masturbation. In two
different instances, two of the boys separately snuck out of their houses and met Catanio. On
each occasion, Catanio took the minor to his apartment and gave him alcohol, played
pornographic videos for him, gave him a condom and invited him to masturbate.
During an interview with the Washoe County School District police, Catanio admitted that
he had an erection when he watched the boys masturbate behind the bushes. He also admitted
becoming sexually aroused on the two occasions when each boy masturbated in his apartment
and that he masturbated himself each time after taking each boy home. At no time did
Catanio have any physical contact with any of the boys.
In dismissing the lewdness counts against Catanio, the district court determined that, after
accepting the facts established before the grand jury as true, Catanio did not commit a
criminal act or acts. The district court concluded that NRS 201.230, which criminalizes
lewdness with a child under 14 years, requires proof of physical contact between the accused
and the victim.
The State now appeals from the order dismissing the lewdness charges. The question we
are asked to resolve is whether the lewdness statute requires the State to prove that physical
contact occurred between Catanio and the victims named in the complaint. We conclude that
the statute does not require physical contact, and therefore, we reverse the district court's
order and remand for further proceedings.
DISCUSSION
[Headnote 1]
The State argues that a physical touching is not an essential element of lewdness with a
minor under NRS 201.230. The State points out that the California lewdness statute, which
closely resembles Nevada's statute,
2
has been interpreted to require only that the accused act
to instigate or encourage a touching.
____________________

2
See Cal. Penal Code 288(a) (West 1999) (stating that [a]ny person who willfully and lewdly commits any
lewd or lascivious act . . . upon or with the
the accused act to instigate or encourage a touching. The necessary touching may be by the
child upon himself or herself at the perpetrator's urging.
[Headnotes 2-7]
Statutory interpretation is a question of law subject to de novo review.
3
We must attribute
the plain meaning to a statute that is not ambiguous.
4
An ambiguity arises where the
statutory language lends itself to two or more reasonable interpretations.
5
Legislative intent
is the controlling factor in statutory construction.
6
We look to reason and public policy to
discern legislative intent.
7
Finally, when ambiguous, [c]riminal statutes must be strictly
construed and resolved in favor of the defendant.'
8

[Headnote 8]
To determine whether a statute's language is ambiguous, we must examine it. NRS
201.230(1) defines lewdness with a child under 14 years:
A person who willfully and lewdly commits any lewd or lascivious act, other than acts
constituting the crime of sexual assault, upon or with the body, or any part or member
thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or
gratifying the lust or passions or sexual desires of that person or of that child, is guilty
of lewdness with a child.
We conclude that the language describing a lewd act committed upon or with the body
of a child under 14 is unambiguous. Because upon means on, that language requires that
the lewd action be done on the body of the minor, that is, some kind of touching or physical
contact is required. However, the statute states upon or with. By using the disjunctive or,
the statute clearly indicates that upon and with have different meanings. An act
committed with the minor's body indicates that the minor's body is the object of attention,
and that language does not require a physical touching by the accused.
____________________
body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony).

3
Firestone v. State, 120 Nev. 13, 16, 83 P.3d 279, 281 (2004).

4
Id.

5
Robert E. v. Justice Court, 99 Nev. 443, 445, 664 P.2d 957, 959 (1983).

6
Id.

7
Id.

8
Firestone, 120 Nev. at 16, 83 P.3d at 281 (quoting Anderson v. State, 95 Nev. 625, 629, 600 P.2d 241, 243
(1979)); see also Villanueva v. State, 117 Nev. 664, 670 n.13, 27 P.3d 443, 447 n.13 (2001) (noting that the
rule of lenity does not apply where statutory language is unequivocal and there is no ambiguity to resolve).
body is the object of attention, and that language does not require a physical touching by the
accused. Rather, the perpetrator need only cause the child to perform a lewd act upon him or
herself to satisfy the elements set forth in the statute. Common sense also dictates this
conclusion. When a person invites another person to do an act by saying, come to the movies
with me or come outside to play with me or watch T.V. with me or I'd like to play ball
with you, no physical contact is necessarily intimated or required.
Considering our published opinions involving a charge of lewdness with a minor, we
acknowledge that all but one involve a physical touching.
9
In two cases, the touchings were
as minimal as pulling the victims' clothing aside to photograph them.
____________________

9
See, e.g., Crowley v. State, 120 Nev. 30, 31-32, 83 P.3d 282, 284 (2004) (defendant rubbed male victim's
penis outside of clothing and performed fellatio on victim, and fondled female victim's breasts and vagina);
Ramirez v. State, 114 Nev. 550, 553, 958 P.2d 724, 726 (1998) (defendant touched victim on her genitals); Scott
E., a Minor v. State, 113 Nev. 234, 236, 931 P.2d 1370, 1371 (1997) (defendant allegedly touched victim's
vaginal area and had victim touch his exposed penis); Griego v. State, 111 Nev. 444, 448, 893 P.2d 995, 998
(1995) (defendant fondled child victim), abrogated on other grounds by Koerschner v. State, 116 Nev. 1111,
1116, 13 P.3d 451, 455 (2000); Carroll v. State, 111 Nev. 371, 372, 892 P.2d 586, 587 (1995) (defendant
fondled victim's legs, thighs and vaginal area); State v. Purcell, 110 Nev. 1389, 1391, 887 P.2d 276, 277 (1994)
(defendant allegedly fondled victim's breasts and buttocks); Taylor v. State, 109 Nev. 849, 850, 858 P.2d 843,
844 (1993) (defendant touched victim between her legs as she sat on his lap); Keeney v. State, 109 Nev. 220,
223, 850 P.2d 311, 313 (1993) (defendant touched victim's private spot' with his tongue), overruled on other
grounds by Koerschner, 116 Nev. at 1116, 13 P.3d at 455; Sterling v. State, 108 Nev. 391, 393, 834 P.2d 400,
401 (1992) (defendant engaged in sexual acts with victim); Walstrom v. State, 104 Nev. 51, 52, 752 P.2d 225,
226 (1988) (slides revealed defendant engaged in lewd acts with child), overruled in part on other grounds by
Hubbard v. State, 112 Nev. 946, 948, 920 P.2d 991, 993 (1996); Passama v. State, 103 Nev. 212, 216, 735 P.2d
321, 324 (1987) (defendant confessed through coercion to touching victims' vaginas); Sheriff v. Frank, 103 Nev.
160, 162, 734 P.2d 1241, 1242 (1987) (defendant allegedly touched victim's chest and genitals); Meador v.
State, 101 Nev. 765, 767, 711 P.2d 852, 853-54 (1985) (defendant pulled girls' nightshirts up to photograph
them); Sheriff v. Miley, 99 Nev. 377, 379-80, 663 P.2d 343, 344 (1983) (defendant attacked and possibly
sexually penetrated victim); Meyer v. State, 95 Nev. 885, 886, 603 P.2d 1066, 1066 (1979) (defendant allegedly
forced child to perform fellatio), overruled by Little v. Warden, 117 Nev. 845, 851, 34 P.3d 540, 544 (2001);
Maes v. Sheriff, 94 Nev. 715, 716, 582 P.2d 793, 794 (1978) (defendant forced victim to fondle defendant's
genitals and licked victim's penis and groin); Findley v. State, 94 Nev. 212, 214, 577 P.2d 867, 867 (1978)
(defendant placed hand on victim's genitals), overruled by Braunstein v. State, 118 Nev. 68, 75, 40 P.3d 413,
418 (2002); Green v. State, 94 Nev. 176, 177-78, 576 P.2d 1123, 1124 (1978) (defendant rolled victim's shirt
up); Summers v. Sheriff, 90 Nev. 180, 181, 521 P.2d 1228, 1228 (1974) (defendant allegedly pulled victim's
bottoms down, photographed her and masturbated in front of her); Sheriff v. Dearing, 89 Nev. 255, 255, 510
P.2d 874, 874 (1973) (defendant allegedly performed cunnilingus on victim); Martin v. Sheriff, 88 Nev. 303,
305, 496 P.2d 754, 755 (1972) (defendant allegedly inserted penis into victim); Farrell v. State, 83 Nev. 1, 2,
421 P.2d 948, 948 (1967) (defendant allegedly touched victim inside her panties).
pulling the victims' clothing aside to photograph them.
10
In one case, after pulling the
victim's clothing aside and photographing her, the defendant masturbated in front of the
victim.
11
In Houtz v. State, however, the perpetrator did not touch the victim.
12
Rather, he
provided alcohol and pornographic materials to the victim and ordered the victim to
masturbate, and if the victim refused, threatened to tear his penis off. The perpetrator also
masturbated. The defendant entered a plea of nolo contendere to one count of lewdness with a
minor and was adjudged guilty based upon his plea. The issue in his appeal was not whether a
touching had occurred but whether the statute of limitations had expired.
13
That the element
of a lewd act upon or with the body of the victim was satisfied was not challenged.
Nevertheless, Houtz demonstrates that the district court had determined that coercing a child
to masturbate under threat of pain and masturbating in the child's presence were sufficient to
satisfy the elements of lewdness with a minor.
In Summers v. Sheriff, the appellant contended that insufficient evidence was shown to
bind him over for trial on a charge of lewdness with a minor.
14
The preliminary hearing
evidence showed that the appellant had lowered the victim's bathing suit to her knees and
photographed her, then masturbated in front of her. The appellant argued that the lack of
physical contact between himself and the victim precluded the charge.
15
We held that
physical contact occurred when the appellant touched the victim by lowering her bathing suit.
16
Because it was unnecessary to do so in order to decide that case, we declined to reach the
issue of whether actual physical contact was a required element of the crime of lewdness with
a minor.
17

Our decision in Summers is similar to the California case that set the precedent there that
the accused merely needs to instigate the touching. In People v. Austin, the defendant,
threatening the victim with a knife, pushed and guided the victim to an orchard and then told
her that, if she pulled down her pants, he would give her some money.
____________________

10
Meador, 101 Nev. at 767, 711 P.2d at 853-54; Summers, 90 Nev. at 181, 521 P.2d at 1228.

11
Summers, 90 Nev. at 181, 521 P.2d at 1228.

12
111 Nev. 457, 893 P.2d 355 (1995); see also Townsend v. State, 103 Nev. 113, 120, 734 P.2d 705, 710
(1987) (one count of lewdness with a minor was based on defendant masturbating in front of victim and second
count was based on defendant fondling victim).

13
Houtz, 111 Nev. at 461, 893 P.2d at 357.

14
90 Nev. at 182, 521 P.2d at 1229.

15
Id.

16
Id.

17
Id.
money.
18
The child complied, and the perpetrator gave her a dollar. The California Fifth
District Court of Appeal held that the defendant's conduct satisfied the essential elements of
lewdness with a minor both when he pushed the child toward the orchard and when, at his
instigation, the child removed her pants, as she necessarily had to touch herself to do so.
19

Similarly, in People v. Meacham, the California Second District Court of Appeal held that
instructing children to touch themselves satisfied the elements of lewdness with a minor so
long as the perpetrator had the requisite specific intent.
20
The court noted that the evidence
showing that the appellant's instructions to the victims to position their hands upon their own
genitalia was imputable to appellant as if the touching had been actually done by his own
hands.
21

We agree with the California courts' interpretation of what must be proven to establish the
elements of the crime of lewdness. We further conclude that the Nevada statutory language
providing that a lewd act be done upon or with a child's body clearly requires specific intent
by the perpetrator to encourage or compel a lewd act in order to gratify the accused's sexual
desires, but does not require physical contact between the perpetrator and the victim. Thus, a
perpetrator who threatens, coerces or otherwise instigates a lewd act but has no physical
contact with the victim may nevertheless satisfy the elements of NRS 201.230.
In this case, Catanio had no physical contact with the boys. Catanio offered the boys
money to masturbate in his presence and brought two of the boys separately to his apartment
where he gave them alcohol, played pornographic videos and invited the boys to masturbate.
Therefore, accepting as true the evidence offered to the grand jury, we conclude that the State
presented sufficient evidence to establish probable cause to believe that Catanio committed
lewdness with a minor.
Accordingly, we conclude that the district court erred by dismissing the charges of
lewdness with a minor because Catanio never touched any of the boys. Therefore, we reverse
the district court's order and remand for further proceedings.
____________________

18
168 Cal. Rptr. 401, 402 (Ct. App. 1980).

19
Id. at 403.

20
199 Cal. Rptr. 586, 593 (Ct. App. 1984), abrogated on other grounds by People v. Brown, 883 P.2d 949,
959 (Cal. 1994).

21
Id. at 594.
____________
120 Nev. 1037, 1037 (2004) Zhang v. Dist. Ct.
LANLIN ZHANG, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
HONORABLE VALERIE ADAIR, District Judge, Respondents, and FRANK V.
SORICHETTI, Real Party in Interest.
No. 43601
December 29, 2004 103 P.3d 20
Original petition for writs of mandamus and prohibition challenging district court orders
that dismiss petitioner's complaint in a real property case, deny petitioner's motion to amend,
and expunge petitioner's notice of lis pendens.
Prospective purchaser of residence brought action against vendor for damages, declaratory
relief and specific performance of original sales contract. Vendor answered and
counterclaimed for slander of title and abuse of process, and brought motion to dismiss for
failure to state a claim. The district court granted the motion to dismiss and denied
purchaser's motion to amend. Purchaser petitioned for writ of mandamus. The supreme court
held that: (1) supreme court would review purchaser's petition for writ of mandamus; (2)
second sales contract, which contained increased price, did not replace first contract under
preexisting duty rule; and (3) second contract did not replace first contract under doctrine of
novation.
Marquis & Aurbach and Scott A. Marquis, Las Vegas, for Petitioner.
Law Offices of Richard McKnight, P.C., and David Mincin, Las Vegas, for Real Party in
Interest.
1. Mandamus.
Prospective home purchaser's appellate remedy for dismissal of complaint seeking
damages and specific performance of original purchase contract would be inadequate,
as vendor could sell property to someone else before trial court entered any final
appealable judgment, and thus supreme court would review purchaser's petition for writ
of mandamus.
2. Mandamus.
Extraordinary relief is generally unavailable when there is an adequate legal remedy,
such as an appeal from a final judgment.
When presented with a motion to dismiss for failure to state a claim, the district
court must view all factual allegations in the complaint as true, and draw all inferences
in favor of the nonmoving party. NRCP 12(b)(5).
Dismissal of a complaint for failure to state a claim is appropriate only if it appears
beyond a reasonable doubt that the plaintiff could prove no set of facts that would
entitle her to relief. NRCP 12(b)(5).
5. Mandamus.
On a petition for writ of mandamus, the supreme court reviews an order to dismiss a
complaint for failure to state a claim to determine if the district court manifestly abused
its discretion. NRCP 12(b)(5).
6. Vendor and Purchaser.
Second home sales agreement in which purchaser agreed to pay more money did not
replace earlier contract, as vendor had preexisting duty to sell home for price in first
agreement.
7. Novation.
Second home sale contract, which contained increased purchase price, did not
replace first home sale contract under doctrine of novation; vendor and purchaser were
same parties in both contracts, and purported simultaneous rescission of first contract,
which stemmed from vendor's desire for more money, was not consideration for second
contract.
8. Novation.
Ordinarily, novation applies if a new agreement involves a substituted debtor or
creditor as a new party.
9. Novation.
Even when novation is invoked in the absence of a new party, the new contract
remains subject to the preexisting duty rule.
10. Contracts.
Consideration is not valid unless it is bargained for and given in exchange for an act
or promise.
OPINION
Per Curiam:
The primary issue we decide is whether a real property purchase agreement is enforceable
when it is executed by the buyer only because the seller would not perform under an earlier
purchase agreement for a lesser price. We conclude that such a modified agreement is not
supported by consideration and is therefore unenforceable.
FACTS
On February 1, 2004, Lanlin Zhang entered into a contract to buy former realtor Frank
Sorichetti's Las Vegas home for $532,500. The contract listed a March closing date and a few
household furnishings as part of the sale. On February 3, Sorichetti told Zhang that he was
terminating the sale to stay in the house a little longer, and that Nevada law allows the
rescission of real property purchase agreements within three days of contracting.
1

____________________

1
Zhang contends that Sorichetti intentionally misrepresented the law. Under the federal Truth in Lending Act,
a mortgagor may rescind a mortgage agreement within three days of the agreement's consummation. 15 U.S.C.
1635(a) (2000); 12 C.F.R. 226.23(1) (2004).
Sorichetti stated that he would sell the home, however, if Zhang paid more money. Zhang
agreed. Another contract was drafted, reciting a new sales price, $578,000. This contract
added to the included household furnishings drapes that were not listed in the February 1
agreement, and set an April, rather than March, closing date.
On February 16, 2004, Sorichetti notified Zhang that a murder had occurred in the home
several years earlier, and that Zhang could cancel the contract if she desired. Zhang declined.
When Sorichetti later rescinded the contract to use and/or dispose of my home as I wish,
Zhang sued, seeking damages, declaratory relief and specific performance of the original
contract. Zhang also recorded a notice of lis pendens against the real property. Sorichetti
answered and counterclaimed for slander of title and abuse of process.
On Sorichetti's NRCP 12(b)(5) motion, the district court dismissed Zhang's complaint,
reasoning that the parties had replaced the original contract with the February 3 contract by
novation. Zhang unsuccessfully sought to amend her complaint to alternatively seek specific
performance of the February 3 contract. The district court also ordered the notice of lis
pendens expunged but stayed the order temporarily to allow Zhang to seek writ relief.
Zhang now seeks a writ of mandamus compelling the district court to reinstate her
complaint, vacate the expungement order, and grant leave to amend the complaint. Zhang
also seeks a writ of prohibition, barring the district court from determining factual issues
such as novation until after discovery. We stayed the district court proceedings pending our
review of Zhang's petition.
2

DISCUSSION
[Headnotes 1, 2]
Extraordinary relief is generally unavailable when there is an adequate legal remedy, such
as an appeal from a final judgment.
3
Here, although Zhang could appeal her complaint's
dismissal and notice of lis pendens' expungement following the resolution of Sorichetti's
counterclaim,
4
such an appeal would be an inadequate remedy because Sorichetti could sell
the real property to someone else before the district court enters a final appealable
judgment.
____________________

2
Petitioner's motion for leave to file a reply in support of the petition is granted. The clerk of this court shall
file the reply provisionally received on August 30, 2004.

3
NRS 34.170; NRS 34.330; Dayside Inc. v. Dist. Ct., 119 Nev. 404, 75 P.3d 384 (2003).

4
See NRAP 3A(b)(1) (authorizing an appeal from a final judgment); Lee v. GNLV Corp., 116 Nev. 424, 426,
996 P.2d 416, 417 (2000) (clarifying that a final judgment is one that disposes of all the issues presented in the
case, and leaves nothing for the future consideration of the court, except for post-judgment issues such as
attorney's fees and costs).
remedy because Sorichetti could sell the real property to someone else before the district
court enters a final appealable judgment. Only this court's stay prevents the property's
transfer. Consequently, our review is warranted at this time.
[Headnotes 3-5]
When presented with an NRCP 12(b)(5) motion to dismiss for failure to state a claim, the
district court must view all factual allegations in the complaint as true, and draw all
inferences in favor of the nonmoving party.
5
Dismissal is appropriate only if it appears
beyond a reasonable doubt that the plaintiff could prove no set of facts that would entitle
her to relief.
6
On a petition for writ of mandamus, we review a dismissal order to determine
if the district court manifestly abused its discretion.
7

[Headnote 6]
Zhang alleged in her complaint that, on February 3, Sorichetti announced that he would
not sell his home under the February 1 contract because he was not satisfied with the deal.
This allegation demonstrates an actionable anticipatory breach of contract, which is a clear,
positive, and unequivocal repudiation of the duties arising under or imposed by agreement.
8
That Zhang subsequently agreed on February 3 to pay more money to obtain Sorichetti's
performance does not substitute the February 3 agreement in place of the February 1
agreement. As noted in Williston on Contracts:
Where two parties have entered into a bilateral agreement, it will often occur that
one of the parties, having become dissatisfied with the contract, will refuse to perform
or to continue performance unless he is promised or paid a greater compensation than
that provided in the original agreement. . . . [T]he question arises whether the new
[agreement to pay more money] is enforceable.
. . . .
As a matter of principle, the second agreement must be held invalid, for the
performance by the recalcitrant contractor is no legal detriment to him whether actually
given or merely promised, since, at the time the second agreement was entered into, he
was already bound to do the [performance];
____________________

5
Kourafas v. Basic Food Flavors, Inc., 120 Nev. 195, 197, 88 P.3d 822, 823 (2004).

6
Id.

7
See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981).

8
Covington Bros. v. Valley Plastering, Inc., 93 Nev. 355, 360, 566 P.2d 814, 817 (1977); see also Bernard v.
Rockhill Dev. Co., 103 Nev. 132, 734 P.2d 1238 (1987).
nor is the performance or promise to perform under the second agreement a legal
benefit to the promisor, since he was already entitled to have the [performance].
9

This principle is commonly known as the preexisting duty rule and is recognized in Nevada.
10
Consequently, Zhang's execution of the February 3 agreement does not relieve Sorichetti
of liability under the February 1 agreement.
[Headnotes 7-9]
Additionally, the district court erred in ruling that the February 1 contract was replaced by
the February 3 contract under the doctrine of novation.
11
Ordinarily, novation applies if the
new agreement involves a substituted debtor or creditor as a new party.
12
Here, however, the
parties to the February 1 and 3 agreements were the same. Even when novation is invoked in
the absence of a new party, the new contract remains subject to the preexisting duty rule.
13
Thus, new consideration must be found if the February 3 agreement is to have any effect.
Contrary to Sorichetti's suggestion, consideration for the February 3 agreement cannot be
found in the purported rescission of the February 1 agreement. It is true that some courts have
avoided the preexisting duty rule's effect by finding new consideration unnecessary when
contract modification follows rescission of the original contract.
14
But the better reasoned
approach is articulated in the Restatement {Second) of Contracts and Corbin on Contracts,
which reject the notion that rescission of a contract that is executory on both sides
supplies consideration for a simultaneous new agreement differing in terms of promised
compensation.
____________________

9
3 Richard A. Lord, Williston on Contracts 569-73 (4th ed. 1992).

10
Id. at 569; see County of Clark v. Bonanza No. 1, 96 Nev. 643, 650-51, 615 P.2d 939, 944 (1980)
(Consideration is not adequate when it is a mere promise to perform that which the promisor is already bound
to do.); Walden v. Backus, 81 Nev. 634, 637, 408 P.2d 712, 714 (1965) (same).

11
66 C.J.S. Novation 2, at 484 (1998) (defining novation as a substitution of a new contract or obligation
for an old one which is thereby extinguished).

12
13 Sarah H. Jenkins, Corbin on Contracts 402 (Joseph M. Perillo ed., rev. ed. 2003); see, e.g., Jacobson v.
Stern, 96 Nev. 56, 605 P.2d 198 (1980) (affirming district court's finding that corporate promoter remained
liable on contract because he had not been replaced by the corporation under the doctrine of novation).

13
58 Am. Jur. 2d Novation 16, at 530 (2002) (stating that neither a promise to do that which the promisor
is already bound to do, nor performance of an existing legal obligation constitutes valid consideration for a
novation); see, e.g., U.S. Home Acceptance v. Kelly Park Hills, 542 So. 2d 463, 464 (Fla. Dist. Ct. App. 1989)
(observing that a promise to pay in installments funds already owed under a prior promise does not provide
consideration to support a novation); cf. United Fire Ins. Co. v. McClelland, 105 Nev. 504, 508, 780 P.2d 193,
195 (1989) (recognizing that the valid[ity] of the new contract is essential to novation).

14
2 Joseph M. Perillo & Helen H. Bender, Corbin on Contracts 408 (rev. ed. 1995).
lated in the Restatement (Second) of Contracts and Corbin on Contracts, which reject the
notion that rescission of a contract that is executory on both sides supplies consideration for a
simultaneous new agreement differing in terms of promised compensation.
15
These
authorities reason that a contrary view requires a court to argue in a circle in order to
support the new agreement, as the validity of the new agreement depend[s] upon the
rescission while the validity of the rescission depend[s] upon the new agreement.
16
Further,
the Restatement and Corbin express concern that overlooking the preexisting duty rule for a
simultaneous rescission/modification might permit fraudulent or unfair modifications.
17

The Iowa Supreme Court addressed these principles in Recker v. Gustafson.
18
In Recker,
the issue was whether a $290,000 agreement for the sale of a farm was enforceable, given that
the buyers later agreed to purchase the farm for $300,000.
19
The court declined to employ the
fiction criticized by Corbin and the Restatement that allows increases in contract
compensation without new consideration.
20
Instead, the court concluded that, as the new
agreement arose solely from the seller's desire for more money, rather than a wholesale
rescission of the earlier sales agreement, the price increase was merely an attempted
modification, unsupported by consideration.
21

[Headnote 10]
Recker is indistinguishable from the instant case. Zhang alleged in her complaint that the
February 3 agreement originated from Sorichetti's desire for more money, rather than any
desire to end his dealings with Zhang. Consequently, consideration for the February 3
agreement cannot be found in the purported simultaneous rescission of the February 1
agreement. Nor can consideration be found elsewhere, as Zhang alleges in her complaint a
lack of additional consideration to support the February 3 agreement.
22

____________________

15
Id. at 408-09; Restatement (Second) of Contracts 89, cmt. b (1981).

16
2 Perillo & Bender, supra note 14, at 408.

17
Id. at 412; Restatement (Second) of Contracts 89, cmt. b (1981).

18
279 N.W.2d 744 (Iowa 1979).

19
Id. at 753.

20
Id. at 759.

21
Id.

22
To the extent that minor differences in the February 1 and February 3 agreements may present an issue
concerning consideration, we are incapable of resolving such a factual dispute, see Round Hill Gen. Imp. Dist. v.
Newman, 97 Nev. 601, 637 P.2d 534 (1981), and we note only that consideration is not valid unless it is
bargained for and given in exchange for an act or promise. See Higgins v. Monroe Evening News, 272 N.W.2d
537, 543 (Mich. 1978); King v. Riveland, 886 P.2d 160, 164 (Wash. 1994), superseded by statute on other
grounds as stated in In re Dependency of Q.L.M., 20 P.3d 465, 469 (Wash. Ct. App. 2003).
Consequently, in the context of NRCP 12(b)(5), we conclude that the February 3
agreement had no effect on the February 1 agreement, and therefore, the district court
manifestly abused its discretion in dismissing Zhang's complaint. We further conclude that, as
Zhang's complaint alleges viable claims concerning real property, the district court also
manifestly abused its discretion in expunging Zhang's notice of lis pendens.
23
Accordingly,
we instruct the clerk of this court to issue a writ of mandamus directing the district court to
reinstate Zhang's complaint and to vacate its order expunging Zhang's notice of lis pendens.
24

To the extent that Zhang also requests a writ of prohibition barring the district court from
determining factual issues such as novation until after discovery and a writ of mandamus
compelling the district court to grant leave to amend the complaint, our issuance of a writ of
mandamus directing the district court to reinstate Zhang's complaint renders these requests
moot.
____________
120 Nev. 1043, 1043 (2004) McConnell v. State
ROBERT LEE McCONNELL, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 42101
December 29, 2004 102 P.3d 606
This is an appeal from a judgment of conviction of first-degree murder, pursuant to a
guilty plea, and from a sentence of death, pursuant to a jury verdict. Second Judicial District
Court, Washoe County; Steven R. Kosach, Judge.
The supreme court held that: (1) statute mandating that death penalty be carried about by
lethal injection did not constitute cruel and unusual punishment due to absence of codified
guidelines for procedure to administer lethal injection to those who had been sentenced to
death; (2) admission during penalty hearing of other matter evidence in form of
photographs of drawings defendant had made and taped to his prison cell wall, depicting
victim in offensive manner, was not abuse of discretion; (3) prosecutor's comments during
penalty hearing did not constitute misconduct; (4) victim's testimony during penalty hearing
regarding her sexual assault and kidnapping by defendant was admissible other matter
evidence; (5) felony may not be used both to establish firstdegree murder and to aggravate
the murder to capital status; {6) supreme court's holding that basing aggravating
circumstance in capital prosecution on felony upon which felony murder is predicated
violated federal and state constitutional provisions guaranteeing due process and banning
cruel and unusual punishment did not invalidate defendant's death sentence; {7)
sufficient evidence supported jury's finding of aggravating circumstance that defendant
had mutilated victim's body; and {S) death sentence was not imposed under influence of
passion, prejudice or any arbitrary factor, nor was it excessive.
____________________

23
See NRS 14.015 (enforcing a notice of lis pendens when the action affects title to real property and was
brought in good faith, and when the person recording the notice can perform conditions precedent to the relief
sought, will be injured by transfer before completion of the proceedings, and is likely to prevail in the action or
has a fair chance of success and will suffer a serious hardship if the property is transferred).

24
In light of this opinion, we vacate our stay.
degree murder and to aggravate the murder to capital status; (6) supreme court's holding that
basing aggravating circumstance in capital prosecution on felony upon which felony murder
is predicated violated federal and state constitutional provisions guaranteeing due process and
banning cruel and unusual punishment did not invalidate defendant's death sentence; (7)
sufficient evidence supported jury's finding of aggravating circumstance that defendant had
mutilated victim's body; and (8) death sentence was not imposed under influence of passion,
prejudice or any arbitrary factor, nor was it excessive.
Affirmed.
Rehearing denied. 121 Nev.
----
, 107 P.3d 1287 (2005).
Michael R. Specchio, Public Defender, and Cheryl D. Bond, Deputy Public Defender,
Washoe County, for Appellant.
and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.
Issue as to whether absence of codified guidelines for procedure to administer lethal
injection to those who had been sentenced to death, pursuant to statute mandating that
death penalty be administered by lethal injection, rendered carrying out death penalty
by lethal injection unconstitutional, was not properly before supreme court in first
instance; capital murder defendant had cited no authority on this issue, his argument
consisted of speculative accusations, he cited no part of record where he had challenged
constitutionality of lethal injection before district court, and his claim raised
fact-intensive issues which required consideration by fact-finding tribunal. NRS
176.355(1).
Statutes are presumed valid, and the burden is on the person challenging the statute
to prove it is unconstitutional through a clear showing of invalidity.
Statute mandating that death penalty be carried out by lethal injection did not
constitute cruel and unusual punishment due to absence of codified guidelines for
procedure to administer lethal injection to those who had been sentenced to death. U.S.
Const. amend. 8; NRS 176.355.
The decision to admit particular evidence during the penalty hearing of capital
murder prosecution is within the sound discretion of the district court and will not be
disturbed absent an abuse of that discretion.
Evidence that does not prove an aggravating circumstance in a capital murder case is
still admissible if it relates to the offense, the defendant, or the victim and its probative
value is not substantially outweighed by the danger of unfair prejudice; jury must be
instructed that such evidence is other matter evidence which cannot be considered
initially in determining whether the defendant is death eligible but only, after that
determination is made, in deciding the appropriate sentence.
ing whether the defendant is death eligible but only, after that determination is made, in
deciding the appropriate sentence.
In absence of objection during penalty hearing of capital murder prosecution that
admission of letter defendant had written to another inmate had unfairly prejudiced
him, defendant had to establish that any error in admitting letter was plain and affected
his substantial rights. NRS 178.602.
Admission during penalty hearing of capital murder prosecution of other matter
evidence in form of photographs of drawings defendant had made and taped to his
prison cell wall, depicting picture of man, which was apparently victim, with his face
crossed out and phrases [f]uckin' coward and [s]ee you in hell faggot written on it,
as well as drawing depicting bullet entering victim's head, was not abuse of discretion;
drawings concerned defendant's attitude toward victims, they were relevant and
probative of his cruel and violent character and lack of remorse, although evidence was
obviously prejudicial, it was not unfairly so because of its probative value, and jury had
been properly instructed regarding proper use of this evidence.
evidence in form of audiotape recordings of portions of conversations defendant had
had, while in custody, with his father and former roommate, during which defendant
said, among other things, that he was going to cut victim's head off, was not abuse of
discretion; defendant's remarks concerned his attitude toward victims, they were
relevant and probative of his cruel and violent character and lack of remorse, although
evidence was obviously prejudicial, it was not unfairly so because of its probative
value, and jury had been properly instructed regarding proper use of this evidence.
evidence in form of letter defendant had written while in prison to another inmate, in
which defendant had written, among other things, that he enjoyed his victim's pain and
suffering, was not abuse of discretion; defendant's remarks concerned his attitude
toward victims, they were relevant and probative of his cruel and violent character and
lack of remorse, although evidence was obviously prejudicial, it was not unfairly so
because of its probative value, and jury had been properly instructed regarding proper
use of this evidence.
10. Criminal Law.
whether a prosecutor's statements so infected the proceedings with unfairness as to
make the results a denial of due process. U.S. Const. amend. 14.
11. Criminal Law.
Supreme court will not lightly reverse a criminal conviction on the basis of a
prosecutor's comments standing alone.
Prosecutor's comments during penalty hearing of capital murder prosecution to
effect that everything that prosecution would present during penalty hearing would be
to piss off this jury, that evidence was probative as well as prejudicial, and we're
going to try to prejudice him with this jury, did not constitute misconduct; even though
language used by prosecutor was responding to and employing defendant's own
words, language was unnecessary and unsuitable for courtroom, but comments
occurred outside presence of jury and did not betray improper motive or tactic.
cutor was responding to and employing defendant's own words, language was
unnecessary and unsuitable for courtroom, but comments occurred outside presence of
jury and did not betray improper motive or tactic.
In absence of objection to prosecutor's comments during penalty hearing of capital
murder prosecution addressing defendant's lack of remorse, to warrant relief, defendant
had to establish that error in prosecutor's comments was plain and affected defendant's
substantial rights. NRS 178.602.
Prosecutor's comments during penalty hearing of capital murder prosecution
addressing defendant's lack of remorse did not implicate defendant's Fifth Amendment
right against self-incrimination and were not improper; prosecutor did not rely on any
silence on part of defendant to argue lack of remorse but, rather, pointed to defendant's
actions and statements after murder to show lack of remorse. U.S. Const. amend. 5.
Prosecutor's question to capital murder defendant on cross-examination during
penalty hearing as to whether defendant had acted like a terrorist did not constitute
misconduct.
Prosecutor's question to capital murder defendant's brother during penalty hearing as
to whether defendant had said, [l]eave it to a wop to bring a knife to a gunfight did
not constitute misconduct.
Prosecutor's references during penalty hearing of capital murder prosecution to
defendant's legacies of tragedy and to handcuff key defendant had possessed after his
arrest did not constitute misconduct.
Capital murder defendant waived appellate review, absent showing of plain error, of
issue of whether victim had improperly testified about details of her sexual assault and
kidnapping by defendant during penalty hearing for murder of other victim, as
defendant failed to object to testimony in trial court.
Victim's testimony during penalty hearing of capital murder prosecution regarding
her sexual assault and kidnapping by defendant was admissible other matter
evidence, as sexual assault and kidnapping occurred almost immediately after
defendant had murdered victim's fiance, and were thus sufficiently connected to
murder to be relevant and more probative to defendant's character and motives for
murder than unfairly prejudicial.
Capital murder defendant waived appellate review, absent showing of plain error, of
issue of whether victim impact testimony from murder defendant's mother and
stepmother during penalty hearing of capital murder prosecution was inappropriate, as
he failed to object to any of this testimony in trial court.
Victim impact testimony from murder defendant's mother and stepmother during
penalty hearing of capital murder prosecution, referring to birthdays, holidays, and the
anticipated wedding of murder victim and his fiance, was appropriate and within
permissible bounds; nothing in State's questioning of murder victim's mother and
stepmother supported contention that State had coaxed unfairly prejudicial responses
from victims.
Bifurcation of penalty hearing was not required in capital murder prosecution.
23. Criminal Law.
Supreme court presumes that juries follow the instructions they are given.
24. Constitutional Law; Sentencing and Punishment.
The felony aggravator and the sexual-penetration aggravator fail to genuinely narrow
death eligibility of felony murders and reasonably justify imposing death on all
defendants to whom it applies, and thus it is impermissible under federal and state
constitutional provisions guaranteeing due process and banning cruel and unusual
punishment to base an aggravating circumstance in a capital prosecution on the felony
upon which a felony murder is predicated. Const. art. 1, 6, 8(5); U.S. Const. amends.
8, 14; NRS 200.033(4), (13).
Supreme court's holding that basing aggravating circumstance in capital prosecution
on felony upon which felony murder is predicated violated federal and state
constitutional provisions guaranteeing due process and banning cruel and unusual
punishment did not invalidate murder defendant's death sentence, as defendant, in
pleading guilty, admitted that he had premeditated the murder and testimony and
evidence as a whole overwhelmingly supported his admission, and therefore, State
could use underlying felonies associated with murder as aggravators. Const. art. 1, 6,
8(5); U.S. Const. amends. 8, 14.
In cases where the State bases a first-degree murder conviction in whole or part on
felony murder, to seek a death sentence, the State must prove an aggravator other than
one based on the felony murder's predicate felony.
27. Criminal Law.
If the State charges alternative theories of first-degree murder intending to seek a
death sentence, jurors in the guilt phase should receive a special verdict form that
allows them to indicate whether they find first-degree murder based on deliberation and
premeditation, felony murder, or both; without the return of such a form showing that
the jury did not rely on felony murder to find first-degree murder, the State cannot use
aggravators based on felonies which could support the felony murder.
In a capital case, the State is prohibited from selecting among multiple felonies that
occur during an indivisible course of conduct having one principal criminal purpose,
and using one to establish felony murder and another to support an aggravating
circumstance.
Sufficient evidence supported jury's finding of aggravating circumstance that capital
murder defendant had mutilated victim's body; mutilation resulted when defendant dug
into victim's body with a knife and then plunged knife into it, these actions went
beyond act of killing and caused serious abuse that altered radically victim's torso or
abdomen, which was essential part of body, and desecration of victim's body was also
apparent in defendant's callous, disrespectful treatment of it. NRS 200.033(8).
Supreme court would review for plain error issue of whether State had argued facts
in support of an aggravating circumstance without giving capital murder defendant
required statutory notice, as defendant failed to object to State's argument that
allegedly included theory that went beyond one set forth in notice of intent to seek
death.
capital murder defendant required statutory notice, as defendant failed to object to
State's argument that allegedly included theory that went beyond one set forth in notice
of intent to seek death. SCR 250(4)(c), (f).
Capital murder defendant was not prejudiced by State's argument that included
theories of intent for burglary that went beyond one set forth in its statutory notice of
intent to seek death; evidence that defendant had committed burglary was
overwhelming, defendant did not allege that no burglary had occurred, nor did he argue
that State introduced or relied on any facts at penalty hearing for which he had no
notice. SCR 250(4)(c), (f).
Supreme court would review for plain error issue of whether trial court had failed to
properly instruct jury in penalty hearing of capital murder prosecution, as defendant
failed to object in trial court to any of instructions at issue.
Instructions given during capital penalty hearing did not fail to adequately guide jury
to distinguish evidence relevant to aggravating circumstances from other evidence that
had been presented against defendant; jury had been properly instructed according to
caselaw regarding proper use of evidence presented at capital penalty hearing.
Failure of trial court to give instruction that, due to deadly weapon enhancement,
capital murder defendant would not be eligible for parole for at least 40 years if given
sentence allowing parole, did not prejudice defendant, given that jury returned verdict
of death and not life in prison without parole.
Death sentence imposed upon defendant was not imposed under influence of
passion, prejudice or any arbitrary factor, nor was it excessive; evidence indicated that
defendant had said that he had wanted to cut off victim's head after killing him, that he
had phoned victim's family saying that victim had died like a coward, and that he had
drawn offensive images of victim and written offensive comments on images, and
defendant had committed murder with shocking degree of deliberation and
premeditation, without any comprehensible provocation. NRS 177.055(2).
A felony may not be used both to establish first-degree murder and to aggravate the
murder to capital status.
1

OPINION
2

Per Curiam:
This is an appeal from a judgment of conviction of first-degree murder, pursuant to a
guilty plea, and from a sentence of death, pursuant to a jury verdict.
____________________

1
The Honorable Deborah A. Agosti, Justice, voluntarily recused herself from participation in the decision of
this appeal.

2
Pursuant to NRAP 34(f)(1) and SCR 250(6)(f), we have determined that oral argument is not warranted in
this appeal.
pursuant to a jury verdict. Appellant Robert Lee McConnell shot Brian Pierce to death in
August 2002. The State charged McConnell with murder and sought the death penalty. After
his preliminary examination, McConnell was allowed to represent himself. He then pleaded
guilty. He presented a case in mitigation at his penalty hearing, but the jury returned a
sentence of death. Initially, he moved to waive his appeal but eventually authorized his
appointed counsel to fully brief all issues on appeal.
McConnell challenges the propriety of his penalty hearing and death sentence on various
grounds. The most significant question raised is: in a prosecution seeking death for a felony
murder, does an aggravator based on the underlying felony constitutionally narrow death
eligibility? We conclude that it does not, but because McConnell admitted to deliberate,
premeditated murder, the State's alternative theory of felony murder was of no consequence
and provides no ground for relief.
FACTS
On August 7, 2002, McConnell shot Brian Pierce to death. Pierce lived with and planned
to marry April Robinson, McConnell's former girlfriend. McConnell broke into the couple's
home while they were at work. When Pierce returned and entered his front door, McConnell
shot him repeatedly. Later, when Robinson came home, McConnell threatened her with a
knife, handcuffed her, and sexually assaulted her. He then kidnapped her, forcing her to drive
to California. Robinson was able to escape and alerted authorities. McConnell was later
arrested in San Francisco.
The State charged McConnell with first-degree murder, alleging theories of deliberate,
premeditated murder and of felony murder during the perpetration of a burglary. The State
also charged him with sexual assault and first-degree kidnapping. After the preliminary
hearing, the State filed a Notice of Intent to Seek Death Penalty and alleged three aggravators:
the murder was committed during the course of a burglary, was committed during the course
of a robbery, and involved mutilation. Before trial, McConnell successfully moved to
represent himself; the Public Defender served as standby counsel thereafter. McConnell then
pleaded guilty, without benefit of a plea agreement, to sexual assault and first-degree
kidnapping; judgment was entered accordingly, and he was sentenced to consecutive terms of
life imprisonment with the opportunity of parole. He also pleaded guilty to first-degree
murder, and a penalty hearing before a jury was set.
McConnell's penalty hearing began on August 25, 2003, and lasted four days. In his
opening statement, McConnell said that he believed that the evidence would show four
mitigating circumstances: he was acting under extreme emotional distress at the time of the
murder; he had accepted responsibility for the crimes by pleading guilty; he had no
significant prior criminal history in the way of violent felonies; and his behavior in custody
was good.
pleading guilty; he had no significant prior criminal history in the way of violent felonies; and
his behavior in custody was good.
The evidence at the hearing showed that Robinson met McConnell in Reno in 2000, and
the two began dating. She broke up with him in the spring of 2001 and about eight months
later became engaged to Pierce. Threats were exchanged between the couple and McConnell,
and Robinson obtained a temporary protective order against McConnell.
3
After breaking up
with Robinson, McConnell told another girlfriend, Lisa Rose, that he was going to murder
Pierce. Rose was so concerned that she twice notified the Secret Witness Program and also
contacted Robinson. McConnell eventually left the Reno area.
About a year later, McConnell returned to the area. On August 4, 2002, he contacted his
former roommate, Alejandro Monroy. When the two men met, Monroy noticed that
McConnell was still fixated on Robinson and displayed aggression toward her. Monroy tried
to persuade McConnell to let his feelings for Robinson go and to grow up.
Three days later, when Robinson came home from work at around 4:30 p.m., she noticed
some unusual things. The window blinds were closed, a golf-ball-sized hole was in the
outside paneling, and a blanket was lying in front of the door inside the house. Most unusual
of all, however, was that her fianc, Brian Pierce, did not come outside to greet her. A few
seconds after entering her home, Robinson saw a man dressed in black holding a knife. It
took her a moment to realize that the man was McConnell, whom she had not heard from in
months.
McConnell told Robinson, Just shut the fuck up. He grabbed her arm, forced her into the
master bedroom, threw her facedown on the bed, and handcuffed her. He then placed her on a
couch and began talking to her. About 20 minutes later, McConnell cut Robinson's shirt and
bra off with the knife and took off her pants and panties. Placing her facedown on the bed
again, he duct taped her arm to her leg, duct taped her eyes and mouth, and placed a towel
over her head. He then sexually assaulted her vaginally, anally, and orally with his finger and
penis.
Afterwards, McConnell asked Robinson for money, and she gave him seven dollars.
Robinson then got dressed, and McConnell told her that if she made any wrong moves he was
going to shoot her in front of her neighbors.
____________________

3
There was considerable discussion outside the presence of the jury as to whether the temporary protective
order (TPO) would be admitted into evidence. Robinson mentioned the TPO during her direct examination.
McConnell wanted to cross-examine her on the TPO, to show that she had violated its terms. The State objected,
arguing that the TPO was irrelevant and potentially confusing. The district court agreed with the State and ruled
that the TPO did not mitigate McConnell's actions and was not a proper subject of cross-examination.
her in front of her neighbors. She saw that he had a gun in a holster with two magazine clips
and believed him. She also saw that he had a wallet and car keys that appeared to belong to
Pierce. When she asked about Pierce, McConnell told her that Pierce was locked up in a
U-Haul, being watched by other people. McConnell said that she would have to take him to
California if Pierce was ever going to be set free.
Robinson and McConnell drove to California in her car. He told her that everything that
was occurring was a part of his plan. She realized that McConnell had been keeping track of
. . . when Brian and I went to work, when we got home, the activity at the house, our cars,
where they were parked, how many dogs we had, where we sat in the house. As they
approached San Francisco, Robinson began suspecting that Pierce was not a hostage and that
McConnell was eventually going to kill her. After they stopped at a gas station, she was able
to escape in the car. Robinson drove to a nearby hospital and contacted the police in San
Mateo, California. She gave the police McConnell's backpack, which contained items such as
a 9-millimeter semiautomatic handgun, bullet magazines, and handcuffs.
Early the next morning, on August 8, Washoe County Sheriff's Deputies responded to the
reported kidnapping and sexual assault and arrived at Robinson's home. After kicking in the
door and entering, the deputies found Pierce dead. He had suffered several gunshot wounds,
and a knife was stuck in his torso. Underneath the knife was a videocassette entitled Fear.
Dr. Christine Elliot, a forensic pathologist, performed an autopsy on Pierce's body. Pierce
had suffered nine gunshot wounds. One gunshot wound behind his ear appeared to be very
close range or contact in nature. He had also suffered three stab wounds. Two stab wounds
were the most superficial, and a knife was still in the third wound. The lack of bleeding into
the stab wounds suggested that they occurred postmortem. Pierce died from massive blood
loss from the gunshot wounds.
Before his arrest, McConnell called his brother, Darren Bakondi, and asked him to send
money, things of that nature. Bakondi testified that McConnell was kind of rambling
during the conversation: He told me maybe he should kill himself. Or he said he might go
out in a blaze of glory, maybe make the copsmaybe take a couple of them with him, or
hopefully some kind of shootout or something.
Less than a week after the crimes, McConnell was arrested in San Francisco. He was
extradited back to Nevada. While in custody, he made a number of drawings, had some
recorded telephone conversations, and wrote a number of letters. These items were admitted
as evidence against him. One item was a letter he wrote to Robinson after she testified at his
preliminary hearing.
after she testified at his preliminary hearing. The letter had a cover sheet with Rest in peace
and 1977-2002 (the years of Pierce's birth and death) written on it. The letter read in part:
I hope this letter finds you before you kill yourself. Just think. Now you can be with
your mom and Brian forever. That was some performance last Thursday. You almost
had me feeling sorry for you.
You should thank me, you know. I could get into your house anytime I wanted. Just
think. Brian would still be alive if you had locked that window. How does that really
make you feel, April? Late at night, alone, when you cry yourself to sleep. Yes, it is a
nightmare. And it won't end until you finish the job on your arm.
The last sentence referred to an earlier attempt by Robinson to commit suicide. She, however,
never received the letter. (Other items admitted into evidence will be discussed below.)
At the time of his murder, Pierce was 26 years old, attending college and studying graphic
design. His younger sister, Kristine Pierce, testified that he had many friends. She loved him
and looked to him for guidance. She described Pierce as a brave person and a real man.
Pierce's mother, Pam McCoy, spoke of her pride for her only son and stated, He never spoke
hurtful words. He was loyal. He was a loving son.
Pierce's stepmother, Sheryl Pierce, described Pierce as a great kid who held a Bible
study class in his bedroom every week while growing up. She thought of him every day. Mrs.
Pierce also described two telephone calls she received one night at home after the murder. In
the first call, when she heard McConnell say his name on her answering machine, she broke
the connection. McConnell called back about a minute later and said on her machine, Your
son died like a coward. Mrs. Pierce was absolutely horrified and couldn't imagine why
anyone would be so cruel and mean as to call someone he doesn't even know just to cause
that kind of pain.
McConnell called three witnesses. His longtime best friend, Luis Vasquez, who managed a
Reno car dealership, described McConnell as one of the best car salesmen he ever had.
Vasquez took family vacations with McConnell and trusted him to baby-sit his children.
Before the crimes, Vasquez told McConnell to walk away from his feelings for Robinson.
He described McConnell as being very, very depressed, and added that McConnell was
crying and, at times, suicidal.
Misty Tackman, a receptionist at the car dealership where McConnell had worked,
testified that Robinson once cursed at her and threatened to kill her with a knife.
Cassandra Gunther, the mother of McConnell's daughter, testified that she became
pregnant in 1999 when she was 19 years old. McConnell pressured her into keeping the child,
once threatening her life. Gunther ended the relationship, the child was born, and Gunther
married another man. As Gunther wanted, McConnell had nothing to do with his daughter
after the birth.
McConnell testified on his own behalf. He declined to give specific details about his
childhood but stated that he and his mother did not get along. He said that he did not want to
make excuses for his behavior because many people have bad experiences growing up. He
added, Everything I'm saying now is for the benefit of the Robinson and Pierce family.
McConnell testified that initially his relationship with Robinson was great, but after he caught
her cheating, things went downhill. She started spending time with Pierce, and McConnell
began to get jealous and perceive Pierce as a threat. Threats between McConnell and Pierce
were made back and forth, but Pierce wouldn't fight.
McConnell stated:
I attempted to leave town, get away, because there was an instant where I wasI'm
going to do something right now. I'm going to kill these people right now. . . .
. . . .
I should have got the counseling maybe to deal with some other issues. I never did.
And, you know, at some point I justI don't want to say snap. It wasn't
instantaneous, you know. I came back with a plan to murder. I did. When I crossed
country, I came back, this is about revenge. I'm going to get these people, Brian, April. .
. . And in my mind the war is on. The words have been said. The threats on both sides.
So I am justified in whatever I do because, you know, they shouldn't have messed with
me; they shouldn't have talked shit to me.
And but then there was the other side where, you know, what the hell are you doing?
And I would go back and forth. . . .
. . . .
At some point on August 7th I did all the things they said. . . . You know, I was just
kind of aimless, wandering around. But all of a sudden I became focused, and I did, and
I just made the decision I'm going to do this. I'm going to retaliate against the people
that ruined my life.
McConnell also said that
I can't believe that I killed a Christian. . . . And to find out that I took the life of a person
that goes to church and all this stuff that I find out, it hurts me now.
At the time, yeah, very lack of remorse. I was pissed off. I admit to making those
phone calls, the drawings on the wall. That was done absolutely, you know, on purpose
. . . .
. . . .
But inwith respect to this murder, . . . I'm the coward. I ambushed Brian. He had
no chance. Because of perceived threats or whatever, whatever I told myself for
justification, you know, I took his life. You know, there's no excuse for that. And I have
to answer to everybody.
He added, I am sorry for what I did now. I really am.
Under cross-examination, McConnell described Pierce's murder on August 7. He had been
watching Robinson's and Pierce's house with binoculars for two days before the murder. The
morning of the murder, wearing a police-issue battle dress uniform, he broke into the house
through an open window and took such things as bills, pictures, and notes to see what
Robinson and Pierce had been doing.
McConnell reentered the home at around 12:20 p.m. and waited, determined to kill Pierce
when he came home. Once Pierce came in the door, McConnell pointed his gun at him and
said, Give me your wallet. Pierce threw his wallet toward McConnell and reached for the
door. McConnell fired his gun ten times. He approached Pierce because he wanted to look
into his eyes to see him die. He then dragged Pierce's body into a bedroom and cut into it two
or three times to dig out a Black Talon bullet to see what one looked like inside a body.
McConnell then stuck a knife into Pierce's torso because he was still mad. He placed the
videotape Fear that he found at the house on the body as a message for Robinson. He also
took credit cards out of Pierce's wallet.
McConnell explained that his actions were the result of emotional duress. Because this
duress continued even after he was in custody, he boasted of murdering Pierce and took
pleasure in making Pierce's family suffer. McConnell said he had since had a change of heart,
but he also admitted that violence was still in his nature.
The jury found all three aggravating circumstances, determined that any mitigating
circumstances were insufficient to outweigh the aggravating circumstances, and returned a
verdict of death.
DISCUSSION
The constitutionality of Nevada's use of lethal injection
[Headnote 1]
McConnell contends that Nevada's use of lethal injection as the method of execution is
unconstitutional. Due to the absence of detailed codified guidelines setting forth a protocol
for lethal injection, he argues that Nevada has failed to ensure that executions are not
cruel and unusual punishment prohibited by the United States Constitution.
tion, he argues that Nevada has failed to ensure that executions are not cruel and unusual
punishment prohibited by the United States Constitution. Without codified guidelines, he
argues, there is the potential for either accidentally botched executions or intentional abuse
by Department of Corrections officials who could gratuitously inflict pain during the
execution procedure. We are not persuaded by these arguments.
[Headnote 2]
Nevada executed prisoners by means of lethal gas until 1983, when the Legislature
changed the authorized method of execution to lethal injection.
4
NRS 176.355(1) provides
that a sentence of death in Nevada must be inflicted by an injection of a lethal drug. NRS
176.355(2)(b) requires the Director of the Department of Corrections to [s]elect the drug or
combination of drugs to be used for the execution after consulting with the State Health
Officer.
5
[S]tatutes are presumed valid, and the burden is on the person challenging the
statute to prove it is unconstitutional through a clear showing of invalidity.'
6

McConnell cites no authority from this or any other jurisdiction that deems lethal injection
unconstitutional as a matter of law because of the absence of detailed codified guidelines for
the procedure. He cites a single law review article criticizing lethal injection,
7
but provides
no specific facts or allegations indicating that executions in Nevada have either accidentally
or intentionally been administered in a cruel or unusual manner. Rather, McConnell's
argument largely consists of speculative accusations, and he cites no part of the record where
he challenged the constitutionality of lethal injection before the district court.
8
McConnell's
claim raises fact-intensive issues which require consideration by a fact-finding tribunal and
are not properly before this court in the first instance.
9

____________________

4
See 1983 Nev. Stat., ch. 601, 1, at 1937.

5
See also NRS 453.377(6) (providing that otherwise controlled substances may be legally released by a
pharmacy to the Director of the Department of Corrections for use in an execution); NRS 454.221(2)(f).

6
Castillo v. State, 110 Nev. 535, 546, 874 P.2d 1252, 1259 (1994) (quoting Sheriff v. Martin, 99 Nev. 336,
340, 662 P.2d 634, 637 (1983)), disapproved on other grounds by Wood v. State, 111 Nev. 428, 430, 892 P.2d
944, 946 (1995).

7
See Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of
Electrocution and Lethal Injection and What It Says About Us, 63 Ohio St. L.J. 63, 141, 185, 228 (2002).

8
See Leonard v. State, 117 Nev. 53, 63, 17 P.3d 397, 403 (2001) (Generally, failure to object will preclude
appellate review of an issue.).

9
See NRS 177.025 (The appeal to the Supreme Court from the district court can be taken on questions of
law alone.).
[Headnote 3]
To the extent that McConnell argues that the statutes mandating lethal injection are
unconstitutional on their face, we reject that argument. More than 80 years ago in State v.
Jon,
10
this court rejected an almost identical claim challenging execution by lethal gas. In
Jon, the appellants challenged their execution by lethal gas on the basis that Nevada's statute
authorizing execution
11
by lethal gas was indefinite and uncertain as to the formula to be
employed and therefore constituted cruel and unusual punishment.
12
The appellants
contended that this court must take judicial notice of facts and conclusions reached as the
result of scientific research, and . . . declare that the law in question provides a cruel and
inhuman method of enforcing the death penalty.
13

This court rejected the appellants' argument:
It is true that the [death] penalty has been inflicted in different ways; for instance, by
hanging, by shooting, and by electrocution; but in each case the method used has been
to accomplish the same endthe death of the guilty party. Our statute inflicts no new
punishment; it is the same old punishment, inflicted in a different manner, and we think
it safe to say that in whatever way the death penalty is inflicted it must of necessity be
more or less cruel.
But we are not prepared to say that the infliction of the death penalty by the
administration of lethal gas would of itself subject the victim to either pain or torture. . .
.
. . . We must presume that the officials intrusted with the infliction of the death
penalty by the use of gas will administer a gas which will produce no such results, and
will carefully avoid inflicting cruel punishment. That they may not do so is no argument
against the law.
. . . The legislature has determined that the infliction of the death penalty by the
administration of lethal gas is humane, and it would indeed be not only presumptuous,
but boldness on our part, to substitute our judgment for theirs . . . .
. . . The present statute provides that the judgment of death shall be inflicted by the
administration of lethal gas, and that a suitable and efficient inclosure and proper means
for the administration of such gas for the purpose shall be provided.
____________________

10
46 Nev. 418, 211 P. 676 (1923).

11
The statute was the predecessor to Nevada's current lethal injection statute, NRS 176.355, and contained
similar language. See 1921 Nev. Stat., ch. 246, 431, at 387.

12
Jon, 46 Nev. at 435, 211 P. at 681.

13
Id. at 436, 211 P. at 681.
vided. We cannot see that any useful purpose would be served by requiring greater
detail.
14

The reasoning in Jon remains sound and applies to McConnell's claim. We therefore deny
McConnell relief on this issue.
The admission of character evidence during the penalty hearing
McConnell contends that the district court improperly admitted several pieces of bad act
evidence against him during the penalty hearing. He calls the evidence irrelevant,
inflammatory, and more prejudicial than probative. He also contends that the evidence was
improper because it did not prove any aggravating circumstance. We conclude that the
evidence was properly admitted.
[Headnotes 4, 5]
The decision to admit particular evidence during the penalty phase is within the sound
discretion of the district court and will not be disturbed absent an abuse of that discretion.
15
Evidence that does not prove an aggravating circumstance is still admissible if it relates to the
offense, the defendant, or the victim and its probative value is not substantially outweighed
by the danger of unfair prejudice.
16
The jury must be instructed that such evidence is other
matter evidence which cannot be considered initially in determining whether the defendant
is death eligible but only, after that determination is made, in deciding the appropriate
sentence.
17

The evidence that McConnell challenges falls into three categories: photographs of
drawings he made and taped to his prison cell wall, recordings of telephone conversations he
had with his father and a former roommate, and portions of a letter he wrote to another
inmate.
McConnell had several drawings hanging in his cell, and photographs of these drawings
were admitted into evidence. These drawings included a picture of a man (apparently the
victim, Pierce) with his face crossed out and the phrases Fuckin' coward and See you in
hell, faggot written on it. Another drawing depicted a Black Talon bullet entering Pierce's
head. McConnell unsuccessfully objected to their admission into evidence.
Two audiotape recordings contained portions of conversations McConnell had while in
custody: one with his father, the other with his former roommate.
____________________

14
Id. at 436-38, 211 P. at 681-82.

15
McKenna v. State, 114 Nev. 1044, 1051, 968 P.2d 739, 744 (1998).

16
Hollaway v. State, 116 Nev. 732, 746, 6 P.3d 987, 997 (2000); McKenna, 114 Nev. at 1051-52, 968 P.2d at
744; NRS 48.035(1).

17
See Hollaway, 116 Nev. at 746, 6 P.3d at 996-97; Byford v. State, 116 Nev. 215, 238-39, 994 P.2d 700,
715-16 (2000); NRS 175.552(3).
with his former roommate. McConnell said, among other things, I was going to cut his
[Pierce's] head off, I got him ten times before he could even hit the ground, and I'll just
kill people from here on out. McConnell apparently boasted of his satisfaction in committing
the crimes and his intent to control the criminal justice system. McConnell also objected
unsuccessfully to admission of the recordings.
[Headnote 6]
A letter McConnell wrote while he was in prison to another inmate was admitted into
evidence. During redirect examination of April Robinson, the prosecutor read the following
portion of the letter: So don't patronize me or try to coerce, bribe or threaten to testify
against me. You wanna get outI don't. I could care less about anything else that I'm charged
with. I enjoy my [victim's] pain and suffering. It makes my job worth it that much more. The
prosecutor asked Robinson, Is that more the defendant you know? She replied, Yes.
McConnell did not object that the letter was unfairly prejudicial; therefore, he must establish
that any error in admitting it was plain and affected his substantial rights, i.e., was prejudicial.
18
We see no error in regard to any of the evidence.
[Headnotes 7-9]
The drawings, recordings, and letter concerned McConnell's attitude toward his victims.
They were relevant and probative of his cruel and violent character and lack of remorse.
Although this evidence was obviously prejudicial, it was not unfairly so because of its
probative value. The jury could properly consider the items as other matter evidence of
McConnell's character in considering whether to sentence him to death. And the jury was
instructed correctly under Evans v. State
19
regarding the proper use of evidence presented at
a capital penalty hearing. (Instruction no. 20.) The evidence was also relevant, at least in part,
to rebut McConnell's evidence of mitigationhis assertion that he felt remorse for the
victims. Therefore, McConnell has failed to show that the district court abused its discretion
by admitting the evidence.
Claims of prosecutorial misconduct
McConnell contends that he was denied a fair penalty hearing because of prosecutorial
misconduct. He claims that the State made several improper remarks to the jury that
exacerbated the prejudicial nature of evidence admitted against him.
____________________

18
See NRS 178.602 (Plain errors or defects affecting substantial rights may be noticed although they were
not brought to the attention of the court.); Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001).

19
117 Nev. 609, 635-36, 28 P.3d 498, 516-17 (2001).
made several improper remarks to the jury that exacerbated the prejudicial nature of evidence
admitted against him. We find no merit in this claim.
[Headnotes 10, 11]
whether a prosecutor's statements so infected the proceedings with unfairness as to make the
results a denial of due process.
20
This court will not lightly reverse a criminal conviction
on the basis of a prosecutor's comments standing alone.'
21

[Headnote 12]
When McConnell moved to exclude the evidence of his drawings and phone calls, he
argued that the evidence was overly prejudicial and was just going to piss off the jury. The
prosecutor responded that everything Ior we present during this penalty phase will be, to
quote Mr. McConnell, to piss off this jury. The prosecutor also stated that the evidence was
probative as well as prejudicial and we're going to try to prejudice him with this jury. These
remarks, McConnell argues, prove that prosecutorial misconduct occurred, and he repeatedly
underscores his other contentions of misconduct by referring to these remarks. But the
essential objective of the prosecution during a penalty hearing is to convince jurors that the
defendant deserves to be sentenced to death.
22
This objective is obviously prejudicial to
the defendant, but the State's tactics must not be unfairly prejudicial. Here, even though the
prosecutor was responding to and employing McConnell's own words, the language was
unnecessary and unsuitable for the courtroom. However, the remarks occurred outside the
presence of the jury and did not betray an improper motive or tactic. We conclude that they
were not misconduct and did not prejudice McConnell.
[Headnotes 13, 14]
McConnell next contends that the State committed misconduct when it remarked on and
emphasized his lack of remorse. However, he failed to object on this ground. Therefore, to
warrant relief from this court, he must establish that the error was plain and affected his
substantial rights.
23
He fails to show any error. McConnell relies on Brake v. State, where
this court held that the district court violated a defendant's Fifth Amendment right against
self-incrimination by considering the defendant's lack of remorse in its sentencing
decision.
____________________

20

21
Hernandez v. State, 118 Nev. 513, 525, 50 P.3d 1100, 1108 (2002) (quoting United States v. Young, 470
U.S. 1, 11 (1985)).

22
See Jones v. State, 113 Nev. 454, 468, 937 P.2d 55, 64 (1997).

23
See NRS 178.602; Gallego, 117 Nev. at 365, 23 P.3d at 239.
district court violated a defendant's Fifth Amendment right against self-incrimination by
considering the defendant's lack of remorse in its sentencing decision.
24
In Brake, however,
the defendant maintained his innocence.
25
Here, McConnell pleaded guilty and professed
remorse. The State did not rely on any silence on his part to argue lack of remorse; rather, it
pointed to McConnell's actions and statements after the murder. Consideration of this issue in
the penalty phase did not implicate his Fifth Amendment right against self-incrimination.
[Headnotes 15-17]
Next, McConnell contends that the State committed misconduct by asking him on
cross-examination if he had acted like a terrorist. He also complains that the State
improperly asked his brother if McConnell said, Leave it to a wop to bring a knife to a
gunfight.
26
His brother conceded that McConnell made the statement. McConnell objected
to neither question, and there was no plain error in either instance.
27
He also did not object to
a remark referring to his legacies of tragedy or to evidence and argument regarding a
handcuff key he possessed after his arrest, and we discern no misconduct.
The proper scope of the testimony of the sexual assault victim and victim impact testimony
regarding special occasions
[Headnote 18]
McConnell contends that April Robinson improperly testified about the details of her
sexual assault and kidnapping. He maintains that this testimony, regarding crimes to which he
had already pleaded guilty, was irrelevant in his penalty hearing for the murder of Pierce. He
further contends that the testimony violated the position the State took during a pretrial
hearing when the prosecutor stated that Robinson was not going to testify about the sexual
assault. Robinson did testify in detail about her sexual assault and kidnapping. However, the
State clarified its position later in the pretrial hearing and expanded the anticipated scope of
Robinson's testimony. But regardless of the State's pretrial representations, McConnell did
not object to the testimony and therefore waived the issue for appellate review absent a
showing of plain error.
____________________

24
113 Nev. 579, 584-85, 939 P.2d 1029, 1032-33 (1997); U.S. Const. amend. V.

25
113 Nev. at 584-85, 939 P.2d at 1032-33. McConnell also cites Mitchell v. United States, 526 U.S. 314
(1999), but it is no more apposite to his case than is Brake. Moreover, the Court in Mitchell express[ed] no
view on [w]hether silence bears upon the determination of a lack of remorse. 526 U.S. at 330.

26
This was apparently a quote from dialog in the movie The Untouchables.

27
issue for appellate review absent a showing of plain error.
28
He fails to show any error.
[Headnote 19]
The State argued and the evidence showed that McConnell killed Pierce out of jealously
and revenge because he was Robinson's fianc. McConnell's sexual assault and kidnapping of
Robinson almost immediately after the murder were sufficiently connected to Pierce's murder
to be both relevant and more probative of McConnell's character and motives for the murder
than unfairly prejudicial. Therefore, Robinson's testimony was admissible other matter
evidence.
29

[Headnotes 20, 21]
McConnell also contends that the penalty hearing was rendered fundamentally unfair
because victim impact testimony referred to such events as birthdays, holidays, and the
anticipated wedding of Robinson and Pierce. McConnell acknowledges that the State itself
did not make these remarks but contends that the State improperly coaxed the victims into
doing so. This argument is meritless.
This court has repeatedly held that so-called holiday' arguments are inappropriate . . .
[because they] have no purpose other than to arouse the jurors' emotions.'
30
McConnell
cites to five instances where Pierce's stepmother and mother testified about special occasions
such as birthdays, holidays, and the anticipated wedding. He must demonstrate plain error
because he did not object to any of this testimony.
31
He fails to demonstrate any error.
Nothing in the questioning supports his contention that the State coaxed unfairly prejudicial
responses from the victims. Rather, the victim impact testimony was appropriate and within
its permissible bounds.
The failure to bifurcate the penalty hearing
[Headnotes 22, 23]
McConnell argues that the penalty hearing should have been bifurcated. We have rejected
this argument before, most recently in Johnson v. State.
____________________

28
Id.

29
Robinson apparently had a criminal conviction, and McConnell filed a subpoena duces tecum to obtain her
presentence report. The district court granted the State's motion to quash the subpoena. McConnell maintains
this was unfair but does not raise it as a distinct issue. He suggests that Robinson may have accused him of
violent behavior to help herself in her own case, but his own testimony did not contradict Robinson's basic
description of the crimes.

30
Quillen v. State, 112 Nev. 1369, 1382, 929 P.2d 893, 901 (1996) (quoting Williams v. State, 103 Nev. 106,
109, 734 P.2d 700, 702 (1987)).

31
Johnson v. State.
32
McConnell asserts that Johnson did not consider the United States
Supreme Court's relatively recent decision in Ring v. Arizona.
33
In Johnson, we did consider
Ring's impact on Nevada's capital sentencing scheme.
34
Though we did not apply Ring to the
bifurcation issue, McConnell fails to explain how it has any such application. Additionally, as
previously discussed, the jury in this case received an appropriate instruction on the use of the
evidence admitted during the penalty hearing. We presume that juries follow the instructions
they are given,
35
and McConnell has not demonstrated otherwise in his case.
Basing an aggravating circumstance on the predicate felony in a capital prosecution of a
felony murder
McConnell argues that the aggravating circumstance based on burglary failed to perform
its constitutional function of narrowing death eligibility because the burglary also served as
an element of felony murder. The State failed to respond to this argument.
36
We conclude
that the argument has merit.
In charging McConnell with first-degree murder, the State alleged two theories: deliberate,
premeditated murder and felony murder during the perpetration of a burglary. McConnell was
advised of both theories when he pleaded guilty. During his testimony, McConnell admitted
that he had premeditated the murder: Nothing justifies cold-blooded, premeditated,
first-degree murder, which is what I did. His other testimony and the evidence as a whole
overwhelmingly supported this admission. McConnell's conviction for first-degree murder is
therefore soundly based on a theory of deliberate, premeditated murder. Consequently, our
ensuing analysis and decision do not invalidate the use of the felony aggravating
circumstances in this case.
This court first addressed the contention that in a felony-murder prosecution the
underlying felony cannot be considered as an aggravating circumstance in Petrocelli v. State
in 1985.
37
Petrocelli rejected that contention primarily because the U.S. Supreme Court has
implicitly approved the use of the underlying felony in felony murder cases as a valid
aggravating circumstance to support the imposition of the death sentence," though
neither Supreme Court opinion cited addressed the issue.
____________________

32
118 Nev. 787, 806, 59 P.3d 450, 462 (2002).

33
536 U.S. 584 (2002); see also Apprendi v. New Jersey, 530 U.S. 466 (2000).

34
118 Nev. at 799-804, 59 P.3d at 458-61.

35
See Collman v. State, 116 Nev. 687, 722, 7 P.3d 426, 448 (2000).

36
The State's failure to address this issue contributed to our decision not to conduct oral argument in this case.
We also note that this is a recurring issue that has long confronted this court, as the following discussion
demonstrates.

37
101 Nev. 46, 692 P.2d 503 (1985), holding modified on other grounds by Sonner v. State, 114 Nev. 321,
327, 955 P.2d 673, 677 (1998).
felony in felony murder cases as a valid aggravating circumstance to support the imposition
of the death sentence, though neither Supreme Court opinion cited addressed the issue.
38
We have followed Petrocelli's rationale since.
39
But we have never addressed the 1988
Supreme Court case Lowenfield v. Phelps,
40
which dealt with a challenge to a death sentence
on the basis that the sole aggravating circumstance was identical to an element of the capital
murder.
41
We conclude that Lowenfield provides the basic analytic framework to approach
this issue.
42

The Eighth Amendment prohibits the infliction of cruel and unusual punishments.
43
In
1972, the Supreme Court held that capital sentencing schemes which do not adequately guide
the sentencers' discretion and thus permit the arbitrary and capricious imposition of the death
penalty violate the Eighth and Fourteenth Amendments.
44
As a result, the Court has held that
to be constitutional a capital sentencing scheme must genuinely narrow the class of persons
eligible for the death penalty and must reasonably justify the imposition of a more severe
sentence on the defendant compared to others found guilty of murder.
45
We conclude that
Nevada's own constitutional bans against the infliction of cruel or unusual punishments and
the deprivation of life without due process of law require this same narrowing process.
46

____________________

38
Id. at 53, 692 P.2d at 509 (emphasis added) (citing Proffitt v. Florida, 428 U.S. 242 (1976); Gregg v.
Georgia, 428 U.S. 153 (1976) (plurality opinion)).

39
See, e.g., Atkins v. State, 112 Nev. 1122, 1134, 923 P.2d 1119, 1127 (1996).

40
484 U.S. 231, 241-46 (1988).

41
See Leslie v. Warden, 118 Nev. 773, 784-86, 59 P.3d 440, 448-49 (2002) (Maupin, J., concurring)
(discussing Lowenfield and this issue).

42
A number of other courts have considered this issue since Lowenfield was decided. Opinions determining
that use of the felony in a felony murder as an aggravator was proper include: Deputy v. Taylor, 19 F.3d 1485,
1500-02 (3d Cir. 1994); Perry v. Lockhart, 871 F.2d 1384, 1392-93 (8th Cir. 1989); and Ferguson v. State, 642
A.2d 772, 780-81 (Del. 1994). Opinions determining that such use was not proper include: State v.
Middlebrooks, 840 S.W.2d 317, 341-47 (Tenn. 1992), superseded by statute as stated in State v. Stout, 46
S.W.3d 689, 705-06 (Tenn. 2001); and Engberg v. Meyer, 820 P.2d 70, 86-92 (Wyo. 1991).

43
U.S. Const. amend. VIII.

44
Gregg, 428 U.S. at 200, 206-07 (plurality opinion) (summarizing Furman v. Georgia, 408 U.S. 238
(1972)); id. at 220-21 (White, J., concurring) (same). The Eighth Amendment applies to the states through the
Fourteenth Amendment's Due Process Clause. Robinson v. California, 370 U.S. 660, 666 (1962); U.S. Const.
amend. XIV, 1.

45
Zant v. Stephens, 462 U.S. 862, 877 (1983).

46
Nev. Const. art. 1, 6, 8(5).
The Court applied this tenet to Louisiana's capital punishment scheme in Lowenfield.
47
Although Lowenfield did not specifically address felony murder, it considered a case where
the only aggravating circumstance found by the jury was identical to an element of the capital
crime.
48
The jury convicted Lowenfield of first-degree murder for killing a human being
when the offender has specific intent to kill or to inflict great bodily harm upon more than
one person; the jury then found a single aggravating circumstance that the offender
knowingly created a risk of death or great bodily harm to more than one person and returned
a verdict of death.
49

The Supreme Court concluded that the narrowing function required by the Constitution
had been accomplished.
50
The Court explained that
the narrowing function required for a regime of capital punishment may be provided in
either of these two ways: The legislature may itself narrow the definition of capital
offenses, as Texas and Louisiana have done, so that the jury finding of guilt responds to
this concern, or the legislature may more broadly define capital offenses and provide for
narrowing by jury findings of aggravating circumstances at the penalty phase.
51

The Louisiana statute established five grades of homicide, and death was a possible
punishment only for first-degree murder, which comprised five categories.
52
The Court
concluded that the statute narrowly defined the categories of murders for which a death
sentence could be imposed.
53
Thus,
the narrowing function was performed by the jury at the guilt phase when it found
defendant guilty of three counts of murder under the provision that the offender has a
specific intent to kill or to inflict great bodily harm upon more than one person. The
fact that the sentencing jury is also required to find the existence of an aggravating
circumstance in addition is no part of the constitutionally required narrowing process . .
. .
54

____________________

47
484 U.S. at 244.

48
Id. at 241.

49
Id. at 243 (quoting La. Rev. Stat. Ann. 14:30(A)(3) (West 1986); La. Code Crim. Proc. Ann., Art.
905.4(d) (West 1984)).

50
Id. at 241-46.

51
Id. at 246.

52
Id. at 241-42.

53
Id. at 245.

54
Id. at 246.
In Lowenfield, the five categories of first-degree murder that satisfied the narrowing
function at the guilt phase also included a type of felony murder: killing a human being
[w]hen the offender has specific intent to kill or to inflict great bodily harm and is engaged
in the perpetration or attempted perpetration of aggravated kidnapping, aggravated escape,
aggravated arson, aggravated rape, aggravated burglary, armed robbery, or simple robbery.
55
However, a killing involving the same enumerated felonies was only second-degree murder
when the offender has no intent to kill or to inflict great bodily harm.
56

In light of Lowenfield, two questions are relevant here. First, is Nevada's definition of
capital felony murder narrow enough that no further narrowing of death eligibility is needed
once the defendant is convicted? Second, if not, does the felony aggravator sufficiently
narrow death eligibility to reasonably justify the imposition of a death sentence on the
defendant? As we explain, the answer to the first question is no. As for the second, although
the felony aggravator is somewhat narrower than felony murder generally, we conclude that
the aggravator does not provide sufficient narrowing to satisfy constitutional requirements.
Nevada's statute defines felony murder broadly. Under NRS 200.030(1)(b), felony murder
is one [c]ommitted in the perpetration or attempted perpetration of sexual assault,
kidnapping, arson, robbery, burglary, invasion of the home, sexual abuse of a child, sexual
molestation of a child under the age of 14 years or child abuse. In Nevada, all felony murder
is first-degree murder,
57
and all first-degree murder is potentially capital murder. This is
much broader, for example, than Louisiana's capital felony-murder statute in Lowenfield.
58
Nevada's statute enumerates two more predicate felonies and some of the predicate felonies
are multiple, e.g., either degree of kidnapping in Nevada but only aggravated kidnapping in
Louisiana. More important though, capital felony murder in Louisiana requires specific intent
to kill or to inflict great bodily harm, whereas felony murder in Nevada requires no such
intent. In Nevada, the intent simply to commit the underlying felony is "transferred to
supply the malice necessary to characterize the death a murder.
____________________

55
Id. at 242 (quoting La. Rev. Stat. Ann. 14:30(A)(1)) (emphasis added).

56
Id. at 241 n.5 (quoting La. Rev. Stat. Ann. 14:30.1(2)).

57
We will not delve into a court-made exception to this statement. More than 20 years ago, this court
recognized a second-degree felony murder involving homicides committed without specific intent to kill in the
course of a limited number of life-endangering felonies not included within NRS 200.030(1)(b). See Sheriff v.
Morris, 99 Nev. 109, 113-18, 659 P.2d 852, 856-59 (1983).

58
Our discussion of Louisiana statutes refers only to the statutory scheme addressed by the Supreme Court in
Lowenfield. We have not considered any possible changes to that scheme since Lowenfield.
felony is transferred to supply the malice necessary to characterize the death a murder.
59

Indeed, Nevada's current definition of felony murder is broader than the definition in 1972
when Furman v. Georgia
60
temporarily ended executions in the United States. NRS
200.030(1) then provided in pertinent part that murder committed in the perpetration, or
attempt to perpetrate, any arson, rape, robbery or burglary, . . . shall be deemed murder of the
first degree.
61
To these four predicate felonies formerly enumerated, NRS 200.030(1)(b)
now adds kidnapping and four other felonies. So it is clear that Nevada's definition of felony
murder does not afford constitutional narrowing. As Professor Richard Rosen points out: At
a bare minimum, then, a narrowing device must identify a more restrictive and more culpable
class of first degree murder defendants than the pre-Furman capital homicide class.
62

Because Nevada defines capital felony murder broadly, its capital sentencing scheme must
narrow death eligibility in the penalty phase by the jury's finding of aggravating
circumstances. We must decide whether the felony aggravator set forth in NRS 200.033(4)
adequately performs this narrowing function for felony murder.
NRS 200.033(4) provides that first-degree murder is aggravated if it was committed while
the defendant was engaged in
the commission of, or an attempt to commit or flight after committing or attempting to
commit, any robbery, arson in the first degree, burglary, invasion of the home or
kidnapping 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.
As stated above, first-degree felony murder is based on the perpetration or attempted
perpetration of sexual assault, kidnapping, arson, robbery, burglary, invasion of the home,
sexual abuse of a child, sexual molestation of a child under the age of 14 years or child
abuse.
63

The felony aggravator set forth in NRS 200.033(4) is somewhat narrower than felony
murder in two ways. First, the felony aggravator statute enumerates five felonies, while
felony murder can be based on nine felonies. And the aggravator applies only to kidnapping
and arson in the first degree, while felony murder can be based on either degree of
kidnapping or arson.
____________________

59
Ford v. State, 99 Nev. 209, 215, 660 P.2d 992, 995 (1983).

60
408 U.S. 238.

61
1967 Nev. Stat., ch. 523, 438, at 1470. NRS 200.030(3) provided that death was a potential penalty for all
first-degree murder. Id.

62
Richard A. Rosen, Felony Murder and the Eighth Amendment Jurisprudence of Death, 31 B.C.L. Rev.
1103, 1124 (1990).

63
NRS 200.030(1)(b).
ping and arson in the first degree, while felony murder can be based on either degree of
kidnapping or arson. However, although the felony aggravator does not apply to sexual
assault or sexual abuse of a child
64
(both bases for felony murder), another aggravator under
NRS 200.033(13) largely covers these offenses in the form of nonconsensual sexual
penetration. As discussed below, the problem of inadequate narrowing applies to this
sexual-penetration aggravator with even more force than to the felony aggravator. The rest of
our discussion will therefore refer to both the felony aggravator, NRS 200.033(4), and the
sexual-penetration aggravator, NRS 200.033(13). Second, the felony aggravator applies only
to cases where the defendant [k]illed or attempted to kill the victim or [k]new or had
reason to know that life would be taken or lethal force used. This adds an element not
strictly required for felony murder. The sexual-penetration aggravator, however, does not add
this element.
The question is, in a case of felony murder does either of these two aggravators genuinely
narrow the class of persons eligible for the death penalty and . . . reasonably justify the
imposition of a more severe sentence on the defendant compared to others found guilty of
murder?
65
We conclude that the narrowing capacity of the aggravators is largely theoretical.
First, though the felony aggravator and the sexual-penetration aggravator reach four fewer
felonies than does felony murder, the seven felonies reached (sexual assault, sexual abuse of a
child, first-degree arson, burglary, invasion of the home, first-degree kidnapping, and
particularly robbery) are much more likely to involve death than are the felonies not covered
(sexual molestation of a child under the age of 14 years, child abuse, second-degree arson,
and second-degree kidnapping).
66
So, in practical terms, these two aggravators still cover the
vast majority of felony murders.
Next, though the felony aggravator, unlike felony murder, requires that the defendant
[k]illed or attempted to kill the victim or [k]new or had reason to know that life would be
taken or lethal force used, this required element does little more than state the minimum
constitutional requirement to impose death for felony murder. The emphasized language of
the aggravator is actually slightly broader than that in Enmund v. Florida, where the Supreme
Court concluded that the Eighth Amendment does not permit imposition of the death penalty
on a defendant who aids and abets a felony in the course of which a murder is committed by
others but who does not himself kill, attempt to kill, or intend that a killing take place or
that lethal force will be employed.
____________________

64
See NRS 432B.100 (defining sexual abuse); NRS 200.030(6)(d).

65
Zant, 462 U.S. at 877.

66
See NRS 200.030(6)(b), (e) (defining child abuse and sexual molestation).
that a killing take place or that lethal force will be employed.
67
But the Court itself later
broadened the standard slightly, holding that major participation in the felony committed,
combined with reckless indifference to human life, is sufficient to satisfy the Enmund
culpability requirement.
68
Still, this element of the felony aggravator largely mirrors the
constitutional standard and does little to narrow the class of death-eligible defendants.
69
By
comparison, the definition of capital felony murder in Lowenfield which accomplished the
necessary constitutional narrowing required specific intent to kill or to inflict great bodily
harm.
70

Another problem is that this added element can be overlooked and may not even receive
consideration by the jury. This case is an example. The jury was instructed:
The following are circumstances applicable in this case by which murder of the first
degree may be aggravated:
1. The murder of Brian Lee Pierce was committed by Robert Lee McConnell while
engaged in the commission of a robbery.
2. The murder of Brian Lee Pierce was committed by Robert Lee McConnell while
engaged in the commission of a burglary.
3. The murder of Brian Lee Pierce involved mutilation of the victim.
(Instruction no. 8.) The jury was not informed that any further element needed to be found in
regard to the two felony aggravators. But this omission had no prejudicial effect in this case
since there is no dispute that McConnell intentionally killed Pierce; nor has McConnell raised
this issue.
____________________

67
458 U.S. 782, 797 (1982) (emphasis added). Although not the intent of the felony-aggravator statute (or
Enmund), if the defendant killed the victim during a felony, the plain language of the statute requires no jury
finding of intent or knowledge on the part of the defendant in order to impose death. But it is still possible that
such a killing could be accidental. Jurors should be instructed that even if the defendant killed the victim, they
must still find that the defendant intended to kill or at least knew or should have known that a killing would take
place or lethal force would be applied.

68
Tison v. Arizona, 481 U.S. 137, 158 (1987).

69
Cf. Middlebrooks, 840 S.W.2d at 345 ([S]ince the absence of reckless indifference constitutionally
immunizes a defendant from the death penalty, its presence cannot meaningfully further narrow the class of
death-eligible defendants.); Rosen, supra note 62, at 1130 (same). But see Perry, 871 F.2d at 1393 & n.5
(concluding that an Arkansas statute, which in relevant part defines capital murder as causing death in the course
of an enumerated felony under circumstances manifesting extreme indifference to the value of human life,
constitutionally narrows death eligibility (quoting Ark. Stat. Ann. 41-1501(1))).

70
484 U.S. at 242 (quoting La. Rev. Stat. Ann. 14:30(A)(1)) (emphasis added).
[Headnote 24]
We conclude that although the felony aggravator of NRS 200.033(4) can theoretically
eliminate death eligibility in a few cases of felony murder, the practical effect is so slight that
the felony aggravator fails to genuinely narrow the death eligibility of felony murderers and
reasonably justify imposing death on all defendants to whom it applies. This conclusion
applies even more forcefully to the sexual-penetration aggravator of NRS 200.033(13). We
therefore deem it impermissible under the United States and Nevada Constitutions to base an
aggravating circumstance in a capital prosecution on the felony upon which a felony murder
is predicated.
[Headnotes 25-27]
This decision has no effect in a case where the State relies solely on a theory of deliberate,
premeditated murder to gain a conviction of first-degree murder; it can then use appropriate
felonies associated with the murder as aggravators. But in cases where the State bases a
first-degree murder conviction in whole or part on felony murder, to seek a death sentence the
State will have to prove an aggravator other than one based on the felony murder's predicate
felony. (Even absent this consideration, judicious charging of felony murder should be the
rule in any case.
71
) We advise the State, therefore, that if it charges alternative theories of
first-degree murder intending to seek a death sentence, jurors in the guilt phase should receive
a special verdict form that allows them to indicate whether they find first-degree murder
based on deliberation and premeditation, felony murder, or both. Without the return of such a
form showing that the jury did not rely on felony murder to find first-degree murder, the State
cannot use aggravators based on felonies which could support the felony murder.
[Headnote 28]
We further prohibit the State from selecting among multiple felonies that occur during an
indivisible course of conduct having one principal criminal purpose
72
and using one to
establish felony murder and another to support an aggravating circumstance.
____________________

71
As we have stated before, the felony-murder doctrine is widely criticized: the weight of authority calls for
restricting the doctrine, and the trend has been to limit its applicability. Collman, 116 Nev. at 717, 7 P.3d at
445 (citing Model Penal Code and Commentaries 210.2 cmt. 6 at 29-42 (Official Draft and Revised Comments
1980); Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 7.5, at 622-23, 632, 640-41 (2d ed. 1986)).

72
People v. Harris, 679 P.2d 433, 449 (Cal. 1984), rejected by People v. Proctor, 842 P.2d 1100, 1129-30
(Cal. 1992). In 1992, we declined to follow Harris, which prohibited the use of multiple felonies occurring
during an indivisible course of conduct to support separate aggravating circumstances. Homick v. State, 108
Nev. 127, 137-38, 825 P.2d 600, 607 (1992). Our precedent in this regard does not change, as the continuing
discussion indicates.
murder and another to support an aggravating circumstance. For example, in a case like this
one, the burglary could not be used to establish first-degree felony murder while the
associated robbery was used as an aggravator to support a death sentence. The burglary and
robbery both occurred in an indivisible course of conduct whose primary purpose was the
murder of Pierce.
This does not mean that it was improper for the State to allege two aggravators based on
robbery and burglary rather than one, as McConnell argues without citing any supporting
authority. We have repeatedly held that robbery and burglary occurring in a single course of
conduct can be charged as separate aggravators.
73
We do not alter this precedent, though we
reject extending it to permit the State to base a felony murder on one felony and then base an
aggravator on an associated felony. Whether burglary and robbery are described as two
aggravators or one should not unduly influence jurors, who should be clearly instructed that
the weighing of aggravating and mitigating circumstances is not a simplistic, mathematical
process and in no way depends on the sheer number of either.
74

McConnell also contends that Nevada's death penalty statutes fail to constitutionally
narrow death eligibility because the statutory aggravating circumstances in NRS 200.033 are
so numerous and because NRS 175.552(3) permits unlimited aggravating evidence beyond
the statutory aggravating circumstances. We hold to our precedent rejecting similar general
challenges to Nevada's capital sentencing scheme.
75

The sufficiency of the evidence of mutilation
[Headnote 29]
McConnell also argues that the evidence was insufficient to support the aggravating
circumstance of mutilation under NRS 200.033(8). Consistent with this court's caselaw,
76
the
jury was instructed:
Mutilate means to cut off or permanently destroy a limb or essential part of the
body or to cut off or alter radically so as to make imperfect.
In order for mutilation to be found as an aggravating circumstance, there must be
mutilation of the victim beyond the act of killing.
____________________

73
See, e.g., Homick, 108 Nev. at 137-38, 825 P.2d at 607.

74
See State v. Haberstroh, 119 Nev. 173, 184, 69 P.3d 676, 683 (2003).

75
See, e.g., Rhyne v. State, 118 Nev. 1, 14, 38 P.3d 163, 171-72 (2002); Servin v. State, 117 Nev. 775,
785-86, 32 P.3d 1277, 1285 (2001); Middleton v. State, 114 Nev. 1089, 1116-17, 968 P.2d 296, 314-15 (1998).

76
See Vanisi v. State, 117 Nev. 330, 342, 22 P.3d 1164, 1172 (2001).
(Instruction no. 12.) This court has also explained that the intent of NRS 200.033(8) is to
discourage desecration of the body of a fellow human being.
77

The prosecutor argued to the jury that mutilation resulted when McConnell dug into
Pierce's body with a knife and then plunged the knife into it. The record shows that these
actions went beyond the act of killing and caused serious abuse that altered radically Pierce's
torso or abdomen, which is an essential part of the body. Desecration is also apparent in
McConnell's callous, disrespectful treatment of the body. We conclude that the evidence was
sufficient to support the jury's finding of the aggravating circumstance.
The sufficiency of the notice of the State's case in aggravation
Next, McConnell complains that the State argued facts in support of an aggravating
circumstance without giving him required notice. The State filed a Notice of Intent to Seek
Death Penalty which alleged among other things that the murder was committed during the
course of a burglary. The State alleged that the burglary occurred when McConnell entered
the victim's home with the intent to kill. In closing argument, however, the prosecutor argued
that the burglary occurred based not only on McConnell's intent to kill but also his intent to
rob and to commit sexual assault. McConnell says that this violated SCR 250 and deprived
him of his right to due process as well as other constitutional rights.
SCR 250(4)(c) requires the State, within 30 days after filing an information or indictment,
to file a notice of intent to seek the death penalty: The notice must allege all aggravating
circumstances which the state intends to prove and allege with specificity the facts on which
the state will rely to prove each aggravating circumstance. And SCR 250(4)(f) requires the
State to file, no later than 15 days before trial, a notice of evidence in aggravation
summariz[ing] the evidence which the state intends to introduce at the penalty phase of trial
. . . and identify[ing] the witnesses, documents, or other means by which the evidence will be
introduced. The State filed notice under this latter provision of the rule as well.
[Headnotes 30, 31]
McConnell did not object to the State's argument and is therefore required to demonstrate
that it constituted a plain error affecting his substantial rights.
78
Although the State may have
technically violated SCR 250(4)(c) by arguing theories of intent for the burglary that went
beyond the one set forth in the notice of intent to seek death, McConnell has not shown
that any error was plain.
____________________

77
Byford, 116 Nev. at 241, 994 P.2d at 717.

78
glary that went beyond the one set forth in the notice of intent to seek death, McConnell has
not shown that any error was plain. More important, he has not shown the slightest prejudice,
let alone an effect on his substantial rights. The evidence for the burglary was overwhelming,
and McConnell does not argue that one did not occur. Nor does he argue that the State
introduced or relied on any facts at the penalty phase for which he had no notice.
The propriety of various jury instructions
[Headnote 32]
McConnell claims that the district court failed to instruct the jury properly on three issues.
He did not object to any of the instructions or propose any different instructions, so he is
again required to demonstrate plain error affecting his substantial rights.
79

[Headnote 33]
He first complains that the district court gave the jury no guidance to distinguish evidence
relevant to aggravating circumstances from the other evidence presented against him. He does
not specify what form this guidance should have taken. The jury was correctly instructed
under our caselaw
80
regarding the proper use of evidence presented at a capital penalty
hearing. (Instruction no. 20.) McConnell fails to show that any error occurred here.
Second, he claims that the district court failed to instruct the jury that life in prison without
parole means exactly that and that his sentence could not be commuted if he received life
without parole. This claim is baseless. The jury was instructed: Life imprisonment without
the possibility of parole means exactly what it says, that the Defendant shall not be eligible
for parole. (Instruction no. 19.)
[Headnote 34]
Finally, McConnell claims that the district court failed to instruct the jury that because of
the deadly weapon enhancement he would not be eligible for parole for at least 40 years if
given a sentence allowing parole. Since the jury returned a verdict of death and not life in
prison without parole, we do not see how McConnell could have been prejudiced. Regardless,
the jurors were adequately informed. Instruction no. 19 informed them that a sentence
allowing parole does not mean that the Defendant would be paroled after 20 years but only
that the Defendant would be eligible for parole after that period of time, and the verdict
forms further informed them that either sentence allowing parole would include a second
equal and consecutive prison term for the use of a firearm.
____________________

79
Id.

80
Evans, 117 Nev. at 635-36, 28 P.3d at 516-17.
Mandatory statutory review of the death penalty
[Headnote 35]
NRS 177.055(2) requires this court to review every death sentence and consider:
(c) Whether the evidence supports the finding of an aggravating circumstance or
circumstances;
(d) Whether the sentence of death was imposed under the influence of passion,
prejudice or any arbitrary factor; and
(e) Whether the sentence of death is excessive, considering both the crime and the
defendant.
In regard to the first question, the evidence supported the three aggravating circumstances.
McConnell does not dispute the sufficiency of the evidence for the two felony aggravators,
and the evidence of mutilation, as discussed above, was sufficient.
McConnell asserts that his death sentence is excessive and resulted from passion and
prejudice because he had no significant prior criminal history and the jury was improperly
exposed to inflammatory evidence. He specifically cites as improper the evidence that he said
he wanted to cut Pierce's head off after the murder, that he phoned Pierce's family saying that
their son died like a coward, and that he drew offensive images and wrote offensive
comments on Pierce's image. As discussed above, this evidence was admissible, and the jury
was properly instructed on its use. We discern no indication that the death sentence was
imposed under the influence of passion, prejudice, or any arbitrary factor.
McConnell committed this murder with a shocking degree of deliberation and
premeditation and without any comprehensible provocation. He presented no compelling
mitigating evidence. We conclude that considering McConnell and his crime, the sentence of
death is not excessive.
CONCLUSION
[Headnote 36]
We affirm the judgment of conviction and sentence of death. We also hold that a felony
may not be used both to establish first-degree murder and to aggravate the murder to capital
status. The interpretation of our death penalty statutes that we now embrace will provide a
more certain framework within which prosecutors statewide may exercise their very
important discretion in these matters, and will provide greater certainty and fairness of
application within the trial, appellate, and federal court systems.
Becker, J., concurring in result only:
I agree with the decision of the court to affirm McConnell's conviction. I also agree that
the court needs to consider the validity of Nevada's death penalty scheme in light of
Lowenfield v. Phelps,
ity of Nevada's death penalty scheme in light of Lowenfield v. Phelps,
1
the changes in
Nevada's statutes that have occurred since our decision in Petrocelli v. State,
2
and recent
reconsideration of death penalty case law by the United States Supreme Court.
3
However, in
light of the sixteen-year period that has passed since Lowenfield, I would still have set this
matter for oral argument, despite the State's failure to address Lowenfield, and I also believe
the court should have requested amicus briefing. For these reasons I concur only in the result.
____________________

1
484 U.S. 231 (1988).

2
101 Nev. 46, 692 P.2d 503 (1985), holding modified on other grounds by Sonner v. State, 114 Nev. 321,
327, 955 P.2d 673, 677 (1998).

3
See Ring v. Arizona, 536 U.S. 584 (2002).
____________

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