Nevada Reports 1984 (100 Nev.) PDF

100 Nev.
1, 1 (1984)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 100
____________
100 Nev. 1, 1 (1984) In re Herrmann
IN THE MATTER OF THE ESTATE OF WALTER E. HERRMANN, Deceased; PETER L.
FLANGAS and JOHN TOM ROSS, Appellants, v. RALPH HERRMANN, Executor of
the Estate of WALTER E. HERRMANN, Deceased, Respondent.
No. 11154
January 23, 1984 677 P.2d 594
Appeal from order of the Ninth Judicial District Court, in and for the County of Lyon;
Howard D. McKibben, Judge.
Appeal was taken by attorneys from an order of the district court purporting to award
attorneys the sum of $6,000 instead of the sum of $70,000 previously awarded to them as
counsel for nonresident heirs in probate proceeding. The Supreme Court held that even if it
was necessary for the executor and his former counsel to receive an express, formal written
notice of the entry of order awarding legal fees to attorneys for nonresident heirs in probate
proceeding in order to trigger 30-day statutory period for filing an appeal, where order was
not only entered in the presence of the executor and his former counsel, but was also entered
at their specific instance, the attorneys were not obligated to provide the executor and his
former counsel with further notice of the entry, and the motion to amend or alter the
order was untimely given failure of the executor and his former counsel to appeal the
order within 30 days of the entry or to file the motion within ten days of the entry.
were not obligated to provide the executor and his former counsel with further notice of the
entry, and the motion to amend or alter the order was untimely given failure of the executor
and his former counsel to appeal the order within 30 days of the entry or to file the motion
within ten days of the entry.
Reversed.
[Rehearing denied March 8, 1984]
John E. Stone, Las Vegas, for Appellants.
Woodburn, Wedge, Blakey and Jeppson, and Casey W. Vlautin, Reno, for Respondent.
1. Wills.
The words within 30 days after its entry, as found in statute requiring an appeal from an order or decree
directing payment of attorney fees in a probate matter to be filed within 30 days after its entry, cannot be
construed as engrafting the notice-of-entry provisions of the civil and appellate rules and, hence, cannot be
construed as requiring an express, formal written notice of the entry. NRS 155.190; NRCP 52(b);
NRAP 4(a).
2. Wills.
The document titled Motion to Amend or Alter the Order of November 29, 1973, which was filed by
executor's counsel on April 11, 1975 in order to obtain a reduction in legal fees awarded attorneys for
nonresident heirs in probate proceeding, was filed many months after expiration of the 30-day statutory
period and, hence, was untimely assuming that it was in adequate form and that the relief it sought was
available. NRS 155.190; NRCP 52(b); NRAP 4(a)
3. Wills.
Even if it was necessary for the executor and his former counsel to receive an express, formal written
notice of the entry of order awarding legal fees to attorneys for nonresident heirs in probate proceeding in
order to trigger 30-day statutory period for filing an appeal, where order was not only entered in the
presence of the executor and his former counsel, but was also entered at their specific instance, the
attorneys were not obligated to provide the executor and his former counsel with further notice of the entry,
and the motion to amend or alter the order was untimely given failure of the executor and his former
counsel to appeal the order within 30 days of the entry or to file the motion within ten days of the entry.
NRS 155.190; NRCP 52(b); NRAP 4(a).
4. Appeal and Error.
The written notice requirement of the civil and appellate rules with respect to the running of limitations
was never intended to operate in favor of a party who has himself prepared and procured the entry of a
judgment. NRS 155.190; NRCP 52(b); NRAP 4(a).
5. Wills.
Rule in Hansen's Estate, recognizing that heirs whose legacies are reduced by an award of attorney fees
are thereby aggrieved and entitled to pursue an appeal, must not be read as giving any heir a right to
contest an order entered in a probate proceeding, but must be read as giving any
aggrieved heir a right to pursue an appeal or other attack on judgment as long as it is
timely.
right to contest an order entered in a probate proceeding, but must be read as giving any aggrieved heir a
right to pursue an appeal or other attack on judgment as long as it is timely. NRS 155.190; NRCP
52(b); NRAP 4(a).
6. Wills.
Even if special legatees had pursued an appeal from order awarding attorney fees in probate proceeding,
or had launched some other timely attack on order, where those individuals had already received special
legacies left to them in will, they were not aggrieved and, under Hansen's Estate, were precluded from
pursuing an appeal or other timely attack on order. NRS 155.190; NRCP 52(b); NRAP 4(a).
7. Wills.
Omitting to serve a special legatee with written notice of entry of judgment in a probate proceeding, when
judgment does not adversely affect special legatee, neither defers judgment's finality for limitation purposes
nor delays time in which an appeal must be taken. NRS 155.190; NRCP 52(b); NRAP 4(a).
8. Wills.
Order awarding legal fees to attorneys for nonresident heirs in probate proceeding, when duly and
promptly entered in proceedings that were regularly conducted in all respects, was final and no longer
subject to challenge, by appeal or otherwise, upon expiration of statutory periods for filing an appeal or
motion to amend. NRS 155.190; NRCP 52(b); NRAP 4(a).
OPINION
Per Curiam:
This appeal challenges an order of the Ninth Judicial District Court entered by Judge
Howard McKibben, which purported to award appellant Peter L. Flangas and his co-counsel
John Tom Ross the sum of $6,000 as attorneys' fees for services rendered in the Estate of
Walter Herrmann, instead of the sum of $70,000 which Judge Richard Waters had previously
awarded to them by a judgment duly and lawfully entered.
1
Because Judge McKibben lacked
jurisdiction to ignore the final judgment that Judge Waters had rendered with complete
propriety, we reverse the order entered by Judge McKibben.
THE FACTS
In this case, governing legal principles become quite obvious once the relevant facts are
adequately understood. However, comprehending those facts requires review of a rather
extended procedural history leading to entry of conflicting orders by Judge Waters and
Judge McKibben.
____________________

1
All relevant proceedings referred to herein were conducted in district court at Yerington, Nevada, the
county seat of Lyon County. Lyon County was one of five counties encompassed in the First Judicial District at
the time Judge Waters presided. Judge McKibben, the successor to Judge Waters' successor, was also originally
appointed as a Judge of the First Judicial District. Subsequently, as of January 1, 1978, Douglas and Lyon
Counties were designated to be the Ninth Judicial District, of which Judge McKibben thereafter remained the
presiding judge.
comprehending those facts requires review of a rather extended procedural history leading to
entry of conflicting orders by Judge Waters and Judge McKibben.
Events Leading to Judge Waters' Award
At the time Walter Herrmann died of cancer on January 20, 1973, he and his wife Fern
Herrmann owned substantial community property, including real estate in California and in
Washoe County and Lyon County, Nevada. One real property holding that figures somewhat
prominently in this litigation was a valuable ranch of 2,478 acres in Lyon County, which is
adjacent to the Carson River, and which enjoys valuable rights to use waters from said
stream.
Shortly before his death, Walter Herrmann undertook to provide for the disposition of his
share of the community properties. To that end, he caused Carson City attorney Carl
Martillaro, who had been representing him in matters related to development of the Lyon
County ranch, to prepare a last Will for his execution. The Will named Walter Herrmann's
son, respondent Ralph Herrmann, as his executor, and it designated the following
beneficiaries and disposition of property:
(1) To his widow, Fern, Herrmann left a specific bequest of any interest I may have
in all household furniture, furnishings and fixtures, jewelry, china, silverware, books,
pictures, clothing, and all other items of domestic, household or personal use, and all
automobiles which at the time of my death shall be in, about, or used in connection
with my home.
(2) To his daughters, Mary Louise Franklin, Ruth Fern Estep, and Ethel May
Colthern, Herrmann left specific bequests of $20,000.00 each.
(3) To his son, respondent Ralph Herrmann, Walter Herrmann left all of the residue
of his estate.
2

On March 7, 1973, pursuant to petition of respondent Herrmann, the decedent's Will was
duly admitted to probate by the Honorable Richard Waters of the First Judicial District,
which then encompassed Lyon County. At the same hearingMary Louise Franklin, Ruth
Fern Estep, and Ethel May Colthern being non-residentsJudge Waters appointed appellant
Flangas as their counsel pursuant to NRS 136.200.
____________________

2
Ralph Herrmann was to hold the estate residue subject to a trust, as follows. Herrmann's wife Fern was
entitled to receive income from the estate for life; to demand from the trust corpus up to, but not exceeding,
$5,000 in any one calendar year; and if Ralph Herrmann should predecease her, to have a power of appointment
and to cause distribution to be made to [the issue of Herrmann's issue] or to them, as she shall desire. Upon
Fern Herrmann's death, respondent Ralph Herrmann as trustee was to distribute the estate residue to himself.
Flangas as their counsel pursuant to NRS 136.200. Subsequently, on March 20, 1973, Judge
Waters appointed appellant Ross as co-counsel to Mr. Flangas. It appears of record that Mr.
Flangas and Mr. Ross had special qualifications, known to Judge Waters, which had
application to a matter of vital importance to the Estate of Herrmann, to-wit: the subdivision
and development of the Lyon County ranch for residential housing purposes.
Prior to his death, Walter Herrmann had undertaken extensive preparations for the
development of the Lyon County ranch. Inter alia, he had made substantial expenditures to
preserve a State grant of water rights by building a dam and placing land under irrigated
cultivation. A master plan had been prepared, contemplating that the entire ranch ultimately
would be subdivided, embracing an airport, some small lakes suitable to be stocked with
game fish, and a golf course designed by the firm of Robert Trent Jones, a nationally
renowned golf course architect. The planned first phase of this project was a subdivision
consisting of some 142 lots, on 161 acres of the Lyon County ranch. At the time of his death,
however, all of the decedent's plans and expectations were threatened by actions of officials
in Lyon County, purporting to impose a moratorium on subdivision development in the area
of the Herrmann ranch.
Appellant Flangas previously had served as District Attorney in Lyon County, and,
therefore, was well acquainted with zoning procedures in that county and also with various
public officials who were charged with application of those procedures. Indeed, the record
indicates Flangas had drafted at least one of the very ordinances on which contentions of the
parties concerning the moratorium were expected to center. Appellant Ross formerly had
served as District Attorney of Carson City, and, as such, had become well experienced in
zoning procedures and disputes. Since leaving public office, it appears Ross had concentrated
his professional and business activities principally in the areas of construction and real estate
development.
After their appointment, Flangas and Ross participated in the eventual efforts which
culminated in approval of the proposed initial subdivision of 161 acres. When negotiations
with officials and administrative proceedings ultimately proved unavailing, a mandamus
action was instituted in the First Judicial District Court, for Lyon County, to compel the
county commissioners to file the subdivision map.
It stands uncontroverted that Ross did the legal research for this lawsuit, and assisted in the
trial with respondent Herrmann's counsel, Martillaro, while Flangas was also present. It also
appears that, following a judgment by Judge Waters favoring the Herrmann Estate, Lyon
County initiated an appeal to the Supreme Court of Nevada.
favoring the Herrmann Estate, Lyon County initiated an appeal to the Supreme Court of
Nevada. Again, it is uncontroverted that counsel for the non-resident heirs aided respondent
Herrmann's counsel in defeating the county's appeal. It appears Ross developed the strategy of
seeking a hearing to compel a large bond to secure against extreme monetary damages that
arguably would result from construction delays. Ultimately, following these further court
proceedings before Judge Waters, Lyon County conceded defeat and withdrew its appeal, and
the Estate of Herrmann thus gained full approval for the initial subdivision of 161 acres.
The record is replete with evidence that the efforts of Flangas and Ross were not limited to
participation in this critical zoning litigation. Flangas and Ross were active in resolving other
important concerns of the Estate. Although respondent Herrmann now contends that their
activities had no value, they made trips to California in regard to the California probate
proceedings and tax concerns. Indeed, it even appears that, when respondent Herrmann was
preparing to account to Judge Waters for his administration of the Estate, Martillaro was
otherwise occupied, and Herrmann therefore collaborated with a Mr. Ken Poole, who was
Flangas' professional associate and employee.
Apparently, by this time, respondent Herrmann had developed some antipathy toward
Ross, even though he acknowledges having traveled to California on Estate business with
Ross on more than one occasion, and having discussed Estate business almost daily with him
and Martillaro in Carson City, and also in Las Vegas. In any case, Herrmann instructed
Martillaro that he did not want his First and Final Account and Petition for Distribution to
mention Ross, and, in the final form filed with court, the petition therefore referred only to
Mr. Flangas and not to co-counsel Ross. Nonetheless, the petition, which Herrmann verified
under oath, referred to the Lyon County mandamus action that Ross had successfully
prosecuted with Martillaro, and went on to allege: Peter L. Flangas has performed ordinary
services for the absent heirs, and has participated in matters of substantial benefit to the
estate, and he is entitled to such compensation as the court finds proper. (Emphasis added.)
The petition evinced a clear understanding that all fees for services performed by counsel for
the non-resident heirs should be paid out of the general estate, and not by the non-resident
heirs; for it went on to pray for an order: Directing the Executor to pay all outstanding costs
of administration, including attorney's fees of Carl F. Martillaro, and Peter L. Flangas.
Herrmann also prayed for an order: "Directing the Executor to pay the cash legacies of
$20,000.00 each to Mary Louise Franklin, Ruth Fern Estep, and Ethel May Coulthern."
Directing the Executor to pay the cash legacies of $20,000.00 each to Mary Louise Franklin,
Ruth Fern Estep, and Ethel May Coulthern. Thus, it is manifest from Herrmann's verified
petition that he and his attorney knew and conceded that counsel for the non-resident heirs
had not only performed routine services for the three non-resident heirs, but also
extraordinary services for the estate. Further, it is clear that Herrmann and Martillaro knew all
fees would be paid from the general estate, which had been benefited, and of which
respondent Herrmann was to be the sole distributee. In sum, the petition recognized quite
explicitly that the compensation of counsel for the non-resident heirs (1) should be
commensurate with their substantial efforts, but (2) should not be paid from the modest
specific bequests to the non-resident heirs, to which adequate fees might necessarily be
disproportionate and would be largely unrelated.
3

Upon receipt of respondent Herrmann's First and Final Account and Petition for
Distribution, Flangas advised his non-resident clients that the executor did not contemplate
seeking to have Judge Waters assess any attorneys' fees against their bequeststhat he
therefore expected their entire bequests would be ordered distributed to themand the
decedent's daughters did not object, did not attend the distribution hearing, and evidently
were content.
4
On November 29, 1973, Herrmann and his counsel, Martillaro, appeared in
court before Judge Waters in Lyon County, for the purpose of having their aforementioned
petition heard and having issues raised thereby resolved.

____________________

3
Indeed, it appears that from the time the probate commenced these had been the expectations of all
concerned. Flangas and Ross not only regularly performed services primarily intended to benefit the residuary
estate. In addition, the record contains testimony from Flangas that this was the understanding he reached with
Martillaro before he consented to allow his appointment as attorney for the non-resident heirs. Correspondence
in the record confirms that, soon after his appointment, Flangas notified the non-resident heirs of his
understanding that the fees for services supplied by him would not be assessed to such heirs.

4
Of course, the lack of concern shown by the non-resident legatees was consistent with their disinterested
circumstances. It is clear that under Walter Herrmann's Will, his daughters had no substantial legal or equitable
interest in the residue of the Estate, which was to be distributed to respondent Ralph Herrmann. This is true,
even considering the contingency that Ralph Herrmann might possibly predecease his elderly mother, Fern. Even
in such event, Fern Herrmann would not be burdened by any legal or equitable obligation to exercise, upon her
own death, her power of appointment by Will in favor of any one of the daughters. Assuming Fern Herrmann
survived Ralph, and also assuming one or more daughters survived Fern, Fern would still be free to designate
other recipients of the residue from a class consisting not only of the daughters, but of their issue and of Ralph
Herrmann's issue. In short, as to the residue, Walter Herrmann's daughters had been bequeathed no direct legal
or equitable interest, and their prospects of succeeding to any of the residue, based on the power of appointment
contingently granted to their mother, were speculative and remote. See n. 1, supra.
On November 29, 1973, Herrmann and his counsel, Martillaro, appeared in court before
Judge Waters in Lyon County, for the purpose of having their aforementioned petition heard
and having issues raised thereby resolved. It appears that, either at the outset of or during the
hearing, Martillaro submitted to Judge Waters a proposed order, which he had prepared
earlier for the Judge's consideration, leaving blanks for the Judge to make entries when he
decided how much to award to the executor and the attorneys. In accord with Herrmann's
desires, before coming to court Martillaro had revised the proposed order, so that it would
refer only to an attorneyrather than to attorneysfor the non-resident heirs. This,
evidently, constituted an effort by respondent Herrmann to slight Ross. The court's minutes
reflect, however, that both Flangas and Ross appeared in court and were recognized by the
court as attorneys for the non-resident heirs. The record establishes that Judge Waters
complimented all counsel on their performance. Additionally, the minutes reflect that Judge
Waters took judicial notice that the appeal from his ruling in the zoning action had been
successfully concluded, as had other litigation, and he expressly declared that the attorneys
for the non-resident heirs had performed both ordinary and extraordinary services.
Judge Waters quite evidently gave some reflection to the amount of fees earned by Flangas
and Ross; for in completing the proposed order submitted to him by respondent Herrmann's
counsel, Judge Waters first wrote in the figure of $65,000 and then changed that sum to
$70,000. He also added an s to the word attorney in the portion of the proposed order that
related to fees for the non-resident heirs' counsel. He initialed these changes, signed the order,
and announced his determinations. As articulated through the completed form of the order
which had been proposed by Martillaro, Judge Waters ruled: The Executor shall pay from
the assets of the Estate, and not as a charge against the non-resident heirs, one fee in the sum
of $70,000.00 to the attorneys for the absent heirs, for ordinary and extraordinary services
performed for the benefit of the Estate and the absent heirs, plus the sum of $1,500.00
advanced for expenses. (Emphasis added.)
5

No objections whatever were noted by respondent Herrmann
____________________

5
As this court has heretofore mentioned in deciding a related matter, we think these facts should be noted and
emphasized, inasmuch as numerous stories have been generated in the news media, which have unfairly
compared the amount of the fees Judge Waters awarded to Flangas and Ross with specific bequests the decedent
had made by Will to the non-resident heirs, and which have incorrectly suggested that the non-resident heirs'
bequests were diminished thereby. See In re Ross, 99 Nev. 1, 656 P.2d 832 (1983); 99 Nev. 657, 668 P.2d 1089
(1983) (on rehearing).
or his counsel, Martillaro. It appears that, at the conclusion of the hearing, the formal order as
completed and executed by Judge Waters was thereupon delivered to the court clerk, who
file-stamped it, and who also file-stamped and returned conformed copies of the final order to
respondent Herrmann's counsel. Following the hearing, respondent Herrmann and all counsel
left the courthouse and proceeded down the main street of Yerington to a restaurant, where
Herrmann for the first time made it known that he was displeased by Judge Waters' order.
Within days thereafter, on December 10, 1973, Judge Waters died; a successor was appointed
and took office January 2, 1974.
Events Between Judge Waters' Award and the
Motion to Alter or Amend
When Herrmann expressed discontent over Judge Waters' award to Flangas and Ross, it
does not appear the attorneys were intractable. The record reflects that after negotiations,
Flangas executed and delivered to respondent's attorney, Martillaro, a letter reciting as
follows:
December 5, 1973
Carl Martillaro
Attorney at Law
308 North Curry
Carson City, Nevada
Re: Herrmann Estate
Dear Carl:
This is to inform you that the absent heir attorney fee in the above entitled estate
will be discounted to the sum of $25,000.00 if paid on or before the 20th day of
December, 1973.
April 1974 P.L.F.
Sincerely,
Peter L. Flangas
Peter L. Flangas
As this document shows, Flangas initially agreed to discount the awarded fee to $25,000, if it
was paid on or before December 20, 1973. Later, as a result of further negotiations, Flangas
amended the letter agreement in hand-writing, by striking the words December and 1973,
substituting the words April and 1974, and initialing the changes. (The handwritten
entries are reflected in italics, above.) Then, believing the amended letter to be worthy of
official memorialization, Martillaro or Herrmann caused it to be filed in the Herrmann Estate
proceeding on December 26, 1973. It is on record there, file-stamped December 26, 1973,
by the Deputy Clerk, Kathryn Sheehy.
file-stamped December 26, 1973, by the Deputy Clerk, Kathryn Sheehy.
April 20, 1974, came and went, and Herrmann failed to pay Flangas and Ross $25,000 or,
indeed, anything at all.
6
He failed to pay other Estate creditors. Indeed, although respondent
Herrmann found sufficient liquid assets to finance sprees of drinking and high-stakes
gambling, he paid his sisters nothing on their specific bequests.
7

Even after Mr. Herrmann failed to pay Flangas the discounted sum of $25,000 by the
negotiated deadline of April 20, 1974, Flangas and Ross did not press him aggressively on
their own behalf. It appears, however, that the decedent's daughters pressed Flangas both by
telephone and by letter to expedite payment of their bequests.
8
Informal demands on
Herrmann and his attorney proved futile. Accordingly, on May 16, 1974, Flangas filed a
petition which recited Herrmann's failure to pay the special bequests to the sisters, and
Flangas asked the court to protect his clients by an order directing Herrmann to show cause
why he should not be removed, or why sanctions should not be imposed. At this point in
time, Flangas requested no relief whatever on behalf of himself and Ross.
9
Judge Waters'
successor entered an order to show cause, which Flangas had submitted to him, directing
Herrmann to appear in court on July 3, 1974, and to explain why sanctions should not be
imposed.

____________________

6
Over 11 months later, on March 26, 1975, during proceedings to be mentioned later, Herrmann's attorney
attempted to suggest that Flangas' letter memorialized a binding agreement of compromise, even though
Herrmann had not fulfilled its terms.

7
The record contains substantial evidence of Herrmann's financial irresponsibility in these regards. His
irresponsibility also is illustrated by a reported Nevada Supreme Court opinion entitled Sea Air Support, Inc. v.
Herrmann, 96 Nev. 574, 613 P.2d 413 (1980). That case reviews Herrmann's efforts to renege on the payment of
several large checks, which he had cashed at the Ormsby House Hotel and Casino, and the proceeds of which he
had gambled away.

8
One handwritten letter in the record recites as follows:
February 12, 1974
Mr. Flangas,
I am writing you in regard to the estate of W.E. Herrmann. Please send me a letter showing the total
value of my father's estate.
I would also like you to let me know why the money from the will has not been paid to the heirs.
Thank you,
Mrs. Mary Franklin
Rt. 1 Box 114
Vichy, Mo. 65580
Further correspondence in the record substantiates that Walter Herrmann's other daughters also expressed
concern to Flangas regarding delay in payment of their bequests.

9
These facts warrant special attention, in view of unfairly publicized intimations that Flangas and Ross have
been avaricious and have placed their interests ahead of their clients. The record clearly does not support such
comments.
Judge Waters' successor entered an order to show cause, which Flangas had submitted to
him, directing Herrmann to appear in court on July 3, 1974, and to explain why sanctions
should not be imposed. The record indicates that when Herrmann appeared, he did not
contend that he was ignorant of Judge Waters' order, or that Judge Waters' order was
otherwise unenforceable. Rather, he sought to excuse his non-performance by claiming he
lacked available cash. Thereupon, Judge Waters' successor granted Flangas and Ross leave to
file another petition after six months if Herrmann remained in default of his duties. Herrmann
did remain in default, failing either to pay the cash legacies to the non-resident heirs, or to pay
the fees and cost of administration encompassed by Judge Waters' order. Accordingly, when
six months had elapsed, Flangas and Ross filed a petition to compel distribution and pay fees,
on February 12, 1975. It was out of these proceedings, initiated by Flangas and Ross, that
attempts to impeach Judge Waters' judgment in their favor eventually evolved.
On February 12, 1975, Judge Waters' successor entered an order directing respondent
Herrmann to appear in court on February 26, 1975, to show cause why he should not
forthwith obey that certain Order of this Court entered November 29, 1973, by distributing
the assets of the estate of Walter E. Herrmann, deceased to the legatees and paying the fees
ordered. The matter at issue, i.e. how to rectify Herrmann's defaults under the terms of Judge
Waters' order, was not resolved on that date, however. It apparently was established on
February 26 that, in addition to failing to pay the special bequests, fees and other debts,
Herrmann was remiss in regard to various matters, such as filing accounts. Therefore, Judge
Waters' successor ordered respondent Herrmann to render an accounting to the court on
March 26, 1975, together with a liquidation plan as an addendum. The successor judge also
continued until March 26 the hearing on the petition of Flangas and Ross to compel
distribution and pay fees.
When Herrmann and his counsel appeared on March 26, they attempted to suggest that
Judge Waters' award of fees had been compromised by agreement down to the sum of
$25,000. Somewhat inconsistently, they also attempted to re-shape the hearing from one
initiated to consider Herrmann's defaults into one challenging the validity of Judge Waters'
award of fees. Judge Waters' successor repeatedly repulsed such efforts, stating inter alia:
The Executor could have appealed Judge Waters' determination of fees back in 1973. The
appeal time has run, and you are attempting to, in effect, go behind a judgment, Mr.
Martillaro. Later, while examining Mr. Flangas as a witness, Mr. Martillaro once more
attempted to question the value of his services.
value of his services. Again, Judge Waters' successor stated: The Trial Court has done
everything that it was required to do through Judge Waters, that is in settling the issues. From
there you would go to the Supreme Court. This court has acted.
Subsequently, on April 11, 1975, Martillaro filed a document entitled Motion to Amend
or Alter the Order of November 29, 1973. By its terms, this motion was not filed on behalf
of Ralph Herrmann, but instead was purportedly filed on behalf of Ruth Fern Estep and Fern
Herrmann. Notably, however, no substitution of attorneys designating Martillaro as counsel
for Estep or the other non-resident heirs, in place of Flangas and Ross, was ever filedeven
though NRS 155.140 explicitly imposed on Flangas and Ross continuing status as counsel for
the non-resident heirs.
The record does not reveal why Mr. Martillaro purported to proceed on behalf of persons
other than his own client, Ralph Herrmann. Whatever the reason may have been, his motion
invoked the names of surrogate movants, and it was but sparsely supported by legal citations.
The attached brief of Points and Authorities consisted only of references to NRCP Rule
52(b); NRAP Rule 4; In Re Hansen's Estate, 50 Nev. 16, 248 P. 891 (1926); and Bowman v.
Bowman, 27 Nev. 413, 76 P. 634 (1904). Later in this opinion, we will critique such
authoritieswhich are distinctly not controlling. Reply points and authorities were duly
filed on behalf of Flangas and Ross, citing cases we will also review later.
Events After the Motion to Alter or Amend, Culminating in the Disqualification of the
Successor Judge and in Judge McKibben's Assumption of Jurisdiction
The successor judge did nothing reflected by the official court file for some 4 1/2 months.
10
Then, on August 27, 1975, he entered a Memorandum of Decision and Orders, which
declared:
The following matters, but not limited thereto, should appropriately be reviewed
and, where and if applicable, be reconsidered: (1) All attorneys fees, in light of the time
and hours, travel, expenses, manners in which the Estate may have benefitted [sic]
from the services rendered, and what ordinary and extraordinary services might
have been rendered by respective counsel; {2) the Executors [sic] fee in light of his
services rendered in detail, with reference to any ordinary and extraordinary
services rendered; {3) the matter of the Federal Estate Taxes; {4) the matter of the
satisfaction of the legacies; {5) the status of the several law suits pending; {6) the
payment of the Appraisers, and any other expenses of the Estate, perhaps not
herein specifically referred to; {7) the status and disposition of the Testamentary
Trust; and {S) the status of any credits or debits or liabilities of the Estate.
____________________

10
However, some time during or soon after this period, as has been elsewhere reviewed, the successor judge
formulated certain unfounded suspicions regarding Judge Waters and counsel serving in the Herrmann Estate,
which the successor judge related privately to the President of the State Bar Association. As a result, the State
Bar retained an investigator, one James Sims, whose activities the successor judge privately channeled. See In re
Ross, supra, n. 5.
may have benefitted [sic] from the services rendered, and what ordinary and
extraordinary services might have been rendered by respective counsel; (2) the
Executors [sic] fee in light of his services rendered in detail, with reference to any
ordinary and extraordinary services rendered; (3) the matter of the Federal Estate Taxes;
(4) the matter of the satisfaction of the legacies; (5) the status of the several law suits
pending; (6) the payment of the Appraisers, and any other expenses of the Estate,
perhaps not herein specifically referred to; (7) the status and disposition of the
Testamentary Trust; and (8) the status of any credits or debits or liabilities of the Estate.
The document then concluded with a purported order, which recited, inter alia:
That all counsel and the Executor will file with the Clerk of the Court within Twenty
(20) days from the date hereof separate Petitions for Compensation and Cost
Reimbursement. In addition to setting forth the amount which the Court is requested to
allow, the Petition(s) shall contain by attachment or otherwise, specific and detailed
information supporting the entitlement for such amount, including time and hours,
dates of rendition of services, the nature of services rendered, results achieved which
have directly benefitted [sic] the Estate, (or clientsee NRS 150.060(3)), and such
other information considered to be relevant and material to the question of
compensation and cost reimbursement.
Flangas and Ross challenged such order by a petition to this court, seeking a writ of
prohibition, which we denied on the ground that our intervention by way of extraordinary writ
was unwarranted. A denial so grounded is never treated as an adjudication on the merits, but
constitutes merely a determination that propriety of the questioned action can await review by
appeal, in the ordinary course. However, the successor judge treated our order as one to be
implemented by even broader orders of his own, and on December 17, 1975, he proceeded to
file a document entitled Orders Incidental to Supreme Court's Denial of Writ of
Prohibition. Therein, inter alia, he directed as follows:
It Is Hereby Ordered that Executor's counsel Carl F. Martillaro, Esq., and co-counsel for
absent heirs John Tom Ross, Esq., and Peter L. Flangas, Esq., file with the Clerk of the
Court within thirty (30) days from the date hereof separate petitions for compensation
and cost reimbursement, the same to be verified. In addition to setting forth the
amount which the Court is requested to allow in each instance {including, if
applicable, an allegation of the amount of any statutory fees or compensation) the
Petition shall also contain by attachment or otherwise specific and detailed
information supporting the entitlement to such amount, including reference to time
and hours, dates of rendition of services, the nature and extent of such services
rendered, any claimed extraordinary services, the complicated nature of the work
required, and the benefits derived by the estate or beneficiary{s), as applicable;
shall make specific reference to results achieved which have directly benefited the
estate {or client) and shall further set forth such other information considered to be
relevant and material to the application or petition for fees or commissions and cost
reimbursement.
forth the amount which the Court is requested to allow in each instance (including, if
applicable, an allegation of the amount of any statutory fees or compensation) the
Petition shall also contain by attachment or otherwise specific and detailed information
supporting the entitlement to such amount, including reference to time and hours, dates
of rendition of services, the nature and extent of such services rendered, any claimed
extraordinary services, the complicated nature of the work required, and the benefits
derived by the estate or beneficiary(s), as applicable; shall make specific reference to
results achieved which have directly benefited the estate (or client) and shall further set
forth such other information considered to be relevant and material to the application or
petition for fees or commissions and cost reimbursement.
It should be noted, inter alia, that the two ex parte proclamations just mentioned
apparently undertook to sweep aside Judge Waters' order as to fees entirely, without either
notice or hearing, and to direct Flangas and Ross to file a highly detailed, verified petition for
an entirely new award. This Flangas and Ross have consistently declined to do, contending
instead that the successor judge lacked jurisdiction to impose such demands upon them. On
February 17, 1976, they filed a Response of Attorneys for Absent Heirs, wherein they
advised the successor judge that they had not maintained time records, and that they therefore
had gone back through their files attempting to reconstruct the general time spent in
working on this estate. Because no time records had been maintained, work was indicated in
terms of days on which they believed they had worked, rather than hours of work. They said
they would assume an average of eight hours per day. They noted that, based on this
reconstruction, they believed the time justified $210,000 in fees, if $75 were adopted as a
reasonable hourly rate. They did not, however, ask the court to award them any fees based on
this reconstruction. Rather, they contended the court was without jurisdiction to alter their
fees of $70,000 and urged that the fees as previously awarded should be acknowledged,
affirmed and ordered.
11

On April 19, 1976, the successor judge responded with a Memorandum and Orders
Appointing Special Master, wherein he noted dissatisfaction with the responses of Flangas
and Ross, and went on to name a Reno attorney as a "special master," ostensibly vesting
said attorney with wide-ranging inquisitorial powers.
____________________

11
By a brief of legal Points and Authorities filed March 12, 1976, Flangas and Ross further demonstrated
that they were not petitioning for a new award of fees; that by mentioning $210,000 as the arguable value of
their services, they were not seeking such an award; and that their legal position was that the successor judge had
no jurisdiction to reconsider their prior award of $70,000.
and Ross, and went on to name a Reno attorney as a special master, ostensibly vesting said
attorney with wide-ranging inquisitorial powers. In addition to instructing the master to
inquire into all of the matters mentioned in his prior ex parte orders, the successor judge even
directed a probe into other matters such as the decedent's domiciliary intent. Then, on June
28, 1976, Judge Waters' successor entered another ex parte order, purporting to remove
Flangas and Ross without notice, and to appoint yet another Reno attorney to represent the
non-resident heirs. This order recited in part:
Thomas R. C. Wilson III, Esq., is ordered to proceed in this matter in terms of
preparation for the special master's proceedings with due diligence and to forthwith
contact and be in touch with all said absent heirs with a view to adequately protecting
the interests of said absent heirs in all respects in these and any related proceedings.
Although preparations for a hearing before the special master consumed several months,
only their culmination is important to understanding the factual background of this appeal.
After Ross and Flangas took the deposition of James Sims on November 29, 1976, the
successor judge yielded to demands by Flangas and Ross, and disqualified himself on
December 6, 1976. His order of withdrawal began by noting that he had presided in a
substantial number of various and sundry criminal, as well as civil proceedings, and that he
had presided in a manner considered to be with the utmost impartiality. He went on to
emphasize that he was disqualifying himself voluntarily, in order to allow the attorneys and
executor to have the feeling that they were, without question, having and enjoying a full and
fair trial. He concluded by stating:
It Is Hereby Ordered that . . . , District Judge, does hereby remove himself from the
above-entitled proceeding for the reasons above-stated.
It Is Hereby Further Ordered that the Honorable Peter I. Breen, District Judge of
Department 7 of the Second Judicial District Court of the State of Nevada, in and for
the County of Washoe, is hereby appointed to preside in the above-entitled proceedings
in the place and stead of the undersigned Judge.
12

Upon challenge for bias, Judge Breen also ultimately capitulated and disqualified himself;
however, in the meantime, Judge Breen had discharged the special master, indicating that
____________________

12
Among other things, the successor judge's order was contrary to Nev. Const., art. 6, 19, and NRS 3.040,
which contemplate that only the Chief Justice may assign a judge to sit in a case outside his or her he
intended to preside personally over district.
he intended to preside personally over the inquiry ordered by Judge Waters' successor.
By the time Judge Breen was forced off the case, Judge Waters' successor had been named
to a seat on another court, and had himself been succeeded on the bench of the First Judicial
District by Judge McKibben. Upon Judge Breen's disqualification, Judge McKibben therefore
assumed jurisdiction of the case.
The Pre-trial Conference and Trial Before Judge McKibben
On November 22, 1977, Judge McKibben convened a pre-trial conference to discuss what
issues should be heard, and how they should be heard, in order to resolve contentions
previously generated by and before Judge Waters' successor. Flangas appeared with John
Stone as his counsel; Ross, with Drake DeLanoy. The executor, Ralph Herrmann, appeared
with Casey Vlautin, who had been substituted as his attorney in place of Martillaro. Thomas
R. C. Wilson, III, appeared as the court-designated attorney for absent heirs Estep, Franklin
and Coulthern, who did not personally attend. (The absent heirs already had been paid their
special legacies.) Fern Herrmann did not appear, either personally or through counsel.
As the conference proceeded, it was established that, despite elaborate pre-trial
investigation, Mr. Vlautin and Mr. Wilson had found no credible evidence to justify the
successor judge's suspicions that Walter Herrmann had been induced to execute his probated
last Will as a result of undue influence applied through a corrupt conspiracy. In fact, Mr.
Wilson acknowledged, it would not even have been in the interest of the non-resident heirs to
contend such a thing. They were pleased with the probated Will. As Mr. Wilson observed:
The prior Will would not have given the absent heirs anything.
Furthermore, it was admitted that there had been no justification for the successor judge's
fears that Walter Herrmann had not truly been a domiciliary of Nevada, but of California, and
that the counsel initially serving in the Estate of Herrmann had corruptly conspired to assert a
fraudulent domicile here. As Mr. Vlautin summed up this issue:
I don't think anybody really had a problem with the domicile of the decedent with the
exception of [the successor judge]. The absent heirs, apparently, don't. The Executor
doesn't. There was real property held by the Estate in both States. Therefore, probate
had to occur in both States. . . .
Various other issues raised by the successor judge likewise were eliminated from concern.
The executor, Herrmann, removed the fees Judge Waters had awarded to him from
contention, by waiving them.
waiving them. Again, the issue concerning the value of the executor's services, which the
successor judge had raised sua sponte, had little practical consequence; for the Will
constituted Ralph Herrmann the sole trustee and recipient of the trust corpus.
Thus, issues left for trial ultimately resolved principally to those related to attorneys' fees.
Even though Ralph Herrmann was in accord with Martillaro as to the amount of his fees,
Judge McKibben decided to go into this question anyhow.
13
The fees of Flangas and Ross
were challenged by Vlautin and Wilson as unreasonable, and Judge McKibben identified
them to be subjects of the trial. In doing so, Judge McKibben explicitly recognized that
serious legal doubts existed concerning his own jurisdiction to proceed, stating:
I am sure at some point in time, depending upon what the Ruling of this Court would be
after a Hearing, the Supreme Court will ultimately review this question including the
question of whether or not a District Judge has the right to review an earlier Order of
another District Judge with respect to the payment of fees. I don't suggest that you
haven't reserved your rights to raise that at any point in time, but I would suggest that I
do intend to go ahead with the Hearing . . .
Before concluding the pre-trial conference, Judge McKibben expressed uncertainty about
what kind of a proceeding the successor judge's orders had placed before him. It's a different
kind of proceeding, he said. There's no doubt about it. This is not the usual type of
adversary proceeding. In connection with these comments, Judge McKibben decided the
burden of proof should be on Mr. Vlautin, as counsel for the Estate:
I am going to expect the Estate to proceed first. The way I view this case, there is an
existing Order of Judge Waters setting fees. That Order as far as my mind is concerned
right now is a valid Order until it's established that it is not a valid Order.
. . . I do think as long as there is an Order that there must be some presumption that
the Judge knew what he was doing at the time he entered the Order. There should be
some obligation on somebody to come in and show that is not proper.
____________________

13
The significant consequence of requiring Martillaro to justify his fees, even though there existed no dispute
concerning them, was to place Martillaro in a position adversary to Flangas and Ross on the subject of whose
services really had most benefited the estate.
This, then, was the basis on which Judge McKibben explicitly ruled that trial should proceed:
the executor, Herrmann, would be permitted to challenge Judge Waters' order of fees to
Flangas and Ross; however, the burden would be upon him to show that Judge Waters' order
was insupportable. Whether the executor would be obliged to carry that burden by clear and
convincing evidence or by a preponderance of evidence was not then clarified. Indeed,
even during trial, Judge McKibben continued to puzzle openly over what standard should be
applied in deciding whether or not the executor had carried his burden of proof in this
admittedly different kind of proceeding.
The trial commenced on February 13, 1978. Upon opening court, Judge McKibben
announced that the trial was proceeding under the order of the successor judge, pursuant to a
Motion to Amend Order dated April 11, 1975, challenging the order and decree of
distribution entered November 19 [sic], 1973, by the late Judge Waters. Under Judge
McKibben's announced interpretation of that motion, in which the parties present and their
counsel all acquiesced, the executor, Ralph Herrmann, was recognized to be the moving
party in this matter. Accordingly, Judge McKibben directed Mr. Vlautin, Ralph Herrmann's
counsel, to proceed.
14

Although Vlautin and Wilson attempted to disprove it, at trial Flangas and Ross adduced
considerable evidence to establish that Judge Waters' award of fees had been supportable. For
example, DR 2-106 of the A.B.A. Code of Professional Responsibility, which Supreme Court
Rule 203 adopted by reference in 1971, recites that one factor to be considered, in
determining a just fee, is the amount involved and the results obtained. Flangas and Ross
produced two admittedly well qualified real estate appraisers, who testified that the zoning
change effected through the attorneys' efforts had dramatically enhanced the value of the
Lyon County ranch. Indeed, even an appraiser hired by Wilson acknowledged that the ranch's
value had been substantially increased; however, utilizing a different appraisal technique,
Wilson's expert contended for a smaller increment in value. In making his ruling, of course,
Judge Waters had been entitled to take judicial notice of the zoning litigation, and of its
impact on the financial condition of the Herrmann Estate as known to him. See, e.g., In Re
Pailhe's Estate, 251 P.2d 76, 79 {Cal.
____________________

14
In addition to the movant, Ralph Herrmann, the other parties who appeared were: the non-resident heirs,
i.e., Mary Louise Franklin, Ruth Fern Estep, and Ethel May Coulthern, through counsel Thomas R. C. Wilson
III; John Tom Ross personally and through counsel Drake DeLanoy; Peter Flangas personally and through
counsel William Marchiando. Carl Martillaro appeared later as a witness in regard to his fees. Fern Herrmann
was never present, either personally or through counsel, and she had no pleadings before the court.
litigation, and of its impact on the financial condition of the Herrmann Estate as known to
him. See, e.g., In Re Pailhe's Estate, 251 P.2d 76, 79 (Cal. Dist.Ct.App. 1952). And, as the
finder of fact, Judge Waters had been free to draw any rational inferences, including those
mentioned by the experts who testified for Flangas and Ross. Thus, in short, the trial before
Judge McKibben showed that it had been justified for Judge Waters to determine that,
because of the amount involved and the results obtained, Flangas and Ross should receive a
larger fee than might otherwise have been warranted solely on the basis of time expended.
In arriving at a just fee, DR 2-106 also states that the fee customarily charged in the
locality for similar legal services should be considered. Flangas and Ross introduced the
testimony of two respected local attorneys, one of whom is now a district judge, evidencing
that Judge Waters' award was consistent with then prevailing custom in the area. DR 2-106
further recognizes that an attorney's special experience or skill should be taken into account;
and the record shows that, at least for the unique concerns of the Herrmann Estate, Flangas
and Ross possessed special credentials which Judge Waters properly could and evidently did
consider. Additionally, according to DR 2-106, other factorse.g. the prospect of uncertain
or delayed payment, and the fact that their employment was not for an established and
constant clientwere proper for Judge Waters to weigh in their favor when deciding what fee
to award Flangas and Ross.
Moreover, Nevada law specifically provides that a judge, in making an award to attorneys
for non-resident heirs, may consider the value of their services to the general estate, and may
award fees from the general estate, so that the legacies to the absent heirs are not affected. See
NRS 150.060. This Judge Waters had done, at the express request of respondent Herrmann.
In sum, the trial established that substantial evidence was available to justify Judge Waters'
award, but Judge McKibben nevertheless endeavored to award Flangas and Ross only $6,000,
instead of $70,000 as previously ordered by Judge Waters. In reaching this result, Judge
McKibben's approach to weighing and analyzing the evidence directly contradicted the
central principles on which he had directed trial to proceed. In the order setting forth his own
ruling, filed March 17, 1978, Judge McKibben for the first time announced the view that
Judge Waters' order was entitled to no recognition, and that Judge McKibben was entirely
free to consider the matter de novo. As Judge McKibben articulated his revised viewpoint:
the burden is on the attorney to prove, by preponderance of the evidence, both the
services rendered, and the reasonable value thereof.
the burden is on the attorney to prove, by preponderance of the evidence, both the
services rendered, and the reasonable value thereof. See Kimball v. Pub. Ut. Dis. #1 of
Douglas Cty., 64 Wash2d 252, 391 P2d 205 (1964). The court therefore believes that it
was incumbent upon both the attorneys for the absent heirs [Flangas and Ross] and the
attorney for the Executor [Martillaro] to establish by a preponderance of the evidence to
this Court the reasonableness of the value of the services rendered to the estate.
15

Obviously, Judge McKibben's belated switch in perspective was an important event in the
history of this litigation. It not only may have undercut the manner in which appellants
presented their case, but also drastically altered the ways in which evidence actually adduced
could be viewed. If Judge McKibben had truly possessed jurisdiction to reconsider the issue
of fees, it would make a great deal of difference whether he properly could consider that issue
de novo, rather than according to Judge Waters' decision a presumption of validity. As it
occurs, however, we need not address such concerns because, in the facts of this case, we
believe Judge McKibben had no jurisdiction whatever to interfere with, or to ignore, Judge
Waters' order.
THE APPLICABLE LAW
1. Some serious issues in this case that need not be decided, but that should be noted,
concern whether the so-called Motion to Amend or Alter the Order of November 29, 1973,
which was filed by Ralph Herrmann's counsel on April 11, 1975, was even judicially
cognizable in form. Among these are questions arising because, although the motion
purported to be made pursuant to NRCP Rule 52(b), it sought relief outside the normal
purview of that rule;
16
and because Ralph Herrmann's counsel tendered the ostensible
motion in the names of Fern Herrmann and Ruth Estep Herrmann, whom he apparently
did not represent then or thereafter.
____________________

15
It would seem that based on examination of the single Washington case he cited, Judge McKibben had
changed his mindafter the parties had presented their respective cases at trialabout how the evidence should
be sifted and weighed. It is clear, however, that the Washington decision cited by Judge McKibben does not
support his revised view of his power, but instead is totally inapposite. The cited decision considers an attorney's
burden of proof in the first instance; it affords no authority for Judge McKibben's action in the instant case,
which involves the attempted abrogation of a final order rendered by a predecessor judge.

16
As stated in 9 Wright & Miller, Federal Practice and Procedure 722, 2582, The primary purpose of Rule
52(b) is to enable the appellate court to obtain a correct understanding of the factual issues determined by the
trial court as a basis for the conclusions of law and judgment entered
of Fern Herrmann and Ruth Estep Herrmann, whom he apparently did not represent then or
thereafter.
For purposes of this opinion, we will accept the motion as Ralph Herrmann's, inasmuch
as Judge McKibben ultimately did so, and inasmuch as Ralph Herrmann appears to have been
the only party who eventually laid claim to it. We also will bypass other deficiencies in the
motion itself, as alluded to above. Nonetheless, we do not wish to be understood as
endorsing the document as an example of acceptable motion practice, and we especially do
not wish to suggest that NRCP Rule 52(b) is the proper rule to invoke when seeking a re-trial
or a re-hearing.
2. Assuming, then, that the motion filed on April 11, 1975, was Ralph Herrmann's, that
it was in adequate form, and that the relief it sought was available under NRCP 52(b), the
question remains: Was said motion timely filed?
NRS 155.190 explicitly directs that an appeal may be taken within 30 days after its entry
from any order or decree mentioned therein, including any [d]irecting or allowing the
payment of a debt, claim, legacy or attorney's fee. (Emphasis added.) And this court has
specifically held that unless appeal is taken within 30 days, and order of the kinds mentioned
in NRS 155.190 is not thereafter subject to attack. Luria v. Zucker, 87 Nev. 471, 488 P.2d
1159 (1971). Thus, it appears obvious from the probate code itself that the time for
respondent Herrmann to challenge Judge Waters' order, either by appeal or otherwise, had
expired many months before the motion was filed.
Nonetheless, respondent Herrmann has adopted the stance that the words within 30 days
after its entry in NRS 155.190, which governs probate proceedings, should be construed in
conformity with NRAP 4(a) which governs appeals in ordinary civil actions. No legal
authorities or policy arguments supporting this viewpoint have ever been tendered. However,
Herrmann's present counsel assumes that Herrmann had 30 days after "written notice of
the entry" to appeal from Waters' order, in accord with NRAP 4{a), and had 10 days from
"written notice of the entry" in which to file a motion to amend or alter Judge Waters'
order, in accord with NRCP 52{b).
____________________
thereon. A party who failed to prove his strongest case is not entitled to a second opportunity by moving to
amend a finding of fact and a conclusion of law.
The purpose of 52(b) is to clarify matters for the appellate court's better understanding of the basis of the
decision of the trial court. . . . The Rule permits the Court in its discretion to amend' findings of fact or to make
additional findings', thus amplifying and expanding the facts. The Rule does not provide for a reversal of the
judgment or for a denial of the facts as found, which is what the plaintiff requests at present. Matyas v. Feddish,
4 F.R.D. 385, 386 (M.D. Pa. 1945).
Rule 52(b) merely provides a method for amplifying and expanding the lower court's findings, and is not
intended as a vehicle for securing a re-hearing on the merits. Noice v. Jorgensen, 378 P.2d 834 (Colo. 1963);
Minneapolis-Honeywell Reg. Co. v. Midwestern Inst., Inc., 188 F.Supp. 248 (N.D. Ill. 1960).
mann's present counsel assumes that Herrmann had 30 days after written notice of the entry
to appeal from Waters' order, in accord with NRAP 4(a), and had 10 days from written
notice of the entry in which to file a motion to amend or alter Judge Waters' order, in accord
with NRCP 52(b). In essence, then, it is respondent Herrmann's position that, because Flangas
and Ross did not serve his former counsel with an express, formal written notice of the order
Judge Waters entered on November 29, 1973which order Judge Waters executed in open
court, on a form Herrmann had personally helped to prepare, and with Herrmann present at
the time of its entryHerrmann's time to challenge the order never began to run. This stance
is totally untenable.
[Headnotes 1, 2]
In the case of In re Estate of Riddle, 99 Nev. 632, 634, 668 P.2d 290 (1983), this court
explicitly rejected identical contentions that the notice-of-entry provisions of NRCP and
NRAP should be superimposed on NRS 155.190, stating:
This is not a situation where there is a conflict between a general rule of this court
and a general statute, each of which clearly applies to an appeal. See e.g., State v.
Connery, 99 Nev. 342, 661 P.2d 1298 (1983). Rather, the legislature has determined
that certain probate orders are appealable so long as the appeal is taken within thirty
days after entry thereof. . . .
Moreover, even if notice-of-entry provisions could be engrafted upon NRS 155.190, the
belated filing of respondent Herrmann's purported motion could not be justified, for reasons
hereinafter set forth.
3. It should be noted that in many jurisdictions, including the federal court system, written
notice of entry is not required to start time running against the right to appeal or the right
otherwise to attack a final order. In adapting the federal rules of procedure to Nevada
practice, however, NRAP 4(a) was revised to preserve the existing Nevada law that, in a civil
action, the 30-day period within which an appeal may be taken runs from the date of written
notice of the entry of the judgment or order appealed from. See Advisory Committee Note,
NRAP 4. Our research has not revealed any Nevada authorities that aid us in construing
NRAP 4(a) in the factual circumstances of this case.
17
Hence, for assistance in assessing the
correct application of our rule, we must turn to decisions from other states, where rules
similar to NRAP 4{a) have been adopted.
____________________

17
Kondas v. Washoe County Bank, 50 Nev. 181, 254 P. 1080 (1927), and Afriat v. Afriat, 61 Nev. 321, 117
P.2d 83 (1941), cited by respondent, are inapposite. The former merely recognizes that being present in
other states, where rules similar to NRAP 4(a) have been adopted.
Under similar provisions, it has frequently been held, in various contexts, that when actual
notice of a written kind is established, the purpose of the rule is satisfied and no separate
formal notice is required. Thus, it has been held that, where a party who attacked a judgment
had previously obtained notice through receipt of a filed-stamped copy of the judgment itself,
the time for appeal had commenced to run from such receipt and expired a month later.
Marsh v. Utah Homes, Inc., 408 P.2d 906 (Utah 1965); in accord, Canton Concrete Products
Corp. v. Alder, 273 N.W.2d 120 (S.D. 1978). Similarly, it has been determined that receipt of
a writ of execution identifying the case, and referring to the court's award, constituted an
adequate notice. Dustin v. Beckstrand, 654 P.2d 368 (Idaho 1982). Again, it has been ruled
that where actual notice of the judgment was established on the record, through affidavits of
the very party who later attempted to appeal, the time for appeal had begun to run from the
date when notice was established on the record, without a more formal written document.
Cline v. Roemer, 551 P.2d 621 (Idaho 1976); in accord, Klaudt v. Klaudt, 156 N.W.2d 72
(N.D. 1968). Even constructive notice of entry, derived from the fact that the parties were
aware that the judgment document was in the court file and available to them, has been held
sufficient. Swayne v. Otto, 580 P.2d 1296 (Idaho 1978).
Thus, under these authorities, the time to appeal Judge Waters' order would have elapsed
some 15 months before the motion to amend or alter was filed on April 11, 1975. It will be
recalled that not only were Herrmann and his counsel present at court on the day Judge
Waters' order was entered, but that his counsel, at least, received back copies of the order
after it was filed. Shortly after Judge Waters' order, Flangas sent a letter to Herrmann's
counsel, which referred to the Herrmann Estate proceedings and to the fact that an award of
fees had been entered therein. This letter was modified by Flangas as the result of
negotiations, and then filed as part of the court records by Herrmann or his counsel. On July
3, 1974, Herrmann returned to court pursuant to an order to show cause, issued because of his
failure to comply with Judge Waters' order. There, the file containing Judge Waters' order
was available for his inspection. Herrmann appears to have explained that his failure to pay
the monies ordered by Judge Waters was due to lack of liquidity; he departed court, and
afterward waited another nine months before attempting to attack Judge Waters' order.
____________________
court, when a judgment is announced, does not by itself constitute written notice of entry. The latter recognizes
in general terms the need for written notice. Neither case was decided on facts like those of the instant one.
due to lack of liquidity; he departed court, and afterward waited another nine months before
attempting to attack Judge Waters' order.
The file before us thus demonstrates, definitely and unequivocally, that Ralph Herrmann
and his former counsel had received actual notice of entry of judgment, through written
documents of record, many months before the belated attack they launched on Judge Waters'
order in April of 1975. Our decision need not rest on that consideration, however.
[Headnote 3]
4. Instead, the narrower ground is available that it was unnecessary for Herrmann's
counsel to receive further notice from Flangas and Ross in order to trigger the limitations of
NRAP 4(a), and NRCP 52(b), because Judge Waters' order was entered not only in the
presence of Herrmann and his former counsel, but at their specific instance. Because of these
factseven though Herrmann and his counsel appear to have been immediately dissatisfied
with the award to Flangas and Rossthey also were as totally aware of Judge Waters'
juridical act as it was possible for them ever to be.
[Headnote 4]
We think our written notice requirement simply was never intended to operate in favor of a
party who has himself prepared and procured the entry of a judgment. C. & M., Inc. v.
Northern Founders Insurance Co. of N.D., 124 N.W.2d 471 (N.D. 1963), was a case much
like the instant one. Therein, a moving party was dissatisfied with an order which the district
court had entered in ruling on such party's motion. Long afterward, the moving party
attempted to appeal; the respondents moved to dismiss the appeal as untimely; and the
moving party countered by contending that no written notice of entry had been served as
contemplated by state law. The North Dakota Supreme Court acknowledged that, by virtue of
the statute requiring written notice of entry of judgment, [o]rdinarily the time within which
an appeal may be taken from an appealable order does not commence to run until written
notice shall have been given to the party appealing. Id. at 473. However, the court noted that
the appellant had itself procured entry of the order, and went on to state:
This Court has held that where a moving party whose motion is denied procures a
written order to be signed denying the motion, he has notice of the order, his time for
appeal therefrom starts to run when the order is signed, and the order becomes final
sixty days thereafter. Citizens National Bank of Northwood v. Larson, 59 N.D.
427, 230 N.W. 292. In this case the right of appeal from the order denying this
appellant's motion for judgment notwithstanding the verdict expired sixty days after
April 29, 1960, which was the date that the order was procured and served by the
attorneys for the present appellant, Northern Securities Company. Upon the expiration
of that sixty-day period, no appeal having been taken, the order denying appellant's
motion for judgment notwithstanding the verdict became final as to all issues presented
by the motion and such issues cannot be raised in the Supreme Court on a subsequent
appeal from the judgment. . . .
124 N.W.2d at 473-474; in accord, Citizens' Nat. Bank v. Larson, 230 N.W. 292 (1930).
We agree with the North Dakota court's ruling. As the Court of Appeals of New York has
noted, when the party himself causes the entry he clearly has knowledge of the adverse order
or judgment. People v. Lilly, 86 N.E.2d 747, 749 (N.Y. 1949). It is of little moment in such
a case as this whether the order submitted to and executed by Judge Waters was thereafter
conveyed to the clerk's office for filing by the court clerk, or was carried there personally by
Herrmann's counsel in accord with common Nevada practice. Id. at 749. The decision in the
Lilly case, id., was predicated upon the pragmatic consideration that one who necessarily
knows of an event because he was an active participant need not be given formal notice of
what he is bound to know. See Stern Brothers v. Livingston, 156 N.Y.S.2d 953, 956
(N.Y.App.Div. 1956); see also Matar v. Morton, 161 N.Y.S.2d 186 (N.Y.App.Div. 1957). All
provisions of the NRCP are to be construed to secure the just, speedy, and inexpensive
determination of every action. NRCP 1.
Given our conclusion that Flangas and Ross were obligated to provide respondent
Herrmann with further notice of entry of judgment, we need not consider the contentions of
Flangas and Ross that, in any case, Herrmann thereafter waived notice by his subsequent
conduct. We note, however, that an examination of the authorities provides substantial
support for such contentions.
18
[Headnote 5]

____________________

18
See Glock v. Elges, 39 Nev. 415, 159 P. 629 (1916); Hunter v. Truckee Lodge, 14 Nev. 24 (1879);
Labidee v. City of Pierre, 177 N.W. 499 (S.D. 1920); State v. First Judicial District Court, 110 P. 981 (Utah
1910). Where a party dissatisfied with a judgment . . . invokes the action of the court to relieve him, either
wholly or in part, from the effect thereof, he will be deemed to have waived service of notice. Id. at 982.
[Headnote 5]
5. Before concluding, we should briefly discuss In Re Hansen's Estate, 50 Nev. 16, 248 P.
891 (1926), on which respondent Herrmann has placed substantial reliance both here and in
the lower court. Respondent Herrmann would have us read the Hansen case as holding that
any heir to an estate has a right to contest any order entered in the probate proceedings.
However, the actual holding is not so broad. This court in Hansen simply recognized that
heirs whose legacies would be reduced by an award of attorneys' fees were interested in such
order, and thus aggrieved thereby, and therefore were entitled to pursue a timely appeal. As
hereinbefore noted, respondent Herrmann did not pursue an appeal or other timely attack on
the judgmentand he is not entitled to avoid this contretemps by invoking the names of his
sisters or that of his mother. The motion filed by respondent Herrmann's counsel on April
11, 1975, was eventually recognized by the court and the parties as respondent Herrmann's
motion. No other motion or pleading attacking Judge Waters' order has ever been filed by
anyone else.
[Headnotes 6, 7]
Furthermore, it does not appear that Judge Waters' award of fees to Flangas and Ross
would reduce the monetary gifts left by the decedent to the special legatees. Indeed, it appears
that the decedent's wife and daughters, i.e. respondent Herrmann's mother and sisters, already
have received the special legacies left to them in the Will. Thus, even if the special legatees
had pursued an appeal, or had launched some other timely attack on Judge Waters' order, the
challenge could not be sustained because they were not aggrieved. See NRAP 3A(a) (only an
aggrieved party may appeal a judgment). And omitting to serve a special legatee with written
notice of entry of judgment, when the judgment does not adversely affect the special legatee,
neither defers the judgment's finality nor delays the time in which an appeal must be taken. In
re Vaughan's Estate, 262 P. 305 (Cal. 1927). Failure to serve notice of a judgment, order or
decree on a party not affected thereby, has no effect on the time for taking an appeal. 4A
C.J.S. Appeal and Error 447 at 126. See also Pomper v. Behnke, 276 P. 122
(Cal.Dist.Ct.App. 1929).
6. By reason of the foregoing, it is unnecessary to review other irregularities in the
proceedings before Judge McKibben, such as the fact that Judge McKibben, without notice,
reassigned the burden of proof to Flangas and Ross long after the trial had ended and while
the case was under submission to him.
CONCLUSION
In conclusion, we think some comment should be made about untenable suggestions,
tendered by respondent Herrmann's counsel during oral argument, to the effect that Herrmann
was surprised and shocked by the amount of Judge Waters' award to Flangas and Ross,
and that Herrmann therefore was deprived of his day in court. What was he to do? asked
Herrmann's counsel plaintively during oral argument before this court. There are several
irrefutable answers to this question, including some based on evidence in the record that
Herrmann is not an entirely truthful man.
One indisputable response to Herrmann's claim of unfair surprise is that, as we have
indicated, Herrmann had 30 days in which to appeal from Judge Waters' order, if indeed he or
his counsel believed that established procedural safeguards had been violated by the manner
of its entry. He failed to employ that remedy.
Perhaps most important, our court rules expressly allowed Herrmann six full months in
which to file a motion to vacate Waters' order, if indeed he believed it had been entered
through mistake, inadvertence, surprise or excusable neglect. See NRCP 60(b). He did not
pursue that remedy either, even though Judge Waters had died and the successor judge was
available to consider any such timely motion.
Ralph Herrmann is no untutored rustic. He attended a good college; he had a successful
career as a banker; and his testimony reflects that he is highly intelligent, articulate, and
literate.
19
The record reflects that Herrmann enjoys reading law books, and that he assisted
Mr. Martillaro with the legal research concerning his business matters and litigation. In fact,
Herrmann even possessed his own key to Martillaro's law office, so that he could gain access
to Martillaro's law library at nights and on weekends.
It therefore seems appropriate for us to emphasize that, when the facts are analyzed,
attempts to portray Ralph Herrmann as helpless, and as unfairly surprised, appear both
inaccurate and disingenuous. And, when the law is analyzed, Herrmann's sole legal
contentioni.e., that omission by Flangas and Ross to serve notice of entry of judgment
deferred, forever, the finality of Waters' awardis at best frivolous, if not fatuous.
____________________

19
As Mr. Herrmann extemporaneously described his career at trial:
From 1961 through 1972, I was with Western Bank Corporation. I started with First National Bank.
In '61 I worked in the Auditing Department. I became Vice President and Cashier of one of our Unit
Banks in Laramie, Wyoming. I became the Associate Auditor for United California Bank and worked on
special assignments with Western Bank Corporation.
deferred, forever, the finality of Waters' awardis at best frivolous, if not fatuous.
Even if we were free to ignore the explicit provisions of controlling law hereinbefore
mentioned, we perceive nothing inequitable to Mr. Herrmann in enforcing Judge Waters'
order. Judgments must have some finality, even those entered on behalf of professional
practitioners. As Abraham Lincoln often is quoted as saying: A lawyer's time and advice are
his stock in trade. The record reflects that Flangas and Ross served effectively to achieve
Mr. Herrmann's purposes. For over a decade, they have received no compensation whatever
for their services and expenses incurred on Herrmann's behalf. In this period, Herrmann has
had the benefit of their labors. To us, these facts do not reflect a picture of unfair imposition
by the lawyers upon Herrmann.
[Headnote 8]
To recapitulate, then, the order Judge Waters entered on November 29, 1973, awarding
fees to appellants, was duly and properly entered in proceedings that were regularly
conducted in all respects. Furthermore, said proceedings and Judge Waters' order were not
merely regular on their face; in addition, the ensuing investigation, and the trial before Judge
McKibben, demonstrated no underlying irregularity or impropriety of any kind therein. Said
investigation and trial demonstrated that Judge Waters' order was in no way insupportable,
unconscionable, or contrary to available evidence.
Moreover, Judge Waters' order was final and no longer subject to challenge, by appeal or
otherwise, well over 10 months prior to the date when respondent Herrmann belatedly sought
to challenge said order by his purported Motion to Amend or Alter the Order of November
29, 1973.
By virtue of the foregoing, we have necessarily concluded that Judge Waters' aforesaid
order was and remains valid and enforceable, and that Judge McKibben's order, entered in
derogation thereof, is therefore void.
20
Accord-
____________________

20
Our decision in this matter is predicated on Nevada law as it existed in 1973, when the circumstances
involved in this dispute arose. Pursuant to NRS 150.060, as it then was written, there was no provision that a
petition requesting an award of fees should specify any particular dollar amount as appropriate. Rather, just as
respondent Herrmann's petition did in this case, it was customary practice to pray for reasonable fees to be
awarded. Our ruling herein therefore does not consider whether, under NRS 150.060 as amended, an executor
could pray generally for an award of reasonable fees, submit the issue for decision and then later attack the
court's award on the ground that the executor himself had failed to comply with NRS 150.060, as amended, by
designating what dollar amount he considered to be proper.
ingly, the order appealed from must be, and hereby is, reversed.
21

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

21
Chief Justice Noel E. Manoukian is disqualified in this matter. Justice John C. Mowbray has voluntarily
recused himself. Pursuant to order entered by Acting Chief Justice Springer, Senior Justice David Zenoff has
been assigned to participate in the court's deliberation and determination of this matter. See: Nev. Const., art. 6,
19(1)(a) and 19(1)(c), and SCR 10.
____________
100 Nev. 29, 29 (1984) Land Resources Dev. v. Kaiser Aetna
LAND RESOURCES DEVELOPMENT, a California Corporation, Appellant, v. KAISER
AETNA, a California General Partnership, Respondent.
KAISER AETNA, a California General Partnership; AETNA LIFE INSURANCE
COMPANY; TEMECULA PROPERTIES, INC.; WESTWARD PROPERTIES, INC.;
KAISER RANCHO CALIFORNIA, INC.; and KAISER HAWAII KAI
DEVELOPMENT COMPANY, Appellants, v. HOLLAND PACIFIC
HITCH COMPANY, Respondent.
No. 12336
January 25, 1984 676 P.2d 235
Appeal by Land Resources Development from a jury verdict in favor of Kaiser Aetna;
consolidated appeal by Kaiser Aetna, from a jury verdict in favor of Holland Pacific Hitch
Company. Ninth Judicial District Court, Douglas County; Howard D. McKibben, Judge.
Frustrated purchaser under land sales contract which had not been performed brought
action against vendor and purchaser who had subsequently purchased from vendor, seeking
specific performance of agreement, and recorded lis pendens on property. The actual
purchaser of the property cross-claimed against vendor for fraud, negligent misrepresentation,
indemnity, and breach of covenant of marketable title, and vendor counterclaimed against
frustrated purchaser for damages occasioned by frustrated purchaser's alleged breach of
contract. After a settlement agreement was entered into between frustrated purchaser and
actual purchaser, the district court entered judgment on jury verdict in favor of vendor and
against frustrated purchaser, against vendor on its counterclaim, and in favor of actual
purchaser on its cross-claim against vendor, and cross-appeals were taken.
against frustrated purchaser, against vendor on its counterclaim, and in favor of actual
purchaser on its cross-claim against vendor, and cross-appeals were taken. The Supreme
Court held that: (1) frustrated purchaser did not present prima facie case of bad faith against
vendor; (2) evidence of prior outstanding civil judgments against frustrated purchaser's
president was admissible; (3) trial court erred in instructing jury that possibility of litigation
in establishing or securing title rendered title unmarketable; and (4) assuming that vendor was
under obligation to indemnify actual purchaser against frustrated purchaser's claims, it did not
follow that vendor should be held to answer for actual purchaser's settlement with frustrated
purchaser.
Affirmed in part; reversed and remanded in part.
Burd, Friedman, Bartko & Welsh, San Francisco; Fahrenkopf, Mortimer, Sourwine,
Mousel & Sloane, Reno, for Land Resources.
Miller, Starr & Regalia, Oakland; Lionel, Sawyer & Collins, Reno, for Kaiser, et al.
Lester H. Berkson, Zephyr Cove; Hale, Lane, Peek, Dennison & Howard, Reno, for
Holland Pacific.
1. Fraud.
While under certain circumstances, word fraud is synonymous with bad faith, concepts of bad faith
and fraud are generally separate and distinct, requiring allegation and proof of different elements.
2. Fraud.
Purchaser under contract for sale of land which was never executed did not present prima facie case of
bad faith against vendor under any definition of term where evidence showed that throughout its
negotiations, vendor exhibited good faith, and justifiably concluded that contract had been breached only
after purchaser had failed to produce requisite funds after it had twice unsuccessfully attempted to negotiate
initial down payment checks.
3. Specific Performance.
Evidence of prior outstanding civil judgments against president of purchaser under contract for deed
which had not been executed was admissible in purchaser's action against vendor for specific performance,
where evidence regarding his financial stability and access to personal funds was presented by purchaser in
order to prove that purchaser had financial wherewithal to cover its initial down payment check, and thus
evidence of judgments against him was relevant to establish whether purchaser could have secured
financing and purchased property in dispute.
4. Vendor and Purchaser.
Mere possibility of litigation regarding title to real property does not render title unmarketable; test is,
rather, chance of successful attack.
In action by purchaser alleging that vendor failed to convey marketable title, question of whether
threatened litigation was reasonably probable warranted submission to jury.
Test of whether threatened litigation was so likely as to make title to real property unmarketable is
whether there was reasonable probability of litigation with reasonable probability of resulting damage;
mere possibility of litigation in establishing or securing title did not render title unmarketable.
7. Fraud.
In order to establish that vendor negligently misrepresented that title to real property was marketable,
purchaser must establish that there was duty on vendor's part to accurately inform purchaser of another
party's threatened lawsuit for specific performance of unexecuted contract for sale of property, breach of
that duty, and resultant harm, and in order to show breach of duty, purchaser must prove that vendor's
failure to inform him of third party's threat was in violation of reasonable man standard, that is, that
reasonable man, under circumstances, would have so informed purchaser.
8. Indemnity.
Assuming that vendor under contract for sale of land was under obligation to indemnify purchaser against
third party's claims to property, it did not follow that vendor should be held to answer for purchaser's
settlement with third party.
9. Indemnity,
Recovery on indemnity theory is predicated on fulfillment of requisites that indemnitee was legally liable
to party with whom settlement was made, and that settlement was reasonable.
10. Indemnity.
Vendor under land sales contract was not liable to purchaser for indemnity where jury eliminated
possibility of purchaser's proving its derivative liability to third party which had sought specific
performance of an earlier agreement to purchase property.
OPINION
Per Curiam:
Respondent and cross-appellant, Kaiser Aetna (Kaiser), was a general partnership engaged
in the business of buying, selling and developing real property. Kaiser owned eighty-four
approved condominium lots in a Lake Tahoe area subdivision known as Pinewild. At some
time in 1976, the partners of Kaiser decided to dissolve the partnership and liquidate their
assets. Consequently, a number of land developers were informed that the eighty-four
Pinewild lots owned by Kaiser were for sale.
Several parties expressed an interest in purchasing the Pinewild property. Appellant, Land
Resources Development (Land Resources), and Holland Pacific Hitch Company (Holland
Pacific), respondent in this consolidated action, both submitted offers to purchase the
property.
offers to purchase the property. On March 14, 1977, Kaiser accepted the offer submitted by
Land Resources.
The purchase and sale agreement between Kaiser and Land Resources required an
immediate initial deposit of $35,000.00 to open escrow, with the balance to be paid within
twenty days after execution of the agreement. Land Resources' initial check for $35,000.00
was made payable to the title company, rather than to Kaiser. When Kaiser attempted to
negotiate a new check made payable to Kaiser, it was returned for insufficient funds.
Thereafter, Land Resources assured Kaiser that funds were available to cover the check.
Kaiser again attempted to negotiate the check, and once again, it was returned for insufficient
funds.
After Land Resources' check was dishonored the second time, Kaiser advised the
defaulting purchaser that the sales agreement would be terminated unless Kaiser received a
cashier's check for $35,000.00 on or before the date scheduled for the close of escrow. Kaiser
did not receive the funds on the date specified. Consequently, Kaiser deemed its agreement
with Land Resources terminated, and commenced negotiations with Holland Pacific.
On April 19, 1977, counsel for Land Resources wrote a letter to Kaiser's Division
Manager, Mr. Kalman Rowan, which stated:
We have been asked to advise you that our client intends to enforce its rights under the
Agreement. We seek a meeting with you to discuss the issues. If we have not heard
from you on or before Monday, April 25, 1977, we have been instructed to file suit to
enforce the terms and conditions of the Agreement of Purchase and Sale.
On April 20, 1977, negotiations between Kaiser and Holland Pacific concluded with an
agreement to sell Pinewild to Holland Pacific for 1.5 million dollars, with escrow to close on
April 29, 1977. During the course of negotiations between Holland Pacific and Kaiser, there
was no mention of the previous transaction with Land Resources or of Land Resources' threat
to file suit.
On May 8, 1977, Land Resources filed suit against Kaiser seeking specific performance of
the earlier agreement between the parties. Land Resources also recorded a lis pendens on the
property. A short time later, Land Resources amended its complaint to join Holland Pacific as
an additional defendant.
Holland Pacific brought a cross-claim against Kaiser for fraud, negligent
misrepresentation, indemnity and breach of covenant of marketable title.
covenant of marketable title. With the exception of the indemnity claim, Holland Pacific's
claims against Kaiser were specifically conditioned upon a finding of liability against Holland
Pacific and Kaiser in favor of Land Resources.
In turn, Kaiser counterclaimed against Land Resources for damages occasioned by its
alleged breach of contract.
On the eve of trial, Holland Pacific entered into a settlement agreement with Land
Resources. Pursuant to the terms of the settlement, Land Resources agreed to dismiss its
claims against Holland Pacific and lift the lis pendens from the property. In exchange,
Holland Pacific agreed to sell twenty-six of the eighty-four Pinewild lots to Land Resources
for $611,000.00.
After a lengthy jury trial, a general verdict was entered in favor of Kaiser and against Land
Resources. Additionally, the jury found against Kaiser on its counterclaim. The jury also
awarded Holland Pacific $347,840.00 on its cross-claim against Kaiser.
At the outset, Land Resources challenges the district court's jury instruction defining bad
faith, contending the instruction was clearly erroneous and misleading.
The district court defined bad faith as follows: [b]ad faith implies fraud and
concealment. It is Land Resources' position that by equating the term fraud with bad
faith, the jury believed they had to find clear and convincing evidence of fraud before they
could find Kaiser acted in bad faith.
[Headnote 1]
Under certain circumstances, the word fraud has been found to be synonymous with
bad faith. See Schaffer v. Wolbe, 148 S.E.2d 437 (Ga.App. 1966) (. . . bad faith involves
actual or constructive fraud or a design to mislead or deceive another, or a neglect or a refusal
to fulfill some duty or some contractual obligation, not prompted by an honest mistake, but
prompted by some sinister motive.); Pabst Brewing Co. v. Nelson, 236 P. 873 (Okl. 1925)
(the term bad faith means with actual intent to mislead or deceive another; bad faith and
fraud synonymous).
Generally, however, the concepts of bad faith and fraud are separate and distinct,
requiring the allegation and proof of different elements. See Pixley v. First Fed. Sav. & Loan,
243 P.2d 100 (Cal.App. 1952).
[Headnote 2]
Our review of the evidence in this case, however, reveals that Land Resources did not
present a prima facie case of bad faith against Kaiser-Aetna under any definition of the term.
The evidence shows that throughout its negotiations with Land Resources, Kaiser
exhibited the utmost good faith.
dence shows that throughout its negotiations with Land Resources, Kaiser exhibited the
utmost good faith. After having twice unsuccessfully attempted to negotiate Land Resources'
initial down payment check, Kaiser provided Land Resources the opportunity to make
payment up to the date scheduled for the close of escrow. Nonetheless, Land Resources failed
to produce the requisite funds, and Kaiser justifiably concluded that the contract had been
breached. Here, evidence of bad faith is clearly lacking.
Under the circumstances of this case, we are convinced that under any definition of bad
faith, the jury would have returned a verdict against Land Resources as it did. Thus, the
definition of the term bad faith as propounded by the district court was, if error, harmless
error which does not warrant reversal. See Truckee-Carson Irrigation District v. Wyatt, 84
Nev. 662, 448 P.2d 46 (1968), cert. denied, 395 U.S. 910 (1969).
Land Resources also contends the district court erred when it admitted evidence of two
prior civil judgments against its corporate president, Bruce Seymour.
At trial, Kaiser introduced evidence of two previous civil judgments against Mr. Seymour,
in the amount of $3,637.79 and $4,762.36. Land Resources objected to the introduction of
these prior civil judgments, claiming they were irrelevant and highly prejudicial. The district
court ruled the evidence admissible, as relevant to prove whether Land Resources had the
financial wherewithal to make a timely purchase of the Pinewild property.
In F/V American Eagle v. State, 620 P.2d 657 (Alaska 1980), the Court discussed
appellate review of allegedly prejudicial evidence, and stated: [i]f the evidence is relevant,
reversal is appropriate only where its prejudicial effect so outweighs its probative value that
admission constitutes a clear abuse of discretion. Id. at 672. Evidence is considered relevant
where it
. . . has some tendency in reason to establish a proposition material to the case. Id. See also
NRS 48.015-48.035.
[Headnote 3]
The record in the court below indicated that evidence regarding Bruce Seymour's financial
stability and access to personal funds was presented by Land Resources in order to prove that
Land Resources had the financial wherewithal to cover its initial $35,000.00 down payment
check. Evidence of prior outstanding civil judgments against Seymour therefore became
relevant to establish whether Land Resources could secure financing and purchase the
property in dispute. A review of the record does not establish that the probative value of the
evidence was outweighed by its alleged prejudicial effect.
dence was outweighed by its alleged prejudicial effect. Consequently, we conclude the district
court did not err in admitting the challenged evidence, and affirm the verdict against Land
Resources.
In a consolidated appeal, Kaiser challenges the verdict in favor of Holland Pacific against
Kaiser. For the reasons set forth hereinafter, we must reverse that verdict and remand for a
new trial between those two parties.
Kaiser's primary assignment of error concerns the jury instruction given regarding the issue
of whether marketable title was conveyed to Holland Pacific.
The trial court's instruction on marketable title reads as follows:
The fact that title to Pinewild Unit No. 2 may be found to have been properly conveyed
to Holland Pacific Hitch Company by Kaiser Aetna does not make it marketable, where
it is in such a condition as to raise the possibility that Holland Pacific Hitch Company
will be involved in litigation to establish or secure it. (Emphasis added.)
Kaiser's rejected jury instruction states:
Under the laws of the State of Nevada, a Seller warrants that title conveyed to a
purchaser is marketable.' Whether the title is in fact marketable' is a question of fact to
be determined by the trier of fact. The question however, is whether title is free from
reasonable doubt of defect. The mere threat or possibility of a lawsuit will not be
sufficient to render title unmarketable. There must be a reasonable probability of
litigation. (Emphasis added.)
[Headnote 4]
There is no bright-line standard or uniform definition of marketable title. The
authorities are clear, however, in holding that a mere possibility of litigation regarding title
does not render title unmarketable. As was stated in Whittier Estates v. Manhattan Savings
Bank, 48 N.Y.S.2d 111 (App.Div. 1944):
A purchaser is entitled to a good marketable titlea title free from all reasonable doubt
(citations omitted), but that does not mean free from all possible doubt; if that were so,
few titles could be held marketable. As Chief Judge Cardozo put it: [t]he law assures
to a buyer freedom from reasonable doubt, but not from every doubt.' (Citations
omitted.) There must be some fairly debatable ground more than a mere speculation or
a bare possibility. (Citations omitted.)
The test in not the hazard of possible litigation, for, as has been pointed out, it seems
to be the unalienable right of any person to start a lawsuit.' The test is rather the chance
of successful attack. (Emphasis added.)
Id. at 114. See also Fabricant v. Hyed Realty Corp., 233 N.Y.S.2d 796 (App.Div. 1962).
[Headnotes 5, 6]
We agree that in many instances the test would be whether there was a reasonable
probability that a reasonably meritorious claim existed against the property. See, e.g., Gaub v.
Nassau Homes, Inc., 147 A.2d 73 (N.J. 1958); Brown v. Herman, 454 P.2d 212 (Wash.
1969). In the instant case, however, Kaiser was in possession of a written threat of litigation
from the party with whom it had previously contracted concerning the property in issue.
Kaiser did not apprise Holland Pacific of the threat prior to the latter's acquisition of the
property. Moreover, the evidence reflects the apparent necessity for the timely development
of the property by Holland Pacific in order to maximize its profit potential. Arguably, Kaiser
sold the property to Holland Pacific realizing that it was reasonably probable that Land
Resources would implement its threatened litigation and cause delay in project development
and marketing of end units with resultant loss to Holland Pacific. Contrarily, Kaiser may
contend that the meritless nature of Land Resources' claim rendered the likelihood of a
lawsuit with resulting damage remote. In either case, the jury must weigh the evidence, draw
whatever inferences are most reasonable and make a decision. The test must be whether there
was a reasonable probability of litigation with a reasonable probability of resulting damage.
The trial court erred in instructing the jury that the possibility of litigation in establishing
or securing title rendered the title unmarketable. The instruction under the circumstances of
this case must comport with the standard we have enunciated. We cannot say, as a matter of
law, that when so instructed, the jury would necessarily arrive at the same decision.
Marketable title to real property should not be called into question by the mere possibility of
litigation. Such a rule could facilitate bizarre results and unreasonably impede the
marketability of real property. Upon retrial, the parties may, of course, introduce competent
evidence bearing on the test of marketability as we have defined it in this opinion.
[Headnote 7]
Turning now to the cause of action for negligent misrepresentation, when the case is
retried, Holland Pacific will have to present a prima facie cause of action against Kaiser by
showing, within the context of the law pertaining to marketability as declared in this
opinion, that there was a duty on Kaiser's part to accurately inform Holland Pacific of
Land Resources' threatened lawsuit, a breach of that duty, and resultant harm.
present a prima facie cause of action against Kaiser by showing, within the context of the law
pertaining to marketability as declared in this opinion, that there was a duty on Kaiser's part to
accurately inform Holland Pacific of Land Resources' threatened lawsuit, a breach of that
duty, and resultant harm. See Driscoll v. Erreguible, 87 Nev. 97, 482 P.2d 291 (1971). In
order to show a breach of duty, Holland Pacific must prove that Kaiser's failure to inform it of
Land Resources' threat was in violation of the reasonable man standard, i.e., that a
reasonable man, under the circumstances, would have so informed Holland Pacific. Driscoll
v. Erreguible, supra.
[Headnote 8]
We have also considered Holland Pacific's claim for relief based on a theory of indemnity
and have concluded it is without merit. Assuming arguendo, that Kaiser was under an
obligation to indemnify Holland Pacific against Land Resources' claims, it does not follow
that Kaiser should be held to answer for Holland Pacific's settlement with Land Resources.
The court instructed the jury as follows:
Where an indemnitee unjustifiably refuses to accept the indemnitor's offer of defense,
the indemnitee proceeds at his own risk with regard to any judgment or settlement
which may ultimately ensue, and thereafter, in order to recover reimbursement, he must
establish by a preponderance of the evidence that:
1. he would have been liable
2. there was no good defense to liability
3. the amount of settlement was reasonable.
[Headnotes 9, 10]
In light of the instruction, it would be implausible for the jury to have found that Kaiser
was bound to indemnify Holland Pacific for the settlement it achieved with Land Resources.
The jury instruction was properly specific in its requirement that recovery on an indemnity
theory be predicated on the fulfillment of two requisites: first, that the indemnitee was legally
liable to the party with whom settlement was made, and secondly, that settlement was
reasonable. See Globe Indemnity v. Schmitt, 53 N.E.2d 790 (Ohio 1944). See also Cheney v.
City of Mountlake Terrace, 583 P.2d 1242 (Wash.App. 1978). We need not address the
second element. Since the jury found Kaiser free of liability to Land Resources, Holland
Pacific could not, as a matter of law, have been liable to Land Resources.
In summary, the trial court fatally erred in instructing the jury on the issue of marketable
title. Under such an instruction the jury needed only to conclude that a possibility of litigation
existing at the time of Kaiser's sale to Holland Pacific constituted a valid basis for a
finding of liability against Kaiser.
existing at the time of Kaiser's sale to Holland Pacific constituted a valid basis for a finding
of liability against Kaiser. The trial court should have instructed the jury in accordance with
the standard of reasonable probability of litigation and resultant damage as we have
previously stated. If this had been done, the outcome could have been different.
The instruction on marketability of title also infected the claims sounding in negligent
representation and fraud. Such claims may now be viewed in a new light if the jury
determines that the threat of suit by Land Resources did not constitute a reasonable
probability of litigation and a reasonable probability of resulting damage to Holland Pacific.
As a matter of law, Kaiser was not liable to Holland Pacific for indemnity since the jury
eliminated the possibility of Holland Pacific proving its derivative liability to Land Resources
when it entered its verdict against the latter party and in favor of Kaiser.
In view of our disposition of this case, we deem it unnecessary to address other issues
raised by the parties.
The judgment upon the verdict is affirmed with the exception of that part of the judgment
entered in favor of Holland Pacific and against Kaiser; as to the latter, it is reversed and
remanded for a new trial.
____________
100 Nev. 38, 38 (1984) Crew v. State
NORMAN JOHN CREW, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 14130
January 25, 1984 675 P.2d 986
Appeal from judgment of conviction of two counts of murder with use of a deadly weapon
in the commission of a crime, sentence of four consecutive life terms with the possibility of
parole, Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Defendant was convicted in the district court of two counts of first-degree murder, and
defendant appealed. The Supreme Court held that: (1) defendant was not denied fair trial by
trial court's refusal to sequester jury; (2) defendant was not arrested in violation of Fourth
Amendment; (3) although defendant's Miranda rights were violated, his statement was
voluntary and was not induced by direct violation of Fifth Amendment; (4) detective's
testimony was properly admitted since it could not be tracked back to either Fourth
Amendment or Fifth Amendment violation; {5) prosecution was entitled to introduce prior
statement of police informant into evidence; {6) trial court's refusal to permit defendant
to inquire into informant's arrest history on cross-examination was harmless error; {7)
statements made by alleged coconspirator were properly admitted; and {S) defendant's
sentences for two counts of first-degree murder were each properly enhanced.
100 Nev. 38, 39 (1984) Crew v. State
be tracked back to either Fourth Amendment or Fifth Amendment violation; (5) prosecution
was entitled to introduce prior statement of police informant into evidence; (6) trial court's
refusal to permit defendant to inquire into informant's arrest history on cross-examination was
harmless error; (7) statements made by alleged coconspirator were properly admitted; and (8)
defendant's sentences for two counts of first-degree murder were each properly enhanced.
Affirmed.
[Rehearing pending August 9, 1985]
Meshbesher, Singer & Spence, and Ronald I. Meshbesher, Minneapolis, Minnesota; and
Goodman, Stein, Terry and Quintana, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney, and James
Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
It lies within trial court's discretion to sequester jurors or to permit them to separate; that decision will be
overturned only if defendant demonstrates that either nature of publicity or jury's actual exposure to it
created probability of prejudice. NRS 175.391.
2. Criminal Law.
When publicity about criminal trial is not of such sensational nature that mere risk of exposure creates
probability of prejudice, danger can be cured by scrupulous admonishment and voir dire of jury.
3. Criminal Law.
Trial court's refusal to sequester jury in prosecution for murder did not result in denial of fair trial to
defendant, where jurors were examined on voir dire regarding exposure to news accounts of crime, and
trial court admonished jurors before each separation, and collectively polled them regarding compliance
with admonishments before giving final jury instructions.
4. Arrest.
Defendant's trip to police station with detective and subsequent interrogation was not an illegal arrest in
violation of Fourth Amendment, since no arrest occurred at this time, as defendant voluntarily accompanied
detective to police station and was not detained there. U.S.C.A.Const. Amend. 4.
5. Criminal Law.
Absent direct infringement on Fifth Amendment rights, violation of rules of Miranda will not support
exclusion of evidence derived from statement. U.S.C.A.Const. Amend. 5.
6. Criminal Law.
Statement given by defendant to detective in violation of Miranda rights, which was not induced by
police threats or promises of leniency, was voluntary, and thus, did not violate Fifth Amendment rights.
U.S.C.A.Const. Amend. 5.
100 Nev. 38, 40 (1984) Crew v. State
7. Criminal Law.
In murder prosecution, testimony of detective which allegedly resulted from arrest of defendant and
defendant's statement given in violation of Miranda rules, were properly admitted, since arrest and
statement to which testimony was traced back violated neither Fourth Amendment nor Fifth Amendment.
U.S.C.A.Const. Amends. 4, 5.
8. Witnesses.
To be admissible under statute, prior consistent statements must have been made at time when declarant
had no motive to fabricate. NRS 51.035, subd. 2(b).
9. Witnesses.
Prior statement by police informant, parts of which were used by defendant to impeach testimony of
informant, was admissible in its entirety to rehabilitate informant's testimony and to clarify inconsistencies
pointed out by defendant, notwithstanding fact that informant had motive to fabricate at time statement was
made. NRS 47.120.
10. Witnesses.
Defendant cannot be permitted to use parts of prior statement to impeach declarant's testimony and then
to withhold same statement from jury on grounds of unreliability.
11. Criminal Law.
Trial court's finding, made after two hearings in connection with challenge to admission of informant's
testimony, that police informant was not informant at time of conversation with defendant, that complete
plea bargain was executed before informant testified and that bargain was fully disclosed at trial, was
supported by record, notwithstanding defendant's contention that informant had made secret deal with
prosecution which was not disclosed at trial and which resulted in early release from jail.
12. Witnesses.
Defendant must be able to expose facts from which jury can draw inferences regarding reliability of
witness. U.S.C.A.Const. Amend. 6.
13. Witnesses.
While trial court has discretion to limit scope of defendant's cross-examination, that discretion only
comes into play if, as matter of right, sufficient cross-examination has been permitted to satisfy Sixth
Amendment. U.S.C.A.Const. Amend. 6.
14. Witnesses.
Scope of trial court's discretion in limiting scope of defendant's cross-examination varies according to
whether cross-examination is directed at attacking credibility or exposing bias. U.S.C.A.Const. Amend. 6.
15. Witnesses.
Although trial court has broad discretion to restrict defendant's cross-examination attacking witness'
credibility and may properly restrict inquiry into witness' prior felony convictions as opposed to mere
arrest, court's discretion is more limited when purpose of cross-examination is to expose bias, and counsel
must be permitted to elicit any facts which might color witness' testimony. U.S.C.A.Const. Amend. 6.
16. Criminal Law; Witnesses.
Although trial court should have permitted defendant to cross-examine witness concerning witness' prior
arrest history for purpose of suggesting that informant had history of making deals with
police, basic bias of informant could be inferred from facts before jury regarding
circumstances under which informant became police informant as well as details of
plea arrangement with prosecution, and thus, error in refusing to permit
cross-examination was harmless.
100 Nev. 38, 41 (1984) Crew v. State
of suggesting that informant had history of making deals with police, basic bias of informant could be
inferred from facts before jury regarding circumstances under which informant became police informant as
well as details of plea arrangement with prosecution, and thus, error in refusing to permit
cross-examination was harmless. U.S.C.A.Const. Amend. 6.
17. Criminal Law.
For statute allowing admission of statements made by coconspirator of party during course of and in
furtherance of conspiracy to apply, existence of conspiracy must be established by independent evidence.
NRS 51.035, subd. 3(e).
18. Criminal Law.
Statement of alleged coconspirator of defendant was admissible, in light of fact that police informant's
testimony provided sufficient independent evidence of conspiracy between alleged coconspirator and
defendant. NRS 51.035, subd. 3(e).
19. Criminal Law.
Statements made by alleged coconspirator of defendant regarding plan to move bodies of victims were
properly admitted under statute, since plan was in furtherance of conspiracy to commit crime and to get
away with it. NRS 51.035, subd. 3(e).
20. Criminal Law.
Defendant's sentence following two convictions for first-degree murder was properly enhanced for use of
deadly weapon, since use of deadly weapon was not necessary element of murder under statute. NRS
193.165, subds. 1, 3.
21. Criminal Law.
Enhancement of sentence for each count of offense of which defendant is convicted is proper unless there
is truly one offense; test is whether each count requires proof of additional fact which other does not. NRS
193.165, subd. 1.
22. Criminal Law.
Both sentences of defendant convicted for two counts of first-degree murder were subject to separate
enhancement for use of deadly weapon since killings of two victims were divisible acts. NRS 193.165,
subd. 1.
23. Criminal Law.
Although defendant contended that since Legislature did not leave trial court any discretion in imposing
sentence for first-degree murder but reserved task for jury, it did not intend that sentence be further
enhanced, trial court properly enhanced defendant's sentences for two counts of first-degree murder since
statute provides for enhancement of any term of imprisonment imposed by statute. NRS 193.165, subd.
1.
OPINION
Per Curiam:
A jury convicted Norman John Crew of first-degree murder in the deaths of Theodore
Zappa and Michael Nasse. The jury having recommended a term of life with the possibility of
parole on each count, the trial court enhanced each sentence under NRS 193.165{1)1 and
sentenced appellant to four consecutive life terms with the possibility of parole.
100 Nev. 38, 42 (1984) Crew v. State
under NRS 193.165(1)
1
and sentenced appellant to four consecutive life terms with the
possibility of parole. We affirm appellant's conviction and sentence.
The record reflects the following facts. On the night of the murders, appellant and his
brother, Russell Crew, met with the victim's at Zappa's house to discuss a marijuana
purchase. The Crew brothers were acting as middlemen to purchase marijuana from Nasse.
Later that night, the four men drove to a deserted area near Lake Mead to consummate the
transaction. The brothers shot the victims and cut their throats; they then transported the
bodies to an area some twenty miles from the scene of the crime and buried them. After the
disappearance of the victims was linked with the discovery of the crime scene, appellant gave
two statements to the police and disclosed the location of the burial site. The second
statement was suppressed because of a Miranda
2
violation.
Appellant contends that he was denied a fair trial because the trial court refused to
sequester the jury despite widespread public sentiment against appellant and extensive media
coverage of his trial.
[Headnotes 1-3]
Under NRS 175.391 it lies within the trial court's discretion to sequester the jurors or to
permit them to separate. The trial court's decision will be overturned only if appellant
demonstrates that either the nature of the publicity or the jury's actual exposure to it created a
probability of prejudice. See State v. Wixon, 631 P.2d 1033 (Wash.Ct.App. 1981). In Sollars
v. State, 73 Nev. 248, 316 P.2d 917 (1957), we reversed a murder conviction when the trial
court failed to sequester the jury despite a daily barrage of inflammatory headlines in the Las
Vegas newspapers. In Sollars prejudice could be clearly inferred from the nature of the
publicity; we do not consider that the coverage of appellant's trial gives rise to the same
inference. We note in passing that the most objectionable publicitythat dealing with the
contents of appellant's suppressed statementoccurred before the jury was selected and the
harm caused would not have been cured by subsequent sequestration. When the publicity is
not of such a sensational nature that the mere risk of exposure creates a probability of
prejudice, the danger can be cured by scrupulous admonishment and voir dire of the jury.
____________________

1
NRS 193.165(1) provides that a person who uses a firearm or other deadly weapon in the commission of a
crime shall be punished by imprisonment for a term equal to and in addition to the term of imprisonment
prescribed by statute for the crime.

2
Miranda v. Arizona, 384 U.S. 436 (1966). No issue regarding the first statement has been raised on appeal.
100 Nev. 38, 43 (1984) Crew v. State
danger can be cured by scrupulous admonishment and voir dire of the jury. See Pacheco v.
State, 82 Nev. 172, 414 P.2d 100 (1966). The record shows that the jurors were examined on
voir dire regarding their exposure to news accounts of the crime. The trial court admonished
the jurors before each separation and collectively polled them regarding their compliance
with the admonishments before giving them their final jury instructions. The publicity
surrounding the trial did not create any prejudice that could not be dispelled by adherence to
these procedures.
The trial court permitted Detective Maddock to testify that appellant had accompanied the
police on their trip to locate the burial site. Appellant points out that the trip occurred
immediately after he accompanied Detective Maddock to the police station and gave his
second statement, which was later suppressed on account of a Miranda violation, and
contends that the testimony should have been ruled inadmissible as a fruit of the violation of
his constitutional rights. Wong Sun v. United States, 371 U.S. 471 (1963).
[Headnote 4]
Appellant argues that his trip to the police station with Detective Maddock and his
subsequent interrogation constituted and illegal arrest in violation of the fourth amendment,
and that any evidence derived from the arrest is inadmissible. See Taylor v. Alabama, 457
U.S. 687 (1982). We do not agree with appellant's characterization of the events. After a
hearing, the trial court found that appellant had voluntarily accompanied Detective Maddock
to the police station and that he was not detained there. See Krueger v. State, 92 Nev. 749,
557 P.2d 717 (1976). We conclude that no arrest occurred at this time and that appellant's
fourth amendment rights were not violated.
[Headnotes 5-7]
Neither can the testimony be excluded as a fruit of the suppressed statement. Absent a
direct infringement on fifth amendment rights, a violation of the rules of Miranda will not
support the exclusion of evidence derived from the statement. Rhodes v. State, 91 Nev. 17,
22, 530 P.2d 1199, 1202 (1975); Michigan v. Tucker, 417 U.S. 433, 445-446 (1974). If
appellant's statement had been induced by police threats or promises of leniency, the
statement would be involuntary and evidence derived from it inadmissible. See
Commonwealth v. Meehan, 387 N.E.2d 527 (Mass. 1979). However, the trial court
determined, after a hearing, that the statement was voluntary, and we will not disturb the
court's finding. Sparks v. State, 96 Nev.
100 Nev. 38, 44 (1984) Crew v. State
26, 604 P.2d 802 (1980). Since the testimony cannot be traced back to either a fourth
amendment or a fifth amendment violation, we hold that its admission was proper.
The prosecution's case rested largely on the testimony of Donald Dowell, who shared a cell
with the Crew brothers while they were awaiting trial. Dowell was a former police informant
who was in jail on charges of homicide. While a cellmate of the Crews, he was approached by
Detective Maddock and asked to give a statement about anything he might have learned from
conversations with the Crews. Dowell's attorney worked out a plea bargain and Dowell gave a
statement. A week before his testimony Dowell pleaded guilty to voluntary manslaughter and
was sentenced to three years probation conditioned upon serving one year in the county jail.
On cross-examination of Dowell, defense counsel read from the statement, pointing out
discrepancies between it and Dowell's testimony. At the conclusion of Dowell's testimony,
defense counsel put Dowell's attorney on the stand to testify regarding Dowell's arrangement
with the prosecution. At that time, the trial court granted the prosecution's motion to admit
the statement into evidence for the purpose of there being any inconsistencies that might
have been alluded to by counsel. Appellant maintains that the statement constitutes
inadmissible hearsay.
[Headnotes 8-10]
To be admissible under NRS 51.035(2)(b),
3
prior consistent statements must have been
made at a time when the declarant had no motive to fabricate. Daly v. State, 99 Nev. 564, 665
P.2d 798 (1983); Gibbons v. State, 97 Nev. 299, 629 P.2d 1196 (1981). Since at the time
Dowell made his statement his arrangement with the police had yet to be consummated, he
clearly had a motive to fabricate. We hold, however, that the statement was properly admitted
to rehabilitate Dowell's testimony. Since defense counsel read from the statement to attack
Dowell's testimony, the prosecution was entitled to introduce the statement into evidence to
clarify the inconsistencies pointed out by counsel. See United States v. Baron, 602 F.2d 1248
(7th Cir. 1979); NRS 47.120.
4
As in Baron, most of Dowell's testimony was consistent
with the statement; the inconsistencies went only to details.
____________________

3
NRS 51.035(2)(b) provides that a prior consistent statement is not hearsay if it is offered to rebut an express
or implied charge of recent fabrication or improper influence or motive.

4
NRS 47.120 provides:
1. When any part of a writing or recorded statement is introduced by a party, he may be required at
that time to introduce any other part of it which is relevant to the part introduced, and any party may
introduce any other relevant parts.
2. This section does not limit cross-examination.
100 Nev. 38, 45 (1984) Crew v. State
ell's testimony was consistent with the statement; the inconsistencies went only to details.
Appellant cannot be permitted to use parts of a prior statement to impeach the declarant's
testimony and then to withhold that same statement from the jury on grounds of unreliability.
[Headnote 11]
Appellant presents other challenges to the admissibility of Dowell's statement and
testimony. He maintains that Dowell was a police informant at the time of his conversations
with the Crews and that he had made a secret deal with the prosecution which was not
disclosed at trial and which resulted in his early release from jail two weeks after his
testimony. See United States v. Henry, 447 U.S. 264 (1980); Napue v. Illinois, 360 U.S. 264
(1959); Franklin v. State, 94 Nev. 220, 577 P.2d 860 (1978). After two hearings to determine
Dowell's status, the trial court found that Dowell was not an informant at the time of his
conversations with the Crews. An examination of the record supports the trial court's finding.
Similarly, we will not disturb the trial court's finding that the complete plea bargain was
executed before Dowell testified and that it was fully disclosed at trial.
Appellant also contends that his sixth amendment right of confrontation was infringed
when the trial court refused to permit him to inquire into Dowell's arrest history.
[Headnotes 12-16]
A defendant must be able to expose facts from which the jury can draw inferences
regarding the reliability of a witness. Davis v. Alaska, 415 U.S. 308, 318 (1974). While the
trial court has discretion to limit the scope of cross-examination, that discretion only comes
into play if as a matter of right sufficient cross-examination has been permitted to satisfy the
sixth amendment. United States v. Lindstrom, 698 F.2d 1154 (11th Cir. 1983). The scope of
the court's discretion varies according to whether the cross-examination is directed at
attacking credibility or exposing bias. A trial court has broad discretion to restrict
cross-examination attacking the witness's credibility and may properly restrict inquiry into a
witness's prior felony convictions as opposed to mere arrests. The court's discretion is more
limited, however, when the purpose of cross-examination is to expose bias, and counsel must
be permitted to elicit any facts which might color a witness's testimony. Bushnell v. State, 95
Nev. 570, 599 P.2d 1038 (1979). Evidence of Dowell's prior arrests, none of which had
resulted in prosecution, was relevant to suggest that Dowell had a history of making deals
with the police. The trial court should have permitted the inquiry. Nevertheless, since the jury
had before it facts regarding the circumstances under which Dowell became a police
informant as well as the details of his arrangement with the prosecution, we conclude
that the basic bias was clearly inferable and that the error was harmless.
100 Nev. 38, 46 (1984) Crew v. State
facts regarding the circumstances under which Dowell became a police informant as well as
the details of his arrangement with the prosecution, we conclude that the basic bias was
clearly inferable and that the error was harmless.
Another important prosecution witness was Russell Crew's former roommate Willie
Goodman. While appellant was giving his second statement at the police station, Russell
Crew borrowed Goodman's car so that he could remove the bodies from the original burial
site. Goodman loaned him the car and went down to the police station to report the
conversation. Russell Crew was apprehended before he could carry out his plan. His
statements to Goodman were admitted at trial under NRS 51.035(3)(e), which provides that
the hearsay rule does not require exclusion of statements made by a co-conspirator of a party
during the course of and in furtherance of the conspiracy. Appellant contends that NRS
51.035(3)(e) is inapplicable. We disagree.
[Headnotes 17, 18]
For NRS 51.035(3)(e) to apply, the existence of the conspiracy must be established by
independent evidence. Carr v. State, 96 Nev. 238, 607 P.2d 114 (1980). A prima facie
showing of the conspiracy is sufficient. Goldsmith v. Sheriff, 85 Nev. 295, 304, 454 P.2d 86
(1969). Dowell's testimony provided sufficient independent evidence of a conspiracy between
appellant and Russell Crew.
[Headnote 19]
Appellant further contends that under the rule of Foss v. State, 92 Nev. 163, 547 P.2d 688
(1976), if a conspiracy existed, it terminated when appellant and Russell Crew buried the
victim's bodies. We see no reason to read Foss so narrowly. In Foss we recognized that the
duration of a conspiracy is not limited to the commission of the principal crime, but extends
to affirmative acts of concealment. Russell's plan to move the bodies was intended to avoid
detection in case appellant divulged the location of the bodies to the police. The plan was in
furtherance of the conspiracy to commit the crime and to get away with it. Statements made
in the course of carrying out the plan were properly admitted under the statute.
Appellant was sentenced to two consecutive life terms with the possibility of parole and
each sentence was enhanced under NRS 193.165(1) on grounds that he had used a firearm
and a knife in the commission of the crime. Appellant raises several challenges to this
sentence.
[Headnotes 20-22]
Initially, appellant contends that his sentence was improperly enhanced under NRS
193.165(1) because the weapons used constituted an element of the crime under NRS
193.165{3).5 The use of a deadly weapon is not a "necessary element of murder" under
NRS 193.165{1).
100 Nev. 38, 47 (1984) Crew v. State
constituted an element of the crime under NRS 193.165(3).
5
The use of a deadly weapon is
not a necessary element of murder under NRS 193.165(1). Williams v. State, 99 Nev. 797,
671, P.2d 635 (1983). Appellant also argues that the trial court should not have enhanced his
sentence on each count because both counts arose out of the same incident. Enhancement of
each count is proper unless there is truly only one offense. The test is whether each count
requires proof of an additional fact which the other does not. Woods v. State, 94 Nev. 435,
581 P.2d 444 (1978); Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975). The killings
of Nasse and Zappa were divisible acts and each count was subject to separate enhancement.
[Headnote 23]
Appellant further argues that since the Legislature did not leave the trial court any
discretion in imposing a sentence for first-degree murder but reserved that task for the jury, it
did not intend that sentence to be further modified. NRS 193.165(1) provides for
enhancement of any term of imprisonment imposed by statute. We see no reason to
superimpose upon the statutory language the exception which appellant seeks.
We have considered appellant's other contentions and have concluded that they are without
merit. Accordingly, we order appellant's conviction and sentence affirmed.
____________________

5
NRS 193.165(3) provides that there is no enhancement under subsection 1 when the use of a firearm or
other deadly weapon is a necessary element of the crime.
____________
100 Nev. 47, 47 (1984) Nevada Indus. Comm'n v. Hildebrand
NEVADA INDUSTRIAL COMMISSION, Appellant, v.
LAURA E. HILDEBRAND, Respondent.
No. 14357
January 25, 1984 675 P.2d 401
Appeal from order reversing decision of administrative appeals officer in worker's
compensation case. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Employee who sustained hematoma when sandwich bar board fell on her leg applied for
disability benefits. The Department of Administration Appeals officer affirmed hearing
officer's decision awarding five percent permanent partial disability to employee, and
employee petitioned for judicial review.
review. The district court found that employee qualified for odd-lot status for award of total
disability, and remanded case to Industrial Commission. On appeal, the Supreme Court held
that employee did not present sufficient evidence, medical or otherwise, to compel finding of
permanent disability, nor to show case of odd-lot disability, where neither her own surgeon
nor the Industrial Commission medical advisor indicated she suffered any disability that
would limit her activities; employee could not, by her own assertion of substantial limitation,
show a case of odd-lot qualification for award of permanent total disability.
Reversed.
David F. Sarnowski, Associate General Counsel, State Industrial Insurance System,
Carson City, for Appellant.
Smith and Gamble, Ltd., and David R. Gamble, for Respondent.
1. Workers' Compensation.
Worker may be eligible for permanent total disability benefits where worker has suffered a scheduled
injury, or worker qualifies under odd-lot doctrine, which provides for permanent total disability benefits
in certain cases for unscheduled injuries. NRS 616.575, subds. 1, 2.
As a general rule, determination of permanent total disability based on a scheduled injury requires
reference only to physical impairment of worker. NRS 616.575, subd. 1.
Consideration of factors other than physical impairment, including worker's age, experience, training and
education, is necessary to determine whether a nonscheduled injury qualifies worker for permanent total
disability benefits under odd-lot doctrine. NRS 616.575, subd. 2.
Focus of analysis in considering various factors to determine whether a nonscheduled injury qualifies
worker for permanent total disability benefits under odd-lot doctrine is on degree to which worker's
physical disability impairs worker's earning capacity or ability to work. NRS 616.575, subd. 2.
Determination of extent or permanency of employee's medical disability is question of fact and finding of
Industrial Commission will not be set aside unless it is against manifest weight of the evidence.
Upon judicial review of decision of Industrial Commission denying or awarding worker's compensation,
the district court may not substitute its judgment for that of the Commission as to weight to be given
evidence on questions of fact; the court is limited to the record before the Commission. NRS 233B.010
et seq., 233B.140, subds. 4, 5.
Worker who was injured when sandwich bar board fell on her leg did not present sufficient evidence,
medical or otherwise, to compel finding of permanent disability, and to show case of odd-lot disability
qualifying her for award of permanent total disability, where neither her own surgeon nor Industrial
Commission surgeon indicated that she suffered any disability that would limit her activities; worker could
not, by her own assertion of substantial limitation, show case of odd-lot qualification for an award of
permanent total disability. NRS 616.575, subd. 2.
OPINION
Per Curiam:
Respondent, Laura E. Hildebrand, while employed as a cook, sustained a hematoma on her
right knee when a sandwich bar board fell on her leg.
Hildebrand applied for disability benefits with the appellant, Nevada Industrial
Commission. (N.I.C.)
1
The Department of Administration Appeals Officer affirmed its
Hearing Officer's decision awarding five percent permanent partial disability to Hildebrand.
Hildebrand claimed that she qualified under the odd-lot doctrine for total disability. She filed
a petition for judicial review in the district court. The district judge ruled in favor of
Hildebrand and found that she did qualify for the odd-lot status and accordingly remanded the
case to the Commission.
THE FACTS
The accident occurred in 1976 during the course of Hildebrand's employment. The N.I.C.
benefits covered Hildebrand's medical treatment and hospitalization for resulting
thrombophlebitis.
In April of 1980 Hildebrand voluntarily retired at age 62. Her surgeon reported in
September 1980 that maximum treatment had been achieved and that Hildebrand's problems
related principally to subjective complaints. The N.I.C. medical advisor found that
Hildebrand had some swelling about the ankle and suggested that she receive a five percent
impairment on a body basis. N.I.C. offered rehabilitative services in October of 1980.
Hildebrand refused rehabilitation because she felt that she was not retrainable and because
she also had voluntarily retired from employment.
Hildebrand then applied for disability benefits. The Hearing Officer awarded a five percent
permanent partial disability on a body basis.
____________________

1
Since the time of the events in question the N.I.C. has been reorganized and is now known as the State
Industrial Insurance System. See 1981 Nev. Stat. ch. 642, p. 1449.
body basis. Hildebrand appealed the award arguing that she qualified for permanent lifetime
total disability under the odd-lot doctrine, or alternatively, that her case warranted an increase
above the five percent partial disability award. The Appeals Officer affirmed the decision.
However, the district court found that Hildebrand qualified for the odd-lot status.
THE ODD-LOT DOCTRINE
[Headnote 1]
The State of Nevada, like most other states, recognizes two types of cases in which a
worker may be eligible for permanent total disability benefits. The first situation is where the
worker has suffered a scheduled injury. The second situation is where the worker qualifies
under the odd-lot doctrine.
[Headnote 2]
Scheduled injuries are referred to as such because they are contained in a schedule of
enumerated injuries in a statute or regulation. The Nevada scheduled injuries are listed in
NRS 616.575(1),
2
which provide that in the absence of evidence to the contrary certain
named injuries, such as loss of both eyes or loss of both legs, shall be deemed permanent total
disabilities. As a general rule, the determination of permanent total disability based on a
scheduled injury requires reference only to the physical impairment of the worker.
On the other hand, a worker may qualify for permanent total disability benefits under the
odd-lot doctrine even if the worker's injury is not found in the statutory schedule. The
doctrine is generally recognized by use of a residuary catch-all clause following the list of
scheduled injuries. In Nevada, odd-lot situations are recognized by NRS 616.575(2)
3
which provides that the list of scheduled injuries is not exclusive, and that "in all other
cases permanent total disability must be determined by the insurer in accordance with
the facts presented."
____________________

2
NRS 616.575(1) states:
Permanent total disability: Injuries deemed total and permanent.
1. In cases of the following specified injuries, in the absence of proof to the contrary, the disability
caused thereby shall be deemed total and permanent:
(a) The total and permanent loss of sight of both eyes.
(b) The loss by separation of both legs at or above the knee.
(c) The loss by separation of both arms at or above the elbow.
(d) An injury to the spine resulting in permanent and complete paralysis of both legs or both arms, or
one leg and one arm.
(e) An injury to the skull resulting in incurable imbecility or insanity.
(f) The loss by separation of one arm at or above the elbow, and one leg by separation at or above the
knee.

3
NRS 616.575(2) states:
Permanent total disability: Injuries deemed total and permanent.
provides that the list of scheduled injuries is not exclusive, and that in all other cases
permanent total disability must be determined by the insurer in accordance with the facts
presented.
In determining whether a worker with a nonscheduled injury qualifies for permanent total
disability benefits under the odd-lot doctrine factors in addition to the physical impairment of
the worker must be taken into account. This is because, as Professor Larson has stated, the
odd-lot doctrine permits:
[T]otal disability [to] be found in the case of workers who, while not altogether
incapacitated for work, are so handicapped that they will not be employed regularly in
any well-known branch of the labor market. The essence of the test is the probable
dependability with which claimant can sell his services in a competitive labor market
. . . . 2 A. Larson, The Law of Workmen's Compensation, section 57.51 (1981).
Larson has also stated that the worker need not be in a state of utter and abject
helplessness to be considered permanently and totally disabled under the odd-lot doctrine.
Id.
[Headnotes 3, 4]
As noted above, consideration of factors other than physical impairment is necessary to
determine whether a nonscheduled injury qualifies the worker for permanent total disability
benefits under the odd-lot doctrine. Such factors may include, among others, the worker's age,
experience, training and education. See E. R. Moore Co. v. Industrial Com'n, 376 N.E.2d 206,
210 (Ill. 1978); Lyons v. Industrial Special Indem. Fund, 565 P.2d 1360 (Idaho 1977); see
generally 2 A. Larson, supra, at sec. 57.51. The focus of the analysis, in considering the
various factors, is on the degree to which the worker's physical disability impairs the worker's
earning capacity or ability to work. See E. R. Moore Co., 376 N.E.2d at 210.
JUDICIAL REVIEW
[Headnote 5]
Determination of the extent or permanency of the employee's medical disability is a
question of fact and the finding of the Commission will not be set aside unless it is against the
manifest weight of the evidence. Interlake Steel Corp. v. Industrial Com'n, 326 N.E.2d 744,
747 (Ill. 1975).
____________________
2. The enumeration in subsection 1 is not exclusive, and in all other cases permanent total disability
must be determined by the insurer in accordance with the facts presented.
[Headnote 6]
Upon judicial review the district court may not substitute its judgment for that of the
Commission as to the weight to be given the evidence on questions of fact. The limitation
upon the district court is set forth in the Administrative Procedure Act, NRS Chapter 233B.
The court is limited to the record before the Commission. NRS 233B.140(4). The district
judge may not substitute his judgment for the Commission's regarding the weight of the
evidence on questions of fact. NRS 233B.140(5).
[Headnote 7]
Hildebrand has not come forward with sufficient evidence, medical or otherwise, to
compel a finding of permanent disability. Neither her own surgeon nor the N.I.C. medical
advisor indicated that she suffered any disability that would limit her activities. Hildebrand
herself introduced these medical opinions; they were uncontradicted by competent medical
evidence. Hildebrand could not, by her own assertion of substantial limitation, show a case of
odd-lot qualification for an award of permanent total disability. The record contained
substantial evidence to support the ruling of the Commission. See Gandy v. State ex rel. Div.
Investigation, 96 Nev. 281, 607 P.2d 581 (1980).
For these reasons, we hold that the judgment of the district court was error and must be
reversed. The award of the Commission is reinstated.
____________
100 Nev. 53, 53 (1984) Rule-Dale Enterprises v. Kozlowski
RULE-DALE ENTERPRISES, INC., dba CONTINENTAL LEASING,
Appellant, v. MICHAEL G. KOZLOWSKI, Respondent.
No. 14784
January 25, 1984 675 P.2d 994
Appeal from a summary judgment in favor of defendant; Second Judicial District Court,
Washoe County; Grant L. Bowen, Judge.
The district court rendered summary judgment denying automobile lessor a deficiency
judgment, and it appealed. The Supreme Court held that lessor was not excepted from notice
requirements for establishing residual value because lease provided for an alternative method
for determining that value.
Affirmed.
Laurence A. Lacey, Minden, for Appellant.
Victor G. Drakulich, Reno, for Respondent.
Secured Transactions.
Original lease may not be substituted as an agreement between the parties for determining residual value
of an automobile as value fixing agreements provided for by statute refer only to writings executed by the
parties after lease has gone into effect and, hence, lessor, seeking deficiency judgment, was not excepted
from notice requirements for establishing residual value because lease provided for an alternative method.
NRS 100.145, subd. 1.
OPINION
Per Curiam:
This is an appeal from a summary judgment denying the plaintiff a deficiency judgment.
Appellant contends that it is excepted from the notice requirements for establishing a
vehicle's residual value because the lease involved in the present case provides for an
alternative method of determining residual value under NRS 100.145(1). We disagree.
NRS 100.145(1) provides a statutory method of establishing a vehicle's residual value
where the parties have not otherwise agreed in writing on that value or upon another method
of establishing that value. It is apparent that the legislature did not intend for the original
lease to be substituted as an agreement between the parties for determining residual value.
Such agreements refer only to writings executed by the parties after the lease has gone into
effect.
100 Nev. 53, 54 (1984) Rule-Dale Enterprises v. Kozlowski
Since the lessor has failed to notify the lessee of its intention to establish residual value as
required by NRS 100.155, the lessor is precluded from recovering any deficiency. NRS
100.175. We affirm the district court's granting of the summary judgment.
____________
100 Nev. 54, 54 (1984) Bergeron v. Loeb
RICHARD R. BERGERON, Appellant, v. NACKEY S. LOEB, Executrix of the Estate of
William Loeb, Deceased, Respondent.
No. 14465
January 25, 1984 675 P.2d 397
Appeal from a declaratory judgment by the Second Judicial District Court, Washoe
County; Robert L. Schouweiler, Judge.
Holder of claim against estate appealed from declaratory judgment of the district court that
holder's claim against estate was forever barred because he had failed to timely file claim in
proper court, and holder appealed. The Supreme Court held that federal court's determination
of ownership of assets of decedent's estate, which were under jurisdiction of state court,
would seriously interfere with state probate proceedings, and thus, holder's action was not
brought in the proper court as required by statute providing that suits against state
domiciliaries which are not filed in proper court within 60 days of their rejection by
administrator of estate are forever barred.
Affirmed.
[Rehearing denied October 4, 1984]
Lionel Sawyer & Collins, Reno, for Appellant.
Hawkins, Rhodes & Sharp, Reno, for Respondent.
1. Executors and Administrators.
Entire statutory scheme for distribution of estates demonstrates intention on part of legislature to ensure
speedy and certain distribution of decedents' estates. NRS 133.010 et seq., 143.035, 143.035, subd. 4(c),
145.010 et seq., 147.040, 147.130, subd. 1.
2. Courts; Judgment.
Probate is in nature of an in rem proceeding; in an action in rem, court acquires jurisdiction over estate
and all persons for purpose of determining their rights to any portion of estate, and likewise, when proper
notice has been given, action of probate court is conclusive as to all creditors and others interested in
estate.
3. Courts.
A court, state or federal, which first assumes jurisdiction of property is entitled to maintain and
exercise its jurisdiction, to exclusion of any other court, even to point of enjoining
proceedings in other court.
property is entitled to maintain and exercise its jurisdiction, to exclusion of any other court, even to point
of enjoining proceedings in other court.
Legal situs of shares registered in name of decedent and held in trust set up by decedent was where stock
certificates were located and trust was being administered.
5. Corporations; Courts.
Certificates of stock are the physical representation of that stock and court's possession of certificates
gives jurisdiction over the stock.
6. Courts.
Legal situs of shares is situs of certificates for those shares.
Administration of decedent's estate and trust in Nevada district court was in conformity with statute
which gives exclusive jurisdiction of settlement of estates to district court of county in which deceased was
resident at time of death. NRS 136.010.
8. Courts.
Federal courts of equity have jurisdiction to entertain suits in favor of creditors, legatees, and heirs and
other claimants against a decedent's estate to establish their claims.
9. Courts; Federal Courts.
Jurisdiction of federal courts of equity to entertain suits in favor of creditors, legatees, heirs, and other
claimants against a decedent's estate is an exception to general denial of diversity jurisdiction as to probate
matters, and the exception applies only so long as the federal court does not interfere with probate
proceedings or assume general jurisdiction of probate or control of property in custody of state court.
10. Courts; Executors and Administrators.
Federal court determination of ownership of assets of decedent's estate, which were under jurisdiction of
state court, would seriously interfere with state probate proceedings and necessitate assumption of control
over property now in custody of state district court, and thus suit claiming an interest in decedent's estate
which was brought in federal court was not brought in the proper court, and was barred under statute
providing that suits brought against estates of state domiciliaries which are not filed in proper court within
60 days of their rejection by administrator of estate are forever barred. NRS 147.130, subd. 1.
OPINION
Per Curiam:
This is an appeal from the district court's declaratory judgment in favor of respondent,
Nackey S. Loeb, Executrix, and against appellant, Richard R. Bergeron, who claims an
interest in the Estate of William Loeb, Deceased. There is no dispute as to the Nevada district
court's jurisdiction over the state proceeding. The lower court simply held that appellant's
claim against the estate was forever barred because he had failed to file the claim in the
proper court within the time limit as required by NRS 147.130{1).1 Although appellant
had filed his claim within the requisite 60 day period, the filing occurred in the federal
district court for New Hampshire.
file the claim in the proper court within the time limit as required by NRS 147.130(1).
1
Although appellant had filed his claim within the requisite 60 day period, the filing occurred
in the federal district court for New Hampshire.
The sole issue addressed is whether the district court erred in interpreting NRS 147.130(1)
as barring with prejudice the appellant's claim against the estate. We turn to consider the
propriety of that determination.
NRS 147.130(1) essentially provides that suits against the estates of Nevada domiciliaries
which are not filed in the proper court within 60 days of their rejection by the administrator of
the estate are forever barred. We must decide, then, what the legislature intended when it used
the phrase the proper court.
Appellant contends that the language the proper court denotes any court having subject
matter jurisdiction over the matter in controversy. He concludes, therefore, that the federal
district court has the requisite jurisdiction. Respondent, on the other hand, argues that
Nevada's strong policy favoring expeditious settlement and distribution of decedents' estates
would be frustrated if suit on a rejected claim was permitted in any court having subject
matter jurisdiction of the action. Respondent then concludes by urging that in instances such
as the one now before the court, the Nevada state district court is the proper court to exercise
sole jurisdiction over the estate assets. We agree with respondent.
In Welfare Div. v. Washoe Co. Welfare Dep't, we stated:
The leading rule for the construction of statutes is to ascertain the intention of the
legislature in enacting the statute. . . . The meaning of words used in a statute may be
sought by examining the context and by considering the reason or spirit of the law or
the causes which induced the legislature to enact it. The entire subject matter and the
policy of the law may also be involved to aid in its interpretation. . . . (Citations
omitted.)
88 Nev. 635, 637-38, 503 P.2d 457, 458-59 (1972).
____________________

1
NRS 147.130(1) provides:
When a claim is rejected by the executor or administrator or the district judge, in whole or in part, the
holder shall be immediately notified by the executor or administrator, and the holder must bring suit in
the proper court against the executor or administrator within 60 days after such notice, whether the claim
is due or not; otherwise the claim shall be forever barred. If the holder of a claim resides out of the
county, he may be informed of the rejection of his claim by written notice forwarded to his post office
address by registered or certified mail.
[Headnote 1]
NRS 147.130(1) is part of Title 12 of the Nevada Revised Statutes, relating to Wills and
Estates of Deceased Persons. The entire statutory scheme set out in Title 12 demonstrates an
intention on the part of the legislature to ensure the speedy and certain distribution of
decedents' estates. For example, NRS 143.035 requires that an executor or administrator use
reasonable diligence in administering an estate. It further requires him to file a report with the
court explaining why the estate has not been closed within six months of his appointment if
no federal tax return need be filed for the estate, and within eighteen months if a tax return is
required. Subsection 4(c) of this statute provides for revocation of the letters of an executor or
administrator who has not used reasonable diligence in the administration of an estate. In
addition, NRS 147.040 provides that claims against a decedent must be filed within ninety
days after the first publication of notice or be forever barred; and NRS Chapter 145 generally
provides for the summary administration of smaller estates. As we stated in Gardner Hotel
Supply v. Estate of Clark, 83 Nev. 388, 391, 432 P.2d 495, 497 (1967): The spirit and letter
of Nevada statutes relating to the filing of claims and administration of estates speak to the
policy of our laws that efficient and expedient administration is essential.
This is consistent with policy in other states respecting probate matters. See, e.g., Wittick
v. Miles, 545 P.2d 121, 126 (Or. 1976), in which the Supreme Court of Oregon stated that
[t]he purpose of the probate code is to facilitate prompt and economic administration of
estates and LoSasso v. Braun, 386 P.2d 630, 632 (Wyo. 1963), where it was noted that the
object of probate proceedings . . . is to wind up the affairs of a decedent in an orderly manner
and to make distribution of assets remaining to persons entitled as speedily as is practicable.
See also California Probate Code 714 which also provides a shortened limitation period for
the filing of rejected claims against an estate. The holder of such a claim must bring suit
within three months after notice of rejection if the claim is then due or if not, within two
month after it becomes due; otherwise the claim shall be forever barred.
If appellant is correct that the legislature intended to allow suit to be brought in any court
arguably possessing subject matter jurisdiction, then NRS 147.130(1) would be inconsistent
with the remainder of the statutory scheme and with the pronounced policy of this, and other
states, supporting the speedy resolution of probate proceedings. It is difficult to conceive of a
less efficient method of administering an estate than to require the Nevada district court
having jurisdiction over the assets of an estate to await the final adjudications, including
appeals, of any number of other courts that may be considering matters which could
materially and adversely affect Nevada's established authority to proceed.
the Nevada district court having jurisdiction over the assets of an estate to await the final
adjudications, including appeals, of any number of other courts that may be considering
matters which could materially and adversely affect Nevada's established authority to
proceed.
[Headnotes 2, 3]
This construction of NRS 147.130(1) is further supported by the fact that probate in
Nevada is in the nature of an in rem proceeding. In an action in rem, the court acquires
jurisdiction over the estate and all persons for the purpose of determining their rights to any
portion of the estate. When proper notice has been given, the action of the probate court is
conclusive as to all creditors and others interested in the estate. Monk v. Morgan, 192 P.
1042, 1044 (Cal.App. 1920), In re Estate of Seeger, 493 P.2d 281 (Kan. 1972). Bancroft's
Probate Practice, 40, 61 (2d ed. 1950). In addition, a court, state or federal, which first
assumes jurisdiction of property is entitled to maintain and exercise its jurisdiction, to the
exclusion of any other court, even to the point of enjoining proceedings in the other court. In
Kline v. Burke Const. Co., 260 U.S. 226, 229 (1922), the court stated:
It is settled that where a federal court has first acquired jurisdiction of the
subject-matter of a cause, it may enjoin the parties from proceeding in a state court of
concurrent jurisdiction where the effect of the action would be to defeat or impair the
jurisdiction of the federal court. Where the action is in rem the effect is to draw to the
federal court the possession or control, actual or potential, of the res, and the exercise
by the state court of jurisdiction over the same res necessarily impairs, and may defeat,
the jurisdiction of the federal court already attached. The converse of the rule is equally
true, that where the jurisdiction of the state court has first attached, the federal court is
precluded from exercising its jurisdiction over the same res to defeat or impair the state
court's jurisdiction.
[Headnotes 4-7]
In the instant case, the assets of the Loeb estate, in which appellant claims an interest, have
been and remain under the jurisdiction of the Nevada district court. In addition, the trust,
upon which appellant seeks to impose an equitable claim, was established and is being
administered under the auspices of this same court. The assets of this trust are some 3,750
shares of Union Leader Corporation stock, registered in the name of William Loeb, the
decedent. The legal situs of these shares is Nevada, where the stock certificates are located
and the trust is being administered.
being administered. Certificates of stock are the physical representation of the stock and the
court's possession of the certificates gives jurisdiction over the stock. The situs of the shares
is the situs of the certificates. Haughey v. Haughey, 9 N.W.2d 575 (Mich. 1943). Accord, In
re De Lano's Estate, 315 P.2d 611 (Kan. 1957). This administration of the decedent's estate
and trust is in conformity with NRS 136.010 which gives exclusive jurisdiction of the
settlement of estates to the district court of the county in which the deceased was a resident at
the time of death. Appellant's action in federal district court in New Hampshire essentially
petitions that court to determine the ownership of the trust res which is under the jurisdiction
of the Nevada district court.
[Headnotes 8, 9]
It is well established that federal courts of equity have jurisdiction to entertain suits in
favor of creditors, legatees and heirs' and other claimants against a decedent's estate to
establish their claims'. . . . Markham v. Allen, 326 U.S. 490, 494 (1945), rev'd in part on
other grounds, sub nom, Clark v. Allen, 331 U.S. 503 (1946). This is an exception to the
general denial of diversity jurisdiction as to probate matters. The exception applies, however,
only so long as the federal court does not interfere with the probate proceedings or assume
general jurisdiction of the probate or control of the property in the custody of the state court.
Id.
[Headnote 10]
Here, it is abundantly clear that having another court determine the ownership of a major
asset of the Loeb estate would seriously interfere with the Nevada state probate proceedings
and necessitate assumption by it of control over property now in the custody of the Nevada
district court. Although we cannot, and do not, decide the propriety of the New Hampshire
federal court's exercise of jurisdiction, we do conclude that appellant's action was not brought
in the proper court as required by NRS 147.130(1).
Accordingly, we affirm the judgment of the district court.
____________
100 Nev. 60, 60 (1984) Hansen v. Harrah's
EDWARD D. HANSEN, Appellant, v. HARRAH'S, a Nevada Corporation,
CLAIMS ADMINISTRATION SYSTEMS, INC., a California Corporation,
dba CDS OF NEVADA, Respondents.
No. 14341
PAUL D. LEWIS, Appellant, v. MGM GRAND
HOTEL, RENO, INC., Respondent.
No. 14391
January 25, 1984 675 P.2d 394
Consolidated appeals from judgments dismissing appellants' complaints. Hansen: First
Judicial District Court; Michael E. Fondi, Judge. Lewis: Second Judicial District Court,
Former employees brought separate actions alleging retaliatory discharge by former
employers stemming from former employees' filing of workmen's compensation claims. The
district courts dismissed the complaints and the former employees appealed. The cases were
consolidated and the Supreme Court held that: (1) retaliatory discharge by employer
stemming from filing of workmen's compensation claim by injured employee is actionable in
tort; (2) since such cause of action and its remedy are governed by law of torts, there is no
need for administrative relief within framework of state industrial insurance system and no
need to exhaust purported administrative remedies prior to such actions; and (3) in action for
retaliatory discharge, punitive damages are appropriate in cases where former employees can
demonstrate malicious, oppressive or fraudulent conduct on part of their former employers, in
causes of action arising subsequent to the present opinion.
Reversed and remanded.
Raymond Badger, Carson City, for Appellant Hansen.
Vargas & Bartlett, and Albert F. Pagni, Reno, for Respondents Harrah's and CDS of
Nevada.
Warren W. Goedert, Reno, for Appellant Lewis.
McDonald, Carano, Wilson, Bergin, Bible, Frankovich & Hicks, and Valerie N. Strandell,
Reno, for Respondent MGM Grand Hotel.
James Crockett and Nancyann Leeder, Carson City, of the Amicus Curiae Committee of
the Nevada Trial Lawyers Association, for Appellants.
1. Master and Servant.
At-will employment rule is subject to limited exceptions founded upon strong public policy.
2. Constitutional Law.
Failure of legislature to enact statute expressly forbidding retaliatory discharge by employer stemming
from filing of workmen's compensation claims by injured employee does not preclude Supreme Court from
providing a remedy for such tortious behavior.
Workmen's compensation laws reflect clear public policy favoring economic security for employees
injured while in the course of their employment.
Supreme Court liberally construes workmen's compensation laws to protect injured workers and their
families.
Retaliatory discharge by employer stemming from filing of a workmen's compensation claim by injured
employee is actionable in tort in light of fact that failure to recognize such cause of action would only
undermine worker's compensation act and strong public policy behind its enactment, declining to follow,
Martin v. Tapley, 360 So.2d 708; Segal v. Arrow Industries Corporation, 364 So.2d 89; Bottijliso v.
Hutchison Trust Company, 96 N.M. 789, 635 P.2d 992. NRS 616.010 et seq.
Since action for retaliatory discharge by employer stemming from filing of workmen's compensation
claim by injured employee and the remedy to such action are governed by law of torts, there is no basis for
administrative relief within framework of state industrial insurance system and no need to exhaust
purported administrative remedies prior to such action. NRS 616.010 et seq.
As with any intentional tort, punitive damages are appropriate in actions for retaliatory discharge by
employer stemming from filing of workmen's compensation claim by injured employee where employee
can demonstrate malicious, oppressive or fraudulent conduct on part of employer in accordance with
statutory provision. NRS 42.010.
In event that former employees are able to prove their allegations of retaliatory discharge by former
employers stemming from filing of workmen's compensation claims by such employees, employers'
conduct in present case does not justify imposition of punitive damages as it would be unfair to punish
employers for conduct which they could not have known beforehand was actionable; such damages may be
awarded in causes of action arising subsequent to the present opinion.
OPINION
Per Curiam:
These are consolidated appeals
1
from judgments dismissing both appellants' complaints.
____________________

1
The Court has determined that consolidation of these appeals will assist in their disposition. NRAP 3(b).
both appellants' complaints. For the reasons set forth hereinafter, we reverse and remand both
cases to the district court.
The facts of each case are as follows:
Hansen: Hansen was a pinball-video repairman for Harrah's. After he was injured at work,
Hansen filed a workmen's compensation claim. CDS, the claims administrator for Harrah's, a
self-insured employer,
2
rejected the claim. On appeal, however, a hearings officer decided
Hansen was entitled to full benefits. Harrah's subsequently fired Hansen. Hansen filed a
complaint alleging failure to pay benefits due
3
as well as retaliatory discharge and seeking
compensatory and punitive damages. Harrah's filed a motion to dismiss based on Hansen's
failure to exhaust administrative remedies under NRS 616, Nevada's Industrial Insurance Act
(Act). CDS has yet to answer Hansen's complaint. The trial court dismissed Hansen's
complaint with prejudice, and this appeal ensued.
Lewis: Lewis was an assistant bar manager for the Reno MGM, another self-insured
employer. Lewis suffered a hernia injury at work and made a workmen's compensation
claim. MGM's claims administrator initially denied his claim, but on appeal the hearings
officer ordered that payments be made to Lewis.
MGM then fired Lewis. Lewis filed a complaint alleging retaliatory discharge and seeking
compensatory and punitive damages. MGM thereafter filed a motion to dismiss, or in the
alternative, motion for summary judgment. The trial court, recognizing that Nevada has not
yet adopted the retaliatory discharge exception to the at-will employment rule and also
believing that creation of such a cause of action is a legislative prerogative, granted MGM's
motion and dismissed Lewis' complaint. This appeal ensued.
4

We first consider whether Nevada should adopt the public policy exception to the at-will
employment rule recognizing as a proper cause of action retaliatory discharge for filing a
workmen's compensation claim. Initially, it must be recognized that there is a significant split
of authority regarding this issue. See annot., 63 ALR3d 979 (1975). We are called upon now
to decide the issue for the first time.
____________________

2
Self-insured employer defined. Self-insured employer means any employer who possesses a
certification from the commissioner of insurance that he has the capability to assume the responsibility
for the payment of compensation under this chapter or chapter 617 of NRS.

3
Hansen apparently received his benefits after filing suit.

4
The Nevada Trial Lawyer's Association filed an amicus curiae brief on behalf of Hansen and Lewis.
The position asserted by Harrah's and MGM (employers) is grounded upon two principles:
(1) Nevada's common law at-will employment rule which allows employers to discharge
employees for any reason; and (2) the Nevada Legislature's intent, demonstrated by enactment
of extensive workmen's compensation laws, to provide statutory remedies as the exclusive
source of employees' relief. We are not persuaded.
[Headnotes 1, 2]
We realize that certain other jurisdictions have adopted the position employers here have
taken, e.g., Martin v. Tapley, 360 So.2d 708 (Ala. 1978); Segal v. Arrow Industries
Corporation, 364 So.2d 89 (Fla. 1978); Bottijliso v. Hutchison Fruit Company, 635 P.2d 992
(N.M. 1981), nevertheless, the at-will employment rule is subject to limited exceptions
founded upon strong public policy; and the failure of the legislature to enact a statute
expressly forbidding retaliatory discharge for filing workmen's compensation claims does not
preclude this Court from providing a remedy for what we conclude to be tortious behavior.
[Headnotes 3, 4]
Nevada's workmen's compensation laws reflect a clear public policy favoring economic
security for employees injured while in the course of their employment. It has been a
long-standing policy of this Court to liberally construe such laws to protect injured workers
and their families.
Unquestionably, compensation laws were enacted as a humanitarian measure. The
modern trend is to construe the industrial insurance acts broadly and liberally, to protect
the interest of the injured worker and his dependents. A reasonable, liberal and practical
construction is preferable to a narrow one, since these acts are enacted for the purpose
of giving compensation, not for the denial thereof.
Nevada Industrial Commission v. Peck, 69 Nev. 1, 10-11, 239 P.2d 244, 248 (1952). Failure
to recognize the cause of action of retaliatory discharge for filing a workmen's compensation
claim would only undermine Nevada's Act and the strong public policy behind its enactment.
The Supreme Court of Indiana first recognized this rationale and created a cause of action in
Frampton v. Central Indiana Gas Company, 297 N.E.2d 425, 427 (Ind. 1973):
The Act creates a duty in the employer to compensate employees for work-related
injuries (through insurance) and a right in the employee to receive such compensation.
But in order for the goals of the Act to be realized and for public policy to be
effectuated, the employee must be able to exercise his right in an unfettered
fashion without being subject to reprisal.
public policy to be effectuated, the employee must be able to exercise his right in an
unfettered fashion without being subject to reprisal. If employers are permitted to
penalize employees for filing workmen's compensation claims, a most important public
policy will be undermined. The fear of being discharged would have a deleterious effect
on the exercise of a statutory right. Employees will not file claims for justly deserved
compensationopting, instead, to continue their employment without incident. The
end result, of course, is that the employer is effectively relieved of his obligation.
Many other states, as a result of similar reasoning, have also adopted or recognized a public
policy exception to the at-will rule making retaliatory discharge for filing a workmen's
compensation claim actionable in tort. Sventko v. Kroger Company, 245 N.W.2d 151 (Mich.
1976); Kelsay v. Motorola, Inc., 384 N.E.2d 353 (Ill. 1978); Brown v. Transcon Lines, 588
P.2d 1087 (Ore. 1978); Lally v. Copygraphics, 428 A.2d 1317 (N.J. 1981); Murphy v. City of
Topeka-Shawnee County Department of Labor Services, 630 P.2d 186 (Kan. 1981); Parnar v.
Americana Hotels, Inc., 652 P.2d 625 (Hawaii 1982).
We know of no more effective way to nullify the basic purposes of Nevada's workmen's
compensation system than to force employees to choose between a continuation of
employment or the submission of an industrial claim. In the absence of an injury resulting in
permanent total disability, most employees would be constrained to forego their entitlement
to industrial compensation in favor of the economics necessity of retaining their jobs.
Moreover, Nevada's employers have enjoyed immunity from common law tort claims by
injured employees because of the state policy to compensate employees for work-related
injuries regardless of fault. It would not only frustrate the statutory scheme, but also provide
employers with an inequitable advantage if they were able to intimidate employees with the
loss of their jobs upon the filing of claims for insurance benefits as a result of industrial
injuries.
[Headnotes 5, 6]
In view of the foregoing, our course is clear. We elect to support the established public
policy of this state concerning injured workmen and adopt the narrow exception to the at-will
employment rule recognizing that retaliatory discharge by an employer stemming from the
filing of a workmen's compensation claim by an injured employee is actionable in tort. Since
both the cause of action and the remedy are governed by the law of torts, there is no basis for
administrative relief within the framework of the state industrial insurance system, and
hence no need to exhaust purported administrative remedies as suggested by employers.
the framework of the state industrial insurance system, and hence no need to exhaust
purported administrative remedies as suggested by employers.
[Headnote 7]
We are also asked to rule upon the availability of punitive damages in an action for
unlawful discharge in retaliation for filing a workmen's compensation claim. We hold that, as
with any intentional tort, punitive damages are appropriate in cases where employees can
demonstrate malicious, oppressive or fraudulent conduct on the part of their employers in
accordance with NRS 42.010. Indeed, the threat of punitive damages may be the most
effective means of deterring conduct which would frustrate the purpose of our workmen's
compensation laws.
[Headnote 8]
Imposition of punitive damages in the instant cases, however, would be unfair. We have
stated that the justification for punitive damages is to punish the offender and deter others.
Summa Corporation v. Greenspun, 96 Nev. 247, 257, 607 P.2d 569, 575 (1980). It would be
unfair to punish employers for conduct which they could not have known beforehand was
actionable in this jurisdiction. Using this same reasoning, other courts have likewise held that
punitive damages should not be awarded in the case which initially adopts this new cause of
action. Kelsay, 384 N.E.2d at 360; Brown, 588 P.2d at 1095; Murphy, 630 P.2d at 193.
Therefore, assuming appellants are able to prove their allegations of retaliatory discharge
against employers, the latters' conduct in the instant cases does not justify the imposition of
punitive damages. Punitive damages may be, however, appropriately awarded for any such
cause of action that arises subsequent to this opinion.
We reverse and remand both cases for action consistent with this opinion, with the proviso
that, in the event either employee or both employees prevail at trial, no punitive damages be
awarded.
The judgments dismissing appellants' complaints are reversed and remanded.
____________
100 Nev. 66, 66 (1984) Ma-Gar Mining v. Comstock Bank
MA-GAR MINING & EXPLORATION CORPORATION, Appellant, v. COMSTOCK
BANK, a State Bank Organized Under the Laws of the State of Nevada, and MARIE
WOLF, THEODORE H. STOKES, THOMAS CLARNO, ROBERT WHEAR, LOU
MASTIS, DEE McLEMORE, Individually, and as Members of the Board of Directors,
Respondents.
No. 14601
January 25, 1984 675 P.2d 992
Appeal from summary judgment. First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
Borrower appealed from order of the district court granting lender summary judgment. The
Supreme Court held that issues of material fact existed as to whether loan was subject to
renewal commitment by bank which was breached and whether bank could properly exercise
its right of setoff against borrower's payroll account.
F. Thomas Eck III, Carson City, for Appellant.
Allison, Brunetti, MacKenzie, Hartman, Soumbeniotis & Russell, Carson City, for
Respondents.
1. Judgment.
Issues of material fact existed as to whether loan was subject to renewal commitment by bank which was
breached and whether bank could properly exercise its right of setoff against borrower's payroll account,
precluding summary judgment in borrower's suit against bank. NRCP 56(e).
2. Evidence.
Because agreement to renew would not contradict loan transaction as established by parties' written
documents, parol-evidence rule was inapplicable.
3. Evidence.
Parol-evidence rule should be no obstacle to resolution of uncertainties or ambiguities created by
apparent conflict between written terms of agreement and practical construction placed on written terms by
express oral understanding of parties.
4. Evidence.
Justification for admissibility of parol-evidence may be found in resolution of ambiguity or uncertainty.
OPINION
Per Curiam:
This is an appeal from an order granting summary judgment. For reasons set forth
hereinafter, we reverse the summary judgment and remand the case for trial.
Appellant Ma-Gar Mining & Exploration Corporation (Ma-Gar) borrowed $30,000.00
from respondent Comstock Bank (Bank). Pursuant to the loan terms, Thurman Overfelt, as
president of Ma-Gar, executed a promissory note, security agreement and continuing
guarantee. The loan was apparently over-secured by personal property of Ma-Gar consisting
of vehicles and machinery. At the time of the loan, Ma-Gar had two checking accounts with
Bank: a general account and payroll account. When the note became due, Bank apparently
refused to renew the loan and demanded payment in full the following day. Because payment
was not made, Bank's board of directors elected to exercise its right of setoff against both of
Ma-Gar's checking accounts and apply this sum toward the amount due. Three weeks later,
Ma-Gar paid the balance due on the note.
Ma-Gar subsequently filed suit against Bank. Bank filed its answer and later its motion for
summary judgment, which Ma-Gar opposed. The district court granted summary judgment
for Bank, finding that there was no genuine issue as to any material fact and that Bank was
entitled to judgment as a matter of law. We disagree. Because there were genuine issues as to
material facts still in dispute, the summary judgment must be reversed and the case remanded
for trial.
[Headnotes 1, 2]
There are at least two issues of material fact which remain in dispute. First, we consider
whether Ma-Gar's loan was subject to a renewal commitment by Bank which was breached.
Ma-Gar opposed the motion for summary judgment with an affidavit by Overfelt indicating
that at the time the loan was closed Overfelt was assured by Bank's president that the note
would be renewed upon maturity if needed by MA-GAR. Because such an agreement to
renew would not contradict the loan transaction as established by the parties' written
documents, the parol evidence rule is inapplicable.
[Headnotes 3, 4]
Second, whether Bank could properly exercise its right of setoff against Ma-Gar's payroll
account is dependent upon whether Bank agreed that the account was a trust fund for
employees and unavailable for setoff. Overfelt's affidavit also states that he and Bank's
president considered the payroll account trust funds for the benefit of employees and that he
has been informed by MR. LANDING that at no time did he as President of COMSTOCK
BANK consider the payroll funds available for offset and that such an offset was considered
by him to be a violation of banking practices and a violation of any understanding between
your Affiant and COMSTOCK BANK. Although the loan instruments prepared by Bank
made "boilerplate" reference to the availability of special accounts for setoff, it is unclear
that the payroll account in question would fit in that category.
made boilerplate reference to the availability of special accounts for setoff, it is unclear that
the payroll account in question would fit in that category. In particular, if the then Bank
president agreed with Overfelt to specifically exclude the payroll account as a source of
setoff, the intention and agreement of the parties should be respected. The parol evidence rule
should be no obstacle to the resolution of uncertainties or ambiguities created by an apparent
conflict between the written terms of an agreement and the practical construction placed on
the written terms by an express oral understanding of the parties. While the term special
account may have an accepted commercial meaning, and while a payroll account may, under
ordinary circumstances, be properly considered to be within the special account category, it
may not be clear to the ordinary borrower. In any event, if it is shown that both parties
considered the payroll account to be a trust account outside the special account classification,
this should be controlling. Justification for the admissibility of parol may be found in the
resolution of ambiguity or uncertainty.
The statements made by Overfelt in his affidavit comport with NRCP 56(e) requiring him
to set forth specific facts showing that there is a genuine issue for trial. The rule is, of
course, well recognized that the party opposing summary judgment is entitled to have all
evidence in his favor accepted as true. Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d 258, 260
(1981). Accepting Overfelt's statements as true, we find that there are genuine issues of
material fact which remain in dispute. The trial court therefore erred in granting summary
judgment.
In view of our disposition of the issues noted above, it is unnecessary to address other
issues raised by the parties. Upon remand, appellant will be entitled to pursue the theories of
his complaint at trial.
The order of the district court is reversed and the case remanded for trial on the merits.
____________
100 Nev. 68, 68 (1984) Ravera v. City of Reno
BERT A. RAVERA, Appellant, v. CITY OF RENO, NEVADA;
McKENZIE CONSTRUCTION, INC., Respondents.
No. 13965
January 26, 1984 675 P.2d 407
Appeal from orders of dismissal, Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Plaintiff brought action against city and construction company to recover for alleged
violations of constitutional rights. The district court denied plaintiff's motion to amend order
striking his name from the pleadings and ordered that all pleadings, papers and documents
filed in the case be stricken as fugitive documents, and plaintiff appealed. The Supreme Court
held that where order striking plaintiff's name from all of previous pleadings effectively
dismissed the case, but parties participated in further proceedings for almost a year and a half,
and no objection by defendant was ever made to the proceedings, the court was revested with
jurisdiction over the proceedings before it.
Affirmed in part, reversed in part and remanded.
Dyer & Stout, Reno, for Appellant.
Shamberger, Georgeson, McQuaid & Thompson, and Hale, Lane, Peek, Dennison &
Howard, Reno, for Respondents.
1. Pleading.
The test for determining whether allegations of a cause of action are sufficient to assert a claim for relief
is whether the allegations give fair notice of the nature and basis of the claim and the relief requested.
2. Conspiracy.
Plaintiff's allegation that defendant construction company participated in an alleged conspiracy in
connection with city's refusal to transfer certain water rights to plaintiff were insufficient to allege cause of
action for conspiracy.
3. Pretrial Procedure.
Generally, once a case has been dismissed, a court loses jurisdiction to consider further proceedings.
Where order striking plaintiff's name from all of previous pleadings effectively dismissed the case, but
parties participated in further proceedings for almost a year and a half, and no objection by defendant was
ever made to the proceedings, the court was revested with jurisdiction over the proceedings before it.
OPINION
Per Curiam:
This is an appeal from an order dismissing the complaint against respondent McKenzie
Construction Co. (McKenzie) for failure of the complaint to state a claim for relief, and from
an order striking appellant's pleadings on the ground that the lower court lacked jurisdiction
over the case. We will deal with each order in turn.
Court proceedings in this case were initiated when a petition for a writ of mandamus
which listed Diversified Financing, Inc. and appellant Bert Ravera as petitioners was filed
to compel respondent City of Reno and its agencies to grant an increase in allotted water
rights. Diversified Financing, Inc. lost its interest in the property to which the water rights
were to be transferred, and the case was dismissed as to Diversified for being moot.
for a writ of mandamus which listed Diversified Financing, Inc. and appellant Bert Ravera as
petitioners was filed to compel respondent City of Reno and its agencies to grant an increase
in allotted water rights. Diversified Financing, Inc. lost its interest in the property to which
the water rights were to be transferred, and the case was dismissed as to Diversified for being
moot. On April 22, 1980, the lower court entered an order striking Ravera's name from all of
the pleadings in the action because the pleadings did not state a claim for relief on his behalf
and because Ravera had not authorized suit on his behalf. At this point there were no
petitioners in the suit and effectively the case ended.
On June 4, 1980, Ravera filed a complaint under the same docket number, again
requesting that the City be compelled to transfer the water rights to appellant. Ravera also
requested an award of damages for the injuries he suffered as a result of respondents' alleged
wrongful actions. A summons and complaint were served on all parties then involved in the
case.
On November 26, 1980, Ravera amended his complaint to include McKenzie as a
defendant in the case. McKenzie moved to dismiss the complaint on the grounds that it failed
to assert a claim for relief. The court granted that motion.
Discovery and other routine pretrial matters were pursued in the case until October 14,
1981. On that date the district court expressed its concern that as of the date of the order
striking Ravera's name from all of the pleadings in the proceedings for mandamus relief the
case was resolved and all the subsequent pleadings were fugitive documents. Ravera filed a
motion to amend the order striking his name from the pleadings. He also requested that he be
allowed to file, nunc pro tunc, amended pleadings. The lower court denied this motion and
ordered all the pleadings, papers, and documents filed in the case stricken as fugitive
documents. This appeal ensued.
1. DISMISSAL OF McKENZIE CONSTRUCTION CO.
Appellant contends that he sufficiently alleged five causes of action against McKenzie in
his amended complaint. He contends therefore that the court erred in dismissing McKenzie.
We disagree.
[Headnotes 1, 2]
The test for determining whether the allegations of a cause of action are sufficient to assert
a claim for relief is whether the allegations give fair notice of the nature and basis of the
claim and the relief requested. Branda v. Sanford, 97 Nev. 643, 637 P.2d 1223 (1981); Crucil
v. Carson City, 95 Nev. 583, 600 P.2d 216 (1979); Taylor v. State and Univ., 73 Nev. 151,
311 P.2d 733 (1957). In the present case appellant has alleged three causes of action for
violation of various constitutional rights, which violations are actionable pursuant to 42
U.S.C. 19S3; a fourth cause of action alleging a conspiracy by respondents to cause
appellant the injuries described in the complaint; and various other causes of action.
which violations are actionable pursuant to 42 U.S.C. 1983; a fourth cause of action
alleging a conspiracy by respondents to cause appellant the injuries described in the
complaint; and various other causes of action. None of the causes of action other than the
conspiracy cause of action allege any conduct by McKenzie which caused appellant injury.
The only allegation made against McKenzie is that it participated in the conspiracy to
violate appellant's rights. Such an allegation is not sufficient to allege a cause of action for
conspiracy. See Espinoza v. O'Dell, 633 P.2d 455, 468-469 (Colo. 1981), cert. granted, 454
U.S. 1122 (1981), cert. dismissed, 456 U.S. 430 (1982); Mosher v. Saalfeld, 589 F.2d 438
(9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Additionally, the allegations do not
sufficiently give notice of the nature of the claims or the relief requested. Accordingly, we
affirm the district court's dismissal of McKenzie.
2. ORDER STRIKING DOCUMENTS AND DENYING LEAVE TO AMEND.
The lower court entered its order striking appellant's pleadings, papers, and documents,
and denying appellant leave to amend, on the ground that there was no case in existence after
it entered its order striking Ravera's name from all of the pleadings filed in the mandamus
proceedings. It indicated that an action concerning the matters raised in the petition would
have to be brought in a new case. We disagree.
[Headnote 3]
The order striking Ravera's name from all of the previous pleadings effectively dismissed
the case. See King v. W. R. Hall Transp. & Storage Co., 641 P.2d 916 (Colo. 1983); Hatley v.
Schmidt, 471 S.W.2d 440 (Tex.Civ.App. 1971). Generally, once a case has been dismissed a
court loses jurisdiction to consider further proceedings. Randle-Eastern Ambulance Service v.
Vasta, 360 So.2d 68 (Fla. 1978); Firestone Tire & Rubber Company v. Barnett, 475 P.2d 167
(Okla. 1970); Firchau v. Gaskill, 558 P.2d 194 (Wash. 1977). In Illinois, the courts hold that
if the parties to a dismissed case actively participate in further proceedings without objection,
and the further proceedings are inconsistent with the dismissal, then the court is revested with
jurisdiction over the further proceedings. Sabatino v. Kozy Kottage Inn, Inc., 430 N.E.2d 73
(Ill.App.Ct. 1981); In Interest of F.D., 411 N.E.2d 1200 (Ill.App.Ct. 1980). We are persuaded
by the reasoning of the Illinois courts.
[Headnote 4]
In the present case the parties participated in further proceedings for almost a year and
one-half. No objection by respondent was ever made to the proceedings. Additionally, the
proceedings were inconsistent with the dismissal.
the proceedings were inconsistent with the dismissal. In such circumstances we hold that the
court was revested with jurisdiction over the proceedings before it. Accordingly, the lower
court's order striking appellant's pleadings, papers, and documents, and denying appellant
leave to amend, is reversed and the case is remanded for further proceedings.
Springer, Mowbray, Steffen, and Gunderson, JJ., and Fondi, D. J.,
1
concur.
____________________

1
The Governor designated the Honorable Michael E. Fondi, Judge of the First Judicial District Court, to sit
in the place of The Honorable Chief Justice Noel E. Manoukian, who voluntarily disqualified himself. Nev.
Const., art. 6 4.
____________
100 Nev. 72, 72 (1984) Bing Constr. v. Vasey-Scott Eng'r
BING CONSTRUCTION COMPANY OF NEVADA, a Nevada Corporation, Appellant, v.
VASEY-SCOTT ENGINEERING COMPANY, INC., a Nevada Corporation; and B.
JAMES VASEY and BRUCE R. SCOTT, Individually; and THE BOARD OF
COUNTY COMMISSIONERS OF DOUGLAS COUNTY; and the TOWN BOARD OF
THE TOWN OF MINDEN, an Unincorporated Town, Respondents.
No. 13426
January 27, 1984 674 P.2d 1107
Appeal from money judgment, Ninth Judicial District Court, Douglas County; Michael R.
Griffin, Judge.
Action was brought seeking damages for delay which prevented timely performance of
contract. The district court made an award to plaintiff, and plaintiff appealed. The Supreme
Court held that findings were inadequate and that plaintiff was entitled to interest.
George Abbott, Minden, for Appellant.
Brent Kolvet, District Attorney, Douglas County; Manoukian, Scarpello & Alling, and Bill
Huss, Carson City, for Respondents.
1. Trial.
Findings of fact which merely stated that detailed itemization of each disputed item would
require small volume and that evidence substantiated monetary award given were
inadequate and required remand.
each disputed item would require small volume and that evidence substantiated monetary award given were
inadequate and required remand. NRCP 52(a).
2. Interest.
Party which prevailed on claim for damages based on delay preventing timely performance of contract
was entitled to prejudgment interest from date money was due as determined by trial court. NRS 99.040.
OPINION
Per Curiam:
This is an appeal from a judgment in which the lower court determined that appellant was
entitled to additional compensation for delays which prevented appellant from performing
its contract with respondents on time. In its complaint appellant alleged that it had suffered
$136,000.00 as damages due to the delay. The lower court, however, awarded only a lump
sum amount of $26,000.00. The court stated: A detailed itemization of each item disputed
under each possible claim of the parties would require a decision the length of a small
volume. The evidence presented has substantiated the claims that have been allowed.
[Headnote 1]
After the lower court entered its judgment, appellant moved to amend the findings of fact
and conclusions of law to clarify, among other things, the basis of the court's monetary award.
The court denied the motion and this appeal followed. Appellant contends that the lower
court's findings of fact do not adequately set forth the factual underpinnings for its monetary
award. We agree.
In actions tried without a jury, the district court is required to make specific findings of
fact and conclusions of law. NRCP 52(a). The findings must be sufficient to indicate the
factual bases for the court's ultimate conclusions. See Lagrange Constr. v. Del E. Webb Corp.,
83 Nev. 524, 435 P.2d 515 (1967). The lump sum damage award in the present case, without
further explanation of its constituent parts, prevents effective review of the propriety of the
award. Although a detailed itemization of the damage award was not necessary, the district
court should have at least set forth the various categories of damages and the amount
designated to each category. Accordingly, it is necessary to remand this case to the district
court to set forth the basis for its monetary award.
Appellant also argues that the lower court erred in refusing to award interest on the
judgment.
[Headnote 2]
At the time the court entered its judgment in this case, NRS 99.040 provided in part that:
When there is no express contract in writing fixing a different rate of interest, interest
shall be allowed at the rate of 8 percent per annum upon all money from the time it
becomes due, in the following cases:
1. Upon contracts, express or implied, other than book accounts.
1

This provision allows for pre-judgment interest from the date the money becomes due, which
date is to be determined by the trial court. Paradise Homes v. Central Surety, 84 Nev. 109,
437 P.2d 78 (1968). On remand the district court shall also determine the date the money
awarded became due and award appellant interest at the rate of 8 percent per annum on the
money awarded from that date. The judgment of the district court is affirmed in all other
respects. This case is remanded for further proceedings consistent with the views expressed in
this opinion.
2

Springer, Mowbray, Steffen, and Gunderson, JJ., and Guinan, D. J.,
3
concur.
____________________

1
The legislature increased the interest rate by amending the statute in 1981. See 1981 Nev. Stats. ch. 739,
3, at 1859. The interest to be awarded under NRS 99.040 is that which is statutorily provided for at the time the
judgment is entered. See Laughlin Recreational v. Zab Dev., 98 Nev. 285, 646 P.2d 555 (1982); Daniel v. Hilton
Hotels Corp., 98 Nev. 113, 116 n.2, 642 P.2d 1086, 1088 (1982).

2
This opinion will constitute our disposition of this appeal. Any review of the district court's rulings on
remand shall be taken and docketed as a new appeal.

3
The Governor designated the Honorable James J. Guinan of the Second Judicial District Court, to sit in the
place of The Honorable Chief Justice Noel E. Manoukian, who voluntarily disqualified himself. Nev. Const. art
6, 4.
____________
100 Nev. 74, 74 (1984) Mazzan v. State
JOHN FRANCIS MAZZAN, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 12437
January 30, 1984 675 P.2d 409
Appeal from judgment of conviction upon jury verdict of first degree murder and from
imposition of death penalty. Second Judicial District Court, Washoe County; Peter I. Breen,
Judge.
Defendant was convicted upon a jury verdict in district court of first degree murder, was
sentenced to death, and he appealed. The Supreme Court held that: (1) exclusion of
prospective juror was proper and did not violate defendant's due process rights, where during
voir dire it became evident that prospective juror would automatically exclude death penalty
as an appropriate sentence irrespective of the nature of the evidence; (2) evidence was
sufficient to support verdict of first degree murder; and (3) harshly antagonistic remarks by
defendant's trial counsel, and failure to effectively present evidence of mitigating
circumstances, during penalty phase of trial constituted ineffective assistance of counsel.
Judgment of conviction affirmed; sentence vacated and remanded.
David G. Parraguirre, Public Defender, Jane G. McKenna, Deputy Public Defender, for
Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Gary H.
Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Constitutional Law; Jury.
Where in course of voir dire in first degree murder trial it became evident that venireman would
automatically exclude death penalty as an appropriate sentence irrespective of nature of the evidence, trial
court's decision to excuse venireman for cause was fully justified and did not violate defendant's due
process rights. U.S.C.A.Const. Amend. 14.
2. Homicide.
Evidence, which included defendant's admission that he was at scene of killing when fatal attack
occurred, proof that defendant had purchased jogging shoes whose pattern matched footprint in blood near
victim, testimony that no money was found on victim's premises despite reports that victim had money
there, and testimony that defendant had two or three-inch roll of bills two days after the killing, was
sufficient to support jury verdict of first degree murder.
3. Criminal Law.
Denial of right to effective assistance of counsel during penalty phase of trial requires that sentence be
vacated. U.S.C.A.Const. Amend. 6.
4. Criminal Law.
Trial counsel's failure to effectively present evidence of mitigating circumstances at sentencing phase of
first degree murder trial, together with antagonistic remarks to jury harshly berating jurors for having
returned guilty verdict, constituted ineffective assistance of counsel. U.S.C.A.Const. Amend. 6.
5. Criminal Law.
Where Supreme Court was unable to perceive any reason or motive consistent with even a modicum of
effective advocacy behind trial counsel's antagonistic remarks to jury and failure to effectively present
evidence of mitigation circumstances during penalty phase of first degree murder trial in which
death penalty was possible, evidentiary hearing before district judge as to motives or
strategy behind defense counsel's performance would not be necessary to support
finding of ineffective assistance of counsel.
first degree murder trial in which death penalty was possible, evidentiary hearing before district judge as to
motives or strategy behind defense counsel's performance would not be necessary to support finding of
ineffective assistance of counsel. U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction upon a jury verdict of first degree murder
and from imposition of the death penalty. For reasons set forth hereinafter, we affirm the
conviction of first degree murder, vacate the imposition of the death penalty and remand the
case for a new penalty hearing and sentencing.
Much of the last twenty-four hours of the life of the victim were spent with appellant. The
victim and appellant were apparently friends, having been introduced because of a common
denominator involving drugs. Four witnesses saw the victim and Mazzan together during the
day preceding the occasion of the victim's death. The last of the four witnesses was with the
victim at the latter's residence until approximately 12:20 a.m. on December 21, 1978. Later
that morning, the victim's father came by to visit his son. The door was slightly ajar, despite
the fact that the victim was in the habit of locking his door with a door-knob lock, a deadbolt
lock and a latch. The victim's father entered the kitchen area of the small one-room residence
and saw his son lying dead in a pool of blood.
Police investigating the scene found that the decedent had been stabbed fifteen times.
Many of the chest wounds had the same depth and angle, suggesting that the victim was
probably asleep at the time of the attack and did not immediately react. The pattern of holes
in a bloody blanket near the victim which matched the stab wounds on the body, the blood
surrounding those blanket holes and the blood on the couch also suggested that he was asleep
on the couch when he was first assaulted. The attack apparently concluded in the kitchen area,
just three or four strides from the couch. Footprints in the pool of blood surrounding the
victim contained only one unaccounted for shoe pattern, a nobbed sole without a great deal of
wear. No bloody footprints were found in the snow outside the residence. No sign of forced
entry to the residence was detected. Investigators also found no money or narcotics on the
premises, although the victim was known to have both shortly before his death.
Mazzan was contacted by investigators in Las Vegas and later in Reno concerning his
knowledge of events surrounding the victim's death. Mazzan said he left the victim just after
midnight. When police asked Mazzan about some blood on the inside of his car window, he
admitted he was at the scene of the killing when the attack occurred.
inside of his car window, he admitted he was at the scene of the killing when the attack
occurred.
Mazzan offered the following explanation of events leading up to the victim's violent
demise. During the evening he and the victim had been smoking a considerable amount of
high quality Hawaiian marijuana and taping records. When Mazzan went to leave around
1:00 or 2:00 a.m. his car wouldn't start so he asked if he could spend the night. The victim
gave Mazzan a pillow and blanket and Mazzan went to sleep behind the couch. Mazzan next
remembers being awakened at dawn by the sound of scuffling. He saw an unknown assailant
struggle with the victim and run out the door. Mazzan then heard two people run away and
drive off in a car. Mazzan thereupon panicked and drove home. He never reported the
incident, purportedly because he was afraid of being mixed up in a drug-related killing. When
Mazzan arrived at home, he cleaned his shoes and washed his hands for a long time. He
also had his clothes laundered. When police questioned Mazzan about some jogging shoes
which he had purchased four months earlier, the pattern of which matched the nobbed sole
footprint in the blood at the scene, Mazzan replied that he had thrown them out a month
before because they had worn out.
The afternoon of the day of the killing Mazzan went to work and conducted business as
usual. Two days later while commenting about coming into some money, he paid his
delinquent rent of $100.00 from a twoor three-inch roll of bills. That same day he paid
$139.90 in cash for a necklace for his wife. Soon thereafter he flew to Las Vegas. Later, three
ounces of marijuana and some other narcotics were found at Mazzan's residence.
During the penalty stage of the trial, Mazzan's counsel had the opportunity and obligation
to present any evidence of mitigating circumstances. He chose, instead, to harshly berate the
jury for returning its guilty verdict during the prior phase.
1
Counsel neither presented any
witnesses nor substantially argued any mitigating considerations on his client's behalf;
instead, he displayed an open disdain for the jury and virtually invited the jurors to condemn
his client to death. The transcript of defense counsel's unique presentation during the penalty
phase covers only four pages.
____________________

1
Mazzan's counsel called the jury's verdict of guilty the greatest act of irresponsibility that I have ever seen.
He also told the jury [I]f you are the conscience of this community, then, I am ashamed to be a member of it.
Finally, counsel, who was arguing on the day that Jesse Bishop was executed in Nevada, testily declared:
If you people favor the death penalty, if you people are considering the death penalty, today is the day for
it. Does this make you happy?
Mazzan first assails his convictions in the guilt phase of his trial by contending that his due
process rights were violated when the trial court excused a prospective juror for cause when
she voiced objections to the death penalty. The touchstone case regarding this issue is
Witherspoon v. Illinois, 391 U.S. 510 (1968), where forty-seven potential jurors were
summarily excluded without any effort to find out whether they would invariably vote against
the death penalty. The Supreme Court held that a sentence of death cannot be carried out if
the jury that imposed or recommended it was chosen by excluding veniremen for cause
simply because they voiced general objections to the death penalty or expressed
conscientiousness or religious scruples against its infliction. Id. at 552. Explaining its
holding, the Court stated:
We repeat, however, that nothing we say today bears upon the power of a State to
execute a defendant sentenced to death by a jury from which the only veniremen who
were in fact excluded for cause were those who made unmistakably clear (1) that they
would automatically vote against the imposition of capital punishment without regard
to any evidence that might be developed at the trial of the case before them, or (2) that
their attitude toward the death penalty would prevent them from making an impartial
decision as to the defendant's guilt.
Id. at 522 n. 21. This Court followed Witherspoon in Bean v. State, 86 Nev. 80, 85, 465 P.2d
133, 136 (1970), where we stated:
The U.S. Supreme Court directs that in order for a challenge to be properly asserted
under that statute there must be a thorough examination of each juror who asserts a bias
for or against the death penalty to determine whether or not his bias can be set aside and
whether the juror could nevertheless determine that issue of innocence or guilt and
penalty upon the evidence presented before him. If he can then he is a qualified juror
and must be allowed to sit unless excused by peremptory challenge.
[Headnote 1]
The record in the instant case reveals a diligent effort by the court to determine the
prospective juror's attitude regarding the death penalty. In the course of voir dire, it became
evident that the venireman in question would automatically exclude the death penalty as an
appropriate sentence irrespective of the nature of the evidence.
____________________
Would you like to see Mazzan up there instead of Bishop? Well, there is not a thing that I can do to
prevent you from doing that.
nature of the evidence. The court's decision to excuse the prospective juror for cause was
fully justified under the circumstances.
[Headnote 2]
The second issue raised by Mazzan regarding his conviction concerns the sufficiency of
the evidence to support a verdict of first degree murder. We have reviewed the record
thoroughly and find that the jury, acting reasonably, could have been convinced that Mazzan
was guilty of first degree murder beyond a reasonable doubt by the evidence it had a right to
consider. See Hern v. State, 97 Nev. 529, 635 P.2d 278 (1981). We therefore refuse to disturb
the jury's verdict on appeal.
We have considered Mazzan's remaining assignments of error regarding the guilt phase
and have found them to be without merit. The jury conviction of first degree murder is
therefore affirmed.
Turning now to the penalty phase of Mazzan's trial, the issue for our consideration
concerns appellant's claim of denial of his Sixth Amendment right to effective assistance of
counsel. Mazzan supports his position on appeal by citing his trial counsel's failure to
effectively present mitigating circumstances compounded by his antagonistic remarks to the
jury.
[Headnote 3]
The penalty phase of a trial is a critical stage at which the right to effective assistance of
counsel is extended. Denial of this constitutional right requires that the sentence be vacated.
Gardner v. Florida, 430 U.S. 349, 358 (1977); Cunningham v. State, 94 Nev. 128, 575 P.2d
936 (1978).
[Headnotes 4, 5]
This Court recently set forth the standard for measuring effective assistance of counsel in
Lenz v. State, 97 Nev. 65, 66, 624 P.2d 15, 16 (1981):
Effective counsel does not mean errorless counsel, but rather counsel whose
assistance is within the range of competence demanded of attorneys in criminal cases.
Jackson v. Warden, 91 Nev. 430, 432, 537 P.2d 473 (1975). Nevada law presumes that
counsel fully discharge their duties, and that presumption can only be overcome by
strong and convincing proof to the contrary. Warden v. Lischko, 90 Nev. 221, 223, 523
P.2d 6 (1974). The standard by which a claim of counsel ineffectiveness is to be tested
is whether the performance of counsel was of such low caliber as to reduce the trial to a
sham, a farce or a pretense. Id.
In spite of our stringent standard of review on this issue we do not hesitate to conclude as a
matter of law that the performance of Mazzan's counsel at sentencing exceeded the outer
parameters of effective advocacy, thereby reducing the proceeding to a sham, a farce or a
pretense.
not hesitate to conclude as a matter of law that the performance of Mazzan's counsel at
sentencing exceeded the outer parameters of effective advocacy, thereby reducing the
proceeding to a sham, a farce or a pretense. Mazzan's cause would have been far better served
without benefit of his counsel's representation during the penalty phase.
2
We are unable to
perceive any reason or motive for counsel's actions which would be consistent with even a
modicum of effective advocacy. An evidentiary hearing before a district judge as to the
motives or strategy behind defense counsel's performance, therefore, is not necessary in this
case.
3
The imposition of the death penalty, therefore, is vacated and the case remanded for a
new penalty hearing consistent with this opinion. Since we have concluded a new penalty
hearing is required, we decline to consider Mazzan's remaining assignments of error
regarding the penalty phase of his trial.
The judgment of conviction upon a jury verdict of first degree murder is affirmed. The
imposition of the death penalty is vacated and the matter is remanded for a new penalty
hearing before a newly empaneled jury.
____________________

2
Appellant's counsel on appeal was not trial counsel.

3
This opinion does not alter our policy, expressed in Gibbons v. State, 97 Nev. 520, 634 P.2d 1214 (1981),
that the effectiveness of counsel should be determined in most instances through means of a post-conviction
relief proceeding in district court.
____________
100 Nev. 80, 80 (1984) Crank v. Nev. Indus. Comm'n
BILLY CRANK, Appellant, v. NEVADA INDUSTRIAL COMMISSION, an Agency
of the State of Nevada, and REYNOLDS ELECTRICAL & ENGINEERING
CO., INC., Respondents.
No. 13906
January 30, 1984 675 P.2d 413
Appeal from a judgment upholding an administrative agency determination, Eighth
Judicial District Court, Clark County; James Brennan, Judge.
Appeal was taken from order of the district court which upheld denial of workers'
compensation benefits. The Supreme Court held that contract was ambiguous as to whether
subsistence wages paid to employees while they were working on a job site out of town were
intended to be reimbursement for travel expenses so as to make injury resulting from accident
which occurred while employee was on the way to the job site compensable.
occurred while employee was on the way to the job site compensable.
Reversed.
Johns & Johns, Las Vegas, for Appellant.
Charles J. York, and Elizabeth Nozero, Las Vegas, for Respondents.
Injuries sustained by employee going to his regular place of work are not deemed to arise out of and in
the course of his employment; exception to that rule applies when employee is paid identifiable amount as
compensation for his expenses of travel.
2. Contracts; Evidence.
Meaning and legal effect of unambiguous contract are generally questions of law but parol evidence may
be considered to determine the true intent of the parties when contract is ambiguous.
Contract under which workers were paid $7.50 as subsistence during times when they were working at
particular job site out of town and under which they would be paid additional subsistence allowance if they
left work at the end of normal work day and were recalled to perform additional work was ambiguous as to
whether the $7.50 was intended to cover the expenses of travel so as to make injury sustained during travel
to the job site compensable.
OPINION
Per Curiam:
Appellant was injured in an automobile accident while traveling from his home in Las
Vegas to the Nevada Test Site where he was employed as a rotary drill operator by Reynolds
Electrical & Engineering Company. The distance between Las Vegas and the Nevada Test
Site is approximately 65 miles. At the time of the accident, appellant was riding in an
automobile owned and operated by a fellow employee. The accident occurred several miles
from the entrance to the test site.
Appellant filed a claim with respondent Nevada Industrial Commission (now known as the
State Industrial Insurance System) for compensation for injuries sustained as a result of the
accident. The claim was denied and appellant filed an appeal with the Department of
Administration appeals officer. The appeals officer also denied relief, and appellant then filed
a petition for judicial review. The district court affirmed the decision of the appeals officer,
and this is an appeal from that judgment.
[Headnote 1]
As a general rule, injuries sustained by an employee while going to his regular place of
work are not deemed to arise out of and in the course of his employment.
going to his regular place of work are not deemed to arise out of and in the course of his
employment. See Voehl v. Indemnity Ins. Co., 288 U.S. 162, 169 (1933). An exception to that
rule applies where the employee is paid an identifiable amount as compensation for his
expense of travel. See generally, 1 A. Larson, The Law of Workmen's Compensation
16.20, 15.30 (1982).
1
Thus, the primary issue in this appeal is whether appellant was
receiving compensation for his travel expenses.
In addition to appellant's regular wages, he received extra pay of $7.50 per day under the
subsistence terms of a labor contract. Appellant's contract provided in Article XIII, Section
1:
A subsistence allowance of Seven Dollars and Fifty Cents ($7.50) will be paid for day
worked to those employees whose jobsite is located on the Nevada Test Site. . . . This
subsistence allowance shall also be paid to such employees who are ordered to and do
report to such jobsites and for whom no work is provided.
Section 3 further provided:
Only one (1) subsistence allowance will be paid for any work day or extension thereof
not to exceed twenty-four (24) hours. However, employees who have left the job at the
end of their regular shift and who are subsequently called out to perform work which is
not continuous with their daily working schedule shall be paid an additional subsistence
allowance.
In a similar case we indicated:
Thus the question to determine is whether the $8 per day in whole or in part was
allowed respondent to compensate him for travel time to and from work. He is entitled
to the benefits of said Act only if this question is determined in the affirmative. The
question is not a factual one as claimed by respondent. It is purely legal, the
determination of which can be made only be construing Section 8(a).
____________________

1
Professor Larson addresses this issue as follows:
[I]n the majority of cases involving a deliberate and substantial payment for the expense of travel . . . the
journey is held to be in the course of employment. This result is usually correct, because when the subject
of transportation is singled out for special consideration it is normally because the transportation involves
a considerable distance, and therefore qualifies under the rule herein suggested: that employment should
be deemed to include travel when the travel itself is a substantial part of the service performed.
The sheer size of a journey is frequently the principal fact supporting this conclusion. . . .
A. Larson, supra, 16.30, at 4-159 to -160, 4-172.
Nev. Industrial Comm. v. Dixon, 77 Nev. 296, 299, 362 P.2d 577 (1961) (emphasis added).
In Dixon we held that the subsistence allowance paid under the contract in that case did not
include travel pay. Therefore, relief was not available to the claimant in that case.
As mentioned earlier, the issue in the present case is whether appellant was receiving
compensation for his travel expenses. That issue, in turn, depends upon a determination of
whether the subsistence provision in the contract included compensation for travel time or
expenses. The appeals officer relied on Dixon in the instant case in denying appellant's claim,
and respondent argues on appeal that Dixon is dispositive of the issue of whether a
subsistence allowance can be interpreted as pay for travel expenses. We disagree.
The claim in Dixon was based on an injury that arose in essentially the same manner as
that suffered here. The claimant in Dixon was denied compensation, however, because of the
specific terms of the employment contract in that case. The subsistence allowance provided
by the contract in Dixon, although not specifically defined, could only have pertained to board
and lodging. As we explained in that case:
Subsistence as used in Section 8(a) means money furnished by the employer to the
employee in lieu of the board an lodging the employer was required to furnish under the
labor agreement. The agreement in effect so states. That it is different and distinct from
travel pay for travel time is apparent from the third paragraph, which provides for travel
time in addition to subsistence for one trip to the job and for one trip back which we
construe to mean the initial trip and the final trip to and from the job. This was not the
final trip from the job. Neither was it the initial trip to the job.
Nev. Industrial Comm. v. Dixon, supra, at 299 (emphasis added).
The contract in this case is readily distinguishable from Dixon. In the instant contract there
is no reference to board and lodging; nor is there an expressed attempt to equate subsistence
with any particular identifiable expense. The contract might be subject to the interpretation
that subsistence was allowed to appellant, at least in part, in order to compensate him for
travel expenses to and from work. This is evidenced, in part, by Article XIII, Section 3,
quoted earlier, which provides for an additional subsistence allowance to be paid to
employees who have left the job at the end of their shift and who are subsequently called
back. As appellant points out, in the event the employee works two noncontinuous shifts in
the same day, two subsistences are provided even though board and lodging certainly
would not double.
two subsistences are provided even though board and lodging certainly would not double. It is
of course arguable that the $7.50 subsistence allowance in such a case would be
compensation for food or some other non-travel expense. On the other hand, it is equally
arguable that the $7.50 subsistence was compensation for travel time, gasoline, car-pool
money, or some other expense directly related to travel.
[Headnotes 2, 3]
Although the meaning and legal effect of an unambiguous contract are generally questions
of law, as in Dixon, parol evidence may be considered to determine the true intent of the
parties when a contract is ambiguous. See Trans Western Leasing v. Corrao Constr. Co., 98
Nev. 445, 652 P.2d 1181 (1982). Unlike the contract in Dixon, in the present case the contract
is quite ambiguous regarding whether the $7.50 subsistence was intended, in whole or in part,
to cover travel time and expenses. Therefore, the meaning of the subsistence provision in
Dixon is inapposite to the contract in the present case, and the appeals officer should not
based his decision on Dixon.
At the hearing before the appeals officer there was a paucity of evidence regarding the
purpose of the $7.50 subsistence pay. In light of the virtual absence of evidence on that
question, and because of the appeals officer's erroneous reliance on Dixon, the district court
erred by affirming the appeals officer's ruling. The district court should have remanded the
matter to the appeals officer for further proceedings relating to the meaning of the subsistence
provision of the contract. See NRS 233B.140(5).
We reverse and remand this matter for further proceedings consistent with this opinion.
____________
100 Nev. 85, 85 (1984) State of Nevada v. Breen
THE STATE OF NEVADA, Petitioner, v. PETER I. BREEN, District Court Judge, Second
Judicial District Court of Nevada, Respondent. ERNEST DI GENNERO, Real Party In
Interest.
No. 15092
January 30, 1984 675 P.2d 996
State brought original petition for writ of prohibition or, in the alternative, writ of
mandamus to require district court to allow recovery of costs of preparing trial transcript. The
Supreme Court held that criminal defendant's acceptance of representation by counsel
provided by his parents did not affect his indigency status such that he was required to pay
costs of trial transcript as condition precedent to substituting public defender for counsel
retained by his parents.
Writ denied.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Gary H.
Hatlestad, Deputy District Attorney, Washoe County, for Petitioner.
John Conner, Reno, for Respondent.
1. Costs.
Acceptance of representation by counsel provided by third party does not, in and of itself, affect
criminal defendant's indigency status, at least insofar as that status relates to payment for trial transcripts.
2. Costs.
Criminal defendant's acceptance of representation by counsel provided by his parents did not affect
his indigency status such that he was required to pay costs of trial transcript as condition precedent to
substituting public defender for counsel retained by his parents.
3. Criminal Law.
Where, at time of original indigency determination, State neither objected to district court's finding of
indigency nor objected to standards used by that court, propriety of original indigency determination
could not be ruled upon on appeal.
OPINION
Per Curiam:
Petitioner seeks a writ of prohibition or, alternatively, a writ of mandamus, to require
respondent district court to allow the recovery of the cost of preparing the trial transcript.
Ernest Di Gennero, the real party in interest, was tried and convicted of first degree
murder. He was represented at trial by privately retained counsel.
privately retained counsel. After trial, counsel sought to withdraw, apparently without
opposition by the state. The district court granted counsel's request. Upon the district court's
apparent determination that appellant was an indigent, the district court appointed the Washoe
County Public Defender's Office, and the trial transcript was then prepared at county expense.
The public defender's office then submitted an opening brief on appeal to this court.
Appellant's parents retained counsel to review his case, and appellant ultimately moved to
substitute the attorney in place of the public defender. The state opposed the motion for
substitution, requesting that repayment of the cost of the trial transcript be made a condition
precedent to representation by private counsel. This court denied the state's request and
granted the motion for substitution, without prejudice to any attempt to seek repayment of the
transcript cost below. The state did seek recoupment of the cost of the trial transcript, but the
district court denied recovery. This petition followed.
The ultimate issue in this writ proceeding is whether, when the district court denied the
state's motion to recoup costs, the district court exceeded its jurisdiction or failed to perform
some mandatory duty. See NRS 34.160; 34.320. That issue, in turn, requires a determination
of whether appellant's indigency status, insofar as that status relieved appellant from an
obligation to pay for the trial transcript, was somehow affected, through a waiver or
otherwise, by this acceptance of representation by private counsel retained by his parents.
[Headnotes 1, 2]
The state does not contend that appellant's personal financial circumstances have improved
since the district court's initial indigency determination. The state has cited no statutory or
other authority, and we are aware of none, that would indicate that appellant's acceptance of
private counsel in such circumstances would affect the county's obligation to pay for the
transcript arising from the original determination of indigency. The courts directly addressing
that question, in fact, have concluded that acceptance of representation by privately retained
counsel does not constitute a waiver of indigency status. See, e.g., Pendry v. State, 367 A.2d
624 (Del. 1976); State v. Morgenstein, 371 A.2d 96 (N.J.Super.Ct.App.Div. 1977). We agree,
and now hold that the acceptance of representation by counsel provided by a third party does
not, in and of itself, affect an appellant's indigency status, at least insofar as that status relates
to payment for trial transcripts.
We therefore conclude that the district court neither exceeded its jurisdiction nor failed to
perform a mandatory duty in its denial of the state's motion to recoup the costs of the
trial transcript.
exceeded its jurisdiction nor failed to perform a mandatory duty in its denial of the state's
motion to recoup the costs of the trial transcript.
[Headnote 3]
The state also apparently argues that the district court, at the time of the original indigency
determination, was obliged to consider the resources of appellant's family, and that, if
appellant did not seek to borrow or obtain such funds, the district court could not properly
find appellant to be indigent. The state relies on Abdnor v. Ovard, 635 S.W.2d 864
(Tex.Ct.App. 1982). We note that the test propounded in that case has been expressly
disapproved. Abdnor v. Ovard, 653 S.W.2d 793 (Tex.Crim.App. 1983). Furthermore, at the
time of the original indigency determination the state neither objected to the district court's
finding of indigency nor objected to the standards used by that court. Therefore, we decline to
rule on the propriety of the district court's original indigency determination.
Accordingly, the petition is denied.

100 Nev. 87, 87 (1984) Borden v. Silver State Equipment
MELVIN F. BORDEN and A & K EARTH MOVERS, INC., Appellants, v. SILVER STATE
EQUIPMENT, INC., a Nevada Corporation, Respondent.
No. 14897
January 30, 1984 675 P.2d 995
Appeal from order denying motion for change of venue, Second Judicial District Court,
Washoe County; Roy L. Torvinen, Judge.
Action was brought by seller against purchaser and guarantor for deficiency judgment after
repossession and sale of equipment. The district court denied defendants' motion for change
of venue, and they appealed. The Supreme Court held that contractual provision that Buyer
promises to pay Seller at its office, or assignee at its office established special contract to
the contrary within meaning of venue statute and thus, since contract designated Sparks,
Nevada as address of seller, action was properly brought in Washoe County.
Affirmed.
Diehl, Evans & Associates, Lyman L. McConnell, Fallon, for Appellants.
George K. Folsom and J. Douglas Clark, Reno, for Respondent.
1. Venue.
Installment contract and security agreement which specifically provided that Buyer promises to pay
Seller at its office, or assignee at its office, and which set forth address of seller as Sparks, Nevada,
established a special contract to the contrary within meaning of venue provision that county in which
obligation is incurred shall be deemed to be county in which it is to be performed, unless there is special
contract to contrary, and thus seller's action against buyer and guarantor for deficiency judgment was
properly brought in Washoe County. NRS 13.010, subd. 1.
2. Venue.
Special contract to the contrary, as used in venue provision that county in which obligation is incurred
shall be deemed to be county in which it is to be performed unless there is special contract to the contrary,
refers to contract regarding place of performance, and not one regarding venue. NRS 13.010, subd. 1.
OPINION
Per Curiam:
Respondent Silver State Equipment, Inc. (Silver State) filed a complaint in Washoe
County against appellants Melvin Borden and A & K Earth Movers, Inc. The complaint
alleged that Borden had executed an installment contract and security agreement in May of
1981 for the purchase of construction equipment from Silver State; that A & K Earth Movers,
Inc. had executed a continuing guaranty that guaranteed Borden's performance of the above
agreement; that Silver State had repossessed the equipment after Borden defaulted on the
installment payments; and that the equipment had thereafter been sold at a public auction.
Silver State's complaint accordingly sought a deficiency judgment against appellants.
Appellants subsequently filed a motion for a change of venue to Churchill County. The
district court denied the motion, and this appeal followed. See NRAP 3A(b)(2).
[Headnote 1]
In arguing that their motion for a change of venue should have been granted, appellants
rely upon the language of NRS 13.010(1). This statute provides:
When a person has contracted to perform an obligation at a particular place, and
resides in another county, the action must be commenced, and, subject to the power of
the court to change the place of trial as provided in this chapter, must be tried in the
county in which such obligation is to be performed or in which he resides; and the
county in which the obligation is incurred shall be deemed to be the county in which
it is to be performed, unless there is a special contract to the contrary.
chapter, must be tried in the county in which such obligation is to be performed or in
which he resides; and the county in which the obligation is incurred shall be deemed to
be the county in which it is to be performed, unless there is a special contract to the
contrary.
(Emphasis added.) Appellants argue that since the installment contract and security
agreement was executed in Churchill County, that county is deemed to be the county in
which the contract is to be performed for venue purposes. We disagree.
The installment contract and security agreement specifically provides that Buyer promises
to pay Seller at its office, or assignee at its office. . . . Further, the address of the seller,
Silver State, is set forth in this agreement as Sparks, Nevada. Under the circumstances of this
case, the above contractual provision established a special contract to the contrary within
the meaning of NRS 13.010(1), and designated Sparks, Nevada, as the place of performance.
See Inglewood Thrift and Loan v. Colby, 10 Cal.Rptr. 814 (App.Dep't Super.Ct. 1961).
Therefore, the district court correctly determined that the action below was properly brought
in Washoe County pursuant to NRS 13.010(1).
[Headnote 2]
Appellants also contend that the phrase special contract to the contrary in NRS
13.010(1) contemplates a distinct paragraph in the parties' agreement dealing specifically with
venue of an action in the event of a dispute. The language of NRS 13.010(1), however, fails
to support this interpretation. The phrase special contract to the contrary in NRS 13.010(1)
clearly refers to a contract regarding the place of performance, and not one regarding venue.
The remaining contentions raised by appellants have been considered and are without merit.
1

The district court properly denied appellants' motion for a change of venue. We therefore
affirm the order of the district court.
____________________

1
In particular, appellants contend that venue in Washoe County is improper as to appellant A & K Earth
Movers, Inc., since the action against that appellant is based on the continuing guaranty agreement, and the
guaranty agreement does not indicate a place of execution, performance, or venue. This contention, however,
was not raised below and will therefore not be considered by this court on appeal. See Old Aztec Mine, Inc. v.
Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981).
____________
100 Nev. 90, 90 (1984) State v. District Court
THE STATE OF NEVADA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA IN AND FOR THE COUNTY OF CLARK, THE
HONORABLE JOSEPH S. PAVLIKOWSKI, District Judge, Department
No. III, and SEYMORE HUSNEY, Respondents.
No. 13406
February 6, 1984 677 P.2d 1044
Original petition for writ of mandamus.
State filed petition for writ of mandamus to compel the district court to reinstate the
sentence originally imposed against respondent after he pleaded guilty to one count of an
infamous crime against nature, which sentence the district court later modified downward.
The Supreme Court, David Zenoff, Senior Justice, held that: (1) if a sentencing court
pronounces sentence within statutory limits, the court will have jurisdiction to modify,
suspend or otherwise correct that sentence if it is based upon materially untrue assumptions or
mistakes that work to the extreme detriment of defendant; (2) record supported sentencing
court's determinations that defendant's sentence rested on a foundation which was materially
untrue, and that such court had subjectively misapprehended facts prior to imposing sentence;
(3) sentencing court had jurisdiction to correct defendant's defective sentence even though he
had begun serving it; and (4) sentencing court's determination that justice demanded
defendant's defective sentence be corrected was proper.
Petition denied.
Steffen and Mowbray, JJ., dissented.
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney, Clark
County, for Petitioner.
Wright, Shinehouse & Stewart, and Reid & Alverson, Las Vegas, for Respondents.
1. Criminal Law.
When the district court, in sentencing, makes a mistake in rendering a judgment which works to the
extreme detriment of the defendant, that court has jurisdiction to vacate or modify the suspect sentence or
judgment. NRS 176.185, subd. 4.
In a due process context, there appears to be no legitimate distinction between a constitutionally defective
sentence and a constitutionally defective judgment. U.S.C.A.Const. Amends. 5, 14.
In a due process context, constitutionally violative materially untrue assumptions concerning a criminal
record, used as a basis in sentencing defendant, may arise either as a result of sentencing judge's correct
perception of inaccurate or false information, or the judge's incorrect perception or misapprehension of
otherwise accurate or true information. U.S.C.A.Const. Amends. 5, 14.
Sentencing judge's misapprehension of a defendant's criminal record may result in a violation of the
defendant's right to due process of law. U.S.C.A.Const. Amends. 5, 14.
5. Criminal Law.
District court has authority to correct or modify a sentence which is the result of the sentencing judge's
misapprehension of a defendant's criminal record and which works to the extreme detriment of defendant.
Not every mistake or error which occurs during sentencing gives rise to a due process violation; such a
violation arises only when the errors result in materially untrue assumptions about a defendant's record.
7. Criminal Law.
If a sentencing court pronounces sentence within statutory limits, the court will have jurisdiction to
modify, suspend or otherwise correct that sentence if it is based upon materially untrue assumptions or
mistakes which work to the extreme detriment of defendant. U.S.C.A.Const. Amends. 5, 14.
8. Criminal Law.
If the sentence foundation is materially untrue, resulting either from the district court's reliance upon
untrue information, or from the court's subjective misapprehension of otherwise true information, the court
has the power to correct or modify the sentence. U.S.C.A.Const. Amends. 5, 14.
9. Criminal Law.
Record supported sentencing court's determination that defendant's sentence of life imprisonment with the
possibility of parole, following his conviction of an infamous crime against nature, rested on a foundation
which was materially untrue; alternatively, record equally supported court's finding that it had subjectively
misapprehended facts concerning whether defendant had sexual relations with an 11-year-old girl and had
supplied drugs to the girl and other victims.
10. Criminal Law.
Where defendant's sentence rested on a foundation which was materially untrue, sentencing court had
jurisdiction to correct the defective sentence. NRS 176.185, subd. 4.
11. Criminal Law.
On appeal, every presumption is in favor of the propriety of trial court's action, in absence of a showing
of error.
12. Criminal Law.
Sentencing judge, who had misapprehended the facts prior to imposing sentence, properly determined
that justice demanded correction of the defective sentence he imposed upon defendant, life imprisonment
with the possibility of parole following his conviction of an infamous crime against nature, given extremely
favorable presentencing and psychiatric reports, defendant's total lack of a prior criminal record, his
position in the community, and the actual nature of his involvement in the situation
giving rise to the offense.
criminal record, his position in the community, and the actual nature of his involvement in the situation
giving rise to the offense. NRS 176.185, subd. 4.
13. Mandamus.
Mandamus, in some circumstances, is a proper remedy to compel vacation of a judgment which
unlawfully suspends execution of a sentence in a criminal case.
14. Criminal Law.
Where defendant's appeal of his conviction and sentence was remanded, for jurisdictional reasons, so that
the district court would have jurisdiction to address defendant's motion to modify sentence, the State's
remedy, following modification of defendant's sentence, was to appeal.
OPINION
By the Court, Zenoff, Sr. J.:
1

In this action, the State of Nevada seeks a writ of mandamus to compel the district court to
reinstate a sentence originally imposed against respondent, Seymore Husney, after Husney
pleaded guilty to one count of an infamous crime against nature, NRS 201.190. The State
argues that the district court's modification of sentence after Husney had begun to serve that
sentence violated applicable Nevada law. Cf. NRS 176.185(4). We conclude, however, that
under the circumstances of this case the district court was within its jurisdiction in so
modifying the sentence. Accordingly, we decline to grant the State's plea for extraordinary
relief.
In order to address the State's petition, it is essential that we establish the procedural
posture of this case. In October, 1979, respondent Seymore Husney entered a plea of guilty
pursuant to a plea bargain to one count of an infamous crime against nature, NRS 201.190.
2
The indictment under which Husney was charged in essence alleged that in May, 1977,
Husney had allowed a female person under the age of 1S years to perform fellatio upon
him.
____________________

1
Senior Justice David Zenoff was assigned to participate in the decision of this matter pursuant to the Nevada
Constitution, art. 6, 19(1)(a) and 19(1)(c), and SCR 10. Chief Justice Noel E. Manoukian voluntarily
disqualified himself from the decision of this matter, and the Governor appointed the Honorable James Brennan,
district judge, to sit in his stead. Nev. Const., art. 6, 4.

2
At the time, NRS 201.190 provided, in pertinent part:
[E]very person of full age who commits the infamous crime against nature shall be punished: (a) . . .
where such offense is committed upon the person of one who is under the age of 18 years, by
imprisonment in the state prison for life with possibility of parole, eligibility for which begins . . . when a
minimum of 5 years has been served.
See 1977 Nev. Stats. 1632. This section has subsequently been amended. See NRS 201.190.
allowed a female person under the age of 18 years to perform fellatio upon him.
At the time of sentencing, Husney was advised by the court that the potential maximum
sentence which he might receive was life imprisonment with the possibility of parole. No
evidentiary hearing was conducted at sentencing; instead, the only evidentiary material before
the district court concerning the charged offense was contained in a 192-page grand jury
transcript. This transcript contained testimony previously elicited from the victims, girls
between the ages of 11 and 15 years at the time the charged events occurred, detailing the
alleged involvement of several men, including Husney, in sexual misconduct. The lengthy
transcript was compiled during several separate sessions of the grand jury, during which a
number of witnesses testified. As this was a grand jury proceeding, Husney was neither
present nor afforded an opportunity to cross-examine witnesses.
In addition to the grand jury transcript, the district court had before it a presentence report
prepared by the Department of Parole and Probation, and a psychiatric evaluation prepared by
Dr. J. A. Jurasky, director of the Psychiatric and Psychological Center located in Las Vegas.
Both the presentence report and the psychiatric evaluation concluded that Husney's deep
remorse, absence of any prior criminal record, and previously irreproachable position in the
community made Husney a suitable candidate for probation. In the psychiatric evaluation Dr.
Jurasky also noted that Husney was not by nature or personality an immoral person or one
who normally takes advantage of or preys upon others. Dr. Jurasky emphasized that Husney
had suffered enormous pain and humiliation as a result of his actions, and concluded that
he would not constitute a menace to the health, safety, or morals of others.
Despite the favorable recommendations contained in the presentence report and psychiatric
evaluation, Husney was denied probation. After argument by counsel for the State and for
Husney, the district court judge stated that he had read the grand jury transcript and had come
to the conclusion that Husney had committed a great wrong. Husney was then sentenced to
life imprisonment with the possibility of parole.
The judgment of conviction was subsequently signed by the district court judge, filed in
the clerk's office, and Husney began serving his sentence at the Nevada State Prison. Shortly
thereafter, Husney filed a timely appeal with this court. At the same time, however, Husney
filed a motion in the district court seeking a modification and reduction of his sentence. In
this motion, Husney contended that the district court judge had misapprehended or had been
misinformed as to relevant information presented at the sentencing hearing, and asked
that his sentence be modified to allow release on probation.
misapprehended or had been misinformed as to relevant information presented at the
sentencing hearing, and asked that his sentence be modified to allow release on probation.
After litigation on procedural issues which do not require discussion here, the district court
ruled on Husney's motion. Reviewing the record, the district court concluded that it had
indeed misapprehended or had been misinformed on information presented at the sentencing
hearing. The district court therefore granted Husney's motion, vacated the original sentence,
reinstated the sentence of life with the possibility of parole, and then suspended the sentence
and placed Husney on probation for a period not to exceed five years. This probation was
conditioned upon Husney's incarceration in the county jail for six months; however, the court
found that this six-month term had been satisfied by the period Husney had already served in
the Nevada State Prison. Accordingly, Husney was released from prison in July, 1980; the
record indicates that Husney has cooperated with probation officials and has remained at
liberty on probation for over three years during the pendency of this proceeding.
JURISDICTIONAL CONSIDERATIONS
Having established the procedural posture of this case, we turn to an analysis of the State's
petition. The State petitions this court for an extraordinary writ of mandamus to compel the
district court to vacate its order suspending Husney's sentence and to reinstate the original
sentence of life imprisonment with the possibility of parole. The State argues that under the
established law of this jurisdiction, once Husney began to serve his sentence, the district court
was without authority to suspend or modify that sentence. Given the particular factual setting
presented in this case, we disagree.
The State's position is based in large part upon a perceived incongruity in Nevada law
pertaining to sentencing. The State argues that a sentencing court is prohibited by statute from
suspending a sentence once a defendant has actually begun to serve that sentence. The State's
position is based in part upon NRS 176.185(4), which provides, in pertinent part: The court
shall not suspend the execution of a sentence of imprisonment after the defendant has begun
to serve it.
3
The State maintains that this language establishes that once a defendant has
commenced serving his sentence, the district court is totally without jurisdiction to suspend or
modify it. See, e.g., Miller v. Hayes, 95 Nev. 927
____________________

3
During the relevant period, this language was contained in NRS 176.185(3). See 1981 Nev. Stats. 369. As
the cited language is virtually identical to the previous codification, for convenience we will refer to the more
recent enactment.
Hayes, 95 Nev. 927, 604 P.2d 117 (1979); State v. District Court, 85 Nev. 485, 457 P.2d 217
(1969).
[Headnotes 1, 2]
This court has recognized, however, that a sentencing court may under certain
circumstances entertain a motion to vacate or modify its orders and judgments. In the seminal
case of Warden v. Peters, 83 Nev. 298, 429 P.2d 549 (1967), we addressed the issue of
whether a trial court has the power to set aside a judgment of conviction after a plea of guilty
and commencement of sentence. We held:
We deem the procedural label to be of little importance. The fact remains that courts
which make a mistake in rendering a judgment which works to the extreme detriment of
the defendant will not allow it to stand uncorrected. In a situation such as this, where,
as discussed below, the court has inherent power to reconsider a judgment for good
cause shown, we hold that such an issue may be raised by a motion to vacate judgment.
. . .
83 Nev. at 301 (emphasis added); see also State v. District Court, 85 Nev. at 488. Warden v.
Peters has never been overruled, and has been cited in several recent cases. See State v.
Clark, 90 Nev. 144, 146, 520 P.2d 1361 (1974); Miller v. Hayes, 95 Nev. at 931; Sheriff v.
Blasko, 98 Nev. 327, 647 P.2d 371 (1982). Accordingly, despite the State's reliance on NRS
176.185(4), it is clear that when the sentencing court makes a mistake in rendering a
judgment which works to the extreme detriment of the defendant, the district court has
jurisdiction to vacate or modify the suspect sentence or judgment.
4
[Headnote 3]
[Headnote 3]
____________________

4
In Warden v. Peters, the defendant moved to set aside a guilty plea to grand larceny on the grounds there
had been no asportation of the subject property. The sentencing court set aside the judgment of conviction,
allowed the defendant to withdraw his guilty plea, immediately accepted a guilty plea to attempted grand
larceny, and then fixed a new sentence to run concurrently with a previously imposed burglary sentence. 83 Nev.
at 300-301. In upholding the action of the sentencing court, we explicitly held that when a mistake is made in
rendering a judgment, the sentencing court has the inherent power to reconsider that judgment, and if the
judgment is void the sentence automatically fails. Id. at 302.
It has been suggested that we might restrict the principle articulated in Peters to the narrow facts of that case,
so that absent a vacation of judgment, the district court may not vacate or suspend a defendant's sentence. The
significance of such a restriction should be obvious; as Husney's motion did not challenge the validity of the
judgment obtained through the guilty plea, if Peters were restricted as suggested that case would not provide the
district court with authority to correct Husney's sentence. We believe, however, that Peters cannot be
legitimately restricted in the manner suggested. In Peters we expressly noted that [t]he trial court has inherent
jurisdiction to vacate or modify its orders and judgments . . . , and [w]hen an improper sentence is the sole
basis of the complaint, no
[Headnote 3]
The district court's inherent authority to correct a judgment or sentence founded on
mistake is in accord with the constitutional considerations underlying the sentencing process.
The United States Supreme Court has expressly held that where a defendant is sentenced on
the basis of materially untrue assumptions concerning his criminal record, [the] result,
whether caused by carelessness or design, is inconsistent with due process of law. Townsend
v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252 (1948). Further, the cases clearly establish that
constitutionally violative materially untrue assumptions concerning a criminal record may
arise either as a result of a sentencing judge's correct perception of inaccurate or false
information, or a sentencing judge's incorrect perception or misapprehension of otherwise
accurate or true information. See United States v. Myers, 374 F.2d 707, 710-712 (3rd Cir.
1967); United States v. Malcolm, 432 F.2d 809, 816 (2nd Cir. 1970). The latter situation is
illustrated by Crowe v. State, 194 N.W.2d 234 (S.D. 1972), in which the sentencing judge
misread an otherwise accurate F.B.I. report and sentenced the defendant while under the
mistaken assumption that he had suffered four rape convictions. In fact, the F.B.I. report
clearly indicated that the defendant had suffered only one conviction for rape. The South
Dakota Supreme Court affirmed the conviction but remanded the case for resentencing,
finding the defendant's due process rights had been violated as the result of the sentencing
judge's subjective misapprehension of the report. Id. at 246; see also United States v. Myers,
374 F.2d at 710-712 (sentencing judge misread criminal record and sentenced defendant
while under mistaken assumption he had suffered three prior convictions for strong arm
robbery); United States v. Weston, 448 F.2d 626 (9th Cir. 1971) (sentencing judge's reliance
upon presentence investigation report predicated on limited factual basis amounts to due
process violation).
[Headnotes 4, 5]
In light of this authority, it is clear that a sentencing judge's misapprehension of a
defendant's criminal record may result in a violation of the defendant's right to due process of
law.
____________________
vacation of conviction or adjudication is necessary since justice may be done by correction of the sentence. . . .
Further, in a due process context there appears to be no legitimate distinction between a constitutionally
defective sentence and a constitutionally defective judgment. This is implicitly recognized in Nevada's
post-conviction relief statutes, which provide that the jurisdiction of the district court in post-conviction relief
hearings extends to those cases in which the court finds that there has been a specific denial of the petitioner's
constitutional rights with respect to his conviction or sentence. NRS 177.320 (emphasis added).
When this potential due process violation is considered in conjunction with the district court's
inherent authority to correct sentences founded on mistakes which work to the extreme
detriment of the defendant, it is equally clear that the district court has authority to correct or
modify a sentence which is the result of the sentencing judge's misapprehension of a
defendant's criminal record.
[Headnotes 6, 7]
It must be noted, however, that not every mistake or error which occurs during sentencing
gives rise to a due process violation. The cases implicitly recognize this point; a due process
violation arises only when the errors result in materially untrue assumptions about a
defendant's record. See Townsend v. Burke, 334 U.S. at 741. This parallels the basis of the
district court's inherent authority to correct sentences based on mistake; the court has
jurisdiction to vacate or modify the defective sentence when a mistake works to the extreme
detriment of the defendant. Warden v. Peters, 83 Nev. at 301. We believe that these
considerations represent an appropriate jurisdictional limit to the correction or modification
of a defective sentence by a district court. Accordingly, we hold that if a sentencing court
pronounces sentence within statutory limits, the court will have jurisdiction to modify,
suspend or otherwise correct that sentence if it is based upon materially untrue assumptions or
mistakes which work to the extreme detriment of the defendant.
5

MATERIALLY UNTRUE FOUNDATION
Having established the jurisdictional threshold of the district court's authority to correct or
modify a sentencethat the sentence was based upon a materially untrue foundationwe
turn to the second issue presented in this case: Did the district court err in finding that
respondent Husney's sentence of life imprisonment with the possibility of parole had been
based on a materially untrue foundation?
____________________

5
During oral argument, the State conceded that the district court would have jurisdiction to correct a sentence
which was based on a materially untrue foundation. The following colloquy occurred:
The Court (Springer, J.): Do you believe that mistake of fact could ever justify a trial judge in
changing a sentence after an imposed sentence had been started?
The State (Mr. Koot): Not simply a mistake of fact. I would choose the wording of the cases,
materially and substantial mistake of fact,' or in the working of the Townsend court, United States
Supreme Court, I would choose the wording, extensively and materially false.'
. . .
The Court (Springer, J.): So in this case, if Judge Pavlikowski sentenced on the basis of an
assumption which was materially untrue, you would concede he would then at least have the power to
change the sentence?
The State (Mr. Koot): After the proper certification, which was finally done in this case, yes, I
believe so, if it was extensively and materially false.
to the second issue presented in this case: Did the district court err in finding that respondent
Husney's sentence of life imprisonment with the possibility of parole had been based on a
materially untrue foundation?
[Headnote 8]
In addressing this question, it is important to emphasize that the jurisdictionally required
materially untrue foundation can result either from the district court's reliance upon untrue
information, or from the court's subjective misapprehension of otherwise true information. In
either case, if the resulting sentence foundation is materially untrue, the court has the power
to correct or modify the sentence. Given this analytic framework, we now examine the record
to determine if the district court correctly found that the sentence imposed in the instant case
was based on a materially untrue foundation, either because the district court relied upon
untrue information or misapprehended true information.
We initially note that the district court's decision may be read as indicating that the
modification of sentence was based both upon a finding that the court had been presented
with untrue information during the sentencing hearing, and on a finding that the court had
subjectively misapprehended otherwise true material. In its oral decision, the court addressed
specific points upon which the judge felt he had been misinformed, and then concluded that,
I think there was a misstatement of facts before the court. Therefore, I think that under the
mistaken belief of facts, the court has jurisdiction to entertain this motion to modify
sentence. (Emphasis added.) The court's written order modifying sentence states that the
Court, at the time of imposition of sentence . . . was proceeding under mistake of fact that
[Husney] had sexual relations with [name deleted], then eleven years of age and other
possible victims and was further mistaken as to factual matters as more fully set forth in the
Court's oral decision.
. . . (Emphasis added.)
The district court's decision to modify sentence thus was evidently based in part on the
court's conclusion that it had been misled by the prosecutor at the time of sentencing because
some of the information and argument presented by the prosecutor was untrue. In its oral
decision, the court stated, inter alia, that it had been unintentionally misled by the
prosecutor's statements into believing that Husney was really involved in illicit activities
with a Don Lucas, the individual responsible for the initial sexual corruption and procurement
of the young girls involved.6 The court also found that, despite the representations of the
prosecutor, an eleven-year-old girl was not "really involved" with Husney, as Husney had
not taken nude photographs of the girl or been present when such photographs were
taken by others.
involved.
6
The court also found that, despite the representations of the prosecutor, an
eleven-year-old girl was not really involved with Husney, as Husney had not taken nude
photographs of the girl or been present when such photographs were taken by others. Further,
the court found that there was no evidence that Husney had supplied drugs to the victims.
If the court was misled at sentencing into believing that Husney was closely associated
with Lucas in his procuring activities, that Husney had sexual relations with an
eleven-year-old girl, and that Husney had supplied drugs to the victims, it is difficult to
envision a clearer example of a materially untrue sentence foundation. Yet when the
transcript of the sentencing hearing is compared with the grand jury transcript, it appears that
the grand jury testimony does not support the prosecutor's argument and representations to the
sentencing judge.
For example, at sentencing the prosecutor did inaccurately cite the degree of Husney's
involvement with Lucas. The grand jury transcript indicates that although Husney was a
paying customer and to a degree an associate of Lucas, there was no evidence that Husney
was involved in the initial procurement or economic exploitation of the victims. At
sentencing the prosecutor nonetheless vehemently argued that Husney and Lucas were
virtually partners and equally culpablealmost a team in this endeavorand that, although
others were involved, Husney stands alone with Mr. Don Lucas and apart from others
involved in the case. This hyperbolic characterization is simply not supported by the record.
7
While Husney's conduct is certainly indefensible, the district court would have been within its
discretion in distinguishing between the lesser responsibility of a patron such as Husney
and the greater culpability of an initiator and procurer who exploited the victims for
economic gain.
____________________

6
Lucas apparently would approach young girls and represent himself as a professional photographer. If the
victim was receptive to his advances, Lucas would offer to employ her as a model. In the course of
photography sessions, Lucas would ply his victims with quaaludes, a controlled substance known to weaken an
individual's inhibitions, and attempt to involve the victim in sexual scenarios. Lucas was arrested for these
illicit activities, and subsequently convicted of forcible sexual assault and related charges. See Lucas v. State, 96
Nev. 428, 610 P.2d 727 (1980).

7
Although it is somewhat collateral to the issues presented in this petition, the record reveals that several
other individuals were arrested and prosecuted as a result of their involvement with Lucas and their utilization of
his services as a procurer of underage girls. The record appears to indicate that these similarly-situated
defendants pleaded guilty to charges of an infamous crime against nature, as did Husney, but were sentenced to
probation rather than life imprisonment with the possibility of parole. In this regard, we note that just before
correcting Husney's sentence, the district court judge stated that he had read the transcripts of these other cases
and discussed one case with the sentencing judge.
Further, both at sentencing and at oral argument on this matter, the
lesser responsibility of a patron such as Husney and the greater culpability of an initiator and
procurer who exploited the victims for economic gain.
The court also found that Husney was not really involved with the eleven-year-old girl,
as Husney had not taken nude photographs of the girl nor was present when nude photographs
of the girl were taken by others. Husney's lack of involvement with the eleven-year-old is
supported by the grand jury transcript. However, a fair reading of the prosecutor's comments
at sentencing would indicate that the prosecutor did allege that Husney had taken nude
photographs of the eleven-year-old girl. Again, this allegation is simply not supported by any
evidence before the sentencing court.
The district court further found that the prosecutor unintentionally misrepresented to the
court that Husney had dispensed drugs to the victims. The district court is correct. Although
the grand jury transcript contained testimony to the effect that on two occasions Husney had
served two of the victims a mixture of vodka and orange juice, there was no evidence that
Husney had supplied the victims with any drugs. The prosecutor, however, argued that [i]n
the sexual scenario which is the subject matter of the indictment before the Court, the same
thing occurred preceding the sexual acts, photographs, qualudes [sic] and vodka. The
prosecutor thus intimated to the court that Husney had furnished controlled pharmaceuticals
to the victims. As with the other two allegations, the prosecutor's comments are totally
without evidentiary support.
[Headnotes 9, 10]
Given these misrepresentations, it is clear that the record supports the district court's
evident determination that Husney's sentence rested on a foundation which was materially
untrue. In the alternative, the record equally supports the court's finding that it had
subjectively misapprehended that Husney had sexual relations with the eleven-year-old girl,
and had supplied drugs to the eleven-year-old girl and other victims. With this subjective
misapprehension forming a part of the foundation of respondent's sentence, the court was
clearly justified in determining that the sentence rested on a materially untrue
foundation.
____________________
State continually emphasized that Husney and Lucas were virtual partners, as if to justify Husney's sentence on
the grounds that Lucas had also received a sentence of life with the possibility of parole. In fact, the State's
implicit justification is totally without foundation; Lucas was convicted of forcible sexual assault and related
charges. See Lucas v. State, 96 Nev. at 430. Any comparison between Lucas and Husney is suspect on additional
grounds; whereas Husney presented an extremely favorable psychiatric report detailing his anguish, humiliation
and deep remorse, the psychiatrist examining Lucas concluded that he was suffering from a character disorder.
Id. at 433.
justified in determining that the sentence rested on a materially untrue foundation. Although
Husney's guilty plea was based on sexual misconduct with a fourteen-year-old girl, as
previously noted there is absolutely no basis in the record which would support an inference
that Husney also had sexual relations with the younger girl. Further, although the grand jury
transcript indicates that several of the young girls involved were supplied drugs by other
participantsin the form of quaaludesthere is absolutely no indication that Husney
supplied quaaludes to the eleven-year-old or any other of the girls. The district court's
misapprehension as to these facts would thus clearly create a sentence foundation which was
materially untrue. Given this defective foundation, the court would have jurisdiction to
correct the defective sentence.
SUMMARY
We wish to make clear that we in no way question the district court's conclusion that the
misrepresentations made by the prosecutor during sentencing were unintentional.
Nonetheless, misrepresentations did occur during sentencing. These misrepresentations,
whether considered in conjunction with the subjective misapprehensions of the district court
judge or considered independently, clearly created a materially untrue foundation upon which
the sentence imposed in this case rested.
In the instant case we are not presented with the situation facing the court in State v. Clark,
90 Nev. 144, 520 P.2d 1361 (1974), where the sentencing court, in a post-conviction relief
proceeding, improperly attempted to correct a sentence on the grounds that the sentencing
judge had misunderstood applicable parole policies. In fact, in Clark the experienced trial
court judge knew that after sentencing the matter of parole was in the hands of the parole
board, subject to the rules and discretion of that body, and that release was subject to the
parole board's approval. Id. at 146. Thus, the majority of the court concluded that at the time
of sentencing the district court judge neither subjectively misunderstood nor was misinformed
as to the possibilities of parole.
8

[Headnotes 11-14]
In contrast, in the instant case the record supports the district court's determination that the
court was unintentionally misinformed by the prosecutor at sentencing and
misapprehended some of the information presented.
____________________

8
However, Justices Mowbray and Batjer, believing that the district court's misapprehension of the parole
policies amounted to a sufficient mistake of fact, dissented. 90 Nev. at 147. Justices Mowbray and Batjer not
only recognized the propriety of a district court correcting a sentence entered pursuant to a mistake of fact, under
the doctrine of Warden v. Peters, supra; they also found the case factually akin to Crow v. State, supra, wherein
the sentencing judge had misread an accurate F.B.I. report. 90 Nev. at 148.
misinformed by the prosecutor at sentencing and misapprehended some of the information
presented. The record also supports the district court's implicit finding that these mistakes
resulted in a materially untrue sentence foundation which worked to the extreme detriment of
the defendant. On appeal, every presumption is in favor of the propriety of the trial court's
action in the absence of a showing of error. Johnson v. Johnson, 87 Nev. 244, 248, 484 P.2d
1072 (1971). Given the extremely favorable presentencing and psychiatric reports, Husney's
total lack of a prior criminal record, his position in the community, and the actual nature of
his involvement with Lucas, we are not prepared to overturn the district court judge's
determination that justice demanded the defective sentence he imposed be corrected.
9

Accordingly, we deny the petition for extraordinary relief.
Springer, J., concurs.
Brennan, D. J., concurring:
Who is to say what interpretation a judge gave to statements and argument made to him at
the time of sentencing other than that judge.
Whether or not a judge misinterpreted what was told to him; whether he thought he heard
counsel say the defendant did instead of the defendant didn't, whether he failed to grasp
____________________

9
We additionally note that there are further considerations which arguably mandate that we deny the State the
relief requested. Although mandamus in some circumstances is a proper remedy to compel the vacation of a
judgment which unlawfully suspends the execution of a sentence in a criminal case (see State v. District Court,
85 Nev. 485, 487, 457 P.2d 217 (1969)), we do not believe that mandamus would necessarily have been
appropriate in this case given its procedural history. As previously noted, respondent Husney originally appealed
his conviction and sentence; for jurisdictional reasons this appeal was remanded to the district court so the court
would have jurisdiction to address the motion to modify sentence. Thereupon, if dissatisfied, the State's
appropriate remedy was to appeal. See State v. Clark, 90 Nev. 144. the meaning of what others
attempted to convey to him in their statements; whether due to impaired hearing or for
any other reason is immaterial when that judge later says that he misunderstood,
misinterpreted or did not hear what was stated to him. Further, were we to pass
favorably upon the State's petition, and deal with this matter in the manner suggested, this court would in effect
be ruling that the testimony contained in the grand jury transcript and presented at sentencing was true, and that
the sentence imposed was the only sentence conceivable under the circumstances. Such a ruling would
effectively eliminate at least two of the issues Husney might legitimately present on appeal: (1) that his sentence,
based in part on the grand jury testimony of minors who were not subject to cross-examination, was based on
impalpable or highly suspect evidence (cf. Silks v. State, 92 Nev. 91, 545 P.2d 1159 (1976)), and (2) that his
sentence of life imprisonment with the possibility of parole was, given the facts of this case, disproportionate. Cf.
Solem v. Helm, 51 U.S.L.W. 5019 (U.S. June 28, 1983). However, as we believe the district court did not
exceed its jurisdiction in correcting respondent's sentence, we need not address this issue.
the meaning of what others attempted to convey to him in their statements; whether due to
impaired hearing or for any other reason is immaterial when that judge later says that he
misunderstood, misinterpreted or did not hear what was stated to him.
And who but that sentencing authority can say that had he heard what was spoken to him
or grasped the full import and essence of counsel's argument that his sentence would not have
been other than that imposed.
The sentencing judge should not have to file an affidavit with the State Board of Pardons
Commissioners stating that he based the sentence he imposed on an erroneous interpretation
of the facts presented to him and that he had been acting under a proper assessment and
interpretation of the facts that his sentence would have been less harsh or severe than that
imposed.
To require a procedure similar to the above stated would undoubtedly put the sentencing
court in the untenable position of having to subject itself to cross-examination before the
Board of Pardons. It is one thing for the judge to call a case back to his court admitting to the
defendant that the court erred in its disposition of the case and proceed to rectify its error. It is
another matter when a defendant must rely on a sentencing judge to swallow his pride and
admit to the Board of Pardons that he erred in understanding what was related to him and
misinterpreted the facts.
To deny a defendant his right to have the sentencing authority reconsider its erroneous
sentence and force the defendant to rely on a higher tribunal to correct an admitted injustice,
not only denies him of his right to the opportunity to have the sentencing authority impose a
sentence that is commensurate with the gravity of the offense from that sentencing authority's
viewpoint but also forces the defendant to take his chances with the Board of Pardons
reducing his sentence as compared to a certainty of modification by the lower court.
The possible irreversible devastation to a defendant's life dictates and demands that the
sentencing court have the inherent power and authority to correct this type of error.
If a trial court has the authority to correct an improper conviction, a fortiori it has the
authority to correct an improper sentence.
Steffen, J., with whom Mowbray, J., agrees, dissenting:
Since I have been unable to glean any factual or legal basis for the position of my brethren
in the majority, I must dissent.
The State of Nevada petitioned this Court for a writ of mandamus to compel the district
court to reinstate the original sentence imposed against the defendant, Seymore Husney, after
Husney entered a plea of guilty to one count of the infamous crime against nature.
crime against nature. In my judgment, the district court clearly acted without jurisdiction in
modifying Husney's sentence, and mandamus should have issued. State v. District Court, 85
Nev. 485, 457 P.2d 217 (1969).
1

In February and March of 1978, three indictments were issued charging Husney with a
total of ten counts of assorted sexual misconduct. Pursuant to the terms of a plea bargain
agreement with the State of Nevada, Husney entered a plea of guilty to one count of the
infamous crime against nature.
2
The conduct upon which the guilty plea was based involved
a 14-year-old girl. In return for Husney's voluntary plea, the remaining counts in all three
indictments were dismissed.
On January 8, 1980, the trial judge sentenced Husney to a term of life in prison with the
possibility of parole. The following day the judgment of conviction was signed by the
sentencing judge and filed in the clerk's office. Husney commenced serving his sentence at
the Nevada State Prison.
During the ensuing months, Husney sought relief from incarceration by moving the district
court for a modification and reduction of sentence. Ultimately, after proceedings in this Court
which are not germane to the instant proceeding, the district judge granted Husney's motion.
Thereafter, the district court vacated the original sentence, reinstated the sentence of life with
the possibility of parole, suspended the sentence and placed Husney on probation for a period
not to exceed five years. Probation was conditioned upon Husney's incarceration in the county
jail for six months, a condition which the sentencing judge deemed satisfied by the equivalent
period Husney had already served in the Nevada State Prison. Accordingly, Husney was
immediately released from prison.
The State now petitions this Court for the issuance of mandamus to compel the district
court to vacate its order suspending Husney's sentence and to reinstate the original sentence.
The State contends that under the established law of this State, once Husney commenced
serving his sentence, the district court was powerless to suspend the sentence.
____________________

1
Curiously, the majority now question the propriety of mandamus as an avenue of relief to the State. In this
case we previously issued a writ of mandamus citing State v. Breen, 95 Nev. 208, 591 P.2d 1141 (1979),
because the district court had exceeded its jurisdiction in its first attempt to modify Husney's sentence.

2
At the time of Husney's plea, punishment parameters were provided under the following pertinent provisions
of NRS 201.190:
Every person of full age who commits the infamous crime against nature shall be punished: (a) . . .
where such offense is committed upon the person of one who is under the age of 18 years, by
imprisonment in the state prison for life with possibility of parole, eligibility for which begins . . .
when a minimum of five years has been served.
was powerless to suspend the sentence. For reasons hereinafter specified, I agree.
The issues presented by this appeal are illumined by focusing first on the basis for the
district court's ruling. Specifically, the sentencing judge entered the following findings: (1)
that the court was mistaken in [accepting as] fact that Husney was really involved in this
matter with Mr. Lucas;
3
(2) after reading the transcript [grand jury] I find that Sharon . . .
was not really involved with Sy Husney whatsoever;
4
that Mr. Husney at that time . . . [did
not have] any pictures taken with Sharon nor was he present when any other pictures were
taken; (4) nor was [sic] any drugs supplied by the defendant Husney; (5) that Mr. Koot's
5
argument that Husney was certainly involved with this young girl of 10 or 11 years of age
was not intentionally made; and (6) that Mr. Koot did not intend to misrepresent to the
court [Husney's involvement with Sharon] at that time, but the court took his word at that
time, meaning that Husney was involved. The judge then concluded: Therefore, at the time
of sentencing on January 6, 1980, I think there was a misstatement of facts before the court.
Therefore, I think under that mistaken belief of facts, the court has jurisdiction to entertain
this motion to modify sentence.
I have thoroughly reviewed the same transcript of proceedings before the grand jury which
the sentencing judge reviewed prior to both the original sentencing and the subsequent
modification thereof. In my view, as revealed by the following analysis, the record does not
support the findings upon which the sentencing judge based the lower court's jurisdiction to
modify Husney's sentence.
1. FINDING THAT HUSNEY WAS NOT REALLY INVOLVED WITH LUCAS.
This finding is undermined by the graphic testimony before the grand jury. Husney's
involvement with Lucas was substantial and continuing. By way of example, on at least two
occasions these two men utilized Husney's residence to engage a 13-year-old female child in
acts of sexual conduct, both men participating simultaneously in cunnilingus and fellatio.
____________________

3
Lucas was found guilty of sexual assault, open and gross lewdness and drug-related charges by a jury. He
was sentenced to consecutive terms of life imprisonment with possibility of parole for sexual assault; one year in
the county jail for open and gross lewdness; and a total of twenty-six years on the drug charges.

4
The evidentiary base available to the district court at sentencing was a transcript of the grand jury
proceedings reflecting the testimony of several minor children who were directly involved with Husney and
Lucas, a psychiatric evaluation and a presentence report prepared by the Department of Parole and Probation.

5
Mr. Koot is the Chief Deputy District Attorney of Clark County who argued on behalf of the State at the
sentencing hearing.
13-year-old female child in acts of sexual conduct, both men participating simultaneously in
cunnilingus and fellatio. Prior to the first such incident, Husney primed the child with alcohol
while Lucas gave her a fourth of a quaalude. Husney even arranged gratuitous
accommodations for the unsuspecting parents of their 13-year-old victim. There were other
group sex orgies and nude photo-taking sessions involving the two men and girls ranging in
age from 14 to 16 which again irrefutably attest to the commonality of conduct and
association between the two men. The record also reveals Husney performing various acts in
concert with Lucas to enhance the provocative appearance of one or more girls who were
photographed in the nude by both men. In short, the evidence of record will simply not
sustain the lower court's finding.
2. FINDING THAT 10-YEAR-OLD CHILD WAS NOT INVOLVED WITH HUSNEY.
This finding involves two aspects. First, the sentencing judge determined that the
prosecutor unintentionally misled him into believing that Husney had included the
10-year-old child among his youthful sex objects. I have reviewed the prosecutor's sentencing
argument and am satisfied that no such statement occurred. Indeed, Mr. Koot plainly declared
that Husney exercised his sexual aberrations on girls ranging from 13 years of age to 16
years of age, and when I refer to the thirteen-year-old girl, she was thirteen by about three
months. Additionally, Husney's own attorney emphasized at the outset of his argument that
Husney had not been sexually involved with the 10- or 11-year-old child, Sharon.
6
Furthermore, the grand jury transcript, reviewed by the district judge prior to sentencing,
revealed no such involvement. Second, Husney was involved in promoting the corruption of
this child by tolerating her presence during at least one photo session when he and Lucas were
taking pictures of 15- and 16-year-old girls in semi-nude poses. He also was present when
Sharon was given aspirin by Lucas to make her feel as important as the other girls who were
receiving quaaludes. Additionally, Sharon had been in Husney's residence and waited
downstairs with Lucas while Husney took her 13-year-old girl friend upstairs to his bedroom
for sex. Sharon testified she had been to Husney's house two or three times, and, although she
had not been subjected to sexual advances by Husney, she had been in Husney's bedroom and
described the mirrors situated above his bed.
____________________

6
Based on the child's birthdate and the dates when most of the events referred to in this opinion occurred, the
child's age was 10 years. The district court expressed uncertainty as to whether the child was 10 or 11 years of
age.
Again, the record does not reveal an actual basis for serious misinformation about Husney's
role with Sharon and, in any event, the finding which would negate any involvement
whatsoever cannot stand for the reasons noted.
3. FINDING THAT HUSNEY DID NOT HAVE PICTURES TAKEN WITH SHARON NOR
WAS HE PRESENT WHEN ANY OTHER PICTURES WERE TAKEN.
A fair reading of the prosecutor's comments would indicate that the district judge could
have found that Husney was accused of having taken nude photographs of Sharon. On
balance, however, the prosecutor did not single out Sharon by name or age as having been
photographed by Husney. Furthermore, the record does reflect that Sharon was present with
Husney and Lucas when each was taking photographs of semi-nude girls. The finding that
Husney was not present when any other pictures were taken is not supported by the record.
To the contrary, the record reflects substantial participation by Husney in photographing
young girls in nude and semi-nude, provocative poses which he assisted in orchestrating.
4. FINDING THAT NO DRUGS WERE SUPPLIED BY HUSNEY.
There is simply no basis for this finding as a basis for mistake. The prosecutor provided no
argument, expressly or impliedly, attributing the dispensing of drugs to Husney.
7
The grand
jury transcript, however, reveals two instances when Husney prepared and served a mix of
vodka and orange juice. The first such instance occurred at Husney's house immediately
preceding the simultaneous and joint victimizing of the 13-year-old girl by Lucas and
Husney. A second related occurrence found Husney serving such drinks to young girls
ranging in age from 10 years to 17 years. Lucas also provided quaaludes to two of the girls.
Thereafter, Husney took one of the girls, a 15-year-old, upstairs where they engaged in
fellatio and intercourse. It is thus clear on the record that Husney did, in fact, aid and abet the
dispensing of drugs to children by Lucas, and that he served alcohol to girls ranging in age
from 10 years to 17 years.
____________________

7
The majority cite Koot's comments that in the sexual scenario which is the subject matter of the indictment
before the Court, the same thing occurred preceding the sexual acts, photographs, qualudes [sic] and vodka, as
intimating the furnishing of controlled pharmaceuticals by Husney to the victims. The referenced quotation,
which was not objected to by either of Husney's attorneys, merely recited the factual circumstances which
frequentlyand with respect to the quaaludes invariablyoccurred prior to the commencement of the felonious
sex acts. The statement provided the context which the grand jury transcripts contained and which the district
judge had read prior to sentencing Husney. Mr. Koot did not attribute to Husney the dispensing of the quaaludes,
but the giving of the drug to the girls by Lucas was an integral part of the sexual scenario accurately depicted
by Mr. Koot.
that he served alcohol to girls ranging in age from 10 years to 17 years. And it is equally clear
that in both instances alcohol was provided by Husney in order to alter the mind-states of the
girls as a prelude to his sexual plans.
5. FINDING THAT PROSECUTOR'S ARGUMENT THAT HUSNEY WAS CERTAINLY
INVOLVED WITH A 10 OR 11 YEAR OLD GIRL WAS UNINTENTIONAL.
As previously noted, this finding is a non sequitur since the prosecutor did not fairly argue
that Husney was sexually involved with the minor child of age 10 or 11 years.
6. FINDING THAT DISTRICT COURT MISTAKENLY RELIED ON PROSECUTOR'S
ARGUMENT INVOLVING HUSNEY WITH SHARON.
The district court simply could not have misrelied on the prosecutor's argument involving
Husney in sexual activity with 10-year-old Sharon since no such argument occurred.
Moreover, the district court reviewed the grand jury transcript prior to the original sentencing,
and it was apparent from the testimony of witnesses contained therein, including Sharon, that
no such involvement occurred. Finally, Husney's attorneys also emphasized that Husney was
not sexually involved with Sharon, and they obviously found no fault with Mr. Koot's
representation since they interposed no objection on the subject.
8

THE DISTRICT COURT'S LEGAL CONCLUSION
After arriving at the foregoing findings, the sentencing judge concluded that, since there
was a misstatement of fact, albeit unintentional, the district court was misled, thereby vesting
jurisdiction in the court to entertain Husney's motion and suspend the sentence.
As the record stands, the district court has asserted jurisdiction to modify or correct
Husney's sentence because of that court's mistaken belief regarding the facts hereinbefore
recited.
____________________

8
It is significant that the two able and experienced attorneys representing Husney at the original sentencing
interposed no objections to any of the areas characterized by the sentencing judge and the majority of this Court
as prosecutorial misrepresentations. The plea bargain agreement specifically granted defense counsel the right to
make objections as to relevancy, hearsay, etc. as to any argument or testimony proffered to the Court by
Plaintiff at the time of sentencing. Having thus failed to object, this Court should give deference to the well
established rule that, absent doubt regarding guilt, such failure will preclude appellate review of those matters
concerning which objections were not raised. Kelso v. State, 95 Nev. 37, 44, 588 P.2d 1035, 1040 (1979), cert.
denied, 442 U.S. 921 (1979). Such appellate restraint need not be Since the "mistaken" facts exercised, of
course, in the face of constitutional error, but if, indeed, any error exists in this case it does not remotely
approach that magnitude.
Since the mistaken facts concerning Husney's sexual involvement with the minor child,
Sharon, were not supported by the record, it must be assumed that the sentencing judge was
the victim of his own misunderstanding on that subject. The other findings are, in my
judgment, of no consequence since the facts assumed false by the district court are in fact true
according to the record.
Turning now to the legal milieu applicable to this proceeding, Husney sought and obtained
relief from the district court on the premise that the court had inherent power to correct a
sentence based on material mistakes of fact. Such a proposition was asserted on the strength
of this Court's decision in Warden v. Peters, 83 Nev. 298, 429 P.2d 549 (1967). There, we
held that a district court has inherent power to vacate or modify its judgments and orders.
Peters had entered a plea of guilty to a crime which he did not commit, and we found it within
the inherent power of the district court to vacate the adjudication of guilt. Upon doing so, the
judgment of sentence automatically collapsed and the defendant reverted to his status prior to
the conviction. On at least two occasions, this Court, in dicta, has interpreted Warden v.
Peters as allowing the modification of a sentence on the grounds that the sentence imposed
was not provided for by statute. State v. Clark, 90 Nev. 144, 520 P.2d 1361 (1974); State v.
District Court, 85 Nev. 485, 457 P.2d 217 (1969). I do not now recede from that reasoning.
The imposition of an extra-statutory sentence is constitutionally infirm as a denial of due
process, and is thus, by definition, illegal. The sentencing court retains inherent power to
correct an unlawful sentence at any time. This inherent power has been legislatively
recognized. NRS 176.555 provides, The court may correct an illegal sentence at any time.
See Anderson v. State, 90 Nev. 385, 528 P.2d 1023 (1974); Summers v. State, 90 Nev. 460,
529 P.2d 207 (1974). See also Hayes v. State, 175 N.W.2d 625 (Wis. 1970); State v.
Shilinsky, 81 N.W.2d 444 (Iowa 1957); State v. Burkhart, 566 S.W.2d 871 (Tenn. 1978);
People v. Emig, 493 P.2d 368 (Colo. 1972); State v. Fountaine, 430 P.2d 235 (Kan. 1967).
The inherent power of the district court to correct sentencing errors of constitutional
magnitude is also legislatively endorsed under certain terms of Nevada's post-conviction
relief statute. NRS 177.320.
9
Although Husney's motion for modification of sentence was
not characterized or procedurally organized as a petition for post-conviction relief, we
may look to the substance of the motion as being in the nature of such a petition.10
Warden v. Peters, supra.
____________________

9
The jurisdiction of the district court in post-conviction relief hearings to find in favor of a petitioner is
limited to those cases in which the court finds that there has been a specific denial of the petitioner's
constitutional rights with respect to his conviction or sentence.
sentence was not characterized or procedurally organized as a petition for post-conviction
relief, we may look to the substance of the motion as being in the nature of such a petition.
10
Warden v. Peters, supra. In any event, whether Husney's motion is viewed from the vantage
point of the post-conviction relief statute or the inherent jurisdiction of the district court, the
standard remains the same, viz, was the alleged mistake in sentencing the result of an error of
constitutional dimension.
11

The relief available under the authorities announced above applies irrespective of whether
a defendant has commenced serving his sentence. Absent constitutional error, however, a
district court is without jurisdiction to suspend the sentence of a defendant after a judgment of
conviction has been signed by the judge and entered by the clerk pursuant to NRS 176.105.
Miller v. Hayes, 95 Nev. 927, 604 P.2d 117 (1979). The latter restriction on the jurisdiction
of a sentencing court is legislatively fixed by the terms of NRS 176.185(4): The court shall
not suspend the execution of a sentence of imprisonment after the defendant has begun to
serve it.
12
The import of this statute is clear. Once a defendant has commenced serving his
sentence the district court is without jurisdiction to thereafter suspend it, except, as stated,
where the sentence is the product of a denial of constitutional rights.
The foregoing observations distill to the task of determining whether, under the
circumstances here present, NRS 176.185(4) deprived the district court of jurisdiction to
grant Husney relief. The United States Supreme Court has held that, where a
____________________

10
We note that NRS 177.375(1) states:
If a petitioner's conviction was upon a plea of guilty, all claims for post-conviction relief are waived except
the claim that the plea was involuntarily entered.
This statute does not prohibit Husney from making a post-conviction challenge to his sentence. The terms of
the statute suggest that the waiver of all claims concerns only claims regarding the conviction itself, and not
the imposition of sentence. Where a sentence is based upon grounds which are constitutionally infirm, even
though a guilty plea has been entered, a petitioner is not precluded by NRS 177.375(1) from challenging the
imposition of that sentence on constitutional grounds through a motion for defendant is sentenced on the
basis post-conviction relief.

11
Absent good cause shown for delay, relief under the post-conviction relief statute is available only if sought
within one year of final judgment or one year after a final decision on appeal. NRS 177.315(3). Relief accorded
by exercise of the inherent power of the district court is not so limited and may be pursued at any time by means
of habeas corpus. State ex. rel. Orsborn v. Fogliani, 82 Nev. 300, 417 P.2d 148 (1966).

12
When Husney's sentence was modified, the referenced statute was included as part of NRS 176.185(3).
defendant is sentenced on the basis of extensively and materially untrue assumptions
concerning his criminal record, the constitutional demands of due process are not satisfied.
Townsend v. Burke, 334 U.S. 736 (1948). The court went on to note that its holding was not
related to the severity of the sentence, but rather the pronouncement of sentence on a
foundation . . . extensively and materially false. Id. at 741. In Lloyd v. State, 94 Nev. 167,
576 P.2d 740 (1978), we held that a sentencing court pronouncing sentence within the
statutory limits will not be found to have abused its discretion unless the sentence is based
upon information or accusations stemming from facts supported only by impalpable or
highly suspect evidence. Id. at 170, 576 P.2d at 742 (emphasis supplied).
Although the Lloyd decision involved an abuse of discretion issue, the criteria for finding
such an abuse is equally applicable to the Townsend situation involving a denial of due
process in sentencing. If the sentencing court pronounces a statutorily proper sentence in
reliance upon information or accusations supported only by false, impalpable or highly
suspect evidence, due process has failed and the district court has jurisdiction to modify,
suspend or otherwise correct such a sentence.
Similarly, if the sentencing court extensively and materially misperceives a fundamentally
accurate informational or evidential base, and the sentence is the product of, or infused with,
such misperception, the district court may modify, suspend or otherwise correct such a
sentence.
We are thus left with the question of the nature of the mistake which induced the
sentencing judge to modify Husney's original sentence. For reasons previously stated, the
original sentence was not the product of reliance upon information and accusations which
were supported to any degree by false, impalpable or highly suspect evidence. The
prosecutor's comments at sentencing were not distortive of the facts and were substantially
supported by the record of the grand jury proceedings.
The sentencing court likewise did not extensively and materially misperceive the
information available to it prior to the original sentencing. As outlined in Townsend, mere
misperceptions do not serve as a basis for constitutional challenge. Rather, as mentioned
above, the constitutional standard under which a judge's misunderstanding should be
examined is whether it is of such a magnitude as to render the entire foundation upon which
sentencing is based extensively and materially false. Such is not the case here. While I do not
question the bona fides of the sentencing judge in his belief that he was unintentionally
misled, any such misperception by the district court in the instant case did not rise to the
level of constitutional magnitude.
bona fides of the sentencing judge in his belief that he was unintentionally misled, any such
misperception by the district court in the instant case did not rise to the level of constitutional
magnitude.
The sentence first pronounced was within the limits of the applicable statute. Under the
circumstances here present, the prohibition of NRS 176.185(4), if it is to have any life at all,
must apply. The fact that the sentencing judge later found the original sentence unduly harsh
or even unwarranted under a greater subsequent enlightenment or clarification does not vitiate
the command of the statute.
13
Such circumstances may be argued within the confines of the
legislative scheme for pardons or parole. As we said in State v. District Court, 85 Nev. 485,
457 P.2d 217 (1969):
In this state the granting of any relief from punishment after incarceration in the state
prison is an executive function authorized by the legislature and performed by the state
board of parole commissioners . . . or by the state board of pardons commissioners.
Id. at 488, 457 P.2d at 218.
14
In harmony with our holding in the latter case, I
unhesitatingly conclude that the action of the district court in suspending Husney's
sentence constituted a judicial invasion or intrusion into the legislative and executive
realms, in contravention of Article 3, Section 1 of the Nevada Constitution.
____________________

13
The concurring opinion by Brennan, D. J., if followed, would selectively abrogate NRS 176.185(4). The
sound requirement of an extensively and materially false record or misapprehension by a sentencing judge would
be eliminated and supplanted by an undefinable standard which would admit of any qualitative or quantitative
reconsideration by the judge. Sentences could be restructured by a judge later concluding that he focused too
heavily on one aspect of a case and too little on another. Imaginative defense counsel could return again and
again in an endeavor to circumvent formal parole or pardon procedures and requirements by attempting to
convince the sentencing judge that the sentence was unduly and unfairly harsh because of misperceptions,
misunderstandings or misplaced emphasis. Subjective considerations could supplant an extensively and
materially false perception or evidential base as justification for sentence modification. The law aside, such
latitude in resentencing after a defendant has commenced serving his original sentence would not bode well for a
criminal justice system which appears to be moving away from greater judicial discretion in sentencing.

14
Interestingly, Zenoff, J. writing for the majority in State v. Clark, 90 Nev. 144, 520 P.2d 1361 (1974)
concluded that a district court was without jurisdiction to modify the sentence of defendant Clark under
circumstances far more compelling than the instant case. There, the sentencing judge erroneously interpreted the
policy of the Board of Parole Commissioners and fashioned the sentencing in accordance with his
misperception. The district judge declared that he intended the defendant to serve one year in prison and
thereafter receive the benefit of continuing guidance and supervision while on parole status. Upon discovery that
his understanding of the board's policy was incorrect, and that Clark would have to serve time never intended by
the judge on the occasion of Clark's sentencing, the judge sought vainly to modify the sentence to comport with
the court's original intention. There we held such relief could be properly sought only before the State Board of
Pardons Commissioners.
the latter case, I unhesitatingly conclude that the action of the district court in suspending
Husney's sentence constituted a judicial invasion or intrusion into the legislative and
executive realms, in contravention of Article 3, Section 1 of the Nevada Constitution.
My brethren in the majority summarize their opinion by again alluding to the prosecutor's
unintended misrepresentations which, they conclude, provided the sentencing judge with a
materially untrue foundation upon which to sentence Husney. My repeated review of the
record has revealed no basis for the prosecutor's role as scapegoat. His argument was
forthright and founded on a reliable evidential base. Husney's counsel obviously agreed at
sentencing for they found no basis for objection between the two of them.
15
As the majority
observed, after Mr.

____________________

15
The majority suggests that if the State's petition were allowed, credence would thereby be placed on the
sworn testimony taken in the grand jury proceedings, and Husney would be precluded from arguing that his
sentence was based, at least in part, on impalpable or highly suspect evidence. It is necessary to refocus on the
fact that Husney entered a voluntary guilty plea to one of ten felony counts in consideration of the State's
dismissal of the remaining counts. At sentencing, Husney readily admitted that he had no defense to the crime
which constituted the subject of his plea. In accordance with the plea bargain, the State was allowed to argue at
the time of sentencing. Mr. Koot made it clear that he was relying on the grand jury transcripts which supported
his factual recital. Husney's combined counsel made no suggestion that the transcript constituted unreliable
testimony, let alone evidence that was impalpable or highly suspect. Indeed, the sentencing judge never
suggested that the transcript of the grand jury's proceedings was unworthy of belief or suspect to any degree. I
therefore find it strange that this Court, sua sponte, raises such an implication concerning the transcript. It is well
settled that a court may rely on information which would not even qualify for admission at trial so long as the
information is not impalpable or highly suspect. As we said in Silks v. State, 92 Nev. 91, 93-94, 545 P.2d 1159,
1161 (1976), The sentencing proceeding is not a second trial and the court is privileged to consider facts and
circumstances which clearly would not be admissible at trial. . . . 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, this Court will refrain from interfering with the sentence imposed.
(Citations omitted.)
An analysis of the grand jury proceedings presents no basis for concluding that the testimony of the young
girls victimized by Lucas and Husney was impalpable or highly suspect. In any event, as the United States
Supreme Court observed in Townsend v. Burke, 334 U.S. at 740, Counsel, had any been present, would have
been under a duty to prevent the court from proceeding on . . . false assumptions and perhaps under a duty to
seek remedy elsewhere if they persisted. As noted previously, the two attorneys representing Husney made no
objection to either the argument of the prosecutor in the areas at issue or the reliability of the transcript of the
grand jury testimony. To the contrary, the primary thrust of defense counsel's argument was that the girls were
teenaged prostitutes, and that Husney and other adult males (other than Lucas) who had engaged them in sex
were greater victims than the girls.
As the majority observed, after Mr. Koot's argument at the original sentencing, the district
judge indicated that he had read the grand jury transcript and has come to the conclusion that
Husney had committed a great wrong. The content of that transcript has not changed. Even
if we assume, arguendo, that the sentencing judge was misled into believing that Husney was
involved in direct sexual contact with a 10- or 11-year-old child, I suggest that does not
materially lessen the great wrong committed by Husney with a child barely beyond the age
of twelve. Nor does it lessen the wrong committed with 14- and 15-year-old girls. Moreover,
the great wrong is not substantially lessened by a misperception concerning the dispensing of
quaaludes to the young girls. Husney did provide them with alcohol, he encouraged by his
unprotesting presence, the consumption of the quaaludes by the girls, and he accepted the
advantage of their drug-induced condition by exploiting them sexually. Furthermore, a
misperception as to whether Husney took nude photographs of Sharon does not materially
lessen the great wrong involved in taking nude and lewd photographs of the other minor
children and semi-nude photographs in the presence of Sharon. Finally, the grand jury
transcript trumpets loudly the degree of Husney's involvement with Lucas. Although the
majority ascribe the term partners to the prosecutor's description of the relationship
between the two men, Mr. Koot never once used that term. He did say that Lucas and Husney
were almost a team. He also said that Husney stands alone with Mr. Don Lucas and apart
from others who had been previously sentenced. My reading of the record reveals no
hyperbole by Mr. Koot. In any event, I fail to find a basis for concluding that a misperception
by the sentencing judge as to the extent of the relationship between the two men was
extensively or materially false. Nor do I find any basis for concluding that the original
sentence, which was within the statutory limits, and which applied only to one of the many
great wrongs committed by Husney, was unfair or unduly harsh.
In my opinion, Mr. Koot should not bear the brunt of the State's frustration over the loss of
its reasonable entitlements under the plea bargain.
For the reasons stated above, I dissent from the position of my brethren in the majority,
and submit that the State was entitled to have this Court order the reinstatement of Husney's
original sentence.
____________
100 Nev. 115, 115 (1984) Lynn v. Ingalls
GENE E. LYNN and ELIZABETH A. LYNN, Husband and Wife, Appellants, v. ANDREW
A. INGALLS and WHITE PINE CARE CENTER, INC., a Nevada Corporation,
Respondents.
No. 14177
February 24, 1984 676 P.2d 797
Appeal from a judgment terminating a commercial lease and awarding the lessors money
damages for back rent, interest and attorney's fees; Seventh Judicial District Court, White
Pine County, Merlyn H. Hoyt, Judge.
Lessors brought action seeking to terminate nursing home lease and recover amounts due.
Complaint also prayed for appointment of a receiver pursuant to remedial provisions of the
lease. The district court ruled in favor of lessors but interpreted lease so as to require an
election of remedies, and lessors appealed. The Supreme Court held that: (1) use of receiver
to collect rents and profits of nursing home business which were conditionally assigned upon
default and to maintain assets of business which were subject to lessors' security interest did
not preclude lessors from terminating remaining term of lease; (2) since lessors could evict
defaulting tenant for failure to pay rent, it was allowable under terms of lease to permit a
receiver's sale which did not include remaining term of the lease; and (3) value of nursing
home business was properly determined as fair market value at time of receiver's sale.
Reversed in part; affirmed in part.
Gary D. Woodbury, Elko; C. E. Horton, Ely, for Appellants.
Orrin Grover, Molalla, Oregon, for Respondents.
1. Landlord and Tenant.
When a lessee fails to make rental payments, lessor may elect to declare lease terminated and seek an
unlawful detainer action to oust the defaulting tenant. NRS 40.253.
Although the law abhors a forfeiture, there is nothing repugnant to public policy in allowing termination
of a lease and eviction of a tenant who fails to pay rent.
3. Landlord and Tenant; Receivers.
There is nothing violative of public policy in permitting a lessor to terminate a lease and to seek
appointment of a receiver to conduct business operations while the lease termination is being litigated.
Use of receiver by lessor to collect rents and profits of nursing home which were conditionally assigned
upon default and to maintain assets of nursing home which were subject to lessors' security interest did
not preclude lessors from terminating remaining term of lease, and since lessors
could evict defaulting tenant for failure to pay rent, it was allowable under terms of
lease to permit a receiver's sale which did not include the remaining term of the
lease.
did not preclude lessors from terminating remaining term of lease, and since lessors could evict defaulting
tenant for failure to pay rent, it was allowable under terms of lease to permit a receiver's sale which did not
include the remaining term of the lease.
5. Receivers.
A receiver is generally appointed to take possession of property and preserve its value where it appears to
the court that neither party should hold it; receiver is, in effect, a neutral party who preserves value of the
asset within his or her possession for benefit of whoever is subsequently determined to be entitled thereto.
6. Receivers.
Although a receiver holds property for benefit of party who is ultimately determined to be entitled to it,
title to the property does not change by mere appointment of a receiver; title to property in receivership
does not change until owner is divested of it by receiver's sale, or an act of his own.
7. Receivers.
When receiver was placed in possession of nursing home business in order to maintain and preserve
value of the business until it was ultimately determined by court that lessors were entitled to resort to
secured assets in satisfaction of judgment, title to assets in receivership as well as profits which flowed
therefrom remained in name of nursing home lessees until court made such a determination.
8. Costs.
Where district court applied factors enumerated in Brunzell v. Golden Nat'l Bank in determining value to
be attributed to services performed by lessors' attorney, award would be upheld.
OPINION
Per Curiam:
The present appeal questions the district court's interpretation of two provisions contained
in a commercial nursing home lease. The controversy concerns the nature and extent of the
lessors' rights and remedies against the lessees in the event of default.
The lease was executed in November, 1974, between Careage Corporation as lessor and
Andrew Ingalls and Thomas Stutchman
1
as lessees for a 20-year term with two consecutive
options to renew the lease for additional 10-year periods. Careage Corporation subsequently
assigned its interest in the lease to the present appellants, Gene E. Lynn and Elizabeth A.
Lynn, in November of 1975.
In the event that the lessees failed to abide by any of the obligations set forth in the lease,
the lessors were provided with various remedies and sources of security from which to seek
satisfaction.
____________________

1
Thomas Stutchman subsequently sold his interest in the White Pine Care Center, Inc., to Andrew Ingalls.
Thomas Stutchman is not involved in the present appeal.
satisfaction. Among the security devices granted to the lessors were security interests in the
lessees' equipment and fixtures, as well as an all-encompassing security interest in the nursing
home business itself, the White Pine Care Center, Inc.
Upon the lessees' default, the lease established various remedies of which the lessors could
take advantage. Under paragraph 28 of the lease, the lessors could re-enter the premises, take
possession of all of the nursing home's business assets, and declare the lease to be terminated.
The lessors had the option of either storing these assets at the owner's expense or taking title
to them as satisfaction for any outstanding obligations owed.
Under paragraph 24(b) of the lease, if the lessors elected to file a suit in equity, a receiver
could be appointed to take charge of the nursing home during the pendency of the litigation.
The receiver was additionally authorized to sell the nursing home business in order to pay off
existing claims. In this regard, the lessors were provided with the first option to buy the
business from the receiver.
2

The lease went into effect upon the completion of the nursing home in April, 1976. The
lessees immediately experienced cash flow problems and failed to pay rent for the first five
months of occupancy. The lessors renegotiated the amount due for the back rent and accepted
a promissory note from the lessees which was to be paid back as an increase in the monthly
rental payments. The lessees subsequently defaulted on the rental payments for December of
1977 and January of 1978.
On January 6, 1978, the lessors sent the lessees a notice of default informing the lessees
that if the outstanding obligations were not cured within 30 days, the lease would be
terminated.
On April 6, 1978, the lessors initiated the present action seeking to terminate the lease and
recover the amounts due. The complaint also prayed for the appointment of a receiver
pursuant to the remedial provisions of the lease.
On April 21, 1978, a receiver was appointed to take possession of and operate the White
Pine Care Center. Almost immediately thereafter the nursing home started to show a marked
improvement and eventually became a profitable enterprise.
After a trial without a jury, the district court ruled in favor of the lessors but interpreted the
lease so as to require an election of remedies by the lessors. Under the district court's
interpretation the lessors must either seek a complete forfeiture by utilizing the provisions
of paragraph 28 of the lease, wherein the lessor could re-enter the premises, terminate the
lease, and take possession of the White Pine Care Center or must seek judicial
termination with the optional appointment of a receiver.
____________________

2
Since the lease did not establish a specified price at which the option could be exercised, the first option
language can only be construed as a right of first refusal on the sale of the business.
the lessor could re-enter the premises, terminate the lease, and take possession of the White
Pine Care Center or must seek judicial termination with the optional appointment of a
receiver. The district court construed the lessors' use of a receiver as an election which called
for a partial forfeiture of the lease. The district court explained the latter, stating, [b]y
seeking a receiver, rather than complete foreclosure, Plaintiff has elected the remedy afforded
by Paragraph XXIV(b). Thus, the lease, by its very terms, contemplates the lessee's interest in
the personal property and nursing home business will be sold rather than completely forfeited
to lessor. The district court reasoned that the remaining term of the lease was a business
asset of the White Pine Care Center which was to be sold at the receiver's sale. It ordered the
receiver to sell the remaining term of the lease along with the other assets of the nursing
home in order to satisfy the lessees' obligations.
The district court's actions, although premised as an interpretation of the lease, were based
on the principle that the law abhors a forfeiture. The district court construed the receiver's sale
of the business to include the remaining lease term as a means of ensuring that the nursing
home's opportunity to do business is recognized in the sale. The court reasoned that if the
nursing home business were to be sold without the outstanding lease term, Ingalls would not
be adequately compensated for the value of the business as a going concern, and the lessors
would thus be allowed unfairly to terminate the entire lease and require the sale of the nursing
home not as a going business but at its liquidation value.
3

The lessors contest the district court's determination that the use of a receiver under
paragraph 24(b) of the lease precludes the lessors from terminating the remaining term of the
lease.
[Headnotes 1, 2]
We agree with the lessors that the lease does not call for an unreasonable forfeiture of the
lessees' right to do business. When a lessee fails to make rental payments, the lessor may elect
to declare the lease terminated and seek an unlawful detainer action to oust the defaulting
tenant. See NRS 40.253.
____________________

3
A bid was submitted for the receiver's sale by American Care Centers, Inc., which included the remaining
term of the lease in its valuation. Based on an estimated 15 years remaining on the original lease, the American
Care Center's bid was for $175,000.00. On the other hand, the lessors' bid, which did not reflect the remaining
term of the lease, was for: (1) $10,000.00 cash; (2) all of the lessors' interest in the tenant's personal property,
licenses, and goodwill; and (3) the assumption of all liabilities. The approximate value of this bid is $90,000.00.
In the instant case, the lessors had the undeniable right to evict the tenant. If the lessors had
sought to utilize an unlawful detainer action instead of a receiver, the tenants would have
been forced to remove themselves as well as all of the assets of the nursing home business
from the leased premises. Therefore, although the law abhors a forfeiture, there is nothing
repugnant to public policy in allowing for the termination of a lease and eviction of a tenant
who fails to pay the rent.
[Headnote 3]
Similarly, there is nothing violative of public policy in permitting a lessor to terminate a
lease and to seek the appointment of a receiver to conduct business operations while the lease
termination is being litigated.
[Headnote 4]
The use of the receiver to collect the rents and profits which were conditionally assigned
upon default and to maintain the assets of the White Pine Care Center which were subject to
the lessors' security interest is consistent with the lessors' right to terminate the lease. The
lessors were merely seeking to ensure that the assets from which the outstanding debts would
be satisfied would be preserved until termination of the lease was judicially determined.
Although the district court construed the remaining term of the lease as the equivalent to the
lessees' right to do business, it is apparent that when the lessees failed to pay rent, the lessees
had, in effect, forfeited the right to do business at that particular location. There is nothing
unreasonable or unconscionable about this kind of a lease provision and the election alluded
to by the district court is not required by the terms of the lease agreement.
The use of a receiver by a lessor to preserve the assets of a business operated on the leased
premises is not inconsistent with the right to declare the lease terminated. Since the lessor
may evict the defaulting tenant for failure to pay rent, it is allowable under the terms of the
lease to permit a receiver's sale which does not include the remaining term of the lease.
In addition to questioning the district court's interpretation of the lease itself, the lessors
argue that the nursing home business should be sold at the receiver's sale for the value of the
business as of the time at which the receiver was appointed. The lessors argue that it would
be inequitable to allow the Ingalls to enjoy the fruits of the receiver's efforts in light of the
fact that the lessors had extended $45,000.00 to the receiver to keep the business operating as
well as negotiating with the equipment supplier to forebear from repossessing the hospital
equipment.
equipment supplier to forebear from repossessing the hospital equipment. With this
contention we disagree.
[Headnotes 5, 6]
A receiver is generally appointed to take possession of property and preserve its value
where it appears to the court that neither party should hold it. Bowler v. Leonard, 70 Nev.
370, 269 P.2d 833 (1954). The receiver is, in effect, a neutral party who preserves the value
of the asset within his or her possession for the benefit of whoever is subsequently
determined to be entitled thereto. Id. Although the receiver holds the property for the benefit
of the party who is ultimately determined to be entitled to it, title to the property does not
change by the mere appointment of a receiver. Title to the property in receivership does not
change until the owner is divested of it by a receiver's sale, or an act of his own.
[Headnote 7]
In the case at hand, the receiver was placed into possession of the nursing home business
in order to maintain and preserve the value of the business until it was ultimately determined
by the court that the lessors were entitled to resort to the secured assets in satisfaction of the
judgment. Until the court made such a determination, the title to the assets in receivership as
well as the profits which flowed therefrom remained in the name of Ingalls.
The district court recognized that the lessors' loan to the receiver had been repaid with
interest. Therefore, the lessors had been adequately compensated for the receiver's certificate.
The value of the nursing home business was properly determined as the fair market value at
the time of the receiver's sale.
Finally, the lessors argue that the district court abused its discretion by awarding only
$16,047.65 in attorney's fees.
[Headnote 8]
In determining the value to be attributed to the services performed by the lessors' attorney,
the district court applied the factors enumerated in Brunzell v. Golden Nat'l Bank, 85 Nev.
345, 455 P.2d 31 (1969). Upon review of the record we see no error in the district court's
award.
The judgment by the district court ordering a sale of the remaining term of the lease is
reversed. All other matters are affirmed.
____________
100 Nev. 121, 121 (1984) State, Emp. Sec. Dep't v. Weber
STATE OF NEVADA, NEVADA EMPLOYMENT SECURITY DEPARTMENT,
Appellant, v. LEWIS WEBER, Respondent.
No. 14314
February 24, 1984 676 P.2d 1318
Appeal from order reversing administrative decision, Eighth Judicial District Court, Clark
County; Joseph S. Pavlikowski, Judge.
Appeal was taken from order entered by the district court, which reversed decision of
Board of Review of the Employment Security Department, which denied unemployment
benefits to claimant. The Supreme Court held that substantial evidence supported Board's
determination that claimant left his job voluntarily without good cause, so that he was not
entitled to unemployment compensation benefits.
Reversed.
Robert C. Manley, Reno, for Appellant.
John G. Watkins, Las Vegas, for Respondent.
1. Courts.
Citation of unpublished orders of Supreme Court as authority in briefs on appeal is improper. SCR 123.
Reference in briefs on appeal to matters outside record is improper.
3. Appeal and Error; Attorney and Client.
In future, once Supreme Court perceives a lack of regard for its rules or decisions, it may well impose
sanctions such as striking a brief, dismissing an appeal, or finding a confession of error, and, additionally,
attorneys involved may be referred to bar for discipline.
4. Administrative Law and Procedure.
In reviewing administrative board's decision, Supreme Court, like the district court, is limited to record
below and to determination of whether board acted arbitrarily or capriciously.
In reviewing administrative board's decision, question is whether board's decision was based on
substantial evidence; neither Supreme Court nor the district court may substitute its judgment for that of the
administrative agency.
6. Social Security and Public Welfare.
Judicial review of decision of Board of Review of the Employment Security Department is limited to
questions of law; Board's findings of fact are conclusive if based on evidence and in absence of fraud.
Substantial evidence supported determination of the Board of Review of the Employment Security
Department that claimant left his job voluntarily without good cause so that he was not
entitled to unemployment compensation benefits.
job voluntarily without good cause so that he was not entitled to unemployment compensation benefits.
NRS 612.380.
It is not the district court's function to choose among the various decisions made during an administrative
proceeding but, rather, its function is to review final administrative determination for arbitrariness,
capriciousness, or lack of substantial evidence.
OPINION
Per Curiam:
This is an appeal from a district court order which reversed the decision of the Board of
Review of the Employment Security Department. The Board's decision denied unemployment
benefits to respondent on the ground that he had voluntarily left his last employment without
good cause within the meaning of NRS 612.380.
1

The record reveals that respondent was a taxicab driver who eventually stopped showing
up for work after the employer changed the method of shift selection and respondent could no
longer work during the shift he preferred. The essential facts were not disputed at any stage of
proceedings. The district court's order labelled the Board's decision arbitrary, capricious and
not supported by substantial evidence, but failed to provide any basis for that characterization.
Before addressing the merits of this appeal, some discussion of the briefs submitted by the
parties is in order. The original briefs were substantially deficient in that they did not address
the issues raised in the appeal and did not include relevant legal authority addressing a
fundamental question.
2
This court therefore ordered the parties to file amended briefs.
[Headnotes 1, 2]
The amended briefs are also deficient in several respects. For example, appellant has cited
unpublished orders of this court as authority, a practice that is specifically prohibited by SCR
123.3 Respondent's amended brief contains a host of derelictions.
____________________

1
NRS 612.380 provides in relevant part:
A person is ineligible for benefits for the week in which he has voluntarily left his last or next to last
employment:
1. Without good cause, if so found by the executive director, and until he earns remuneration in
covered employment equal to or exceeding his weekly benefit amount in each of 10 weeks.
. . . .

2
Appellant's original brief was submitted by attorney John A. Flangas, who no longer represents appellant.
123.
3
Respondent's amended brief contains a host of derelictions. For example, the brief
contains purported citations to unreported trial court cases in other jurisdictions, without
providing a means of verifying the existence or contents of those cases and without indicating
what precedential value such cases might have. Additionally, respondent was derelict in
providing legal and factual quotations without revealing the sources thereof, and in citing a
case as being that of the supreme court of a sister state when it was actually decided by a
lower appeals court thereof. See NRAP 28(b); Montes v. State, 95 Nev. 891, 603 P.2d 1069
(1979); Carson v. Sheriff, 87 Nev. 357, 487 P.2d 334 (1971) (contentions not supported by
relevant authority need not be considered). See also Holland Livestock v. B & C Enterprises,
92 Nev. 473, 553 P.2d 950 (1976). Finally, respondent has attempted to bolster his position
by reference to events completely outside the record that occurred long after the district court
reviewed the case. Reference to matters outside the record is improper. Hines v. Plante, 99
Nev. 259 n.1, 661 P.2d 880 (1983). See also McCracken v. Fancy, 98 Nev. 30, 639 P.2d 552
(1982).
We expect and require that all appeals brought in this court, regardless of the amount in
controversy, will be pursued in a manner meeting high standards of diligence,
professionalism, and competence. Moreover, we should rarely be compelled to order the
filing of amended briefs in any appeal. We further expect and require that all legal and factual
references will be cognizable by this court and will be proper in form and content.
When attorneys fail to brief a case adequately, the court is forced to divert its limited
resources to the task of compensating for counsel's derelictions in order to properly reach and
resolve the merits of the appeal. Since [t]he purpose of briefing and oral argument is to
inform this court of all authorities relevant to the issues raised in the appeal, a deficient
performance by counsel may alter the outcome of an appeal. See Stanfill v. State, 99 Nev.
499, 665 P.2d 1146 (1983) (opinion on reh'g). Ultimately, where attorneys do not fulfill their
duties, both justice and the clients' interests suffer.
____________________

3
SCR 123 provides:
An unpublished opinion or order of the Nevada Supreme Court shall not be regarded as precedent and
shall not be cited as legal authority except when the opinion or order is (1) relevant under the doctrines of
law of the case, res judicata or collateral estoppel; or (2) relevant to a criminal or disciplinary proceeding
because it affects the same defendant or respondent in another such proceeding.
[Headnote 3]
Although we will not impose sanctions in this case, in the future, when this court perceives
a lack of regard for its rules or decisions, we may well impose sanctions such as striking a
brief, dismissing an appeal, or finding a confession of error. Additionally, the attorneys
involved may be referred to the bar for discipline.
4

[Headnotes 4-6]
Turning to the merits of this appeal, we note that in reviewing an administrative board's
decision, this court, like the district court, is limited to the record below and to the
determination of whether the board acted arbitrarily or capriciously. McCracken v. Fancy,
supra. The question is whether the board's decision was based on substantial evidence;
neither this court nor the district court may substitute its judgment for that of the
administrative agency. Id. Additionally, judicial review of a decision of the Board of Review
is limited to questions of law; the Board's findings of fact are conclusive if based on evidence
and in the absence of fraud. NRS 612.530(4).
5

[Headnote 7]
Our review of the record indicates that the Board fully reviewed the undisputed facts of
this case and determined that respondent left his job voluntarily without good cause. The
record also discloses substantial evidence supporting that determination.
[Headnote 8]
It appears that the district court simply preferred a lower level administrative decision
which granted benefits to respondent, and the district court accordingly substituted its
judgment for that of the Board. This was error. It is not the district court's function to choose
among the various decisions made during an administrative proceeding. The court's function
is to review the final administrative determination for arbitrariness, capriciousness, or a lack
of substantial evidence. See McCracken v. Fancy, supra.
____________________

4
SCR 203 adopts by reference the Code of Professional Responsibility of the American Bar Association, as
amended and interpreted by that organization, insofar as that code is not in conflict with the rules of professional
conduct set out in the Supreme Court Rules. Disciplinary rule DR 6-101 provides in part that [a] lawyer shall
not . . . [h]andle a matter without preparation adequate in the circumstances. Code of Professional
Responsibility DR 6-101(A)(2).

5
In any judicial proceedings under this section, the finding of the board of review as to the facts, if
supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court
shall be confined to questions of law.
McCracken v. Fancy, supra. Respondent has failed to indicate anything in the administrative
record that might have justified the district court's substitution of its opinion for that of the
administrative agency. See State ex rel. Johns v. Gragson, 89 Nev. 478, 515 P.2d 65 (1973).
Accordingly, the district court's order is reversed and the decision of the Board is
reinstated.
____________
100 Nev. 125, 125 (1984) Salins v. Gulick
In the Matter of the Custody of David James Gulick, SANDRA M. SALINS, Appellant, v.
LEWIS J. GULICK, Respondent.
No. 14672
February 24, 1984 676 P.2d 801
Appeal from order modifying custody and child support obligations, First Judicial District
Court, Carson City; Michael E. Fondi, Judge.
Wife appealed from an order of the district court, modifying husband's custody and child
support obligations under a Maryland divorce decree. The Supreme Court held that: (1)
District Court erred by ruling on husband's motion to change custody of parties' minor son
without providing wife an opportunity to respond; (2) order entered by Ninth Judicial District
Court could not furnish basis for district court's modification of husband's support obligations
under the Maryland divorce decree; and (3) district court should have determined whether
support provisions of parties' Maryland divorce decree were derived from settlement
agreement between the parties before relying upon Nevada's age of majority to terminate
husband's support obligation.
Sandra M. Salins, in proper person, Gaithersburg, Maryland, for Appellant.
Crowell, Crowell, Crowell, Baker & Susich, Carson City, for Respondent.
1. Divorce.
District court erred by ruling on ex-husband's motion requesting court to change custody of minor son
and to adopt support provisions of order entered by another district court within one day after husband filed
such motion, without providing ex-wife an opportunity to respond, in that motion did not indicate that any
emergency existed so as to preclude wife from having opportunity to respond, and record
did not clearly indicate that such error was cured by district court's subsequent
reconsideration of its order.
as to preclude wife from having opportunity to respond, and record did not clearly indicate that such error
was cured by district court's subsequent reconsideration of its order. FDCR 13; NRS 130.010 et seq.
2. Divorce.
Uniform Reciprocal Enforcement of Support Act order entered by another district court could not furnish
basis for subject district court's modification of husband's support obligations under Maryland divorce
decree, in that such order did not specifically provide for modification of the parties' divorce decree nor
show an intention on part of other district court to modify or supersede support provisions of divorce
decree. NRS 130.280.
3. Divorce.
District court should have determined whether support provisions of parties' Maryland divorce decree
were derived from settlement agreement between the parties prior to relying on Nevada's age of majority to
terminate husband's child support obligation, since husband's obligation would have been unaffected by the
statutory age of majority if such obligation arose from settlement agreement which was incorporated into
divorce decree. NRS 129.010.
OPINION
Per Curiam:
This is an appeal from an order of the district court modifying respondent's custody and
child support obligations under a Maryland divorce decree.
On April 9, 1982, respondent Lewis Gulick filed a motion in the First Judicial District
Court to change custody of his minor son from himself to appellant Sandra Salins, his
ex-wife, and to eliminate his child support obligations under the parties' Maryland divorce
decree. Sandra thereafter opposed the motion, arguing that Lewis had previously consented to
this change of custody and was obligated, under the terms of the prior Maryland divorce
decree, to pay her child support until their son reached 21 years of age. Sandra attached an
order from a Circuit Court in Maryland, dated January 29, 1982, which transferred custody of
the boy to Sandra. Additionally, Sandra indicated in her attached affidavit that she had
already initiated an action in the Ninth Judicial District Court, in Douglas County, to obtain
past-due child support payments from Lewis under the Uniform Reciprocal Enforcement of
Support Act (URESA).
On June 1, 1982, Sandra filed a motion in the First Judicial District Court seeking to
dismiss Lewis' motion. Sandra again argued that custody of the boy had already been
transferred to her pursuant to the Maryland consent decree, and that an order from the Nevada
court was therefore unnecessary. Additionally, Sandra contended that the First Judicial
District Court should decline to entertain Lewis' request for a change of custody, citing
NRS 125A.070,1 because both she and the child reside in Maryland.
should decline to entertain Lewis' request for a change of custody, citing NRS 125A.070,
1
because both she and the child reside in Maryland. Lewis, in turn, opposed this motion.
The district court never ruled on Sandra's motion to dismiss, although we note that Sandra
never requested submission of the motion under First Judicial District Court Rule 13(F). In
the meantime, Sandra's URESA action was resolved. The Ninth Judicial District Court
required Lewis to pay child support for the parties' son until the child reached 18 years of age.
Although Sandra was not present at the URESA hearing, the Douglas County District
Attorney entered into an agreement on her behalf that Lewis would have no obligation to
support the [son] past the age of minority.
Thereafter, on November 18, 1982, Lewis filed a motion in the First Judicial District Court
requesting the court to modify custody and to adopt the support provisions of the order
entered by the Ninth Judicial District Court in Sandra's URESA action. The very next day, on
November 19, 1982, the First Judicial District Court granted Lewis' motion. The First Judicial
District Court transferred custody of the parties' son to Sandra, and ordered Lewis to comply
with the support obligations set forth in the URESA order of the Ninth Judicial District
Court. Additionally, the First Judicial District Court specifically ruled that Lewis would
have no obligation to support the minor child past the age of minority.
Sandra subsequently filed her opposition to Lewis' motion of November 18th, and moved
for reconsideration of the district court's order. Sandra contended that the district court did not
give her an opportunity to oppose the motion, and that the district court's order deprived her
of her right under the parties' Maryland divorce decree to seek child support for her son after
he reaches 18 years of age. Lewis opposed any reconsideration, arguing that the parties had
stipulated to the terms of the underlying URESA order.
On January 6, 1983, the First Judicial District Court denied Sandra's motion for
reconsideration. The district judge stated:
The only issue which seems to continue to remain unresolved between the parties
hereto is related to the obligation of [Lewis Gulick], for support of the subject minor
child to age 18 or age 21. This Court determines the appropriate law to apply is the
law of the State of Nevada.
____________________

1
Under NRS 125A.070, the district court may decline to exercise its jurisdiction to modify a foreign decree
of divorce under the Uniform Child Custody and Jurisdiction Act if it finds that it is an inappropriate forum to
make a custody determination under the circumstances of the case, and that a court of another state is a more
appropriate forum. NRS 125A.070(3) lists a number of relevant factors the district court may consider in making
this determination.
priate law to apply is the law of the State of Nevada. NRS 129.010 establishes the age
of majority in Nevada to be 18 years.
Consequently, the district court determined that Lewis' legal responsibility for support of the
parties' son would cease when the child reached 18 years of age. Sandra appeals, raising
numerous assignments of error. For the reasons set forth below, we reverse.
[Headnote 1]
First, the district court erred by ruling on Lewis' motion of November 18, 1982, without
providing Sandra an opportunity to respond. Under First Judicial District Court Rule 13, a
party is allowed ten days within which to file an opposition to a motion in district court.
2
The motion of November 18, 1982, does not indicate that any emergency existed so as to
preclude Sandra from having an opportunity to respond. The motion was acted upon in an ex
parte manner, and this was error under the circumstances of this case.
3

[Headnote 2]
Second, in granting Lewis' motion of November 18, 1982, the district court simply
adopted the support provisions of the URESA order entered by the Ninth Judicial District
Court and ordered Lewis to comply with those support obligations. Thus, it appears that the
district court relied upon the URESA order as a basis for modifying Lewis' support
obligations under the parties' divorce decree, and this was error. NRS 130.280, as amended by
the 1981 legislature, provides that an order entered under the Uniform Reciprocal
Enforcement of Support Act does not nullify or supersede any previous order of support.
4
Even under former NRS 130.280, an order entered under the Act did not operate to nullify or
supersede any previous order of support unless otherwise specifically provided by the
URESA court.
____________________

2
First Judicial District Court Rule 13 provides in pertinent part:
C. An opposing party, unless otherwise ordered by the Court, shall have 10 days after service of the
moving party's memorandum within which to serve and file a memorandum of points and authorities in
opposition to the motion.

3
The record does not clearly indicate, and respondent does not contend, that this initial error was cured by
the district court's subsequent reconsideration of its order.

4
NRS 130.280 now provides in pertinent part:
(1) A support order made by a court of this state pursuant to this chapter does not nullify and is not
nullified by a support order made by a court of this state pursuant to any other law or by a support order
made by a court of any other state pursuant to a substantially similar law or any other law, regardless of
priority of issuance.
Act did not operate to nullify or supersede any previous order of support unless otherwise
specifically provided by the URESA court. See Peot v. Peot, 92 Nev. 388, 390, 551 P.2d 242,
243-44 (1976). The URESA order entered against Lewis does not specifically provide for a
modification of the parties' divorce decree, nor does it evidence an intention on the part of the
Ninth Judicial District Court to modify or supersede the support provisions of the divorce
decree. Therefore, the URESA order entered by the Ninth Judicial District Court could not
furnish a basis for the district court's modification of Lewis' support obligations under the
divorce decree.
[Headnote 3]
Third, in its order denying reconsideration, the district court stated that it was relying upon
Nevada's age of majority in modifying Lewis' support obligations. Before relying on Nevada's
age of majority, however, the district court should have determined whether the support
provisions of the parties' Maryland divorce decree were derived from a settlement agreement
between Lewis and Sandra. We have previously ruled that a parent's obligation to pay child
support is unaffected by the statutory age of majority where the obligation arises from a
settlement agreement which is incorporated into the divorce decree.
5
See Bingham v.
Bingham, 91 Nev. 539, 539 P.2d 118 (1975); cf. Norris v. Norris, 93 Nev. 65, 560 P.2d 149
(1977) (where father's support obligation derived solely from a divorce decree, rather than a
settlement agreement, intervening amendment to NRS 129.010 reducing age of majority to 18
years precluded district court from ordering child support after the child reached 18 years).
Our review of the record on appeal reveals that the district court did not inquire into the
source of Lewis' support obligations. Since a copy of the divorce decree was not presented to
the district court and was not included in the record on appeal, we are unable to determine
whether Lewis' support obligations arose solely from the decree or from a settlement
agreement between the parties. We note that there is no evidence in the record establishing a
change in the circumstances of the parties which would otherwise support the district court's
modification of Lewis' support obligations. See Dawson v. Dawson, 95 Nev. 821, 603 P.2d
691 (1979).
____________________

5
Although the parties have not specifically raised a choice-of-law issue in this appeal, we note that Maryland
law appears identical to Nevada law with respect to a parent's obligation to support a child who has reached the
age of majority. See Luhmann v. Luhmann, 376 A.2d 1141 (Md.Ct.Spec.App. 1977).
Accordingly, the order of the district court is reversed, and this matter is remanded for
further proceedings.
6

____________________

6
We note that the district court never resolved Sandra's motion to dismiss, in which she argued that the
district court was an inappropriate forum within which to adjudicate Lewis' request for a modification of
custody. See NRS 125A.070. In its order denying reconsideration, the district court indicated that it had
jurisdiction over the parties and the subject minor children because it had previously modified the parties'
Maryland divorce decree by transferring custody of the parties' children to Lewis in February of 1979. The
record indicates that the parties' son, who is the subject of this litigation, no longer resides in Nevada. The boy
now resides in Maryland with Sandra, his mother. On remand, the district court should identify the grounds upon
which it is asserting jurisdiction in this matter, see NRS 125A.050, and determine whether the Nevada forum is
appropriate in light of the factors contained in NRS 125A.070.
____________
100 Nev. 130, 130 (1984) Allen v. State, Pub. Emp. Ret. Bd.
GEORGE W. ALLEN, Jr., MARY E. HOCKER, PAUL J. RICHERT and LOUISE R.
CONLEY, Appellants, v. STATE OF NEVADA; PUBLIC EMPLOYEES RETIREMENT
BOARD OF THE STATE OF NEVADA; DARREL DAINES, SAM A. PALAZZOLA, L.
RUSS CULBERTSON, WILLIS A. DEISS, PEGGY GLOVER, BOYD D. MANNING and
TOM WEISNER, Members of the Public Employees Retirement Board of the State of
Nevada and VERNON BENNETT, Executive Officer of the Public Employees Retirement
Board of the State of Nevada, Respondents.
No. 14703
February 24, 1984 676 P.2d 792
Appeal from summary judgment in a class action suit. Eighth Judicial District Court, Clark
County; James Brennan, Judge.
Class action was brought on behalf of participants in Public Employees' Retirement
System who retired prior to effective date of statute increasing the monthly retirement
allowance, challenging their exclusion from the increase on grounds of due process, equal
protection and impairment of contract. The district court entered summary judgment in favor
of defendants, and plaintiffs appealed. The Supreme Court held that: (1) statute does not
violate substantive due process since purpose, to encourage state employees to remain in
government service, constitute a plausible and rational basis for statute; (2) exclusion of those
who retired prior to effective date of statute from the increase did not violate equal
protection; and {3) plaintiffs' vested right to their retirement allowances was not
impaired or modified, and thus statute did not constitute an impairment of contract.
the increase did not violate equal protection; and (3) plaintiffs' vested right to their retirement
allowances was not impaired or modified, and thus statute did not constitute an impairment of
contract.
Affirmed.
Fred W. Kennedy, Las Vegas, for Appellants.
Brian McKay, Attorney General, William E. Isaeff, Deputy Attorney General, Carson City;
Scott Doyle, Deputy Attorney General, Clark County, for Respondents.
With regard to a constitutional challenge, challenger bears heavy burden of overcoming presumption of
constitutional validity which every legislative enactment enjoys.
When considering validity of legislation which is under equal protection and due process attack, state
enjoys wide range of discretion to make reasonable classifications for enacting laws over matters within its
jurisdiction. U.S.C.A.Const. Amend. 14.
Substantive due process guarantees that no person shall be deprived of life, liberty or property for
arbitrary reasons. U.S.C.A.Const. Amend. 14.
Existence of facts which would support a legislative judgment is presumed.
A statutory discrimination will not be set aside if any stated facts may be conceived to justify it.
6. Constitutional Law; Officers and Public Employees.
Legislative amendment to statute governing Public Employees' Retirement System, which increased
monthly retirement allowance, does not violate due process, notwithstanding fact that it excludes those who
retired before effective date of statute, since asserted purpose of amendment, to encourage state employees
to remain in government service, constitutes a plausible and rational basis for the enactment. NRS
286.551; U.S.C.A.Const. Amend. 14.
An equal protection analysis proceeds with the presumption that legislation under scrutiny is
constitutional. U.S.C.A.Const. Amend. 14.
Neither strict scrutiny nor mid-range or intermediate level of scrutiny was applicable to equal protection
challenge to amendment increasing monthly retirement allowance of participants in Public Employees'
Retirement System, since no judicially recognized suspect class or fundamental rights was involved, nor
any quasi-suspect class, such as sex, illegitimates or the poor. U.S.C.A.Const. Amend. 14; NRS 286.551.
Under minimal scrutiny standard, intervention of Supreme Court is withheld if, under any
conceivable scenario, challenged legislative classification bears a rational
relationship to achievement of a legitimate purpose; Court may not, under such
standard, superimpose its own preferences on work product of a coordinate branch of
government.
Court is withheld if, under any conceivable scenario, challenged legislative classification bears a rational
relationship to achievement of a legitimate purpose; Court may not, under such standard, superimpose its
own preferences on work product of a coordinate branch of government. U.S.C.A.Const. Amend. 14.
Laws which deal with economic matters satisfy equal protection, though they are imperfect, if the
classification has some reasonable basis. U.S.C.A.Const. Amend. 14.
Statute increasing monthly retirement allowance for members of Public Employees' Retirement System
does not violate equal protection, notwithstanding fact that it excludes early retirees who have already left
government service, since statute has rational basis in form of incentive for state employees to remain in
government service, an incentive which would have no effect on members who have already retired. NRS
All legislation necessarily involves line drawing, and as long as there is a rational basis for the distinction
drawn, it must be upheld.
It is not prerogative of Supreme Court to substitute its judgment for that of legislature.
Statute raising monthly retirement allowance for members of Public Employees' Retirement System does
not constitute an impairment of contracts, on theory that vested right of early retirees who were excluded
from enhanced allowance to their employment allowances was impaired or modified, since state's
contractual obligation to fund early retirees' retirement allowances according to their vested rights, whether
through system contributions or other means, is unaffected by the statute. NRS 286.551, 286.6793,
subd. 1; U.S.C.A.Const. Art. 1, 10, cl. 1; Const. Art. 1, 15.
15. Judgment.
Summary judgment was proper in class action challenging statute which increased monthly retirement
allowance for participants in Public Employees' Retirement System, notwithstanding plaintiffs' claim that
effect of statute on System funds was disputed, since even if claim raised a legitimate question of fact,
resolution of question in plaintiffs' favor would not alter outcome in favor of defendants; moreover,
plaintiffs raised issue on the unsupported assertion that amendment would adversely affect System funds.
NRS 286.551.
OPINION
Per Curiam:
This is an appeal from a district court order granting summary judgment in a class action
suit. We have concluded that summary judgment in favor of respondents was appropriate.
Appellants brought a class action suit on behalf of approximately 750 duly qualified
participants in the Public Employees' Retirement System (PERS) who retired prior to May 19,
1977 with at least twenty years of service {early retirees).
1977 with at least twenty years of service (early retirees). Prior to 1977, an early retiree's
monthly retirement allowance was calculated by multiplying his or her average compensation
by 2 1/2 percent for each of the first twenty years of service plus 1 1/2 percent for each year
thereafter up to thirty years. In 1977, the Nevada Legislature amended NRS 286.551, the
statute setting forth the allowance calculation formula, making the multiplication factor 2 1/2
percent for each of the first thirty years.
1
The 1 percent increase for the twenty-first through
thirtieth years was made retroactive, but only for participants who retire after the effective
date (May 19, 1977) of the amendment (late retirees).
2

After appellants filed their amended complaint, the trial court certified the case as a class
action pursuant to NRCP 23(b)(2). Appellants then filed a motion for summary judgment.
Respondents opposed the motion and filed a cross-motion for summary judgment. The
district court thereafter entered judgment in favor of respondents. Appellants contend on
appeal that the amendment increasing only the benefits of late retirees is prohibited by the
Due Process, Equal Protection and Impairment of Contract Clauses of the United States
Constitution and that material issues of fact remain which also mandate reversal of the
summary judgment. We do not agree.
[Headnotes 1, 2]
Initially, we reiterate the heavy burden appellants must bear to overcome the presumption
of constitutional validity which every legislative enactment enjoys. We recently stated in List
v. Whisler, 99 Nev. 133, 137-38, 660 P.2d 104, 106 (1983), that:
Our analysis . . . begins with the presumption of constitutional validity which clothes
statutes enacted by the Legislature. Viale v. Foley, 76 Nev. 149, 152, 350 P.2d 721
(1960). All acts passed by the Legislature are presumed to be valid until the contrary is
clearly established. Hard v. Depaoli et al., 56 Nev. 19, 26, 41 P.2d 1054 (1935). In case
of doubt, every possible presumption will be made in favor of the constitutionality of a
statute, and courts will interfere only when the Constitution is clearly violated. City of
Reno v. County of Washoe, 94 Nev. 327, 333-334, 580 P.2d 460 (1978); Mengelkamp v.
List, 88 Nev. 542, 545, 501 P.2d 1032 (1972); State of Nevada v. Irwin, 5 Nev. 111
(1869). Further, the presumption of constitutional validity places upon those attacking a
statute the burden of making a clear showing that the statute is unconstitutional.
____________________

1
The amendment is contained in Section 37 of Chapter 594 of the 1977 Statutes of Nevada.

2
The amendment is contained in Section 53 of Chapter 594 of the 1977 Statutes of Nevada.
burden of making a clear showing that the statute is unconstitutional. Ottenheimer v.
Real Estate Division, 97 Nev. 314, 315-316, 629 P.2d 1203 (1981); Damus v. County of
Clark, 93 Nev. 512, 516, 569 P.2d 933 (1977); Koscot Interplanetary, Inc. v. Draney,
90 Nev. 450, 456, 530 P.2d 108 (1974).
Moreover, when considering the validity of legislation which is under equal protection and
due process attack, the state enjoys a wide range of discretion to make reasonable
classifications for enacting laws over matters within its jurisdiction. Graham v. Richardson,
403 U.S. 365, 371 (1971).
[Headnote 3]
Appellants attempted to show that the legislative amendment to NRS 286.551 which fixed
retroactivity so as to exclude early retirees is unconstitutional on three grounds. First, it is
argued that the amendment deprives early retirees of due process of law. Substantive due
process guarantees that no person shall be deprived of life, liberty or property for arbitrary
reasons. Truax v. Corrigan, 257 U.S. 312, 332 (1921). Appellants contend that the
amendment in question represents an arbitrary taking of their property (fund built up by their
contributions) and a giving of that property to later retirees, because the legislature had no
reasonable basis for retroactively extending enhanced retirement allowances to late retirees
only, except to save money.
3

[Headnotes 4-6]
Respondents correctly assert that it is not necessary for them to demonstrate evidence in
the record which would provide a reasonable basis for the amendment. The existence of facts
which would support the legislative judgment is presumed. Viale v. Foley, 76 Nev. 149, 155,
350 P.2d 721, 724 (1960). Even if it were necessary for respondents to assume the burden of
showing a reasonable basis for the amendment, they have done so here.
____________________

3
Early retirees offer no evidence that the 1977 Legislature considered the cost of retroactively extending
enhanced benefits to early and late retirees before enacting the amendments in question. Early retirees only offer
a letter which shows that the PERS Board in 1979 considered the $24 million price tag to be too excessive to
re-amend the statute to include early retirees. Although it could be assumed that the 1977 legislature considered
the cost of extending the increased benefits to early retirees as excessive or prohibitive, such an economic
determination provides sufficient reasonableness to satisfy due process, as long as no invidious distinction is
made between the two classes of retirees. See Shapiro v. Thompson, 394 U.S. 618, 633 (1969).
done so here. Respondents have submitted an affidavit demonstrating the employee turnover
problem the state was suffering during the period when the amendments were considered.
Respondents have also declared that the purpose of the amendments was to encourage state
employees to remain in government service during this period.
4
The enhanced retirement
allowances were offered only to PERS members who were still employed, because only they
could be induced to remain in government service. Early retirees had already left government
service. Since the asserted purpose of the amendments constitutes, a plausible and rational
basis for their enactment, we must conclude that they were not enacted arbitrarily. As we
have observed before, A statutory discrimination will not be set aside if any state of facts
may be conceived to justify it. Koontz v. State, 90 Nev. 419, 421, 529 P.2d 211, 212 (1974)
(emphasis added). The early retirees' contention that the exclusionary amendment deprives
them of due process is therefore without merit.
Appellants' second constitutional challenge to the amendment excluding their participation
is the increased benefits is that it deprives early retirees of equal protection of the law. Equal
protection of the law has long been recognized to mean that no class of persons shall be
denied the same protection of the law which is enjoyed by other classes in like circumstances.
Truax v. Corrigan, 257 U.S. 312, 336 (1921). In the Matter of McGee, 44 Nev. 23, 189 P. 622
(1920). Early retirees claim that the amendment makes an unconstitutional classification
which discriminates against them, vis-a-vis the late retirees.
[Headnotes 7-10]
An equal protection analysis also proceeds with the presumption that the legislation under
scrutiny is constitutional. Graham v. Richardson, 403 U.S. 365, 371 (1971). Furthermore, the
instant case presents no judicially recognized suspect class or fundamental right which
would warrant a greater prospect of our intervention under a standard of strict scrutiny.5
Likewise, it presents no quasi-suspect class such as sex, illegitimates or the poor, which
would actuate the application of a mid-range or intermediate level of scrutiny of the
legislative purpose and classification.
____________________

4
This purpose is one of the express objectives behind maintaining the PERS in Nevada, as set forth in NRS
286.015(1), which states, in pertinent part:
Declaration of state policy; purpose of chapter.
1. It is the policy of this state to provide, through the public employees' retirement system:
. . . .
(c) A system which will make government employment attractive to qualified employees in various
categories of service and which will encourage these employees to remain in government service for such
periods of time as to give the public employer full benefit of the training and experience gained by these
employees while employed by public employers.
class or fundamental right which would warrant a greater prospect of our intervention under a
standard of strict scrutiny.
5
Likewise, it presents no quasi-suspect class such as sex,
illegitimates or the poor, which would actuate the application of a mid-range or intermediate
level of scrutiny of the legislative purpose and classification. We are thus left with the rather
benign and deferential prospect of scrutinizing the challenged legislation for foundational
support containing an ingredient of rational basis. Under such a standard, the intervention of
this Court is withheld if, under any conceivable scenario, the classification by the legislature
of early retirees vis-a-vis late retirees bears a rational relationship to the achievement of a
legitimate legislative purpose. This Court may not, under such a standard, superimpose its
own preferences on the work product of a coordinate branch of government. In this regard,
the United States Supreme Court, in Vance v. Bradley, 440 U.S. 93 (1979), has announced
our position as follows:
The constitution presumes that, absent some reason to infer antipathy, even improvident
decisions will eventually be rectified by the democratic process and that judicial
intervention is generally unwarranted no matter how unwisely we may think a political
branch has acted. Thus, we will not overturn such a statute unless the varying treatment
of different groups or persons is so unrelated to the achievement of any combination of
legitimate purposes that we can only conclude that the legislature's actions were
irrational.
440 U.S. at 97 (footnote omitted). Indeed, laws such as those in the instant case which deal
with economic matters satisfy equal protection, though they are imperfect, if the classification
has some reasonable basis. Dandridge v. Williams, 397 U.S. 471, 485 (1970).
[Headnotes 11-13]
As noted previously, a rational basis can be identified in the two amendments in the form
of an incentive for state employees to remain in government service, an incentive which
would have no effect on members who have already retired. Because there is a reasonable
basis for creating the classification between early and late retirees, the amendment in question
satisfies the Equal Protection Clause. Although the effect of the amendment may seem unfair,
all legislation necessarily involves line-drawing. But as long as there is a rational basis for the
distinction drawn, it must be upheld.
____________________

5
While the right to pursue a lawful occupation is a fundamental right, Smith v. Texas, 233 U.S. 630 (1914), a
right to retirement funds as a source of individual and familial support has not been so recognized.
distinction drawn, it must be upheld. See Mengelkamp v. List, 88 Nev. 542, 501 P.2d 1032
(1972). Moreover, we emphasize anew that it is not our prerogative to substitute our
judgment for that of the legislature. Exxon Corporation v. Governor of Maryland, 437 U.S.
117, pp. 124-25 (1978).
[Headnote 14]
Thirdly, appellants challenge the constitutional validity of the combined amendments on
the ground that they constitute an impairment of contracts.
6
We have recognized that public
employment contracts are within the ambit of the contract impairment clause and that early
retirees have a vested right to their retirement allowances, which cannot be impaired or
modified to their disadvantage without a comparable new advantage.
7
Public Employees
Retirement Board v. Washoe County, 96 Nev. 718, 615 P.2d 972 (1980). The appellants,
however, have failed to demonstrate how early retirees' allowances have been negatively
affected. Early retirees are still entitled to the same retirement allowances as before the
amendment; they simply do not receive the raise provided to late retirees. Early retirees
nevertheless contend that late retirees' raise will more swiftly deplete the PERS fund. No
evidence was offered to support this contention. Respondents, on the other hand, offered
evidence that the PERS fund is not in danger of depletion, as new benefits are not granted by
the PERS Board unless they are actuarily funded. Moreover, the respondents' contractual
obligation to fund early retirees' retirement allowances according to their vested rights,
whether through PERS contributions or other means, is unaffected by the amendments in
question. For these reasons, appellants' constitutional freedom from contract impairment has
not been harmed by passage of the amendments to NRS 286.551.
[Headnote 15]
Appellants' final contention is that the summary judgment was improper because a
question of fact remains in dispute. They claim now that the effect of the amendments, which
increased late retirees' retirement allowances, on PERS funds is disputed.
____________________

6
See Article I, Section 10 of the United States Constitution and Article I, Section 15 of the Nevada
Constitution.

7
NRS 286.6793(1) states:
1. All retirement allowances or benefits for survivors offered pursuant to this chapter become vested
on the date that the employee completes 10 years of creditable service or become entitled to begin
receiving such benefits or on the date of his death, whichever event occurs first. Unless otherwise
specifically provided by the amendatory act, any change in the provisions of this chapter is retroactive for
all service of any member prior to the date of vesting, but no such change may impair any vested
allowance or benefit.
is disputed. Assuming, arguendo, that this claim raises a legitimate question of fact,
resolution of the question in appellants' favor would not alter our analysis of the
constitutional issues raised, because the rational basis for the amendments and the state's
obligation to fund early retirees' allowances remain unaffected. Moreover, appellants raise
this issue on the unsupported assertion that the amendments will adversely affect PERS
funds. Respondents offered evidence that new benefits must be actuarily funded. Because
early retirees, in order to oppose summary judgment, may not rest upon the mere allegations
of [their] pleadings, but must, by affidavit or otherwise, set forth facts demonstrating the
existence of a genuine issue for trial, Bird v. Casa Royale West, 97 Nev. 67, 70, 624 P.2d
17, 19 (1981), we find that they have not shown that a genuine issue of fact remains in
dispute.
For the foregoing reasons, we have concluded that appellants' challenge of the district
court's order granting summary judgment is without merit.
The order granting summary judgment is affirmed.
____________
100 Nev. 138, 138 (1984) Cladianos v. Coldwell Banker
PETE CLADIANOS, Appellant, v. COLDWELL BANKER COMMERCIAL BROKERAGE
COMPANY, CRAIG LADATO, and RICH VANDE NOORD, Respondents.
No. 14712
February 24, 1984 676 P.2d 804
Appeal from summary judgment, Second Judicial District Court, Washoe County; James J.
Guinan, Judge.
Broker brought action against property owner to recover commission for broker's efforts to
lease property involved. Both parties filed summary judgment motions. The district court
entered summary judgment in favor of broker, and property owner appealed. The Supreme
Court held that there were triable issues of fact on cause of action for recovery on January 6
agreement, cause of action for unjust enrichment, and fraud cause of action, thereby
precluding summary judgment.
Charles R. Zeh, Sparks, for Appellant.
Roger A. Bergmann, Reno, for Respondents.
1. Brokers.
January 6 document embodied a commission agreement with property owner, which unambiguously
conditioned broker's right to receive a commission on its ability to negotiate a lease agreement with
prospective lessee by January 21, 1978.
2. Brokers.
Any prior negotiations concerning broker's right to receive a commission were superseded by January 6
writing which embodied a commission agreement with property owner, which unambiguously conditioned
broker's right to receive a commission on its ability to negotiate a lease agreement with prospective lessee
by January 21, 1978.
3. Brokers.
Since January 6 agreement was intended to define parties' broker client relationship, it was immaterial
with respect to broker's cause of action for recovery under January 6 agreement whether broker was the
procuring cause of the lease agreement eventually reached.
4. Judgment.
In action brought by broker against property owner to recover commission for broker's efforts to lease
property involved, there were triable issues of fact on cause of action for recovery on January 6
commission agreement, cause of action for unjust enrichment, and fraud cause of action, thereby
precluding summary judgment.
OPINION
Per Curiam:
This is an appeal from a summary judgment in a dispute arising from a lease of
commercial property. Specifically, the dispute is whether appellant Cladianos was obligated
to pay the respondents (Coldwell) a commission for their efforts to lease the property
involved. We have determined that triable issues remain concerning this dispute, and we
therefore reverse the summary judgment and remand the matter for further proceedings.
The Lunan Corporation (not a party in this matter) wished to locate a piece of commercial
property on which to operate a restaurant. Coldwell, who had been working with Lunan to
find a suitable piece of property, discovered an available parcel that was owned by Cladianos.
Through Coldwell, Lunan approached Cladianos.
A document dated January 6, 1978, was eventually prepared by Coldwell. The document
purported to set forth the terms that would be acceptable for a ground lease of the property
involved, between Lunan Corporation and Cladianos. Among the terms prepared by Coldwell
was a promise by Cladianos to pay Coldwell a commission based on a varying percentage of
the rental payments.
Coldwell then submitted the document to Cladianos. Cladianos made several changes to
the terms prepared by Coldwell, mostly with respect to the formula for computing Coldwell's
commission. Cladianos also added a term indicating that the agreement embodied in the
document [would be] null and void if no deal [were] consummated by 1/21/78. Cladianos
signed the document, which was then reviewed and signed in its modified form by Coldwell
representative Richard Vande Noord.
Cladianos and Lunan did not reach a lease agreement by January 21, 1978. Nevertheless,
Cladianos, Lunan and Coldwell continued their attempts to negotiate a lease of the subject
property. Finally, on August 14, 1978, Cladianos and Lunan executed a lease.
Coldwell then asked Cladianos to pay it the commission based on the formula, as modified
by Cladianos, contained in the January 6, 1978, document. Cladianos, however, refused to do
so. Coldwell thereafter filed suit, alleging three causes of action: (1) recovery on the January
6 document; (2) fraud; and (3) unjust enrichment. After substantial discovery had taken place,
both parties moved for summary judgment. On the eve of trial, the district court granted
summary judgment in Coldwell's favor, awarding Coldwell the amount of the commission,
plus interest and costs. This appeal followed.
A critical item in the record on appeal is the document dated January 6, 1978, that was
executed by Cladianos and Coldwell representative Vande Noord. The facts surrounding the
preparation and execution of the document, set forth above, are undisputed.
[Headnotes 1-3]
Contrary to Coldwell's assertion, the January 6 document embodied a commission
agreement with Cladianos, which unambiguously conditioned Coldwell's right to receive a
commission on its ability to negotiate a lease agreement with Lunan by January 21, 1978.
1
Further, any prior negotiations concerning Coldwell's right to receive a commission were
superseded by the January 6 writing. See Buckley Bros. Motors v. Gran Prix Imports, 633
P.2d 1081 (Colo. 1981). Since the January 6 agreement was intended to define the parties'
broker-client relationship, it is immaterial (with respect to Coldwell's cause of action for
recovery under the January 6 agreement) whether Coldwell was the procuring cause of the
lease agreement eventually reached.
____________________

1
In its complaint, Coldwell itself asserts that the January 6 document embodies a commission agreement with
Cladianos.
eventually reached. See Nollner v. Thomas, 91 Nev. 203, 533 P.2d 478 (1975). Cf. Bartsas
Realty, Inc. v. Leverton, 82 Nev. 6, 409 P.2d 627 (1966) (where there was no exclusive
listing agreement, and where trial court was faced with two brokers competing for
commission, proper inquiry was which broker was procuring or inducing cause of sale).
We now turn to a discussion of why summary judgment was improper in this case.
Summary judgment is proper only if there is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law. Casarotto v. Mortensen, 99 Nev.
392, 663 P.2d 352 (1983); NRCP 56(c). We will accept as true all evidence favorable to the
party against whom the summary judgment was rendered. Stone v. Mission Bay Mortgage
Co., 99 Nev. 802, 672 P.2d 629 (1983).
In the present case the district court did not state why summary judgment was granted or
which cause of action entitled Coldwell to a judgment as a matter of law. Our review of the
record reveals that there was no basis for summary judgment.
[Headnote 4]
First, it is undisputed that no lease had been entered into by January 21, 1978; therefore,
Coldwell was clearly not entitled to a judgment based solely on the January 6 agreement as
written. Coldwell contends, however, that Cladianos extended the January 21 deadline. The
record contains conflicting evidence on that contention. Thus, there was a triable issue of fact
on the cause of action for recovery on the January 6 agreement.
2

Second, the record contains disputed evidence regarding the extent to which Coldwell
rendered meaningful assistance in negotiating the lease ultimately reached. Thus, there was a
triable issue of fact on the cause of action for unjust enrichment.
Finally, the fraud cause of action was not argued by Coldwell, either in the district court or
on appeal, as a possible basis for summary judgment.
Accordingly, the district court erred by granting summary judgment for Coldwell. Because
of the factual issues mentioned above, we also reject Cladianos' contention that the district
court should have granted summary judgment in Cladianos' favor.
____________________

2
The parties have not addressed the legal issue of whether the written deadline could be extended by oral
agreement of the parties; therefore, we have not addressed that issue.
____________
100 Nev. 142, 142 (1984) Randono v. Ballow
ANTON ROBERT RANDONO aka TONY RANDONO, Appellant, v. JOHN BALLOW and
RACHEL J. BALLOW, Respondents.
No. 14773
February 24, 1984 676 P.2d 807
Appeal from grant of motion for change of venue, Eighth Judicial District Court, Clark
County; J. Charles Thompson, Judge.
Appeal was taken from order of the district court which granted motion for change of
venue. The Supreme Court held that motion filed before expiration of time for filing an
answer to amended complaint was timely even though time for answering original complaint,
which court had ruled did not state a cause of action, had expired.
Affirmed.
Stanley W. Pierce, Las Vegas, for Appellant.
Galliher & Tratos, Las Vegas, for Respondents.
1. Pleading.
Amended complaint was a distinct pleading which superseded original complaint.
2. Venue.
Where original complaint was amended following district court's ruling that original complaint failed to
state cause of action, motion for change of venue which was made before time for answering the amended
complaint expired was timely, even though it was made after expiration of the time for filing an answer to
the original complaint. NRS 13.050, subd. 1.
OPINION
Per Curiam:
This is an appeal from an order granting a motion for change of venue. See NRAP
3A(b)(2). Appellant contends that the motion was untimely and that the district court should
have denied the motion on that basis. We disagree, and therefore we affirm the district court's
order.
On October 7, 1981, appellant filed a complaint in the Eighth Judicial District Court, Clark
County. Respondents answered the complaint and later moved for a judgment on the
pleadings, pursuant to NRCP 12(c), on the ground that the complaint failed to state a cause of
action. The district court granted the motion and dismissed the complaint, and appellant was
allowed thirty days in which to file an amended complaint. On January 6, 1983, appellant
filed and served an amended complaint. On January 12, 1983, respondents filed and served a
demand for change of venue, a motion for change of venue, and an answer to the
amended complaint.
100 Nev. 142, 143 (1984) Randono v. Ballow
demand for change of venue, a motion for change of venue, and an answer to the amended
complaint. The district court granted respondents' motion, ordering the venue changed to the
Seventh Judicial District Court, Lincoln County. This is an appeal from that order.
A demand for change of venue must be made before the time for answering expires.
NRS 13.050(1). The sole issue in this appeal is whether the time limit in that statute should
be measured by reference to the amended complaint rather than the original complaint. This is
an issue which we have not previously addressed.
[Headnotes 1, 2]
The amended complaint in this case was a distinct pleading which superseded the original
complaint. See McFadden v. Ellsworth Mill and Mining Company, 8 Nev. 57 (1872). In a
similar case, the court in Campbell v. Deddens, 518 P.2d 1012 (Ariz.Ct.App. 1974), ruled
that where a complaint is amended in a material way, a defendant has a right to plead de novo
to the amended complaint. The court reasoned that the defendant's answer to the amended
complaint constituted his first responsive pleading to the merits of the plaintiff's claim, even
though the defendant had responded to the original complaint. The court therefore held that
the motion for change of venue was timely, because the time to respond to the amended
complaint had not yet expired. We agree with the reasoning in Campbell. In the present case
the complaint was amended following the district court's ruling that the original complaint
failed to state a cause of action. Therefore, the complaint was certainly amended in a material
manner. Under these circumstances the district court properly measured the time limit in NRS
13.050(1) by reference to the amended complaint rather than the original complaint.
Affirmed.
____________
100 Nev. 143, 143 (1984) Washoe County v. Wittenberg
WASHOE COUNTY, NEVADA: BILL FARR, BENNIE FERRARI, JAMES
UNDERWOOD, STEVE BROWN and BELIE WILLIAMS, Individually and as County
Commissioners of Washoe County, Nevada, Appellants, v. MARK WITTENBERG and ST.
MARY'S HOSPITAL, Respondents.
No. 14802
February 24, 1984 676 P.2d 808
Appeal from a judgment of the district court granting a writ of mandamus and awarding
damages; Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Action was brought by medical indigent patient and private health care institution to
recover the cost of emergency medical care provided by such institution to patient and other
eligible medical indigents. The district court entered judgment in favor of patient and
institution, and county appealed. The Supreme Court, Springer, J., held that county was
responsible for payment of emergency medical care provided to eligible medical indigents
who resided in county, where conditions threatened life or serious and permanent bodily
impairment to such indigents and need for care was manifestly urgent and could not await
transfer of indigents to county medical center.
Affirmed.
Mills Lane, District Attorney, William A. Baker, Deputy District Attorney, Washoe
County, for Appellants.
Echeverria and Osborne, Reno, for Respondents.
Bill Curran, Legal Counsel to Nevada Association of Counties, for Amicus Curiae.
County is responsible for payment of emergency medical care provided to medical indigents who reside
in county, where condition threatens life or serious and permanent and bodily impairment to indigents and
need for care is manifestly urgent and cannot wait transfer of indigents to county medical center. NRS
428.010, subd. 1.
It is reasonable for county to fulfill its statutory duty to provide necessary medical care to medical
indigents by creating and maintaining its own medical facility; it is also reasonable for county to require its
medically indigent to be treated at its own facility. NRS 428.010, subd. 1.
Persons who provide urgent emergency care to medical indigents have claim against county for
reasonable value of medical services provided to such indigents provided there exists urgent medical
emergency in which serious and permanent bodily disability or death is likely to result if indigents are
transported to county hospital, duration of treatment is limited to time during which emergency treatment is
being given and ends at such time as indigents treated can safely and prudently be transported to county
hospital, county welfare department is notified as soon as is reasonably possible after indigents have been
admitted for emergency treatment, and expenses incurred in treatment and care of indigents are reasonable
in light of indigents' required needs. NRS 428.010, subd. 1.
County is not obligated to pay for medical services rendered to a medically indigent person merely
because such person obtained admission to the emergency room of a private health care institution. NRS
428.010, subd. 1.
Evidence that medical indigent who resided in county was admitted to emergency room of private health
care institution with a fever, swollen abdomen, and a delirious condition was sufficient to support finding
that medical treatment provided to such indigent was for an urgent emergency and, thus, was sufficient to
sustain award of $12,491.87 entered in favor of such indigent for the cost of medical services rendered to
him. NRS 428.010, subd. 1.
Testimony and exhibits received without objection by county, which took position that no medical care,
emergency or otherwise, provided to medical indigents could become a county obligation unless
preauthorized or provided at medical center, was sufficient to support finding that all medical indigent
patients for whom compensation was claimed by private health care institution were medical indigents
eligible for county medical assistance and provided evidence that all such patients received emergency
treatment, so that Supreme Court would not set aside judgment of $319,594.78 in favor of private health
care institution for cost of emergency medical care provided to such patients. NRS 428.010, subd. 1.
OPINION
By the Court, Springer, J.:
The question in this case is whether Washoe County is obligated to pay for emergency
medical treatment provided by St. Mary's Hospital to indigent patients eligible for county
medical assistance. We hold that St. Mary's Hospital and other private health care providers
are entitled to be reimbursed for the costs of treatment for eligible indigent patients in
medical emergencies as narrowly defined here.
Respondent Wittenberg is eligible to receive medical care at the expense of Washoe
County. He was admitted to the emergency room of St. Mary's Hospital because of a dire
emergency. He had a fever, his abdomen was swollen, and he was delirious. Unopposed
evidence was presented that the cost of services rendered to Wittenberg was $12,491.87. The
district court entered judgment in his favor for this amount, together with interest.
[Headnote 1]
Washoe County takes the firm stand that it has no obligation under any circumstances to
pay for medical care rendered in the county unless it is rendered at Washoe Medical Center or
is performed with the county's consent. We disagree with this position and hold that the
county is responsible for payment for emergency medical care where the condition threatens
life or serious and permanent bodily impairment to the patient and the need for care is
manifestly urgent and cannot await transfer of the patient to Washoe Medical Center.
the need for care is manifestly urgent and cannot await transfer of the patient to Washoe
Medical Center.
This rule is intended to be narrow in scope and applies only to eligible medical indigents
who reside in the county. NRS 428.010(1)
1
requires the county to provide care to the poor,
indigent, incompetent, and incapacitated residents of the county. The county recognizes this
obligation but maintains that its duty to provide care is limited to care offered at Washoe
Medical Center.
The defect in the county's position is that there are, of necessity, cases in which needed
medical care cannot be safely or reasonably provided at Washoe Medical Center. For
example, if an eligible medical indigent were injured in a remote area of the county and were
rushed to the nearest first-aid station for life-saving emergency treatment, it would be
unreasonable for the county to deny responsibility for the care of such a patient. Two factors
intersect here: the duty of the county to provide medical services and a compelling medical
emergency making it improvident to require transportation of the indigent patient to Washoe
Medical Center for the necessary treatment. If there is a duty to provide care, and it cannot
under the circumstances be reasonably provided at Washoe Medical Center, it must be
provided elsewhere; and the county must pay for it. Although there is a conflict of authority,
the clear majority of courts have held that under such circumstances a county must make
reimbursements.
2
[Headnote 2]
[Headnote 2]
____________________

1
1. To the extent that moneys may be lawfully appropriated by the board of county commissioners for
this purpose pursuant to NRS 428.050, every county shall provide care, support and relief to the poor,
indigent, incompetent and those incapacitated by age, disease or accident, lawfully resident therein, when
such persons are not supported or relieved by their relatives or guardians, by their own means, or by state
hospitals, or other state, federal or private institutions or agencies.

2
Wayne Township v. Lutheran Hospital, 312 N.E.2d 120 (Ind.Ct.App. 1974); County Dept. of Pub. Welf. v.
Trustees of Indiana U., 251 N.E.2d 456 (Ind.Ct.App. 1969); Massachusetts General Hospital v. City of Revere,
191 N.E.2d 120 (Mass. 1963); Amsterdam City Hospital v. Gemmiti, 213 N.Y.S.2d 955 (1961); Rockford
Memorial Hospital Association v. Whaples, 165 N.E.2d 523 (Ill.Ct.App. 1960); Board of Com'rs of Nobel
County v. Niemann, 78 P.2d 672 (Okla. 1938); Cache Valley General Hospital v. Cache County, 67 P.2d 639
(Utah 1937); Burnham v. Lincoln County, 257 N.W. 491 (Neb. 1934); Sweet Clinic v. Lewis County, 282 Pac.
832 (Wash. 1929); Board of Com'rs v. Enid Springs Sanitarium & Hospital, 244 Pac. 426 (Okla. 1926);
Newcomer v. Jefferson Tp., Tipto County, 103 N.E. 843 (Ind. 1914); see also 79 Am.Jur.2d Welfare Laws
88, 90 (1975); 70 C.J.S. Paupers 74(a)(4) 162-64 (1951); Annotation 93 A.L.R. 900 (1934).
[Headnote 2]
Washoe County Code, section 45.170, provides that necessary medical care must be
provided at the Washoe Medical Center and that it may be rendered elsewhere only upon
approval of the welfare department. It is certainly reasonable for the county to fulfill its
statutory duty to provide care by creating and maintaining its own medical facility. It is also
reasonable that it should require its medically indigent to be treated at its own facility. It is
proper to require those eligible for care to go to the county medical center and not to shop
around for private care and expect to send the bill to the county. Nevertheless, the county may
not be allowed to deny responsibility for care necessarily administered to eligible persons to
whom the medical center is not safely accessible. Thus, the county is, under certain
emergency conditions, responsible for the cost of care provided to eligible persons outside of
the medical center, and such care should be approved by the county welfare department as
stated in section 45.170 of the county code.
[Headnote 3]
Persons who provide urgent emergency care to eligible indigents have a claim against the
county for the reasonable value of medical services provided to eligible medical indigents
provided that:
1. There exists an urgent medical emergency in which serious and permanent bodily
disability or death is likely to result if the patient is transported to the county hospital;
2. The duration of treatment is limited to the time during which the emergency
treatment is being given and ends at such time as the person treated can safely and
prudently be transported to the county hospital;
3. The county welfare department is notified as soon as is reasonably possible after
the patient has been admitted for emergency treatment, allowing the county an
opportunity to determine the patient's eligibility for county medical assistance; and
4. The expenses incurred in the treatment and care of the patient are reasonable in
light of the patient's required needs.
[Headnote 4]
Under such circumstances county welfare would be acting improperly and arbitrarily if it
were to refuse such a claim; the county would be legally obligated to pay it.
Under the stated rule the county is obviously not obligated to pay for medical services
rendered merely because a medically indigent person has obtained admission to the
emergency room of St.
pay for medical services rendered merely because a medically indigent person has obtained
admission to the emergency room of St. Mary's or any other private health care institution.
We agree with the county that an emergency room does not an emergency make; and mere
admission to an emergency room for treatment does not fulfill the requirements of the rule
here stated.
[Headnote 5]
In the Wittenberg case the district court made an express finding that Wittenberg's
recovery was based on the emergency care provided to him by St. Mary's Hospital. There is
ample evidence in the record to support a finding that the emergency care falls within the
definition stated above. The amount and reasonableness of the award was not contested by
the county before the trial court. The Wittenberg judgment is affirmed.
[Headnote 6]
In addition to the Wittenberg award, the district court gave judgment to St. Mary's in the
sum of $319,594.78, to compensate St. Mary's for the cost of medical services provided to
other eligible medical indigents given emergency medical care from December 22, 1981,
through February 2, 1983. There is proof in the record to support a finding that all of the
patients for whom compensation is claimed by St. Mary's are medical indigents eligible for
county medical assistance. There is evidence that all received emergency treatment.
As stated above, Washoe County took the position that no care, emergency or otherwise,
could become a county obligation unless preauthorized or provided at the medical center.
Consequently the county did not contest the emergency nature of each patient or the
reasonableness of the duration and cost of treatment. St. Mary's testimony and exhibits
relating to these factors were received without objection by the county. Under these
circumstances we will not set aside the judgment.
Affirmed.
Manoukian, C. J., and Mowbray, Steffan, and Gunderson, JJ., concur.
____________
IN THE MATTER OF THE ESTATE OF WALTER E. HERRMANN, Deceased; PETER L.
FLANGAS and JOHN TOM ROSS, Appellants, v. RALPH HERRMANN, Executor of the
Estate of WALTER E. HERRMANN, Deceased, Respondent.
No. 11154
March 8, 1984 679 P.2d 246
Appeal from order of the Ninth Judicial District Court, in and for the County of Lyon;
Howard D. McKibben, Judge.
Order of the district court purporting to award attorneys the sum of $6,000 instead of the
sum of $70,000 previously awarded to them as counsel for nonresident heirs in probate
proceeding was reversed, 677 P.2d 594, and respondent filed petition for rehearing. The
Supreme Court held that appellants were to be compensated for their counsel's services in
formulating a reply to respondent's insubstantial petition for rehearing, and sanctions would
be imposed to deter respondent from employing like dilatory tactics in the future.
Rehearing denied; sanctions imposed.
John E. Stone, Las Vegas, for Appellants.
Woodburn, Wedge, Blakey and Jeppson, and Casey W. Vlautin, Reno, for Respondent.
A petition for rehearing will be entertained only when the Supreme Court has overlooked or
misapprehended some material matter or when otherwise necessary to promote substantial justice. NRAP
40(c)(1)(2).
2. Costs.
The Supreme Court would order appellants compensated for their counsel's services in formulating a
reply to respondent's insubstantial petition for rehearing and would also impose sanctions to deter
respondent from employing like dilatory tactics in the future. NRAP 38, 39(c).
OPINION DENYING REHEARING
Per Curiam:
In our initial opinion, filed January 23, 1984, we held that Judge Howard McKibben had
acted without jurisdiction, and without evidentiary justification, when Judge McKibben
purported to award appellant Peter L. Flangas and his co-counsel John Tom Ross the sum of
$6,000 as attorneys' fees for services rendered in the Estate of Walter Herrmann, instead
of the sum of $70,000 which Judge Richard L.
John Tom Ross the sum of $6,000 as attorneys' fees for services rendered in the Estate of
Walter Herrmann, instead of the sum of $70,000 which Judge Richard L. Waters had
previously awarded to them by a judgment duly and lawfully entered. See In re Herrmann,
100 Nev. 1, 677 P.2d 594 (1984). Now counsel for respondent Ralph Herrmann have filed a
petition for rehearing, to which appellants Flangas and Ross have filed a response containing
a request for the imposition of sanctions against respondent. For the reasons hereinafter set
forth, we deny respondent's petition for rehearing, and we grant appellants' request to impose
sanctions by reason of dilatory and frivolous actions of respondent's counsel in processing
this appeal.
Our initial opinion was grounded upon the following independently controlling
considerations, among others:
(1) As to probate orders awarding attorneys' fees, NRS 155.190 explicitly provides
that the time for appeal runs from entry thereof. Provisions relating to judgments in
civil actions, which contemplate written notice of entry, are clearly not applicable to
such probate orders.
(2) Even if it were possible to extend our rules relating to civil actions, to embrace
probate proceedings governed by NRS 155.190, written notice of entry would not have
been requisite to start respondent Herrmann's appeal time running in the instant case.
This is because NRAP 4(a) and NRCP 52(b) were never intended to require written
notice to a party who himself has procured a judgment's execution and entry.
(3) Furthermore, the record in this case affirmatively demonstrated that there existed
no justification whatever, in law or equity, for tampering with the final award of fees
that Judge Waters had entered with complete propriety. The investigation into that
award was initiated on an insubstantial basis of unwarranted suspicion. The trial, which
Judge McKibben ultimately conducted in obedience to the successor judge's orders,
affirmatively established that Judge Waters' award was in no way insupportable,
unconscionable, or contrary to available evidence. The appellants performed services of
substantial value to the residuary estate, which were of a quality and character fully
justifying Judge Waters' award.
In sum, Judge McKibben's decision was improper not only because he acted without
jurisdiction. In any case, his comments, reasoning, and result, as expressed in his decision,
would not have been justified by the record.
would not have been justified by the record. The same therefore deserve no weight whatever,
for any purpose, and were and are disapproved. Hence, our initial opinion determined Judge
Waters' award to appellants was in all respects properly entered; any challenge thereto is
barred by the doctrine of res judicata; no collateral attack thereon is either permissible or
possible. This said, we turn to consider the issues now before us.
1. Upon review of respondent Herrmann's petition for rehearing, we find that the same
does not direct our attention to any germane legal or factual matter, previously relied upon by
respondent Herrmann's counsel, which was overlooked in our initial opinion. Said petition for
rehearing therefore was not properly filed.
[Headnote 1]
Under our long established practice, rehearings are not granted to review matters that are
of no practical consequence. Rather, a petition for rehearing will be entertained only when the
court has overlooked or misapprehended some material matter, or when otherwise necessary
to promote substantial justice. NRAP 40(c)(2). A petition for rehearing may not be utilized as
a vehicle to reargue matters considered and decided in the court's initial opinion. NRAP
40(c)(1); Gershenhorn v. Stutz, 72 Nev. 312, 306 P.2d 121 (1957). Nor may a litigant raise
new legal points for the first time on rehearing. NRAP 40(c)(1); Cannon v. Taylor, 88 Nev.
89, 493 P.2d 1313 (1972); In re Lorring, 75 Nev. 334, 349 P.2d 156 (1960). It therefore
appears that respondent Herrmann's petition for rehearing has not been filed for any of the
legitimate purposes countenanced by our rules. Instead, as appellants Flangas and Ross
contend, it appears that said petition has been filed for purposes of delay, and with the
improper result, if not the intent, of subjecting appellants to further public odium. The
petition for rehearing therefore must be denied.
2. Turning to appellants' request for imposition of sanctions, we note that respondent
Herrmann's counsel have never advanced any arguable legal position in this matter.
Nonetheless, even though respondent Herrmann's legal position appeared clearly indefensible
to this court, his counsel filed a request for oral argument insisting that counsel needed a
hearing to assist the court in understanding Herrmann's case. Next, during oral argument,
counsel proved unable to address the central legal difficulties of Herrmann's position in any
pertinent way. Now, as previously noted, said counsel have filed a petition for rehearing
which is one in title only, but not in legal contemplation.
petition for rehearing which is one in title only, but not in legal contemplation.
[Headnote 2]
This court may award damages and attorneys' fees to a party aggrieved by an appeal which,
like the instant one, is prosecuted in a frivolous manner. See NRAP 38; Varnum v. Grady, 90
Nev. 374, 528 P.2d 1027 (1974). It is appropriate, therefore, for us to order appellants
compensated for their counsel's services in formulating a reply to respondent's insubstantial
petition for rehearing. It is also appropriate for us to impose sanctions to deter like dilatory
tactics in the future.
In the instant case, appellants are already legally entitled to receive the principal sum
originally awarded to them, together with costs on appeal taxable in the district court as
provided in NRAP 39(c), plus interest at the prevailing legal rate since November 29, 1973.
In addition, appellants shall be paid the sum of $1,000 as and for attorneys' fees in partial
recompense for the services their counsel has unnecessarily been required to perform as
aforesaid. Furthermore, any sums due to appellants, which remain unpaid 60 days after the
date of remittitur, shall thereafter bear interest, as and for damages, at the rate of 2 percent per
month in addition to the interest otherwise prescribed by law. See NRAP 38; Varnum v.
Grady, supra. However, double costs, as provided in NRAP 38(a), are not awarded.
Remittitur shall issue forthwith.
1

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

1
Chief Justice Noel E. Manoukian is disqualified in this matter. Justice John C. Mowbray has voluntarily
recused himself. Pursuant to order entered by Acting Chief Justice Springer, Senior Justice David Zenoff has
been assigned to participate in the court's deliberation and determination of this matter. See Nev. Const., art. 6,
19(1)(a) and 19(1)(c), and SCR 10.
____________
100 Nev. 153, 153 (1984) McGuire v. State
HAROLD LEE McGUIRE, Appellant, v. THE
No. 13498
STEVEN RAY LEVINE, Appellant, v. THE
No. 14058
March 9, 1984 677 P.2d 1060
Consolidated appeals from judgments of conviction, Second Judicial District Court,
Washoe County; Roy L. Torvinen, Judge.
Defendants were convicted in the district court respectively, of robbery and sexual assault,
and they appealed. The Supreme Court consolidated the appeals and held that: (1) defendants
were entitled to new trials based on repeated prosecutorial misconduct in spite of admonitions
by trial court, and (2) extreme prosecutorial misconduct warrants imposition of personal
sanctions.
[Rehearing denied June 28, 1984]
David G. Parraguirre, Public Defender, Jane G. McKenna and Mark Mausert, Deputy
Public Defenders, Washoe County, for Appellants.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Edward
B. Horn, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Supreme Court would consider instances of prosecutorial misconduct on appeal, even though counsel
failed to object, where comments were patently prejudicial in nature and misconduct clearly served to
deprive defendants of right to fair trial.
2. Criminal Law.
Prosecutor's attempt to elicit information from defendant concerning details of underlying prior
convictions, including which sentences were imposed, whether defendant had spent time in prison, and
what he had stolen, constituted prosecutorial misconduct.
3. Criminal Law.
Prosecutor's comments to jury which indicated that jury could consider existence of defendant's prior
convictions in determining whether he was guilty of present offense constituted improper use of character
evidence. NRS 48.045, subd. 2.
4. Criminal Law.
Prosecutor's attacks on defendant's character, including indirect reference to defendant as member of a
prison gang, were irrelevant to prosecution of defendant, and could only have impermissibly
served to inflame emotions of jury; thus, comments constituted prosecutorial
misconduct.
prosecution of defendant, and could only have impermissibly served to inflame emotions of jury; thus,
comments constituted prosecutorial misconduct.
5. Criminal Law.
Prosecutor's comments on defendant's failure to testify before trial were improper as direct violations of
defendant's constitutional right to remain silent. U.S.C.A.Const. Amend. 5.
6. Criminal Law.
Prosecutor's comments disparaging defense counsel constituted misconduct.
7. Criminal Law.
Comment by prosecutor referring to fact that costs of medical witnesses who had testified on defendant's
behalf had been paid by county at expense of persons such as the jurors themselves compromised role of
jurors as impartial fact finders, and thus was improper.
8. Criminal Law.
Remarks by prosecutor, in prosecution for sexual assault, asking jurors to place themselves in position of
victim or any member of victim's family, which continued despite court's admonishment, constituted
misconduct.
9. Criminal Law.
Remarks by prosecutor concerning his personal belief in defendant's guilt, which attempted to mislead
jury on issue of presumption of innocence, were improper and constituted prosecutorial misconduct.
10. Criminal Law.
Defendant was entitled to new trial on basis of prosecutorial misconduct, despite State's contentions that
cautionary instructions to jury cured misconduct and that defense counsel provoked misconduct, where
prosecutor made improper remarks with respect to defendant's prior felony convictions and that those
convictions should be considered in determining guilt, made improper attacks on defendant's character and
commented on defendant's failure to testify.
11. Criminal Law.
Defendant was entitled to new trial on basis of prosecutorial misconduct, despite contention by State that
admonitions to jury cured prosecutor's misconduct and that defense attorney provoked that misconduct,
where prosecutor repeatedly made disparaging remarks pertaining to defense counsel, referred to fact that
jurors were paying for medical witnesses who had testified on defendant's behalf, made highly
inflammatory remarks pertaining to consent defense, and improperly expressed personal belief in
defendant's guilt.
12. Attorney and Client.
Extreme prosecutorial misconduct, which continues in spite of admonishments by trial court, warrants
personal sanction of $500 for criminal appeals.
OPINION
Per Curiam:
These are two appeals from judgments of conviction in criminal cases. The appellants in
both cases have raised the common question of whether they were deprived of their right to a
fair trial as a result of prosecutorial misconduct.
fair trial as a result of prosecutorial misconduct. Since the same prosecutor, John Oakes of the
Washoe County District Attorney's Office, was involved in both of these cases, we have
determined that consolidation of these appeals is warranted.
1

In the past we have publicized our concern over the serious nature of the problem of
prosecutorial misconduct. We have emphasized not only the problems such misconduct
causes in terms of depriving an accused of his or her right to a fair trial, but also the
additional public expense needlessly occasioned by such misconduct, especially where such
misconduct results in the necessity of a retrial. See Moser v. State, 91 Nev. 809, 814-15, 544
P.2d 424, 427-28 (1975) (Gunderson, C. J., concurring with approval of full court); State v.
Cyty, 50 Nev. 256, 256 P.793 (1927). We have therefore warned and given clear notice to the
prosecutors in this state that in appropriate cases not only will misconduct result in the
reversal of a conviction, but that it may, in certain extreme cases, result in the imposition by
this court of personal sanctions against the prosecutor. See Moser v. State, supra; see also
Talancon v. State, 97 Nev. 12, 621 P.2d 1111 (1981).
Despite our condemnation of prosecutorial misconduct, and despite the above warnings,
the problem of prosecutorial misconduct unfortunately still exists in this state as these two
appeals graphically illustrate. We have concluded that not only did the misconduct committed
by Oakes deprive both appellants of their right to a fair trial, thereby warranting reversal of
their convictions and the granting of a new trial for each of them, but that this is an
appropriate case for the imposition of personal sanctions against the prosecutor responsible
for this gross waste of judicial resources.
[Headnote 1]
The following are summaries of the misconduct committed by Oakes in each case. As
space does not permit us to enumerate each and every instance of misconduct committed by
Oakes, we will confine these summaries to only the worst of the instances of misconduct.
2
McGUIRE v. STATE; NO.

____________________

1
We are also aware of at least one other appeal pending in this court in which the appellant has made
allegations of serious prosecutorial misconduct on the part of prosecutor Oakes. Williams v. State, No. 14754.
That case, however, has not yet been submitted for our decision.

2
We note at the outset that some of the instances of misconduct set forth in these appeals were not objected
to at trial by defense counsel. Given the patently prejudicial nature of these comments, and the fact that the
misconduct in these cases clearly served to deprive the appellants of their right to a fair trial, we have deemed it
appropriate in these cases to consider these complaints of error on appeal. See Rhodes v. State, 91 Nev. 720, 542
P.2d 196 (1975).
McGUIRE v. STATE; NO. 13498
[Headnote 2]
Appellant McGuire was charged and convicted of one count of robbery. At McGuire's jury
trial, Oakes made several improper remarks with respect to McGuire's three prior felony
convictions, two of which were for armed robbery. First, Oakes attempted to elicit
information from McGuire concerning the details of the underlying prior convictions,
including what sentences were imposed, whether McGuire had spent any time in prison and
what he had stolen on one of the prior occasions. These questions directly violated our rulings
in Plunkett v. State, 84 Nev. 145, 437 P.2d 92 (1968), and Jacobs v. State, 91 Nev. 155, 532
P.2d 1034 (1975), as well as the express rulings of the trial court which Oakes disregarded,
and therefore clearly constituted misconduct.
[Headnote 3]
Next, Oakes made at least two comments to the jury which improperly indicated that the
jury could consider the existence of McGuire's prior convictions in determining whether he
was guilty of the present offense. These comments not only constituted a highly improper use
of character evidence, in direct violation of the law in Nevada, see NRS 48.045(2); Nester v.
State of Nevada, 75 Nev. 41, 334 P.2d 524 (1959), but were made in direct violation of the
trial court's earlier admonition to Oakes that such remarks would be improper. Such a flagrant
violation of the laws of this state, and of the ruling of the trial court, is simply intolerable.
[Headnote 4]
Oakes then made three additional improper attacks on appellant's character, first by
indirectly referring to appellant as an Aryan Warrior; second, by stating that he thought it
was curious that a person who had three prior felony convictions would be out walking the
streets; and third, by making the following comment to the jury during closing argument:
You have to decide whether or not this man is a man you want to let loose on the
street, on a dark street, and walk the streets of Reno. Is this the type of guy who says he
is not guilty?
These comments were completely irrelevant to the issues in this case, and could only have
impermissibly served to inflame the emotions of the jury, therefore clearly constituting
misconduct on the prosecutor's part.3 See Cosey v. State, 93 Nev. 352, 566 P.2d S3
{1977); Moser v. State, supra.
on the prosecutor's part.
3
See Cosey v. State, 93 Nev. 352, 566 P.2d 83 (1977); Moser v.
State, supra. Indeed, the state expressly concedes on appeal that the third comment, quoted
above, was improper.
[Headnote 5]
Oakes later commented to the jury that McGuire had never testified before in this case,
and then questioned the truth of appellant's trial testimony by inquiring why he would
remain silent until the time of trial if his alibi was true. These comments were made in direct
violation of McGuire's fifth amendment right to remain silent. It is well settled that a
prosecutor is forbidden by the dictates of the fifth amendment to comment either on a
defendant's post-arrest silence, see Doyle v. Ohio, 426 U.S. 610 (1976), or on a defendant's
failure to testify at his preliminary hearing. See Bernier v. State, 96 Nev. 670, 614 P.2d 1079
(1980). Clearly, Oakes should have known that such comments were highly improper.
LEVINE v. STATE; NO. 14058
Appellant Levine was charged and convicted of one count of sexual assault in violation of
NRS 200.366. The record of Levine's jury trial is virtually riddled with instances of blatant
and outrageous acts of prosecutorial misconduct.
[Headnote 6]
During the course of trial, Oakes repeatedly made disparaging and uncalled-for remarks
pertaining to defense counsel's ability to carry out the required functions of an attorney. For
example, during Oakes' direct examination of the victim, Oakes asked her if appellant had an
erection at the time of the assault. The witness answered, I guess he did. Defense counsel
then objected and moved to strike the answer, apparently on the ground that the guess
constituted speculation. In response to defense counsel's seemingly legitimate objection,
Oakes then said: How do you strike an erection? We can discern no purpose for the
statement other than as an attempt to belittle defense counsel in front of the jury.
____________________

3
We take note of the fact that the term Aryan Warrior refers to a well-known prison gang in Nevada. The
state contends on appeal that the Aryan Warrior remark was a joking comment which was trivial and which
could not have been taken seriously by the jury. It is rather astonishing that a prosecutor would believe that a
felony trial, at which a man's freedom and the public's right to a just prosecution are at stake, is the appropriate
place for such joking. Furthermore, it would be pure speculation for us to hold, as the state argues, that the
jury would not have seriously considered a remark about membership in a prison gang.
discern no purpose for the statement other than as an attempt to belittle defense counsel in
front of the jury. Other examples appear throughout the trial transcript. Disparaging
comments have absolutely no place in a courtroom, and clearly constitute misconduct. See
People v. Podwys, 44 P.2d 377 (Cal.Ct.App. 1935).
[Headnote 7]
During closing argument, Oakes referred to the fact that the costs of medical witnesses
who had testified on Levine's behalf at trial had been paid for at county expense by such
persons as the jurors themselves. This comment clearly compromised the role of the jurors as
impartial fact-finders and was therefore highly improper. See People v. American Medical
Centers of Mich., 324 N.W.2d 782 (Mich.Ct.App. 1982).
[Headnote 8]
Oakes once again committed misconduct during closing argument when he made the
following highly inflammatory remarks pertaining to the consent defense tendered by Levine
at trial:
If you find Levine not guilty . . . you are going to give him a license to rape and the
fact will be that a young girl can go to a party, a young girl can turn down his intentions
and try to leave. She can be dragged back in the house by her hair, thrown in the
apartment . . . and raped, scream for help and that's consent.
So any one of your daughters, if that happens, there's no problem. Now, maybe some
of you older people can't identify with a young girl
Although these comments were objected to by defense counsel, and Oakes was admonished
by the trial court that it was improper to argue that the jurors should place themselves in the
position of the victim or any member of the victim's family, Oakes nevertheless persisted in
making this type of argument by immediately thereafter stating:
I'll make it simple. If you find him not guilty, don't ever let me hear you complain.
Not only were these comments exceedingly improper in and of themselves, see Cosey v.
State, supra; Kelly v. Stone, 514 F.2d 18 (9th Cir. 1975), but we are once again appalled by
Oakes' contemptuous and blatant disregard for the trial court's rulings.
[Headnote 9]
Lastly, with respect to this case, Oakes made the following two remarks, both of which
can be viewed as improper expressions of his personal belief in Levine's guilt, see Owens
v. State, 96 Nev. SS0
two remarks, both of which can be viewed as improper expressions of his personal belief in
Levine's guilt, see Owens v. State, 96 Nev. 880, 620 P.2d 1236 (1980), and as improper
attempts to mislead the jury on the issue of the presumption of innocence:
The state has made a charge and we're here to prove it, except I will never want to be
accused of trying to send an innocent man to jail.
You don't think I got a rape victim out of the street to march here into court and
waste your time, do you?
Once again, we conclude that these remarks were highly improper and that they clearly
constituted misconduct.
CONCLUSION
[Headnotes 10, 11]
With respect to both of these cases, the state has argued on appeal that, even assuming the
existence of misconduct, no prejudice to the appellants' right to a fair trial resulted. The state
cannot seriously contend that the misconduct in these cases should not be considered
prejudicial given its extreme and outrageous nature.
4

We view with grave concern the staggering cost to the taxpayer of financing our criminal
justice system. Of equal concern to this court is the trauma to which victims of crime must be
resubjected when a new trial is required. We accordingly approach with great sensitivity the
prospect of reversing the verdicts of citizens who have been impanelled as jurors to sit in
judgment of the guilt or innocence of an accused. It has nevertheless been the solemn
responsibility of appellate courts to safeguard the fundamental right of every person accused
of criminal behavior to a fair trial, basically free of prejudicial error. This is but a reflection of
the high value our nation and state place on an individual life, and the right of each citizen to
liberty and the lawful pursuit of happiness. It is the obligation of government to vouchsafe
to its citizens a continuing respect for these values.
____________________

4
In this same vein, we conclude that the misconduct in both of these appeals was so outrageous, and so
patently prejudicial to the appellants' cases, that the occasional cautionary instructions given by the trial court
below were insufficient to cure the damage which was wrought by the misconduct. See State v. Cyty, supra.
Similarly, we disagree with the state's contention on appeal that defense counsel invited or provoked Oakes'
misconduct at both of these trials, thereby justifying the misconduct and militation against reversal of the
appellants' convictions. See Pacheco v. State, 82 Nev. 172, 179-80, 414 P.2d 100, 104 (1966). Any
improprieties committed by defense counsel in these two cases were few and far between as compared to those
committed by Oakes, and they certainly did not justify the extreme level of Oakes' misconduct.
of government to vouchsafe to its citizens a continuing respect for these values. We therefore
conclude that it is an intolerable affront to the criminal justice system, the state and its
citizens that the type of egregious conduct outlined in part in this opinion be allowed to occur
in our courtrooms. The waste and diversion of limited judicial and human resources are but
some of the inevitable consequences of such behavior. Another is the danger that youthful
prosecutors may, in their zeal to learn, be persuaded that emulation and perpetuation of such
conduct may be both effective and acceptable. These and other consequences not discussed
herein must be foreclosed or at least minimized.
[Headnote 12]
Accordingly, the judgments of conviction in both cases are reversed and the cases are
remanded for new trials on the merits.
5
Additionally, as noted above, the misconduct in both
cases was extreme and outrageous. Clearly our previous warnings, both in the 1975 Moser
opinion and in the more recent 1981 Talancon opinion, have been insufficient to deter Oakes
from engaging in such highly improper and inappropriate conduct. Oakes is therefore ordered
personally to pay the sum of $250 for each of these appeals, for a total sum of $500. This sum
shall be paid to the Washoe County Law Library Book Fund within sixty (60) days of the date
of the issuance of this opinion.
____________________

5
In light of our disposition of these cases, we need not address any of the remaining contentions set forth by
the appellants.
With respect to the Levine case, however, we note that counsel for Levine recently filed a motion to compel
compliance with a plea bargain. Levine contends that after oral argument a plea bargain was entered into, the
terms of which provide for a plea of guilty to one charge in exchange for dismissal of other charges. Levine
contends that the state now refuses to comply with the agreement. The state has opposed the motion. The state
does not contend that specific performance is an inappropriate remedy for enforcement of the alleged plea
bargain in this particular case. Instead, the state's only contention is that no agreement was actually reached and
that therefore this court should remand the motion to the district court for a factual determination. We agree with
the state that we are unable to resolve the factual issue presented by the motion. Therefore, on remand the
district court shall conduct proceedings to determine if a plea agreement was reached in this case, and if so, the
terms of the agreement. See Zugel v. Miller, 99 Nev. 100, 659 P.2d 296 (1983) (motion to dismiss appeal raised
factual issue; remand to district court for determination of facts). If the district court determines that an
agreement was reached, the agreement shall be enforced according to its terms. If no agreement was reached,
Levine shall be retried pursuant to our reversal of his conviction.
____________
100 Nev. 161, 161 (1984) Dittmann v. Dittmann
GERALD DITTMANN, Appellant, v. SHARON
DITTMANN, Respondent.
No. 14864
March 9, 1984 676 P.2d 811
Appeal from order denying motion to modify decree of divorce, Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
B. Mahlon Brown, Las Vegas, for Appellant.
David Abbatangelo, Las Vegas, for Respondent.
OPINION
Per Curiam:
This an appeal from the district court's order denying appellant's motion to modify a decree
of divorce. Appellant filed an opening brief, but respondent has not filed an answering brief.
On February 17, 1984, we ordered respondent to file an answering brief or show cause
why her failure to file a brief should not be treated as a confession of error pursuant to NRAP
31(c). In response to our order, respondent's counsel notified this court that he will not be
filing an answering brief.
Cause appearing, we elect to treat respondent's conduct as a confession of error. NRAP
31(c); see Walport v. Walport, 98 Nev. 301, 646 P.2d 1215 (1982). Accordingly, the order of
the district court is reversed, and this matter is remanded with instruction to modify the
parties' decree of divorce in accordance with appellant's motion filed below.
____________
100 Nev. 162, 162 (1984) Ferris v. State
DONALD ALBERT FERRIS, Appellant, v. THE
No. 14446
March 14, 1984 677 P.2d 1066
Appeal from judgment of conviction upon guilty plea; First Judicial District Court, Carson
City; Michael R. Griffin, Judge.
Defendant was convicted in the district court upon his guilty plea, of possession of a
controlled substance, and he appealed. The Supreme Court held that presentence report
properly included detailed description of facts underlying two charges dismissed pursuant to
plea bargain.
Affirmed.
Thomas E. Perkins, State Public Defender, and Laura FitzSimmons, Deputy State Public
Defender, Carson City for Appellant.
Brian McKay, Attorney General, William Maddox, District Attorney, and Charles P.
Cockerill, Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
Presentence report may include information pertaining to prior acts for which no conviction has been
obtained, provided that information is not founded on facts supported only by impalpable or highly suspect
evidence.
2. Criminal Law.
Presentence report properly included detailed description of facts underlying two charges dismissed
pursuant to plea bargain, where information was based upon reliable information given to police officers by
victim of acts in question.
3. Criminal Law.
No understanding is implicit in plea bargain that defendant will suffer no adverse consequences by reason
of facts relating to dismissed count.
4. Criminal Law.
Presentence report may include information pertaining to criminal offenses which have not been charged.
OPINION
Per Curiam:
Pursuant to a plea bargain, appellant pleaded guilty to one count of possession of a
controlled substance. In exchange, the state agreed to dismiss several other essentially
unrelated charges against appellant. Appellant's presentence report, however, contained a
detailed description of the facts underlying two of the dismissed charges under the
"offense" section of that document.
however, contained a detailed description of the facts underlying two of the dismissed
charges under the offense section of that document. Prior to sentencing, appellant moved to
strike this portion of the presentence report as being irrelevant to the charge for which he was
being sentenced. The district court denied the motion, ruling that the challenged information
should not have been included under the offense section of the report, but that it was
nevertheless properly included within the presentence report itself as it related to appellant's
background or character. See NRS 176.145.
1
Appellant now contends that the district court
erred in denying his motion to strike the challenged information. We disagree.
[Headnotes 1, 2]
We note at the outset that the district court was correct in its observation that a presentence
report may include information pertaining to prior acts for which no conviction has been
obtained, provided that the information is not founded on facts supported only by impalpable
or highly suspect evidence. . . . Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976);
see Goodson v. State, 98 Nev. 493, 654 P.2d 1006 (1982). The information in the present
case was based upon reliable information given to police officers by one of the victims of the
acts in question, and therefore did not violate the rule set forth in Silks and Goodson.
Appellant argues that when the state agrees to dismiss charges in exchange for a guilty
plea to a separate, unrelated charge, the state should not be allowed to include information in
the presentence report pertaining to the dismissed charges. Appellant's argument is based on
considerations expressed in People v. Harvey, 602 P.2d 396 (Cal. 1979). In Harvey, the court
held that implicit in such a plea bargain is the understanding that the defendant will suffer no
adverse consequences by reason of the facts relating to the dismissed count.
[Headnote 3]
We reject the Harvey decision, and we decline to imply such an understanding into plea
bargains. Such an implied understanding would ignore the practicality of a district judge's
involvement in the entry of the guilty plea. The district judge who sentences a defendant is
usually the same district judge who accepted the guilty plea, and the judge already knows that
charges have been dismissed in exchange for the plea.
____________________

1
NRS 176.145 provides in part that:
The report of the presentence investigation must contain:
1. Any prior criminal record of the defendant;
2. Such information about his characteristics, his financial condition, the circumstances affecting his
behavior and the circumstances of the offense as may be helpful in imposing sentence. . . .
charges have been dismissed in exchange for the plea. Furthermore, because of allegations
contained in the charging document, the judge is also already aware of the nature of the
dismissed charges.
[Headnote 4]
In addition, a presentence report may include information pertaining to criminal offenses
which have not been charged. See Silks v. State, supra. The state should not be placed in a
worse position, absent an agreement to the contrary, merely because the state has included
those offenses in a charging document and then dismissed the charges as part of a plea
bargain.
Finally, we note that NRS 176.145, supra note 1, is mandatory in its requirement that the
presentence report contain information about a defendant's characteristics and the
circumstances affecting his behavior. The state might be able to agree to waive that
requirement, in part, as to information relating to known criminal activity of a defendant. If
the state has agreed to omit information from a presentence report, however, there is no
compelling reason why such an agreement should not be an expressed part of the plea
bargain. We decline to imply such an agreement as the court did in Harvey.
Affirmed.
____________
100 Nev. 164, 164 (1984) Carl v. State
RONALD FREDERICK CARL, Appellant, v. THE
No. 12893
March 27, 1984 678 P.2d 669
Appeal from a judgment of conviction of one count of second degree murder; Second
Judicial District Court, Washoe County; James J. Guinan, Judge.
Defendant was convicted in the district court of second degree murder, and he appealed.
The Supreme Court, Springer, J., held that the use of the words must appear in the
instruction defining the elements of self-defense did not impermissibly shift the burden of
persuasion to the defendant.
Affirmed.
[Rehearing denied December 24, 1984]
David Parraguirre, Public Defender, Washoe County; Heaton & Wright, and George E.
Franzen, Las Vegas, for Appellant.
100 Nev. 164, 165 (1984) Carl v. State
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, John J.
Kadlic, Deputy District Attorney, Washoe County, for Respondent.
Due process clause of United States Constitution protects an accused against conviction except on proof
beyond reasonable doubt of every fact necessary to constitute crime with which he is charged.
2. Criminal Law.
Use of words must appear in instruction defining elements of self-defense did not impermissibly shift
burden of persuasion from State to defendant where there was nothing in language used which would
indicate that defendant had to do anything inconsistent with State's burden to prove its case beyond a
reasonable doubt. U.S.C.A.Const. Amends. 5, 14.
OPINION
[Headnote 1]
Appellant Carl stands convicted of second degree murder. Carl's principal claim of error is
that the trial court's instructions on self-defense impermissibly shifted the burden of proof to
him. The Due Process clause of the United States Constitution protects an accused against
conviction except on proof beyond a reasonable doubt of every fact necessary to constitute
the crime with which he is charged. In re Winship, 397 U.S. 358 (1970).
The instructions in question, numbered 31, 32, and 33, are set out in the margin.
1
The
instructions define self-defense and tell the jury that in order to apply the defense and acquit
the defendant certain circumstances must appear. Carl claims that this language shifts the
burden of proving facts supporting self-defense from the state to him. We hold that the
instructions properly advise the jury concerning the nature and elements of self-defense and
do not in any way alter or diminish the state's burden to prove Carl's guilt beyond a
reasonable doubt.
____________________

1
Instruction No. 31:
Justifiable homicide is the killing of a human being in necessary self-defense against one who
manifestly intends, or endeavors, by violence or surprise, to commit a felony.
A bare fear of the offense mentioned above to prevent which the homicide is alleged to have been
committed, 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.
Homicide is also justifiable when committed either in the lawful defense of the slayer, when there is
reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do
100 Nev. 164, 166 (1984) Carl v. State
the state's burden to prove Carl's guilt beyond a reasonable doubt.
[Headnote 2]
Our decision turns on whether use of the words must appear in defining for the jury the
elements of self-defense might lead the jury into believing that the instruction imposes upon
the defendant the burden or persuasion. Kelso v. State, 95 Nev. 37, 43, 588 P.2d 1035
(1979). Any language which can be read as placing upon the defendant the burden of proving
circumstances of mitigation has been expressly condemned by the court. Phillips v. State, 86
Nev. 720, 475 P.2d 671 (1970). The jury in this case, by Instruction No. 19, has been clearly
told that the burden of proving every element of the crime beyond a reasonable doubt rested
upon the prosecution. If the complained-of instructions contradicted the given instruction and
indicated that the defendant had the duty or responsibility of proving some facts or
circumstances, we should have to agree with Carl; but this is not the case.
Appear is an intransitive verb and does not require a direct object to complete its
meaning. The word expresses a mere state of being or existence and does not involve, as in
the case of transitive verbs, an action carried from a subject to an object. If the jury had been
told that it must find certain facts or that the defendant must prove certain facts, then it might
be argued that some action might be required which was inconsistent with the state's overall
burden of proof. No action of any kind appears from the use of appear. Appear means
only to come into view or into existence. All that the jury was being told in these instructions
was that in order for the legal principle of self-defense to be applicable in this case certain
facts or circumstances must appear or exist. There is no more neutral way of putting it.
____________________
some great personal injury to the slayer and there is imminent danger of such design being accomplished
or in the actual resistance of an attempt to commit a felony upon the slayer in his presence.
Instruction No. 32:
A homicide appearing to be justifiable, the person charged, upon trial, shall be acquitted.
Instruction No. 33:
In order to justify a killing in self-defense, it must appear that:
1. The danger was so urgent and pressing that, in order to save his own life, or to prevent his
receiving great bodily harm, the killing of the other was absolutely necessary; and
2. The person killed was the assailant, or that the slayer had really, and in good faith, endeavored to
decline any further struggle before the mortal blow was given.
(Emphasis added.)
100 Nev. 164, 167 (1984) Carl v. State
way of putting it. There is nothing in the language employed that would indicate that the
defendant had to do anything, much less have to prove facts in a manner inconsistent with the
state's burden to prove its case beyond a reasonable doubt.
In Kelso, at page 41, the court used the word appear in this context, stating that to
establish self-defense, it must appear that certain circumstances exist. We would be hard
pressed to condemn the trial court for using the same language in instructing the jury on the
requisites of this defense.
There is nothing in the language, it must appear, that suggests that the defendant must
prove anything, or even that the jury must find or conclude anything. We perceive no error,
constitutional or otherwise, relative to the state's clearly stated burden of proof. Finding no
other error in the record, we affirm the judgment of conviction.
Manoukian, C. J., and Mowbray, Steffen, and Gunderson, JJ., concur.
____________
100 Nev. 167, 167 (1984) Ybarra v. State
ROBERT YBARRA, Jr., Appellant, v. THE
No. 13590
March 28, 1984 679 P.2d 797
Appeal from judgment of convictions upon jury verdicts of first degree murder, first
degree kidnapping, battery with intent to commit sexual assault and sexual assault and from
imposition of the death penalty and three consecutive life sentences without the possibility of
parole. Seventh Judicial District Court, White Pine County; Merlyn H. Hoyt, Judge.
Defendant was convicted in the district court of first degree murder, first degree
kidnapping, battery with intent to commit sexual assault and sexual assault, and he appealed.
The Supreme Court, Steffen, J., held that: (1) M'Naughten test for criminal insanity was
proper; (2) defendant had burden of establishing insanity as affirmative defense; (3)
admission of autopsy photograph of victim was not abuse of discretion; (4) unpreserved
serous fluid drawn from victim during autopsy did not constitute lost evidence which resulted
in any prejudice; (5) defendant was not denied right to speedy trial; (6) death penalty
sentencing statute is constitutional; (7) jury was correctly instructed in death penalty
proceeding; (8) death penalty was properly imposed; {9) admission of evidence of prior
conviction in death penalty proceeding was proper; and {10) district court had jurisdiction
to order that three life sentences without possibility of parole be made consecutive; and
{11) as court meticulously defined "depravity of mind," phrase was not impermissibly
vague.
properly imposed; (9) admission of evidence of prior conviction in death penalty proceeding
was proper; and (10) district court had jurisdiction to order that three life sentences without
possibility of parole be made consecutive; and (11) as court meticulously defined depravity
of mind, phrase was not impermissibly vague.
Affirmed.
[Rehearing denied July 27, 1984]
Thomas E. Perkins, State Public Defender, Robert A. Bork, Chief Deputy Public Defender,
and Laura FitzSimmons, Deputy, Carson City, for Appellant.
Brian McKay, Attorney General, and Dan R. Reaser, Deputy, Carson City; for
Respondent.
1. Criminal Law.
M'Naughten test is test for criminal insanity.
2. Criminal Law; Indictment and Information.
Sanity is not element of offense which prosecutor must plead and prove, but rather, insanity is affirmative
defense which accused, who is presumed sane, must prove by preponderance of evidence.
3. Criminal Law.
In prosecution for first degree murder, inter alia, admission of graphic autopsy photograph of victim was
not abuse of discretion, as court admitted reduction of photograph to minimize inflammatory potential and
photograph was relevant in aiding pathologist witness in explaining cause and circumstances of death.
4. Criminal Law.
Admission of evidence which has inflammatory and prejudicial potential resides within sound discretion
of trial court.
5. Criminal Law.
In prosecution for sexual assault, inter alia, expert testimony that test on properly preserved vaginal swab
or vaginal smear would have yielded same result as serous fluid drawn from victim during autopsy
established that loss of fluid did not constitute lost evidence which resulted in any prejudice to defendant.
6. Criminal Law.
Defendant's right to speedy trial was not denied by his being required to make interim appeal of denial of
motion for change of venue, where expedited review took less than three months after briefs were filed,
delays were principally attributable to defense tactics, and defendant failed to demonstrate any prejudice to
his defense as result of interim appeal. NRS 2.090, subd. 2, 2.110; U.S.C.A.Const. Amend. 6.
7. Homicide.
Statute which governs imposition of death penalty on person convicted of first degree murder is
constitutional, despite its placing burden on accused to prove that mitigating circumstances outweigh
aggravating circumstances; death penalty may be imposed when aggravating and mitigating circumstances
are equal. NRS 200.030, subd. 4.
8. Homicide.
At penalty hearing following conviction of first degree murder, jury was correctly instructed that
aggravating and mitigating circumstances were to be weighed and that it could not consider aggravating
circumstances other than nonstatutory factors and must consider any mitigating circumstances. NRS
175.554, subds. 2, 3, 200.030, subd. 4, 200.033, 200.035, subd. 7.
9. Criminal Law.
Balancing process required in death penalty statute causes sentencer to focus on circumstances of crime
and character of individual defendant, and to follow capital sentencing procedures which are designed to
preclude imposition of death penalty in arbitrary or capricious manner. NRS 200.030, subd. 4.
10. Homicide.
Death penalty statute, by requiring state to prove beyond reasonable doubt existence of statutory
aggravating circumstances and allowing accused to present evidence of any mitigating circumstances, and
then by permitting death penalty only on determination that mitigating factors do not outweigh aggravating
factors and after review of death sentence for arbitrariness and disproportionality, affords procedure which
provides sentencer with adequate information and guidance and accused with sufficient guarantees that
penalty of death will not be imposed arbitrarily and capriciously. NRS 200.030, subd. 4.
11. Homicide.
Evidence in penalty phase following conviction of first degree murder supported finding of four
aggravating circumstances and that sentence of death was not imposed under influence of passion,
prejudice or any arbitrary factor, and sentence was not excessive or disproportionate to penalty imposed in
similar cases in state, considering both crime and defendant. NRS 177.055, subd. 2, 200.030, subd. 4.
12. Homicide.
Admission of evidence of prior conviction was proper as proof of aggravating circumstance in sentencing
phase following conviction of first degree murder, as minutes of proceedings accompanying probation
order certifying prior felony conviction stated that defendant was represented by counsel, though face of
order did not affirmatively so state. NRS 175.552, 200.033, subd. 2.
13. Criminal Law.
District court had jurisdiction to order that defendant's three life sentences without possibility of parole be
made consecutive. NRS 176.035, subd. 1.
14. Homicide.
Phrase depravity of mind contained in death penalty statute was not impermissibly vague as applied to
defendant in death penalty hearing in which court meticulously defined phrase for jury. NRS 200.033,
subd. 8.
OPINION
By the Court, Steffen, J.:
A jury convicted appellant Robert Ybarra, Jr. of one count of first degree murder and one
count each of first degree kidnapping, battery with intent to commit sexual assault and
sexual assault and sentenced appellant to death and to three life sentences without the
possibility of parole, which latter sentences the district court made consecutive.
of first degree murder and one count each of first degree kidnapping, battery with intent to
commit sexual assault and sexual assault and sentenced appellant to death and to three life
sentences without the possibility of parole, which latter sentences the district court made
consecutive. Our review of the record convinces us that Ybarra was fairly tried, convicted and
sentenced. We therefore affirm.
THE FACTS
On September 29, 1979, two Ely fishermen found a woman's purse and some signs of
scuffling on an unpaved road outside of town. Soon thereafter they discovered the pathetic,
living remains of a local sixteen-year-old girl named Nancy Griffith lying on the side of the
road. One of the men testified, [S]he was badly burnt. There was a deep gash in the left
shoulder. The eyes were swollen shut; no hair. The face was unrecognizable. The fishermen
mercifully covered her with their shirts, immediately drove back to Ely and returned with a
sheriff's deputy. Although the deputy knew Nancy, he could not recognize her. Nancy was
ultimately able to tell the deputy that she had been raped by a man in a red truck who worked
north of where she was found. Nancy was rushed to a hospital in Salt Lake City, but died the
following day.
The evening of September 28, 1979, Nancy and a girlfriend had met a man named Robert
Ybarra in Ely. Ybarra worked at an oil rig north of where Nancy was found. Ybarra drove the
girls around town in his red truck. Nancy's girlfriend was dropped off at her sister's because
she wanted to go home. The last time the girlfriend saw Nancy was when she left her with
Ybarra. The two girls arranged to meet later that evening, but Nancy never showed up.
Investigators probing the area outside of town discovered a quarter-mile trail of charred
human skin and Nancy's burnt clothing leading to where her body was found. Evidence of a
struggle and a burn area was also discovered, as well as a gas can. Ybarra's fingerprints were
found on the gas can. Bootprints and tire tracks at the scene also matched Ybarra's boots and
truck tires. Nancy's fingerprints were found on a beer can in Ybarra's mobile home.
The autopsy of Nancy Griffith, conducted on September 30, 1979, revealed that she had
been party to sexual intercourse within the previous two or three days and she had suffered
trauma to the genital area and a severe blow to the head. Nancy's death was caused by burns
which seared her respiratory passages and charred eighty percent of her body surface. The
burn patterns indicated that the flames which covered Nancy's body were fueled by a
flammable liquid which was ignited when she was either standing or sitting.
Nancy's body were fueled by a flammable liquid which was ignited when she was either
standing or sitting.
Ybarra was arrested on September 29, 1979 and charged one week later with the crimes
for which he was eventually convicted. A sanity commission was ordered to examine Ybarra.
Based on the commission's psychiatric reports, the district court concluded that Ybarra was
competent to stand trial. At his arraignment Ybarra plead not guilty. Ybarra later changed his
plea to not guilty by reason of insanity and not guilty.
Trial began on March 31, 1980. The jury was sworn in on April 7, 1980. That same day
Ybarra withdrew his plea of not guilty by reason of insanity and made a motion for change of
venue, which was denied. Ybarra appealed the denial to this Court. Our order dismissing the
appeal was filed October 8, 1980.
During the interim appeal, Ybarra's counsel requested a second sanity commission
examination. Two psychiatrists observed and examined Ybarra at Lake's Crossing Center,
where he had been transferred until he could reasonably consult with his attorney. The district
court later determined that Ybarra was competent to stand trial. Ybarra then changed his plea
to again include not guilty by reason of insanity. Trial resumed on June 9, 1981. At that time,
the district court conducted a supplemental voir dire of the jury and determined that the jurors
had maintained their oaths.
Ybarra's counsel acknowledged in his closing argument that Ybarra had murdered Nancy,
but challenged the other three felony counts.
At the trial's conclusion, the jury found Ybarra guilty on all four counts and sentenced him
to three life sentences without the possibility of parole for the convictions of first degree
kidnapping, battery with intent to commit sexual assault, and sexual assault. The district court
made the life sentences consecutive. At Ybarra's penalty hearing, the jury found four
aggravating circumstances and no mitigating circumstances sufficient to outweigh them.
1
Ybarra, as a result, was sentenced to death for the first degree murder conviction.
____________________

1
The jury found the following aggravating circumstances, each of which is contained in NRS 200.033, which
lists the only circumstances by which murder in the first degree may be aggravated:
1. The murder was committed by a defendant who was previously convicted of a felony involving the
use or threat of violence to the person of another.
2. The murder was committed while the defendant was engaged in the commission of forcible rape
(sexual assault).
3. The murder was committed while the defendant was engaged in the commission of kidnapping in
the first degree.
4. The murder involved torture, depravity of mind or the mutilation of the victim.
to death for the first degree murder conviction. Ybarra now appeals from each of his
convictions and sentences.
THE GUILT PHASE
[Headnote 1]
Ybarra first asks us to disavow the M'Naughten rule as the test for criminal responsibility
and in its place adopt a version of the American Law Institute standard. Although Ybarra
thoroughly presented the arguments in favor of a new test for insanity, we decline to make a
change and reaffirm this jurisdiction's use of the M'Naughten test for criminal insanity. Poole
v. State, 97 Nev. 175, 625 P.2d 1163 (1981); Clark v. State, 95 Nev. 24, 588 P.2d 1027
(1979).
[Headnote 2]
We likewise reaffirm our position that sanity is not considered an element of the offense
which the prosecutor must plead and prove. Clark v. State, 95 Nev. 24, 28, 588 P.2d 1027,
1030 (1979). Cf. In re Winship, 397 U.S. 358 (1970); Mullaney v. Wilbur, 421 U.S. 684
(1975). Insanity is an affirmative defense which the accused, who is presumed sane, must
prove by a preponderance of the evidence. 95 Nev. at 26, 588 P.2d at 1030; accord, Patterson
v. New York, 432 U.S. 197, 205-07 (1977).
[Headnotes 3, 4]
Ybarra also contends that admission of a graphic autopsy photograph of the victim at trial
was inflammatory and prejudicial. Before admitting the photograph into evidence, however,
the district court conducted an extensive precautionary review. Realizing the inflammatory
potential of the photograph, the court admitted a reduction which was one-third the size of the
original photograph the state sought to introduce. The court, moreover, determined that the
photograph would aid a witness, a pathologist, in explaining the cause and circumstances of
death. Admission of such evidence resides within the sound discretion of the trial court.
Aguilar v. State, 98 Nev. 18, 22, 639 P.2d 533, 536 (1982); Turpen v. State, 94 Nev. 576,
577, 583 P.2d 1083, 1084 (1978), cert. denied, 439 U.S. 968 (1978). The trial court did not
abuse its discretion in admitting the photograph.
[Headnote 5]
Ybarra next argues that the district court erred by not dismissing, because of lost evidence,
the counts of battery with intent to commit sexual assault and sexual assault. A vaginal swab
and vaginal smear were preserved from the serous fluid drawn from the victim during the
autopsy. The remainder of the fluid was not preserved.
the fluid was not preserved. Had it been preserved, Ybarra maintains, tests could have been
performed which may have excluded him as a suspect. Experts testified, however, that the
tests on the properly preserved swab or smear would have yielded the same results as the
preserved fluid. Loss of the fluid, therefore, did not constitute lost evidence which resulted in
any prejudice to the accused.
[Headnote 6]
Finally, Ybarra claims he was denied his right to a speedy trial, because he was required to
make an interim appeal of the district court's denial of his motion for change of venue.
2
Our
expedited review of Ybarra's appeal, however, took less than three months after the briefs
were filed. As our recitation of the procedural facts above reveals, the trial delays were
principally attributable to defense tactics. Moreover, Ybarra has failed to demonstrate any
prejudice to his defense as a result of our review of his interim appeal. Applying the factors
adopted in Sheriff v. Berman, 99 Nev. 102, 106-07, 659 P.2d 298, 301 (1983), we conclude
that Ybarra's right to a speedy trial was not denied.
THE PENALTY PHASE
[Headnote 7]
Ybarra's primary contention on appeal is that NRS 200.030(4) is unconstitutional, because
it places the burden on the accused to prove that his mitigating circumstances outweigh the
aggravating circumstances in order to avoid imposition of the death penalty.
3
Ybarra
essentially argues that in a 50-50 case, when the aggravating and mitigating circumstances are
equal, the death penalty should not be imposed. Neither the U.S. Supreme Court nor this
Court has pronounced such a standard and we see no reason to do so.
____________________

2
NRS 2.090(2) and 2.110, as they read in 1980, required a defendant to appeal a denial of his motion for
change of venue after voir dire but before continuation of trial. Failure to make a direct interim appeal waived
the issue for further review.

3
4. Every person convicted of murder of the first degree shall be punished:
(a) By death, only if one or more aggravating circumstances are found and any mitigating
circumstance or circumstances which are found do not outweigh the aggravating circumstance or
circumstances.
(b) Otherwise, by imprisonment in the state prison for life with or without possibility of parole. If the
penalty is fixed at life imprisonment with possibility of parole, eligibility for parole begins when a
minimum of 10 years has been served.
standard and we see no reason to do so. We accordingly hold that the challenged statute is
constitutional.
[Headnote 8]
The jury at the penalty hearing was correctly instructed in accordance with NRS
200.030(4), 175.554(2) and (3).
4
The instruction read as follows:
The punishment of death may be imposed only if one or more aggravating
circumstances are found and any mitigating circumstance or circumstances which are
found do not outweigh the aggravating circumstance or circumstances. Otherwise, the
punishment imposed shall be imprisonment in the State Prison for life with or without
the possibility of parole. (Instruction No. 6.)
The burden rests upon the prosecution to establish any aggravating circumstance or
circumstances beyond a reasonable doubt. (Instruction No. 7.)
In addition, our statutes provide, as the jury was instructed, that the sentencer cannot consider
aggravating circumstances other than the nine factors listed in NRS 200.033, and that the
sentencer must consider any mitigating circumstances. NRS 200.035(7).
The U.S. Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972) and its progeny has
articulated the standards by which we judge the constitutionality of our death penalty statutes.
Our conclusion that Nevada's death penalty statutes are constitutional is consonant with the
High Court's analyses of statutes in Gregg v. Georgia, 428 U.S. 153 (1976) and Proffitt v.
Florida, 428 U.S. 242 (1976).
____________________

4.
NRS 175.554(2) and (3) provide:
2. The jury or the panel of judges shall determine:
(a) Whether an aggravating circumstance or circumstances are found to exist;
(b) Whether a mitigating circumstance or circumstances are found to exist; and
(c) Based upon these findings, whether the defendant should be sentenced to life imprisonment or
death.
The jury or the panel of judges may impose a sentence of death only if it finds at least one aggravating
circumstance and further finds that there are no mitigating circumstances sufficient to outweigh the
aggravating circumstance or circumstances found.
3. When a jury or a panel of judges imposes a sentence of death, the court shall enter its finding in
the record, or the jury shall render a written verdict signed by the foreman. The finding or verdict shall
designate the aggravating circumstance or circumstances which were found beyond a reasonable doubt,
and shall state that there are no mitigating circumstances sufficient to outweigh the aggravating
circumstance or circumstances found.
[Headnote 9]
Proffitt is especially relevant, as Florida's death penalty statutes
5
provide that the
sentencer shall consider whether mitigating circumstances outweigh aggravating
circumstances.
6
428 U.S. at 248-50. Therefore, in Florida, as in Nevada, the theoretical
50-50 case would result in imposition of the death penalty. The U.S. Supreme Court
determined that Florida's death penalty statutes satisfied the constitutional deficiencies
identified in Furman, because they required the sentencer to weigh aggravating and
mitigating factors in imposing sentence. This balancing process causes the sentencer to focus
on the circumstances of the crime and the character of the individual defendant, and to follow
capital-sentencing procedures which are designed to preclude imposition of the death penalty
in an arbitrary or capricious manner. As a further guarantee against arbitrary death sentences,
the Florida appellate review system requires the Supreme Court of Florida to review and
reweigh the aggravating and mitigating circumstances to independently determine whether
the death penalty is warranted. 428 U.S. at 251-53.
Georgia's death penalty statute was upheld in Gregg. At the penalty hearing the sentencer
considers any mitigating factors and any of ten statutory aggravating factors. After finding
beyond a reasonable doubt the existence of one aggravating factor, the sentencer may elect to
impose the death penalty, apparently irrespective of whether mitigating factors outweigh
aggravating factors.
____________________

5
FSA 921.141(2)(b) provides the jury, whose sentence is only advisory, with the following directions:
2. After hearing all the evidence, the jury shall deliberate and render an advisory sentence to the
court, based upon the following matters:
. . . .
(b) whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances
found to exist; . . .
FSA 921.141(3)(b) identically provides the judge with the following directions:
3. [I]f the court imposes a sentence of death, it shall set forth in writing its findings upon which the
sentence of death is based as to the facts:
. . . .
(b) that there are insufficient mitigating circumstances to outweigh the aggravating circumstances.

6
It is interesting to note (and this may be the source of Ybarra's confusion regarding this issue) that both the
majority and Mr. Justice White in his concurring opinion recharacterized Florida's statutes as providing that
aggravating circumstances must outweigh mitigating circumstances to impose the death penalty. 428 U.S. at 246,
260. The statutes, nevertheless, clearly provide that it is the mitigating circumstances which must outweigh the
aggravating circumstances; if they do not, the sentencing judge is required to impose the death penalty.
apparently irrespective of whether mitigating factors outweigh aggravating factors. In
addition, the Supreme Court of Georgia reviews the death penalty sentence to determine
whether it was imposed arbitrarily and whether it is excessive or disproportionate to the
penalty imposed in similar cases. 428 U.S. at 164-67. The majority in Gregg began by
emphasizing that [I]n assessing a punishment selected by a democratically elected legislature
against the constitutional measure, we presume its validity. Id. at 175. As in Proffitt, the
Court also determined that the weighing of aggravating and mitigating factors by the
sentencer in a bifurcated penalty proceeding, id. at 193-95, and the independent
proportionality review by the state supreme court, id. at 204-06, met the concerns expressed
in Furman that the penalty of death not be imposed in an arbitrary and capricious manner.
[Headnotes 10, 11]
After comparing our death penalty statute with those of Florida and Georgia, we conclude
that the challenged statute satisfies the constitutional measures established in Furman, Gregg
and Proffitt. Specifically, the state is required to prove beyond a reasonable doubt in the
penalty phase of trial, the existence of statutory aggravating circumstances; the accused is
allowed to present evidence of any mitigating circumstances. The sentencing authority must
then determine whether the mitigating factors outweigh the aggravating factors; if they do
not, the death penalty may be imposed. This Court, under our present statutory scheme, is
then required to review the death sentence for arbitrariness and disproportionality. NRS
177.055(2). Since our procedure for weighing aggravating and mitigating circumstances
provides the sentencer with adequate information and guidance and the accused with
sufficient guarantees that the penalty of death will not be imposed arbitrarily and capriciously,
the challenged statute passes constitutional muster. Moreover, we have determined that the
evidence in the instant case supports the finding of four aggravating circumstances. Our
review of the record reveals that the sentence of death was not imposed under the influence of
passion, prejudice or any arbitrary factor. We also conclude, after analyzing the circumstances
of Ybarra's crime as required by NRS 177.055(2), that the sentence of death is not excessive
or disproportionate to the penalty imposed in similar cases in this state, considering both the
crime and defendant. E.g., Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979); Bishop v.
State, 95 Nev. 511, 597 P.2d 273 (1979). Cf. Briano v. State, 94 Nev. 422, 581 P.2d 5 (1978)
(life imprisonment); Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960) (life imprisonment).
[Headnote 12]
Ybarra also contends that the admission of a probation order certifying a prior felony
conviction as proof of an aggravating circumstance was error. Ybarra argues that the face of
the order did not affirmatively state that Ybarra was represented at the prior conviction by
counsel as required by Scott v. State, 97 Nev. 318, 630 P.2d 257 (1981). However, the
minutes of the proceedings accompanying the order clearly state that Ybarra was represented
by counsel. Scott, therefore, is inapposite. Admission of the evidence of the prior conviction
was proper as proof of an aggravating circumstance. NRS 175.552; 200.033(2).
[Headnote 13]
We also reject the contention that the district court was without jurisdiction to order that
the three life sentences without the possibility of parole be made consecutive. The law is to
the contrary. NRS 176.035(1).
[Headnote 14]
Finally, we hold that the phrase depravity of mind, contained in the death penalty statute
(NRS 200.033(8)), is not impermissibly vague when, as in this case, the court meticulously
defined it for the jury. Deutscher v. State, 95 Nev. 669, 677, 601 P.2d 407, 412-13 (1979).
Here, the instruction given at the penalty hearing defining depravity of mind was identical
to the instruction given in Deutscher.
We hold that all of the assigned errors raised by Ybarra are without merit in both the guilt
and penalty phases of trial. Accordingly, we affirm the convictions of first degree murder,
first degree kidnapping, battery with intent to commit sexual assault and sexual assault,
together with the sentences imposing the death penalty and the three consecutive life
sentences without the possibility of parole.
Manoukian, C. J., and Springer, Mowbray, and Gunderson, JJ., concur.
____________
100 Nev. 178, 178 (1984) Shepard v. Harrison
DONALD S. SHEPARD and NANCY SHEPARD, Appellants,
v. JOHN M. HARRISON, Respondent.
No. 14721
March 28, 1984 678 P.2d 670
Appeal from summary judgment and NRCP 41(b) dismissal, Eighth Judicial District
Court, Clark County; Paul S. Goldman, Judge.
Property owners filed suit against neighbor, alleging that neighbor had negligently
maintained his property, with resulting substantial property damage to them. The district
court entered summary judgment for neighbor, and property owners appealed. The Supreme
Court held that negligence claim raised questions regarding reasonableness of neighbor's
conduct, precluding summary judgment.
Richard W. Myers, Las Vegas, for Appellants.
Harding & Dawson, Las Vegas, for Respondent.
1. Judgment.
Summary judgment is appropriate only when the moving party is entitled to judgment as a matter of law,
and no genuine issue remains for trial.
2. Judgment.
District court should exercise great care in granting summary judgment.
3. Judgment.
A litigant has right to trial where there is the slightest doubt as to the facts.
4. Trial.
In evaluating motion to dismiss at close of plaintiff's case, plaintiff's evidence and all reasonable
inferences that can be drawn from the evidence must be admitted, and evidence must be interpreted in light
most favorable to plaintiff.
5. Negligence.
Issues of negligence are considered issues of fact and not of law, and thus issues are for jury to decide.
6. Negligence.
A party's negligence becomes a question of law only when the evidence will support no other inference.
7. Judgment.
In action alleging that property owner negligently maintained his property, allegations raised questions
regarding reasonableness of property owner's conduct, precluding summary judgment.
OPINION
Per Curiam:
This is an appeal from a summary judgment and a dismissal under NRCP 41{b) in an
action for property damages.
under NRCP 41(b) in an action for property damages. Because we believe that triable issues
of fact remain, we reverse and remand.
Appellants (the Shepards) and respondent Harrison owned adjacent residences in a Las
Vegas neighborhood. Harrison's property was located at an elevation higher than the
Shepard's property.
Harrison had a swimming pool in his backyard. A concrete terrace surrounded the pool,
and a cinder block wall enclosed the rectangular pool area on all four sides. One side of the
wall ran along the boundary between the parties' properties. A patio was located between
Harrison's house and the swimming pool area, at an elevation higher than the swimming pool
area.
A rainstorm stuck Las Vegas on October 20, 1978. Harrison woke up on the morning of
that day to find that his swimming pool area was some three feet under water, and that more
water was pouring like a waterfall from the patio area into the swimming pool area. Some
45 minutes later, the water level had increased to approximately 4 1/2 feet. At this time the
rear portion of the cinder block wall broke, and a huge quantity of water cascaded into the
Shepard's backyard.
As a result of this incident, the Shepards filed this lawsuit against Harrison, alleging
essentially that Harrison had negligently maintained his property, and claiming substantial
property damage. Harrison obtained a summary judgment on the Shepard's complaint, but the
Shepard's obtained permission to amend their complaint to assert only causes of action not
based on negligence, i.e., nuisance, trespass and strict liability for ultrahazardous activity.
The matter eventually proceeded to trial on the causes of action not based on negligence.
After the Shepards presented their case, however, Harrison obtained a dismissal of the
amended complaint pursuant to NRCP 41(b). The trial court entered judgment for Harrison
based on the previous summary judgment on the negligence cause of action and the NRCP
41(b) dismissal on the other causes of action. This appeal followed.
[Headnotes 1-3]
We have frequently emphasized the strict standards which should be applied by the district
courts in deciding motions for summary judgment and motions to dismiss under NRCP 41(b).
Summary judgment is appropriate only when the moving party is entitled to judgment as a
matter of law, and no genuine issue remains for trial. Cladianos v. Coldwell Banker, 100 Nev.
138, 676 P.2d 804 (1984); Allied Fidelity Ins. Co. v. Pico, 99 Nev. 15, 656 P.2d 849 (1983);
Nehls v. Leonard, 97 Nev. 325, 630 P.2d 258 (1981). Where an issue of material fact exists,
summary judgment should not be granted.
mary judgment should not be granted. Casarotto v. Mortensen, 99 Nev. 392, 663 P.2d 352
(1983). The district court should exercise great care in granting summary judgment. Leslie v.
J. A. Tiberti Constr. Co., 99 Nev. 494, 664 P.2d 963 (1983); Allied Fidelity Ins. Co. v. Pico,
supra. A litigant has the right to trial where there is the slightest doubt as to the facts. Stone v.
Mission Bay Mortgage Co., 99 Nev. 802, 672 P.2d 629 (1983); Nehls v. Leonard, supra.
[Headnote 4]
Great care must also be exercised in ruling on a motion to dismiss under NRCP 41(b). In
evaluating a motion to dismiss at the close of a plaintiff's case, plaintiff's evidence and all
reasonable inferences that can be drawn from the evidence must be admitted, and the
evidence must be interpreted in the light most favorable to plaintiff. Alford v. Harolds Club,
99 Nev. 670, 669 P.2d 721 (1983); Combustion Engineering, Inc. v. Peters, 99 Nev. 329, 661
P.2d 1304 (1983).
[Headnotes 5-7]
The present case involves questions relating to respondent's negligence. In Nevada, issues
of negligence are considered issues of fact and not of law; thus, these issues are for the jury to
decide. Nehls v. Leonard, supra; Andolino v. State of Nevada, 97 Nev. 53, 624 P.2d 7
(1981). A party's negligence becomes a question of law only when the evidence will support
no other inference. See Horvath v. Burt, 98 Nev. 186, 643 P.2d 1229 (1982) (contributory
negligence). To the extent that the Shepards' causes of action raised questions regarding the
reasonableness of Harrison's conduct, our review of the record persuades us that the district
court erred by ruling, as a matter of law, that Harrison was not liable for the Shepard's alleged
injuries.
Reversed and remanded for further proceedings.
____________
100 Nev. 181, 181 (1984) Johnson v. Steel, Incorporated
JOYCE JOHNSON, Appellant, v. STEEL, Incorporated; STANLEY JOHNSON; SOPHIE
WEINER and CONSTANCE JOHNSON, Respondents.
No. 14649
March 29, 1984 678 P.2d 676
Appeal from an order granting summary judgment and dismissal for failure to state a claim
upon which relief can be granted; Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
A minority stockholder in a close corporation sought dissolution of the corporation and
relief in a shareholder's derivative suit. The district court entered summary judgment against
plaintiff in the dissolution suit, dismissed the derivative suit, and plaintiff appealed. The
Supreme Court held that: (1) district court's denial of plaintiff's motion for the appointment of
a receiver pendente lite did not preclude plaintiff from asserting her stated claims, and the
doctrine of res judicata was therefore improperly applied by the district court; (2) since
material issues of fact existed, and plaintiff's claim was not barred by application of res
judicata, it was error for the district court to grant summary judgment on the amended
complaint's first count which sought dissolution of the close corporation; and (3) since a
quorum of disinterested directors or shareholders could not be assembled to appraise the
merits of plaintiff's claims, notice upon the board of directors would be a futile and ritualistic
act; therefore, the district court's granting of a defense motion to dismiss plaintiff's derivative
action suit for failure to make such a demand was in error.
Ward & Maglaras, Las Vegas, for Appellant.
John Peter Lee and Daniel Marks, Las Vegas, for Respondents.
1. Judgment.
In granting summary judgment, district court must take great care. NRCP 56.
2. Judgment.
In determining whether a summary judgment is proper, nonmoving party is entitled to have the evidence
and all inferences therefrom accepted as true. NRCP 56.
3. Judgment.
District court's denial of plaintiff's motion for the appointment of a receiver pendente lite did not preclude
plaintiff from asserting her stated claims, and the doctrine of res judicata was therefore improperly applied
by the district court.
4. Judgment.
Use of a receiver pendente lite is an ancillary remedy used to preserve the value of assets pending
outcome of the principal case, and the appointment determines no substantive rights between the parties but
is merely a means of preserving the status quo; accordingly, an order appointing a receiver or denying a
motion to appoint a receiver is not a final judgment on the merits for res judicata purposes.
5. Judgment.
Since material issues of fact existed, and plaintiff's claim was not barred by application of res judicata, it
was error for the district court to grant summary judgment on the amended complaint's first count which
sought dissolution of close corporation in which plaintiff was a minority stockholder. NRCP 56.
6. Corporations.
While a rule of civil procedure requires that, when filing a complaint for derivative action, plaintiff must
allege with particularity the efforts, if any, to obtain the action he desires from the directors and, if
necessary, from the shareholders or members, and the reasons for his failure to obtain the action or for not
making the effort, an exception to this demand requirement is where demand would be futile; thus, where
the board of directors participated in the wrongful act or is controlled by the principal wrongdoer, it is
generally held that no demand is needed. NRCP 23.1.
7. Corporations.
Since a quorum of disinterested directors or shareholders of close corporation could not be assembled to
appraise the merits of plaintiff minority shareholder's claims, notice upon the board of directors would be a
futile and ritualistic act; therefore, the district court's granting of a defense motion to dismiss plaintiff's
derivative action suit for failure to make such a demand was in error. NRCP 23.1.
OPINION
Per Curiam:
1

Appellant Johnson is a minority stockholder, holding 42.95 percent of the stock in
respondent corporation, Steel, Incorporated. In the court below Johnson sought dissolution of
the corporation and relief in a shareholder's derivative suit. Summary judgment was entered
against her in the dissolution suit, and the derivative suit was dismissed. She now appeals.
2

[Headnotes 1, 2]
In granting summary judgment, the district court must take great care. Short v. Hotel
Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963); McColl v. Scherer, 73 Nev. 226, 315 P.2d
807 {1957).
____________________

1
The Honorable Thomas L. Steffen voluntarily disqualified himself from consideration of this appeal.

2
The district court's disposition of the second count of the amended complaint is not contested in this appeal.
(1957). In determining whether a summary judgment is proper, the non-moving party is
entitled to have the evidence and all inferences therefrom accepted as true. Nehls v. Leonard,
97 Nev. 325, 630 P.2d 258 (1981); Bowyer v. Davidson, 94 Nev. 718, 584 P.2d 686 (1978);
Potter v. Mutual Benefit Life Ins. Co., 93 Nev. 90, 560 P.2d 914 (1977). NRCP 56 authorizes
a summary judgment only where there are no genuine issues of material facts and the moving
party is entitled to a judgment as a matter of law. Bader Enterprises, Inc. v. Becker, 95 Nev.
807, 603 P.2d 268 (1979); Short v. Hotel Riviera, Inc., above.
In the case at hand, the supplemental affidavit which supported the appellant's motion for a
receiver raises various factual issues. Johnson claims that the directors and officers
misappropriated substantial amounts of corporate funds and allowed corporate assets to be
used by another corporation privately owned and operated by the defendant directors and
officers. Such factual discrepancies are material under NRS 78.650.
[Headnotes 3, 4]
The district court's denial of appellant's motion for the appointment of a receiver pendente
lite does not preclude the appellant from asserting her stated claims. The use of a receiver
pendente lite is an ancillary remedy used to preserve the value of assets pending outcome of
the principal case. See Bowler v. Leonard, 70 Nev. 370, 269 P.2d 833 (1954). The
appointment determines no substantive rights between the parties but is merely a means of
preserving the status quo. Isaac v. Milton Mfg. Co., 33 F.Supp. 732 (1940). Accordingly, an
order appointing a receiver or denying a motion to appoint a receiver is not a final judgment
on the merits. C & H Const. & Paving Co. v. Citizens Bank, 597 P.2d 1190 (N.M.Ct.App.
1979); Isaac v. Milton Mfg. Co., above; Lloyds of Texas v. Bobbitt, 55 S.W.2d 803
(Tex.Ct.App. 1932); State v. Mulloy, 43 S.W.2d 806 (Mo. 1931). The doctrine of res judicata
was therefore improperly applied by the district court. C & H Const. & Paving Co. v. Citizens
Bank, above.
[Headnote 5]
Since material issues of fact exist, and the plaintiff's claim is not barred by the application
of res judicata, it was error for the district court to grant a summary judgment on the first
count of appellant's amended complaint.
The appellant's third count of the amended complaint is a derivative action suit brought
under NRCP 23.1. The count alleges that the current directors and controlling shareholders
have wrongfully appropriated corporate assets from Steel Incorporated. Specifically, it is
contended that Stanley Johnson, director and chief executive officer of Steel Inc.,
received over $650,000 in excess of the S.17 percent of gross revenues allotted to him as
a salary and that the remaining officers and directors knew of and acquiesced in such
overpayment.
Incorporated. Specifically, it is contended that Stanley Johnson, director and chief executive
officer of Steel Inc., received over $650,000 in excess of the 8.17 percent of gross revenues
allotted to him as a salary and that the remaining officers and directors knew of and
acquiesced in such overpayment.
The defendants moved to dismiss under NRCP 12(b)(5) on the ground that the plaintiff
had never made a demand upon the board for relief and had thus failed to exhaust her internal
corporate remedies. The district court granted the defendant's motion.
Under NRCP 23.1, when filing a complaint for a derivative action, plaintiff must allege
with particularity the efforts, if any . . . to obtain the action he desires from the directors . . .
and, if necessary, from the shareholders or members, and the reasons for his failure to obtain
the action or for not making the effort.
[Headnote 6]
A well recognized exception to the demand requirement is where demand would be futile.
Where the board participated in the wrongful act or is controlled by the principal wrongdoer,
it is generally held that no demand is needed. Walden v. Elrod, 72 F.R.D. 5 (1976); Barr v.
Wackman, 329 N.E.2d 180 (N.Y.Ct.App. 1975). Since the board is itself involved in the
dispute, it is less likely that the action will be vigorously prosecuted. See Cohen v. Industrial
Finance Corporation, 44 F.Supp. 491 (1942).
In the present case all of the current directors and remaining shareholders in this closely
held corporation have been named as defendants. Stanley Johnson owns 42.95 percent of
Steel Inc., sits on the board of directors, and acts as the corporation's chief executive officer.
The complaint alleges that Stanley Johnson misappropriated $650,000 over his authorized
salary. Stanley's present wife, Constance Johnson, also occupies a seat on the board of
directors, though she personally does not own any shares in the corporation. The complaint
alleges that she knew of and acquiesced in the unauthorized appropriations by Stanley
Johnson. As Stanley's wife, Constance would stand to benefit by any misappropriations by
her husband. It is doubtful that she would vigorously pursue any action on behalf of the
corporation to seek reimbursement for the unauthorized payments. Finally, Sophie Weiner,
who owns over 10 percent of the corporation, is the remaining director on the board. Ms.
Weiner, along with Stanley Johnson, is an officer of another corporation which allegedly has
been allowed to use Steel Inc.'s equipment and property without having to pay for that use.
for that use. It is apparent that Ms. Weiner's business relationships with Mr. Johnson and the
competing corporation would prevent her from fairly pursuing an action on behalf of the
minority shareholders.
[Headnote 7]
Since a quorum of disinterested directors or shareholders cannot be assembled to appraise
the merits of Joyce Johnson's claims, notice upon the board of directors would be a futile and
ritualistic act. The district court's granting of a motion to dismiss for failure to make such a
demand was therefore in error. Accordingly, the district court's order is reversed and the
matter remanded with leave being granted to Johnson to amend her complaint if she so
wishes.
Manoukian, C. J., and Springer and Gunderson, J.J., and Fondi, D. J.
3
, concur.
____________________

3
The Governor designated the Honorable Michael E. Fondi, Judge of the First Judicial District Court, to sit
in the place of The Honorable John Mowbray. Nev. Const., art. 6 4.
____________
100 Nev. 185, 185 (1984) Udevco, Inc. v. Wagner
UDEVCO, INC., a California Corporation; JOHN LONG; LONG CONSTRUCTION
COMPANY; DALE POE DEVELOPMENT CORPORATION, a Nevada Corporation,
Appellants and Cross-Respondents, v. ROCKY WAGNER, dba ROCKY WAGNER
EXCAVATING, Respondent, and JOE WOSSER, dba WOSSER-LASTER ENTERPRISES,
Respondent and Cross-Appellant.
No. 14495
March 29, 1984 678 P.2d 679
Appeal and cross-appeal from judgments in multi-party construction contract case. Second
Judicial District Court, Washoe County; Roy L. Torvinen, Judge.
Subcontractors brought actions on contract and equitable theories against developer and
others to recover on perfected liens. The district court entered judgments in favor of
subcontractors but denied one subcontractor's asserted right to recover for extracontractual
work performed, and appeal and cross-appeal were taken. The Supreme Court held that: (1)
findings that subcontractor's rough grading duties did not include drainage swale
construction, cost of which developer and others sought to offset against amount owing
subcontractor, and that other subcontractor's billings for siding and trim work were
correct were supported by substantial evidence; {2) whether developer made payments
for extra work was not controlling of whether it waived contractual written change order
requirement; and {3) parties mutually intended to waive written change order condition.
and others sought to offset against amount owing subcontractor, and that other subcontractor's
billings for siding and trim work were correct were supported by substantial evidence; (2)
whether developer made payments for extra work was not controlling of whether it waived
contractual written change order requirement; and (3) parties mutually intended to waive
written change order condition.
Hoy and Miller, McDonald & Kafchinski, Reno; Stephen L. Rishoff, 23123 Ventura
Boulevard, Woodland Hills, California 91364, for Appellants and Cross-Respondents.
Robison, Lyle, Belaustegui & Robb, and Bruce T. Beesley, Hale, Lane, Peek, Dennison
and Howard, and Richard L. Elmore, Reno, for Respondents and Cross-Appellant.
1. Mechanics' Liens.
In multiparty action to enforce perfected liens under construction contract, findings that one
subcontractor's rough grading duty did not include drainage swale construction, cost of which developer
and others sought to offset against amount owing subcontractor, and that second subcontractor's billings for
siding and trim work were correct were supported by substantial evidence.
2. Contracts.
Waiver of contractual right can be implied from conduct such as making payments or accepting
performance which does not meet contract requirements and can also be expressed verbally or in writing.
3. Contracts.
Express waiver, when supported by reliance thereon, excuses nonperformance of waived contractual
condition.
4. Contracts.
Whether developer made payments for extra work was not solely controlling of whether it waived
contractual requirement of written change order for extra work.
5. Contracts.
Where developer made express oral waiver of contractual written change order requirement for extra
work and subcontractor performed extra work in reliance thereon, parties mutually intended to waive
written change order condition and subcontractor was entitled to recover for extra work performed.
OPINION
Per Curiam:
Two subcontractors, who brought actions under contract and equitable theories against a
developer and others to recover on their perfected liens, received favorable judgments in
district court. The developer and the others against whom judgments were entered, now
appeal. One subcontractor also cross-appeals from the district court's denial of his asserted
right to recover for extra-contractual work performed.
cross-appeals from the district court's denial of his asserted right to recover for
extra-contractual work performed. For the reasons set forth hereinafter, we affirm the
judgments in favor of the subcontractors and reverse the order denying relief to
cross-appellant for the performance of work unspecified in the subcontractor's contract.
The facts as they pertain to each subcontractor are as follows:
Wagner: Rocky Wagner Excavating (Wagner) entered into a written agreement with
Udevco and John Long to perform specific rough grading work on the appellants'
condominium project. Common area grading, drainage swale construction and finish grading
were not a part of the parties' agreement, according to the contract, testimony and the district
court's findings of fact. The agreement provided that extra-contractual work would require a
written change order. While performing his contract work, Wagner also performed extra
work without obtaining a written change order, for which he was paid by Udevco. Wagner's
last invoice, totalling $6,777.33 for contract and extra work, was not paid by Udevco.
Wagner recorded and perfected a lien. The district court found that the parties, by their past
practices, had waived the written change order provision and that $6,777.33 was the
reasonable value of the work performed. As a result, the district court entered judgment for
Wagner and awarded him $6,777.33 plus interest at 12 percent from the date the invoice was
due, costs and attorney's fees, according to NRS 108.237. Appellants appeal from that
judgment.
Wosser: Wosser-Laster Enterprises (Wosser) entered into a second written agreement
with Udevco and John Long to perform framing work, as well as future siding and trim work,
if required, on a cost basis. The agreement, which settled differences relating to a prior
contract, provided that extra-contractual work would require a written change order. Wosser
did perform and bill Udevco for siding and trim work which was completed after the date of
the second agreement. After it was discovered that Wosser also had billed for some siding
and trim work completed before the second contract date, Wosser's next invoice contained a
credit for the inadvertent billing.
Wosser also performed extra work related to the framing duties. Due to an error in the
appellants' plans and specifications, the prefabricated roof trusses did not fit. Wosser, as a
result, had to cut and stack the roofs to complete the framing. Wosser additionally was told to
perform extra work, such as dropping ceilings to meet cabinet tops and furring down
(framing in gaps above) door openings, because materials received such as cabinets and doors
did not match the plans and specifications.
and specifications. Wosser also altered completed framing because appellants requested
subsequent design changes. Wosser did not obtain written change orders for this extra
work, although Joe Wosser was told by Udevco's superintendent to go ahead with the work
and was assured he would be paid for it. Wosser sent Udevco invoices totalling $13,195.00
for extra work on three occasions. Udevco never made any payments for the extra work
performed by Wosser after the date of the second agreement. Udevco also refused to pay for
certain framing, siding and trim work valued at $11,976.75.
Wosser recorded and perfected a lien and brought an action against appellants as an
intervenor in Wagner's case. The district court found that, because Udevco had never paid
Wosser for extra work performed without a written change order, appellants had not waived
that contract requirement. As a result, the district court entered judgment compensating
Wosser only for the framing, siding and trim work, and awarded him $11,976.75 plus interest
at 12 percent from the date the invoices were due, costs and attorney's fees. Appellants appeal
from that judgment. Wosser cross-appeals the district court's denial of any recovery for the
extra work performed.
[Headnote 1]
Appellants contend that the facts do not support the trial court's awards in favor of
respondents. As concerning Wagner, appellants primarily contend that industry standards
define rough grading to include construction of drainage swales. Because Wagner did not
perform such construction, appellants argue that they are entitled to offset against the award
the amount spent to have other subcontractors do the work. As concerning Wosser, appellants
contend that they are entitled to offset against the award the amount they were overbilled for
siding and trim work completed before the parties' second agreement was signed. The district
court heard these same arguments below and made findings of fact that: Wagner's duties did
not include drainage swale construction; and, Wosser's billings for siding and trim work were
correct. This Court's standard for review is set forth in Pace v. Linton, 97 Nev. 103, 625 P.2d
84 (1981).
Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility of the witnesses.
NRCP 52. Our task when reviewing the appropriateness of findings and judgments
rendered by district courts is to . . . determine whether there is substantial evidence in
the record to support the findings and judgment of the district court.
Id. at 103-04, 625 P.2d at 85 (emphasis added and citations omitted). We conclude that the
record reflects substantial evidence supporting the district court's findings of fact and
judgments. We have considered appellants' other contentions and determined that they are
without merit. In this regard we affirm the judgments of the district court.
As cross-appellant, Wosser's sole contention is that the district court improperly denied
any recovery from cross-respondents for extra work performed. It is undisputed that Wosser
was required to cut and stack roofs because the prefabricated roof trusses would not fit the
framing due to incorrect plans and specifications. Our review of the record also reveals that
after framing was completed according to original plans and specifications, cross-respondents
orally requested that Wosser make further alterations to accommodate subsequent design
changes and incorrectly sized cabinets and doors. The extra work was necessary, properly
performed, and accepted. The district court concluded as a matter of law that Wosser was not
entitled to judgment for extra work, reasoning the Udevco did not waive its right to require
written change orders because it did not pay for any such extra work after it had been
performed without written authorization. We disagree.
[Headnotes 2-5]
Waiver is usually defined as the voluntary and intentional relinquishment of a known
right and may be either express or implied. 5 Williston On Contracts 678 (3d ed. 1961).
Waiver can be implied from conduct such as making payments for or accepting performance
which does not meet contract requirements; waiver can also be expressed verbally or in
writing. 17 Am.Jur.2d Contracts 393, 396 (1964). Express waiver, when supported by
reliance thereon, excuses nonperformance of the waived condition. 5 Williston On Contracts
679 (3d ed. 1961); 17 Am.Jur.2d Contracts 392 (1964); Restatement (Second) of
Contracts 84(1) (1981). Whether Udevco made payments or not for extra work, therefore,
is not solely controlling of whether it waived the written change order requirement.
Presenting evidence of such payments would have been merely one alternative for proving
waiver, had those facts occurred. Wosser, instead, chose to employ the instant facts to prove
that express waiver and reliance occurred. After Udevco's express oral waiver and Wosser's
reliance thereon, Udevco at that time was bound to pay for the extra work, regardless of
whether it later failed to pay. Udevco apparently has not controverted the facts that express
oral waiver was pronounced and extra work performed in reliance thereon.
1
We conclude,
under these facts, as a matter of law, that the parties mutually intended to waive the
written change order condition.
____________________

1
Udevco's superintendent, Dick Claus, testified that I don't recall
facts, as a matter of law, that the parties mutually intended to waive the written change order
condition. Here, Wosser performedafter completing framing according to plans and
specificationsextra work of such character and magnitude that the idea that the parties
intended him to do so without additional compensation would be highly unreasonable. No
witnesses testified for Udevco to controvert Wosser's testimony that $13,195.00 represented
the reasonable value of the extra work performed. The district court made no finding
regarding such value. We therefore remand this case for a determination and judgment that
$13,195.00 represents the reasonable value of the extra work performed by Wosser, unless
the district court finds that the evidence justifies a lower sum.
The district court judgments awarding respondents recovery for contractual work is hereby
affirmed. The district court's judgment denying cross-appellant recovery for extra work is
hereby reversed. This case is remanded for determination of the value of extra work
performed by Wosser and judgment thereon consistent with this opinion.
____________________
[telling Wosser personnel to perform extra work], but that doesn't necessarily mean I didn't say it. I mean, I don't
recall.
____________
100 Nev. 190, 190 (1984) Kimball v. State
RICHARD WASDEN KIMBALL, Appellant, v. THE
No. 14482
March 29, 1984 678 P.2d 675
Appeal from judgment of conviction of battery, First Judicial District Court, Carson City;
Michael R. Griffin, Judge.
Defendant was convicted before the district court of misdemeanor battery, and he
appealed. The Supreme Court held that where district court had original jurisdiction over
defendant by virtue of gross misdemeanor charge of battery with substantial bodily harm,
district court had jurisdiction to convict and sentence defendant of misdemeanor battery, a
lesser-included offense, even though original jurisdiction over misdemeanors generally lies
with justice's court.
Affirmed.
Powell & Lambrose, Carson City, for Appellant.
100 Nev. 190, 191 (1984) Kimball v. State
Brian McKay, Attorney General, Carson City; William A. Maddox, District Attorney, and
Charles P. Cockerill, Deputy District Attorney, Carson City, for Respondent.
Criminal Law.
Where district court had original jurisdiction over defendant by virtue of gross misdemeanor charge of
battery with substantial bodily harm, district court had jurisdiction to convict and sentence defendant of
misdemeanor battery, a lesser-included offense, even though original jurisdiction over misdemeanors
generally lies with justice's court. Const. Art. 6, 6; NRS 4.370, subd. 3.
OPINION
Per Curiam:
1

This is an appeal from a judgment of conviction of misdemeanor battery, as a
lesser-included offense of battery with substantial bodily harm, a gross misdemeanor.
Appellant contends that his judgment of conviction is void because the district court lacks
jurisdiction to convict and sentence on a misdemeanor, notwithstanding the fact that the
misdemeanor is a lesser-included offense of the initially charged gross misdemeanor. This
contention is without merit.
The original jurisdiction of the district court is in fact limited to felonies and gross
misdemeanors, see Nev. Const. art. 6, 6, and original jurisdiction over misdemeanors
generally lies with the justice's court, see NRS 4.370(3). Once a district court properly obtains
original jurisdiction over a defendant by virtue of a felony or gross misdemeanor charge,
however, its jurisdiction is maintained to convict and sentence on any lesser-included offense,
even if that offense is a misdemeanor. See People v. Spreckels, 270 P.2d 513 (Cal.Ct.App.
1954); cf. Dicus v. District Court, 97 Nev. 273, 625 P.2d 1175 (1981) (adult court, once it
properly obtained original jurisdiction from juvenile court by virtue of attempted murder
charge, retained jurisdiction to convict and sentence on lesser-included offense, even when
lesser-included offense, if charged alone at the outset of the proceedings, would not have
removed case from juvenile court jurisdiction).
The judgment of conviction is affirmed.
____________________

1
This appeal was previously dismissed on the merits in an unpublished order of this court. Upon the request
of the district court, we have determined that our decision should be issued in a published opinion. Accordingly,
we hereby issue this opinion in place of our Order Dismissing Appeal filed January 25, 1984. See Yosemite Ins.
v. State Farm Mut., 98 Nev. 460, 461 n. 1, 653 P.2d 149 (1982).
____________
100 Nev. 192, 192 (1984) Whalen v. State of Nevada
PATRICIA WHALEN and HELEN NOONAN, Appellants, v. STATE OF NEVADA and
LAS VEGAS MENTAL HEALTH CENTER, Respondents.
No. 14457
March 29, 1984 679 P.2d 248
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Widows whose husbands were murdered by released mental patient brought suit against
State and mental health center. The district court entered summary judgment in favor of State
and mental health center on basis of sovereign immunity, and widows appealed. The Supreme
Court held that document purporting to be photocopy of patient's discharge from mental
health center raised question of fact whether, at time of killings, patient was still on
conditional release, so as to afford State and center benefit of sovereign immunity, and thus
summary judgment was precluded.
Pomeranz, Crockett & Myers, Las Vegas, for Appellants.
Brian McKay, Attorney General, and Johnathan L. Andrews, Carson City, for
Respondents.
1. Judgment.
In action for damages against State and mental health center arising out of murder of plaintiffs' husbands
by mental patient, document which purported to be photocopy of patient's discharge from mental health
center raised question of fact as to whether, at time of killings, patient was still on conditional release, so as
to afford to State and mental health center benefit of sovereign immunity, and thus summary judgment was
precluded. NRS 433A.380.
2. States.
Invocation of immunity for actions of persons conditionally released from mental health facilities is
contingent upon state's good faith efforts to enforce those conditions upon which release is premised. NRS
433A.380.
3. Judgment.
A litigant has a right to trial where there is slightest doubt as to the facts.
4. Judgment.
All evidence favorable to party against whom summary judgment is sought will be accepted as true.
5. Evidence.
All relevant evidence is admissible unless barred by particular rule of evidence.
6. Trial.
Responsibility for objecting to admission of incompetent evidence devolves upon party who seeks its
exclusion. NRS 47.040, subd. 1(a).
Consideration of unauthenticated document on appeal was proper, where party objecting to document on
appeal failed to timely object to its admission into evidence on motion for summary judgment. NRCP
56(e).
OPINION
Per Curiam:
On January 25, 1984, this Court issued an opinion in the case of Whalen v. State.
Respondents petitioned for a rehearing, contending that this Court misapprehended material
facts in the record. NRAP 40(c)(2)(i).
1
Having reviewed the petition and the opposition, we
deny the petition for rehearing, on the ground that any inaccuracies in the opinion were not
material to the result. However, we recall our earlier opinion and issue this opinion in its
stead.
This is an appeal from a district court order granting summary judgment in favor of
respondents on the basis of sovereign immunity. Because we conclude that a question of fact
remained in dispute, we reverse the order granting summary judgment and remand the case
for trial.
Kahlil Ben Maatallah was charged with murder in Clark County in 1965. During criminal
proceedings, Maatallah was adjudged incompetent to stand trial and was thereafter placed in
the custody of various state agencies continuously through December, 1972. Although the
state elected not to pursue the criminal charges against Maatallah, and in fact dropped all
charges against him, the district court nevertheless perceived Maatallah as both dangerous
and insane and committed him to confinement with respondent Las Vegas Mental Health
Center (LVMHC) under conditions delimited in a written order. Included among the court's
conditions were requirements that Maatallah not be released until he was no longer a danger
to the community, and that any such release be preceded by at least fifteen days written notice
to the court. With court approval, LVMHC conditionally released Maatallah in 1973 on
convalescent leave, with certain safeguards.
____________________

1
Respondents have filed a motion to strike a portion of appellant's response to their petition for rehearing.
Cause appearing, the motion is denied.
on convalescent leave, with certain safeguards. Apparently in July of 1976, Maatallah was
discharged.
In June of 1977, without any apparent provocation, Maatallah killed and butchered
appellants' husbands. Appellants brought suit against Clark County, the State of Nevada, and
LVMHC.
2
The state and LVMHC answered appellants' complaint, denying liability and
asserting only the defenses of statute of limitations and failure to state a claim. Over four
years later, the state and LVMHC moved to amend their answer to include the additional
defense of sovereign immunity under NRS 41.032(2) and NRS 433A.380.
3
At the same time
they moved for summary judgment based on the defense of immunity under the latter statute.
The district court granted the motion for summary judgment. This appeal followed.
Appellants initially contend that it was error for the district court to grant summary
judgment as questions of fact remained in dispute. We agree.
Appellants attached an unauthenticated document to their points and authorities filed below
in opposition to respondents' motion for summary judgment. The document, apparently
supplied by respondents in the course of discovery, purported to be a photocopy of
Maatallah's discharge from LVMHC bearing the signature of the doctor who was
Maatallah's primary therapist.
____________________

2
Clark County was dismissed from the suit. This Court, in No. 10735, affirmed the judgment of dismissal.

3
NRS 433A.380 states as follows:
Conditional release: Liability of state; restoration of rights; notice to court, district attorney.
1. Except as otherwise provided in subsection 4, any person involuntarily admitted by a court may be
conditionally released from a public or private mental health facility on convalescent leave when, in the
judgment of the medical director of the facility, the convalescent status is in the best interest of the person
and will not be detrimental to the public welfare.
2. When a person is conditionally released pursuant to subsection 1, the state or any of its agents or
employees are not liable for any debts or contractual obligations, medical or otherwise, incurred or
damages caused by the actions of the person.
3. When a person who has been adjudicated by a court to be incompetent is conditionally released
from a mental health facility, the administrative officer of the mental health facility shall petition the
court for restoration of full civil and legal rights as deemed necessary to facilitate the incompetent
person's rehabilitation.
4. A person who was involuntarily admitted by a court because he was likely to harm others if
allowed to remain at liberty may be conditionally released only if, at the time of the release, written
notice is given to the court which admitted him and to the district attorney of the county in which the
proceedings for admission were held.
bearing the signature of the doctor who was Maatallah's primary therapist. The discharge
summary reflected that Maatallah was discharged in July, 1976, because of no contact. The
document further indicated that the patient's legal status at the time of discharge was
voluntary.
4

The district court, in its order granting summary judgment, found that there was no
genuine issue as to any material fact. We disagree.
[Headnotes 1-4]
NRS 433A.380 provides the state and its agents with immunity for the damages caused by
the actions of persons on conditional release. The statute does not provide immunity for the
actions of discharged persons. The document attached to appellants' opposition to summary
judgment indicates that Maatallah was discharged eleven months before the killings occurred.
This raised a question of fact as to whether, at the time of the killings, Maatallah was still on
conditional release pursuant to NRS 433A.380, allowing respondents to invoke that statute's
immunity.
5
We reiterate the principle that a litigant has a right to trial where there is the
slightest doubt as to the facts. All evidence favorable to the party against whom summary
judgment is sought will be accepted as true. Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d
258, 260 (1981).
[Headnotes 5-7]
Our consideration of the unauthenticated document should not be construed in derogation
of the requirement of authentication as set forth in NRCP 56(e). We accord credence to the
document on appeal primarily because of respondents' failure to timely object to its admission
into evidence. All relevant evidence is admissible unless barred by a particular rule of
evidence. The responsibility for objecting to the admission of incompetent evidence devolves
upon the party who seeks its exclusion. See NRS 47.040(1)(a). A rule of evidence not
invoked is waived. I Wigmore on Evidence 790 (Tiller's Rev.
____________________

4
Respondents argued Maatallah's status in July, 1976 was voluntary, although this would seem to
undermine their immunity argument.

5
If the trier of fact finds that Maatallah was on conditional release pursuant to NRS 433A.380 at the time of
the killings, the trier of fact must further determine whether Maatallah's compliance with the conditions of his
release was properly being monitored by LVMHC. Invocation of immunity for the actions of persons
conditionally released is contingent upon the state's good faith efforts to enforce those conditions upon which
release is premised.
1983). In their reply points and authorities in support of summary judgment, respondents had
the opportunity to object to the trial court's consideration of the document. They did not do
so. Only after appellants filed their opening brief on appeal did respondents move to strike
references to information contained in the document. Indeed, as far as we can determine, the
district court considered the unauthenticated document in reaching its decision.
Because we find there was a material issue of fact which might affect respondents'
statutory immunity, the district court erred in granting summary judgment for respondents.
We therefore reverse the order granting summary judgment and remand the case for trial.
____________
100 Nev. 196, 196 (1984) Hay v. Hay
VIRGINIA HAY, Appellant, v. TOM HAY, Respondent.
No. 14201
March 29, 1984 678 P.2d 672
Appeal from an order granting summary judgment in an action between unmarried
cohabitants for a division of property; Second Judicial District Court, Washoe County; James
J. Guinan, Judge.
Action was brought seeking declaration of interest in property couple acquired during
cohabitation. The district court entered summary judgment dismissing the complaint, and
appeal was taken. The Supreme Court, Manoukian, C. J., held that: (1) complaint stated cause
of action for breach of implied-in-fact contract to acquire and hold property as if parties were
married or general partners, and (2) issue of material fact concerning ownership of various
items of property precluded summary judgment.
Michael L. Melner, Reno, for Appellant.
Patrick James Martin, Reno, for Respondent.
1. Pleading.
Complaint must set forth sufficient facts to establish all necessary elements of claim for relief so that
adverse party has adequate notice of nature of claim and relief sought.
2. Contracts.
Complaint seeking declaration of interest in property couple had acquired during their approximately
23-year cohabitation stated cause of action for breach of implied-in-fact contract to acquire
and hold property as if parties were married or general partners.
100 Nev. 196, 197 (1984) Hay v. Hay
of action for breach of implied-in-fact contract to acquire and hold property as if parties were married or
general partners.
3. Constitutional Law; Contracts.
Unmarried persons who are living together have same rights to lawfully contract with each other
regarding their property as do other unmarried individuals; their agreement may be express or implied from
their conduct.
4. Judgment.
In action for declaration of interest in property couple acquired during cohabitation, issue of material fact
concerning ownership of various items of property acquired during cohabitation precluded summary
judgment.
OPINION
By the Court, Manoukian, C. J.:
This is an appeal from a summary judgment in favor of defendant-respondent Tom Hay.
Appellant Virginia Hay brought this action seeking, inter alia, a declaration of her interest in
property the couple had acquired during their approximately 23 year cohabitation.
Respondent moved to dismiss the complaint and, alternatively, for summary judgment.
Because it considered matters outside of the pleadings in its rulings, the district court granted
summary judgment. NRCP 12(b). The trial court concluded that appellant's complaint had
failed to state a cause of action. The summary judgment order was amended to provide that it
was made without prejudice.
We are asked to decide whether appellant has stated a claim upon which relief can be
granted and, if so, whether material issues remain to be determined with respect to that claim
such that summary judgment was improper.
Appellant and respondent were married on July 7, 1949, and divorced on February 27,
1957. Almost immediately after their divorce, they resumed cohabitation and continued to
live together until they separated in September of 1981. The couple has three children; none
were minors at the time this action was commenced.
On the date of their separation, the parties owned various items of real and personal
property. Legal title to the property was held in a number of ways. The parties' residence had
been conveyed to them as Tom and Virginia Hay, Husband and Wife as Joint Tenants. The
remainder of the real property was in Tom's name alone and most of the couple's motor
vehicles were titled to Tom or Virginia Hay.
Soon after the couple separated in 1981, appellant brought this action seeking to enjoin
respondent from disposing of any of the property. She also sought a declaratory judgment of
her interest in, and an equitable distribution of, the property.
100 Nev. 196, 198 (1984) Hay v. Hay
interest in, and an equitable distribution of, the property. Her complaint alleged that during
the course of their relationship, she and respondent had been holding themselves out as
husband and wife and had pooled all monies earned by either of them and purchased assets
and incurred liabilities as if they were a marital community or a general partnership. The
complaint further alleged that there was a conscious intent to identify the property so acquired
as that of a marital community. The district court issued a restraining order, but not before
respondent had transferred all of the parties' motor vehicles into his name alone.
After exercising his peremptory challenge to the judge who had granted the temporary
restraining order, respondent filed a motion to dissolve the restraining order and for judgment
on the pleadings or summary judgment. As noted, the court granted summary judgment
because it felt that appellant had not stated a cause of action. In order to determine the
propriety of the summary judgment, we first must address the question of whether a cause of
action was stated by appellant's complaint.
[Headnotes 1, 2]
Because Nevada is a notice-pleading jurisdiction, our courts liberally construe pleadings to
place into issue matters which are fairly noticed to the adverse party. NRCP 8(a); Chavez v.
Robberson Steel Co., 94 Nev. 597, 599, 584 P.2d 159, 160 (1978). A complaint must set
forth sufficient facts to establish all necessary elements of a claim for relief, Johnson v.
Travelers Ins. Co., 89 Nev. 467, 472, 515 P.2d 68, 71 (1973), so that the adverse party has
adequate notice of the nature of the claim and relief sought. Branda v. Sanford, 97 Nev. 643,
648, 637 P.2d 1223, 1227 (1981). Predicated on the above authorities, we conclude that the
allegations set forth in appellant's complaint sufficiently stated at least one cause of action for
breach of the implied-in-fact contract to acquire and hold property as if the parties were
married or general partners. See Smith v. Recrion Corp., 91 Nev. 666, 668, 541 P.2d 663, 664
(1975) (the terms of an express contract are stated in words while those of an implied contract
are manifested by conduct).
[Headnote 3]
In Warren v. Warren, 94 Nev. 309, 579 P.2d 772 (1978), we addressed the issue of the
property rights of unmarried cohabitants. There, the lower court held that appellant Sybil
Warren had failed to prove the existence of an alleged agreement to pool funds or form a
partnership with her cohabitant. Although we merely affirmed the lower court's findings, our
opinion implied that her allegations were sufficient to state a cause of action.
100 Nev. 196, 199 (1984) Hay v. Hay
opinion implied that her allegations were sufficient to state a cause of action. In Warren, we
cited language from Marvin v. Marvin, 557 P.2d 106 (Cal. 1976), in which it was held that:
The courts should enforce express contracts between nonmarital partners except to
the extent that the contract is explicitly founded on the consideration of meretricious
sexual services . . . In the absence of an express contract, the courts should inquire into
the conduct of the parties to determine whether that conduct demonstrates an implied
contract, agreement of partnership or joint venture, or some other tacit understanding
between the parties. The courts may also employ the doctrine of quantum meruit, or
equitable remedies such as constructive or resulting trusts, when warranted by the facts
of the case.
We agree that the remedies set forth in Marvin are available to unmarried cohabitants.
Unmarried persons who are living together have the same rights to lawfully contract with
each other regarding their property as do other unmarried individuals. Their agreement may
be express or implied, as alleged in the instant case, from the conduct of the parties. Although
they may not, of course, contract for meretricious sexual services, they may expect that courts
will protect their reasonable expectations with respect to transactions concerning property
rights. Each case should be assessed on its own merits with consideration given to the
purpose, duration and stability of the relationship and the expectations of the parties. See
Omer v. Omer, 523 P.2d 957, 960-961 (Wash.App. 1974). Where it is alleged, as it was in the
instant case, and proven that there was an agreement to acquire and hold property as if the
couple was married, the community property laws of the state will apply by analogy.
We hasten to point out that Nevada does not recognize common law marriage. NRS
122.010. We recognize that the state has a strong public policy interest in encouraging legal
marriage. We do not, however, believe that policy is well served by allowing one participant
in a meretricious relationship to abscond with the bulk of the couple's acquisitions.
[Headnote 4]
Having concluded that appellant has stated a cause of action, we turn to the question of
whether summary judgment was proper. It is axiomatic that summary judgment is only
appropriate when the pleadings and papers on file show that there is no genuine issue of fact,
and that the moving party is entitled to judgment as a matter of law. Nehls v. Leonard, 97
Nev. 325, 328, 630 P.2d 258, 260 (1981). Summary judgment is only proper where it is
clear what the truth is . . ."
100 Nev. 196, 200 (1984) Hay v. Hay
is only proper where it is clear what the truth is . . . Barney's Club v. Chartrand, 98 Nev. 615,
616, 655 P.2d 999, 1000 (1982). Finally, for purposes of review, all evidence in appellant's
favor will be accepted as true. Bowyer v. Davidson, 94 Nev. 718, 720, 584 P.2d 686, 687
(1978).
Appellant, by her pleadings and affidavit, has put into issue the ownership of the various
items of property acquired by the parties during their lengthy relationship. If appellant's
allegations regarding the parties' agreement are accepted as true, a review of the record makes
it apparent that this issue has not been resolved by the papers and pleadings on file.
Respondent admitted in his affidavit in support of summary judgment that title to the property
is held as appellant alleged and that he changed title to the vehicles into his name alone
without giving her notice. The fact that he agrees with appellant's allegations as to how title is
held, however, does not mean that there is no question of material fact left to determine.
Respondent's admissions do not clarify the question at issue in this case since title is not
conclusive as to ownership. Because the question of appellant's interest in the subject
properties is the material issue of fact in this case, and because it remains undetermined,
summary judgment was improperly granted.
Accordingly, we reverse the district court's order and remand the case for trial. The district
court is directed to permit appellant to amend her complaint on remand to more clearly state
her cause of action and expand her prayer for relief. See Duke Power Co. v. Greenwood Co.,
299 U.S. 259, 268 (1936).
Springer, Mowbray, Steffen and Gunderson, JJ., concur.
____________
100 Nev. 200, 200 (1984) Early v. N.L.V. Casino Corp.
BEVERLY W. EARLY and FRANK C. EARLY, Appellants, v. N.L.V. CASINO
CORPORATION, dba SILVER NUGGET CASINO, Respondent.
No. 14463
March 30, 1984 678 P.2d 683
Appeal from an order granting a motion for directed verdict pursuant to NRCP 41(b) and a
denial of a motion for a new trial. Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Negligence action was brought against casino for injuries sustained by casino patron who
was robbed and beaten in a casino restroom.
casino restroom. The district court dismissed the suit at the close of plaintiffs' case, and
plaintiffs appealed. The Supreme Court held that evidence relating to past crimes on the
premises and the location and character of the casino's business, along with evidence of an
allegedly insufficient security system, raised substantial fact issues for jury.
Skupa & Mainor, Las Vegas, for Appellants.
Cromer, Barker, Michaelson, Gillock & Rawlings, and Walter R. Cannon, Las Vegas, for
Respondent.
James Crockett, Las Vegas, for Nevada Trial Lawyers' Association, Amicus Brief
Committee.
1. Theaters and Shows.
Duty owed to an invitee such as a casino patron is to use reasonable and ordinary care in keeping the
premises safe for the benefit of patrons.
2. Negligence.
A proprietor's duty to protect an invited guest from injury caused by a third person is circumscribed by
the reasonable foreseeability of a third person's actions and the injuries resulting from the condition or
circumstances which facilitated the harm.
3. Theaters and Shows.
In action brought to recover damages for injuries sustained by casino invitee who was robbed and beaten
in a casino restroom, evidence relating to foreseeability by reason of past crimes on the premises and the
location and character of the casino's business, breach of duty be reason of insufficient security system, and
proximate cause raised substantial fact issues for jury. NRCP 41(b).
OPINION
Per Curiam:
After presentation of appellants' negligence case before a jury, respondent N.L.V. Casino
Corporation, dba Silver Nugget Casino, made a motion for dismissal under NRCP 41(b). The
district court granted respondent's motion and issued an order and judgment of dismissal.
Appellants then filed a motion for a new trial, which was dismissed. Appellants now appeal
the 41(b) dismissal and the denial of a new trial. For reasons set forth hereinafter, the
judgment of dismissal is reversed and the case is remanded for a new trial.
Appellants Beverly W. and Frank C. Early, along with their daughter, went to the Silver
Nugget Casino for lunch. Before entering the restaurant, Mrs. Early excused herself to go to
the restroom. While alone in the restroom, Mrs. Early was robbed and severely beaten by a
male assailant. Mr. Early and his daughter heard a scream and ran to the restroom area.
and severely beaten by a male assailant. Mr. Early and his daughter heard a scream and ran to
the restroom area. The daughter followed further screams and found her mother getting up off
the floor. Her mother's face looked like it had been ripped completely open. Her clothing
was also torn. After several requests by Mrs. Early, her daughter and a bystander, an
ambulance was called. When it arrived, Mrs. Early was taken to the hospital. As a result of
the beating, Mrs. Early suffered psychological trauma in addition to her physical injuries.
Three of the Silver Nugget's security guards, including the chief of security, testified
concerning security measures in effect at the Silver Nugget. According to the testimony, there
were no formal training sessions for security guards, no written materials on security or
security manuals, and few, if any, formal staff meetings. At least on occasion there were no
guards patrolling outside the Silver Nugget at night for up to four hours at a time. Guards also
had neither an elevated security desk in a prominent position within the casino nor access to
the closed circuit television monitors.
The chief of security felt that the guards at the Silver Nugget were glorified porters,
because they never really did a lot of security work. Instead, they carried money boxes to
and from the counting room, read bingo machine numbers and oversaw the changing of tape
in Keno machines. The chief of security was also aware of monthly security chiefs' meetings
in town, but was unable to attend because there were not enough guards to cover the casino if
he left. The security guards' logbook lists ninety-two crimes known to have been committed
on the premises of the Silver Nugget during the two years preceding Mrs. Early's beating.
None of those prior crimes, however, had been committed in a restroom.
Expert witnesses testified that almost every other casino in town had training programs for
guards and elevated security desks. One witness also testified that during the two or three
years prior to the incident in question, restroom crimes and remedies had been discussed at
almost every monthly meeting of the local security chiefs.
NRCP 41(b) provides that an action may be dismissed at the close of plaintiff's case on
the ground that upon the facts and the law the plaintiff has failed to prove a sufficient case for
the
. . . jury. It is well-settled that a motion for involuntary dismissal pursuant to NRCP 41(b)
admits the truth of plaintiff's evidence and all inferences that reasonably can be drawn
therefrom, and the evidence must be interpreted in the light most favorable to plaintiff. Bell
v. Machado, 98 Nev. 152, 153, 643 P.2d 120S, 1209 {19S2).
P.2d 1208, 1209 (1982). In other words, if the evidence presented in the instant case provides
a reasonable inference of actionable negligence, involuntary dismissal is inappropriate.
[Headnotes 1, 2]
Appellants, therefore, bore the burden of introducing sufficient evidence in [their]
case-in-chief to establish a prima facie case. Hernandez v. City of Reno, 97 Nev. 429, 433,
634 P.2d 668, 671 (1981). The first element of appellants' negligence case concerns whether
the Silver Nugget owed any duty to Mrs. Early. Both parties agree that the duty owed to an
invitee such as a casino patron is to use reasonable and ordinary care in keeping the premises
safe for the benefit of patrons. [A] proprietor owes his invited guests a duty to keep the
premises in a reasonable safe condition for usethe duty of ordinary care. Asmussen v.
New Golden Hotel Company, 80 Nev. 260, 262, 392 P.2d 49, 49 (1964). It is generally
acknowledged, however, that the proprietor's duty to protect an invited guest from injury
caused by a third person is circumscribed by the reasonable foreseeability of the third person's
actions and the injuries resulting from the condition or circumstances which facilitated the
harm. We have stated that: There is a duty to take affirmative action to control the wrongful
acts of third persons only where the occupant of realty has reasonable cause to anticipate such
act and the probability of injury resulting therefrom. Thomas v. Bokelman, 86 Nev. 10, 13,
462 P.2d 1020, 1022 (1970). Regarding foreseeability, the Restatement of Torts provides:
Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no
duty to exercise any care until he knows or has reason to know that the acts of the third
person are occurring, or are about to occur. He may, however, know or have reason to
know, from past experience, that there is a likelihood of conduct on the part of third
persons in general which is likely to endanger the safety of the visitor, even though he
has no reason to expect it on the part of any particular individual. If the place or
character of his business, or his past experience, is such that he should reasonably
anticipate careless or criminal conduct on the part of third persons, either generally or at
some particular time, he may be under a duty to take precautions against it, and to
provide a reasonably sufficient number of servants to afford a reasonable protection.
Restatement (Second) of Torts 344 comment f (1965) (emphasis added).
[Headnote 3]
In the instant case, appellants' evidence relating to past crimes on the premises and to the
location and character of the Silver Nugget's business could provide the requisite
foreseeability. Indeed, a gambling casino where cash and liquor are constantly flowing may
provide a fertile environment for criminal conduct such as robbery and assault. Such crimes
are most likely to occur, moreover, in areas such as restrooms, which are removed from the
protection offered by crowds. Arguably security measures should take these factors into
account. [T]he standard of care required is always the conduct of an ordinarily prudent
person, nevertheless, the standard of conduct required is graduated according to the danger
attendant upon the activities of the business pursued and depends upon the facts and
circumstances surrounding each particular case. Brewer v. Roosevelt Motor Lodge, 295
A.2d 647, 652 (Me. 1972) (no liability as the only prior criminal activity was an unrelated
incident). The United States District Court for Nevada recently held that a hotel casino patron
robbed in an elevator was entitled to protection when the hotel had reasonable cause to
anticipate such a criminal act and the probability of injury arising therefrom; the
reasonableness of the hotel's efforts to discharge its duty to control foreseeable wrongful
conduct was determined to be an issue that should go to the jury. Morrison v. MGM Grand
Hotel, 570 F.Supp. 1449 (D. Nev. 1983).
1

The second element appellants must satisfy in proving a prima facie negligence case
centers on whether the Silver Nugget breached its duty to provide a reasonably safe
environment for Mrs. Early, a patron. Appellants specifically suggest that reasonable
measures of protection should include: minimally trained security guards, access to closed
circuit monitors for security personnel, adequate numbers of security personnel to cover
inside and outside areas, duties for security personnel that relate primarily to security, and
attendance by a security representative at local security chiefs' meetings. We have determined
that a jury could reasonably infer from appellants' evidence, interpreted in its most favorable
light, that security measures employed by the Silver Nugget did not satisfy its duty to provide
reasonable safety for patrons.
Finally, appellants must prove that their injuries were proximately caused by the Silver
Nugget's breach of duty. Our review of the record supports our conclusion that a jury could
reasonably infer from appellants' evidence that Mrs.
____________________

1
Although foreseeability in Morrison was based on a prior elevator robbery, we conclude that the facts in the
instant case, even without a prior bathroom assault, provide sufficient foreseeability to overcome an involuntary
dismissal.
reasonably infer from appellants' evidence that Mrs. Early's injuries were a proximate result
of a breach of duty by the Silver Nugget.
We have determined that the district court's order granting an involuntary dismissal must
be reversed, and we accordingly remand this matter for a new trial consistent with this
opinion.
____________
100 Nev. 205, 205 (1984) Orbit Stations, Inc. v. Curtis
ORBIT STATIONS, INC., a California Corporation and JACK A. FERGUSON, Appellants,
v. WILLIAM CURTIS, Individually and dba WILLIAM CURTIS ARCHITECTS,
Respondents.
No. 14623
March 30, 1984 678 P.2d 1153
Appeal from order refusing to vacate default judgment, Second Judicial District Court,
Washoe County; James H. Thompson, Judge.
Foreign corporation appealed from order of the district court refusing to set aside default
judgment entered against it. The Supreme Court held that absent any evidence that foreign
corporation acquiesced in or consented to individual's representation that he was corporation's
managing agent, which was not true, service of process upon that individual was insufficient
to support default judgment against the corporation.
[Rehearing denied November 1, 1984]
Vargas & Bartlett, Reno, for Appellants.
Robert J. Angres, Incline Village, for Respondents.
1. Principal and Agent.
Where individual lacks actual authority to act on behalf of principal, individual's representation that he is
an authorized agent of principal does not, by itself, establish such authorization.
2. Principal and Agent.
Principal may be bound by individual's representations only if principal consents or acquiesces to the
representations.
3. Corporations.
Absent any evidence that foreign corporation acquiesced in or consented to individual's representation to
sheriff's deputies that he was managing agent of corporation, which was not true, service of process upon
that individual was insufficient to support default judgment against the corporation. NRCP 4(d)(2), 60(c).
OPINION
Per Curiam:
This is an appeal from an order of the district court refusing to set aside a default judgment
entered against Orbit Stations, Inc., pursuant to NRCP 60(c). Orbit Stations contends that the
lower court erred in refusing to set aside the default judgment, because Orbit Stations had not
been personally served with process. We agree.
Respondents served the summons and complaint upon Paul Davison, who told the process
servers that he was the managing agent of Orbit Stations. The crucial issue litigated in the
proceedings below was whether Davison was, in fact, a managing agent of Orbit Stations
within the meaning of NRCP 4(d)(2). At the hearing on the motion to vacate the default
judgment, Davison testified that he worked for Intermountain Supply, a company located on
the same premises as Orbit Stations. Davison testified that he thought the process servers
asked him if he was the manager of Intermountain, to which he responded in the affirmative.
He testified that he did not work for, and was not the manager of, Orbit Stations.
NRCP 4(d)(2) sets forth the method of personally serving a foreign corporation. The rule
provides:
If the suit is against a foreign corporation, or a nonresident partnership, joint-stock
company or association, doing business and having a managing or business agent,
cashier, or secretary within this state; to such agent, cashier, or secretary or to an agent
designated for service of process as required by law; or in the event no such agent is
designated, to the secretary of state or the deputy secretary of state, as provided by law.
In the order refusing to vacate the default judgment, the court below stated:
The Court finds that Davison's testimony as to actual employment or contractual
relation with Orbit Stations, Inc., as straining one's credibility. The testimony of Deputy
Sheriffs Robins and Lewis, who have nothing to gain or lose and no interest in this
proceeding is more credible, i.e., that Paul Davison did represent himself as manager of
Orbit Stations, Inc., at its office on July 13, 1982.
[Headnotes 1-3]
This finding, that Davison represented himself as Orbit Stations' manager, did not resolve
the crucial issue mentioned above, and was insufficient to establish the validity of the
service in the face of Orbit Stations' contention that Davison was not actually Orbit
Stations' manager.
above, and was insufficient to establish the validity of the service in the face of Orbit Stations'
contention that Davison was not actually Orbit Stations' manager. The evidence produced at
the hearing below established that Davison did not have an employment or agency
relationship with Orbit Stations. Where an individual lacks actual authority to act on behalf of
a principal, the individual's representation that he is an authorized agent of a principal does
not, by itself, establish such authorization. See Tsouras v. Southwest Plumbing & Heating, 94
Nev. 748, 587 P.2d 1321 (1978); Wilshire Insurance Co. v. State, 94 Nev. 546, 582 P.2d 372
(1978) (service of notice of bail forfeiture on bail bondsman, special agent for a bail surety,
was not notice to the surety despite actions of bail bondsman, where actions were undertaken
without the consent or acquiescence of the surety). A principal may be bound by an
individual's representations only if the principal consents or acquiesces to the representations.
Myers v. Jones, 99 Nev. 91, 657 P.2d 1163 (1983); Goldstein v. Hanna, 97 Nev. 559, 635
P.2d 290 (1981); Wilshire Insurance Co. v. State, supra. In this case there was no evidence
presented that Orbit Stations acquiesced in or consented to Davison's representation.
Accordingly, the order of the district court is reversed, the case is remanded, and the district
court shall grant Orbit Stations twenty days within which to file an answer to the complaint.
1

____________________

1
Justice Charles E. Springer voluntarily recused himself from the consideration of this case.
____________
100 Nev. 207, 207 (1984) Taylor Constr. Co. v. Hilton Hotels
TAYLOR CONSTRUCTION COMPANY, Appellant, v. HILTON HOTELS
CORPORATION, dba LAS VEGAS HILTON and LAS VEGAS INTERNATIONAL
HOTEL CORPORATION, INC., Respondents.
No. 15178
March 30, 1984 678 P.2d 1152
Appeal from order denying motion for summary judgment, Eighth Judicial District Court,
Clark County; Paul S. Goldman, Judge.
Appeal was taken from an order of the district court denying a motion for summary
judgment. The Supreme Court held that order, which was a refusal by district court to
adjudicate rights and liabilities of a party on a motion for summary judgment, clearly was not
a judgment which was amenable to certification of finality, so that order was not
appealable, and Supreme Court was without jurisdiction to entertain the appeal.
clearly was not a judgment which was amenable to certification of finality, so that order was
not appealable, and Supreme Court was without jurisdiction to entertain the appeal.
Appeal dismissed.
Thorndal, Backus & Maupin, Las Vegas, for Appellant.
Rawlings, Olson & Cannon, Las Vegas, for Respondents.
Where no statutory authority to appeal is granted, no right exists. NRAP 3A(b).
Denial of a motion for summary judgment is not a final judgment under rule of appellate procedure
designating judgments and order from which an appeal may be taken. NRAP 3A(b).
District court, through certification of finality, cannot create finality when order is not amenable to
certification. NRCP 54(b).
District court does not have power, even when motion for certification is unopposed, to transform an
interlocutory order which does not come within rule providing certification of finality into a final
judgment. NRCP 54(b).
Certification of finality is not available to provide interlocutory appellate review of an order which does
not constitute a final adjudication of fewer than all claims or the rights and liabilities of fewer than all
parties in an action. NRCP 54(b).
Order, which was a refusal by district court to adjudicate rights and liabilities of party on motion for
summary judgment, clearly was not a judgment which was amenable to certification of finality, so that
order was not appealable, and Supreme Court was without jurisdiction to entertain the appeal. NRCP
54(b).
Erroneous certification of finality by trial court of order denying summary judgment did not preclude
appellant from raising its challenge to the order in a timely appeal from a final judgment. NRCP 54(b).
OPINION
Per Curiam:
This is an appeal from an order denying a motion for summary judgment. Respondents
have moved to dismiss this appeal, contending that such an order is not appealable despite the
certification of finality pursuant to NRCP 54(b).
1
We agree.
____________________

1
NRCP 54(b) provides in part:
When more than one claim for relief is presented in an action . . . the court may direct the entry of a
final judgment as to one or more but fewer than all of the claims . . . only upon an express
[Headnotes 1, 2]
NRAP 3A(b) designates the judgments and orders from which an appeal may be taken,
and where no statutory authority to appeal is granted, no right exists. Kokkos v. Tsalikis, 91
Nev. 24, 530 P.2d 756 (1975). The denial of a motion for summary judgment is not a final
judgment under the rule. Smith v. Hamilton, 70 Nev. 212, 265 P.2d 214 (1953) (decided
under identical provision of former NRCP 72(b)).
[Headnotes 3-6]
The district court, upon motion by appellant, inserted the following language into the order
denying appellant's motion for summary judgment:
IT IS FURTHER ORDERED that there appearing no just cause for delay, this denial
of the motion for summary judgment is certified as final for the purposes of the Nevada
Rules of Civil Procedure Rule 54(b).
The district court, through such certification, cannot create finality when the order is not
amenable to certification. See Mid-Century Ins. Co. v. Cherubini, 95 Nev. 293, 593 P.2d 1068
(1979); Las Vegas Hacienda v. G.L.M.M. Corp., 93 Nev. 177, 561 P.2d 1334 (1977). The
district court does not have the power, even when a motion for certification is unopposed, to
transform an interlocutory order which does not come within the rule, into a final judgment.
An NRCP 54(b) certification is not available to provide interlocutory appellate review of an
order which does not constitute a final adjudication of fewer than all claims or the rights and
liabilities of fewer than all the parties in an action. Painton & Company v. Bourns, Inc., 442
F.2d 216, 234 (2nd Cir. 1971). The order at issue in this appeal was a refusal by the district
court to adjudicate the rights and liabilities of Taylor Construction Company and clearly is
not a judgment which is amenable to certification pursuant to NRCP 54(b).
The district court was without authority to direct the entry of a final judgment as to the
order from which this appeal is taken; therefore, the order is not appealable and we are
without jurisdiction to entertain this appeal.
[Headnote 7]
Appeal dismissed.
2

____________________
determination that there is no just reason for delay and upon an express direction for the entry of
judgment. . . .

2
The erroneous certification by the trial court will not preclude appellant from raising its challenge to the
order in a timely appeal from a final judgment. See Page v. Preisser, 585 F.2d 336 (8th Cir. 1978).
____________
100 Nev. 210, 210 (1984) One 1977 Porsche v. County of Washoe
ONE 1977 PORSCHE 911S AUTOMOBILE ID NO. 9117212717, LICENSE NO.
NEVADA DI-1, ITS TOOLS AND APPURTENANCES, Appellant, v. THE COUNTY OF
WASHOE, STATE OF NEVADA, EX REL. WASHOE COUNTY SHERIFF'S
DEPARTMENT CONSOLIDATED NARCOTICS UNIT, Respondent.
No. 14663
March 30, 1984 678 P.2d 1150
Appeal from judgment of forfeiture, Second Judicial District Court, Washoe County;
Grant L. Bowen, Judge.
Appeal was taken from a judgment of forfeiture of a vehicle entered by the district court.
The Supreme Court held that where the vehicle was used only in conjunction with the owner's
possession of a controlled substance, rather than possession for the purpose of sale, forfeiture
of the vehicle was improper.
Fred Hill Atcheson, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Daniel
Wong, Deputy District Attorney, Washoe County, for Respondent.
Drugs and Narcotics.
Where vehicle was used only in conjunction with owner's possession of a controlled substance, rather
than possession for purpose of sale, forfeiture of vehicle was improper. NRS 453.301, subd. 5.
OPINION
Per Curiam:
This is an appeal from a judgment of forfeiture of a vehicle. The vehicle was apparently
used a number of times by its owner to travel to and from the location at which he purchased
a controlled substance for his own use. On some occasions, the vehicle owner apparently used
the controlled substance at the site of purchase, but he often took with him an amount of the
controlled substance, for later use, when he drove away in the vehicle. Respondent does not
contend that the vehicle owner was a seller or distributor of controlled substances. The
owner's only involvement here was his purchasing of a controlled substance for his own
personal use. We hold that because the vehicle was used only in conjunction with the owner's
possession of a controlled substance, rather than for the purpose of sale, forfeiture of the
vehicle under NRS 453.301{5) was improper.
100 Nev. 210, 211 (1984) One 1977 Porsche v. County of Washoe
owner's possession of a controlled substance, rather than for the purpose of sale, forfeiture of
the vehicle under NRS 453.301(5) was improper.
Under NRS 453.301(5), the following are subject to forfeiture:
All conveyances, including aircraft, vehicles or vessels, which are used, or intended
for use, to transport, or in any manner to facilitate the transportation, for the purpose of
sale, possession for sale or receipt of property described in subsections 1 or 2 [i.e.,
controlled substances and their associated raw materials, products and equipment]. . . .
1

The owner of the forfeited vehicle contends that NRS 453.301(5) does not apply to
vehicles used in crimes of mere possession. He asserts that the word receipt in that
provision means receiving for the purpose of sale, not receiving for the purpose of mere
possession. The state contends that receipt includes mere possession.
An analysis of both parties' arguments and of NRS 453.301(5) indicates that the statute is
ambiguous on the question of whether it applies to mere possession. Because forfeitures are
viewed with disfavor in the law, we are compelled to construe such ambiguity against the
state.
2
See One 1978 Chev. v. County of Churchill, 97 Nev. 510, 634 P.2d 1208 (1981);
Reeder v. State, 314 So.2d 853 (Ala. 1975) (forfeiture statute held inapplicable to mere
possession). If the applicability of NRS 453.301(5) should be broadened to include mere
possession, the state's argument is more appropriately made to the legislature rather than to
this court. See Sheriff v. Morris, 99 Nev. 109, 659 P.2d 852 (1983).
We reverse the judgment below and remand this case with instructions to vacate the
forfeiture of the vehicle.
____________________

1
NRS 453.301(5) was amended in 1983, after seizure of the vehicle. The amendment has no bearing on the
issue in this appeal.

2
We also note that under the wording of Nevada's former statutory scheme governing controlled substances,
possession alone was clearly stated as a proper basis for forfeiture. See former NRS 453.030, 453.145(1)
(repealed 1971). Such is not the case with the statute at issue here.
____________
100 Nev. 212, 212 (1984) Esworthy v. Williams
SAM K. ESWORTHY, Appellant, v. CHARLES
K. WILLIAMS, Respondent.
No. 14577
March 30, 1984 678 P.2d 1149
Appeal from order of dismissal with prejudice, First Judicial District Court, Carson City;
Michael E. Fondi, Judge.
Divorced wife brought action to recover child support payments from former husband
pursuant to Uniform Reciprocal Enforcement of Support Act, and city district attorney
became counsel for divorced wife. The district court dismissed action with prejudice on
ground of deputy district attorney's failure to appear at scheduled hearing, and appeal was
taken. The Supreme Court held that trial court abused its discretion in dismissing action for
deputy district attorney's failure to appear, where former husband had stipulated that child
support payments were past due, and failure to appear was inadvertent and, at most, merely
neglectful.
William A. Maddox, District Attorney, and Robert B. Walker, Jr., Deputy District
Attorney, for Appellant.
Stephen Mark Stephens, for Respondent.
In addition to statutory authority to dismiss action for failure to comply with rules or orders of court, trial
court has inherent power to dismiss case for failure to prosecute or to comply with its order, and court may
exercise such power within bounds of sound judicial discretion. NRCP 41.
When party has been accurately notified of time and place of hearing, party's failure to appear may
amount to failure to prosecute and may be proper ground for dismissal. NRCP 41.
Lack of diligence is necessary to justify dismissal for failure to prosecute.
Dismissal with prejudice is harsh remedy which should be utilized only in extreme situation.
5. Divorce.
Trial court abused its discretion in dismissing divorced wife's action to recover child support payments
from former husband on basis of deputy district attorney's failure to appear at scheduled hearing on behalf
of divorced wife, where former husband had stipulated that child support payments were past due, only
question remaining was enforcement and collection of those payments, and attorney's failure to appear was
inadvertent and, at most, merely neglectful. NRCP 41.
OPINION
Per Curiam:
This is an appeal from an order dismissing an action with prejudice. Appellant and
respondent were divorced in Clark County in 1967. Appellant was awarded custody of the
four children of the parties, and respondent was ordered to make monthly child support
payments. Appellant subsequently filed an action in the Eighth Judicial District Court, Clark
County, pursuant to NRS Chapter 130, the Uniform Reciprocal Enforcement of Support Act
(URESA). Venue was later changed to the First Judicial District Court, Carson City, and the
Carson City District Attorney became counsel for appellant. See NRS 130.130.
Although the parties filed a written stipulation indicating that respondent owed $9,000 in
child support arrearages, negotiations for repayment of the arrearages proved fruitless.
Eventually, on August 3, 1982, a Deputy District Attorney, acting as counsel for appellant,
filed a Notice of Setting. The parties' counsel then appeared in court and set a date of October
19, 1982, for a hearing on the URESA action.
The Deputy District Attorney omitted to put the date of the hearing on his calendar, and he
made a doctor's appointment for that same day. Although the District Attorney's office has a
standard procedure whereby that office compares its calendar with the district court's calendar
to ensure that all deputy district attorneys make their court appearances, the discrepancy was
not discovered. On October 19, 1982, respondent and his counsel appeared in court. Neither
appellant nor her counsel appeared. The district court dismissed the action with prejudice.
Appellant subsequently made a motion under NRCP 60(b) to vacate the dismissal. The
motion was denied and this appeal followed.
[Headnote 1]
The only issue in this case is whether the district court abused its discretion by dismissing
the action. A trial court may dismiss an action for failure to comply with the rules or orders of
the court. NRCP 41. In addition, the court has inherent power, independent of statute or court
rule, to dismiss a case for failure to prosecute or to comply with its orders. The court may
exercise this power within the bounds of sound judicial discretion. Moore v. Cherry, 90 Nev.
390, 393, 528 P.2d 1018, 1020 (1974).
[Headnotes 2-4]
When a party has been accurately notified of the time and place of a hearing, the party's
failure to appear may amount to failure to prosecute and may be a proper ground for
dismissal. Id. at 394, 52S P.2d at 1021.
place of a hearing, the party's failure to appear may amount to failure to prosecute and may be
a proper ground for dismissal. Id. at 394, 528 P.2d at 1021. Nevertheless, lack of diligence is
necessary to justify dismissal for failure to prosecute. Id. at 395, 528 P.2d at 1022. Dismissal
with prejudice is a harsh remedy which should be utilized only in extreme situations. Id. at
393, 528 P.2d at 1021.
[Headnote 5]
In the present case, respondent had stipulated that the child support payments were past
due, and the only apparent question remaining to be litigated was the enforcement and
collection of those payments. There was little, if any, prejudice to respondent caused by the
Deputy's failure to appear. Furthermore, the Deputy's failure to place the hearing date on his
calendar was inadvertent and, at most, merely neglectful. Had it not been for a breakdown in
the internal procedures used by the District Attorney's office, the error would have been
discovered and rectified before the hearing. Finally, the record does not support respondent's
argument on appeal that appellant and her counsel otherwise failed to use due diligence in
pursuing the URESA claim.
Under these circumstances, we hold that the district court abused its discretion by
dismissing the action. We therefore reverse the dismissal and we remand this case for further
proceedings.
1

____________________

1
At oral argument we were informed that respondent recently died. Counsel stipulated that substitution of
respondent's estate will be accomplished in the district court upon remand.
____________
100 Nev. 214, 214 (1984) Hatley v. State
DAVID WAYNE HATLEY, Appellant, v. THE
No. 14490
March 30, 1984 678 P.2d 1160
Appeal from order denying petition for post-conviction relief, Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
The district court denied petition for post-conviction relief, and petitioner appealed. The
Supreme Court held that evidentiary hearing was required since petitioner would be entitled
to relief under Payton and Johnson if his allegation that officers were not aware of bench
warrant at time of his arrest was true and conflict between officer's trial testimony and
other officer's affidavit with respect to such issue could not be resolved on basis of
available record.
and conflict between officer's trial testimony and other officer's affidavit with respect to such
issue could not be resolved on basis of available record.
Morgan D. Harris, Public Defender, and Terrence M. Jackson, Deputy Public Defender,
Clark County, for Appellant.
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney, and
James Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
When petition for post-conviction relief contains allegations of facts outside record which, if true, would
entitle petitioner to relief, evidentiary hearing thereon is required.
2. Criminal Law.
Evidentiary hearing was required where post-conviction relief petitioner would be entitled to relief under
Payton and Johnson if his allegation that officers were not aware of bench warrant at time of his arrest was
true and conflict between officer's trial testimony and other officer's affidavit with respect to such issue
could not be resolved on basis of available record.
OPINION
Per Curiam:
This is an appeal from an order denying appellant's petition for post-conviction relief.
Appellant was originally convicted in 1979 of one count of burglary, and appealed his
conviction to this court. His primary contention on that appeal was that the district court erred
in denying his motion to suppress certain incriminating statements he made at the time of his
arrest. Appellant contended that his arrest was made in violation of the fourth amendment and
Payton v. New York, 445 U.S. 573 (1980), since he was arrested in his home without a
warrant and absent exigent circumstances.
Based on the evidence presented at trial, we concluded that the arresting officers did not
have a warrant at the time of appellants's arrest. Hatley v. State, 97 Nev. 360, 630 P.2d 1255
(1981). We nevertheless concluded that Payton did not apply to appellant's case since
appellant had been arrested prior to the Court's decision in Payton, and that appellant's arrest
was valid under pre-existing Nevada law since there had been probable cause to support the
arrest. Id.
Subsequent to our decision in Hatley, however, the United States Supreme Court decided
that the warrant requirement set forth in Payton was to be applied retroactively to all
cases pending on direct appeal at the time the Payton decision was issued.
States Supreme Court decided that the warrant requirement set forth in Payton was to be
applied retroactively to all cases pending on direct appeal at the time the Payton decision was
issued. See United States v. Johnson, 457 U.S. 537 (1982).
1
Since Payton was decided
during the pendency of appellant's first appeal, he subsequently brought the present petition
for post-conviction relief in the district court, contending that he should be entitled to a new
trial in light of the holding in Johnson.
The state opposed appellant's petition. In so doing, the state attached an affidavit sworn by
one of the arresting officers, Officer Mertz, in July of 1982, which stated that appellant was
initially arrested on the basis of a bench warrant that had previously been issued against
appellant for his failure to appear in court on a misdemeanor traffic violation. This affidavit
directly contradicted the trial testimony of the other arresting officer, Officer Meadow, who
had testified that none of the arresting officers had a warrant at the time of appellant's arrest.
2

In light of this factual conflict, appellant requested that the district court hold an
evidentiary hearing. Specifically, appellant wished to resolve the question of whether the
arresting officers were in fact aware of the existence of the bench warrant at the time of
appellant's arrest for burglary, and, if so, whether the bench warrant was impermissibly used
as a pretext to arrest appellant on the burglary charge. The district court, however, refused to
conduct an evidentiary hearing and summarily denied appellant's petition.
[Headnotes 1, 2]
We conclude that it was error for the district court to deny the petition without first
holding an evidentiary hearing. It is well settled that when a petition for post-conviction
relief contains allegations of facts outside the record which, if true, would entitle the
petitioner to relief, an evidentiary hearing thereon is required. See Bolden v. State, 99 Nev.
181, 183, 659 P.2d 886, 887 (1983). See also Doggett v. State, 91 Nev. 768, 542 P.2d 1066
(1975). Clearly, appellant would be entitled to relief under Payton and Johnson if his
allegation that the police officers were not aware of the bench warrant at the time of his
arrest was true.
____________________

1
To the extent that our opinion in Hatley v. State, supra, is inconsistent with the Court's opinion in Johnson,
Hatley is hereby overruled.

2
From our review of the available record in this case, it appears that the arresting officers were advised of the
existence of the bench warrant at some point, and did in fact ultimately book appellant for arrest on the basis of
the bench warrant as well as on the burglary charge. It is not clear, however, whether the burglary arrest occurred
before or after the officers were made aware of the existence of the misdemeanor bench warrant.
of his arrest was true. Given that the conflict between Officer Meadow's trial testimony and
Officer Mertz' affidavit with respect to this issue could not be resolved on the basis of the
available record, see note 2, supra, and evidentiary hearing was clearly required. See Bolden
v. State, supra.
Additionally, we note that an evidentiary hearing was necessary to determine the truth of
appellant's alternate contention that even if the arresting officers were aware of the existence
of the misdemeanor bench warrant at the time of appellant's arrest, they were nevertheless
using it as an impermissible pretext to arrest appellant on the burglary charge. This
contention, if true, would at least arguably entitle appellant to relief. See Taglavore v. United
States, 291 F.2d 262, 265 (9th Cir. 1961) (where police officers use misdemeanor warrant as
a pretext to arrest a defendant for a felony narcotics offense and to search the defendant for
narcotics, both the arrest and the ensuing search are illegal).
Accordingly, the order denying appellant's petition for post-conviction relief is reversed
and the matter is remanded to the district court for an evidentiary hearing pertaining to the
above two factual questions. Additionally, we note that there is a substantial legal question
concerning the propriety of permitting the state to contend, for the first time in the present
post-conviction proceedings, that the arresting officers had arrested appellant for the
misdemeanor traffic violations based on the bench warrant, when both at trial and on the
direct appeal, the state conceded that appellant had actually been arrested for burglary and
that the arrest had been made without a warrant. See Steagald v. United States, 451 U.S. 204
(1981) (government may not present factual assertions for first time on writ of certiorari to
United States Supreme Court which contradict factual assertions made by it in courts below).
Since the parties have not addressed this issue either in the district court or on appeal to this
court, we decline to rule on this question at this time, and instead we leave that question to
the district court on the remand.
____________
100 Nev. 218, 218 (1984) Weakland v. Bd. of Parole Comm'rs
GERALD WEAKLAND, Appellant, v. BOARD OF PAROLE COMMISSIONERS and
STATE OF NEVADA, Respondents.
No. 14471
March 30, 1984 678 P.2d 1158
Appeal from order denying a post-conviction petition for writ of mandamus, First Judicial
District Court, Carson City; Michael R. Griffin, Judge.
Prisoner filed petition for writ of mandamus, claiming that Board of Parole
Commissioners was required to provide him with a statement of reasons for denying his
release. The district court denied the petition, and prisoner appealed. The Supreme Court held
that Board of Parole Commissioners is not constitutionally required to give any statement of
reasons for denying parole, and therefore, prisoner could not prevail on his claim that
statement of reasons given by the Board was constitutionally inadequate.
Affirmed.
Powell & Lambrose, Carson City, for Appellant.
Brian McKay, Attorney General, and Dan R. Reaser, Deputy Attorney General, Carson
City, for Respondents.
1. Constitutional Law; Pardon and Parole.
Statute providing that Board of Parole Commissioners may grant parole release to prisoner when
information before it shows reasonable probability that the prisoner will live and remain at liberty without
violating the laws and that release is not incompatible with the welfare of society does not create legal
expectation of parole release sufficient to trigger a constitutionally cognizable liberty interest and invoke
the protections of due process; rather, the statute gives rise to a hope of release on parole and Board's
discretionary decision to deny parole is not subject to the constraints of due process. U.S.C.A.Const.
Amends. 5, 14; NRS 213.1099, subds. 1, 3.
2. Pardon and Parole.
Board of Parole Commissioners is not constitutionally required to give any statement of reasons for
denying parole, and therefore, prisoner could not prevail on his claim that statement of reasons given by the
Board was constitutionally inadequate. U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
This appeal presents a constitutional question concerning Nevada's parole release
statute, NRS 213.1099.
Nevada's parole release statute, NRS 213.1099. We find no merit to appellant's contentions,
and affirm.
Appellant was convicted of second degree murder in 1975, and was sentenced to an
indeterminate term of five years to life. In January of 1982, he appeared before respondent
Board of Parole Commissioners (Board) and was denied parole release. The Board gave
appellant at least four specific reasons why parole was denied, including the nature and
severity of his crime and the Board's view that release at this time would depreciate the
seriousness of the offense.
1
The statement of reasons focused on factors primarily relevant
to the original crime and its surrounding circumstances, as opposed to Weakland's record of
institutional behavior.
Appellant subsequently filed a petition for writ of mandamus in the district court, claiming
that, as a matter of due process of law, the Board was required to provide him with a
statement of reasons sufficient to enable him to conform his institutional behavior to the
Board's expectations, and thereby earn release on parole. Weakland argued that the statement
of reasons given was constitutionally inadequate because it focused on the unchangeable
circumstances of his offense, not his behavior as an apparently model prisoner. The district
court, following our decision in Severance v. Armstrong, 96 Nev. 836, 620 P.2d 369 (1980),
opn. on r'hrg, 97 Nev. 95, 624 P.2d 1004 (1981), ruled that the Board was not
constitutionally required to give an unsuccessful parole applicant any statement of reasons,
and denied the petition. Appellant contends that this was error. We disagree.
[Headnotes 1, 2]
In its discretion, the Board may grant parole release to a prisoner when the information
before it shows a reasonable probability that such prisoner will live and remain at liberty
without violating the laws, and that release is not incompatible with the welfare of society.
NRS 213.1099(1).
2
In Severance, we held that this statute does not create a legitimate
expectation of parole release sufficient to trigger a constitutionally cognizable liberty interest
and invoke the protections of the Due Process Clause. Rather, the statute only gives rise to a
____________________

1
Appellant was convicted of murder for his part in the brutal contract killing of Hilda Krause. See LaPena v.
State, 92 Nev. 1, 544 P.2d 1187 (1976).

2
The statute also provides for more stringent controls on parole release in certain cases. See NRS
213.1099(3). The parties do not contend that this provision is relevant to this appeal.
hope of release on parole, and the Board's discretionary decision to deny parole is not
subject to the constraints of due process. 96 Nev. at 838-39, 620 P.2d at 370. Accord Austin
v. Armstrong, 473 F.Supp. 1114 (D.Nev. 1979); see also Averhart v. Tutsie, 618 F.2d 479,
480-81 (7th Cir. 1980). Cf. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979) (where
statute does create a legitimate expectation of parole release, certain due process safeguards,
including a statement of reasons, may attach). Since NRS 213.1099 does not create a
constitutionally cognizable liberty interest sufficient to invoke the protections of the Due
Process Clause, it follows that the Board is not constitutionally required to render any
statement of reasons why parole is denied.
Because the Board is not constitutionally required to give any statement of reasons,
appellant's argument that the reasons he did receive were constitutionally inadequate is
without merit, as are the additional points raised at oral argument. Accordingly, the order
denying the petition is affirmed.
3

____________________

3
Nothing in this opinion should be construed to prevent the Board from rendering a statement of reasons for
a parole denial if it so chooses. Such a statement, however, will not be subject to the type of sufficiency review
sought by appellant in this case.
____________
100 Nev. 220, 220 (1984) Kreidel v. State
DARRELL KREIDEL aka DARRELL ALTSTATT, Appellant,
v. THE STATE OF NEVADA, Respondent.
No. 14212
March 30, 1984 678 P.2d 1157
Appeal from order discharging post-conviction writ of habeas corpus, Eighth Judicial
District Court, Clark County; Michael J. Wendell, Judge.
Petitioner appealed discharge by the district court of writ of habeas corpus. The Supreme
Court held that retroactive application of decision interpreting statute to provide for one
sentence of enhanced length, rather than two consecutive sentences, for purpose of computing
parole eligibility date, was proper, where interpretation was authoritative and eminently
foreseeable.
Affirmed.
Robert W. Lueck, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City, and Ellen F. Whittemore, Deputy Attorney
General, Las Vegas, for Respondent.
1. Courts.
Judicial interpretation of statute may be retroactively applied if it is both authoritative and foreseeable.
2. Courts.
Retroactive application of decision interpreting statute to provide for one sentence of enhanced length,
rather than two consecutive sentences, for purpose of computing parole eligibility date, was proper, where
interpretation was authoritative and eminently foreseeable. NRS 193.165; U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
The appeal is from an order rejecting a challenge to the retroactive application of our
ruling in Director, Prisons v. Biffath, 97 Nev. 18, 621 P.2d 1113 (1981). For the reasons
hereafter set forth, we affirm.
In March of 1979 appellant was found guilty of robbery with use of a deadly weapon. The
district court sentenced him to five years for the robbery; pursuant to the provisions of NRS
193.165, the court enhanced that sentence by a consecutive five years for the use of a deadly
weapon.
1
The Nevada Board of Parole Commissioners (parole board) thereafter treated
appellant's ten-year sentence as two consecutive five-year sentences for the purpose of
computing his parole eligibility date.
In 1981 we decided Biffath, in which we interpreted NRS 193.165 to provide for one
sentence of enhanced length, rather than two consecutive sentences, for the purpose of
computing a parole eligibility date. The parole board recomputed appellant's eligibility date
based on one ten-year sentence. Appellant challenged this retroactive application of the
Biffath decision by means of a petition for writ of habeas corpus, arguing that our 19S1
interpretation of NRS 193.165 operated retrospectively to his detriment.
____________________

1
At all times relevant to this appeal, NRS 193.165 provided in pertinent part:
1. Any person who uses a firearm or other deadly weapon . . . in the commission of a crime shall be
punished by imprisonment in the state prison for a term equal to and in addition to the term of
imprisonment prescribed by statute for such crime. The sentence prescribed by this section shall run
consecutively with the sentence prescribed by statute for such crime.
2. This section does not create any separate offense but provides an additional penalty for the
primary offense, whose imposition is contingent upon the finding of the prescribed fact.
our 1981 interpretation of NRS 193.165 operated retrospectively to his detriment. The district
court rejected his challenge and discharged the writ. Appellant now contends that this was
error; we disagree.
[Headnotes 1, 2]
A judicial interpretation of a statute may be retroactively applied if it is both authoritative
and foreseeable. See Bouie v. City of Columbia, 378 U.S. 347 (1964); Mileham v. Simmons,
588 F.2d 1279 (9th Cir. 1979); Forman v. Wolff, 590 F.2d 283 (9th Cir. 1978), cert. denied,
442 U.S. 918 (1979). Appellant does not dispute that our interpretation of NRS 193.165 is
authoritative; he argues instead that it was not foreseeable for this court to interpret the statute
as not providing for two consecutive sentences. As long ago as 1975, however, we construed
NRS 193.165 as providing for one penalty enhanced by the aggravated conduct of use of a
deadly weapon, rather than providing for two separate penalties. Woofter v. O'Donnell, 91
Nev. 756, 542 P.2d 1396 (1975). In our view, our application of this general concept to the
issue presented in Biffath was eminently foreseeable, and appellant was neither entitled to
enforcement of the prior erroneous interpretation by the parole board nor deprived of due
process by Biffath's retroactive application. See Mileham v. Simmons, supra; Forman v.
Wolff, supra.
The order discharging the writ is affirmed.
____________
100 Nev. 222, 222 (1984) Parkerson v. State
LESTER J. PARKERSON, Appellant, v. THE STATE
No. 13946
March 30, 1984 678 P.2d 1155
Appeal from judgment of conviction entered on pleas of guilty, Second Judicial District
Court, Washoe County; Grant L. Bowen, Judge.
Defendant was convicted in the district court of forgery and uttering a forged instrument
and sentenced to life in prison without possibility of parole upon a finding that he was an
habitual criminal, and he appealed. The Supreme Court held that: (1) since an habitual
criminal determination is only an adjudication of status, not of guilt, right to trial by jury does
not attach; (2) sentence could be imposed upon an allegation of habitual criminality in
absence of a formal guilty plea; and {3) where defendant was aware at time of entry of
his guilty pleas to underlying felonies that State was seeking a finding of habitual
criminality and that a life sentence was a possible consequence of his pleas, defendant
failed to establish that his pleas of guilty to underlying felony offenses were not
knowingly and voluntarily entered because he was not fully aware of consequences of
pleading guilty.
habitual criminality in absence of a formal guilty plea; and (3) where defendant was aware at
time of entry of his guilty pleas to underlying felonies that State was seeking a finding of
habitual criminality and that a life sentence was a possible consequence of his pleas,
defendant failed to establish that his pleas of guilty to underlying felony offenses were not
knowingly and voluntarily entered because he was not fully aware of consequences of
pleading guilty.
Affirmed.
David G. Parraguirre, Public Defender, and Jane McKenna, Deputy Public Defender,
Washoe County, for Appellant.
Brian McKay, Attorney General, Carson City; Mills B. Lane, District Attorney, and
Michael L. Mahaffey, Deputy District Attorney, Washoe County, for Respondent.
1. Jury.
Since an habitual criminal determination is only an adjudication of status, not of guilt, right to trial by
jury does not attach. NRS 207.010.
2. Criminal Law.
Sentence could be imposed upon an allegation of habitual criminality in absence of a formal guilty plea.
3. Criminal Law.
Where defendant was aware at time of entry of his guilty pleas to underlying felonies that State was
seeking a finding of habitual criminality and that a life sentence was a possible consequence of his pleas,
defendant failed to establish that his pleas of guilty to underlying felony offenses were not knowingly and
voluntarily entered because he was not fully aware of consequences of pleading guilty. NRS 207.010.
OPINION
Per Curiam:
Appellant entered pleas of guilty to several counts of forgery and uttering a forged
instrument. At sentencing, the district court found him to be an habitual criminal within the
meaning of NRS 207.010, and sentenced him to life in prison with the possibility of parole.
On appeal, Parkerson raises various challenges to the validity of the habitual criminal
proceeding and sentence, and argues that two of the asserted errors affect the voluntariness of
his pleas to the underlying felony offenses.
1
We find no merit to the challenges and affirm
the judgment of conviction.
____________________

1
Appellant does not challenge the validity of his guilty pleas on grounds unrelated to the habitual criminal
proceeding.
[Headnote 1]
Appellant argues that NRS 207.010, Nevada's habitual criminal statute, violates the state
and federal constitutions by failing to provide for a trial by jury on the issue of habitual
criminality. We disagree. As we have consistently held, habitual criminality is not a crime but
a status. Although an allegation that a defendant falls within the purview of the habitual
criminal statute is typically included in the charging document, as it was below, such an
allegation does not charge a separate, substantive criminal offense, and an habitual criminal
proceeding is conducted only to determine whether an enhancement of punishment is
warranted for a defendant's status as a recidivist. See Schneider v. State, 97 Nev. 573, 635
P.2d 304 (1981); White v. State, 83 Nev. 292, 429 P.2d 55 (1967); Howard v. State, 83 Nev.
53, 422 P.2d 548 (1967). See also Carr v. State, 96 Nev. 936, 620 P.2d 869 (1980). Since an
habitual criminal determination is only an adjudication of status, not of guilt, the right to trial
by jury does not attach. White v. State, supra; Howard v. State, supra.
2

[Headnote 2]
Appellant also contends that the district court was without jurisdiction to sentence him as
an habitual criminal because, although he had pleaded guilty to the underlying felony
offenses, he had not entered a formal plea to the charge of habitual criminality alleged in
the information. As we have just noted, however, an habitual criminal allegation does not
charge a substantive criminal offense. It is included in the charging document merely to
provide notice to the defendant that the state is seeking enhancement of penalty. See NRS
207.010(4), (5). See also Oyler v. Boles, 368 U.S. 448, 452 (1962) (requiring reasonable
notice, as a matter of due process, of state's intent to seek habitual criminal determination).
Since an allegation of habitual criminality does not charge a crime, a sentence may be
imposed thereon in the absence of a formal guilty plea. See State v. Biggles, 235 N.W.2d 112
(Iowa 1975). See also State v. Hanna, 277 N.W.2d 605 (Iowa 1979).
[Headnote 3]
Appellant also argues that his pleas of guilty to the underlying felony offenses were not
knowingly and voluntarily entered because he was not fully aware of the consequences of
pleading guilty. Specifically, appellant contends that he was unaware of the elements of the
offense of habitual criminality. We reject this contention.
____________________

2
Since appellant had no right to a jury trial on the issue of habitual criminality, his derivative argument that
the record fails to reflect a knowing and intelligent waiver of that right is without merit.
At an habitual criminal proceeding, the state must prove the existence of the required
number and type of prior convictions, as well as the defendant's identity as the person named
in the prior judgments. See NRS 207.010. Since habitual criminality is not a criminal offense,
however, these matters are not elements in the traditional sense. When a defendant against
whom an habitual criminal allegation has been filed enters pleas of guilty to the underlying
felony offenses charged in the information or indictment, the court need not conduct a formal
canvass regarding the matters the state must prove at the habitual criminal proceeding. The
allegation puts the defendant on notice that the state will attempt to prove that he or she is the
person who has suffered the prior convictions as set forth in the allegation. The court must
determine, however, and the record must affirmatively show, that the defendant understands
that an habitual criminal determination and an ensuing life sentence may be a consequence of
his or her plea. We believe this would satisfy the constitutional requirement of reasonable
notice, see Oyler v. Boles, supra, as well as ensure that the defendant fully understood the
consequences of pleading guilty. See Hanley v. State, 97 Nev. 130, 624 P.2d 1387 (1981).
The record in this case affirmatively shows that appellant was aware at the time of entry of
his pleas that the state was seeking a finding of habitual criminality, and that a life sentence
was a possible consequence of his pleas. Accordingly, we see no merit in this claim that the
pleas were not knowingly and voluntarily entered.
3
We have likewise considered appellant's
final assignment of error and found it to be meritless.
Appellant's various challenges to the habitual criminal proceedings and sentence, and to
the voluntariness of his pleas of guilty to the underlying offenses, are without merit. It has
come to our attention that the judgment of conviction includes one count of the information,
Count V, to which appellant pleaded guilty in a separate proceeding and which is included in
that proceeding's resultant judgment. To correct what is obviously a clerical error, we hereby
modify the judgment of conviction to delete Count V. As modified, the judgment is affirmed.
____________________

3
Appellant asks us to follow the recent decision of People v. Brownridge, 325 N.W.2d 125 (Mich. 1982), in
which the Supreme Court of Michigan held that the formal plea canvass required for pleas to substantive
offenses had to be conducted with respect to an habitual criminal allegation. Brownridge is easily distinguishable
from the instant case, however, as Michigan law provides that habitual criminality is a charge upon which the
accused has the statutory right to be tried by a jury. See 325 N.W.2d at 126-27.
____________
100 Nev. 226, 226 (1984) Jacobson v. Manfredi
EUGENE M. JACOBSON, dba ROTOMETALS, Appellant, v. JUSTIN R. MANFREDI, by
His Natural Mother and Next Friend, BRENDA MANFREDI; and BRENDA MANFREDI,
Respondents.
No. 14211
EUGENE M. JACOBSON, dba ROTOMETALS, Appellant,
v. JOHN MANFREDI, Respondent.
No. 14267
April 3, 1984 679 P.2d 251
Consolidated appeals from judgment upon jury verdicts awarding damages, from judgment
granting additur or a new trial limited to the issue of damages if appellant does not accept
additur, and from judgment notwithstanding the verdict awarding damages. Fifth Judicial
District Court, Mineral County; William P. Beko, Judge.
Products liability action was brought against manufacturer of liquid solder for injuries
sustained when two-year-old boy drank the solder. Manufacturer brought claim against father
for indemnification based on father's conduct in leaving the solder within his son's reach. The
district court entered judgment granting additur or new trial for the son's injuries and
judgment notwithstanding the verdict awarding damages to father. Manufacturer appealed.
The Supreme Court held that: (1) evidence of subsequent changes in packaging and labeling
of the solder was admissible under feasibility exception; (2) trial court did not abuse its
discretion in granting additur; (3) award of prejudgment interest on the verdict except with
respect to medical expenses was erroneous where past and future damages were not
distinguished; and (4) substantial evidence supported jury's verdict under either negligence or
strict products liability theories against father.
Affirmed, as modified, in part, reversed in part.
Cromer, Barker, Michaelson, Gillock & Rawlings and Victor Alan Perry, Reno, for
Appellant.
Peter Chase Neumann, Reno; Smith and Gamble, Carson City, for Respondents.
1. Time.
Time limitations are not extended for litigants who knew or should have known necessary facts at earlier
date.
2. Judges.
Judge, especially a judge in a small town, need not disqualify himself merely because he knows one of
the parties.
3. Judges.
In products liability action, trial court did not abuse its discretion in denying manufacturer's motion for
recusal based on judge's relationship with one of the plaintiffs and with that plaintiff's aunt where motion
was filed 12 days before trial in violation of rule requiring motions to be filed not less than 20 days before
trial and where judge's current relationships with one of the plaintiffs and that plaintiff's aunt did not
demonstrate sufficient judicial bias. NRS 1.235.
4. Poisons.
In products liability action against manufacturer of liquid solder for injuries sustained when two-year-old
boy drank the solder, evidence of subsequent changes in labeling and packaging of the solder was
admissible to establish feasibility of changes where manufacturer at trial contended that original container
and labels were safer than other feasible containers and labels. NRS 48.095; Fed. Rules Evid. Rule 407,
28 U.S.C.A.
5. Jury.
District court's grant of additur after jury verdict has been rendered does not violate state constitutional
guarantee of jury trial. Const. art. 1, 3.
6. New Trial.
In products liability action against manufacturer of liquid solder for injuries sustained when two-year-old
boy drank the solder which his father had left on windowsill in their new home, trial court did not abuse its
discretion in granting boy's motion for additur where trial court concluded that damages awarded by jury's
verdict were clearly inadequate in light of the boy's young age and the formidable permanent injury he had
suffered.
7. Interest.
In products liability action, award of prejudgment interest was inappropriate except with respect to
medical expenses where neither the verdicts nor the order granting additur distinguished between past and
future damages. NRS 17.130, subd. 2.
8. Interest.
In products liability action, trial court erred in allowing prejudgment interest rate of 12% where statute
providing for award of prejudgment interest authorized only 8% on date when the complaint was filed.
NRS 17.130, subd. 2.
9. Damages.
Evidence that father of two-year-old boy who drank liquid solder knew that the solder was poisonous and
should not be left in child's reach supported jury's verdict that father was negligent and thus not entitled to
recover for his own suffering.
10. Trial.
Issue whether father's conduct in leaving liquid solder within reach of his two-year-old son was sort of
misuse which barred recovery on strict products liability claim was waived by failure to request instructions
concerning correct definition of misuse in the context of the case.
OPINION
Per Curiam:
These are consolidated appeals from a judgment upon jury verdicts awarding damages to
respondents Justin and Brenda Manfredi, from a judgment granting additur or a new trial
limited to damages in favor of Justin Manfredi, and from a judgment notwithstanding the
verdict awarding damages to John Manfredi.1 For the reasons set forth hereinafter the
judgment upon jury verdicts and the judgment granting additur are affirmed, as modified,
and the judgment notwithstanding the verdict is vacated and the judgment upon the jury
verdict is reinstated.
verdicts awarding damages to respondents Justin and Brenda Manfredi, from a judgment
granting additur or a new trial limited to damages in favor of Justin Manfredi, and from a
judgment notwithstanding the verdict awarding damages to John Manfredi.
1
For the reasons
set forth hereinafter the judgment upon jury verdicts and the judgment granting additur are
affirmed, as modified, and the judgment notwithstanding the verdict is vacated and the
judgment upon the jury verdict is reinstated.
John Manfredi, who was building a new house for his family, purchased from a local
hardware store a four-ounce container of liquid soldering flux manufactured by appellant,
Eugene M. Jacobson, who does business as Rotometals. Manfredi testified that he knew the
flux was poisonous, was dangerous, should not be swallowed and should not be left where
children could reach it. After using the flux to clean and solder copper water pipes, Manfredi
nevertheless placed the container on a windowsill. He does not know whether or not he
replaced the cap. That evening, Manfredi's wife, Brenda, and their two-year-old son, Justin,
made one of their routine visits to the construction site. While Brenda helped Manfredi hang
some plasterboard, Justin (who could have removed the container's cap by himself) took the
container from the windowsill and drank some flux. The flux contained a high percentage of
zinc chloride, which rapidly kills living tissue. Justin cried and then began to cough, spit and
vomit. His parents came over and immediately ascertained what had occurred. They rushed
Justin home and tried to get him to drink some milk, as the container suggested. After a short
time, they decided to take Justin to the local hospital in Hawthorne. From there, Justin was
sent by ambulance to a medical center in Reno.
The significant damage to Justin's stomach was massive and almost instantaneous,
according to expert medical testimony; damage concluded after twenty or thirty minutes. Four
months after the accident, Justin's stomach and upper and lower stomach valves were
removed. A small pouch was fashioned from a section of the boy's small intestine. The
pouch performs only a food-holding function, not any of the other important stomach
functions such as food grinding, bacteria elimination, digestion and absorption of vitamin
B-12. As a result, Justin must avoid certain foods, eat ten to thirteen small meals each day,
have numerous daily bowel movements, and receive vitamin B-12 shots. Justin's growth has
been slowed substantially and he is likely to age prematurely.
____________________

1
The Court has determined that consolidation of these appeals will assist in their disposition. NRAP 3(b).
and he is likely to age prematurely. Due to the loss of his esophageal valve, Justin refluxes
food and saliva and risks aspirating food into his lungs. As a result of the loss of his pyloric
valve, Justin suffers dumping syndrome, which refers to this digestive system's inability to
absorb nutrients adequately. Justin's condition is permanent and without remedy.
Justin and his mother brought an action based on negligence and strict products liability
theories against Rotometals as manufacturer of the soldering flux and the local hardware
store.
2
Rotometals sued John Manfredi for indemnification based on the father's negligent
conduct. John Manfredi then filed a third-party counterclaim against Rotometals.
At the close of trial, the jury returned verdicts awarding Justin Manfredi $200,000.00 and
Brenda Manfredi $50,000.00, plus costs and interest. The jury also decided that neither
Rotometals nor John Manfredi was entitled to any award in the third-party action, despite the
district court's directed verdict in Manfredi's favor. Justin Manfredi then moved for additur.
The district court granted him an additur of $650,000.00, plus interest. The court concluded
that the damages awarded Justin by the jury's verdict were clearly inadequate and that a new
trial limited to the issue of damages would be granted unless the defendant accepted the
additur. John Manfredi moved for a judgment notwithstanding the verdict, contending that
the jury could not have properly awarded Justin's mother $50,000.00 for her suffering and
excluded himself, who suffered the same anguish as a result of Justin's accident. The district
court agreed and awarded John Manfredi $50,000.00 also.
Rotometals appeals from the judgment upon jury verdicts in favor of Justin and Brenda
Manfredi and from the judgment awarding Justin an additur or, in the alternative, a new trial
relating only to damages. (No. 14211.) Rotometals also appeals the judgment notwithstanding
the verdict in favor of John Manfredi. (No. 14267.)
[Headnotes 1-3]
The manufacturer's first contention is that the district court abused its discretion by
striking its motion for recusation. Rotometals claims that eighteen days before trial it first
learned of a working relationship which the district court judge had with both John Manfredi
(former Mineral County Juvenile Probation Officer for over three years) and Justin
Manfredi's aunt {Mineral County Probation Department secretary for eight years).
____________________

2
The hardware store was dismissed after the parties' opening statements when it became apparent that its only
involvement was as seller of the product, for which it enjoyed indemnity from the manufacturer.
aunt (Mineral County Probation Department secretary for eight years). Twelve days before
trial, Rotometals filed its motion for recusation pursuant to NRS 1.235. Respondents Justin
and Brenda Manfredi thereupon filed a motion to strike on grounds that the motion was
untimely. NRS 1.235 requires that a motion for recusation be filed not less than 20 days
before the date set for trial or hearing of the case. After properly determining that listed
exceptions to the twenty-day deadline did not apply, the district court concluded that
Rotometals' motion was untimely and granted respondents' motion to strike. We hold that
such action did not constitute an abuse of discretion. The manufacturer's argument that it was
surprised by new facts about John Manfredi's former relationship with the district court
judge lacks merit as Rotometals learned of Manfredi's former position during the discovery
period. Time limitations are not extended for litigants who knew or should have known the
necessary facts at an earlier date. Rademacher v. City of Phoenix, 442 F.Supp. 27, 29 (D.
Ariz. 1977); Hirschkop v. Virginia State Bar Association, 406 F.Supp. 721 (E.D. Va. 1975).
Moreover, a judge, especially a judge in a small town, need not disqualify himself merely
because he knows one of the parties.
[A judge] must have neighbors, friends, and acquaintances, business and social
relations, and be a part of his day and generation. Evidently the ordinary results of such
associations and the impressions they create in the mind of the judge are not the
personal bias or prejudice to which the statute refers.
Ex parte N. K. Fairbank Company, 194 F.978, 989 (M.D. Ala. 1912).
There is no more of a disposition for a judge to rule in favor of an acquaintance or
friend because of that fact than there is a disposition for him to rule against an
acquaintance or friend because of that fact. The fact of friendship could result in a
leaning over backwards to maintain impartiality, or it could result in the opposite. But
an allegation of friendship, without more, is not sufficient to establish that either is
likely to happen
. . . .
Without a valid reason for recusal, a judge has a duty not to recuse himself.
Cline v. Sawyer, 600 P.2d 725, 729 (Wyo. 1979), aff'd on other grounds, 618 P.2d 144 (Wyo.
1980); accord, Ham v. District Court, 93 Nev. 409, 415, 566 P.2d 420, 424 (1977). The mere
allegations that Judge Beko had a prior professional relationship with John Manfredi and a
current professional relationship with Justin Manfredi's aunt do not demonstrate judicial bias
sufficient for us to hold that it was an abuse of discretion to strike appellant's motion for
recusation.
bias sufficient for us to hold that it was an abuse of discretion to strike appellant's motion for
recusation.
[Headnote 4]
Rotometals' second contention is that the district court abused its discretion by admitting
evidence relating to subsequent remedial product changes. Rotometals made a pretrial motion
in limine to preclude Justin and Brenda Manfredi from introducing any evidence of
subsequent changes in labeling or packaging of the product. The motion was denied. The
product container from which Justin drank had a widemouthed top and certain label
warnings. Subsequent to Justin's accident, the product was marketed in a container with a
narrower squirt top, a label providing stronger warnings and a circular providing additional
warnings and information. During cross-examination, appellant Jacobson was asked about the
feasibility of using a container with a child-proof cap and stronger label warnings; Jacobson
readily conceded that such changes could have been made, but he also explained why he
believed his widemouthed container was safer than containers with smaller openings from
which the product was often poured into unmarked containers wide enough for pipe ends to
be dipped into them. Moreover, Rotometals presented evidence that its original label
warnings were adequate. At trial, respondents introduced the new container and the circular
into evidence. NRS 48.095, patterned after Rule 407 of the Federal Rules of Evidence,
excludes evidence of subsequent remedial measures to prove negligence or culpable conduct,
unless such evidence is offered to prove another purpose such as feasibility of precautionary
measures.
3
In this case the feasibility exception applies because Rotometals contested the
utility and safety provided by the original container and labels versus the subsequent product
container and labels.
Whether something is feasible relates not only to actual possibility of operation, and its
cost and convenience, but also to its ultimate utility and success in its intended
performance. That is to say, feasible means not only possible, but also means
capable of being . . . utilized, or dealt with successfully. Webster's Third New
International Dictionary 831 (unabridged ed. 1967); see Black's Law Dictionary 549
{5th ed.
____________________

3
1. When, after an event, measures are taken which, if taken previously, would have made the event
less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or
culpable conduct in connection with the event.
2. This section does not require the exclusion of evidence of subsequent remedial measures when
offered for another purpose, such as proving ownership, control, feasibility or precautionary measures, or
impeachment.
Law Dictionary 549 (5th ed. 1979) (reasonable assurance of success).
Anderson v. Malloy, 700 F.2d 1208, 1213 (8th Cir. 1983). We therefore hold that admission
of the evidence regarding subsequent remedial product changes was within the district court's
discretion.
[Headnotes 5, 6]
Rotometals' third contention is that the district court's grant of additur was improper as
both a violation of the Seventh Amendment and an abuse of discretion. We have previously
analyzed at length the Seventh Amendment issue as it relates to additur. The guarantee of
trial by jury provided in the Seventh Amendment to the United States Constitution, which is
not binding on the states, is substantially different from the jury trial guarantees of . . . the
Nevada Constitution. Drummond v. Mid-West Growers Cooperative Corporation, 91 Nev.
698, 709, 542 P.2d 198, 206 (1975) (footnote omitted). We then held that additur does not
violate our state constitution. We reaffirm that holding now. We also hold that the grant of
additur in the instant case did not constitute an abuse of the district court's discretion. The
court properly followed the procedure set forth in Drummond. The court upon appropriate
motion should first determine whether the damages are clearly inadequate and, if so, whether
the case would be a proper one for granting a motion for a new trial limited to damages. Id.
at 712, 542 P.2d at 208; Eikelberger v. Tolotti, 94 Nev. 58, 60-61, 574 P.2d 277, 279 (1978).
After making these determinations, the court awarded additur. Recognizing Justin's young age
and the formidable permanent injury he has suffered, we cannot conclude that the district
court abused its discretion. Having stated in Drummond that there is no essential difference
between the procedures appropriate for remittitur and additur, 91 Nev. at 712, 542 P.2d at
208, we note with respect to additur, as we stated regarding remittitur, that our review is
weighted in favor of the district court's order.
When the trial judge orders a remittitur damnum [or additur] and we are asked to
review his action, the test is whether he abused his discretionary power. Gill v. Epstein,
401 P.2d 397 (Cal. 1965). This is an elusive standard. We must accord deference to the
point of view of the trial judge since he had the opportunity to weigh evidence and
evaluate the credibility of witnessesan opportunity foreclosed to this court. To this
extent the appeal is weighted in favor of the order entered, and when there is a material
conflict of evidence as to the extent of damage, a challenge to the trial court's
exercise of discretion is substantially repelled.
material conflict of evidence as to the extent of damage, a challenge to the trial court's
exercise of discretion is substantially repelled.
Harris v. Zee, 87 Nev. 309, 311-12, 486 P.2d 490, 491-92 (1971). The order granting additur,
therefore, is affirmed.
4

[Headnote 7]
Rotometals' fourth and final contention with respect to Justin and Brenda Manfredi's case
is that the district court erred in awarding prejudgment interest at the rate of twelve percent
when the verdicts and order granting additur did not distinguish between past and future
damages. The jury's general verdicts in favor of Justin and Brenda Manfredi did not
distinguish between past and future damages, except with respect to Justin's $33,175.00 in
medical expenses. The district court's order granting additur for Justin likewise failed to make
such a distinction. NRS 17.130(2) clearly prohibits prejudgment interest on future damages.
5
Rotometals argues that when the verdicts and orders are unclear and the awards could
possibly represent future damages only, prejudgment interest is inappropriate. The
manufacturer cites our recent opinion in Stickler v. Quilici, 98 Nev. 595, 655 P.2d 527 (1982)
as authority for its position. We agree that Stickler applies in the instant case to bar recovery
of prejudgment interest, except on Justin's medical expenses. Respondents failed to sustain
their burden to preserve a record supporting awards of prejudgment interest.
The plaintiffs bear the burden of proving every essential fact necessary to establish their
cause of action. Since the amount of past damages in this case is not ascertainable, the
plaintiffs, respondents herein, cannot be said to have sustained their burden of proof in
a manner which will support an award of interest based on past damages.
____________________

4
The district court's order granted additur or, in the alternative, a new trial limited to the issue of damages.
Having appealed the order granting additur, appellant is deemed to have made his election and cannot choose a
new trial on the issue of damages now that he has lost his appeal concerning the additur issue.

5
NRS 17.130(2) provided, at the time the complaint was filed, as follows:
2. When no rate of interest is provided by contract or otherwise by law, or specified in the judgment,
the judgment draws interest at the rate of 8 percent per annum from the time of service of the summons
and complaint until satisfied, except for any amount representing future damages, which draws interest at
that rate only from the time of the entry of the judgment until satisfied.
Unless the amount of past damages is established in some manner, it is not proper for a
prejudgment interest award to be made.
Id. at 597, 655 P.2d at 528.
[Headnote 8]
Prejudgment interest, therefore, is only allowed on the $33,175.00 representing Justin's
past medical expenses. The district court erred, moreover, in setting the prejudgment interest
rate at twelve percent. NRS 17.130(2) does not, contrary to respondents' interpretation, endow
the district court with power to choose an interest rate. We hold that the district court is
bound by the effective statutory interest rate. The statute provided for eight percent interest
when respondents' complaint was filed on November 28, 1979.
6
Justin is entitled, therefore,
to eight percent prejudgment interest on the amount of his judgment representing past
medical expenses. We have considered Rotometals' other contentions concerning Justin and
Brenda Manfredi's case and have concluded that they are without merit. Accordingly, the
judgment upon jury verdicts and the order granting additur are modified to provide interest at
eight percent on Justin's past medical expenses only. As modified, the judgment and order are
affirmed.
Rotometals' first contention with regard to John Manfredi's case is that there is substantial
evidence to support the jury's verdict denying Manfredi's recovery, thereby making it error for
the district court to grant judgment notwithstanding the verdict. We agree. We have
previously stated that judgment notwithstanding the verdict is inappropriate when there is any
substantial evidence to support the verdict.
The sole issue before us on this appeal is whether, in the record before the trial court,
there is any substantial evidence to support the jury's verdict. . . . A motion for
judgment notwithstanding the verdict presents solely a question of law to be determined
by the court, and the power to grant such motions should be cautiously exercised. . . .
In determining whether to render a judgment non obstante veredicto, the court is not
justified in trespassing on the province of the jury to be the judge of all questions of fact
in the case, and the party favored by the verdict is entitled to have the testimony read in
the light most advantageous to him, and to be given the benefit of every inference of
fact fairly deductible therefrom. Accordingly, an application for such judgment will be
refused where there is evidence tending to support the verdict, or where there is a
conflict of evidence, so that the jury could properly decide, either way, even though
the conflict is such that the Court would be justified in granting a new trial. . . .' "
____________________

6
NRS 17.130(2) was subsequently amended from eight percent to twelve percent for all causes of action
arising on or after July 1, 1981. 1981 Nev. Stats. ch. 739 2, 6, pp. 1858-59.
application for such judgment will be refused where there is evidence tending to
support the verdict, or where there is a conflict of evidence, so that the jury could
properly decide, either way, even though the conflict is such that the Court would be
justified in granting a new trial. . . .'
Dudley v. Prima, 84 Nev. 549, 551, 445 P.2d 31, 32 (1968) (citations omitted) (quoting
largely from 30A Am.Jur. Judgments 300 (1958)). Manfredi's counterclaim was based upon
negligence or strict products liability. Substantial evidence supports the jury's verdict under
both theories.
[Headnote 9]
Regarding his negligence cause of action, Manfredi knew the product was poisonous,
dangerous, should not be swallowed and should not be left where children could reach it. The
jury could easily have concluded, based upon the jury instruction given concerning
comparative negligence, that Manfredi's negligence in leaving the product within his son's
reach exceeded that of the manufacturer with respect to the labeling and packaging of the
toxic product. In addition, because Brenda Manfredi knew nothing about soldering or flux,
the jury could have consistently determined that she was entitled to recover on a negligence
theory.
[Headnote 10]
Regarding strict products liability, the jury was instructed that no liability follows an
injury resulting from abnormal or unintended use. Even if the jury found the product
unreasonably dangerous, it may have found that John Manfredi's conduct constituted
abnormal or unintended use resulting in no liability on the part of Rotometals. As Brenda was
not using the product and did not leave it within Justin's reach, the jury again consistently
could have found she was entitled to recover on a strict products liability theory. While
Manfredi convincingly argues that his conduct is not the sort of misuse which bars recovery
on strict products liability claims, he failed to request that the jury be instructed concerning
the correct definition of misuse in the context of the instant case. While respondents and
the district court may have understood that Manfredi should not have been barred by his
negligence from recovering under a strict liability cause of action, it was possible for the jury
to conclude otherwise based on its instructions. Manfredi, therefore, has failed to demonstrate
that it would have been impossible for the jury to have reached its verdict that he was not
entitled to recover against the appellant. Weaver Brothers, Ltd. v. Misskelley, 98 Nev. 232,
234, 645 P.2d 438, 439 (1982). The district court's order granting judgment notwithstanding
the verdict is, therefore, vacated, and the judgment upon the jury verdict denying John
Manfredi any recovery is reinstated.
the judgment upon the jury verdict denying John Manfredi any recovery is reinstated. Having
made this determination, we need not reach Rotometals' other contentions regarding John
Manfredi's case.
In conclusion, the amounts of the judgment upon the jury verdicts for Brenda and Justin
Manfredi are affirmed. The prejudgment interest awards, moreover, are modified to embrace
only Justin's past medical expenses and to provide eight percent interest. The judgment
granting additur for Justin is affirmed as to its amount but modified to exclude any
prejudgment interest. The judgment notwithstanding the verdict is vacated and the judgment
upon the jury verdict denying John Manfredi any recovery is reinstated.
____________
100 Nev. 236, 236 (1984) Sly v. Sly
BYRON D. SLY, Appellant, v. AUDRIA
M. SLY, Respondent.
No. 14526
April 24, 1984 679 P.2d 1260
Appeal from a judgment dividing property in an action for divorce and from a denial of
motion to amend the judgment or for a new trial. Second Judicial District Court, Washoe
County; James Thompson, Judge.
In a divorce action, husband appealed from an order of the district court denying his
motion to amend the judgment or, in the alternative, for a new trial in regard to the court's
property division. The Supreme Court held that: (1) court erred in not specifying community
property interests in home occupied by parties during the marriage but owned by wife prior to
the marriage, and in not compensating husband for his share of the interest; (2) court's
inconsistent findings in regard to computation of community property interest in house built
during the marriage on property the husband owned prior to the marriage, which house was
financed through husband's separate property and through his labor, warranted reversal and
remand; (3) fact that husband built the house in addition to working at his regular job was of
no consequence in computing the community property interest in the house; and (4) since the
district judge who presided over the original trial was no longer serving on the district court
bench, a new trial on all issues respecting division of parties' community property was
appropriate.
100 Nev. 236, 237 (1984) Sly v. Sly
Theodore J. Schroeder, Reno, for Appellant.
Susan J. Haveson, Reno, for Respondent.
1. Divorce.
Where neither party in divorce proceeding appealed trial court's determination that a business purchased
after the marriage with joint funds had been transmuted into former wife's separate property as a result of a
division of bank accounts occurring prior to the divorce action, such determination was not properly before
the Supreme Court.
2. Divorce.
In divorce proceeding, trial court erred in not specifying community property interest in home owned by
wife prior to the marriage and in not compensating husband for his share of that interest, where couple
lived in the home during the marriage, evidence indicated that at least some mortgage payments on the
home had been paid with community property funds, and trial court gave no reasons for ignoring husband's
community property interest in the home.
3. Husband and Wife.
Where part of purchase price of one spouse's separate property is paid with community funds, the
community acquires a pro tanto interest in the property to the extent and in the proportion that the purchase
price is contributed by the community.
Business, purchased after the marriage with joint funds and operated by wife, was community property.
Profits from a community business are themselves community property. NRS 123.220.
Husband who, in divorce action, attempted to put his check register into evidence in order to demonstrate
that some mortgage payments made during the marriage on home in which the couple lived, but which had
been owned by wife prior to the marriage, had been made by him with his salary was required to overcome
the presumption that these payments were intended as gifts to wife's separate estate.
7. Divorce.
Where trial court's decision indicated that it had identified several separate property sources of funds with
which materials for house erected on husband's separate property were purchased, where there was no
evidence before the court that more than those sums identified as husband's separate property had been
used for materials, but where, nevertheless, in its final computation, trial court apparently recharacterized
those funds as community property, such inconsistency in the trial court's method of calculating the
community interest in such property mandated reversal and remand.
Labor and skills of a spouse belong to the community.
Fact that husband built house during the marriage on property he had owned prior to the marriage in
addition to working at his regular job was of no consequence in determining whether the house, which
evidence indicated was paid for through husband's separate property, was
community property.
100 Nev. 236, 238 (1984) Sly v. Sly
evidence indicated was paid for through husband's separate property, was community property.
10. Divorce.
Where district judge who presided over original divorce trial was no longer available and the action was
required to be remanded for appropriate findings on extent of community interest in various properties, a
new trial on all issues respecting division of the parties' community property was appropriate.
OPINION
Per Curiam:
This is an appeal from a judgment dividing property in an action for divorce, and from an
order denying appellant's motion to amend the judgment or, in the alternative, for a new trial.
Below, each party claimed that a community property interest had been created in the other's
separate real property by virtue of community assets contributed to the purchase or
improvement of these properties. Because we are unable to discover a basis in the record for
the property division ordered by the district court, we reverse and remand for a new trial.
At the time of their marriage in March of 1976, appellant and respondent each owned real
property. Appellant had a separate home located on Model Way in Reno and a parcel of
unimproved land on Acquifer in Lemmon Valley. Respondent owned a residence on Probasco
Way in Sparks.
During the marriage, the couple lived in respondent's home on Probasco. Monthly
mortgage payments were made on that property throughout the marriage. The primary source
of these payments was apparently the proceeds from a crafts business operated by respondent.
This business had been purchased after the marriage with joint funds.
Sometime in autumn of 1978, the couple had a disagreement with respect to the operation
of the business. At that time, appellant closed the couple's personal savings account,
removing the entire balance. Although the record is not clear on this point, respondent
apparently received a similar amount from the business accounts.
Appellant subsequently commenced construction of a dwelling house upon his
unimproved lot on Acquifer. Since he is a carpenter, he performed most of the labor himself.
Funds for materials used in the construction apparently came from a number of sources,
including the money withdrawn from the savings account and proceeds from the sale of his
separate property residence on Model Way. There was also testimony during trial that
appellant used some of his wages to buy building supplies.
In its decision, the trial court made a general finding that both parties' separate property
had been improved with community assets.
100 Nev. 236, 239 (1984) Sly v. Sly
munity assets. The community interest in appellant's Acquifer residence was calculated by
adding the value of his labor plus the value of the building materials used in construction and
subtracting a certain amount which the court found appellant owed his brother for labor. No
compensable community property interest was found to exist in respondent's home on
Probasco. The court additionally found that the crafts business had been transmuted from
community property to respondent's separate property by the division of the bank accounts
which occurred in the fall of 1978.
[Headnote 1]
The issues before us on appeal are whether the court erred in its calculation of the
community interest in appellant's property and in failing to find any community interest in
respondent's property. Since neither party has appealed the determination that the business
had been transmuted into respondent's separate property, that issue is not properly before us.
See Stojanovich v. Stojanovich, 86 Nev. 789, 792, 476 P.2d 950, 952 (1970).
[Headnote 2]
Appellant first contends that the court below erred in not specifying the community
property interest in respondent's home on Probasco and in not compensating him for his share
of this interest. We agree.
[Headnotes 3-6]
Where part of the purchase price of one spouse's separate property is paid with community
funds, the community acquires a pro tanto interest in the property to the extent and in the
proportion that the purchase price is contributed by the community. See Barrett v. Franke, 46
Nev. 170, 208 P. 435 (1922). The evidence before the court clearly indicated that at least
some of the mortgage payments on respondent's home had been paid with community
property funds, i.e., the profits of the business before it had been transmuted to separate
property.
1
While the lower court is vested with broad discretion in dividing community
property, Herzog v. Herzog, 69 Nev. 2S6
____________________

1
As we have already noted, the propriety of the determination that the business had been transmuted is not
before us. Therefore, we express no opinion as to its validity. We simply note that before the transmutation the
business was unquestionably community property. Profits from a community business are themselves community
property. NRS 123.220. Appellant, in his motion for a new trial, attempted to put his check register into
evidence in order to demonstrate that some of the mortgage payments had been made by him with his salary.
With respect to this offered evidence, it should be noted that appellant must overcome the presumption that these
payments were intended as gifts to respondent's separate estate. See Lombardi v. Lombardi, 44 Nev. 314, 195 P.
93 (1921) (expenditure by husband in improving wife's separate property is presumed to be a gift).
100 Nev. 236, 240 (1984) Sly v. Sly
dividing community property, Herzog v. Herzog, 69 Nev. 286, 249 P.2d 533 (1952), there
must be a clearly expressed reason in what manner, for what purpose, and for whose benefit
that division is made. The general rule announced by this court is Equal distribution of the
community property appears to be the rule in most cases.' Stojanovich v. Stojanovich, 86
Nev. 789, 793, 476 P.2d 950, 953 (1970). Here, the lower court gave no reasons, nor is there
any apparent justification on the record, for ignoring appellant's community property interest
in respondent's home.
[Headnote 7]
Appellant further contends that the court erred in computing the community property
interest in his house on Acquifer and in attaching any community interest to the labor he
expended in building the house. We agree that the record demonstrates an inconsistency in
the trial court's method of calculating the community interest in this property, but disagree
with appellant's argument that his labor is not a community asset. The lower court's decision
indicated that it had identified several separate property sources of funds with which
materials for the house were purchased. There was no evidence before the court that more
than those sums identified as appellant's separate property had been used for materials.
Nevertheless, in its final computation, the court apparently recharacterized these funds as
community property. We are unable to find support in the record for the court's inconsistent
findings with respect to the characterization of these funds. Just as the findings of the trial
court will be sustained on the appellate level if they are supported by substantial evidence . . .
they will be reversed if they are not. Todkill v. Todkill, 88 Nev. 231, 238, 495 P.2d 629, 633
(1972).
[Headnotes 8, 9]
As noted, however, appellant's further argument that no community interest was created in
the property by virtue of his labor is meritless. The labor and skills of a spouse belong to the
community. Ormachea v. Ormachea, 67 Nev. 273, 297, 217 P.2d 355, 467 (1950). The fact
that appellant built the house in addition to working at his regular job is of no consequence.
It is within the province of the district court on retrial to make the appropriate factual
determinations of the community interest in both parties' properties as of the date of
dissolution. In this regard, any additional evidence concerning this issue or the proper
allocation of these interests, or the remainder of the community property, between the spouses
should be accepted.
100 Nev. 236, 241 (1984) Sly v. Sly
[Headnote 10]
Under ordinary circumstances, we would remand this case to the district court for
appropriate findings and an amendment of the judgment. However, here, the district judge
who presided over the original trial is no longer serving on the district court bench.
Accordingly, we reverse and remand for a new trial on all issues respecting the division of the
couple's community property. See Luciano v. Diercks, 97 Nev. 637, 640, 637 P.2d 1219, 1221
(1981).
____________
100 Nev. 241, 241 (1984) State, Bd. Psychological Exmr's v. Norman
STATE OF NEVADA BOARD OF PSYCHOLOGICAL EXAMINERS, Appellant, v.
ROBERT NORMAN, Ed. D., Respondent.
No. 13086
April 25, 1984 679 P.2d 1263
Appeal from a summary judgment setting aside appellant's revocation of respondent's
certificate of registration as a psychologist. Second Judicial District Court, Washoe County;
James J. Guinan, Judge.
State Board of Psychological Examiners appealed from summary judgment of the district
court setting aside the Board's revocation of psychologist's certificate of registration. The
Supreme Court held that: (1) psychologist did not waive procedural protections afforded him
by statute with respect to notice and hearing on charges against him, (2) notwithstanding the
Board's failure to act upon any formal complaint, to give written notice, to conduct proper
hearing, or to make findings of fact, summary judgment for psychologist was not appropriate
remedy but, rather, District Court should have remanded the matter to the Board with
instructions to hold hearing and render findings of fact and conclusions of law in accordance
with statute.
Brian McKay, Attorney General, Emmagene Sansing, Deputy Attorney General, Carson
City, for Appellant.
Robison, Lyle, Belaustegui & Robb, Reno, for Respondent.
1. Estoppel.
Waiver is intentional relinquishment of known right, and party cannot be said to have waived right of
which he was unaware.
2. Physicians and Surgeons.
Psychologist did not waive right to procedural protections before the State Board of Psychological
Examiners by virtue of letter in which he acknowledged possibility of adverse publicity both for himself
and for the profession should he choose to have hearing before the Board on matter of complaint regarding
treatment, where psychologist was told only that matter would be presented to the Board on given date as
informational item, but not that decision would be reached on that date, and psychologist was not informed
of all his rights under statute, such as right to counsel at the hearing. NRS 641.010 et seq.
Fact that the State Board of Psychological Examiners never issued final decision effective to revoke
psychologist's certificate did not preclude the district court from reviewing the case, since the Board
considered its decision to be final and, until subjected to judicial review, its action had effect of a final
decision. NRS 233B.125, 233B.130, 641.010 et seq.
Though the State Board of Psychological Examiners acted to revoke psychologist's certificate without
ever having issued formal complaint, given written notice, conducted hearing, or made any findings of fact,
summary judgment in the district court was not appropriate remedy for psychologist but, rather, the matter
should have been remanded to the Board with instructions to hold hearing in accordance with statute and to
render findings of fact and conclusions of law. NRS 233B.125, 641.010 et seq.
OPINION
Per Curiam:
This is an appeal from an order granting summary judgment in favor of Robert Norman
(Norman), setting aside the revocation of his certificate or registration as a psychologist by
the State Board of Psychological Examiners (Board). Although we agree with the district
court that the procedures followed were ineffective to revoke Norman's certificate, we reverse
judgment for Norman and remand to the district court for entry of an order directing the
Board to hold a hearing and to render findings of fact and conclusions of law.
The Board acted in response to a complaint by the husband of one of Norman's former
patients. On February 6, 1979, the complainant husband wrote a letter to the Board, alleging
that during the course of treatment Norman had become sexually involved with the
complainant's wife. On February 14, 1979, Dr. Robert McQueen (McQueen), president of
the Board, met with Norman to investigate the charges. On February 20, Norman wrote a
letter to the Board, responding to the accusations against him.
Norman wrote a letter to the Board, responding to the accusations against him. Norman's
supervisor and his therapist also wrote to the Board on his behalf.
On February 24, during a regularly scheduled meeting, the Board considered Norman's
case. Norman was not present. McQueen had told him that the matter would be presented to
the Board as an informational item, but Norman had not been informed that any action would
be taken that day. The Board minutes show that the Board members unanimously approved
the following resolution: In view of the information presented and pursuant to sections 4, 7,
8 of NRS: 641:230, we hereby revoke the certificate of Robert Norman. On February 26, the
Board sent a letter to Norman by certified mail informing him of its action. The letter was
couched in substantially the same terms as the resolution. No findings of fact were ever made.
On June 12, Norman petitioned for judicial review. The district court granted summary
judgment in his favor, and the Board appeals.
The Board is an agency within the meaning of the Administrative Procedure Act and must
comply with its provisions. NRS 233B.031. Additionally, the Board is governed by Chapter
641 of the Nevada Revised Statutes, which deals with psychologists. Chapter 641 sets out
very specific procedures for the revocation of certificates. After the Board receives and files a
complaint signed and verified by the complainant, it must fix a date for a hearing to be held in
thirty days or later. The Board must notify the defendant of the complaint and the hearing and
must provide him with a copy of the complaint. NRS 641.260; NRS 641.270. The hearing
must be public; the defendant had the right to appear in person and by counsel, to confront
witnesses against him, and to present witnesses on his behalf. NRS 641.280.
None of these procedures was followed by the Board. There never was a formal complaint
verified by the complainant. Norman never received written notice of the complaint, and
although McQueen showed him the complainant husband's letter, he was not provided with a
copy. No public hearing, or indeed a hearing of any kind, was ever held. The Board did not
make any findings regarding Norman's conduct: the sole result of its deliberations was the
cursory entry in the minutes and the equally cursory letter to Norman informing him of the
Board's decision. These abbreviated proceedings do not accord with the procedures set out in
Chapter 641, nor do they comport with the minimum requirements of due process.
[Headnotes 1, 2]
The Board contends, however, that Norman waived these procedural protections in his
letter to the Board.
1
Considering the pleadings and affidavits in the light most favorable to
the Board, we are compelled to conclude that a valid waiver was not established. Waiver is
the intentional relinquishment of a known right. Host Int'l, Inc. v. Summa Corp., 94 Nev. 572,
574, 583 P.2d 1080, 1081 (1978). A party cannot be said to have waived a right of which he
was unaware. National Bank of Alaska v. J.B.L. & K. of Alaska, Inc., 546 P.2d 579, 587
(Alaska 1976). The record shows that McQueen told Norman that on February 24 his case
would be presented to the Board as an informational item. He did not inform Norman that on
that same day a decision would be reached. McQueen did not inform Norman of all his rights
under Chapter 641, such as his right to counsel at a hearing. Indeed, McQueen stressed the
intimidating aspects of a public hearing, such as the publicity, rather than the procedural
safeguards available to Norman. Under these circumstances, we cannot say that Norman had
sufficient knowledge of his rights to waive them in favor of the truncated proceedings which
ensued. Consequently, we conclude that the procedures followed by the Board could not and
did not effect a revocation of Norman's certificate.
[Headnote 3]
Furthermore, the Board never made any findings of fact. NRS 233B.125 of the
Administrative Procedure Act provides that a final decision shall include findings of fact and
conclusions of law, separately stated. We have always stressed the importance of this
requirement. Factual findings help assure reasoned decision making by the administrative
agency. They also facilitate judicial review by enabling the parties to decide whether judicial
review should be sought and the courts to review the agency's decision without intruding on
its fact-finding function. Spilotro v. State ex rel. Gaming Comm'n, 99 Nev. 187, 661 P.2d 467
(1983). See State, Dep't of Commerce v. Hyt, 96 Nev. 494, 611 P.2d 1096 (1980); Lucas v.
Board of Ed. of Fort Bragg Unified Sch. Dist., 532 P.2d 110 (Cal. 1975). The consequences
of a failure to make factual findings are well illustrated in this case. The letter notifying
Norman that he would no longer be able to practice his profession in Nevada gave no
indication of how the Board had arrived at its decision.
____________________

1
The relevant portion of the letter reads:
Dr. McQueen has explained to me that there would probably be a significant amount of adverse publicity
both for myself and for the profession if I chose to have a hearing before the Board on this matter. I have
therefore chosen to place myself at the discretion of the Executive Committee in reviewing this situation.
I am willing to accept whatever decision they reach.
would no longer be able to practice his profession in Nevada gave no indication of how the
Board had arrived at its decision. Norman might reasonably have expected that this
communication would be followed by some statement of the Board's findings, and that only
then would he be able to make an informed decision regarding his future course of action.
The absence of any findings also renders impossible a meaningful review of the Board's
action by either the district court or this court: the Board has not provided us with any basis
for review. We conclude that the Board's resolution and letter did not constitute a final
decision within the meaning of NRS 233B.125.
2
Accord Lucas v. Board of Ed. of Fort
Bragg Unified Sch. Dist., supra.
[Headnote 4]
Nevertheless, we do not agree with the district court that summary judgment for Norman
was the proper remedy. Norman was charged with a serious violation of the canons of his
profession. The Board should not be precluded from investigating the charge and taking
appropriate action based on its findings, as long as it affords Norman the procedural
protections to which his is entitled. The district court should have remanded the matter to the
Board with instructions to hold a hearing in accordance with Chapter 641 of the Nevada
Revised Statutes and to render findings of fact and conclusions of law as required by NRS
233B.125.
Accordingly, we reverse the judgment of the district court and remand for proceedings
consistent with this opinion.
____________________

2
The fact that the Board never issued a final decision effective to revoke Norman's certificate did not
preclude the district court's review of the case under NRS 233B.130, which provides that the district court may
only review final decisions. The Board considered its decision to be final, and until subjected to judicial review,
its action had the effect of a final decision. A contrary conclusion would lead to the absurd result that the Board
could by its own procedural derelictions immunize its decisions from judicial review.
____________
100 Nev. 245, 245 (1984) Koza v. State
JOSEPH EDWARD KOZA, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 14243
April 25, 1984 681 P.2d 44
Appeal from judgment of convictions upon jury verdicts of first degree murder and
robbery, both with the use of a deadly weapon.
100 Nev. 245, 246 (1984) Koza v. State
weapon. Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Defendant was convicted in the district court of murder and robbery, and he appealed. The
Supreme Court held that: (1) evidence was sufficient to support conviction; (2) photo lineup
was not impermissibly suggestive; (3) motel clerk's disclosure of contents of overheard
telephone conversation did not violate statute prohibiting disclosure of contents of wire
communications; (4) warrantless search of defendant's motel room was justified by
emergency doctrine; and (5) seizure of murder weapon in the motel room was justified by
plain view doctrine.
Affirmed.
[Rehearing denied April 4, 1985]
Goodman, Terry, Stein & Quintana, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney, James
1. Criminal Law.
Relevant inquiry for Supreme Court when criminal defendant challenges sufficiency of evidence on
appeal is whether, after viewing evidence in light most favorable to prosecution, any rational trier of fact
could have found essential elements of crime beyond reasonable doubt.
2. Homicide; Robbery.
In prosecution for murder and robbery both with use of deadly weapon, evidence that defendant was near
scene of crime at approximate time of its occurrence and that gun found under his motel room mattress was
the murder weapon was sufficient to support conviction.
3. Criminal Law.
Identification procedure by which defendant's photo was identified by driver and passengers of truck
which picked up defendant near location at which body of murdered cab driver was found was not
impermissibly suggestive where police conducted photo lineup containing photographs separately for the
driver and each of the passengers.
4. Telecommunications.
Exception to statute prohibiting disclosure of contents or substance or wire or radio communications for
persons engaged in business of providing service and facilities for such communication if interception is to
operate service or facilities included employees performing hotel and motel switchboard operations. NRS
179.465, subd. 2, 200.630, 200.630, subd. 2.
Motel desk clerk's overhearing telephone conversation between guest and outside caller in which robbery
plans were discussed could be disclosed by the clerk without violating statute prohibiting disclosure of
contents of wire communications where desk clerk was operating motel telephone service when he
inadvertently overheard the conversation and where the clerk's listening for one to two
minutes thereafter was warranted by his reasonable apprehension that unlawful and
lifethreatening conduct was about to occur in the motel.
100 Nev. 245, 247 (1984) Koza v. State
conversation and where the clerk's listening for one to two minutes thereafter was warranted by his
reasonable apprehension that unlawful and lifethreatening conduct was about to occur in the motel. NRS
179.465, subd. 2, 200.630, 200.630, subd. 2.
6. Searches and Seizures.
Warrantless search of defendant's motel room was justified by emergency doctrine where police, knowing
that occupant of the motel room had planned armed robbery on the telephone and had had time before they
arrived to commit the robbery and failing, after hearing sliding action of automatic handgun when they
knocked, to find a gun when defendant and his wife left the room, had reasonable grounds to believe that
another accomplice might still be in the room and that urgent need existed to preserve life of possible
victim or their own lives.
7. Searches and Seizures.
Warrantless seizure of handgun during protective search of motel room was justified by plain view
doctrine where police entry into the room was not pretext to seize the gun and where police had probable
cause to associate the gun, although only partially visible under mattress in the room, with criminal activity.
8. Criminal Law.
Imposition of consecutive enhanced penalties on defendant convicted of both robbery and murder was
not erroneous where each offense required proof of additional facts that the other did not. NRS 200.010,
200.380.
OPINION
Per Curiam:
A jury convicted Joseph Edward Koza of first degree murder with the use of a deadly
weapon and robbery with the use of a deadly weapon and returned a verdict of life
imprisonment without the possibility of parole on the murder count. The district court
sentenced Koza to fifteen years imprisonment on the robbery count. The district court also
imposed additional enhancement penalties of fifteen years and life imprisonment without the
possibility of parole for the use of a deadly weapon in the commission of the crimes. The
sentences are to run consecutively. Our review of the record convinces us that Koza was
fairly tried, convicted and sentenced. We therefore affirm.
Shortly after midnight on October 25, 1980, a man driving home from work spotted a
taxicab which had been driven off the pavement and into a large bush. Behind the cab, which
was in a remote area on the outskirts of Las Vegas near Sunset Road, the man found a body
on the ground.
An autopsy revealed that the victim, the cab's driver, died of two .25 caliber gunshot
wounds to the back of the head. The cab company supervisor also discovered a .25 caliber
shell casing under the back seat of the cab. Although the cabdriver's trip sheet reported
$76.S5 in fares for the evening, no money was found on his body or in the cab's safe.
100 Nev. 245, 248 (1984) Koza v. State
trip sheet reported $76.85 in fares for the evening, no money was found on his body or in the
cab's safe. The cab's meter was still running when police arrived. Several latent fingerprints
were recovered from the cab.
Immediately prior to his death, the cabdriver was on duty and following his normal routine
of working the Las Vegas Strip, instead of taking dispatch calls. He picked up four
passengers at the Riviera Hotel at 9:52 p.m. and left them at the Tropicana Hotel. His trip
sheet's final entry noted that at 10:02 p.m. he picked up two persons. Contrary to routine
practice, the cabdriver did not indicate where the persons were picked up or where they
wanted to go. Subsequent to the police investigation, the cab company supervisor, using
information from the abandoned cab's running meter and from three alternative routes (each
driven on a Friday at 10:00 p.m.) from the Tropicana Hotel to where the cab was found,
calculated that the cabdriver had arrived at the scene at approximately 10:15 p.m. the night he
was killed.
The evening of the killing, David Berry was driving his truck on Sunset Road with his
friend Albert Smith and their girlfriends. The hour was sometime between 10:15 p.m. and
10:30 p.m. Berry passed a man and a woman walking along at a point approximately one-half
mile from where the body was found. Seeing the man put his thumb out, Berry backed up to
give them a ride. Smith rolled down the passenger window, turned his head to look at the man
and asked him if they wanted a ride. The man, who stood about five feet from Smith, replied
affirmatively and indicated that they were going to the Tropicana. There were no
streetlights in that area, but Smith saw the man's face from the illumination provided by
Berry's truck lights and by the lights of an approaching car. When Berry later let the
hitchhikers out, he got a good look at the man as he helped the woman out of the truck.
There were streetlights in the area where the two disembarked.
On November 12, 1980, Berry and Smith and their girlfriends met with police detectives.
Berry was separated from the others and interviewed. After he briefly described the
hitchhiker, police conducted a photo lineup containing six photographs. Berry positively
identified the picture of Koza as the hitchhiker. The procedure was repeated for Smith, who
also identified Koza's photograph. Berry and Smith later identified Koza at preliminary
hearings and at trial. Neither Berry nor Smith could identify the woman hitchhiker, but their
general descriptions matched that of Koza's wife.
Prior to being charged with the instant crimes, Koza and his wife had been arrested on
unrelated charges at a motel where they were registered under a false name.
100 Nev. 245, 249 (1984) Koza v. State
they were registered under a false name. Their registration card listed no motor vehicle and
the motel clerk testified that he had never seen Koza or his wife in a private car, only in
taxicabs. Koza and his wife had stayed at the motel for over two months and had paid their
rent daily in cash. The motel is approximately one block east of the Tropicana Hotel.
The arrests were precipitated by the motel desk clerk's inadvertent overhearing of a portion
of a telephone conversation between a man in room 359 and an outside female caller. The
caller inquired, Do you have your gun? The desk clerk, who was also the motel's manager,
listened one or two minutes thereafter for security reasons and heard the following:
Female: Do you have your gun?
Male: Yes, I have mine; do you have yours?
Female: Yes, I have mine in my purse. I am over here now, and here is what we will
do. On the way over, I will sit in the back seat of the car; and when we get to the rear of
the hotel I will get the drop on them.
Male: Be careful, there are two of them.
Female: Don't worry. If they try anything I will blow their brains out. I will have
him toot the horn, and that will be your signal to come around and get into the car.
Suspecting a robbery might soon occur on the premises, the desk clerk called the motel owner
and then the police.
Police officers arrived thirty to forty-five minutes later and commenced surveillance of
room 359. During the next two hours, a man later identified as Koza twice left the room, went
to the rear of the motel and returned. He appeared as if he was looking for someone. After a
third trip to the front of the motel, he returned to the room with a woman later identified as
Koza's wife. At that time the officers decided to investigate. Sergeant Schaub knocked on the
door and announced they were police officers who wanted to speak with the occupants.
Schaub then heard from inside the room the sound of a slide action of an automatic pistol.
Schaub immediately shouted to the other officers to take cover. He then shouted to the
occupants of room 359 that he knew someone in the room had a gun and that unless everyone
exited, police officers would come in shooting.
Approximately one minute later the door opened slightly and Koza's wife appeared.
Schaub ordered her to come out; she did not. She asked what he wanted and said nobody else
was inside. Schaub raised his gun and again ordered her to come out. She then exited through
the narrowly opened door. The officers searched her, found no weapons, handcuffed and
arrested her.
100 Nev. 245, 250 (1984) Koza v. State
arrested her. Knowing that at least one man was still in the room, Schaub shouted that he
knew someone else was inside and ordered him to come out. After one or two minutes, Koza
emerged. Police found a small holster clipped to his pants' waistband, but no gun. The Kozas
were arrested for conspiracy to commit robbery.
Schaub and the other officer then entered the room and commenced a protective sweep.
No one was found in the main area of the room or in the bathroom. While returning to the
main area, Schaub noticed one bed's mattress was not aligned with the box springs. He could
see a portion of a chrome object hidden between the mattress and box springs. Bending down,
he could see more of the object and just knew that it was a gun. Schaub lifted the mattress
and confirmed that the object was a gun. It was a Raven .25 caliber automatic handgun with a
live round in its chamber. Two other guns were also found. Only the Raven fit Koza's holster.
A firearms examiner conducted tests with the guns seized in Koza's room. He concluded,
with one hundred percent certainty, that the bullets recovered during the cabdriver's autopsy
and the cartridge found in the cab were fired from the Raven pistol. The next day, fingerprint
experts discovered that a latent palm print recovered from the fender of the victim's cab
matched the palm print of Koza's wife.
An information jointly charged Koza and his wife with murder and robbery, both counts
with the use of a deadly weapon. The jury found Koza guilty of first degree murder and
robbery, both with the use of a deadly weapon. Although the state sought the death penalty,
the jury concluded the penalty phase of the trial by returning a verdict for life imprisonment
without the possibility of parole. Koza was sentenced to two consecutive life sentences
without the possibility of parole for his conviction of first degree murder with the use of a
deadly weapon and two consecutive fifteen-year terms of imprisonment for his conviction of
robbery with the use of a deadly weapon. Koza now appeals from each of his convictions and
sentences.
[Headnotes 1, 2]
Koza first contends that the record does not contain sufficient evidence for a rational trier
of fact to be convinced beyond a reasonable doubt of his guilt. The relevant inquiry for this
Court is whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original);
Hern v. State, 97 Nev. 529, 531, 635 P.2d 278, 279 (1981). The testimony placing Koza near
the scene of the crime at the approximate time of its occurrence and the evidence proving
that the gun found under Koza's mattress, which fit Koza's holster, was the murder
weapon are especially damaging to Koza's position.
100 Nev. 245, 251 (1984) Koza v. State
near the scene of the crime at the approximate time of its occurrence and the evidence
proving that the gun found under Koza's mattress, which fit Koza's holster, was the murder
weapon are especially damaging to Koza's position. We conclude that there is substantial
evidence in the record to support the verdict of the jury and therefore will not overturn it on
appeal. Id.
[Headnote 3]
Koza next contends that the district court's refusal to suppress the photo lineup
identifications violated his due process rights. Koza relies on Manson v. Brathwaite, 432 U.S.
98 (1977) for his contention that the suggestiveness of the photo lineup outweighed the
reliability of Smith's and Berry's identifications. We have considered the manner in which the
police conducted the photo lineup and have examined the six pictures displayed and conclude
the identification procedure was not so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification. Id. at 105 n. 8, quoting Simmons v.
United States, 390 U.S. 377, 384 (1968). The district court, therefore, did not err by refusing
to suppress the photo lineup identifications.
[Headnotes 4, 5]
Koza's third argument is that his arrest and the search of his motel room and seizure of
evidence found therein were products of an unlawful interception of a private communication
by wire. Koza maintains, as he did at a pretrial suppression hearing, that NRS 179.465(2)
implicitly prohibited the motel desk clerk's disclosure of the contents of the overheard
telephone conversation. More directly on point, however, is NRS 200.630 which explicitly
prohibits disclosure and recognizes the same statutory exceptions listed in NRS 179.465(2).
1
NRS 200.630(2) nevertheless creates an exception for persons engaged in the business of
providing service and facilities for such communication where the interception is to
operate the service or facilities.
____________________

1
200.630 Disclosure of contents or substance of wire or radio communication prohibited; exceptions.
1. Except as otherwise provided in NRS 179.410 to 179.515, inclusive, no person shall disclose the
existence, contents, substance, purport, effect or meaning of any wire or radio communication to any
person unless authorized to do so by either the sender or receiver.
2. This section shall not apply to any person, or the officers, employees or agents of any person,
engaged in furnishing service or facilities for such communication where such disclosure is made:
(a) For the purpose of construction, maintenance, conduct or operation of the service or facilities of
such person; or
(b) To the intended receiver, his agent or attorney; or
(c) In response to a subpena issued by a court of competent jurisdiction; or
(d) On written demand of other lawful authority.
100 Nev. 245, 252 (1984) Koza v. State
nevertheless creates an exception for persons engaged in the business of providing service
and facilities for such communication where the interception is to operate the service or
facilities. We construe this statute to include employees performing hotel and motel
switchboard operations. Here, the district court at the suppression hearing specifically found
that the desk clerk inadvertently plugged into the telephone conversation. Although
conflicting evidence was presented regarding this factual issue, the district court's finding is
supported by substantial evidence. We therefore will not disturb the finding on appeal.
Morrison v. Rayen Investments, Inc., 97 Nev. 58, 61, 624 P.2d 11, 13 (1981). Because the
motel was engaged in the business of providing telephone service and the desk clerk was
operating the service when he inadvertently overheard part of Koza's conversation, we hold
that the initial interception was not unlawful and, therefore, subject to disclosure at trial. The
desk clerk's listening for one to two minutes thereafter was warranted by his reasonable
apprehension that unlawful and life-threatening conduct was about to occur in his motel. See
United States v. Axselle, 604 F.2d 1330 (10th Cir. 1979) (motel clerk listened for three to
five minutes after inadvertently overhearing an interesting comment); U.S. v. Savage, 564
F.2d 728 (5th Cir. 1977) (motel switchboard operator inadvertently overheard ten seconds of
conversation); but see Watkins v. L.M. Berry & Company, 704 F.2d 577 (11th Cir. 1983)
(disapproving Axselle). We therefore conclude that the desk clerk lawfully communicated
what he had overheard to law enforcement personnel and that such communication
constituted probable cause for Koza's arrest. Admission of the desk clerk's testimony
concerning the conversation overheard while eavesdropping was an appropriate exercise of
the trial court's discretion.
[Headnote 6]
Koza's fourth contention is that the warrantless search of his motel room was not justified
by the emergency doctrine. In Banks v. State, 94 Nev. 90, 575 P.2d 592 (1978), we
explained the ground for making a warrantless search and seizure.
Law enforcement officers may enter private premises without either an arrest or a
search warrant to preserve life or property, . . . provided they have reasonable grounds
to believe that there is an urgent need for such assistance and protective action, or to
promptly launch a criminal investigation involving a substantial threat of imminent
danger to either [sic] life, health, or property, and provided, further, that they do not
enter with an accompanying intent to either arrest or search. If, while on the premises,
they inadvertently discover incriminating evidence in plain view, or as a result of
some activity on their part that bears a material relevance to the initial purpose for
their entry, they may lawfully seize without warrant.
100 Nev. 245, 253 (1984) Koza v. State
inadvertently discover incriminating evidence in plain view, or as a result of some
activity on their part that bears a material relevance to the initial purpose for their entry,
they may lawfully seize without warrant.
Id. at 97, 575 P.2d at 596, quoting E. Mascolo, The Emergency Doctrine exception to the
Warrant Requirement Under the Fourth Amendment, 22 Buff.L.Rev. 419, 426-27 (1973). In
the instant case, the officers were informed that an occupant in room 359 had been party to a
conversation apparently planning an armed robbery and indicating that one of the callers was
willing to kill in order to accomplish the robbery. The officers arrived at the motel thirty to
forty-five minutes after the desk clerk's call, during which time a robbery could have
occurred. Officer Schaub heard the sliding action of an automatic handgun after he knocked
and announced that police wanted to question the occupants. Both Koza and his wife acted
suspiciously and delayed exiting the room. Despite the telephone conversation mentioning a
gun, the sliding action of a gun which the officer heard and the empty holster found clipped to
Koza's belt, no gun was found on Koza or his wife. We agree with the district court's
determination that under those circumstances the officers had reasonable grounds to believe
that another accomplice might still be in the room and that an urgent need existed to preserve
the life of a possible robbery victim or their own lives.
[Headnote 7]
Koza next contends that the district court erred by denying his motion to suppress
admission of the murder weapon, because the warrantless seizure of the partially visible gun
from under the mattress was not justified by the plain view doctrine. The U.S. Supreme
Court's latest pronouncement on the plain view doctrine is set forth in Texas v. Brown, 103
S.Ct. 1535 (1983). The Court in Brown initially listed the three requirements, set forth in
Coolidge v. New Hampshire, 403 U.S. 443 (1971), for a warrantless seizure.
First, the police officer must lawfully make an initial intrusion or otherwise properly
be in a position from which he can view a particular area. Id., at 465-468, 91 S.Ct., at
2037-2039. Second, the officer must discover incriminating evidence inadvertently,
which is to say, he may not know in advance the location of [certain] evidence and
intend to seize it, relying of the plain view doctrine only as a pretext. Id., at 470, 91
S.Ct., at 2040. Finally, it must be immediately apparent to the police that the items
they observe may be evidence of a crime, contraband, or otherwise subject to seizure.
Id., at 466, 91 S.Ct., at 203S.
100 Nev. 245, 254 (1984) Koza v. State
contraband, or otherwise subject to seizure. Id., at 466, 91 S.Ct., at 2038. While the
lower courts generally have applied the Coolidge plurality's discussion of plain view,
it has never been expressly adopted by a majority of this Court.
103 S.Ct. at 1540. The Court then discussed each requirement as it related to the seizure in
Brown of a balloon containing heroin from the front seat of a car. The seizure was upheld.
The first element is apparently satisfied in the instant case. According to our prior analysis,
the officers made a lawful initial intrusion into the hotel room and a justified protective
sweep of the room. During that sweep, and officer saw the chrome object. Moreover, with
regard to this first element, the Court stated that in light of private Fourth Amendment
interests and legitimate governmental interests, our decisions have come to reflect the rule
that if, while lawfully engaged in an activity in a particular place, police officers perceive a
suspicious object, they may seize it immediately. Id. at 1541 (emphasis added).
The second element requires the officers to discover the evidence inadvertently. The
Court explained that the requirement of inadvertence means that the officers may not know in
advance the location of the evidence and intend to seize it, relying on the plain view doctrine
only as a pretext. Here, there is no suggestion that the entry into room 359 was merely a
pretext to seize the gun. As in Brown, the officers in the instant case did not know in advance
of their investigation the location of any incriminating evidence or any particular object they
might seize.
The third element requires that it be immediately apparent to the officers that the object
observed may be evidence of a crime, contraband, or otherwise subject to seizure. The Court
explained that the phrase immediately apparent should not be interpreted too strictly.
Decisions by this Court since Coolidge indicate that the use of the phrase immediately
apparent was very likely an unhappy choice of words, since it can be taken to imply
that an unduly high degree of certainty as to the incriminatory character of evidence is
necessary for an application of the plain view doctrine.
Id. at 1542. The Court then explained that it does not view the immediately apparent'
language of Coolidge as establishing any requirement that a police officer know' that certain
items are contraband or evidence of a crime. Id. The Court concluded by stating that
probable cause to associate the object with criminal activity creates a presumption that the
warrantless seizure of evidence in plain view is reasonable.
100 Nev. 245, 255 (1984) Koza v. State
with criminal activity creates a presumption that the warrantless seizure of evidence in plain
view is reasonable.
[T]he rule, set forth in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d
639 (1980), [is] that [t]he seizure of property in plain view involves no invasion of
privacy and is presumptively reasonable, assuming that there is probable cause to
associate the property with criminal activity. Id., at 587, 100 S.Ct., at 1380 (emphasis
added).
Id. The officer, after noticing the mattress was askew, spotted a piece of chrome metal under
the mattress. Bending down, he could see a larger piece of it. Although he was not positive
that the object was a gun, he testified that the object had the color of chrome of a gun. The
officer was also aware that the occupants of the room may have planned an armed robbery,
that he had heard the sliding action of an automatic handgun, that Koza was wearing an
empty holster and that no gun had been found on Koza or his wife. These facts support the
district court's finding that the officers had probable cause to associate the chrome object with
criminal activity, even without their knowing that it was a gun. This result corresponds with
the High Court's statement that an officer may immediately seize evidence that he perceives
as a suspicious object. All three of the elements of the plain view doctrine are satisfied
here, making lawful the seizure of the gun partially hidden under the mattress. Admission of
the gun at trial, therefore, was not error.
[Headnote 8]
Koza's final contention is that the district court erred by imposing consecutive enhanced
penalties. First, Koza argues that his robbery and murder convictions merge, such that
imposition of separate, additional penalties for his robbery conviction violated the Double
Jeopardy Clause. We have held, however, that robbery and felony murder are two separate
and distinct offenses. Brimmage v. State, 93 Nev. 434, 443, 567 P.2d 54, 59-60 (1977). Each
offense here, moreover, requires proof of an additional fact which the other does not.
Compare NRS 200.010 and 200.380. The U.S. Supreme Court recently clarified its position
with respect to cumulative punishment and the Double Jeopardy Clause in Missouri v.
Hunter, 103 S.Ct. 673 (1983). With respect to cumulative sentences imposed in a single
trial, the Double Jeopardy Clause does no more than prevent the sentencing court from
prescribing greater punishment than the legislature intended. Id. at 678.
Where, as here, a legislature specifically authorizes cumulative punishment under
two statutes, regardless of whether those two statutes proscribe the "same"
conduct . . . , a court's task of statutory construction is at an end and the prosecutor
may seek and the trial court or jury may impose cumulative punishment under such
statutes in a single trial.
100 Nev. 245, 256 (1984) Koza v. State
cumulative punishment under two statutes, regardless of whether those two statutes
proscribe the same conduct . . . , a court's task of statutory construction is at an end
and the prosecutor may seek and the trial court or jury may impose cumulative
punishment under such statutes in a single trial.
Id. at 679. Here, separate and distinct statutes and offenses are involved. We therefore
conclude that Koza's sentencing did not violate the Double Jeopardy Clause.
We have considered Koza's remaining contentions and conclude that they are without
merit. Accordingly, we affirm the convictions of first degree murder and robbery, both with
the use of a deadly weapon, together with the consecutive sentences imposing two life
sentences without the possibility of parole and two fifteen-year terms of imprisonment.
____________
100 Nev. 256, 256 (1984) State v. Connery
THE STATE OF NEVADA, Appellant, v. DANIEL
RAY CONNERY, Respondent.
No. 14280
April 25, 1984 679 P.2d 1266
Appeal from order dismissing information, Eighth Judicial District Court, Clark County;
Thomas J. O'Donnell, Judge.
State appealed from order entered by the district court which dismissed information
charging respondent with robbery with use of deadly weapon on ground that since
respondent's previous trial ended in mistrial, reprosecution of respondent was barred by
former jeopardy. The Supreme Court held that manifest necessity warranted declaration of
previous mistrial, and thus double jeopardy did not bar reprosecution.
Tufteland, Deputy District Attorney, Clark County, for Appellant.
Peter L. Flangas, Las Vegas, for Respondent.
1. Criminal Law.
Retrial is not prohibited by double jeopardy bar if prosecutor demonstrates manifest necessity for
mistrial. U.S.C.A.Const. Amend. 5; Const. Art 1, 8.
2. Criminal Law.
If prosecutor is in some way responsible for unavailability of a critical prosecution witness, then a
manifest necessity for mistrial is not established; however, manifest necessity warranting mistrial may be
found where prosecutor is not responsible for the unavailability of witness.
3. Criminal Law.
Manifest necessity warranted declaration of previous mistrial, where prosecutor was fully prepared to
present his evidence at trial, prosecutor was unaware that critical witness would not appear at trial due to
her attempted suicide until after jeopardy attached, and prosecutor had no reason to anticipate prior to trial
that witness would not appear, and where record did not suggest that prosecutor was in any way responsible
for the unavailability of witness, and thus double jeopardy did not bar reprosecution of respondent.
U.S.C.A.Const. Amend. 5; Const. Art 1, 8.
OPINION
Per Curiam:
This is an appeal from an order dismissing an information charging respondent with
robbery with the use of a deadly weapon. The lower court dismissed the information on the
ground that since respondent's previous trial ended in a mistrial, reprosecution of the
respondent was barred by a former jeopardy. The state contends that manifest necessity
warranted the declaration of the previous mistrial, and therefore, that the lower court erred in
dismissing the information. We agree.
On February 2, 1982, a jury was empanelled to hear the charges against respondent. Once
the jury was empanelled, the court recessed the trial until the next day. On the next day, the
district attorney informed the court that the victim of the crime, a critical prosecution witness,
attempted suicide the night before and was unavailable to testify. The district attorney
requested a continuance and, if a continuance was unavailable, a mistrial. The lower court
refused to grant a continuance, but did grant a mistrial over respondent's objection.
Shortly before respondent was due to be reprosecuted, respondent moved to dismiss the
information on the ground that the previous trial constituted a former jeopardy which barred
his reprosecution. In particular, he asserted that where a witness voluntarily absents herself
from trial by attempting suicide, a manifest necessity for the mistrial does not exist. The
lower court apparently agreed with this argument and ordered the information dismissed. This
appeal followed.
[Headnote 1]
A defendant may not be put in jeopardy twice for the same offense. U.S. Const. amend. V;
Nev. Const. art. I, 8. Where, however, a defendant has been placed in jeopardy in a trial
which is terminated prior to an acquittal or a conviction, retrial is not automatically
barred.
however, a defendant has been placed in jeopardy in a trial which is terminated prior to an
acquittal or a conviction, retrial is not automatically barred. Williamson v. Sheriff, 89 Nev.
507, 515 P.2d 1028 (1973); NRS 174.085(4). Retrial is not prohibited by the double jeopardy
bar if a prosecutor demonstrates manifest necessity for the mistrial. Arizona v. Washington,
434 U.S. 497, 505 (1978).
In the present case, the lower court's dismissal of the information was apparently based on
respondent's argument that manifest necessity for a mistrial is not established where the
witness voluntarily absented herself from trial by an attempted suicide. The holding has no
support in the law.
[Headnote 2]
The courts which have reviewed cases similar to this have focused on the prosecutor's
conduct in preparing his case for trial. If the prosecutor is in some way responsible for the
unavailability of a critical prosecution witness, then a manifest necessity for a mistrial is not
established. See Downum v. United States, 372 U.S. 734 (1963) (prosecutor failed to
subpoena critical witness); McNeal v. Hollowell, 481 F.2d 1145, 1152 (5th Cir. 1973) cert.
denied 415 U.S. 951 (1974) (testimony of witness who asserted fifth amendment privilege not
sufficiently insured by prosecutor).
1
Where, however, the prosecutor is not responsible for
the unavailability of a witness, the courts have not hesitated to uphold a finding that manifest
necessity warranted a mistrial. See Hall v. Potoker, 403 N.E.2d 1210 (N.Y. 1980); State v.
Misten, 554 P.2d 584 (Or.Ct.App. 1976).
[Headnote 3]
In the present case the prosecutor was fully prepared to present his evidence at trial. The
prosecutor was unaware that a critical witness would not appear at trial until after jeopardy
attached, and the prosecutor had no reason to anticipate prior to trial that the witness would
not appear. The record does not suggest that the prosecutor was in any way responsible for
the unavailability of the witness. In sum, the record does not establish that the prosecutor was
engaged in any oppressive practice which the double jeopardy prohibition is designed to
prevent.
The record establishes only that the witness' own conduct was the sole reason for her
failure to appear. The witness' absence would have effectively prevented the state from
presenting its case. There was consequently a manifest necessity for the mistrial. See Arizona
v. Washington, supra.
We therefore conclude that the mistrial was properly granted in the first instance, and that
the lower court erred in later determining that the actions of the witness negated the
manifest necessity for the mistrial.
determining that the actions of the witness negated the manifest necessity for the mistrial.
Accordingly, we reverse the order of the district court dismissing the information, and we
remand this case for trial.
2

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

1
Respondent has asserted for the first time on appeal that the record does not reflect that the witness was
subpoenaed for trial and that this establishes the prosecutor's responsibility for the unavailability of the witness.
Respondent conceded in the court below, however, that the witness was subpoenaed for trial.

2
Chief Justice Noel E. Manoukian is disqualified in this case. Justice John C. Mowbray voluntarily recused
himself.
____________
100 Nev. 259, 259 (1984) Groesbeck v. Warden
ROBERT JAMES GROESBECK, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 14393
April 25, 1984 679 P.2d 1268
Appeal from denial of a habeas corpus petition; First Judicial District Court, Carson City;
Michael E. Fondi, Judge.
On appeal from denial of habeas corpus petition by the district court the Supreme Court
held that 23-year delay in seeking habeas corpus relief from first degree murder conviction
was unreasonable and prejudicial, warranting denial of relief.
Affirmed.
[Rehearing denied January 4, 1985]
Thomas E. Perkins, State Public Defender, Norman Y. Herring, Special Deputy, Carson
City, for Appellant.
Brian McKay, Attorney General, Thomas Wright, Deputy Attorney General, Carson City,
for Respondent.
Habeas Corpus.
Twenty-three year delay in pursuing habeas corpus relief from first degree murder conviction was
unreasonable and prejudicial, warranting denial of the relief.
OPINION
Per Curiam:
Some twenty-three years ago Robert James Groesbeck was convicted of first degree
murder. He now seeks release on the ground that two jury instructions given at his trial
were constitutionally impermissible.
ground that two jury instructions given at his trial were constitutionally impermissible.
Groesbeck's petition for habeas corpus relief was filed in the district court on February 24,
1982. The petition was dismissed on the grounds that the instructions were harmless by
reason of the overwhelming evidence of guilt against Groesbeck and because the long delay
in seeking relief was unreasonable and prejudicial to the state's ability to respond. We affirm
the ruling of the district court.
In reviewing the petition, we must consider whether there are time limitations on the right
of a convicted felon to challenge by habeas corpus a criminal conviction. The present petition
for post-conviction relief constitutes the third time in twenty-one years that Robert James
Groesbeck has sought to challenge his conviction through the use of habeas corpus. Despite
the failure of previous attempts Groesbeck once again calls upon the courts to rule upon the
legality of his conviction.
The difficulties relating to habeas corpus petitions that are filed many years after
conviction have become of increasing concern to the courts within the past several years. The
lengthy passage of time between conviction and a subsequent challenge is a factor which by
itself unduly works to the advantage of a felon belatedly seeking relief from conviction.
Memories of the crime may diminish and become attenuated. The facts and circumstances of
the offense may be impossible to reconstruct. Moreover, as in this case, the frustration of
attempting to review the events of a trial which has taken place years and even decades before
is compounded when a record of the trial is not preserved,
1
making it virtually impossible to
discern what statements were made by the witnesses or objections that were made by counsel.
Petitions for habeas corpus filed many years after a conviction result in inherent difficulties
which are not present in similar petitions which are timely filed. As Justice O'Connor noted in
Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558 (1982):
Collateral review of a conviction extends the ordeal of trial for both society and the
accused. As Justice Harlan once observed, [b]oth the individual and criminal
defendant and society have an interest in insuring that there will at some point be the
certainty that comes with an end to litigation, and that attention will ultimately be
focused not on whether a conviction was free from error but rather on whether the
prisoner can be restored to a useful place in the community."
____________________

1
Because Groesbeck did not appeal his 1961 conviction, the transcript of the trial was not prepared. The
court reporter's death in 1973 precluded the possibility of having the notes transcribed.
the community. [citing Sanders v. United States, 373 U.S. 1, 24-25 (1962)]. By
frustrating these interests, the writ undermines the usual principles of finality of
litigation.
. . . .
We must acknowledge that writs of habeas corpus frequently cost society the right to
punish admitted offenders. Passage of time, erosion of memory, and dispersion of
witnesses may render retrial difficult, even impossible. While a habeas corpus writ
may, in theory, entitle the defendant only to retrial, in practice it may reward the
accused with complete freedom from prosecution.
102 S.Ct. at 1571 (citations omitted).
We agree with the sentiments of Justice O'Connor. Habeas corpus petitions that are filed
many years after conviction are an unreasonable burden on the criminal justice system. The
necessity for a workable system dictates that there must exist a time when a criminal
conviction is final. That time has passed in this case.
Under the specific facts of this case there has been an unreasonable and prejudicial delay
in pursuing habeas corpus relief; we therefore affirm.
____________
100 Nev. 261, 261 (1984) Automobile Leasing & Rental v. Thomas
AUTOMOBILE LEASING & RENTAL, INC., dba AMERICAR RENTAL SYSTEMS,
Appellant, v. VIRGINIA THOMAS, Respondent.
No. 14474
April 25, 1984 679 P.2d 1269
Appeal from an order granting summary judgment and awarding attorney's fees; Eighth
Judicial District Court, Clark County; J. Charles Thompson, Judge.
Automobile lessor brought action against lessee to recover for damage caused to rental
vehicle by lessee's negligence. The district court entered summary judgment in favor of
lessee, and lessor appealed. The Supreme Court held that collision damage waiver provision
purchased by automobile lessee, by which lessor would waive all liability claims against
lessee provided that car was used in conformity with the rental agreement, effectively
waived any claims by lessor against lessee for collision damage, including damage caused by
negligence of lessee.
Affirmed.
Carelli & Miller, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy & Jemison, and B. Alan McKissick, Las Vegas, for
Respondent.
Automobiles.
Collision damage waiver provision purchased by automobile lessee, by which lessor would waive all
liability claims against lessee provided that car was used in conformity with the rental agreement,
effectively waived any claims by lessor against lessee for collision damage, including damage caused by
negligence of lessee.
OPINION
Per Curiam:
This is an appeal from a summary judgment in favor of a car rental customer against the
rental agency. The controversy turns on a reading of the rental contract as it relates to liability
for damage to the rented car resulting from a collision.
Appellant, Americar Rental Systems, claims that Thomas is responsible under the contract
for damage caused to the rental vehicle by her negligence. Thomas claims that as a matter of
law the contract relieves her of any liability for damage to the vehicle.
In August of 1981, Virginia Thomas traveled to Las Vegas, Nevada on vacation from
Hattesburg, [Hattiesburg] Mississippi. While in Las Vegas Thomas rented a Ford LTD
automobile from Americar. The lease agreement that Thomas signed provided the renter with
the option of purchasing a collision damage waiver provision by which the lessor would
waive all liability claims against the renter provided that the car was used in conformity with
[the] rental agreement. Thomas purchased this option and was subsequently involved in an
accident when her car was struck from behind while making a left turn. Thomas was cited for
making a turn from an improper position.
Americar's main argument is that the waiver of claims for collision is not operative
because Thomas did not use it in conformity with rental agreement. On the reverse side of
the lease the agreement provides that the vehicle must be returned in the same condition as
when received and that it should not be used in an unlawful manner. Since the damaged
vehicle was obviously not returned in its original condition and since Thomas was cited for
violating a turn ordinance, Americar contends that Thomas' rental use was not in conformity
with the agreement, thereby nullifying the collision damage waiver. We find these
contentions to be strained and rule that the district court was correct in deciding as a matter of
law that Thomas was entitled to the benefits of the waiver.
Americar's position is that the unlawful manner language should be read to mean that a
renter is responsible for negligently caused damage to the vehicle and that the waiver
provision does not apply under such circumstances. Under this narrow interpretation, waiver
of damage claims by Americar would be in effect only when damage was caused by the fault
of one other than the renter.
To argue that the collision damage waiver is null when the vehicle is operated negligently
is to read a very material limitation into the waiver agreement which is neither apparent from
the face of the agreement nor from a simple reading of the reverse side. The renter is never
informed in clear unambiguous language that, as claimed by Americar, he or she is absolutely
liable for any damage to the vehicle or that the waiver option only provides protection when
the harm is caused by another.
Contrary to Americar's argument, an ordinary reader of the waiver provision would be
misled into believing that collision damage was indeed waived in virtually all cases, including
cases involving the renter's negligent operation of the vehicle. See Elliott Leases Cars, Inc. v.
Quigley, 373 A.2d 810, 812 (R.I. 1977): The test to be applied is not what the insurer
intended by his words, but what the ordinary reader and purchaser would have understood
them to mean.
Although Quigley concerned collision insurance and not a collision waiver claim, the
following language is apropos:
The ordinary reader would not assume that an unqualified promise of this nature
only covered accidents not caused by the negligence of the operator of the automobile.
Indeed just the opposite is true. Collision insurance is generally understood to cover
whatever accidents occur, regardless of the negligence of the operator. An exclusion
which limits coverage to non-negligent accidents significantly reduces the scope of
insurance. Not only does it reduce the total number of accidents covered, but it
eliminates coverage in precisely those cases in which it is most neededthat is, where
there may be no negligent tortfeasor from whom the insured may recover.
373 A.2d at 812.
The collision damage waiver clause effectively waives any claims by Americar against
Thomas for collision damageall collision damage; therefore, the district court's summary
judgment was proper and is affirmed.
____________
100 Nev. 264, 264 (1984) Parker v. State
VICTOR REGINALD PARKER, Appellant, v. THE
No. 14514
April 25, 1984 679 P.2d 1271
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County;
Addeliar D. Guy, Judge.
Defendant was convicted in the district court of six counts of extortion and one count of
coercion with use of a deadly weapon. Defendant appealed. The Supreme Court held that the
district court erred by ordering withdrawal of guilty pleas to two counts of extortion, over
defendant's express opposition to motion to withdraw, and requiring defendant to stand trial
on original indictment.
Reversed and remanded, with instructions.
Morgan D. Harris, Public Defender, and Robert D. Larsen, Deputy Public Defender,
1. Criminal Law.
Entry of plea of guilty must be accompanied by affirmative showings, on the record, of accused's
personal waiver of constitutional rights and personal understanding of nature of the offense and
consequences of the plea; representations by defense counsel do not suffice.
2. Criminal Law.
Like the decision to enter plea of guilty, decision to seek withdrawal of the plea and proceed to trial is
personal to the accused.
3. Criminal Law.
Decision of how to plead in criminal case is fundamental one reserved ultimately to the defendant alone.
4. Criminal Law.
District court may not order guilty plea withdrawn without affirmative indication, by affidavit or in open
court, that the accused, not just his or her attorney, personally desires withdrawal.
5. Criminal Law.
District court erred by ordering withdrawal of defendant's guilty pleas to two extortion counts, over
defendant's express opposition to motion to withdraw, and requiring defendant to stand trial on original
indictment, leading to conviction on six extortion counts and one count of coercion with use of a deadly
weapon.
OPINION
Per Curiam:
Appellant was charged by indictment with seven counts of extortion and one count of
coercion with use of a deadly weapon.
extortion and one count of coercion with use of a deadly weapon. Pursuant to a plea bargain,
he entered guilty pleas to two counts of extortion in exchange for dismissal of the remaining
charges. The maximum sentence appellant faced on the two extortion counts was twenty
years.
Prior to sentencing, appellant's trial attorney filed motions to withdraw as counsel and to
withdraw the guilty pleas.
1
Judge Joseph S. Pavlikowski granted both motions and ordered
the guilty pleas withdrawn and the original indictment reinstated in full, notwithstanding
appellant's express indication that he did not wish to withdraw his pleas. Judge Pavlikowski
subsequently denied a motion for reconsideration filed by substitute counsel, which clarified
appellant's position that despite the motions his prior attorney filed, he did not want his guilty
pleas withdrawn. Appellant then proceeded to trial on all charges. He was convicted of six of
the extortion counts and the coercion charge, and sentenced to sixty-one years in prison.
[Headnote 1]
Appellant now contends that the district court erred by ordering the withdrawal of the
guilty pleas over appellant's express opposition to the motion to withdraw. We agree.
Entry of a guilty plea is a solemn process. We have repeatedly emphasized, as has the
United States Supreme Court, that the decision to enter a plea of guilty is personal to the
accused, not his or her attorney. See e.g., Henderson v. Morgan, 426 U.S. 637, 647 (1976)
(concurring opinion of White, Stewart, Blackmun and Powell, JJ.); Hanley v. State, 97 Nev.
130, 624 P.2d 1387 (1981); see also Croft v. State, 99 Nev. 502, 665 P.2d 248 (1983). The
entry of a plea of guilty must be accompanied by affirmative showings, on the record, of the
accused's personal waiver of constitutional rights and personal understanding of the nature of
the offense and the consequences of the plea; representations by defense counsel do not
suffice. See Croft v. State, supra; Hanley v. State, supra.
[Headnotes 2-4]
Like the decision to enter a plea of guilty, the decision to seek withdrawal of the plea and
proceed to trial is personal to the accused. The decision of how to plead in a criminal case is a
fundamental one reserved ultimately to the defendant alone. Given the requirement of the
defendant's personal involvement in the entry of a guilty plea, it would be unsound policy to
permit withdrawal of a guilty plea without an affirmative indication that the defendant
personally wishes the plea withdrawn. We therefore conclude that a district court may not
order a guilty plea withdrawn without an affirmative indication, by affidavit or in open
court, that the accused, not just his or her attorney, personally desires withdrawal.2
____________________

1
Appellant is represented by different counsel on appeal.
order a guilty plea withdrawn without an affirmative indication, by affidavit or in open court,
that the accused, not just his or her attorney, personally desires withdrawal.
2

[Headnote 5]
In this case, no such indication was presented to the district court. Indeed, appellant
indicated his opposition to withdrawal of the pleas on at least two occasions. Moreover, the
motion to withdraw the pleas was not supported by an affidavit of appellant expressing his
personal desires. Since a district court cannot order a guilty plea withdrawn solely on the
representations of counsel, we conclude that the district court erred by withdrawing the
solemn pleas of guilty and requiring appellant to stand trial on the original indictment;
appellant was entitled to the benefits of his plea bargain and the maximum twenty-year
sentence that it entailed.
3

Accordingly, we hereby reverse the judgment of conviction and remand this case to the
district court, with instructions to reinstate the guilty pleas and sentence appellant in
conformity with the original plea bargain. Sentencing should be conducted before a district
judge who has not previously been involved with this case.
4

____________________

2
It is arguable that the district court should also conduct a brief canvass of the accused to determine whether
he or she understands the consequences of withdrawal of a guilty plea, i.e., reinstatement of the original charges
and trial and sentence thereon. We need not address this issue in this appeal, but it would appear that a canvass
may be advisable in most cases.

3
Respondent argues that appellant has waived appellate review of this issue by failing to seek a pretrial
extraordinary writ. This argument is meritless. In Sturrock v. State, 95 Nev. 938, 604 P.2d 341 (1979), on which
respondent relies, the waiver doctrine was not adopted by a majority of the court.

4
In light of our disposition of this matter, we need not address appellant's remaining contention.
____________
100 Nev. 267, 267 (1984) State Indus. Ins. System v. Sleeper
STATE INDUSTRIAL INSURANCE SYSTEM, Appellant,
v. EDWARD H. SLEEPER, Respondent.
No. 14675
April 25, 1984 679 P.2d 1273
Appeals from judgment, Joseph J. Pavlikowski, Judge; and order denying motion to vacate
void orders, James A. Brennan, Judge; Eighth Judicial District Court, Clark County.
State Industrial Insurance System appealed from judgment of the district court which
denied motion to vacate order of contempt. The Supreme Court, held that: (1) District Court
did not have subject matter jurisdiction over claimant's allegations regarding handling of his
claims where claimant had not instituted administrative appeal of any of the agency's
decisions, and (2) State Industrial Insurance System could not be held in contempt of void
order issued by court without subject matter jurisdiction.
Reversed.
Darla R. Anderson, Associate General Counsel, State Industrial Insurance System, Las
Vegas, for Appellant.
Robert K. Dorsey, Las Vegas, for Respondent.
1. Judgment.
Lack of subject matter jurisdiction renders a judgment void.
2. Contempt.
One may not be held in contempt of a void order.
District court was without subject matter jurisdiction to hear claimant's allegations regarding handling of
his claim by the State Industrial Insurance System where the claimant had not instituted an administrative
appeal of any of the agency's decisions.
4. Contempt.
Court order which did not spell out the details of compliance in clear, specific, and unambiguous terms
could not form basis for subsequent contempt order.
OPINION
Per Curiam:
The State Industrial Insurance System (SIIS) appeals a judgment finding the administrative
agency in contempt and awarding respondent damages, attorney's fees, and continued
compensation.
THE FACTS
In 1975 respondent Edward H. Sleeper injured his back while working as a stock clerk. He
applied for and received benefits from appellant SIIS until July 10, 1978, when an SIIS
claims examiner closed his claim, granting him a permanent partial disability rating. Sleeper
appealed this award to an appeals officer, and eventually sought review in the district court.
On October 21, 1981, the district court reversed and remanded to the SIIS for reopening of
the claim and further proceedings.
Thereafter, Sleeper submitted various requests for treatment and payment of medical bills
to the SIIS. When a request for treatment at a particular hospital in North Carolina was
denied, respondent did not appeal, but instead filed an application in the district court for an
order to show cause why the SIIS was not complying with the court's October 21 order. On
March 30, 1982, after a hearing on the matter, the district court issued an order requiring the
SIIS to arrange admission to the North Carolina hospital, and to pay costs for medical
services upon submission of valid receipts. Such admission was arranged, the medical bills
for the treatment of respondent there were paid by SIIS.
In July, 1982, respondent was informed by SIIS that he qualified for one year of back
compensation, rather than the three and one half years he had requested. Respondent accepted
a check for this amount from SIIS and did not appeal. On November 5, 1982, respondent's
compensation benefits were terminated for his failure to comply with certain
recommendations of the North Carolina hospital. He was duly informed of his rights of
administrative appeal, but did not do so. Instead, on December 6, 1982, respondent again
filed a request for an order to show cause in district court, alleging violation of the court's
orders of October 20, 1981 and March 30, 1982. At the hearing, respondent submitted various
uncompensated medical bills, as well as an affidavit with his calculation of the back
compensation allegedly due him from 1975.
On January 3, 1983, the district court adjudged the SIIS in contempt of court for failure to
hold further proceedings . . . and for failure to pay Petitioner workmen's compensation and
medical benefits. The court further granted respondent damages in the amount of $29,109.50
with prejudgment interest, attorney's fees, and continued workmen's compensation and
medical benefits until modified or terminated in accordance with law.
The SIIS's motion to vacate this order, as in excess of the court's jurisdiction, was denied.
court's jurisdiction, was denied. The SIIS has appealed the judgment and the denial of its
motion to vacate.
DISCUSSION
The SIIS contends that the district court's order adjudging the agency to be in contempt
was void, or in excess of its jurisdiction, because the underlying orders upon which it was
based were either void, or too vague and ambiguous for enforcement by an order of contempt.
We agree.
[Headnotes 1, 2]
The contempt order cannot be based upon the district court's order of March 30, 1982,
since it was without subject matter jurisdiction to enter that order. There can be no dispute
that lack of subject matter jurisdiction renders a judgment void. See, e.g., Lauer et al. v.
District Court, 62 Nev. 78, 140 P.2d 953 (1943); Daniels v. Daniels, 12 Nev. 118 (1877). It is
equally clear that [o]ne may not be held in contempt of a void order. Daines v. Markoff, 92
Nev. 582, 587, 555 P.2d 490, 493 (1976). See also Culinary Workers v. Court, 66 Nev. 166,
207 P.2d 990 (1949); Cline v. Langan, 31 Nev. 239, 101 P. 553 (1909); Ex Parte Gardner, 22
Nev. 280, 39 P. 570 (1895).
[Headnote 3]
In this case, the district court purported to assume jurisdiction to hear respondent's
allegations regarding the handling of his claims by the SIIS despite respondent's failure to
institute an administrative appeal of any of the agency's decisions as required by the Nevada
Industrial Insurance Act. As we noted in Nevada Industrial Commission v. Reese, 93 Nev.
115, 127, 560 P.2d 1352, 1359 (1977), a 1973 amendment to the Act abolished the old
procedure of filing an independent suit against the [SIIS] if a claimant was dissatisfied with
the [SIIS's] award of compensation, by providing instead for judicial review of the
administrative decision of an appeals officer. Specifically, NRS 616.543 provides that (1)
No judicial proceedings may be instituted for compensation for an injury or death under [the
NIIA] unless . . . (b) [a] final decision of an appeals officer has been rendered on such claim,
and that (2) Judicial proceedings instituted for compensation for an injury or death, under
[the NIIA] are limited to judicial review of the decision of an appeals officer.
Courts of other jurisdictions have held that in the face of a failure by a claimant to pursue
administrative remedies set forth in workmen's compensation statutes, district courts are
without jurisdiction to hear such matters. E.g., Wallace v. Indus.
Indus. Comm'n, 629 P.2d 1091 (Colo.App. 1981); Epling v. Ratliff, 364 S.W.2d 327
(Ky.App. 1963). See 3 A. Larson, The Law of Workmen's Compensation, section 80.12(a), at
15-426.342 (Rev.ed. 1983).
In this case the respondent, upon each adverse ruling by the SIIS upon his claims, had been
duly notified of his right to appeal according to the procedures set forth in the NIIA, as he had
originally done. Rather than pursue such remedies, however, respondent simply returned
directly to the district court. Respondent has cited no authority for the proposition that once a
district court has entered an order in a workmen's compensation case, the claimant is
thereafter entitled to circumvent the requirements of the Act.
We find that the district court was therefore without jurisdiction to consider the merits of
respondent's claims, either in its order of March 30, 1982, or in its judgment of January 3,
1983, in the absence of a final decision by an administrative appeals officer in these matters,
as required by the NIIA.
[Headnote 4]
Furthermore, the court's original order of October 20, 1981, though properly predicated
upon review of a decision by an appeals officer, could not properly form the basis for a
subsequent contempt order because it failed to [spell] out the details of compliance in clear,
specific and unambiguous terms so that [the person whose compliance is required] will
readily know exactly what duties or obligations are imposed upon him.' Southwest Gas
Corp. v. Flintkote Co., 99 Nev. 127, 131, 659 P.2d 861, 864 (1983).
The judgment of the district court must therefore be reversed.
____________
100 Nev. 270, 270 (1984) Sheriff v. LaMotte
SHERIFF, DOUGLAS COUNTY, NEVADA, Appellant,
v. DANIEL FRANCIS LaMOTTE, Respondent.
No. 15102
May 2, 1984 680 P.2d 333
Appeal from order granting writ of habeas corpus. Ninth Judicial District Court, Douglas
County; Howard D. McKibben, Judge.
Sheriff appealed from an order of the district court granting writ of habeas corpus. The
Supreme Court, held that: (1) showing that defendant drove erratically before fatal
automobile accident was insufficient to demonstrate abandoned and malignant heart
necessary to imply malice within purview of second degree murder statute, and {2)
liability for second degree murder would not be extended to all deaths resulting from
drunk driving as that would constitute an impermissible judicial excursion into the
Legislature's domain.
accident was insufficient to demonstrate abandoned and malignant heart necessary to imply
malice within purview of second degree murder statute, and (2) liability for second degree
murder would not be extended to all deaths resulting from drunk driving as that would
constitute an impermissible judicial excursion into the Legislature's domain.
Affirmed.
Brent T. Kolvet, Douglas County District Attorney, Minden, for Appellant.
Thomas E. Perkins, State Public Defender, Carson City, for Respondent.
1. Automobiles.
Showing that defendant drove erratically before fatal automobile accident was insufficient to demonstrate
abandoned and malignant heart necessary to imply malice within purview of second degree murder statute.
NRS 200.020, subd. 2.
2. Habeas Corpus.
Absent a showing of substantial error on part of district court in granting writ of habeas corpus based on
insufficient evidence, Supreme Court will not overturn lower court's determination.
3. Automobiles; Constitutional Law.
Definition of criminal conduct and setting punishments therefor is traditionally a legislative function;
thus, extension of liability for second degree murder to all deaths resulting from drunk driving by ruling
that drunk driving is inherently dangerous and naturally tends to destroy human life would constitute an
impermissible judicial excursion into the Legislature's domain.
OPINION
Per Curiam:
This appeal concerns a collision between automobiles driven by respondent Daniel
LaMotte and Brian Jones which occurred on the afternoon of May 28, 1983, on Highway 395
in Douglas County. As a result of the collision, Mr. Jones and his young son lost their lives.
Additionally, Mrs. Jones suffered substantial bodily injury. LaMotte's blood alcohol content
at the time of the accident was allegedly between .21 and .22 percent.
LaMotte was charged by Information with two counts of second degree murder, see NRS
200.010, 200.030, 200.070, two counts of involuntary manslaughter, see NRS 200.070, and
three counts of driving under the influence when death or substantial bodily harm results. See
NRS 484.3795. Following a preliminary hearing in justices' court, LaMotte filed a petition for
writ of habeas corpus in the district court which challenged both counts of second degree
murder.
for writ of habeas corpus in the district court which challenged both counts of second degree
murder. The district court held that there was insufficient evidence to support the requisite
element of implied malice to the second degree murder charges and granted the writ. The
Sheriff has appealed this order.
[Headnote 1]
The Sheriff presented two theories in support of the murder charges. First, the Sheriff
argued that in this case LaMotte's erratic driving before the fatal accident demonstrated a
sufficiently abandoned and malignant heart to imply malice. Second, the Sheriff contended
that under the reasoning of Sheriff v. Morris, 99 Nev. 109, 659 P.2d 852 (1983), the second
degree murder charges were proper because drunk driving is unlawful conduct, inherently
dangerous in the abstract, which naturally tends to destroy a human life and which
immediately and directly caused the victims' deaths.
[Headnote 2]
Absent a showing of substantial error on the part of the district court in granting a writ of
habeas corpus based on insufficient evidence, this court will not overturn the lower court's
determination. Sheriff v. Provenza, 97 Nev. 346, 347, 630 P.2d 265, 265 (1981). NRS
200.020(2) provides that [m]alice shall be implied when no considerable provocation
appears, or when all the circumstances of the killing show an abandoned or malignant heart.
Our review of the record indicates that the lower court did not commit substantial error in
finding that insufficient evidence existed to imply malice in this case.
[Headnote 3]
The Sheriff's second contention invites this court to extend liability for second degree
murder to all deaths resulting from drunk driving by ruling that drunk driving per se is
inherently dangerous and naturally tends to destroy human life. In Morris, however, we left
such a determination to the Legislature. See Morris, at 119, 659 P.2d at 859.
A similar result is even more compelling in the present case. Since its addition to the
Nevada Revised Statutes in 1973, the Nevada Legislature has made various amendments to
NRS 484.3795. See 1983 Nev. Stats. c. 426 12 at 1073; 1981 Nev. Stats. c. 755 6 at 1926;
1979 Nev. Stats. c. 655 200 at 1484; 1973 Nev. Stats. c. 356 at 447. Definition of criminal
conduct and setting punishments therefor is traditionally a legislative function. See generally
State v. Pike, 650 P.2d 480, 483 (Ariz. 1982); People v. Aragon, 653 P.2d 715, 719 (Colo.
1982); Nev. Const. Art. 4 1. Here, the Nevada Legislature has set the punishment for
killing or seriously injuring another while driving a vehicle under the influence of
intoxicants at imprisonment for not less than one year nor more than six years and
imposition of a fine of not less than $2,000 nor more than $5,000.
punishment for killing or seriously injuring another while driving a vehicle under the
influence of intoxicants at imprisonment for not less than one year nor more than six years
and imposition of a fine of not less than $2,000 nor more than $5,000. NRS 484.3795 (1982).
Expansion of the range of punishments for those drunk drivers who kill fellow motorists or
bystanders would constitute an impermissible judicial excursion into the Legislature's
domain.
Accordingly, we affirm the lower court's order granting the writ of habeas corpus as to the
counts of second degree murder.
Springer, Mowbray, Steffen, and Gunderson, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case by the Acting Chief
Justice, Charles E. Springer. Chief Justice Noel E. Manoukian voluntarily disqualified himself. Nev. Const., art.
6, 19, SCR 10.
____________
100 Nev. 273, 273 (1984) In re Kenick
In the Matter of JEANNETTE KENICK, an Attorney.
No. 14225
May 10, 1984 680 P.2d 972
Review of disciplinary recommendations of the State Bar of Nevada, Northern Nevada
Disciplinary Board.
Disciplinary proceeding was brought. The Supreme Court held that felony conviction for
aiding prisoner to escape warrants disbarment.
Discipline warranted; penalty modified.
Clark J. Guild, Jr., Chairman, Northern Nevada Disciplinary Board, and Michael Barr,
Bar Counsel, Reno, for State Bar of Nevada.
William J. Crowell, Jr., and John W. Aebi, Carson City, for Jeannette Kenick.
Disciplinary Board's recommendation is not final and binding upon Supreme Court, even though attorney
has consented in writing to Board's decision. SCR 105, subd. 3(b).
Supreme Court rule providing automatic appeal of suspension or disbarment recommended by
disciplinary board unless agreed to in writing cannot be construed to limit Supreme Court's
inherent power to suspend or disbar attorney.
100 Nev. 273, 274 (1984) In re Kenick
writing cannot be construed to limit Supreme Court's inherent power to suspend or disbar attorney. SCR
39, 99, subd. 1, 105, subd. 3(b).
Supreme Court rule subjecting conditional plea exchanged for stated discipline to final approval of court
where such discipline involves disbarment or suspension authorized review where conditional plea of guilty
to charge was never expressly rejected by disciplinary board and board imposed two-year suspension
requested in conditional plea. SCR 113, subd. 1.
Even in absence of petition to review bar disciplinary proceeding, any order of suspension or disbarment
may only be made by Supreme Court.
Although recommendations of disciplinary board are persuasive, Supreme Court must examine record
anew and exercise its independent judgment.
Felony conviction for assisting prisoner to escape warrants disbarment.
OPINION
Per Curiam:
This matter is before us on review of a decision by the hearing panel of the State Bar of
Nevada, Northern Nevada Disciplinary Board, recommending that Jeannette Kenick be
suspended from the practice of law for two years and that she be publicly reprimanded.
On November 23, 1982, attorney Jeannette Kenick was convicted of aiding a prisoner to
escape, a felony under NRS 212.100. Shortly thereafter, this court issued an order temporarily
suspending Kenick from the practice of law in Nevada due to this felony conviction and
referring Kenick's case to the Northern Nevada Disciplinary Board for a determination of the
discipline to be imposed. See SCR 111(4). A formal hearing was subsequently conducted by
the Disciplinary Board on February 7, 1983, at which Kenick tendered a conditional plea of
guilty to the charge that, while she was an attorney licensed to practice law in this state, she
assisted a prisoner in his escape from the Douglas County Jail. At this hearing, the
Disciplinary Board informed Kenick that it was neither accepting nor rejecting her
conditional plea at that time, and that it would continue the matter for an additional hearing to
allow further evidence to be presented. A hearing was thereafter conducted on April 29, 1983,
after which the Disciplinary Board found Kenick guilty of the above charge. The Disciplinary
Board recommended that Kenick be suspended from the practice of law for a period of two
years commencing April 29, 19S3, that she be publicly reprimanded, and that based upon
her financial circumstances the cost of the proceedings not be assessed against her.
100 Nev. 273, 275 (1984) In re Kenick
a period of two years commencing April 29, 1983, that she be publicly reprimanded, and that
based upon her financial circumstances the cost of the proceedings not be assessed against
her. Kenick does not contest the recommendations of the Disciplinary Board.
[Headnotes 1-5]
On February 7, 1984, this court ordered Kenick to file points and authorities addressing
the question of whether we should reject the Board's recommended form of discipline and
impose a more severe discipline. In response to our order Kenick contends that the Board's
recommendation is final and binding upon this court pursuant to SCR 105(3)(b), since she
has consented in writing to the Board's decision.
1
We disagree and conclude that SCR
113(1) specifically authorizes our review of this matter.
2
In particular, we note that Kenick
tendered a conditional plea to the Disciplinary Board, the Board never expressly rejected the
conditional plea and, after conducting a hearing, the Board ultimately imposed the two-year
suspension that Kenick requested in her conditional plea. In any event, SCR 105(3)(b) cannot
be construed to limit this court's inherent power to suspend or disbar an attorney. See SCR 39
and 99(1); see also In re Watson, 71 Nev. 227, 286 P.2d 254 (1955); cf. In re Mackay, 416
P.2d 823 (Alaska 1964) (state statute purporting to impose a mandatory duty upon the court
to approve and adopt the recommendations of the disciplinary committee found
unconstitutional as an invasion of the court's inherent power to discipline and disbar members
of the Bar). Indeed, even in the absence of a petition to review a bar proceeding, any order of
suspension or disbarment may only be made by this court. See Van Heukelom v. State Board,
67 Nev. 649, 656, 224 P.2d 313, 316-17 (1950); In re Scott, 53 Nev. 24, 38, 292 P. 291, 295
(1930). Moreover, in reviewing cases of this nature, this court has previously held that it is
not bound by the findings and recommendations of the Disciplinary Board.
____________________

1
SCR 105(3)(b) provides in pertinent part:
Automatic appeal of suspension or disbarment. A decision recommending suspension or disbarment,
unless agreed to in writing by the respondent, shall be appealed to the supreme court. . . .

2
SCR 113(1) provides:
Conditional plea. An attorney against whom a complaint has been made may tender a conditional
guilty plea to the charge in exchange for a stated form of discipline. The tendered plea shall be submitted
to bar counsel and approved or rejected by a hearing panel if the matter has already been assigned for
hearing, or three members of a disciplinary board, appointed by the chairman, if the matter has not been
assigned; subject, however, to final approval or rejection by the court if the stated form of punishment
includes disbarment or suspension.
100 Nev. 273, 276 (1984) In re Kenick
nature, this court has previously held that it is not bound by the findings and
recommendations of the Disciplinary Board. In re Miller, 87 Nev. 65, 482 P.2d 326 (1971);
SCR 113(1). Although the recommendations of the Disciplinary Board are persuasive, this
court must examine the record anew and exercise its independent judgment. In re Francovich,
94 Nev. 104, 575 P.2d 931 (1978); In re Miller, supra. We agree with the following statement
of the Supreme Court of Washington:
This court gives serious consideration to the recommendations for disciplinary
action recommended to it by the disciplinary board. The court, however, is not bound
by these recommendations. It has ultimate responsibility for determining the measure
of discipline. [Citation omitted.]
Matter of Nelson, 549 P.2d 21, 23 (Wash. 1976). Cf. Martin v. State Bar, 575 P.2d 757 (Cal.
1978) (court imposed a more lengthy suspension than that recommended by disciplinary
board); Fitzpatrick v. State Bar of California, 569 P.2d 763 (Cal. 1977) (court rejected as too
lenient the disciplinary board's recommendation of suspension, and disbarred attorney for his
misconduct).
[Headnote 6]
We have reviewed the record in this matter and have concluded that Kenick's participation
in the above felony justifies consequences more severe than the suspension recommended by
the Disciplinary Board. See, e.g., In re Hett, 423 P.2d 629 (Wash. 1967) (attorney's felony
conviction for aiding and abetting an individual in his flight to avoid criminal prosecution
justified disbarment where attorney participated in the falsification of a passport, and
participated in the formation of a fictitious corporation for unlawful purposes to meet the
entry requirements of a foreign country). Kenick's conduct in assisting a prisoner to escape
was an utterly reprehensible betrayal of the public trust, and evidenced moral turpitude. Her
behavior was particularly egregious in light of her position as a deputy district attorney at the
time of the offense. We recognize the harshness of imposing the penalty of disbarment upon
an attorney, and we have considered the factors recited by the Disciplinary Board as
mitigating the seriousness of the offense. Nevertheless, [t]he time comes when compassion
for an attorney can only be counted as insensitivity to the public. In re Francovich, 94 Nev.
at 108, 575 P.2d at 933 (Gunderson, J., dissenting).
We have determined that the serious breach of professional ethics in this case warrants
severe discipline.
100 Nev. 273, 277 (1984) In re Kenick
ethics in this case warrants severe discipline. Accordingly, we order that Jeannette Kenick be,
and hereby is, disbarred from the practice of law in the State of Nevada.
3

____________________

3
Cause appearing, we approve the Disciplinary Board's recommendation that the costs of the disciplinary
proceedings not be assessed against Kenick.
____________
100 Nev. 277, 277 (1984) Ransey v. State
ANTHONY TONY RANSEY, Appellant, v. THE
No. 13352
May 10, 1984 680 P.2d 596
Appeal from judgment of conviction of multiple felony offenses, Eighth Judicial District
Court, Clark County; Stephen L. Huffaker, Judge.
Defendant was convicted before the district court of several felony offenses arising from
his armed abduction of two victims, and he appealed. The Supreme Court held that: (1)
victim's alleged bias against the black race or its members was relevant, and thus district
court's complete preclusion of any cross-examination of the victim on the racial bias issue
constituted a denial of defendant's right of confrontation, but (2) trial court's error in
precluding any cross-examination of victim as to whether she harbored any bias against the
black race or its members was harmless, in view of the overwhelming evidence of defendant's
guilt.
Affirmed.
Gary E. Gowen, Las Vegas, for Appellant.
1. Witnesses.
Bias of a witness is always relevant to fact finder's assessment of credibility.
2. Witnesses.
A criminal defendant is entitled to cross-examine a witness to expose any facts which might lay a
foundation for an inference that the witness' testimony is influenced by bias or prejudice.
3. Witnesses.
Preclusion of cross-examination on the question of bias infringes upon accused's Sixth Amendment right
of confrontation. U.S.C.A.Const. Amend. 6.
4. Witnesses.
Whether a witness harbors a bias against a class of which defendant is a member, or against individuals
solely because of that class membership, is a relevant question that must be subject to defense
cross-examination in a criminal trial.
5. Witnesses.
Defendant is constitutionally entitled to confront a witness and conduct cross-examination sufficient to
elicit any facts which might support an inference of bias against the class to which defendant belongs or its
members. U.S.C.A.Const. Amend. 6.
6. Witnesses.
In prosecution of black defendant, victim's alleged bias against the black race or its members was
relevant, and thus district court's complete preclusion of any cross-examination of the victim on the racial
bias issue constituted a denial of defendant's right of confrontation. U.S.C.A.Const. Amend. 6.
7. Witnesses.
Accused must be permitted sufficient cross-examination to lay before the judge any facts in support of an
inference of racial bias on the part of a witness; once that is accomplished, the constitutional requirement of
meaningful confrontation has been satisfied, and trial court regains its discretion to limit or terminate
cross-examination free from constitutional restraints, and it may then exercise its discretion to prevent
cross-examination that would confuse or mislead the jury or harass the witness. U.S.C.A.Const. Amend. 6.
8. Criminal Law.
Trial court's error in precluding any cross-examination of victim as to whether she harbored any bias
against the black race or its members was harmless, in view of the overwhelming evidence of defendant's
guilt.
OPINION
Per Curiam:
Appellant was convicted of several felony offenses arising from his armed abduction of
Donald and Mary Boone. He was sentenced to two life terms for first degree kidnapping,
enhanced by two consecutive life terms for his use of a deadly weapon. Ransey, who is black,
now contends that the district court denied him his sixth amendment right of confrontation by
precluding any cross-examination of Mrs. Boone, who is white, on the subject of racial bias.
We agree, but find the error harmless under the facts of this case.
Following their escape from appellant's custody, the Boones gave statements to the police.
In her statement, Mrs. Boone twice referred to appellant as a nigger. Defense counsel
attempted to present Mrs.
attempted to present Mrs. Boone's use of this term to the jury, as suggestive of racial bias; he
also attempted to cross-examine Mrs. Boone to determine whether she harbored any bias
against the black race or its members. The district court excluded mention of Mrs. Boone's
use of the term nigger and precluded the cross-examination, ruling that the issue of Mrs.
Boone's alleged racial bias was unduly prejudicial and irrelevant to the issue of guilt.
[Headnotes 1-3]
The bias of a witness is always relevant to the factfinder's assessment of credibility. See
Davis v. Alaska, 415 U.S. 308, 316-17 (1974). A criminal defendant is entitled to
cross-examine a witness to expose any facts which might lay a foundation for an inference
that the witness' testimony is influenced by bias or prejudice. 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. Eckert v. State, 96 Nev. 96, 101, 605 P.2d 617,
620 (1980). Preclusion of cross-examination on the question of bias infringes upon the
accused's sixth amendment right of confrontation. Davis v. Alaska, supra.
[Headnotes 4-7]
Whether a witness harbors a bias against a class of which the defendant is a member, or
against individuals solely because of that class membership, is a relevant question that must
be subject to defense cross-examination in a criminal trial. The defendant is constitutionally
entitled to confront a witness and conduct cross-examination sufficient to elicit any facts that
might support an inference of bias against the class to which the defendant belongs or its
members. See Chipman v. Mercer, 628 F.2d 528 (9th Cir. 1980) (bias against mentally
retarded); Smith v. State, 404 So.2d 167 (Fla.Ct.App. 1981) (racial bias). Moreover,
cross-examination sufficient to satisfy the right of confrontation on the question of class bias
is generally not unduly prejudicial. See, e.g., Smith v. State, supra. We therefore conclude
that the district court's complete preclusion of any cross-examination of Mrs. Boone on the
racial bias issue constituted a denial of Ransey's right of confrontation.
1
[Headnote S]
[Headnote S]
____________________

1
We emphasize that we hold only that an accused must be permitted sufficient cross-examination to lay
before the judge any facts in support of an inference of racial bias. Once this is accomplished, the constitutional
requirement of meaningful confrontation has been satisfied and the district court regains its discretion to limit or
terminate cross-examination free from constitutional restraints. The district court may then exercise its
[Headnote 8]
Upon a review of the record, however, we are of the view that the error is harmless in light
of the other evidence of guilt. Notwithstanding the relatively minor conflicts in the testimony
of some of the state's witnesses, the testimony of the primary victim, Mr. Boone, coupled
with certain physical evidence and other testimony, constitutes virtually overwhelming
evidence of guilt. Although the test for harmless error in this type of case is normally whether
the jury had sufficient information from other evidence to infer the potential bias of the
witness, see Crew v. State, 100 Nev. 38, 675 P.2d 986 (1984), in this case we elect to adopt
the recognized alternative approach of looking to the quantum of other evidence in the case
unaffected by the denial of confrontation. See United States ex rel. Scarpelli v. George, 687
F.2d 1012 (7th Cir. 1982) cert. denied, 103 S. Ct. 817 (1983). From our review of the
evidence, we conclude beyond a reasonable doubt that the undue restriction of
cross-examination could not have influenced the jury's determination of guilt. Id.; see
Chapman v. California, 386 U.S. 18 (1967).
We have considered appellant's remaining assignments of error and have found them to be
without merit. Accordingly, the judgment of conviction is affirmed.
____________________
discretion to prevent cross-examination that would confuse or mislead the jury or harass the witness. We stress
that the topic of racial bias is a sensitive one, calling for the exercise of due care on the part of counsel
conducting cross-examination.
____________
100 Nev. 280, 280 (1984) Childers v. State
DONALD JAMES CHILDERS, Appellant, v. THE
No. 14338
SANDRA KAY STEELE, Appellant, v. THE
No. 14552
May 10, 1984 680 P.2d 598
Consolidated appeals from judgments of conviction in separate trials for child abuse and
neglect. Ninth Judicial District Court, Douglas County; Norman C. Robison, Judge.
Defendants were convicted in separate trials in district court of abuse and neglect of a
minor child resulting in substantial physical and mental harm to the child, and defendants
appealed.
physical and mental harm to the child, and defendants appealed. The Supreme Court held
that: (1) jury instruction describing child abuse statute as a general intent crime was proper;
(2) expert witness was properly allowed to testify; and (3) evidence was sufficient to support
finding that defendant caused child substantial bodily harm.
Affirmed.
John W. Aebi, Carson City, for Appellant Donald James Childers.
Thomas E. Perkins, Public Defender, and Laura FitzSimmons, Deputy Public Defender,
Carson City, for Appellant Sandra Kay Steele.
Brian McKay, Attorney General, Carson City, Brent T. Kolvet, District Attorney, and
Stephen C. Balkenbush, Chief Deputy District Attorney, Douglas County, for Respondent.
1. Infants.
In child abuse prosecution, instruction that defined willfully, as used in child abuse statute, as requiring
general intent, was proper. NRS 200.508.
2. Criminal Law.
Admissibility of expert testimony, as well as of qualifications of expert, lies within sound discretion of
trial court.
3. Criminal Law.
In child abuse prosecution, doctor who was chief resident in pediatrics, had private pediatric practice
specializing in developmental problems due to psychological, physical and mental learning disabilities, and
who directed pediatric center, was properly allowed to testify as expert witness.
4. Infants.
In child abuse prosecution, evidence that child suffered duodenal hematoma which was life threatening
and which actions of defendant could have caused, child was covered with bruises as result of beatings,
child had little or no appetite, was in state of malnutrition when she arrived at hospital, required 14 days'
hospitalization, suffered impairment of digestive system and prolonged physical pain traceable to
defendant's acts, was sufficient to support finding that defendant caused child substantial bodily harm.
OPINION
Per Curiam:
Appellant Donald James Childers and appellant Sandra Kay Steele were convicted in
separate jury trials of the abuse and neglect of a minor child resulting in substantial physical
and mental harm to the child.
mental harm to the child. They seek reversals of their judgments of conviction, claiming that
the district judge erred in instructing the jury and in admitting into evidence medical expert
testimony. Childers also argues that the evidence is insufficient to prove that the child
suffered substantial bodily harm. We disagree and affirm both convictions.
THE FACTS
Steele and her four-year-old daughter occupied a trailer home with Childers. The record
shows that commencing in April 1982 Childers repeatedly and severely spanked the child;
that he shook her like a rag doll, dragged her repeatedly by one arm about the trailer home,
administered cold showers to the child, and on one occasion had the child drink shampoo to
induce vomiting. Childers admitted many of these acts.
Steele was aware of Childers' treatment of her daughter, but did not interfere. Steele
testified that she failed to obtain medical aid for the child because Childers threatened that if
she did so, the police would take Steele into custody.
In May 1982 the child was hospitalized and found to be suffering from serious
malnutrition and a duodenal hematoma. Her body was covered with bruises.
THE JURY INSTRUCTION
[Headnote 1]
Childers suggests that the court erred in instructing the jury on the meaning of willfully
as used in the child abuse statute.
1
We do not agree. The district judge instructed the jury as
follows: The word "willfully", when applied to the intent with which an act is done or
omitted, as used in my instructions, implies simply a purpose or willingness to commit the
act or to make the omission in question.
____________________

1
NRS 200.508 reads:
1. Any adult person who willfully causes or permits a child who is less than 18 years of age to suffer
unjustifiable physical pain or mental suffering as a result of abuse or neglect or who willfully causes or
permits a child to be placed in a situation where the child may suffer physical pain or mental suffering as
the result of abuse or neglect is guilty of a gross misdemeanor unless a more severe penalty is prescribed
by law for an act or omission which brings about the abuse, neglect or danger.
2. A person who violates any provision of subsection 1, if substantial bodily or mental harm results to
the child, shall be punished by imprisonment in the state prison for not less than 1 year nor more than 20
years.
3. As used in this section permit means permission that a reasonable person would not grant and
which amounts to a neglect of responsibility attending the care, custody and control of a minor child.
The word willfully, when applied to the intent with which an act is done or omitted,
as used in my instructions, implies simply a purpose or willingness to commit the act or
to make the omission in question. The word does not require in its meaning any intent
to violate law, or to injure another, or to acquire any advantage.
The instruction was proper. The child abuse statute is a general intent crime. The word
willfully must be defined in that context. The California courts have long approved the use
of this definition of willfully, which is taken from the California Penal Code Section 7(1).
2
See, e.g., People v. Atkins, 125 Cal.Rptr. 855, 861 (Cal.App. 1975) (approves use under child
abuse statute, California Penal Code Section 273d).
ADMISSIBILITY OF THE EXPERT TESTIMONY
[Headnote 2]
The admissibility of expert testimony, as well as of the qualifications of the expert, lies
within the sound discretion of the trial court. Watson v. State, 94 Nev. 261, 264, 578 P.2d
753 (1978). The D.C. Circuit Court of Appeals reversed the exclusion of a psychologist's
testimony regarding the defendant's sanity in a criminal case, stating it is hardly surprising
that courts do not exclude all but the very best kind of witness. [Citations omitted.] Thus a
general practitioner may testify concerning matters within a medical specialty if his education
or experience, or both, involves demonstrable knowledge of the subject. Jenkins v. United
States, 307 F.2d 637, 643-644 (D.C. Cir. 1962).
[Headnote 3]
The doctor testifying in this case had thirty years experience in pediatrics. He was Chief
Resident in Pediatrics in Salt Lake City, Utah. He presently has a private pediatric practice
specializing in developmental problems due to psychological, physical and mental learning
disabilities. He directs Eagle Valley Children's Home, and formerly directed Sierra
Development Center. The district judge did not err in admitting the doctor's testimony.
____________________

2
California Penal Code Section 7(1) provides:
The word willfully, when applied to the intent with which an act is done or omitted, implies simply a
purpose or willingness to commit the act, or make the omission referred to. It does not require any intent
to violate law, or to injure another or to acquire any advantage. (Deering 1982) (See also 1 California
Jury InstructionsCriminal No. 1.20 (4th ed. 1979)).
SUBSTANTIAL BODILY HARM
Appellant Childers alone challenges the sufficiency of the evidence showing that he
caused the child substantial bodily harm.
[Headnote 4]
The child suffered a duodenal hematoma which was life-threatening. Two witnesses
testified that appellant Childers shook the child like a rag doll while grasping her abdomen.
Dr. Good testified that this could have caused the hematoma.
The testimony was undisputed that the child was covered with bruises as the result of
beatings by fist, belt and hairbrush. The child had little or no appetite. She was in a state of
malnutrition when she arrived at the hospital.
The child required fourteen days hospitalization to recover while the hematoma was in
remission. She suffered impairment of her digestive system, and prolonged physical pain,
traceable to appellant Childers' acts. See State v. Welton, 300 N.W.2d 157, 160 (Iowa 1981)
(citing cases wherein injury adequately protracted). We find the evidence sufficient to support
the finding that appellant Childers caused the child substantial bodily harm.
Appellant's other contentions of error are meritless. Since we find no error, the convictions
are affirmed.
____________
100 Nev. 284, 284 (1984) Burdick v. Nicholson
GEORGE E. BURDICK, Appellant, v. TOM F.
NICHOLSON, Respondent.
No. 14833
May 10, 1984 680 P.2d 589
Appeal from order granting summary judgment, Eighth Judicial District Court, Clark
County; Addeliar D. Guy, Judge.
Suit was filed to enforce judgment entered in North Carolina awarding plaintiff damages
for defendant's alienation of affections of plaintiff's wife. The district court granted
defendant's summary judgment motion, and plaintiff appealed. The Supreme Court held that
trial court violated full faith and credit clause by refusing to enforce North Carolina judgment
on ground that it violated public policy of Nevada.
Jones, Jones, Bell, Close & Brown, and Susan Williams Scann, Las Vegas, for Appellant.
Tony Terry, Las Vegas, for Respondent.
1. Judgment.
Judgment entered in one state must be respected in another state, provided that first state had jurisdiction
over parties and the subject matter of the suit; this is true even though cause of action upon which judgment
is based would not be cognizable in the forum state.
2. Judgment.
Trial court violated full faith and credit clause by refusing to enforce judgment based on cause of action
for alienation of affections on ground that judgment violated public policy of Nevada, particularly since
action to enforce judgment was an action to enforce a debt, not the underlying cause of action.
U.S.C.A.Const. Art. 4, 1; NRS 41.370-41.420.
OPINION
Per Curiam:
This is an appeal from an order granting summary judgment for respondent.
On January 21, 1972, appellant filed a complaint in Pitt County, North Carolina, alleging
that respondent alienated the affections of appellant's wife. When respondent failed to
answer, the North Carolina court entered a default judgment for appellant in the amount of
$25,000.00.
On January 31, 1979, appellant filed suit in Nevada to enforce his judgment. Respondent
answered and subsequently moved for summary judgment on the ground that the public
policy of Nevada prohibited enforcing a judgment based on a cause of action for alienation of
affections. See NRS 41.370-41.420. The district court agreed with respondent and entered its
order granting summary judgment.
On appeal appellant contends that the full faith and credit clause requires that Nevada give
effect to the North Carolina judgment. See U.S. Const., art. IV, 1. He contends that by
granting the summary judgment on the ground that the North Carolina judgment violated the
public policy of Nevada, the lower court violated the full faith and credit clause. We agree.
[Headnotes 1, 2]
A judgment entered in one state must be respected in another state, provided that the first
state had jurisdiction over the parties and the subject matter of the suit. Underwriters Assur.
Co. v. North Carolina Life, 455 U.S. 691 (1982). This is true even though the cause of
action upon which the judgment is based would not be cognizable in the forum state.
though the cause of action upon which the judgment is based would not be cognizable in the
forum state. Morris v. Jones, 329 U.S. 545, 551 (1947); Milwaukee County v. White Co., 296
U.S. 268 (1935); Fauntleroy v. Lum, 210 U.S. 230 (1908). It should additionally be noted that
the action to enforce the judgment is an action to enforce a debt, not the underlying cause of
action. Therefore, the public policy of this state, as set forth in NRS 41.370-41.420, is not
violated by allowing the judgment to be enforced in this state. See Parker v. Hoefer, 142
N.E.2d 194 (N.Y. 1957). The lower court consequently erred in granting summary judgment.
Accordingly, we reverse the order granting summary judgment and remand the case for
further proceedings to determine whether the North Carolina judgment is otherwise
enforceable.
____________
100 Nev. 286, 286 (1984) Owens v. State
KAREN LYNETTE OWENS, Appellant, v. THE
No. 14935
May 10, 1984 680 P.2d 593
Appeal from judgment of conviction of multiple offenses, Eighth Judicial District Court,
Clark County; Michael J. Wendell, Judge.
Defendant was convicted by a jury in the district court of burglary, attempted robbery with
use of deadly weapon upon victim 65 years of age or older, battery with use of deadly weapon
upon victim 65 years of age or older and conspiracy to commit robbery. Defendant appealed.
The Supreme Court held that under particular facts of case, battery offense was a lesser
included offense of crime of attempted robbery and, therefore, defendant's Fifth Amendment
right not to be placed twice in jeopardy was violated when defendant was convicted for both
offenses.
Morgan D. Harris, Public Defender, and Michael L. Peters, Deputy Public Defender,
100 Nev. 286, 287 (1984) Owens v. State
1. Criminal Law.
Where same act or transaction constitutes a violation of two distinct statutory provisions, test to be
applied to determine whether there are two offenses or only one is whether each provision requires proof of
a fact which the other does not.
2. Criminal Law.
General test for determining existence of a lesser included offense is whether offense in question cannot
be committed without committing lesser offense; however, one may look to particular facts of case to
determine whether one crime is lesser included offense of another crime.
3. Criminal Law; Indictment and Information.
Where information alleged that attempted robbery had been committed by means of beating victim upon
head and body with firearm, exact same act was charged with respect to defendant's commission of battery,
and State sought to prove allegation of attempted robbery by relying on fact of beating, battery was a lesser
included offense of attempted robbery and defendant could not be convicted of both offenses; proper
remedy to avoid double jeopardy was reversal of lesser included offense rather than greater offense.
U.S.C.A.Const. Amend. 5; NRS 200.380, subd. 1, 200.481, subd. 1(a), 208.070.
OPINION
Per Curiam:
Following a jury trial, appellant was convicted of one count each of burglary, attempted
robbery with the use of a deadly weapon upon a victim 65 years of age or older, battery with
the use of a deadly weapon upon a victim 65 years of age or older, and conspiracy to commit
robbery.
Appellant was charged as an aider and abettor in the commission of the first three
offenses. At trial, the evidence indicated that appellant had helped her accomplice, Larry
Williams, enter the victim's residence, and that Williams had immediately thereafter pointed a
gun at the victim's face and had then begun beating the victim on the head with the gun. The
victim, however, managed to take possession of one of his own firearms, and shot Williams
several times, causing Williams' death. The victim was not sure what appellant was doing
during the course of this struggle, and only noticed that she had left the residence when the
shooting had ceased.
The victim testified at trial that neither appellant nor Williams had ever stated that they
wished to rob him, but that he had simply inferred from the fact that Williams was beating
him that they wanted his money. Nothing was found missing from his residence following the
commission of the crime.
Appellant contends that under the particular facts of her case, the battery offense was a
lesser included offense of the crime of attempted robbery, and that her fifth amendment
right not to be placed twice in jeopardy was therefore violated when she was convicted
for both offenses.
100 Nev. 286, 288 (1984) Owens v. State
crime of attempted robbery, and that her fifth amendment right not to be placed twice in
jeopardy was therefore violated when she was convicted for both offenses. We agree.
[Headnote 1]
Nevada has adopted the double jeopardy test set forth in Blockburger v. United States, 284
U.S. 299, 304 (1932), in which that court held that where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires proof of a fact
which the other does not. See Givens v. State, 99 Nev. 50, 56, 657 P.2d 97, 101 (1983);
Litteral v. State, 97 Nev. 503, 508, 634 P.2d 1226, 1229 (1981). We have further held that
under the Blockburger test it will always be impermissible for a defendant to be convicted of
both a greater and a lesser included offense. See Givens v. State, supra.
[Headnote 2]
At the outset, we note that the general test for determining the existence of a lesser
included offense is whether the offense in question cannot be committed without committing
the lesser offense. See Lisby v. State, 82 Nev. 183, 187, 414 P.2d 592, 594 (1966). Battery
requires only the willful and unlawful use of force or violence upon the person of another.
NRS 200.481(1)(a). Attempted robbery, on the other hand, requires an intentional and
unlawful attempt to take another person's property by means of force or violence or fear of
injury, immediate or future, to his person or property. . . . NRS 200.380(1), 208.070. It is
clear that not every time a person commits an attempted robbery will he necessarily also
commit a battery. Thus, under the Lisby test, battery would not be viewed as a lesser included
offense of robbery or attempted robbery.
We have not, however, always applied the Lisby test in such a strict manner, and have
instead held that one may look to the particular facts of a case to determine whether one crime
is a lesser included offense of another crime. See Dicus v. District Court, 97 Nev. 273, 625
P.2d 1175 (1981) (battery with the use of a deadly weapon may be a lesser included offense
of attempted murder depending upon the means used to commit the attempted murder);
Graves v. Young, 82 Nev. 433, 420 P.2d 618 (1966) (assault with intent to kill may be a
lesser included offense of attempted murder if assaultive means were used to commit the
attempted murder). In Slobodian v. State, 98 Nev. 52, 53, 639 P.2d 561, 563 (1982), we
recognized that the above rule is applicable whenever the lesser crime is so closely related to
the [greater] offense that it [is] necessary for the prosecutor to prove the lesser offense in
order to prove the greater."
100 Nev. 286, 289 (1984) Owens v. State
the prosecutor to prove the lesser offense in order to prove the greater.
The state contends that it was not necessary for the prosecution to have proven the battery
in the present case in order to prove the attempted robbery. The state asserts that the
attempted robbery was complete when Williams pointed the gun at the victim's face, and that
the act of beating the victim on the head constituted a separate act of battery which the state
did not need to prove in order to prove the attempted robbery. There may, of course, be
situations in which a defendant may be convicted for the two separate acts of an attempted
robbery and a battery, committed in the course of continuing criminal activity. See, e.g.,
Litteral v. State, supra (appellant conceded that he could be convicted of one count of battery
as well as one count of robbery, where appellant had beaten the victim on the head while an
accomplice robbed him). Under the facts of this case, however, we must conclude that it was
necessary for the state to prove the battery in order to prove the attempted robbery, and that
appellant therefore could not be convicted of both offenses.
[Headnote 3]
From the start of this case, the state sought to prove its allegation of attempted robbery by
relying on the fact that Williams had beaten the victim. The information filed against
appellant specifically alleged that the attempted robbery had been committed by means of
beating the victim upon the head and body with a firearm; the exact same act was charged
with respect to appellant's commission of the battery offense. Additionally, the state appears
to have relied heavily upon the victim's testimony that he believed Williams was beating him
on the head with the intent to take his money. The record in front of this court indicates that
the state clearly proceeded on the theory of prosecution that, under the specific facts of this
case, it was necessary to prove the battery in order to prove the attempted robbery charge,
thereby rendering the battery a lesser included offense of the attempted robbery. See
Slobodian v. State, supra.
Appellant could therefore not be convicted of both offenses. Contrary to appellant's
argument, however, we conclude that the proper remedy in this case is reversal of the lesser
included offense rather than the greater offense.
1
See, e.g., Givens v. State, supra.
____________________

1
To the extent that appellant has sought to raise a sufficiency of the evidence claim with respect to the
attempted robbery conviction, we must conclude that this argument is without merit. See Jensen v. Sheriff, 89
Nev. 123, 508 P.2d 4 (1973) (intent to commit a crime may be inferred from circumstances surrounding the
crime itself).
100 Nev. 286, 290 (1984) Owens v. State
State, supra. Accordingly, appellant's conviction of battery with the use of a deadly weapon
upon a victim 65 years of age or older is reversed. The judgment of conviction is affirmed in
all other respects.
____________
100 Nev. 290, 290 (1984) State Indus. Ins. System v. Snapp
v. DANIEL SNAPP, Respondent.
No. 14498
May 10, 1984 680 P.2d 590
Appeal from lower court's order in judicial review proceedings reversing appeals officer's
decision and granting worker's compensation claimant an award in the sum of $9,860.00.
Second Judicial District Court, Washoe County; James H. Thompson, Judge.
Worker's compensation claimant sought judicial review of appeals officer's denial of
rehabilitation maintenance. The district court reversed the officer and granted claimant a
$9,860 judgment and $1,800 in attorney's fees. The State Industrial Insurance System
appealed. The Supreme Court held that: (1) claimant was not entitled to an award of
attorney's fees pursuant to statute which applies only to actions for money damages, and (2)
competent evidence, including fact that claimant demonstrated a low level of cooperation at
rehabilitation center and admitted that he did not want further therapy, supported appeals
officer's determination that claimant made no sincere effort to be gainfully reemployed,
justifying termination of his rehabilitation benefits.
Reversed.
David F. Sarnowski, Associate General Counsel, State Industrial Insurance, Carson City,
for Appellant.
David Dean, Reno, for Respondent.
Workers' compensation claimant who was seeking reinstatement of rehabilitation maintenance was not
entitled to an award of attorney's fees pursuant to statute which applies only to actions for money damages.
NRS 18.010.
In a petition for judicial review of an appeals officer's decision, decision is not to be disturbed by the
district court unless it is clearly erroneous or otherwise amounts to an abuse of discretion. NRS
233B.130.
Competent evidence, including fact that claimant demonstrated a low level cooperation at rehabilitation
center and that he admitted that he did not want further therapy, supported appeals officer's determination
that claimant made no sincere effort to be gainfully reemployed, justifying termination of rehabilitation
benefits.
OPINION
Per Curiam:
This appeal concerns judicial review of an appeals officer's denial of worker's
compensation rehabilitation maintenance. The district court reversed the administrative
tribunal and granted the claimant a $9,860.00 judgment and $1,800.00 in attorney's fees. We
hold that the appeals officer's decision did not constitute an abuse of discretion and that the
lower court's order granting attorney's fees was founded upon an inapplicable statute.
Consequently, we reverse.
On June 6, 1978, respondent Daniel Snapp was employed by Max Riggs Construction Co.
On that date, Snapp was removing concrete forms with a twelve pound sledgehammer. The
repetitive pounding injured Snapp's right elbow. The injury was diagnosed as tennis elbow.
Conservative treatment was prescribed until January 16, 1979, when a tennis elbowplasty
was performed. During his recovery, Snapp complained of swelling and numbness in the
fingers. On May 4, 1979, a neurological examination of Snapp was performed. The
examining physician reported that [t]he patient presents with a difficult problem, [sic] due to
poor cooperation and associated pain in the right arm, rendering formal strength testing
somewhat unreliable.
In May and July of 1979, in response to Snapp's complaints of swelling and tenderness, the
attending physician, Dr. Cunningham, suggested that Snapp seek work lighter than carpentry.
Dr. Cunningham, however, noted that Snapp had good grip strength. After continued
complaints, Dr. Cunningham performed a second operation on Snapp's right elbow.
Throughout this second postoperative period, Snapp continued to complain of pain and
numbness. Finally, on April 16, 1980, Dr. Cunningham reported to Bruce Acaiturri,
Rehabilitation Counselor for SIIS, that Snapp was employable, that he could use an overhead
saw and that he could lift 30 pounds.
Initially, SIIS accepted Snapp's worker's compensation claim following his injury on June
6, 1978. Snapp received medical benefits for his first surgery and temporary total disability
benefits until Dr. Cunningham released him to light work in July, 1979. From July 9, 1979,
until August, 1979, Snapp was paid rehabilitation maintenance.
was paid rehabilitation maintenance. These payments were terminated because Snapp failed
to cooperate in locating employment. Following his second surgery, Snapp received
temporary total disability payments until January 21, 1980. On that date, rehabilitation
maintenance payments were resumed.
Beginning in February of 1980, Acaiturri contacted Snapp's former employer, Max Riggs
Construction, about the possibility of rehiring Snapp as a carpenter. Max Riggs was apprised
of Snapp's inability to do any heavy lifting or to use hammers. A position was made available
to Snapp on March 4, 1980. Snapp, however, wrote his counsel on March 7, 1980, and stated
that Max Riggs had told him that he would have to hammer. Because Dr. Cunningham
advised him not to continue in carpentry, Snapp did not report for work. Consequently, SIIS
terminated the rehabilitation maintenance payments as of March 4, 1980.
Snapp challenged the termination of his rehabilitation maintenance before a SIIS hearings
officer on April 8, 1980. The hearings officer held that Snapp was not entitled to temporary
total disability compensation under NRS 616.585(3)
1
or rehabilitation maintenance in
accordance with NRS 616.222(3)
2
because he had been released for work by competent
medical authority and a job within his physical limitations had been secured. After the
decision, the parties agreed to meet with Max Riggs Construction to discuss alternatives to
carpentry.
Following that meeting, Acaiturri wrote to Dr. Cunningham and described two different
positions at Max Riggs. On April 16, 1980, Dr. Cunningham authorized Snapp to operate an
overhead saw at Max Riggs. Snapp reported to work on April 21, 1980. After working at the
saw for 3 1/2 hours, he quit. He complained that operating the saw and hammering had
reinjured his elbow.
On April 28, 1980, Snapp appealed the hearings officer's rejection of his claim. Following
hearings on July 1 and 29, 1980, the appeals officer issued an interim order referring Snapp to
the Clark Rehabilitation Center in Las Vegas for an intake evaluation of up to six days.
____________________

1
NRS 616.585(3) (1977) provides:
For purpose of temporary total disability benefits under this section, the period of temporary total
disability shall cease when any competent medical authority determines such employee is capable of any
gainful employment.

2
NRS 616.222(3) (1977) provides:
Any workman eligible for compensation other than accident benefits will not be paid those benefits if
he refuses counseling, training or other rehabilitation services offered to him by the commission. See
also, Regulation 14.070 (1978).
intake evaluation of up to six days. In his discharge summary, Dr. Nogueria of the
Rehabilitation Center stated on December 8, 1980, that, although Snapp would benefit from
a further course of intensive three week rehabilitation program . . . , the lower level of
cooperation demonstrated by [Snapp] . . . together with the . . . patient's admission that he did
not want further therapy, would limit the scope of the rehabilitation program. SIIS submitted
the Nogueria report to the appeals officer and stood on its former position to close the
rehabilitation portion of this case.
On September 8, 1981, the appeals officer issued his decision. The officer stated:
The issues to be resolved concern the propriety of the commission's discretionary
decision to terminate rehabilitation benefits. While there is conflicting evidence in the
record, the preponderance of the evidence demonstrates that Snapp has made no sincere
effort to be gainfully reemployed. Snapp has consistently demonstrated by his actions a
lack of cooperation in any effort to secure employment and his statements to the
contrary were not credible based on his appearance and demeanor as well as their
inconsistency with his actions.
Accordingly, Snapp's rehabilitation benefits were held to have been properly terminated and
the hearings officer's decision was affirmed.
Snapp petitioned the district court under NRS 233B.130 for review of the appeals officer's
affirmance of the termination of Snapp's rehabilitation benefits. Although SIIS answered the
petition, it failed to appear at the hearing on July 22, 1982. Nevertheless, the court heard
Snapp's evidence and entered judgment in the sum of $9,860.00. The court also taxed costs
and attorney's fees pursuant to NRS 18.010 in the sum of $1,800.00 against SIIS. SIIS's
motion to set aside judgment was denied because the lower court ruled that SIIS had taken an
appeal from the judgment and thereby divested the court of jurisdiction. In the order denying
the motion, the court restated its belief that the termination of [Snapp's] rehabilitation
benefits was unreasonable. . . . The court was of the opinion that [Snapp] had been assigned
work which was immical [sic] to his past medical problem of being unable to use a hammer.
Only the order granting Snapp a judgment in the sum of $9,860.00 and attorney's fees in the
sum of $1,800.00 has been appealed.
3
Attorney's Fees
Attorney's Fees

____________________

3
Although SIIS failed to appear at the judicial review proceeding, it did answer Snapp's petition. Moreover,
the district court considered the evidence before the agency and reached the merits in granting judgment for
Attorney's Fees
[Headnote 1]
The award of attorney's fees in the sum of $1,800.00 to Snapp was founded upon NRS
18.010.
4
In McCracken v. Cory, 99 Nev. 471, 664 P.2d 349 (1983), this court held that NRS
18.010 applies only to actions for money damages. There, the district court increased the
award of attorney's fees granted to respondent's counsel by the NESD Board of Review for
successfully petitioning the district court for judicial review of a decision of the NESD.
Because the district court's award of attorney's fees in McCracken was based in part on NRS
18.010, it was reversed. In the present case, Snapp was seeking reinstatement of his
rehabilitation maintenance payments, not money damages. Therefore, NRS 18.010 was not
applicable and the attorney's fee award was erroneous.
Rehabilitation Maintenance
The lower court's decision did not designate the statutory authority under which it granted
Snapp compensation benefits. The judgment merely stated that the award represented
twenty-five bi-weekly disability payments.
[Headnote 2]
In a petition for judicial review of an appeals officer's decision under NRS 233B.130, the
decision is not to be disturbed by the district court unless [it is] clearly erroneous or [it]
otherwise amount[s] to an abuse of discretion. Nevada Industrial Comm'n v. Reese, 93 Nev.
115, 124, 560 P.2d 1352, 1358 (1977); Nevada Industrial Comm'n v. Williams, 91 Nev. 686,
541 P.2d 905 (1975); NRS 233B.140(5)(e), (f).
[Headnote 3]
The administrative record indicates that Snapp demonstrated a low level of cooperation at
the Rehabilitation Center and he admitted that he did not want further therapy. Gary Avery,
the general carpentry foreman for Max Riggs, testified before the appeals officer that he told
Snapp just to saw the redwood boards. Avery testified that he also told Snapp that, if he felt
that he could not hammer without reinjuring his arm, another worker would be assigned to
do the hammering.
____________________
Snapp. Because the district court was limited to the administrative record, see Nevada Industrial Comm'n v.
Horn, 98 Nev. 469, 653 P.2d 155 (1982), which is presently before this court, SIIS's nonappearance did not
waive its right to appeal.

4
NRS 18.010(2)(a) (1982) provides:
2. The court may make an allowance of attorney's fees to:
(a) The plaintiff as prevailing party when the plaintiff has not recovered more than $10,000, . . . .
another worker would be assigned to do the hammering. Further, Avery stated that during the
3 1/2 hours on the job Snapp cut 5 to 6 pieces of 2 x 4's and attempted to nail one of two of
those pieces back together. Altogether, Avery estimated that Snapp drove fifteen nails. Avery
opined that Snapp actually worked no longer than twenty minutes.
On this record the appeals officer's decision was supported by some competent evidence.
Thus, the lower court erred in reversing that decision and awarding Snapp rehabilitation
maintenance benefits. Accordingly, the order of the district court granting Snapp disability
benefits and attorney's fees and reversing the appeals officer's decision denying the
compensation claim is hereby reversed.
____________
100 Nev. 295, 295 (1984) Hughes Properties v. State of Nevada
HUGHES PROPERTIES, INC., and SUMMA CORPORATION, Appellants, v. STATE OF
NEVADA and the NEVADA GAMING COMMISSION, Respondents.
No. 14621
May 10, 1984 680 P.2d 970
Appeal from an order granting summary judgment to respondents and denying appellants'
cross motion for summary judgment. Second Judicial District Court, Washoe County; Peter I.
Breen, Judge.
Taxpayers brought suit against State and its Gaming Commission, seeking refund of
allegedly overpaid quarterly license fees. The district court granted summary judgment in
favor of State and Commission, and taxpayers appealed. The Supreme Court held that
regulation of Gaming Commission providing for assessment of sums received as rake-offs
in games in which house took percentage of each wager was valid.
Affirmed.
McDonald, Carano, Wilson, Bergin, Frankovich & Hicks, Reno, for Appellants.
Brian McKay, Attorney General, and Dennis Vincent Gallagher, Deputy Attorney General,
Gaming Division, Carson City, for Respondents.
1. Statutes.
Although tax statutes are construed most strongly against government and in favor of taxpayer, rule of
strict construction is only one of several factors to be considered, and is to be utilized in
conjunction with other rules of statutory construction.
one of several factors to be considered, and is to be utilized in conjunction with other rules of statutory
construction.
2. Statutes.
It is duty of Supreme Court to give effect to clear intention of legislature and to construe language of
statute so as to give it force and not to nullify its manifest purpose.
3. Statutes.
Fundamental rule of statutory interpretation is that unreasonableness of result produced by one among
alternative possible interpretations of statute is reason for rejecting that interpretation in favor of another
that would produce reasonable result.
4. Gaming.
Regulation of Gaming Commission providing for assessment of sums received as rake-offs in games in
which house took percentage of each wager was valid, since rake-offs were winnings derived from
playing of gambling games, even though house did not engage in a wager. NRS 463.0114 (now NRS
463.0161).
5. Statutes.
Where legislature has had ample time to amend administrative agency's reasonable interpretation of
statute, but fails to do so, such acquiescence indicates interpretation is consistent with legislative intent.
OPINION
Per Curiam:
This appeal is taken from a grant of summary judgment in favor of respondents, the State
of Nevada and the Nevada Gaming Commission.
Appellants Hughes Properties, Inc. and Summa Corporation instituted this suit, seeking a
refund of allegedly overpaid quarterly license fees. They argued that the plain meaning of
former NRS 463.0114 (now 463.0161), defining gross revenue, precluded taxation of sums
received as rake-offs and percentage buy-ins. Appellants further sought to have Nevada
Gaming Commission regulation 6.080(1)(d), which provides for the assessment of these
sums, declared unconstitutional.
1
Respondents took the position that gross revenue included
rake-offs and buy-ins. They defended regulation 6.080(1)(d) as a valid implementation of the
legislative intent of NRS 463.370 to tax gaming revenue.
In cross motions for summary judgment, each side sought to have the lower court adopt its
interpretation of the statute. The court granted respondents' motion.
____________________

1
Regulation 6.080(1)(d) provides:
Gross revenue shall be computed in the following manner:
(d) Poker, pan and similar gamesall sums received by the house as a percentage rake-off, a time
buy-in, or other compensation charged by the house for the privilege of playing, and any and all sums
won by any shill employed by the licensee.
court granted respondents' motion. We agree with the district court's interpretation of the
statute and affirm the judgment.
There are two types of gambling games, banking games and percentage games. Examples
of banking games are craps, roulette and twenty-one, where the casino wagers against the
patron. Percentage games are poker, panguingui and similar games where patrons wager
against each other and the house takes a percentage of each wager as a rake-off.
NRS 463.370 requires the Gaming Commission to charge and collect quarterly license fees
based on a percentage of the licensee's gross revenue. Gross revenue was defined during the
relevant period by NRS 463.0114 as the total of all sums received as winnings less only the
total of all sums paid out as losses by a licensee. . . . Regulation 6.080 generally provides the
procedure for reporting winnings; subsection (1)(d) provides for the inclusion of sums
received as rake-offs and buy-ins in the calculation of gross revenue.
Appellants' argument on appeal is the same as that made in the district court. It centers on
the definition of the word winnings in NRS 463.0114. Appellants claim that in order to
have a winning there must be a wager. They contend that since the house does not engage
in a wager in order to collect its rake-off or buy-in fees, they cannot be characterized as
winnings.
The district court interpreted the term winnings, consistent with respondents' position at
trial, as a licensee's gains derived from the playing of gambling games. The court noted that
there was not a great difference between rake-offs and buy-ins and the profits derived from
other games since the casino will just as surely win on slots, roulette and craps in the long
run. It therefore construed the statute to provide for the inclusion of these sums in gross
revenue and concluded that Regulation 6.080(1)(d) was valid.
[Headnotes 1, 2]
As we have stated, we agree with the district court's conclusions. Although tax statutes are
construed most strongly against the government and in favor of the taxpayer, State v. Pioneer
Citizen's Bank of Nevada, 85 Nev. 395, 398, 456 P.2d 422, 423 (1969), the rule of strict
construction is only one of several factors to be considered, and is to be utilized in
conjunction with other rules of statutory construction. Sheriff v. Smith, 91 Nev. 729, 733, 542
P.2d 440, 443 (1975). It is the duty of this court to give effect to the clear intention of the
Legislature and to construe the language of a statute so as to give it force and not nullify its
manifest purpose. Woofter v. O'Donnell, 91 Nev. 756, 762, 542 P.2d 1396, 1400 (1975).
[Headnotes 3, 4]
A fundamental rule of statutory interpretation is that the unreasonableness of the result
produced by one among alternative possible interpretations of a statute is reason for rejecting
that interpretation in favor of another that would produce a reasonable result. Sheriff v.
Smith, 91 Nev. at 733, 542 P.2d at 443. The state licenses gambling games primarily as a
means of producing revenue. Yet, if appellants' construction of the statute were adopted, the
state would be precluded from including the revenue produced by all percentage games in the
calculation of a licensee's gross revenue. This would not be a reasonable interpretation of the
statute, nor would it be consistent with the legislative intent. Appellants' reliance on Cashman
Photo v. Nevada Gaming Commission, 91 Nev. 424, 538 P.2d 158 (1975), is misplaced. In
Cashman the legislative intent to forego taxation of photographic services was made obvious
by the Legislature's omission of any reference to services in the statute when it borrowed
the remainder of the language from the Federal Cabaret Act. In the instant case, the word
winnings appears in the statute and must be interpreted in a manner consistent with the
obvious legislative intention to tax the proceeds of gambling games.
[Headnote 5]
It follows that we consider Regulation 6.080(1)(d) a valid implementing regulation
consistent with the Gaming Control Act and the legislative intent behind that act. It is
noteworthy that Regulation 6.080(1)(d) had included rake-offs and buy-ins as elements of
gross revenue since its effective date of July 1, 1974. Where, as here, the legislature has had
ample time to amend an administrative agency's reasonable interpretation of a statute, but
fails to do so, such acquiescence indicates the interpretation is consistent with legislative
intent. Summa Corporation v. State Gaming Control Board, 98 Nev. 390, 392, 649 P.2d
1363 (1982). We also note that when the Legislature did amend NRS 463.0114 in 1981, it
specifically included rake-offs and buy-ins in the definition of gross revenue, consistent with
Regulation 6.080(1)(d). See NRS 463.0161. Where a former statute is amended or a doubtful
interpretation of a former statute rendered certain by subsequent legislation, it has been held
that such amendment is persuasive evidence of what the Legislature intended by the first
statute. Sheriff v. Smith, 91 Nev. 729, 734, 542 P.2d 440, 443 (1975).
We must also disagree with appellants' contention that the district court's grant of
summary judgment was premature because the question of the parties' mutual understanding
of the meaning of the statute had not been resolved.
the meaning of the statute had not been resolved. No material issue of fact remains to be
determined in this case. The parties' questionable understanding of the statute is not material
to the legal issue of the statute's construction. The sole issue before the court was the
construction of a statute and the validity of a regulation implementing that statute. We are
satisfied that the court's interpretation of the statute was both logical and consistent with the
legislative intent.
The judgment is affirmed.
____________
100 Nev. 299, 299 (1984) Hale v. Riverboat Casino, Inc.
JAMES H. HALE, Appellant, v. RIVERBOAT CASINO,
INC., dba HOLIDAY CASINO, Respondent.
No. 14481
May 15, 1984 682 P.2d 190
Appeal from order granting new trial. Eighth Judicial District Court, Clark County, J.
Charles Thompson, Judge.
Action was brought by customer of casino to recover punitive and compensatory damages
for negligence, assault and battery, false imprisonment, malicious prosecution, defamation,
and negligent and intentional infliction of emotional distress. After initially ordering a new
trial unless customer accepted a reduction in the amount of damages, the district court sua
sponte ordered an unconditional new trial, and customer appealed. The Supreme Court,
Mowbray, J., held that: (1) discretion was abused in granting new trial on ground that
information was intentionally concealed by a juror during voir dire, and (2) award to
customer of punitive damages of $97,900, which award amounted to less than 1.5 percent of
casino's annual net profit and less than 1/2 percent of its net worth, was not excessive.
Reversed.
[Rehearing denied August 27, 1984]
Galatz, Earl & Catalano, Las Vegas, for Appellant.
Cromer, Barker, Michaelson, Gillock & Rawlings, and Janice J. Brown, for Respondent.
1. New Trial.
To constitute misconduct, failure of a juror to answer a question touching upon his qualification
must amount to intentional concealment.
touching upon his qualification must amount to intentional concealment.
2. New Trial.
To justify a new trial, juror misconduct must be prejudicial, that is, it must have improperly influenced
the jury or tainted its verdict.
Ordinarily, determination of question of intentional concealment of information by juror during voir dire
is left with sound discretion of trial court.
Unless evidence supports trial court's decision on issue of juror's concealment of information during voir
dire, trial court's discretion is abused, and its exercise must be reversed.
To invalidate result of four-day trial because of juror's mistaken though honest response to question
during voir dire is to insist on something closer to perfection than the judicial system can be expected to
give.
6. New Trial.
Discretion was abused in granting new trial on ground that information was intentionally concealed
during voir dire by juror, who six weeks prior to trial had voluntarily turned himself in on unrelated matter
after receiving a call from a police detective; trial court had asked veniremen whether any of them had been
arrested for something other than traffic or similar violation, and juror, believing trial court meant only
involuntary apprehension or incarceration with physical resistance, did not affirmatively respond to the
question.
7. New Trial.
Award of punitive damages should not be disturbed unless it is so large as to appear to have been given
under the influence of passion or prejudice. NRCP 59(a)(6); NRS 42.010.
8. New Trial.
Large award of punitive damages alone does not conclusively indicate that passion and prejudice
influenced the trier of fact. NRCP 59(a)(6); NRS 42.010.
9. Damages.
Amount of award of punitive damages need not be proportional to the amount of compensatory damages.
NRCP 59(a)(6); NRS 42.010.
10. Damages.
Punitive damages are authorized for the sake of example and by way of punishing the defendant. NRCP
59(a)(6); NRS 42.010.
11. Damages.
Award to customer of casino of punitive damages of $97,900, which award amounted to less than 1.5
percent of casino's annual net profit and less than 1/2 percent of its net worth, was not excessive, where
customer had conscientiously attempted to assure the return of a lost wallet, and, for his concern, was
harassed, threatened, imprisoned, and manacled after being physically assaulted, was then escorted to jail
and handcuffed, booked, and held in jail for a good portion of a night, and was subsequently forced to incur
the substantial expense and ignominy of a criminal trial after casino pursued criminal prosecution. NRCP
59(a)(6); NRS 42.010.
OPINION
By the Court, Mowbray, J.:
This is an appeal from an order granting a new trial. Appellant, James R. Hale (Hale),
brought suit to recover damages caused by respondent Riverboat Casino, Inc. (Riverboat).
The jury favored him with its verdict following a four-day trial. Riverboat moved for a new
trial, alleging juror misconduct and excessive punitive damages. The district court initially
ordered a new trial unless Hale accepted a reduction in the amount of damages. Before Hale
could accept the remittitur, the district court sua sponte ordered an unconditional new trial.
Hale appeals this order arguing that there was no juror misconduct and that the damages
were not excessive. We agree and reverse, reinstating the jury verdict.
THE FACTS
On May 23, 1977, Hale was in Las Vegas attending a Far West Regional Conference
sponsored by the National Teacher Corporation. Hale came with a group from Portland,
Oregon. He holds a doctoral degree, and had been a professor at Portland State University for
more than twenty-one years, where he was administrator of the teacher education program.
The following narrative is drawn from the testimony in support of the jury's verdict.
On the evening of May 23, 1977, Hale and three members of his regional group played
keno at the Holiday Casino, owned by respondent Riverboat. Someone nearby noticed a
wallet next to Hale's chair, and pointed it out. Hale saw the wallet on the floor next to his
foot, and a man standing beside him reached down and handed it to him. Hale inquired of his
companions, but none of them owned the wallet. Hale searched for identification. He found
no identification, but did discover several hundred dollars in United States and Canadian
currency, a shopping list and a monogram on the wallet itself. The wallet appeared to be a
woman's wallet.
Hale reported his discovery to the keno window. A security guard soon appeared in the
keno lounge area, and Hale waved him over. Hale explained what had occurred. The guard
simply said: Okay, give me the billfold. Hale reiterated his story, suggesting that perhaps
the guard could make an announcement and have the owner come and identify it. According
to Hale, the guard simply said: I can't do that; then he stuck out his hand and said: Give
me the wallet, or Give me the money."
money. The guard left after Hale refused to hand over the wallet and Hale resumed playing
keno. Sometime later, Hale repeated the story to a second security officer, again asking
whether an announcement could be made. The security officer merely responded that he'd
better give it to Fitzgerald, the first guard. Hale expressed concern over dealing with the
first guard, whom he described as acting in an ugly and threatening manner.
Sometime later, Fitzgerald returned to where Hale was playing keno and demanded that
Hale move to the perimeter of the lounge area. After a joking response, Hale complied. Once
they were separated from the keno lounge by a bank of slot machines, Hale testified that the
guard backed him into the slot machines and demanded: Give me the money. Hale asked
for some assurance that the wallet would be returned to the owner, or that an announcement
be made. According to Hale he got his finger down in my face and he called me stupid-ass
boy, and he told me I was going to get myself in a lot of trouble if I didn't give him that
money and said he was going to call Metro. Hale refused to surrender the wallet without
assurances, and he rejoined his friends.
Soon Hale was introduced to a new officer, who was a member of the Las Vegas
Metropolitan Police Department. Hale repeated his story and his concern. The officer
suggested that Hale give the wallet to him, or turn it over to the first guard. When Hale
refused to do so, without assurances, the officer read him the Trespass Act, while the first
guard said he had better not try to leave. It was then suggested that they all go upstairs and
settle the matter. Hale consented, so long as his friends could accompany him.
The guards surrounded Hale and proceeded upstairs to an office. They entered the office
and the door was slammed shut and locked with Hale's friends outside, banging on the door
and attempting to talk to the guards. Hale was ordered to sit. The wallet was again demanded,
and Hale again requested assurance that it would be returned to its rightful owner. Hale
testified that someone said: Get up, so he stood, and was told to put his hands behind his
back. He did not know how many guards were in the room, but at least four of them came
toward him and one of them said: Let's teach this guy a lesson. They grabbed his wrists and
took his glasses out of his pocket. Then Hale testified that the guards yanked him out of the
corner, pulled his arms over his head, handcuffed him and threw him back into the chair.
They then took the billfold out of his pocket and sat down and began counting the money.
Hale asked to see a manager. He testified at this point that a man wearing a suit came
forward, leaned down and said: I am the manager and you are going to get just what you
deserve, and walked out of the office. Hale pleaded with the guards to take the handcuffs off.
One of the guards leaned down and said that Hale had called him a name, and no one has
ever gotten away with that.
Meanwhile, one of Hale's colleagues was rapping on the office window, calling out that
the woman who had lost the wallet was there. Some of the guards left the office, apparently to
return the wallet. The others got Hale up, saying: Come on, we are going downtown. As
Hale passed out of the office with the guards he saw a woman, crying, and expressed his
gratification that she had her wallet back. Then Hale and the guards proceeded downstairs,
and through the casino, Hale handcuffed and surrounded. The police officer put Hale in a car
and drove him downtown. He informed Hale that Fitzgerald had made a citizen's arrest at the
casino.
Hale was booked for disorderly conduct and obstructing a public officer. Despite his offer
of cash bail, he was stripped, body searched, sprayed for lice and placed into a crowded
holding cell. He was fingerprinted and photographed in jail coveralls. Several hours later he
was released onto the street, with a check in place of the cash that had been in his wallet.
Fortunately, he met his friends, and returned with them to his hotel.
Knowledge of his arrest became widespread among participants in the conference. He was
called upon to give an explanation to the entire group from Oregon, but faltered so from
humiliation that a colleague had to intercede and explain.
When Hale returned to Portland he was required to seek medical attention for a back
sprain which had occurred when the guards had pulled his arms. The pain persisted for two to
three months thereafter. Hale also testified that his standing and reputation had been injured
and that his educational consulting business had declined dramatically since the arrest.
Respondent pursued prosecution of Hale, and until the charges were resolved he felt
unable to attend other conferences where he might encounter persons from the Las Vegas
conference. Hale had to return to Las Vegas to defend the charges in a two-day trial. This
required retaining counsel and borrowing money to pay witnesses for flying to Las Vegas
from various parts of the country. He was acquitted after a two-day trial.
Hale brought the instant suit against Riverboat, acting through its agents and employees,
for negligence, assault and battery, false imprisonment, malicious prosecution,
defamation, and negligent andJor intentional infliction of emotional distress.
through its agents and employees, for negligence, assault and battery, false imprisonment,
malicious prosecution, defamation, and negligent and/or intentional infliction of emotional
distress. In his Amended Complaint Hale sought punitive, as well as compensatory damages.
After a four-day trial and approximately two hours of deliberations, a unanimous jury
verdict was reached in favor of Hale and against Riverboat as follows: compensatory
damages were awarded in the amount of $2,100 and punitive damages in the amount of
$97,900 for a total assessment of $100,000.
Thereafter, Riverboat brought motions to Recall Jurors to Order Background Checks on
the Jury Panel, and for New Trial and/or Remittitur. Opposition to these motions was filed
by Hale. Approximately five months later the district judge denied Riverboat's Motion to
Recall Jurors and ordered that Riverboat be granted a new trial if, within twenty days, Hale
did not consent to the following: increasing the compensatory damage award from $2,100 to
$8,000, and reducing the punitive damage award assessment from $97,900 to $30,000; i.e.,
modifying the total jury assessment from $100,000 to $38,000. Later, on the nineteenth day
after this decision, the trial judge informed counsel for both parties that he was going to
vacate his order reducing the jury verdict and granted Riverboat a new trial. This appeal
followed.
JUROR MISCONDUCT
Riverboat alleges that a juror's failure to reveal a prior arrest during the voir dire
examination constituted misconduct that justified the order for the new trial. We disagree.
Riverboat brought its charge of misconduct predicated upon affidavits of its counsel and a
single juror, Muriel Hines. Juror Hines' affidavit alleged that two unidentified jurors indicated
during their deliberations that they had been previously arrested. She could not remember the
two jurors' names. The affidavits of Riverboat's counsel indicated that one juror had been
arrested on a traffic warrant.
The trial judge then, sua sponte, investigated the arrest records of all eight jurors using a
computer system operated by the Las Vegas Metropolitan Police Department. He revealed
this to counsel at the hearing on the Motion for a New Trial and indicated that juror
Campanella had been less than truthful during voir dire.
[Headnotes 1, 2]
Riverboat alleges that there was juror misconduct requiring a new trial because juror
Campanella failed to reveal a prior arrest during voir dire examination.
new trial because juror Campanella failed to reveal a prior arrest during voir dire
examination. To constitute misconduct, the failure of a juror to answer a question touching
upon his qualification must amount to intentional concealment. See Walker v. State, 95 Nev.
321, 323, 594 P.2d 710, 711 (1979); Walkowski v. McNally, 87 Nev. 474, 476, 488 P.2d
1164, 1165 (1971). To justify a new trial, the misconduct must be prejudicial, that is, it must
have improperly influenced the jury or tainted its verdict. See Walker, 95 Nev. at 323, 594
P.2d at 711; see also Barker v. State, 95 Nev. 309, 594 P.2d 719 (1979).
[Headnotes 3, 4]
Ordinarily, the determination of the question of intentional concealment is left with the
sound discretion of the trial court. Walker, 95 Nev. at 323, 594 P.2d at 711; McNally v.
Walkowski, 85 Nev. 696, 701, 462 P.2d 1016, 1019 (1969). But unless the evidence supports
the court's decision, that discretion is abused, and its exercise must be reversed.
During voir dire examination of the jury, the trial court asked the veniremen:
Is there anybody here, and I don't ask these questions to embarrass you, but are there
any of you who have been subject to an arrest other than traffic violations and things
like that?
Juror Campanella did not respond. His affidavit reveals that six weeks prior to trial he had
had a termination problem with his employer and had unlawfully removed a typewriter from
his employer's premises. The police were informed, and he received a call from a detective,
who gave him the choice of turning himself in to the police, or being arrested. The juror
chose to turn himself in, and after the trial of the instant case received probation. His affidavit
shows that he did not think he had been arrested, and believed the trial court in its question
meant an involuntary apprehension or incarceration with physical resistance.
Juror Campanella's affidavit stands uncontradicted. It does not support a conclusion of
intentional concealment. If he reasonably understood the question during voir dire to exclude
his particular experience from the category arrest, he cannot be said to have intentionally
concealed that experience in failing to respond. We note that although arrest is statutorily
defined, see NRS 171.104, this Court has nevertheless been called upon to construe the term.
See A Minor v. State, 91 Nev. 456, 463, 537 P.2d 477, 481 (1975). A layman's confusion is
reasonable under such facts.
[Headnote 5]
As the Supreme Court of the United States recently held:
To invalidate the result of a three-week trial because of a juror's mistaken, though
honest response to a question, is to insist on something closer to perfection than our
judicial system can be expected to give, McDonough Power Equipment v. Greenwood,
42 U.S.L.W. 4126, 4128, 104 S. Ct. 845, 850, ___ U.S. ___ (1984).
[Headnote 6]
The trial court abused its discretion in granting a new trial under the circumstances
presented in this case.
DAMAGES
In support of its motion for a new trial, Riverboat argued that the punitive damages were
excessive. Hale contends on appeal that the punitive damage award of $97,900 was not so
excessive as to justify a new trial. We agree.
Recently, we reiterated the general rule regarding the award of excessive punitive
damages:
Heretofore, we have recognized the subjective nature of punitive damages [citation
omitted] and the absence of workable standards by which to evaluate the propriety of
such an award. Accordingly, we have allowed that determination to rest with the
discretion of the trier of the fact [citation omitted] unless the evidence introduced at
trial shows that the amount awarded by the jury would financially destroy or annihilate
the defendant [citation omitted] in which event we would attempt an appropriate
adjustment of the award.
Bull v. McCuskey, 96 Nev. 707, 711, 615 P.2d 957, 961 (1980). See also Summa Corp. v.
Greenspun, 98 Nev. 528, 535-36, 655 P.2d 513, 517 (1982) (one million dollars not excessive
in light of defendant's net worth).
[Headnotes 7-10]
The award should not be disturbed unless it is so large as to appear to have been given
under the influence of passion or prejudice. NRCP 59(a)(6). A large award alone does not
conclusively indicate that passion and prejudice influenced the trier of fact. Nevada Cement
Co. v. Lemler, 89 Nev. 447, 453, 514 P.2d 1180, 1184 (1973). The amount of an award need
not be proportional to the amount of compensatory damages. Northern Nev. Mobile Home v.
Penrod, 96 Nev. 394, 610 P.2d 624 (1980); Randono v. Turk, 86 Nev. 123, 466 P.2d 218
(1970).
Rather, punitive damages are authorized for the sake of example and by way of punishing
the defendant. NRS 42.010. See Northern Nev. Mobile Home v. Penrod, supra; Miller v.
Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962).
In the case at bar the facts regarding Riverboat's culpability are essentially undisputed. The
security guards' acts were inexcusable. Hale conscientiously attempted to assure the return of
the lost wallet. For his concern he was harassed, threatened, imprisoned and manacled after
being physically assaulted. Hale was then escorted to jail in handcuffs, booked and held in jail
for a good portion of the night. Riverboat's employees participated in Hale's prosecution,
causing him not only the ignominy of a criminal trial, but also the incurrence of substantial
expense.
The award in this case at the time of the jury verdict amounted to less than 1.5 percent of
Riverboat's annual net profit, and less than 1/2 percent of its net worth. It is clear that the
award will not financially destroy or annihilate Riverboat.
[Headnote 11]
The amount of damages was not large nor excessive, in view of Riverboat's net worth. Our
judicial conscience is not shocked. For these reasons we find that the trial judge abused his
discretion in ordering a new trial.
We accordingly reverse the order for a new trial and we reinstate the jury verdict.
Manoukian, C. J., and Springer, Steffen, and Gunderson, JJ., concur.
____________
100 Nev. 307, 307 (1984) Foley v. City of Reno
DENNIS FOLEY, Appellant, v. CITY
OF RENO, Respondent.
No. 14674
May 16, 1984 680 P.2d 975
Appeal from involuntary dismissal under NRCP 41(b) in a personal injury suit. Second
Judicial District Court, Washoe County; Roy L. Torvinen, Judge.
Appeal was taken from a judgment of the district court from involuntary dismissal suit
against city by pedestrian hit by automobile at city intersection. The Supreme Court held that
city was not immune from liability under statute precluding an action against state or political
subdivision based on exercise or performance or failure to exercise or perform
discretionary function.
performance or failure to exercise or perform discretionary function.
Echeverria and Osborne, Chartered, Reno, for Appellant.
Shamberger, Georgeson, McQuaid & Thompson, Chartered, Reno, for Respondent.
Automobiles
While decision to construct intersection and to install crosswalk at city intersection may have been a
discretionary decision within statute precluding action against state or political subdivision based on
exercise or performance or failure to exercise or perform discretionary function, once that decision was
made city was obligated to use due care to make certain that intersection met standard of reasonable safety
for those who chose to use it; therefore, statute did not render city immune from liability in suit by
pedestrian, who was hit by an automobile at intersection, and who alleged that city had notice of dangerous
intersection and that city unreasonably failed to install adequate warning or traffic control devices for
protection of pedestrians. NRS 41.032, subd. 2.
OPINION
Per Curiam:
This is an appeal from a judgment of involuntary dismissal under NRCP 41(b). The
district court ruled that respondent City of Reno was immune from liability as a matter of
law. For the reasons expressed below, we reverse.
On December 12, 1981, appellant was hit by an automobile while he was walking across
the street at an intersection in Reno. Appellant sued the City, alleging that the City had notice
of the dangerous intersection and that the City unreasonably failed to install adequate warning
or traffic control devices for the protection of pedestrians.
At trial appellant presented evidence that the City was negligent. At the close of appellant's
case, however, the City moved for a dismissal pursuant to NRCP 41(b) on the ground that the
action or inaction complained of was discretionary, and that the City was therefore immune
from suit by virtue of NRS 41.032(2). The district court granted the motion, and this appeal
followed.
NRS 41.032(2) precludes an action against the state or a political subdivision [b]ased on
the exercise or performance or the failure to exercise or perform a discretionary function or
duty . . . whether or not the discretion involved is abused. The issue in this appeal is whether
the statute provides immunity to the City in the circumstances of this case.
In Harrigan v. City of Reno, 86 Nev. 678, 475 P.2d 94 {1970), the City of Reno had failed
to install warning signs and guard rails near a dangerous edge of a city-owned parking
lot.
(1970), the City of Reno had failed to install warning signs and guard rails near a dangerous
edge of a city-owned parking lot. In determining whether the City's conduct was discretionary
under the statute, we noted that the original decision to construct the parking lot was
discretionary. As to the warning signs and guard rails, however, we held:
Once having decided to construct a parking lot, the city was obligated to use due
care to make certain that the parking lot met the standard of reasonable safety for those
who would use it. Such was the operational stage for which the statute does not exempt
the city from liability if due care has not been used and an injury is caused.
86 Nev. at 680, 475 P.2d at 95.
Similarly, in State v. Webster, 88 Nev. 690, 504 P.2d 1316 (1972), the State of Nevada
had constructed a controlled-access freeway, but the State had not installed a cattleguard at a
freeway entrance located near a livestock pasture. In rejecting the State's argument that
construction of the cattleguard was discretionary and that the State was immune from
liability, we recognized that the decision to construct the freeway itself was discretionary. As
to the cattleguard, however, we held:
Once the decision was made to construct a controlled-access freeway in the area
where this accident happened, the State was obligated to use due care to make certain
that the freeway met the standard of reasonable safety for the traveling public. This is
the type of operational function of government not exempt from liability if due care has
not been exercised and an injury results.
88 Nev. at 693-94, 504 P.2d at 1319.
The present case is similar to Harrigan and Webster. The decision to construct the
intersection and to install the crosswalk may have been a discretionary decision, but once that
decision was made the City was obligated to use due care to make certain that the intersection
met the standard of reasonable safety for those who chose to use it. The City was not immune
from liability under the statute. Cases cited by respondent are either not applicable or are
distinguishable on their facts.
Springer, A.C.J., Mowbray, Steffen, and Gunderson, JJ., and Zenoff, Sr. J.,
1
concur.
____________________

1
The Honorable David Zenoff, Senior Justice, was assigned to participate in this case in the place of Chief
Justice Noel E. Manoukian, who voluntarily disqualified himself. Nev. Const., art. 6, 19.
____________
100 Nev. 310, 310 (1984) Rando v. Calif. St. Auto. Ass'n
STEPHANIE RITZER RANDO, HAROLD S. RITZER, SHARON S. RITZER, S.
GREGORY THOMAS, BOB L. THOMAS, VIRGINIA R. THOMAS, DOROTHY
KATHERINE WILLIAMS, Individually; MICHELE ELIZABETH WILLIAMS, a Minor
Through Her Guardian Ad Litem DOROTHY KATHERINE WILLIAMS, RICHARD
WILLIAMS, and REBECCA OFENLOCH, Appellants, v. CALIFORNIA STATE
AUTOMOBILE ASSOCIATION, Respondent.
No. 14150
June 26, 1984 684 P.2d 501
Appeal from summary judgment on complaint for declaratory judgment. Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
Insurance company brought action for declaratory relief to determine whether stacking of
nonowned automobile bodily injury liability should be allowed. The district court granted
summary judgment in favor of insurance company and defendants appealed. The Supreme
Court held that stacking of coverages for nonowned automobile insurance for bodily injury
liability was not allowed.
Affirmed.
Dennis M. Sabbath; Gang & Berkley, and Thomas L. Leeds; Lehman & Nelson, Las
Vegas, for Appellants.
Vargas & Bartlett, and Thomas F. Kummer; Pomeranz, Crockett & Myers, Las Vegas, for
Respondent.
1. Automobiles.
Statutes do not require owner of automobile to maintain liability coverage in excess of minimum amounts
specified in law nor increase minimum coverage as a result of multiple vehicle ownership by an insured.
NRS 485.3091.
2. Insurance.
First-person insurance in automobile policy focuses on the person of the insured and specified
beneficiaries and includes uninsured motorist coverage.
3. Insurance.
Third-party liability coverage in automobile policy derives from the ownership or use by an insured of
a vehicle and is written to protect insured's assets from third-party claims.
4. Insurance.
Burden of proof was on party claiming that nonowned vehicle automobile coverage could be stacked to
prove that insurance company charged a separate premium to extend liability coverage to use of nonowned
vehicles.
5. Insurance.
A separability clause of insurance policy, which accomplished nothing more than avoidance of
necessity of issuing a separate policy for each of insured's vehicles, was not intended to facilitate the
stacking of coverages.
6. Insurance.
The stacking of coverages permitted for uninsured motorist coverage and basic reparation benefits has
no application to motor vehicle bodily injury liability insurance.
7. Insurance.
Under automobile policy of parent which covered minor driver for nonowned automobile liability, there
was no entitlement to stacking of nonowned automobile liability coverage limit, even where the policy
covered three automobiles.
OPINION
Per Curiam:
This appeal arises from a summary judgment on a complaint for declaratory relief brought
by respondent California State Automobile Association (CSAA), which held that the stacking
of non-owned automobile insurance coverage for bodily injury liability should not be allowed
in this case. For the reasons set forth hereafter, we affirm.
The undisputed facts giving rise to respondent CSAA's complaint for declaratory relief
revolve around an automobile accident on June 3, 1977. On that date, Stephanie Ritzer Rando
(Ritzer-Rando), a minor, was operating a borrowed vehicle which was owned by S. Gregory
Thomas (Thomas). Ritzer-Rando was involved in a rear-end collision which injured the
driver of a truck, Max Williams, who later died. A wrongful death action was instituted
against both Ritzer-Rando and her mother, Sharon Ritzer (Ritzer), by Dorothy and Michelle
Williams, wife and daughter of the accident victim. A second wrongful death action was later
filed by two of the victim's adult heirs, Richard Williams and Rebecca Ofenloch.
The vehicle driven by Ritzer-Rando was one of four vehicles insured by CSAA under a
single policy issued to Thomas. CSAA also insured three cars owned by Ritzer under a single
policy of insurance.
CSAA filed a complaint for declaratory relief and for supplemental relief in interpleader
against all parties, and thereafter cross-motions for summary judgment were filed by all
parties. After oral argument, the lower court denied all motions for summary judgment. A
motion for rehearing was granted, after which a second hearing was held. The district court
then granted Insurer's motion for summary judgment and denied the other parties'
cross-motions.
the other parties' cross-motions. In its findings, the lower court accepted Insurer's position
that it was liable in the amount of $15,000 under the omnibus provisions of the Thomas
policy, and was further liable only in the amount of $15,000 under the non-owned
automobile provisions of the Ritzer policy. The court rejected the argument that the Ritzer
policy allowed for stacking the liability limits because more than one automobile was
covered under that insurance policy.
This appeal followed.
It is conceded by all parties that CSAA must afford $15,000 coverage under the omnibus
provision of the Thomas policy. It is also conceded that both Ritzer-Rando and Ritzer are
covered under the provisions of the Ritzer policy, Ritzer-Rando because she was a relative of
the named insured, using a non-owned automobile, and Ritzer because she was the statutory
driver's license sponsor of Ritzer-Rando. The essential issue for our consideration is whether
the bodily injury liability coverage on each of the three Ritzer vehicles may be stacked,
thereby increasing threefold the limits of coverage under the non-owned automobile
provisions of the Ritzer policy.
This Court has allowed the stacking of insurance coverage for both uninsured motorist
coverage and basic reparation benefits under the repealed no-fault statutes. See Allstate
Insurance Company v. Maglish, 94 Nev. 699, 586 P.2d 313 (1978) (allowed stacking of
uninsured motorist coverage where two vehicles were covered by a single policy of
insurance); State Farm Mutual Automobile Insurance Company v. Christensen, 88 Nev. 160,
494 P.2d 552 (1972) (upheld stacking of uninsured motorist coverage under five separate
policies issued by insurer for five different cars); United Services Automobile Association v.
Dokter, 86 Nev. 917, 478 P.2d 583 (1970) (allowed stacking of uninsured motorist
coverage under two separate policies issued on two different cars by the same insurance
carrier). See also Carrillo v. State Farm Mutual Automobile Insurance Company, 96 Nev.
793, 618 P.2d 351 (1980) (allowed stacking of survivor's benefit on each of five separate
no-fault insurance policies issued by same insurer); Cooke v. Safeco Insurance Company, 94
Nev. 745, 587 P.2d 1324 (1978) (allowed stacking of basic reparation benefits under one
insurance policy which insured two vehicles); Travelers Insurance Company v. Lopez, 93
Nev. 463, 567 P.2d 471 (1977) (stacking of basic reparation benefits under Nevada No-Fault
Act approved where two separate no-fault policies from two different companies covered the
same vehicle).
We have not previously dealt with a case in which stacking has been requested under a
policy covering liability for bodily injury stemming from the ownership, use or
maintenance of an owned automobile, or, as is the case here, a non-owned automobile.
bodily injury stemming from the ownership, use or maintenance of an owned automobile, or,
as is the case here, a non-owned automobile. However, our review of Nevada statutes,
apposite case law, the CSAA policy of insurance and the circumstances of this case convinces
us that stacking of the non-owned automobile coverage for bodily injury liability is
inappropriate.
[Headnote 1]
Under our statutes, every policy of motor vehicle liability insurance must include coverage
of the named insured against loss from legal liability for damages arising from the ownership,
maintenance or use of an owned vehicle covered in the policy and from the use by an insured
of a non-owned vehicle. NRS 485.3091.
1
Our statutes, however, do not require an insured to
maintain liability coverage in excess of the minimum amounts specified under Nevada
law.
____________________

1
NRS 485.3091 states, in pertinent part:
1. A motor vehicle liability policy as the term is used in this chapter means an owner's or an
operator's policy of liability insurance issued, except as otherwise provided in NRS 485.309, by an
insurance carrier duly authorized to transact business in this state, to or for the benefit of the person
named therein as insured.
2. Such an owner's policy of liability insurance must:
(a) Designate by explicit description or by appropriate reference all motor vehicles with respect to
which coverage is thereby to be granted; and
(b) Insure the person named therein and any other person, as insured, using any such motor vehicle or
motor vehicles with the express or implied permission of the named insured, against loss from the
liability imposed by law for damages arising out of the ownership, maintenance or use of such motor
vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to
limits exclusive of interest and costs, with respect to each such motor vehicle, as follows: $15,000
because of bodily injury to or death of one person in any one accident, and, subject to the limit for one
person, $30,000 because of bodily injury to or death of two or more persons in any one accident, and
$10,000 because of injury to or destruction of property of others in any one accident.
3. Such 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 not owned by him, within the same territorial limits and subject to the same limits of
liability as are set forth above with respect to an owner's policy of liability insurance.
4. Such a motor vehicle liability policy must state the name and address of the named insured, the
coverage afforded by the policy, the premium charged therefor, the policy period and the limits of
liability, and must contain an agreement or be endorsed that insurance is provided thereunder in
accordance with the coverage defined in this chapter as respects bodily injury and death or property
damage, or both, and is subject to all the provisions of this chapter.
. . . .
7. Any policy which grants the coverage required for a motor
insured to maintain liability coverage in excess of the minimum amounts specified under
Nevada law. Nor do they require any increase in minimum coverage as a result of multiple
vehicle ownership by an insured. There consequently is no ascertainable public policy
supporting appellants' contention that liability policies covering multiple vehicles must be
construed to allow stacking of the vehicle coverages in order to increase limits of liability
protection beyond the minimums provided by law. To the contrary, the legislature has limited
its mandate on the subject to prescribed minimum amounts of coverage.
[Headnotes 2, 3]
In addition to the public policy argument which we reject, appellants seek to validate their
position by claiming parity with our decisions permitting stacking in the areas of uninsured
motorist coverage and basic reparation benefits under erstwhile no-fault statutes. It is
manifestly apparent, however, that no such parity exists. In contradistinction to the
first-person coverage declared stackable under our cases cited above, we are here concerned
with third-party bodily liability coverage available to an insured as a result of the ownership,
use or maintenance of a vehicle. The first-person insurance focuses on the person of the
insured and specified beneficiaries, whereas the third-party liability coverage derives from the
ownership or use by an insured of a vehicle. Emick v. Dairyland Insurance Company, 519
F.2d 1317 (4th Cir. 1975). The latter coverage extends to both owned and non-owned
vehicles as provided in the CSAA policy of liability insurance and by Nevada law. NRS
485.3091. The basic reparation benefits declared stackable under Travelers Insurance Co. v.
Lopez and Cooke v. Safeco Insurance Co., supra, provided protection to the person of the
insured and specified relatives whenever injured by vehicular impact. This type of coverage
was afforded irrespective of fault and applied without regard to the ownership or operation of
the vehicle involved in the injury. Similarly, the uninsured motorist coverage protects the
insured and designated beneficiaries from injuries caused by an uninsured third party.
____________________
vehicle liability policy may also grant any lawful coverage in excess of or in addition to the coverage
specified for a motor vehicle liability policy, and the excess or additional coverage is not subject to the
provisions of this chapter. With respect to a policy which grants such excess or additional coverage the
term motor vehicle liability policy applies only to that part of the coverage which is required by this
section.
8. Any motor vehicle liability policy may provide for the prorating of the insurance thereunder with
other valid and collectible insurance.
9. The requirements for a motor vehicle liability policy may be fulfilled by the policies of one or
more insurance carriers, which policies together meet those requirements. . . .
motorist coverage protects the insured and designated beneficiaries from injuries caused by
an uninsured third party. In each instance, the coverage is of the first-person variety which
approximates personal accident policies in kind. Allstate Insurance Company v. Mole, 414
F.2d 204, 206-07 (5th Cir. 1969); Government Employees Insurance Company v. Sweet, 186
So.2d 95, 97 (Fla.App. 1966); Hendrickson v. Cumpton, 654 S.W.2d 332, 334 (Mo.App.
1983); 8C J. Appleman, Insurance Law and Practice (Berdal ed.), 5080 (1981).
Our decisions relating to uninsured motorist and basic reparations coverage emphasized
the fact that separate premiums were paid for this type of first-person protection in connection
with each insured vehicle. A reasonable expectancy of an insured in paying such premiums is
an increase in personal coverage akin to that occurring when multiple life or medical policies
are acquired. In each instance the person is the subject of the coverage and it is not relevant
that the protection afforded in the form of uninsured motorist coverage or basic reparation
benefits is attached to a policy of motor vehicle liability insurance. As observed by the court
in Emick v. Dairyland Insurance Company:
Although at times an unstated premise, it is precisely the floating, personal accident
insurance character of medical payments and uninsured motorists coverage which has
led courts to ignore the fact that these coverages have been engrafted onto liability
policies insuring particular cars, and to hold that where double premiums have been
paid, whether under a single policy covering more than one automobile, or whether
under separate and independent policies, double coverage has been purchased, and
stacking will be allowed, . . .
519 F.2d at 1325-26 (footnote omitted).
The same policy considerations which have prompted judicial approbation of stacking in
the areas noted above do not apply to third-party liability insurance. The latter coverage is
written to protect an insured's assets from third-party claims resulting from an insured's
operation or maintenance of an owned or non-owned vehicle. This type of coverage
essentially focuses on a particular vehicle without which the protection would not exist.
Typical underwriting practices would lead a reasonable person to understand that if he or she
owned two or more vehicles, and only one of the vehicles was covered by a motor vehicle
liability policy, the protection afforded under that policy would not extend to the vehicles
which were uninsured. Furthermore, if our hypothetical insured owned two vehicles, each of
which was covered by a liability policy underwritten by a different insurance company, he
or she could hardly expect that the protection of both policies would apply in combination
when the insured was driving one of the vehicles.
vehicles, each of which was covered by a liability policy underwritten by a different insurance
company, he or she could hardly expect that the protection of both policies would apply in
combination when the insured was driving one of the vehicles. With these concepts in mind it
is apparent that appellants have no rational basis for their position. The practical effect of
appellants' contention may be illustrated as follows. A person who owns three vehicles and
insures each under a single policy or multiple policies for the sum of $100,000/$300,000
would in reality enjoy liability coverage on each vehicle in the sum of $300,000/$900,000.
Nowhere is it suggested that the insured actually pays a premium based upon the higher
coverage. Yet, the smaller coverage is transmuted to the larger solely because of the multiple
number of vehicles insured. The result of such a convoluted process would be apparent.
Insurers would be forced to increase premium costs commensurate with the higher coverage
established by judicial fiat.
There appears to us to be no logical basis for differentiating between owned and
non-owned vehicles in analyzing the availability of stacking under a single multiple-vehicle
liability policy. In either instance, the insured pays an agreed premium for a desired amount
of liability protection. The premium paid will entitle an insured to the specified amount of
protection attached to each owned vehicle identified in the policy. Additionally, the specified
coverage extends to the use by an insured of a non-owned vehicle, thereby assuring the
insured of constant liability coverage while operating any vehicle (excluding an owned
vehicle which is uninsured or a non-owned vehicle used without the owner's permission).
Appellants seem to contend, however, that absent proof to the contrary, it must be assumed
that Ritzer paid an unspecified sum for the extension of liability coverage to the use of a
non-owned vehicle in connection with each premium on the three owned vehicles. Appellants
conclude, therefore, that since three such premiums were paid by Ritzer, stacking should be
allowed consonant with our decisions respecting uninsured motorists and basic reparation
coverages. We do not agree.
[Headnote 4]
First, it was appellants' burden to prove that CSAA charged a separate premium to extend
liability coverage to the use of non-owned vehicles. American Liberty Insurance Company v.
Ranzau, 473 S.W.2d 249, 254 (Tex.Civ.App. 1971), aff'd, 481 S.W.2d 793 (Tex. 1972).
Appellants did not meet that burden. Secondly, even if we were to speculate dehors the record
and assume that the insurer factored in an allowance for the extension of coverage to a
non-owned vehicle, it is apparent that all but an insubstantial amount of the liability
premium would be allocable to the owned, insured vehicle.
assume that the insurer factored in an allowance for the extension of coverage to a non-owned
vehicle, it is apparent that all but an insubstantial amount of the liability premium would be
allocable to the owned, insured vehicle. Allstate Insurance Company v. Zellars, 462 S.W.2d
550, 555-56 (Tex. 1970); 12 Couch on Insurance 45:249 (2d rev. ed. 1981). Moreover,
assuming it could be shown in the record that an element of cost was attached to the
extension of coverage to an insured while driving a non-owned vehicle, we are not offended
by the prospect of such a cost factor. In transferring liability protection to a non-owned
vehicle, the insurer is without advance knowledge of the type or condition of any such vehicle
and the risk to the insurer may thereby be perceptibly increased. Finally, since the liability
coverage available to an insured while using a non-owned vehicle derives from that accorded
an insured, owned vehicle, it defies reason to conclude that non-owned vehicle usage expands
an insured's liability coverage beyond that enjoyed while using an owned vehicle. In any
event, we have ascertained no basis in law, reason, public policy or the CSAA contract of
liability insurance in support of the proposition that appellants are entitled to indemnity in an
amount three times greater than that afforded under the policy in connection with each of the
insured vehicles.
[Headnote 5]
Appellants also refer us to the separability clause of the policy as a basis for the result they
seek. It is clear, however, that this provision of the insurance contract accomplishes nothing
more than avoiding the necessity of issuing a separate policy for each of the insured vehicles.
As stated by the court in Pacific Indemnity Company v. Thompson, 355 P.2d 12, 12 (Wash.
1960) concerning the separability clause:
[T]hat provision merely assures the applicability of the policy to whichever car is
involved in an accident, or to all the cars, and does no more.
The separability clause was not intended to facilitate the stacking of coverages. Dixon v.
Empire Mutual Insurance Company, 456 A.2d 335, 339 (Conn. 1983); annot., 37 A.L.R.3d
1263 (1971 and Supp. 1976).
[Headnotes 6, 7]
Our analysis of appellants' position causes us to add our imprimatur to the uniform
conclusion reached by courts in other jurisdictions disallowing stacking. We accordingly hold
that the stacking of coverages determined by this Court to be applicable to uninsured
motorist coverage and basic reparation benefits has no application to motor vehicle bodily
injury liability insurance.
applicable to uninsured motorist coverage and basic reparation benefits has no application to
motor vehicle bodily injury liability insurance. Consequently, the judgment of the district
court is affirmed.
____________
100 Nev. 318, 318 (1984) State, Emp. Sec. Dep't v. Taylor
STATE OF NEVADA ON RELATION OF THE EMPLOYMENT SECURITY
DEPARTMENT, Appellant, v. EDWARD TAYLOR, Respondent.
No. 14156
June 26, 1984 683 P.2d 1
Appeal from judgment ordering appellant administrative agency to reinstate respondent
employee, Second Judicial District Court, Washoe County; John W. Barrett, Judge.
Personnel Advisory Commission upheld the dismissal of employee by Employment
Security Department and employee petitioned for judicial review. The district court ordered
Department to reinstate employee and awarded him full back pay and benefits, and
Department appealed. The Supreme Court held that: (1) employee was wrongfully
discharged, and (2) award of back pay and benefits should have been reduced by amounts
employee earned from other employment after he was terminated.
Affirmed as modified.
Robert Manley, Reno, for Appellant.
Stephens, Kosach, Knight & Edwards, Reno, for Respondent.
In reviewing decision of administrative agency, Supreme Court, like district court, is limited to
determining whether agency has acted arbitrarily or capriciously.
In reviewing decision of administrative agency, the question is whether agency's decision was based on
substantial evidence. NRS 233B.140, subd. 5.
Evidence did not support reasons given for termination of employee of Employment Security Department
nor was there reasonable nexus between conduct for which employee was terminated and his qualifications
for his position; thus, employee was wrongfully discharged.
4. Officers and Public Employees.
Where employee was reinstated after being wrongfully discharged and was awarded back pay and
benefits, award of back pay and benefits should have been reduced by amounts employee earned from
other employment after he was terminated.
OPINION
Per Curiam:
This is an appeal from a judgment ordering appellant Nevada State Employment Security
Department to reinstate respondent employee and awarding him full back pay and benefits.
We agree with the district court's determination that there was no reasonable connection
between the conduct for which respondent was terminated and his job performance, and we
affirm the judgment. However, we remand to the district court so that the award of back pay
and benefits may be reduced by the amounts earned by respondent from other employment
since his termination.
Respondent was employed at the Equal Employment Opportunity Department (EEO) of
appellant agency, where his duties included investigating complaints of employment
discrimination. In April, 1976, he initiated a request to have his job classification changed
and his grade raised. Personnel Analyst Renate Daniels conducted a study and recommended
against raising respondent's grade. After a second study reached the same conclusion,
respondent requested a hearing before the Personnel Advisory Commission. The hearing was
held on May 19, 1977, and respondent expressed his belief that Daniels' study had not been
fairly conducted and that he was the victim of discrimination. The matter was again discussed
before the Commission on August 25, and before several officials of appellant agency on
September 19. However, the focus was no longer on respondent's request to have his grade
raised but rather on the allegations he had made at the May 19 hearing. Pressed to explain the
basis for his allegations of unfairness, respondent became angry and sarcastic. On October 24,
1977, respondent's employment was terminated.
The notice of dismissal stated that respondent was being dismissed due to the following
violations of Rule XII of the Rules for Personnel Administration:
(a) Disgraceful personal conduct which impairs job performance or causes discredit to the
agency,
(b) Incompetence or inefficiency, {c) Discourteous treatment of the public or fellow
employees while on duty, and
(c) Discourteous treatment of the public or fellow employees while on duty, and
(d) Dishonesty.
1

Respondent filed a petition for judicial review of the agency's action. The district court
remanded to the Commission for a de novo hearing; the Commission upheld respondent's
dismissal. A second petition for judicial review resulted in the decision which is being
appealed.
[Headnotes 1-3]
In reviewing the decision of an administrative agency this court, like the district court, is
limited to determining whether the agency has acted arbitrarily or capriciously. McCracken v.
Fancy, 98 Nev. 30, 31, 639 P.2d 552, 553 (1982). The question is whether the agency's
decision was based on substantial evidence. Id.; NRS 233B.140(5). The district court
determined that the evidence did not support the reasons given for respondent's termination;
nor was there a reasonable nexus between the conduct for which respondent was terminated
and his qualifications for his position. Our review of the record leads us to agree with the
district court.
The charges against respondent all arise from his conduct at the May 19 and August 25
meetings. We do not doubt that respondent's conduct was inappropriate, and some
disciplinary action may have been warranted. Nevertheless, it does not follow, as appellant
claims, that respondent's behavior at the meetings denoted his unfitness for the position he
held. Appellant agency contends that respondent demonstrated a lack of the ability to
exercise [the] tact and judgment [that] are probably the most essential elements of the duties
and responsibilities of an EEO officer in the Employment Security Department. The record
shows, however, that respondent continued to perform his duties in a competent and
satisfactory manner after the meetings.
Neither can respondent's conduct be properly characterized as discourteous treatment of
the public or fellow employees while on duty. The district court found that the incidents
occurred while respondent was appearing on his own behalf regarding his advancement
within appellant agency. There is no evidence of any lack of courtesy by respondent to the
public or fellow employees during the performance of his duties or indeed at any time except
at the two meetings.
The record also shows that respondent was never notified that his conduct could result in
his dismissal; not until September 19 was he informed that some type of disciplinary
action was being contemplated.
____________________

1
These reasons constitute some of the causes for appropriate disciplinary or corrective action enumerated
in Section D of Rule XII.
that his conduct could result in his dismissal; not until September 19 was he informed that
some type of disciplinary action was being contemplated. Section A of Rule XII of the Rules
for Personnel Administration provides that if an employee's conduct comes under one of the
causes for action listed in Section D, the employee must be promptly informed of his
deficiencies. Moreover, except when the seriousness of the offense warrants, dismissal is
proper only after other forms of disciplinary action have proved ineffective.
2
Rule XII(C).
No disciplinary measure were taken against respondent until he was terminated. Appellant's
failure to attempt to remedy the situation by means short of dismissal was clearly contrary to
Rule XII.
[Headnote 4]
Consequently, the facts disclosed by the record do not support the charges against
respondent. We agree with the district court that there was no connection between
respondent's conduct at the May and August meetings and his qualifications for his position,
and that respondent was wrongfully discharged.
3
Accordingly, we affirm the district court's
judgment reinstating respondent in his position with appellant agency along with back pay
and benefits. However, the award of back pay and benefits should be reduced by the amounts
respondent earned from other employment after he was terminated. See Schall v. State ex rel.
Dep't Human Res., 94 Nev. 660, 587 P.2d 1311 (1978). We remand to the district court for
modification of the award of back pay and benefits in accordance with this opinion.
____________________

2
NRS 284.383, which was enacted in 1979 and thus was not in effect at the time of respondent's termination,
requires the personnel commission to adopt a system under which more severe measures are applied only if less
severe measures have failed to correct the employee's deficiencies.

3
The district court also determined that respondent had been terminated for conduct falling within the scope
of first amendment protection. In light of our conclusion that respondent's conduct did not provide sufficient
cause for his termination, we do not need to reach the constitutional issue.
____________
100 Nev. 322, 322 (1984) Nyberg v. Nev. Indus. Comm'n
GREG NYBERG, Appellant, v. NEVADA INDUSTRIAL
COMMISSION, Respondent.
No. 14238
ALICE JACKSON, Appellant, v. NEVADA INDUSTRIAL
COMMISSION, Respondent.
No. 14239
June 26, 1984 683 P.2d 3
Consolidated appeals from order affirming dismissal of administrative claims, Eighth
Judicial District Court, Clark County; John F. Mendoza, Judge.
On consolidated appeals from order of the district court affirming dismissal of two
administrative appeals from rulings by the Industrial Commission rejecting workmen's
compensation claims, the Supreme Court held that civil procedural rules relating to
computation of periods of time prescribed or allowed by, inter alia, rules, order, or statutes
and providing three-day grace period when notice or paper is served by mail are applicable to
statutory period for filing appeals in workmen's compensation claim matters, with effect that
appeals in question herein were both timely filed.
Michael P. Wood, Las Vegas, for Appellants.
Michael E. Rowe, Las Vegas, for Respondent.
Proper construction of 30-day appeal period relating to Industrial Commission rulings being a legal,
rather than factual, question, independent appellate review, as opposed to a more deferential standard of
review, is appropriate. NRS 616.5422, subd. 1.
Statutory period for filing appeals in workmen's compensation claim matters should be liberally
construed. NRS 616.5422, subd. 1.
Civil procedural rules relating to computation of periods of time prescribed or allowed by, inter alia,
rules, orders, and statutes and providing for three-day grace period when notice or paper is served by mail
are applicable to statutory period for filing appeals in workmen's compensation claim matters, with effect
that particular appeals in issue were both timely filed. NRS 616.5422, subd. 1; NRCP 6(a)(e).
OPINION
Per Curiam:
These are consolidated appeals from a single district court order affirming the dismissal
of two administrative appeals.
court order affirming the dismissal of two administrative appeals. In both cases the
Department of Administration appeals officers dismissed administrative appeals from rulings
by hearing officers of the Nevada Industrial Commission (NIC, now known as the State
Industrial Insurance System). The NIC hearing officers had rejected workmen's
compensations claims. The dispositive issue before this court is whether NRCP 6(a) and 6(e)
1
apply to NRS 616.5422(1),
2
thus lengthening the period in which appellants could timely
file their administrative appeals. We hold that NRCP 6(a) and 6(e) apply to NRS
616.5422(1), and we therefore reverse and remand this matter for further proceedings before
the appeals officers.
In the matter of appellant Nyberg, an NIC hearing officer, on October 5, 1981, affirmed an
NIC staff determination rejecting a workmen's compensation claim filed by Nyberg. The
decision of the hearing officer, along with an appeal form, was mailed to Nyberg.
Nyberg mailed notice to the appeals officer of his intention to appeal the decision of the
hearing officer. This notice was postmarked either November 5 or 7, 1981, and was filed with
the appeals officer on Monday, November 9, 1981, 35 days after the filing of the hearing
officer's determination. On the NIC's motion, the appeals officer dismissed Nyberg's appeal
with prejudice, on the ground that the appeal had not been timely filed. The district court
affirmed the dismissal, and this appeal followed.
____________________

1
NRCP 6(a) provides:
In computing any period of time prescribed or allowed by these rules, by the local rules of any district
court, by order of court, or by any applicable statute, the day of the act, event, or default from which the
designated period of time begins to run shall not be included. The last day of the period so computed
shall be included, unless it is a Saturday, a Sunday, or a non-judicial day, in which event the period runs
until the end of the next day which is not a Saturday, a Sunday, or a non-judicial day. When the period of
time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and non-judicial days
shall be excluded in the computation.
NRCP 6(e) provides:
Whenever a party has the right or is required to do some act or take some proceedings within a
prescribed period after the service of a notice or other paper, other than process, upon him and the notice
or paper is served upon him by mail, 3 days shall be added to the prescribed period.

2
Any party aggrieved by a decision of the hearing officer may appeal the decision by filing a notice of
appeal with an appeals officer within 30 days after the date of the decision.
In the Jackson matter, the record indicates that an NIC hearing officer filed a decision on
September 15, 1981, which affirmed a staff determination rejecting a workmen's
compensation claim filed by Jackson. The hearing officer's decision was mailed to Jackson,
whereupon she sent notice to the appeals officer of her intention to appeal the hearing
officer's decision. This notice was filed with the appeals officer on Monday, October 19,
1981, 34 days after the filing of the hearing officer's decision. On the NIC's motion, the
appeals officer dismissed as untimely Jackson's request for a hearing.
[Headnotes 1, 2]
We note initially that the proper construction of the 30-day appeal period prescribed by
NRS 616.5422(1) is a legal, rather than a factual, question. Accordingly, independent
appellate review, as opposed to a more deferential standard of review, is appropriate. See
McKay Dee Hospital v. Industrial Commission, 598 P.2d 375 (Utah 1979). We note further
that the statutory period or filing appeals in workmen's compensation claim matters should be
liberally construed. See Industrial Commission v. Adair, 67 Nev. 259, 217 P.2d 348 (1950)
(workmen's compensation act, including matters of procedure, is liberally construed in favor
of claimants); see also Spencer v. Harrah's Inc., 98 Nev. 99, 641 P.2d 481 (1982).
[Headnote 3]
We now turn to the question of whether NRCP 6(e) applies to the statutory period
prescribed by NRS 616.5422(1). Appellants note that the federal counterpart to NRCP 6(e)
has been applied to administrative matters. See, e.g., Tavernaris v. Beaver Area School Dist.,
454 F.Supp. 355 (W.Pa. 1978). Appellants also note that in Rogers v. State, 85 Nev. 361, 455
P.2d 172 (1969), we applied NRCP 6(a) to the filing of a claim that must be filed as a
predicate to the commencement of a suit for personal injuries against the state. In response,
the NIC cites NRCP 1, which provides that the rules of civil procedure largely govern the
procedure in district courts.
We agree, however, with appellant's position. In reaching this conclusion, we note that the
language of NRCP 1 does not limit the application of those rules to district court proceedings.
In light of the rule of liberal construction, we hold that the three-day grace period allowed by
NRCP 6(e) applies to NRS 616.5422(1).
We also agree with appellants' assertion that NRCP 6(a) applies to NRS 616.5422(1). See
Rogers v. State, supra.
In light of the above holdings, the record indicates that both appeals were timely filed
with the appeals officers.
appeals were timely filed with the appeals officers. Each claimant was notified by mail of the
hearing officer's decision, and the appeals of both were filed on the first judicial day after the
expiration of 33 days. See NRCP 6(a), (e). Both claimants were thus entitled to pursue their
claims before an appeals officer. We therefore reverse the determinations of the district court
and remand both matters for further proceedings before an appeals officer.
Our disposition of this matter makes it unnecessary to consider the other issues raised by
appellants.
____________
100 Nev. 325, 325 (1984) Broussard v. Hill
SHIRLEY BROUSSARD, Appellant, v. DONALD
CARLYLE HILL, Jr., Respondent.
No. 14294
June 26, 1984 682 P.2d 1376
Appeal from a directed verdict entered in favor of defendant, Donald Carlyle Hill, Jr.;
Second Judicial District Court, Washoe County; Robert L. Schouweiler, Judge.
Prospective purchasers of interest in casino brought action against escrow agent alleging
breach of trust and conversion. The district court entered a directed verdict in favor of the
escrow agent, and appeal was taken. The Supreme Court held that the question of whether the
escrow agent, by making payments out of escrow fund for purposes of vendor's purchase of
coowner's share of the casino, breached duty to the detriment of prospective purchasers was
for the jury.
Paul A. Richards, Reno, for Appellant.
Sala, McAuliffe, White & Long, Reno, for Respondent.
1. Trial.
In determining whether a directed verdict should be granted, trial court must view the evidence and all
inferences in a light most favorable to the party against whom the motion is made; neither the credibility of
the witnesses nor the weight of the evidence is to be considered by the court. NRCP 50(a).
2. Trial.
With regard to trial court's determination of whether a directed verdict should be granted, 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.
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. NRCP 50(a).
3. Corporations; Sales.
Portion of contract for sale of interest in casino providing that sale was conditional upon purchasers'
securing the appropriate unrestricted gaming license and otherwise complying with all state and federal
laws and regulations concerning gaming was not a condition subsequent to the contract, in light of state
regulation making transfer of interest in licensed gaming operation ineffective unless required licenses were
obtained.
4. Deposits and Escrows.
In managing monies deposited in escrow, the escrow agent is required to conduct his affairs with
scrupulous honesty, skill and diligence.
Escrow agent must strictly comply with terms of escrow agreement and may not use the proceeds in any
manner that is not authorized by contract or deposit.
In order for liability to result from a premature release of escrow funds, there must be a causal connection
between the noncompliance and any resulting damage.
In action by prospective purchaser of interest in casino against escrow agent alleging breach of trust and
conversion, question of whether escrow agent breached his duty to the detriment of purchaser by making
payment out of escrow fund, which was governed by escrow agreement authorizing payments to vendor to
cover outstanding business debts of casino, for purpose of purchase by vendor of coowner's share of the
casino, was for jury. NRCP 50(a).
OPINION
Per Curiam:
Melvin Broussard and appellant Shirley Broussard commenced this action on May 29,
1980, against Donald Carlyle Hill, Jr. and five other defendants.
1
Mrs. Broussard alleges in
her first cause of action that Hill, as their escrow agent and attorney, is liable for breach of
trust and conversion for wrongfully paying money out of an escrow fund which had been
established for the purchase of an undivided one-half interest in the Fernley Nugget, Paul's
Casino, and Paul's Casino, Inc. At the end of plaintiff's evidence the district court entered a
directed verdict in favor of defendant, Donald Carlyle Hill, Jr., under NRCP 50(a). Mrs.
Broussard contends that the controversy should properly have been resolved by the jury.
____________________

1
All other defendants except Hill were dismissed out of the action prior to trial. Melvin Broussard died prior
to this appeal.
[Headnotes 1, 2]
In determining whether a directed verdict should be granted, the trial court must view the
evidence and all inferences most favorable to the party against whom the motion is made.
Neither the credibility of the witnesses nor the weight of the evidence is to be considered by
the court. 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. Bliss v. DePrang, 81 Nev. 599, 407 P.2d 726 (1965); Troop v. Young, 75
Nev. 434, 345 P.2d 226 (1959); Weck v. Reno Traction Co., 38 Nev. 285, 149 P. 65 (1915).
2

A review of the record in a light most favorable to Mrs. Broussard indicates that there was
sufficient evidence for a reasonable person to conclude that Hill breached his fiduciary duty
as an escrow holder and attorney to Mrs. Broussard.
In 1978, Mr. and Mrs. Broussard contracted to purchase an undivided one-half interest in
the Fernley Nugget, Paul's Casino, and Paul's Casino, Inc. At the time all three operations
were owned by Paul Keathley and Norman Wroe. Although it was apparent that Wroe was
selling his one-half interest, the Broussards elected to deal through Keathley.
On January 2, 1979, the Broussards and Keathley decided to complete their negotiations
and reduce their understanding to writing. Keathley suggested that the Broussards accompany
him to the offices of Hill, his attorney. The parties agreed on $271,000.00 as the purchase
price. This was to be paid with $90,000.00 placed in escrow and a promissory note for the
remainder of the purchase price, secured by the shares of stock in Paul's Casino, Inc. which
the Broussards were to receive.
[Headnote 3]
Hill memorialized the terms in a Standard Purchase Agreement and inserted the following
two provisos:
This sale is conditional upon Buyers securing the appropriate unrestricted gaming
license and otherwise complying with all state and federal laws and regulations
concerning gaming.
3
Purchase price shall be reduced by one-half of outstanding
business debts at the time of closing.

____________________

2
The trial court erroneously applied the test of Simblest v. Maynard, 427 F.2d 1 (1970) in determining the
sufficiency of evidence. In light of this error we will review the court's findings of facts under the standard as
enumerated in Bliss v. DePrang, above.

3
The trial court found that this provision was a condition subsequent to the contract which would allow the
Broussards to rescind the sales contract if the gaming license was denied. This conclusion was clearly erroneous.
NGC Reg. 8.030 provides in part that:
Purchase price shall be reduced by one-half of outstanding business debts at the time of
closing. The business shall maintain its responsibility for all outstanding business debts
at the time of closing.
The Broussards tendered a check of $10,000.00 over to Hill as partial consideration on the
purchase price. This sum was left in trust with Hill.
On January 10, 1979, the Broussards were advised by Keathley that there were many
business debts and certain judgments against the Fernley Nugget and Paul's Casino which had
to be paid. It was then agreed by Keathley and Mr. and Mrs. Broussard that Hill should make
disbursements of the money he held in his trust account to clear the debts from the business
prior to the closing of escrow and the filing of the gaming license application. The agreement
between the parties was memorialized on January 10, 1979 in the escrow instructions to Hill.
The escrow agreement provided: It is hereby agreed that you [Hill] or seller, PAUL R.
KEATHLEY, may remove money from escrow from time to time as is deemed necessary to
pay any outstanding business debts, including but not limited to, utilities, N.I.C., E.S.D.,
accountant's fees, attorney's fees.
Within two weeks following the signing of the offer and acceptance, Mrs. Broussard
deposited a total of $90,000.00 with Hill to be held by him in escrow.
Mrs. Broussard testified that she and Keathley had agreed that the money placed into
escrow which was not used to pay off existing business debts was to be used to bankroll
Paul's Casino.
4
Until the gaming license was issued, the escrow was to remain open; and,
aside from the payment of existing business debts, the $90,000.00 was to be held in escrow
by Hill.
____________________
[No] individual who is owner of any interest in a licensed gaming operation shall in any manner
whatsoever transfer any interest therein to any person, firm or corporation not then an owner of an
interest therein, and no such transfer shall become effective for any purpose until the proposed
transferee or transferees shall have made application for and obtained all licenses required by the
Nevada Gaming Control Act and these regulation, or have been found to be individually qualified to be
licensed, as appropriate.
(Emphasis added.)

4
NGC Reg. 3.050 states: No license will be issued for use in any establishment until satisfactory evidence is
presented that there is adequate financing available to pay all current obligations and, in addition, to provide
adequate working capital to finance opening of the establishment. Mrs. Broussard testified that the Nevada
Gaming Commission required $50,000.00 in order for Paul's Casino to operate three gaming tables under an
unrestricted gaming license.
On January 10, 1979, the same day on which the escrow agreement was signed, at the
direction of Keathley, Hill issued a check from the escrow account in the amount of
$43,561.18 to Wroe. In exchange for the check Wroe delivered a deed of his undivided
one-half interest in the properties to Keathley. A deed of trust was placed on the property to
secure payment on Keathley's promissory note.
Mrs. Broussard testified that she was ignorant of the Keathley-Wroe transaction.
Moreover, she stated that she first learned of the deed of trust executed by Keathley to Wroe
when a notice of default was received by her in June of 1979. Upon receiving the notice, Mrs.
Broussard contacted Hill, whereupon she was informed of additional disbursements from the
escrow fund which exhausted the entire $90,000.00 placed on deposit. Mrs. Broussard
testified that after realizing that there were no funds with which to bankroll the casino, she
withdrew her gaming application.
Mrs. Broussard contends that the premature release of escrow funds was in violation of the
escrow agreement and that exhausting the casino's bankroll precluded the possibility of
obtaining an unrestricted gaming license. She now seeks to recover the monies deposited by
her and her husband into escrow.
Breach of Trust
[Headnotes 4, 5]
In managing monies deposited in escrow, the escrow agent is required to conduct his
affairs with scrupulous honesty, skill and diligence. Webster v. U.S. Life Title Co., 598 P.2d
108 (Ariz.Ct.App. 1979). The escrow agent must strictly comply with the terms of the escrow
agreement and may not use the proceeds in any manner that is not authorized by contract or
deposit. Colonial Savings and Loan Ass'n v. Redwood Empire Title Co., 46 Cal.Rptr. 16
(Ct.App. 1965).
In the case at hand, the trial court found that the check written by Hill to Wroe for
$43,561.18 was a business debt and thereby authorized under the terms of the escrow
agreement.
From the evidence it appears that the check was written by Hill at the instruction of
Keathley. This extraordinary sum was apparently used by Keathley to acquire Wroe's one-half
undivided interest in the two casinos and in turn place the interests into escrow for the
Broussards.
5
As such, it is difficult to understand how such payment was authorized under
the provisions of the escrow instructions.
____________________

5
Mrs. Broussard does not contest the acquisition of Wroe's interest by Keathley subsequent to entering into
the contract and deposit of funds, only that the acquisition was made by funds which had been earmarked as the
casino's bankroll.
of the escrow instructions. The payment represented an obligation of Keathley to purchase
Wroe's share. It was not an outstanding business debt but a debt of Keathley's. Moreover, a
simple reading of the escrow instructions indicates that only reasonable expenses for the
continued operation of the casino were authorized. There is no indication that Hill was
authorized to part with such a large share of the escrow fund. The premature release of funds
for purposes other than the payment of existing business expenses could certainly be found to
be a breach of Hill's fiduciary duty.
[Headnotes 6, 7]
A question remains as to whether such expenditures could in any way have harmed Mrs.
Broussard. In order for liability to result from a premature release of escrow funds, there must
be a causal connection between the noncompliance and any resulting damage. Foley v.
Carson, 76 Nev. 102, 349 P.2d 1056 (1960). It is Mrs. Broussard's contention that by
wrongfully releasing the funds, the money which was to bankroll the casino was depleted,
thus rendering it impossible to obtain a gaming license. Hill contends that since Mrs.
Broussard withdrew her application for an unrestricted license she is precluded from asserting
that the premature release of the escrow funds prevented the approval from the state gaming
commission. In support of this contention, Hill cites Lear v. Bishop, 86 Nev. 709, 476 P.2d
18 (1970), for the principle that an individual who voluntarily prevents the occurrence of a
condition established for his or her benefit is estopped from seeking relief from a contract on
the grounds that the condition precedent to his obligation failed to occur. Although Hill's
argument is based on valid legal principles, it is factually dependent on a finding that Mrs.
Broussard had no legitimate right to rescind her end of the bargain. Whether Mrs. Broussard
has sufficient grounds to believe that Keathley materially breached the contract with the help
of Hill by exhausting the escrow funds involves questions of fact for the jury. It would not be
fair to allow Hill to distribute the escrow proceeds in violation of his trust and then assert that
he may do so with impunity merely because Mrs. Broussard withdrew her application. Mrs.
Broussard testified that such withdrawal was in contemplation of the inevitablethat no
license would ever be granted without sufficient funds to bankroll the casino. The
determination of whether that decision was reasonable depends on matters which should
properly be determined by the finder of fact.
Since reasonable men could differ as to whether Hill breached his duty as an escrow agent
to the detriment of Mrs.
Broussard, the trial court's granting of a directed verdict pursuant to NRCP 50(a) was
improper and is reversed. The matter is remanded to the trial court.
In respect to the other allegations of error complained of by the appellant, after closely
examining the record, we find them to be without merit.
Affirmed in part, reversed in part; costs are awarded to appellant.
____________
100 Nev. 331, 331 (1984) Folsom v. Woodburn
GEORGE K. FOLSOM, Appellant, v. WOODBURN, WEDGE, BLAKEY
AND JEPPSON, CHARTERED, Respondent.
No. 14388
June 26, 1984 683 P.2d 9
Appeal from judgment, Third Judicial District Court, Churchill County; Stanley S. Smart,
Judge.
In action involving dispute between attorney and law firm over compensation due the
attorney upon his withdrawal from the firm, the district court entered judgment in favor of
law firm, and the withdrawing attorney appealed. The Supreme Court held that: (1) evidence
was sufficient to support finding that withdrawing attorney was not entitled to any
compensation beyond that computed under the firm's regular compensation formula, and (2)
trial court's exclusion of withdrawing attorney's proffered evidence of law firm's settlement
with one member who left the firm subsequent to deletion of provision of employment
agreement governing compensation for terminating members was not prejudicial error.
Affirmed.
Guild, Hagen & Clark, Reno, for Appellant.
Eugene J. Wait, Jr., Reno, for Respondent.
Where trial court, sitting without a jury, makes determination based on conflicting evidence, that
determination will not be disturbed on appeal as long as it is supported by substantial evidence.
In action involving dispute over compensation allegedly due an attorney upon his withdrawal from law
firm, evidence, including that provision of employment agreement that terminating member and the law
firm would effect "fair and equitable accounting for unpaid services, work in progress
and clients' costs incurred to such termination" was deleted from employment
agreement more than two years before the attorney's withdrawal, and that no
agreement was ever reached regarding an alternative provision to replace the deleted
provision, was sufficient to support finding that withdrawing attorney was not
entitled to any compensation beyond that computed under the firm's regular
compensation formula.
law firm would effect fair and equitable accounting for unpaid services, work in progress and clients' costs
incurred to such termination was deleted from employment agreement more than two years before the
attorney's withdrawal, and that no agreement was ever reached regarding an alternative provision to replace
the deleted provision, was sufficient to support finding that withdrawing attorney was not entitled to any
compensation beyond that computed under the firm's regular compensation formula.
3. Evidence.
Generally, a single instance is not sufficient to prove routine practice.
In action involving dispute over compensation allegedly due an attorney upon his withdrawal from law
firm, trial court's exclusion of withdrawing attorney's proffered evidence of law firm's settlement with one
member who left firm following firm's deletion of employment agreement provision governing
compensation for terminating member did not constitute prejudicial error. NRS 48.025, 48.059,
48.105.
OPINION
Per Curiam:
This appeal arises from a dispute between appellant George K. Folsom and respondent
Woodburn, Wedge, Blakey & Jeppson, Chartered, over the compensation due appellant upon
his withdrawal from respondent law firm. Appellant was a name member of respondent law
firm from 1969 until differences of opinion led to his departure on April 18, 1979. The parties
disagree over whether appellant is entitled to a share of the accounts receivable, clients'
advances and work in progress as of the date of his termination.
Under the employment agreement between respondent law firm and its members,
compensation is determined by a formula which reflects the member's past earning capacity.
According to this formula, the average of the fees paid to respondent law firm for services
rendered by the member during the five years prior to the year in question is divided by the
sum of the similarly computed averages for all members of the law firm. The resulting
fraction constitutes the member's percentage of distributable cash income for the year.
Respondent law firm keeps records of fees for services rendered by each member on a cash
basis, giving no consideration to accounts receivable, clients' advances or work in progress.
Respondent law firm used this formula to determine appellant's compensation for the period
of January 1, 1979, through April 18, 1979. Appellant contends that apart from this sum he is
also entitled to a share of the fees received by respondent law firm for services rendered
by him before April 1S, 1979, but collected after that date.
to a share of the fees received by respondent law firm for services rendered by him before
April 18, 1979, but collected after that date.
It is undisputed that prior to 1977 appellant would have been entitled to a share of the fees
collected after his departure. Originally the employment agreement contained paragraph 7,
which provided that a terminating member and respondent law firm would effect a fair and
equitable accounting for unpaid services, work in progress and clients' costs incurred to such
termination. Failing agreement, the parties would submit the matter to arbitration.
Respondent law firm finding the provision too generous, in February, 1977, paragraph 7 was
deleted from the employment agreement. All members, including appellant, initialed the
deletion. Respondent maintains that the deletion constituted an agreement that members
voluntarily leaving the law firm would not be entitled to any compensation other than that
computed under the five-year formula. See Jacobson v. Best Brands, Inc., 97 Nev. 390, 632
P.2d 1150 (1981). Appellant contends, however, that the members orally agreed that the
matter would be dealt with as it arose or else settled in court.
[Headnotes 1, 2]
The district court found that after paragraph 7 was deleted, the agreement as modified
provided that a terminating member was not entitled to any severance payments based on
accounts receivable, work in progress and clients' advances. The court further found that
while there were discussions regarding an alternative provision to replace paragraph 7, no
agreement was ever reached. Conflicting evidence was presented to the district court
regarding the members' intent in striking the provision and abandoning negotiations regarding
its replacement. Where a trial court, sitting without a jury, makes a determination based on
conflicting evidence, that determination will not be disturbed on appeal as long as it is
supported by substantial evidence. Morrison v. Rayen Investments, Inc., 97 Nev. 58, 61, 624
P.2d 11, 13 (1981); Fletcher v. Fletcher, 89 Nev. 540, 542, 516 P.2d 103, 104 (1973). Since a
review of the record discloses sufficient evidence to sustain the district court's findings, we
decline to disturb them on appeal. Consequently the modified employment agreement does
not entitle appellant to any compensation beyond that computed under the five-year formula;
nor has appellant shown that an oral agreement pertaining to additional compensation existed.
Since the modified employment agreement governs the compensation due to appellant upon
his termination, appellant cannot recover in quantum meruit.
upon his termination, appellant cannot recover in quantum meruit. See Colyer v. Lahontan
Mines Co., 54 Nev. 358, 17 P.2d 699 (1933).
[Headnotes 3, 4]
To show that even after paragraph 7 was deleted, accounts receivable, work in progress
and client's advances provided a basis for severance payments made to terminating members,
appellant wished to introduce evidence of a settlement with a member who left the firm in
December, 1979. The district court excluded the evidence as irrelevant and further as a
compromise of a disputed claim. NRS 48.025; NRS 48.105. Appellant contends the evidence
should have been admitted to show that, even after deletion of paragraph 7, it was routine
practice for the respondent law firm to pay terminating members more than the compensation
determined under the five-year formula. NRS 48.059. The general rule is that a single
instance is not sufficient to prove routine practice. Wright & Graham, Federal Practice and
Procedure, Evidence 5276 (1980). The 1978 settlement was the only instance of respondent
law firm's post-1977 practice proffered; accordingly, exclusion of the evidence did not
constitute prejudicial error.
We have considered appellant's other contentions and have found them to be without
merit. Accordingly, we affirm the judgment of the district court.
____________
100 Nev. 334, 334 (1984) L-M Architects, Inc. v. City of Sparks
L-M ARCHITECTS, INC., a Nevada Corporation, Appellant,
v. CITY OF SPARKS, NEVADA, Respondent.
No. 14418
June 26, 1984 683 P.2d 11
Appeal from an order dismissing complaint for failure to comply with NRS 268.020;
Second Judicial District Court, Washoe County; William N. Forman, Judge.
Architectural firm brought action to recover compensation from city. The district court
entered summary judgment in favor of city on ground that firm failed to present timely
demand to city, and firm appealed. The Supreme Court held that statute requiring that all
demands and accounts against city be presented within six months from time they became
due was constitutional.
Affirmed.
Jacquette & Kilpatrick, Carson City, for Appellant.
Nik V. Walters, Reno, for Respondent.
Constitutional Law; Municipal Corporations.
Statute requiring that all demands and accounts against city be presented within six months after they
became due violated neither due process nor equal protection provisions of State Constitution, as such
claims statute did not amount to trap for unwary, but merely required individuals or corporations that
voluntarily contracted with cities to comply with appropriate procedures for satisfying claims. NRS
268.020; Const. Art. 1 8.
OPINION
Per Curiam:
The City of Sparks refused to pay appellant, L-M Architects, Inc., because L-M failed to
present a timely demand in accord with NRS 268.020.
1
L-M did not comply with the
statutes, but it claims that the statute is unconstitutional because it discriminates against L-M
and other contract claimants against municipalities and is a violation of due process and equal
protection provisions of the Nevada Constitution. We do not find the statute to be
constitutionally objectionable and affirm the summary judgment entered in favor of the city.
L-M's main argument rests on Turner v. Skaggs, 89 Nev. 230, 510 P.2d 879 (1973), in
which a six-months claim statute was invalidated with respect to tort claims against
governmental entities. Turner was based on what we perceived to be a discriminatory
classification as between private and governmental tortfeasors. Since no notice of claim was
necessary in order to sue a private tortfeasor, we held in Turner that is was discriminatory to
require the filing of an advance claim as a condition to suing a governmental tortfeasor.
A considerable number of courts have invalidated claim statutes as they are applied to tort
actions. See Hunter v. North Mason High School, 539 P.2d 845 (Wash. 1975); Reich v. State
Highway Department, 194 N.W.2d 700 (Mich. 1972); see also 59 A.L.R.3d 93 {1974).
____________________

1
NRS 268.020 provides in relevant part as follows:
1. All demands and accounts against any incorporated city in this state, must be presented to the city
council of the city, in writing, within 6 months from the time the demands or accounts became due.
. . . .
3. No demand or account against any incorporated city in this state may be audited, considered,
allowed or paid by the city council or any other officer or officers of the incorporated city unless the
provisions of subsection 1 are strictly complied with.
59 A.L.R.3d 93 (1974). The trend has not, however, extended into the contract area.
In Norcor of America v. Southern Ariz. Intern., 596 P.2d 377 (Ariz.App. 1979), the
Arizona Court of Appeals dealt with the precise issue involved in the present appeal. In
distinguishing Turner the court stated:
In Turner v. Staggs, supra, the court held the claims statute unconstitutional as to tort
claims and the annotation deals solely with tort claims. Appellant has cited no authority
for the proposition that the claims statutes are constitutionally invalid when applied to
contract claims. We do not believe an analogy can be drawn between the tort claim
cases which appellant cites and a contract claim because the rationale of appellant's
authorities is not appropriate when applied to contract claim cases. Reference to a
Washington case and two of the more articulate cases cited in the annotation supports
our conclusion. Reich v. State Highway Dept., Turner v. Staggs, Hunter v. North Mason
High School, all point out that since governmental immunity was abolished by the
legislature, the clear legislative intent was that nongovernmental and governmental
tortfeasors were to be put on an equal footing. Therefore, there is only one natural class
of tortfeasors and the claims statutes irrationally divide this natural class. This rationale
cannot be carried over into contract claims. The legislature has never expressed an
intent that governmental and non-governmental promisors be on an equal footing. . . .
In fact, A.R.S. Secs. 11-621 et seq. demonstrate the opposite. There is no single natural
class of promisors.
596 P.2d at 380 (citations omitted).
We agree with the Arizona court's interpretation of Turner. We are unwilling to invalidate
the legislative requirement in a contract case. Individuals or corporations that voluntarily
contract with governmental units assume the burdens of complying with its procedures for
satisfying claims. In this regard a claim statute does not, as was the case in Turner, amount to
a trap for the unwary. The statute is properly applicable in this case.
Contentions relating to substantial compliance and defects in the summary judgment
process are without merit.
Affirmed.
____________
100 Nev. 337, 337 (1984) Continental Ins. Co. v. Sister Moseley
CONTINENTAL INSURANCE COMPANY, Appellant, v. SISTER RICCARDA
MOSELEY, EXECUTRIX OF THE ESTATE OF AUDRAIN MAVIS-MARIE
OLIVER, Deceased, Respondent.
No. 13308
THE CONTINENTAL INSURANCE COMPANIES, Appellant, v. JEAN HOOPER
STEVENS and AUDREY OLIVER, Respondents.
No. 13432
June 26, 1984 683 P.2d 20
Consolidated appeal from district court's order denying appellant's motion for substitution
(No. 13432), and order denying appellant's motion to publish notice and declaring appellant's
claim forever barred (No. 13308). Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge (13308); Second Judicial District Court, Washoe County; Peter I. Breen, Judge
(13432).
In probate proceedings, consolidated appeals were taken from order of the district court
denying motion for substitution and from order of the district court denying motion to publish
notice and declaring creditor's claim forever barred. The Supreme Court, 653 P.2d 158,
affirmed. On petition for writ of certiorari, the United States Supreme Court, 103 S.Ct. 3530,
vacated judgment and remanded case for further consideration. On remand the Supreme
Court held that where estate had actual knowledge of claim against decedent, claimant having
been listed in petition for summary administration, estate's failure to take any steps to notify
claimant of the probate proceedings other than publishing notice pursuant to statute was
insufficient to afford claimant due process.
Semenza and Lutfy, Reno, for Appellant.
Cooke, Roberts & Reese, and Fry, Fry, & Ihara, Reno, for Respondents.
Constitutional Law; Executors and Administrators.
Where estate had actual knowledge of claim against decedent, claimant having been listed in petition for
summary administration, estate's failure to take any steps to notify claimant of the probate proceedings
other than publishing notice pursuant to statute was insufficient to afford claimant due process. NRS
OPINION
Per Curiam:
In Continental Ins. Co. v. Moseley, 98 Nev. 476, 653 P.2d 15S {19S2), this court
affirmed two district court orders.
100 Nev. 337, 338 (1984) Continental Ins. Co. v. Sister Moseley
158 (1982), this court affirmed two district court orders. In No. 13432, the district court had
denied appellant's motion to substitute the executrix of the decedent's estate for the decedent,
on the ground that the motion to substitute was not timely filed. In No. 13308, the district
court had denied appellant's motion to compel republication to creditors and had declared
appellant's claim forever barred.
The United States Supreme Court granted appellant's petition for a writ of certiorari. The
Court vacated this court's opinion and remanded to this court for further consideration in light
of Mennonite Bd. of Missions v. Adams, 462 U.S. ____, 103 S.Ct. 2706 (1983).
In this case, the estate had actual knowledge of appellant's claim against the decedent;
appellant was listed in the petition for summary administration. Nevertheless, the estate took
no steps to notify appellant of the probate proceedings other than publishing notice pursuant
to NRS 145.050. The issue presented by this appeal, therefore, is whether the estate's
complete reliance on supplying notice by publication in these circumstances complied with
the requirements of due process.
The guiding principle to be applied was expressed in Mullane v. Central Hanover Tr. Co.,
339 U.S. 306 (1950):
An elementary and fundamental requirement of due process in any proceeding which
is to be accorded finality is notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity
to present their objections. . . .
339 U.S. at 314.
In Mennonite, the Supreme Court applied this principle and found that mere constructive
notice afforded inadequate due process to a readily ascertainable mortgage holder. Given the
facts of this case and the holdings in Mennonite and Mullane, we conclude that more than
service by publication was required in order to afford due process to appellant. We therefore
reverse the orders of the district courts and remand these matters for further proceedings
consistent with this opinion.
Manoukian, C. J., Mowbray, Steffen, and Gunderson, JJ., and Fondi, D. J.
1
, concur.
____________________

1
The Governor designated The Honorable Michael E. Fondi, District Judge of the First Judicial District
Court, to sit in the place of The Honorable Charles E. Springer, who voluntarily disqualified himself. Nev.
Const., art. 6, 4.
____________
100 Nev. 339, 339 (1984) DuBose v. State
ROY LEE DuBOSE, Appellant, v. THE
No. 14938
June 26, 1984 682 P.2d 195
Appeal from judgment of conviction upon guilty plea of one count of battery with the use
of a deadly weapon; Second Judicial District Court, Washoe County, James J. Guinan, Judge.
Defendant was convicted pursuant to guilty plea in the district court of battery with use of
deadly weapon, and he appealed. The Supreme Court held that defendant's plea which was
made without elements of offense being explained to defendant on record and without
defendant's ever making factual statements constituting admission of guilt, was infirm,
though court asked defendant if he understood nature of charge as set forth in information and
whether he actually committed offense, to which defendant replied in affirmative.
David G. Parraguirre, Public Defender, and Jane G. McKenna, Deputy Public Defender,
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Edward
B. Horn, Deputy District Attorney, Washoe County, for Respondent.
Criminal Law.
Defendant's guilty plea to one count of battery with use of deadly weapon, which was made without
elements of offense being explained to defendant on record and without defendant's making factual
statements constituting admission of guilt, was infirm, though court asked defendant if he understood
nature of charge as set forth in information and whether defendant actually committed offense as set forth,
to which defendant replied in affirmative.
OPINION
Per Curiam:
Appellant was convicted pursuant to a guilty plea of one count of battery with the use of a
deadly weapon. He now contends that the plea was infirm on the ground that it was made
without an affirmative showing that he understood the nature of the offense to which he was
pleading guilty, as is required by Hanley v. State, 97 Nev. 130, 624 P.2d 1387 (1981). We
agree.
In Hanley v. State, supra, we held that a guilty plea record must affirmatively show
"either . . . that the defendant himself {not just his attorney) understood the elements of
the offense to which the plea was entered or . . . that the defendant, himself, had made
factual statements to the court which constitute an admission to the offense pled to."
100 Nev. 339, 340 (1984) DuBose v. State
must affirmatively show either . . . that the defendant himself (not just his attorney)
understood the elements of the offense to which the plea was entered or . . . that the
defendant, himself, had made factual statements to the court which constitute an admission to
the offense pled to. 97 Nev. at 135, 624 P.2d at 1390 (emphasis in original; footnote
omitted). In the present case, the elements of the offense were never explained to appellant on
the record, and appellant never made any factual statements to the court constituting an
admission of guilt.
We do note, however, that the district court did ask appellant if he understood the nature of
the charge as set forth in the information and whether appellant actually committed the
offense as set forth in the information, to which appellant replied in the affirmative. The
information, however, was never read to appellant on the record, and there is thus absent from
the record the necessary affirmative showing that appellant understood the nature of the
offense to which he was pleading. See generally Standen v. State, 99 Nev. 76, 657 P.2d 1159
(1983).
Accordingly, the judgment of conviction is reversed, and the matter is remanded to the
district court for further proceedings.
____________
100 Nev. 340, 340 (1984) Harvey v. State
FREDERICK DEWAYNE HARVEY, Appellant, v. THE
No. 14253
June 26, 1984 682 P.2d 1384
Appeal from judgment of conviction of first degree murder, and imposition of a sentence
of death; Eighth Judicial District Court, Clark County, Joseph S. Pavlikowski, Judge.
Defendant was convicted in the district court of first degree murder, and he appealed. The
Supreme Court held that: (1) no prejudicial error occurred at either the guilt or penalty phases
of the trial, and (2) death sentence imposed on defendant, who was convicted of first degree
murder for shooting of a security guard during flight from a robbery of a jewelry store when
defendant was 16 years of age, was disproportionate to penalty imposed in Nevada in similar
cases and would be set aside and a sentence of life imprisonment without possibility of parole
would be imposed in its stead.
Judgment affirmed; death sentence modified.
Morgan D. Harris, Public Defender, and Robert B. Amundson and Michael L. Miller,
Deputy Public Defenders, Clark County, for Appellant.
1. Criminal Law.
Even if no prejudicial error occurs at penalty phase of capital trial, Supreme Court is statutorily required
to review a death sentence and determine whether it is disproportionate to the penalty imposed in similar
cases in the state, considering both the crime and the defendant. NRS 177.055, subd. 2(d).
2. Criminal Law.
Proportionality review dictates that Supreme Court compare all capital cases, as well as appealed murder
cases in which death penalty was sought but not imposed, and set aside those death sentences which appear
comparatively disproportionate to the offense and the background and characteristics of the offender. NRS
177.055, subd. 2(d).
3. Homicide.
Death sentence imposed on defendant, who was convicted of first degree murder for shooting of a
security guard during flight from a robbery of a jewelry store when defendant was 16 years of age, was
disproportionate to penalty imposed in Nevada in similar cases and would be set aside and a sentence of
life imprisonment without possibility of parole would be imposed in its stead. NRS 177.055, subd. 3(c).
OPINION
Per Curiam:
Appellant Frederick Dewayne Harvey was convicted of first degree murder for the
shooting of Dennis McKeon, a security guard, during flight from a robbery of a jewelry store.
McKeon was shot several times with a large-caliber handgun as he sat in a car appellant was
trying to steal to further his escape. At the penalty phase of the trial, the jury found, as three
aggravating circumstances, that the murder occurred during the commission of a felony, was
committed to avoid arrest or apprehension, and created a great risk of death to more than one
person. The jury also found three mitigating circumstances: appellant's youth, his lack of a
prior significant criminal history, and that he suffered from an extreme mental or emotional
disturbance at the time of the killing. The jury found the mitigating circumstances insufficient
to outweigh the aggravating circumstances, and imposed the penalty of death.
On appeal, Harvey raises numerous assignments of error speaking to both the guilt and
the penalty phases of his trial, as well as to the propriety of imposing the death penalty in
this case.
speaking to both the guilt and the penalty phases of his trial, as well as to the propriety of
imposing the death penalty in this case. The issues have been thoroughly briefed by both
parties and reviewed at oral argument. From our review of the briefs, record, and arguments
of counsel, as well as our own independent research, we conclude that no prejudicial error
occurred at either the guilt or the penalty phases of the trial. We conclude, however, that the
death sentence in this case is disproportionate to the penalty imposed in this state in similar
cases, and must be set aside.
[Headnotes 1, 2]
Even if no prejudicial error occurs at the penalty phase of a capital trial, NRS
177.055(2)(d) requires us to review a death sentence and determine whether it is
disproportionate to the penalty imposed in similar cases in this state, considering both the
crime and the defendant. Proportionality review dictates that we compare all capital cases,
as well as appealed murder cases in which the death penalty was sought but not imposed, and
set aside those death sentences which appear comparatively disproportionate to the offense
and the background and characteristics of the offender.
1

The exact scope and methodology of proportionality review involve complex questions
that have engendered considerable study. See, e.g., National Center for State Courts,
Proportionality Review Project (1983); Baldus, et al., Identifying Comparatively Excessive
Sentences of Death: A Quantitative Approach, 33 Stan.L.Rev. 1 (1980). Currently pending
before us are several death penalty cases dealing with the precise nature and methods of
proportionality review. In our judgment, however, the death sentence in this case is so clearly
disproportionate that we need not now engage in more than the simplest form of
proportionality review, leaving the more complex questions for resolution in more
appropriate appeals.
[Headnote 3]
We have compared Harvey's death sentence with sentences imposed in similar cases while
considering both the crime and the defendant. Harvey's crime, although a tragically violent
killing, lacks the degree of heinousness and brutality evidenced in many of the cases in which
the ultimate sanction of death has been imposed. See, e.g., Ybarra v. State, 100 Nev. 167, 679
____________________

1
The United States Supreme Court has recently held that state courts are not constitutionally required to
conduct proportionality review of death sentences. Pulley v. Harris, 104 S.Ct. 871 (1984). We are nevertheless
required to continue to conduct such review, however, under the mandate of NRS 177.055(2)(d).
P.2d 797 (1984) (murder committed by igniting flammable liquid poured over victim).
Harvey, in flight from the armed robbery of a jewelry store during which no one was injured,
sought to abscond in the parked car in which the victim sat. The car belonged to another
person and was not a police or security vehicle. In an attempt to steal what appeared to be a
private automobile, Harvey found himself in an encounter with an armed and uniformed
security officer. Harvey ordered the victim out of the car and then suddenly shot him three
times. The record indicates that McKeon was killed under circumstances which suggest the
panic of a fleeing felon's sudden encounter with an armed guard, rather than a carefully
pre-planned homicide. Indeed, the state's theory of the case was that McKeon was either
killed during the commission of a felony or by virtue of Harvey's premeditation and
deliberation formed virtually instantaneously at the scene, and in reaction to the sudden
encounter.
More importantly, the characteristics of Harvey as a defendant impel our conclusion that
his death sentence for this offense is disproportionate. Harvey was sixteen years old at the
time of the killing. His counsel on appeal has represented, without challenge by the state, that
Harvey is the youngest inmate currently on Nevada's Death Row. Harvey lacks a significant
history of prior criminal behavior. Moreover, the jury specifically found that Harvey labored
under an extreme mental or emotional disturbance when he committed the murder. We know
of no other case in this state where these mitigating circumstances were present and the death
penalty was nevertheless imposed on a defendant of Harvey's age.
By way of contrast, the juries did not impose the death penalty in at least two cases which
we regard as more deserving of the penalty of death than the case now before us, considering
both the circumstances of the crime and the background and characteristics of the offender.
See Koza v. State, 100 Nev. 245, 681 P.2d 44 (Adv. Opn. No. 48, April 24, 1984); Crew v.
State, 100 Nev. 38, 675 P.2d 986 (1984).
Koza involved a defendant older than Harvey, convicted of the robbery and first degree
murder of a Las Vegas cab driver. The circumstances of that case strongly suggested that
Koza and another person armed themselves and took a ride in the victim's cab with the intent
to rob him. The driver was later found dead with two gunshot wounds to the back of his head.
The circumstances of the killing in Koza do not suggest the suddenness of the decision to kill
evident in Harvey's case, and readily support the inference that Koza did not kill the driver in
a moment of panic, but as part of a pre-formulated plan.
Moreover, an overheard telephone conversation that occurred after the killing indicated that
Koza was planning yet another armed robbery with the possibility of the victim's death an
active consideration. Koza and his accomplice spoke of luring two men into a car to rob
them, and the accomplice stated that if the victims tried anything she would blow their
brains out. Koza's jury returned a sentence of life imprisonment without possibility of
parole.
Crew also involved a defendant older than Harvey. There were indications that Crew had
had some prior activity as a drug dealer. Crew's victims were taken to a remote desert area to
consummate a drug transaction, where the murders occurred under circumstances suggesting
more forethought than that in evidence in this case. Moreover, Crew and his co-participant
slit the throats of their victims after they shot them. Although the state sought the death
penalty, Crew received only life imprisonment with the possibility of parole.
In our view the Koza and Crew cases presented circumstances more compelling of the
imposition of the death penalty than those of this case. In light of this conclusion, and given
appellant's age at the time of the crime and the other mitigating factors, plus the apparent
suddenness of the decision to kill, we conclude that the death penalty in this case is
disproportionate and must be set aside.
Having found no prejudicial error in the guilt phase of the trial, we affirm the judgment of
conviction. Under the authority of NRS 177.055(3)(c), we hereby vacate the death sentence
and impose in its stead a sentence of life imprisonment without possibility of parole.
____________
100 Nev. 344, 344 (1984) Colello v. Administrator, Real Est. Div.
MICHAEL COLELLO and BARBARA COLELLO, Appellants, v. ADMINISTRATOR OF
THE REAL ESTATE DIVISION OF THE STATE OF NEVADA, Respondent.
No. 14999
June 26, 1984 683 P.2d 15
Appeal from district court order requiring appellants to return $10,000 to respondent,
Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Appeal was taken from an order of the district court which required appellants to return
$10,000 to the Administrator of the Real Estate Division of the State of Nevada. The
Supreme Court held that if appellants, who obtained judgment totalling over $46,000
against a real estate licensee on basis of fraud, misrepresentation and embezzlement,
wished to retain the $10,000 obtained from the Real Estate Education, Research and
Recovery Fund, they would be required to assign their entire judgment to the
Administrator of the Fund and then could reserve the right to pursue collection of the
judgment on behalf of the state and, if the judgment was collected, that state would have
priority and could recover for all the costs it had incurred, before appellants received any
balance of the amount collected.
Court held that if appellants, who obtained judgment totalling over $46,000 against a real
estate licensee on basis of fraud, misrepresentation and embezzlement, wished to retain the
$10,000 obtained from the Real Estate Education, Research and Recovery Fund, they would
be required to assign their entire judgment to the Administrator of the Fund and then could
reserve the right to pursue collection of the judgment on behalf of the state and, if the
judgment was collected, that state would have priority and could recover for all the costs it
had incurred, before appellants received any balance of the amount collected.
Reversed.
Nitz, Schofield & Walton, Las Vegas, for Appellants.
Brian McKay, Attorney General, Jennifer Stern, Deputy Attorney General, Carson City,
for Respondent.
1. Statutes.
Courts can determine legislative intent by looking at entire act and construing the statute as a whole in
light of its purpose and where the purpose is expressly stated, that purpose is a factor to be considered in
interpreting a given statute.
2. Brokers
Primary purpose of Real Estate Education, Research and Recovery Fund is to aid victims of real estate
fraud whose judgments against real estate licensees have proven to uncollectible. NRS 645.844
3. Statutes.
Statutes with a protective purpose should be liberally construed in order to effectuate benefits intended to
be obtained.
4. Statutes.
Where alternative interpretations of a statute are possible, the one producing a reasonable result should
be favored.
5. Brokers.
If appellants, who obtained judgment totalling over $46,000 against a real estate licensee on basis of
fraud, misrepresentation and embezzlement, wished to retain the $10,000 obtained from the Real Estate
Education, Research and Recovery Fund, they would be required to assign their entire judgment to the
Administrator of the Fund and then could reserve the right to pursue collection of the judgment on behalf
of the state and, if the judgment was collected, the state would have priority and could recover for all the
costs it had incurred, before appellants received any balance of the amount collected. NRS 645.8491.
OPINION
Per Curiam:
This is an appeal from an order requiring appellants to return $10,000 to the
Administrator of the Real Estate Division of the State of Nevada.
return $10,000 to the Administrator of the Real Estate Division of the State of Nevada. The
district court held that appellants waived their right to recover from the Real Estate
Education, Research, and Recovery Fund
1
(hereinafter referred to as the Fund) due to
appellants' failure to assign their entire $46,394.95 judgment against a real estate licensee to
the Administrator of the Fund pursuant to NRS 645.8491.
2
We reverse.
In May, 1982, appellants were granted a judgment totaling $46,394.95 against a real estate
licensee on the basis of fraud, misrepresentation and embezzlement. Appellants could not
recover the full amount of the judgment, so they claimed $10,000 from the Real Estate
Education, Research and Recovery Fund pursuant to NRS 645.841 et seq. However,
appellants assigned only $10,000 of their $46,394.95 judgment to the Administrator of the
Fund. The Administrator brought suit to compel either the assignment of appellants' entire
judgment or the return of the $10,000.
The district court interpreted NRS 645.8491 to require a claimant with a judgment
exceeding $10,000 to relinquish his right to collect the entire judgment in exchange for
$10,000 from the Fund. The district court held that pursuant to NRS 645.84923 appellants
waived their right to recover from the Fund and ordered appellants to return $10,000 to the
Administrator of the Real Estate Division of the State of Nevada. We disagree.
____________________

1
The Real Estate Education, Research and Recovery Fund is hereby created as a special revenue fund. A
balance of not less than $50,000 must be maintained in the fund, to be used for satisfying claims against
persons licensed under this chapter. . . . Any balance over $50,000 at the end of any fiscal year must be
set aside and used by the administrator, after approval of the commission, for real estate education and
research.
(Emphasis added.)

2
Administrator's right to subrogation. When the administrator has paid from the fund any sum to the
judgment creditor, the administrator is subrogated to all other rights of the judgment creditor and the
judgment creditor shall assign all his right, title and interest in the judgment to the administrator and any
amount and interest so recovered by the administrator on the judgment shall be deposited to the fund.

3
NRS 645.8492 states that:
The failure of a person to comply with any of the provisions of NRS 645.841 to 645.8494, inclusive,
shall constitute a waiver of any rights hereunder.
[Headnote 1]
Courts can determine the legislative intent for enacting a particular statute by looking at
the entire act and construing the statute as a whole in light of its purpose. White v. Warden,
96 Nev. 634, 614 P.2d 536 (1980). Where the purpose of the legislation is expressly stated,
that purpose is a factor to be considered in interpreting a given statute. Alper v. State ex rel.
Dep't Hwys., 96 Nev. 925, 621 P.2d 492 (1980); Sheriff v. Smith, 91 Nev. 729, 542 P.2d 440
(1975).
[Headnote 2]
The primary purpose of the Fund is to aid victims of real estate fraud whose judgments
against real estate licensees have proven to be uncollectable. NRS 645.844. The
Administrator's right to subrogation is necessary for the State to recover the money paid to a
claimant from the Fund. The assignment requirement of NRS 645.8491 provides a method for
the Administrator to recover a judgment which exceeds the amount paid to a claimant.
Although recovery from the Fund is voluntary, a strict interpretation of NRS 645.8491
would undermine the remedial nature of the statute. A victim with a judgment exceeding
$10,000 who wished to retain the possibility of recovering the rest of the judgment would be
forced not to seek the remedy provided by the Fund. A person with a judgment under $10,000
could collect his entire claim while a person with a judgment exceeding $10,000 would be
limited to recovering $10,000 from the Fund. NRS 645.844(1).
While NRS 17.150 provides that appellants' judgment is valid for six years and is
renewable, the claimant must file a petition to recover from the Fund no more than a year
after all proceedings connected with the judgment have terminated. NRS 645.844(f). Since
the primary purpose of the Fund is to aid victims of real estate fraud, the Fund would be
unjustly enriched if it could retain the entire amount recovered from the judgment debtor
which in justice and equity belongs to the claimant.
[Headnotes 3, 4]
Statutes with a protective purpose should be liberally construed in order to effectuate the
benefits intended to be obtained. Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635,
503 P.2d 457 (1972). Where alternative interpretations of a statute are possible, the one
producing a reasonable result should be favored. Sheriff v. Smith, 91 Nev. 729, 542 P.2d 440
(1975). The legislature's goal of providing both monetary relief for victims of real estate
fraud and a method for the Administrator to recover the judgment can be attained even if
the State is required to account to claimants for the balance of collected judgments that
exceed amounts expended by the State.
for victims of real estate fraud and a method for the Administrator to recover the judgment
can be attained even if the State is required to account to claimants for the balance of
collected judgments that exceed amounts expended by the State. This requirement would help
make victims whole and benefit the class of persons the legislature intended to protect.
[Headnote 5]
Accordingly, we reverse the district court's order requiring appellants to return the $10,000
they received from the Fund. However, if appellants wish to retain the $10,000, they must
assign their entire judgment to the Administrator of the Fund. Appellants may reserve the
right to pursue collection of the judgment on behalf of the State of Nevada. If the judgment is
collected, the State has priority and is to recover for all costs it has incurred, before appellants
receive any balance of the amount collected.
Reversed.
____________
100 Nev. 348, 348 (1984) Nevada Tax Comm'n v. Bernhard
NEVADA TAX COMMISSION, Appellant, v.
ALEXANDER K. BERNHARD, Respondent.
No. 15332
June 26, 1984 683 P.2d 21
Appeal from judgment reversing agency decision, First Judicial District Court, Carson
City; Michael E. Fondi, Judge.
Buyer of airplane, which had been used in course of seller's business of selling airplane
kits, petitioned for review of decision of Tax Commission affirming assessment of use tax.
The district court determined that sale of the airplane was exempt from use tax, and
Commission appealed. The Supreme Court held that purchase of airplane used by seller in
course of activity of selling airplane kits constituted an occasional sale, and thus, was
exempt from use tax.
Affirmed.
Brian McKay, Attorney General, and Michael J. Dougherty, Deputy Attorney General,
Carson City, for Appellant.
Shaw, Heaton, Doescher & Owen, Carson City, for Respondent.
1. Statutes.
In construing a law approved by referendum, normal rules of statutory construction apply.
2. Statutes.
Where meaning of a particular statutory provision is doubtful, courts will give consideration to effect or
consequences of proposed constructions.
3. Statutes.
If language of statutory provision fairly permits, courts will avoid construing it in a manner which will
lead to an unreasonable result.
4. Statutes.
In determining meaning of a specific provision of an act, the act should be read as a whole.
5. Statutes.
Where possible, a statute should be read to give meaning to all of its parts.
6. Taxation.
Tax Commission's interpretation of occasional sale exemption to use tax as not including products used
in course of merchant's selling activity, even if merchant is not in specific business of selling such products,
would make such exemption available only in rare circumstances, largely nullifying such provision and
thereby violating rule of statutory construction that effect should be given to all of the statute's parts. NRS
372.035(1)(a), 372.185, 372.320.
7. Taxation.
Purchase of airplane from merchant, which used plane in the course of its business of selling airplane kits
for the purpose of corporate transportation, constituted an occasional sale, and thus, was exempt from
use tax. NRS 372.035(1)(a), 372.185, 372.320.
OPINION
Per Curiam:
This is an appeal from a judgment of the lower court holding that respondent's purchase of
an airplane constituted an occasional sale and was therefore exempt from a use tax under
the provisions of the Sales and Use Tax Act, 1955, Nev. Stats. ch. 397.
1
The Nevada Tax
Commission has appealed and contends that the lower court erred in holding that the
transaction constituted an occasional sale. We disagree.
Christen Industries, Inc. (hereafter Christen) is a California corporation engaged in the
business of selling aerobatic airplane kits and is a registered retailer with the California State
Board of Equalization. Christen used a twin-engine Cessna aircraft in the course of its
operations for the purpose of corporate transportation.
In November of 1981, Christen sold the Cessna in California to Alexander K. Bernhard,
the respondent. Bernhard based the Cessna in Nevada, but he did not remit a use tax to the
State of Nevada.
____________________

1
Citation to sections of the Sales and Use Tax Act will hereafter be to corresponding sections of Chapter 372
of the Nevada Revised Statutes.
Cessna in Nevada, but he did not remit a use tax to the State of Nevada.
The Nevada Department of Transportation subsequently determined that Bernhard owed a
use tax on the airplane and sent him a deficiency notice to this effect. Bernhard petitioned for
a redetermination of the assessment. A hearing officer for the Department of Taxation upheld
the assessment, which decision was affirmed on appeal to the Nevada Tax Commission.
In December of 1982, Bernhard petitioned the district court to review the decision of the
tax commission. The district court held that the sale of the Cessna constituted an occasional
sale which, under NRS 372.320, exempted the transaction from a use tax.
On appeal, the tax commission contends that because Christen held or used the Cessna in
the course of its retailing activity, the sale of the Cessna does not constitute an occasional
sale.
The Sales and Use Tax Act was enacted by the legislature in 1955 and approved by the
people of Nevada in a referendum vote in 1956. The act imposes an excise tax on the
storage, use or other consumption in this state of tangible personal property purchased from
any retailer on or after July 1, 1955, for storage, use or other consumption in this state. . . .
NRS 372.185. Exempted from this tax are the gross receipts from occasional sales of
tangible personal property and the storage, use or other consumption in this state of tangible
personal property, the transfer of which to the purchaser is an occasional sale. NRS 372.320.
NRS 372.035(1)(a) defines an occasional sale as including:
A sale of property not held or used by a seller in the course of an activity for which
he is required to hold a seller's permit, provided such sale is not one of a series of sales
sufficient in number, scope and character to constitute an activity requiring the holding
of a seller's permit.
At issue in this case is whether Christen can be considered to have held or used the Cessna
in the course of an activity for which Christen was required to hold a seller's permit. The
court below held that because Christen was not in the business of selling airplanes such as the
Cessna, the sale was an occasional sale. The tax commission, on the other hand,
acknowledges that Christen was not in the business of selling airplanes such as the Cessna,
but asserts that because the Cessna was used in the course of Christen's activity in selling
airplane kits, the occasional sale exemption is not available.
[Headnotes 1-5]
The issue presented is one of the proper construction of the definition of an "occasional
sale."
definition of an occasional sale. In construing a law approved by referendum, the normal
rules of statutory construction apply. Pershing Co. v. Humboldt Co., 43 Nev. 78, 183 P. 314
(1919) (opn. on rehrg.). Where the meaning of a particular provision is doubtful, the courts
will give consideration to the effect or consequences of proposed constructions. See NL
Industries v. Eisenman Chemical Co., 98 Nev. 253, 645 P.2d 976 (1982); Alper v. State ex
rel. Dep't Hwys., 96 Nev. 925, 621 P.2d 492 (1980). If the language of the provision fairly
permits, the courts will avoid construing it in a manner which will lead to an unreasonable
result. NL Industries v. Eisenman Chemical Co., supra; School Trustees v. Bray, 60 Nev.
345, 109 P.2d 274 (1941). Additionally, in determining the meaning of a specific provision of
an act, the act should be read as a whole. See White v. Warden, 96 Nev. 634, 614 P.2d 536
(1980); Midwest Livestock v. Griswold, 78 Nev. 358, 372 P.2d 689 (1962). Finally, where
possible, a statute should be read to give meaning to all of its parts. See Sheriff v. Morris, 99
Nev. 109, 659 P.2d 852 (1983); Nevada State Personnel Div. v. Haskins, 90 Nev. 425, 529
P.2d 795 (1974).
[Headnotes 6, 7]
In this case it is apparent from the act as a whole that transactions denominated occasional
sales were intended to be exempt from sales and use taxes. The tax commission's
interpretation of the definition of occasional sale would make the exemption available only in
rare circumstances, and not to merchants at all. Such an interpretation would largely nullify
the occasional sale provision and thereby violate the rule of statutory construction that effect
should be given to all of a statute's parts. See Big Three Industries, Inc. v. Keystone
Industries, Inc., 472 S.W.2d 850 (Tex.Civ.App. 1971). Accordingly, we hold that the
language of the exemption was intended to cover the circumstances of this case.
Affirmed.
____________
100 Nev. 352, 352 (1984) Thompson v. District Court
RODNEY THOMPSON, Petitioner, v. FIRST JUDICIAL DISTRICT COURT, COUNTY
OF STOREY, and the HONORABLE MICHAEL R. GRIFFIN, JUDGE, Respondents.
No. 15445
June 26, 1984 683 P.2d 17
Original petition for extraordinary relief.
Petitioner sought writ of review or, alternatively, writs of mandamus or prohibition
challenging lower court's dismissal of his appeal from conviction. The Supreme Court, held
that: (1) petition would be treated as one for mandamus, and (2) under statute providing that
an appeal shall be dismissed unless perfected by defendant within 60 days after appeal is filed
in justice's court by having it set for trial, defendant need not actually obtain trial setting
within 60-day limit, but need only apply for trial setting within that time.
Writ granted.
Nicolaus R. Harkins, Carson City, for Petitioner.
Brian McKay, Attorney General, Carson City; and Marshall A. Bouvier, District Attorney,
Storey County, for Respondents.
1. Mandamus.
Writ of mandamus may be used to review district court's action in dismissing an appeal from a justice's
court.
2. Mandamus.
Petition for writ of review or, alternatively, writs of mandamus or prohibition alleging that lower court
incorrectly interpreted statute and therefore erroneously dismissed petitioner's appeal would be treated as
one for mandamus. NRS 34.160, 189.065.
3. Pleading.
Petition for extraordinary writ of relief is a pleading which can be verified by a petitioner's attorney if
facts on which petition is based are within knowledge of attorney or petitioner is absent from county in
which attorney resides or is for some other cause unable to verify the petition.
4. Statutes.
Legislature's intent in enacting statute is factor which controls its interpretation.
5. Statutes.
If a statute is clear on its face court cannot go beyond language of statute in determining legislature's
intent.
6. Statutes.
If statute is capable of being understood in two or more senses by reasonably well-informed persons, then
the statute is ambiguous.
7. Statutes.
In construing an ambiguous statute, evidence of legislature's intent may be gleaned from the title of the
act by which the statute was enacted.
Right of appeal is a substantial right which should not be taken away unless clearly intended by statute.
Any doubt about construction of statutes regulating right of appeal should be resolved in favor of
allowing appeal.
Under statute providing that an appeal shall be dismissed unless perfected by defendant within 60 days
after appeal is filed in justice's court by having it set for trial, defendant need not actually obtain trial
setting within 60-day limit, but need only apply for trial setting within that time; disapproving Plankinton v.
District Court, 93 Nev. 643, 572 P.2d 525 (1977). NRS 189.065.
OPINION
Per Curiam:
Petitioner was convicted in the justice's court of Virginia Township of violating various
county ordinances and a state safety statute. Petitioner filed a notice of appeal from this
judgment on April 18, 1983. Fifty-eight days later, on June 15, 1983, petitioner filed an
application in the district court to set his case for trial. The state responded by moving to
dismiss petitioner's appeal on the ground that it was untimely under NRS 189.065. The
district court agreed and ordered petitioner's appeal dismissed. An appeal to this court from
the district court's order was dismissed on procedural grounds.
Petitioner is presently before this court seeking a writ of review or, alternatively, writs of
mandamus or prohibition. He contends that the lower court incorrectly interpreted NRS
189.065 and therefore erroneously dismissed his appeal.
[Headnotes 1-3]
We initially note that 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. NRS
34.160. Additionally, we have previously used mandamus to review a district court's action in
dismissing an appeal from a justice's court. See Plankinton v. District Court, 93 Nev. 643, 572
P.2d 525 (1977). Accordingly, we will treat the present petition as one for mandamus.
1
The
issue presented in this case is the proper interpretation of NRS 1S9.065.

____________________

1
Respondent asserts that the petition should be dismissed because the petition is not made upon the affidavit
of the party beneficially interested as is required by the statutes governing extraordinary writ relief. See NRS
The issue presented in this case is the proper interpretation of NRS 189.065. The statute
provides:
An appeal shall be dismissed by the district court unless perfected by application of
the defendant, within 60 days after the appeal is filed in the justice's court, by having it
set for trial.
The district court ruled that under this statute a defendant must have actually obtained a trial
setting within the 60-day limit. Petitioner contends, however, that a defendant need only
apply for a trial setting within the time limit.
[Headnotes 4-6]
The legislature's intent in enacting the statute is the factor which controls its interpretation.
See Robert E. v. Justice Court, 99 Nev. 443, 664 P.2d 957 (1983); City of Las Vegas v.
Macchiaverna, 99 Nev. 256, 661 P.2d 879 (1983). If a statute is clear on its face a court
cannot go beyond the language of the statute in determining the legislature's intent. Robert E.
v. Justice Court, supra; White v. Warden, 96 Nev. 634, 614 P.2d 536 (1980). If, however, a
statute is capable of being understood in two or more senses by reasonably well-informed
persons, then the statute is ambiguous. Robert E. v. Justice Court, supra.
In the present case the language of the statute is not clear on its face. Either of the
interpretations proffered by the parties can reasonably be drawn from its language. The statute
is therefore ambiguous.
[Headnote 7]
Article 4, Section 17 of the Nevada Constitution requires that the title of every legislative
act briefly express the subject of the act. In construing an ambiguous statute, evidence of the
legislature's intent may be gleaned from the title of the act by which the statute was enacted.
See Torreyson v. Board of Examiners, 7 Nev. 19 (1871); State v. Superior Court of Cty. in &
for Pima, 627 P.2d 686 (Ariz. 1981); see also A Minor v. Clark Co. Juvenile Ct. Servs., 87
Nev. 544, 490 P.2d 1248 {1971).
____________________
34.030, 34.170, 34.330. A petition for extraordinary writ relief is a pleading which can be verified by a
petitioner's attorney if the facts on which the petition is based are within the knowledge of the attorney or the
petitioner is absent from the county in which the attorney resides or is for some other cause unable to verify the
petition. See Abell v. District Court, 58 Nev. 89, 71 P.2d 111 (1937); NRS 15.010(1). The attorney's affidavit or
verification must state why it is not made by the party. NRS 15.010(2). Additionally, an affidavit verifying a
pleading need not be subscribed before a notary public. NRS 15.010(5). In this case the verification of
petitioner's attorney complies with the requirements of Abell and NRS 15.010.
(1971). The title of the act by which NRS 189.065 was enacted provided:
AN ACT to amend Chapter 189 of NRS, relating to criminal appeals from justices'
courts, by requiring a defendant to perfect his appeal by applying for a trial setting.
. . .
1965 Nev. Stats. ch. 216. This title suggests that the legislature intended that a defendant
merely needs to apply for a trial date within the sixty days allowed by the statute in order for
his appeal to be timely.
[Headnotes 8, 9]
Another rule of statutory construction also supports petitioner's interpretation of the
statute. The right of appeal is a substantial right which should not by taken away unless
clearly intended by the statute. White v. Warden, supra; O'Donnell v. District Court, 40 Nev.
428, 165 P. 759 (1917). Any doubt about the construction of statutes regulating the right of
appeal should be resolved in favor of allowing an appeal. Saunders v. McKenzie, 572 S.W.2d
653 (Tenn. 1978). In this case it does not clearly appear that the legislature intended to limit
the right of appeal by requiring that an appellant cause his case to be actually set for trial
within sixty days of filing his appeal. We therefore resolve any doubt regarding the
interpretation of NRS 189.065 in favor of the right to appeal.
[Headnote 10]
The available evidence of the legislature's intent, and the rule regarding the interpretation
of a statute regulating the right of appeal, compel and interpretation of the statute in
petitioner's favor. We therefore interpret NRS 189.065 to mean that an appellant has sixty
days after filing his appeal in the justice's court within which to apply for a trial date in the
district court.
2
Accordingly, we order that a writ of mandamus issue requiring the district
court to vacate its order of dismissal.
____________________

2
Any dicta to the contrary in Plankinton v. District Court, supra, is disapproved.
____________
100 Nev. 356, 356 (1984) O'Donnell v. Perry
BOYD JAMES O'DONNELL, JOAN O'DONNELL, TEMORA TRADING COMPANY,
LTD., a Bahamian Corporation, MICHAEL W. MOGAN, BURTON BERGERON,
EUGENE FOX, TED IVY, JAMES GLEASON, a Fictitious Person, NUOVO ANSTALT, a
Liechtenstein Trust and RICHARD MONEYMAKER, Attorney, Appellants, v. WALLACE
PERRY, as Trustee of Estate of BOYD JAMES O'DONNELL and JOAN O'DONNELL,
Bankrupts, Respondent.
No. 15638
June 26, 1984 683 P.2d 12
Motion to dismiss appeal from order refusing to bifurcate trial, Fourth Judicial District
Court, Elko County; Merlyn H. Hoyt, Judge.
The district court denied motion to bifurcate civil and criminal contempt proceedings, and
appeal was sought. The Supreme Court held that order denying motion to bifurcate was not
final appealable judgment.
Motion to dismiss granted.
Vaughan, Hull, Copenhaver & Hansen, Ltd., Elko, for Appellants.
Goicoechea & DiGrazia, Ltd., Elko, and Russell Piccoli, Phoenix, Arizona, for
Respondent.
Contempt.
District court order denying motion to bifurcate civil and criminal contempt proceedings was not final,
appealable judgment. NRS 2.090; NRAP 3A(b)(2).
OPINION
Per Curiam:
This court issued an opinion in 1982 which concerned the principals to this action. See
Temora Trading Co. v. Perry, 98 Nev. 229, 645 P.2d 436 (1982). Since that time, civil and
criminal contempt proceedings have been brought against appellants. Appellants moved for
bifurcation of the civil and criminal proceedings, contending that the district court lacked
jurisdiction to entertain the criminal matter. The motion was denied, and this appeal followed.
Respondent has now moved to dismiss the appeal, asserting that the order is not appealable,
and appellants have opposed the motion.
100 Nev. 356, 357 (1984) O'Donnell v. Perry
Appellants contend that the order in question is appealable as an order changing or
refusing to change the place of trial. See NRAP 3A(b)(2); NRS 2.090. Appellants have
provided no authorities indicating that an order denying a motion to transfer a case from a
district court to a justice's court constitutes an order refusing to change the place of trial,
and we are aware of none.
1
Cf. State v. District Court, 52 Nev. 379, 287 P. 957 (1930)
(change of place of trial means change of venue, not change of the judge or the court).
Alternatively, appellants contend that the order was a special order made after final
judgment. See NRAP 3A(b)(2). We note that the order in question is interlocutory in nature
and concerns new proceedings in contempt. Appellants have made no showing that the order
affects the rights of parties growing out of final judgment; it therefore appears that the order
was not an appealable special order. See Alvis v. State, Gaming Control Bd., 99 Nev. 184,
660 P.2d 980 (1983).
Appellants have requested that, should we determine that the order is not appealable, the
appeal be treated as a petition for a writ of prohibition. Appellants have provided neither
relevant authority nor compelling argument in favor of this request.
The district court order denying the motion to bifurcate is not an appealable order.
Accordingly, the motion to dismiss is granted and this appeal is dismissed. Appellant's
request to treat this appeal as a petition for a writ of prohibition is denied.
____________________

1
We note that in 1981, the Nevada Legislature modified NRS 2.090 to make orders changing or refusing to
change the place of trial in criminal actions appealable only after judgment. See 1981 Nev. Stats. ch. 702, 2,
at 1706. The title of the act making that modification stated that the act concerned orders changing or refusing
to change venue. Id. at 1705 (emphasis added). Thus, it appears that the legislative intent in using the words
place of trial was to refer to venue. See A Minor v. Clark Co. Juvenile Ct. Servs., 87 Nev. 544, 490 P.2d 1248
(1971) (title of statute indicative of legislative intent).
____________
100 Nev. 358, 358 (1984) Sheriff v. Becker
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
ALFRED BECKER, Respondent.
No. 15640
June 26, 1984 683 P.2d 14
Appeal from order granting petition for writ of habeas corpus, Eighth Judicial District
Court, Clark County; Robert G. Legakes, Judge.
Defendant, a former county justice of the peace who was convicted of taking excess fees
while in office, filed petition for writ of habeas corpus seeking release from penalties and
disabilities of his conviction. The district court entered order in favor of defendant, and
appeal was taken. The Supreme Court held that limitation of statute permitting only
defendants who have fulfilled conditions of probation to be released from all penalties and
disabilities resulting from offenses or crimes of which they have been convicted did not deny
equal protection to defendant who had not been placed on probation but, rather, only fined.
Reversed.
James Tufteland, Deputy District Attorney, Clark County, for Appellant.
Alfred Becker, Las Vegas, in proper person.
Constitutional Law; Criminal Law.
Limitation of statute permitting only defendants who have fulfilled conditions of probation to be released
from all penalties and disabilities resulting from offenses or crimes of which they have been convicted did
not deny equal protection to defendant who had not been placed on probation but, rather, only fined.
U.S.C.A.Const. Amend. 14; NRS 176.225.
OPINION
Per Curiam:
Respondent is a former Clark County justice of the peace. In 1980, he was convicted of
taking excess fees while in office, a violation of NRS 4.080, and sentenced to removal from
office and a $1000 fine. On January 26, 1984, respondent filed a petition for writ of habeas
corpus in the district court, arguing that he was entitled to release from the penalties and
disabilities of his conviction under the provisions of NRS 176.225.1 Respondent conceded
that the statute on its face only allowed such release for defendants who have
successfully completed probation, but he argued that this limitation denied equal
protection of the laws to defendants who are not placed on probation but only fined.
100 Nev. 358, 359 (1984) Sheriff v. Becker
his conviction under the provisions of NRS 176.225.
1
Respondent conceded that the statute
on its face only allowed such release for defendants who have successfully completed
probation, but he argued that this limitation denied equal protection of the laws to defendants
who are not placed on probation but only fined. Respondent concluded that he was
constitutionally entitled to the type of relief provided by the statute. The district court agreed,
and (1) ordered respondent's conviction set aside and the information dismissed; (2) ordered
respondent released from the penalties and disabilities of his conviction; and (3) directed the
clerk to remit the $1000 fine. The sheriff of Clark County appeals from that order.
We conclude that the writ in this case was improvidently granted. Respondent failed to
present any authority in support of his proposition that NRS 176.225 creates a denial of equal
protection, and we are aware of none. Thus, respondent was not constitutionally entitled to
relief under the statute. Since the statute only applies to defendants who successfully
complete a period of probation, the district court was without authority to relieve respondent
from the penalties and disabilities of his conviction. That relief may only be afforded
respondent by the Board of Pardons. See NRS 213.090.
Accordingly, we hereby reverse the order granting the petition for writ of habeas corpus.
2

____________________

1
NRS 176.225 provides, in pertinent part:
1. Every defendant who:
(a) Has fulfilled the conditions of his probation for the entire period thereof; or
(b) Is recommended for earlier discharge by the chief parole and probation officer; or
(c) Has demonstrated his fitness for honorable discharge but because of economic hardship, verified
by a parole and probation officer, has been unable to make restitution as ordered by the court, may at any
time thereafter be permitted by the court to withdraw his plea of guilty or nolo contendere and enter a
plea of not guilty; or, if he has been convicted after a plea of not guilty, the court may set aside the
verdict of guilty; and in either case, the court shall thereupon dismiss the indictment or information
against such defendant, who shall thereafter be released from all penalties and disabilities resulting from
the offense or crime of which he has been convicted.

2
In light of our disposition of this matter, we hereby deny as moot appellant's motion to supplement the
record on appeal.
____________
100 Nev. 360, 360 (1984) National Union Fire Ins. v. Reno's Exec. Air
NATIONAL UNION FIRE INSURANCE COMPANY OF THE STATE OF
PENNSYLVANIA, INC., Appellant, v. RENO'S EXECUTIVE AIR, INC.,
a Corporation, Respondent.
No. 14693
June 26, 1984 682 P.2d 1380
Appeal from summary judgment in insurance coverage dispute, Second Judicial District
Court, Washoe County; Grant L. Bowen, Judge.
Insured helicopter owner brought action against insurer seeking declaration that aviation
liability policy provided coverage for damage to camera equipment brought by passenger onto
helicopter that crashed. The district court entered summary judgment in favor of insured, and
insurer appealed. The Supreme Court held that: (1) provision in aviation liability policy
excluding from coverage property owned, rented, occupied, or used by the named insured, or
in the care, custody or control of named insured, relied upon by insurer to exclude coverage
for the passenger's camera equipment, was ambiguous as to coverage for a passenger's
property carried in the aircraft and was therefore subject to judicial interpretation, and (2) the
exclusion did not apply to the camera equipment.
Affirmed.
[Rehearing denied September 11, 1984]
LeRoy Arrascada, Reno, Kern & Wooley, Los Angeles, California, for Appellant.
Stanley H. Brown, Sr., Stanley H. Brown, Jr., Reno, for Respondent.
1. Insurance.
In determining the meaning of an insurance policy, the language should be examined from the viewpoint
of one not trained in law or in the insurance business; the terms should be understood in their plain,
ordinary and popular sense.
2. Insurance.
An insurer wishing to restrict the coverage of a policy should employ language which clearly and
distinctly communicates to the insured the nature of the limitation.
3. Insurance.
Provision in aviation liability policy excluding from coverage property owned, rented, occupied, or used
by the named insured, or in the care, custody or control of named insured, relied upon by insurer to exclude
coverage for passenger's camera equipment damaged in crash of named insured's helicopter, was
ambiguous as to coverage for a passenger's property carried in the aircraft and was therefore subject to
judicial interpretation.
4. Insurance.
Although individual clause standing alone might appear to contain no ambiguity, policy must be read as a
whole in order to give reasonable and harmonious meaning and effect to all its provisions.
5. Insurance.
A court must look to the entire contract of insurance for a true understanding of what risks are assumed
by the insurer and what risks are excluded.
6. Insurance.
Any ambiguity or uncertainty in an insurance policy must be resolved against the insurer and in favor of
the insured.
7. Insurance.
Insurance contract will be given a construction which will fairly achieve its object of providing indemnity
for the loss to which the insurance relates.
8. Insurance.
While clauses providing coverage are interpreted broadly so as to afford the greatest possible coverage to
the insured, clauses excluding coverage are interpreted narrowly against the insurer.
9. Insurance.
Ambiguous provision in aviation liability policy excluding coverage for property in the custody or
control of the named insured would be construed against the insurer and in favor of the insured, even
though the ambiguous language, which was from a standard air taxi endorsement authorized under Civil
Aeronautics Board regulations was not drafted by the insurer. Federal Aviation Act of 1958, 101 et seq.,
49 U.S.C.A. 1301 et seq.
10. Insurance.
When ambiguity in the language of a policy exists, the court should consider not merely the language, but
also the intent of the parties, the subject matter of the policy, and circumstances surrounding its issuance.
11. Insurance.
Policy should be construed to effectuate the reasonable expectations of the insured.
12. Insurance.
When a policy has been issued which purportedly provides coverage but whose exclusionary provisions
as interpreted by the insurer would narrow the coverage to defeat the purpose of the insurance, the policy
must be construed against the insurer.
13. Insurance.
Damage to camera equipment brought by passenger onto helicopter that subsequently crashed was not
excluded from coverage under aviation liability policy provision excluding from coverage property in the
care, custody or control of the helicopter owner, who was the named insured.
OPINION
Per Curiam:
This appeal arises from a dispute over the coverage provided by an aviation liability
policy. The district court determined that the provision on which the insurer relied to
exclude coverage did not apply to a passenger's camera equipment, and ordered the
insurer to pay to the insured the sum for which the latter had become liable as a result of
damage to the camera equipment.
that the provision on which the insurer relied to exclude coverage did not apply to a
passenger's camera equipment, and ordered the insurer to pay to the insured the sum for
which the latter had become liable as a result of damage to the camera equipment. We affirm
the district court's judgment.
Respondent Reno's Executive Air is an air taxi operator subject to the provisions of the
Federal Aviation Act. In May of 1977 respondent obtained an aviation liability policy from
appellant National Union Fire Insurance Company. The policy covered liability for bodily
injury as well as for property damage. Coverage for property damage extended to $500,000
per occurrence. Respondent was to pay an annual premium of $7,315.
Exclusion 5 of the policy provided: This policy does not apply . . . to property damage to
property owned, occupied, rented or used by the Insured or in the care, custody or control of
the Insured or as to which the Insured is for any purpose exercising physical control or
transported by the Insured. Attached to the policy and incorporated into it was Endorsement
3, which provided in part:
. . . such coverage as is afforded for Property Damage Liability hereunder shall apply to
all sums which the Insured shall be obligated to pay because of damage to or
destruction of cargo which is the property of others and which is being transported in
the aircraft insured hereunder . . .
The limit of the Company's Liability shall be $1,000 per occurrence subject to a
deductible of $100 per occurrence.
. . .
THIS ENDORSEMENT DOES NOT APPLY TO:
. . .
(b) Damage to or destruction of the baggage of any traveler or passenger in the
insured aircraft. Baggage as used herein shall mean handbags, suitcases, valises,
briefcases and other forms of baggage usually carried by transits and travelers and the
contents thereof.
In June of 1977, Endorsement 10 was added to the policy. Endorsement 10 consisted of
Civil Aeronautics Board Form 262 (rev. 6-70), the Standard Air Taxi Endorsement. Pursuant
to the Federal Aviation Act, the Civil Aeronautics Board has adopted the Economic
Regulations, 14 C.F.R. Part 298, with which air taxi operators such as respondent are required
to comply. Subpart E of the Economic Regulations sets forth the minimum liability insurance
an air taxi operator must carry. 298.44 provides that unless individually approved by the
Board, an insurance policy required by Part 29S may not contain any exclusions other
than the ones authorized by the section.
Board, an insurance policy required by Part 298 may not contain any exclusions other than
the ones authorized by the section. The Standard Air Taxi Endorsement amends the policy to
which it is attached to ensure the air taxi operator's compliance with Part 298. Paragraph 5 of
the endorsement deletes the exclusions of the policy to which the endorsement is attached and
replaces them with the exclusions authorized by Part 298. Exclusion 5(e), which replaces
Exclusion 5 of the original policy, states:
Unless otherwise provided in the policy of insurance, the liability insurance afforded
under this policy shall not apply to:
. . .
Loss of or damage to property owned, rented, occupied or used by, or in the care,
custody or control of the Named Insured, or carried in or on any aircraft with respect to
which the insurance afforded by this policy applies.
In January of 1978, San Francisco television station KPIX chartered a helicopter operated
by respondent to film a railroad near Portola, California. On board the aircraft was a KPIX
cameraman carrying camera equipment valued at around $41,000. The aircraft collided with
some power lines and crashed. Neither the pilot nor the cameraman was hurt, but the camera
equipment was seriously damaged.
The owner of the camera equipment, Westinghouse Broadcasting, filed an action in federal
court against respondent, seeking to recover the value of the camera equipment. Appellant
defended the action on behalf of respondent subject to a reservation of rights. Ultimately,
Westinghouse Broadcasting obtained a judgment of $41,000 against respondent. Respondent
filed the instant action, seeking a declaration that the policy provided coverage for the
damage to the camera equipment. Appellant maintained that Exclusion 5(e) excluded
coverage for the damage, because the camera equipment was in the care, custody or control
of respondent and further was carried in or on the aircraft. The district court determined
that Exclusion 5(e) was ambiguous because it did not specify in whose possession the
property being carried in or on the aircraft had to be. Construing the exclusion against
appellant insurer, the court held that it did not apply to the camera equipment. The court
granted summary judgment for respondent, and ordered appellant to pay respondent $41,000,
the amount of Westinghouse Broadcasting's judgment against respondent. This appeal
followed.
[Headnotes 1-3]
In determining the meaning of an insurance policy, the language should be examined from
the viewpoint of one not trained in law or in the insurance business; the terms should be
understood in their plain, ordinary and popular sense. Home Indemnity Co. v. Desert Palace,
Inc., 86 Nev. 234, 236, 468 P.2d 19, 21 (1970); Sparks v. Republic Nat. Life Ins. Co., 647
P.2d 1127, 1132 (Ariz. 1982). In particular, an insurer wishing to restrict the coverage of a
policy should employ language which clearly and distinctly communicates to the insured the
nature of the limitation. Harvey's Wagon Wheel v. MacSween, 96 Nev. 215, 220, 606 P.2d
1095, 1098 (1980); Sparks v. Republic Nat. Life Ins. Co., 647 P.2d at 1133. We agree with
the district court that Exclusion 5(e) is susceptible to more than one reasonable interpretation.
The provision excludes from coverage property that is owned, rented, occupied, or used by
the Named Insured, or in the care, custody or control of the Named Insured; however, it
does not specify in whose possession property carried in or on [the] aircraft must be before
the exclusion applies.
1

[Headnotes 4, 5]
Furthermore, although an individual clause standing alone might appear to contain no
ambiguity, the policy must be read as a whole in order to give a reasonable and harmonious
meaning and effect to all its provisions. Sparks v. Republic Nat. Life Ins. Co., 647 P.2d at
1134. A court must look to the entire contract of insurance for a true understanding of what
risks are assumed by the insurer and what risks are excluded. Scott v. Keever, 512 P.2d 346
(Kan. 1973). Our reading of the insurance policy leads us to conclude that it fails to
communicate the nature of the exclusion urged by appellant.
At the very beginning the policy provides that the Insurer shall pay on behalf of the
Insured sums that the Insured shall become legally obligated to pay as damages because of
damage to property. Paragraph 1 of Endorsement 10 also states that the Insurer agrees to pay
sums which the Named Insured shall become legally obligated to pay as damages for damage
to property of others. A layman reading this language and keeping in mind the purpose for
which he purchased the policy would expect coverage for damage to the property of his
passengers. Only upon reading the exclusions would the insured become aware of the
languageambiguous in itselfon which the insurer relies to exclude coverage.
____________________

1
This particular problem was not present with the original Exclusion 5, which excluded coverage for property
transported by the Insured. The policy defines Insured as including not only the Named Insured but also any
person using or riding in the aircraft with the express permission of the Named Insured.
become aware of the languageambiguous in itselfon which the insurer relies to exclude
coverage. The situation is further complicated by the existence of Endorsement 3, which
provides coverage of up to $1,000 for cargo but not for baggage. Endorsement 3 is itself far
from clear. For instance, the camera equipment involved here does not fall easily under either
the dictionary definition of cargo or the definition of baggage set out in the policy.
[Headnotes 6-8]
Any ambiguity or uncertainty in an insurance policy must be resolved against the insurer
and in favor of the insured. Harvey's Wagon Wheel, Inc. v. MacSween, 96 Nev. at 219-220,
606 P.2d at 1098 (1980). The contract will be given a construction which will fairly achieve
its object of providing indemnity for the loss to which the insurance relates. Reserve Ins. Co.
v. Pisciotta, 640 P.2d 764, 768 (Cal. 1982). While clauses providing coverage are interpreted
broadly so as to afford the greatest possible coverage to the insured, clauses excluding
coverage are interpreted narrowly against the insurer. Id.; Harvey's Wagon Wheel, Inc. v.
MacSween, supra.
[Headnote 9]
The rationale for this rule of construction is that the insurer has drafted the policy and
should be held responsible for its language. We recognize that appellant did not draft
Exclusion 5(e), or indeed any of the language in the Standard Air Taxi Endorsement.
However, appellant drafted the policy to which the endorsement attached. Appellant had the
opportunity to clarify any ambiguities in the endorsement elsewhere in the policy. Although
appellant had to use the statutorily mandated language if it wished to restrict the coverage of
the policy, nothing prevented it from putting the insured on notice that little or no coverage
was provided for liability arising from damage to property of passengers.
[Headnotes 10-12]
When ambiguity in the language of a policy exists, the court should consider not merely
the language, but also the intent of the parties, the subject matter of the policy, and
circumstances surrounding its issuance. Bonner County v. Panhandle Rodeo Ass'n, Inc., 620
P.2d 1102, 1106 (Idaho 1980). The policy should be construed to effectuate the reasonable
expectations of the insured. Reserve Ins. Co. v. Pisciotta, supra; see Sullivan v. Dairyland
Insurance Co., 98 Nev. 364, 649 P.2d 1357 (1982). A purchaser of an aviation liability policy
which covers property damage reasonably expects that the policy will cover that property
which is most likely to be damaged and to be the subject of claims against the insured: the
property of others carried on board the aircraft.
subject of claims against the insured: the property of others carried on board the aircraft.
When a policy has been issued which purportedly provides coverage but whose exclusionary
provisions as interpreted by the insurer would narrow the coverage to defeat the purpose of
the insurance, the policy must be construed against the insurer. See Bonner County v.
Panhandle Rodeo Ass'n, Inc., supra. Such an exclusion must be stated clearly and
unambiguously so as to readily communicate to the insured the specific circumstances under
which he or she will not receive the expected coverage.
[Headnote 13]
Keeping these principles in mind, we agree with the district court that the language of
Exclusion 5(e) should be construed to exclude from coverage only property carried in or on
the aircraft by the Named Insured. The camera equipment was not carried in or on the aircraft
by respondent; nor was it in respondent's care, custody, or control. See Home Indemnity
Company v. Desert Palace, 86 Nev. 234, 468 P.2d 19 (1970). Consequently, we hold that the
exclusion did not apply to the camera equipment and that the policy provided full coverage
for the damages for which respondent was liable to Westinghouse Broadcasting. We affirm
the judgment of the district court.
____________
100 Nev. 366, 366 (1984) City of Elko v. Zillich
THE CITY OF ELKO, a Special Charter Municipal Corporation of the State of Nevada,
Appellant, v. JOHN F. ZILLICH, and BERNICE ZILLICH, Husband and Wife, Respondents.
No. 14733
June 26, 1984 683 P.2d 5
Appeal from a condemnation award and from an order denying a motion for a directed
verdict, judgment notwithstanding the verdict or a new trial. Fourth Judicial District Court,
Elko County; Joseph O. McDaniel, Judge.
Condemnation action was brought. The district court awarded landowners $586,000 as
compensation for the taking of their land by the city, and the city appealed. The Supreme
Court held that: (1) trial court did not abuse its discretion in admitting expert's testimony of
his valuation of land taken, which was based on comparable sales made both before and after
date of service of the summons; {2) trial court properly allowed jury to hear testimony
that grandfathered right to operate a wrecking yard on the property increased the market
value of the site by 20 percent of the value of the land without that right; {3) any alleged
error from testimony regarding potential value of the land if it were used as a residential
mobile home park did not prejudice the city; and {4) trial court properly admitted
landowner's testimony regarding value of the condemned property.
after date of service of the summons; (2) trial court properly allowed jury to hear testimony
that grandfathered right to operate a wrecking yard on the property increased the market value
of the site by 20 percent of the value of the land without that right; (3) any alleged error from
testimony regarding potential value of the land if it were used as a residential mobile home
park did not prejudice the city; and (4) trial court properly admitted landowner's testimony
regarding value of the condemned property.
Affirmed.
Vaughn, Hull, Copenhaver & Hansen, Ltd., Elko, for Appellant.
Zane S. Miles, Elko, for Respondents.
1. Evidence.
Although in most cases best evidence of market value of real property in condemnation is found in sales
of comparable property within a reasonable time before the taking, the trial court is allowed wide discretion
in passing on matters relating to expert testimony in condemnation cases.
2. Evidence.
Trial court did not abuse its discretion, in action to determine value of land condemned by city, in
admitting expert's testimony of his valuation of land taken, which was based on comparable sales made
before and after the date of service of the summons; difference in time between date of summons and dates
of comparable sales affected weight of the testimony and not its admissibility. NRS 37.120.
3. Evidence.
Trial court, in action brought to determine amount of compensation landowners were entitled to for land
taken by city, did not abuse its discretion in admitting evidence of comparable sales made after date of
service of the summons, despite city's contention that such sales were enhanced in value by railroad project
which city took the land for, where expert testified, without contradiction, that his comparable sales
analysis did not include any sales which came about as a direct result of the railroad project, nor sales
affected by improvements which were made in conjunction with the project. NRS 37.120.
4. Eminent Domain.
City's failure to raise any objection to presentation of evidence of more than one highest and best use of
property taken by city, during trial to determine amount of compensation landowners should receive,
prevented review of the issue by the Supreme Court. NRS 47.040, subd. 1(a).
5. Eminent Domain.
Generally, the value of property taken in condemnation proceedings is its market value, defined as the
highest price estimated in terms of money which the land would bring if exposed for sale in the open
market, with reasonable time allowed in which to find a purchaser, buying with
knowledge of all the uses and purposes to which it was adapted and for which it was
capable."
open market, with reasonable time allowed in which to find a purchaser, buying with knowledge of all the
uses and purposes to which it was adapted and for which it was capable.
6. Eminent Domain.
While generally the value of property taken in condemnation proceedings is its market value, the court
and jury may consider other elements that can fairly enter into the question of value and which an
ordinarily prudent businessman would consider before forming judgment and making a purchase.
7. Eminent Domain.
Trial court, in action to determine amount of compensation landowners were entitled to receive for land
taken by city, properly allowed jury to hear testimony by landowners' appraiser that a grandfathered right to
operate a wrecking yard on the site increased market value of the land by 20 percent of its value without
that right, since use accepted by the jury as the highest and best one for the property was as an automobile
wrecking yard, and since value of the grandfathered right was an element which would undoubtedly be
considered by a prospective purchaser who anticipated using the land as a wrecking yard.
8. Eminent Domain.
Where jury in condemnation action awarded landowners the exact amount identified as fair market value
of the land with a highest and best use as a wrecking yard, any alleged error from testimony regarding
potential value of the land if it were used as a residential mobile home park did not prejudice the city.
Even assuming error, a verdict will not be set aside unless it affects substantial rights of the parties.
NRCP 61.
10. Evidence.
The general rule is that a property owner, because of his ownership, is presumed to have special
knowledge of the property and may testify as to its value.
11. Evidence.
Question of landowner's competency to form an opinion of land's value may be exposed on
cross-examination, and affects the weight to be given the testimony, not its admissibility.
12. Evidence.
Trial court, in eminent domain proceeding, properly allowed landowner to testify as to value of the
condemned property.
OPINION
Per Curiam:
This is an appeal from a jury verdict awarding respondents John and Bernice Zillich
$586,000 as compensation for the taking of their land by appellant, the City of Elko.
Appellant contends that the trial court committed numerous errors in admitting evidence upon
which the jury based its award. We disagree and affirm the judgment in its entirety.
The city initiated the condemnation of respondent's parcel of land on March 7, 1980, for
use in a railroad relocation project. At the time of the condemnation, respondents operated the
property as an automobile wrecking yard and made incidental sales of used automobiles and
new and used automobile parts. Respondents also lived on the property in a duplex. Although
the entire parcel was zoned for general industrial use; the prior existing use of the property as
a wrecking yard had been grandfathered in, and respondents were permitted to continue that
use without applying for a special or conditional use permit. The sole issue for the jury at trial
was the amount of compensation respondents should receive for their land. The city's
appraiser placed the value of the land at $336,500. Respondents introduced evidence
supporting several alternative valuations, including the one eventually chosen by the jury.
Appellant first assigns error to the admission of evidence of sales of comparable properties
which were made subsequent to the date of service of process in this case. Respondents'
expert testified regarding his opinion of the value of the subject property at around the time
respondents were served with the notice of condemnation. His opinion was based upon
comparison of the property with a number of other properties which had been sold both
before and after this date. Evidence of these comparable sales were admitted to show the
basis for the appraisal.
NRS 37.120 requires the measure of compensation to be based upon the value of the land
taken on the date of service of the summons. The record indicates that respondents' property
was valued as of a date within four days of the date of service, using comparable sales made
both before and after this date. The sales figures were adjusted for differences in the size of
the parcels and the date of sale, in a manner which was explained to the jury.
[Headnotes 1, 2]
Although it is true that in most cases the best evidence [of market value of real property
in condemnation] is found in sales of comparable property within a reasonable time before
the taking, the trial court is allowed wide discretion in passing on matters relating to expert
testimony in these cases. United States v. 25.02 Acres of Land, Douglas County, Colo., 495
F.2d 1398, 1400-1401 (10th Cir. 1974). We find no abuse of discretion in this instance. The
trial court properly determined that the difference in time between the date of summons and
the dates of the comparable sales affected the weight of the evidence and not its
admissibility.
evidence and not its admissibility. See, Clark Co. School District v. Mueller, 76 Nev. 11, 19,
348 P.2d 164, 168 (1960).
[Headnote 3]
The City also objects to the use of the later comparable sales, contending that these sales
were enhanced in value by the railroad project itself. However, respondent's appraiser
testified, without contradiction, that his comparable sales analysis did not include any sales
which came about as a direct result of the railroad project, nor sales affected by the
improvements which were made in conjunction with the project. Consequently, we again
perceive no abuse of discretion in the court's admission of these sales into evidence.
[Headnote 4]
Appellant next assigns error to the fact that evidence of more than one highest and best use
of the subject property was presented to the jury for its consideration. However, appellant's
failure to raise any objection to the presentation of this evidence during trial prevents our
review of this issue. NRS 47.040(a). Accordingly, we turn to the next asserted error, i.e., that
the methods employed to arrive at the several valuations of the property were improper.
The use accepted by the jury as the highest and best one for the subject property was as an
automobile wrecking yard. The judgment awarded represented the value of the land itself plus
a twenty percent increment for the value of the grandfathered right to operate a wrecking yard
on the site. Appellant stipulated that this right would be transferable had the property been
sold on the open market.
[Headnotes 5-7]
Generally, the value of property taken in condemnation proceedings is its market value,
defined as the highest price estimated in terms of money which the land would bring if
exposed for sale in the open market, with reasonable time allowed in which to find a
purchaser, buying with knowledge of all the uses and purposes to which it was adopted and
for which it was capable. State v. Covich, 67 Cal.Rptr. 280, 281-282 (Cal.App. 1968). The
court and jury may consider other elements that can fairly enter into the question of value
and which an ordinarily prudent businessman would consider before forming judgment in
making a purchase. Tacchino v. State ex rel. Department of Highways, 89 Nev. 150, 152,
508 P.2d 1212, 1213 (1973). In this case, respondents' appraiser testified that the
grandfathered right increased the market value of the site by twenty percent of the value of
the land without that right. He identified the considerations which went into his analysis,
including the parcel's unique location within the city limits and its rental value as a
wrecking yard in that location.
its rental value as a wrecking yard in that location. Since the value of the grandfathered right
was an element which would undoubtedly be considered by a prospective purchaser who
anticipated using the land as a wrecking yard, the court did not err in allowing the jury to hear
evidence of its estimated value.
[Headnotes 8, 9]
Respondents' appraiser also testified regarding the potential value of the land if it were
used as a residential mobile home park rather than as an automobile wrecking yard. Appellant
contends that the trial court erred in admitting this testimony because no evidence existed that
this use was reasonably probable or that there was a demand for such use in the reasonably
near future. We are satisfied, however, that appellant suffered no prejudice from this alleged
error. The jury awarded respondents the exact amount identified as the fair market value of
the land with a highest and best use as a wrecking yard. There is no evidence that the
alternative valuation as a mobile home park, which actually resulted in a lower sum, affected
the jury's deliberations. Even assuming error, a verdict will not be set aside unless it affects
the substantial rights of the parties. NRCP 61.
[Headnotes 10-12]
Appellant's final assignment of error centers on respondent John Zillich's testimony
regarding the value of the condemned property. The general rule is that an owner, because of
his ownership, is presumed to have special knowledge of the property and may testify as to its
value. United States v. Sowards, 370 F.2d 87, 92 (10th Cir. 1966). Nevada follows this
general rule. See e.g., Dep't of Highways v. Wells Cargo, Inc., 82 Nev. 82, 411 P.2d 120
(1966); Dep't of Highways v. Campbell, 80 Nev. 23, 388 P.2d 733 (1964); State ex rel. Dept.
of Highways v. Olsen, 76 Nev. 176, 351 P.2d 186 (1960). The question of the landowner's
competency to form an opinion of the land's value may be exposed on cross examination and
affects the weight to be given to the testimony, not its admissibility. City of Wichita v. May's
Co., Inc., 510 P.2d 184, 187 (Kan. 1973). Therefore, the trial court ruled properly in
admitting this testimony. Appellant's further argument regarding this testimony, i.e., that it
was given in an improper form, was not raised until its reply brief and need not be
considered. See Nevada Industrial Comm'n v. Bibb, 78 Nev. 377, 383, 374 P.2d 531, 535
(1962).
No prejudicial error appearing, the judgment and order denying the motion for a direct
verdict, new trial or a judgment notwithstanding the verdict are affirmed.
____________
100 Nev. 372, 372 (1984) Rust v. Clark County School District
DAYLE K. RUST, Appellant, v. CLARK COUNTY SCHOOL DISTRICT, a Governmental
Agency of Clark County; BOARD OF TRUSTEES OF CLARK COUNTY SCHOOL
DISTRICT; VIRGINIA BROOKS BREWSTER; HELEN C. CANNON; DONALD R. FAIS;
ROBERT FORBUSS; JAMES H. LYMAN; THOMAS SEMMENS and JANET SOBEL, in
Their Capacity as School Board Trustees; CLAUDE G. PERKINS, in His Capacity as
Superintendent of the Clark County Schools, Respondents.
No. 14541
June 27, 1984 683 P.2d 23
Appeal from judgment of district court affirming administrative termination of
employment; Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
School principal was dismissed by school district board of trustees on ground of
insubordination for taking long planned ten school day leave of absence despite denial of
request for leave. The district court affirmed dismissal by board of trustees, and school
principal appealed. The Supreme Court, Mowbray, J. held that dismissal by board of trustees
was arbitrary and capricious.
Jones, Jones, Bell, Close and Brown, and Will Kemp, Las Vegas, for Appellant.
Thomas J. Moore, Las Vegas, for Respondents.
Schools.
Dismissal, on ground of insubordination, of school principal, who took long planned ten school day leave
of absence in spite of the denial of his request for such leave on basis of recently enacted district policy
severely curtailing administrators' ability to use previously accumulated leave days, was arbitrary and
capricious. NRS 391.312.
OPINION
Appellant Dayle K. Rust (Rust) was an employee of the Clark County School District for
over twenty years. For seventeen of those years he served as assistant principal, or principal,
of elementary schools in the district, the last three years as principal of Vegas Verde
Elementary School. In the fall of 1979, Rust took a long-planned leave of absence of ten
school days in order to meet his son, who was completing a religious mission in Europe.
Rust took a long-planned leave of absence of ten school days in order to meet his son, who
was completing a religious mission in Europe. Because his request for such leave was denied,
on the basis of a recently-enacted district policy severely curtailing school administrators'
ability to use previously accumulated leave days, Rust was suspended from his duties on his
return, and ultimately dismissed from the employ of the Clark County School District, on the
ground of insubordination. Because we find that under the particular circumstances
presented by this case the action of the respondent Clark County School District Board of
Trustees in dismissing appellant after twenty years of service was arbitrary and capricious, we
reverse the judgment of the district court affirming the decision of the board.
In the fall of 1977, appellant's son left on a two year mission abroad, under the auspices of
a church of which Rust is also a member. At that time Rust made a commitment to his son
that at the conclusion of his mission, Rust would join him in Europe and accompany him
home. Rust's plans were predicated upon a long-standing district policy which allowed liberal
use of earned leave days.
Rust proceeded to make preparations to effectuate his plans, including arranging with his
church to meet its requirements by becoming a missionary himself for the period of the trip,
and purchasing the required tickets. Rust made no secret of his plans, and indeed discussed
them with the Associate Superintendent for Personnel some eight months before his
departure. He spent evenings and weekends making the necessary preparations so that the
school would run smoothly during his absence.
Unfortunately for Rust, sixteen days before his planned departure on October 3, 1979, the
district, following inconclusive collective bargaining on the issue with district administrators,
unilaterally changed its leave policy by limiting administrators' use of earned leave to no
more than five school days per year, or two days in succession, except in cases of
emergency. Rust then had accumulated over forty days of leave of which he sought to use
ten days in succession. Rust's request for leave was denied by his supervising administrator
on September 25, as was his request for reconsideration. Rust indicated that he nevertheless
intended to fulfill his commitment by completing the trip as planned, and preparations were
made for administration of the school in his absence. On October 1, the district presented
Rust with a formal admonishment repeating the denial of the request for leave and specifying
that defiance of this directive may result in your immediate demotion, dismissal or
nonrenewal of contract, on the ground of insubordination, or failure to comply with
reasonable board requirements, citing NRS 391.312{1){d) and {k).1
insubordination, or failure to comply with reasonable board requirements, citing NRS
391.312(1)(d) and (k).
1

On October 3, Rust left for Europe as planned. When he returned to school on October 18,
he was presented with a Notice of Suspension, announcing the district's decision to suspend
Rust immediately from his position as principal of Vegas Verdes Elementary School and as
an administrator with the Clark County School District, in the best interests of the children
of the district. The Notice further announced the intent of the district to initiate dismissal
proceedings.
Such proceedings were subsequently undertaken, and the respondent Board of Trustees on
July 10, 1980, upon recommendation of a hearing officer, issued its decision dismissing Rust
from its employ. The district court affirmed.
On appeal, Rust raises a number of procedural statutory and constitutional issues, many of
which we find without merit. However, we do agree that under the circumstances presented,
appellant's conduct did not warrant the drastic remedy of dismissal.
This Court has long taken seriously its duty to review the evidence before the findings of
administrative boards on cases involving dismissal of public employees to determine whether
legal cause for removal has been shown. See, e.g., Richardson v. Bd. Regents, 70 Nev. 347,
351-352, 269 P.2d 265, 268 (1954), citing Ex rel. Whalen v. Welliver, 60 Nev. 154, 104 P.2d
188 (1940); Paulson v. Civil Service Commission, 90 Nev. 41, 518 P.2d 148 (1974); Lapinski
v. City of Reno, 95 Nev. 898, 603 P.2d 1088 (1979). As we have consistently reiterated, legal
cause is not any cause which the officer authorized to make such removal may deem
sufficient. Rather, such cause must be one which specifically relates to and affects the
administration of the office, and must be restricted to something of a substantial nature
directly affecting the rights and interests of the public. The cause must be one touching the
qualifications of the officer or his performance of his duties, showing that he is not a fit or
proper person to hold the office. Ex rel. Whalen v. Welliver, 60 Nev. at 15S, 104 P.2d at
190-191, quoting Sausbier v. Wheeler, 299 N.Y.S. 466, 472 {App.Div. 1937).
____________________

1
NRS 391.312 provides in pertinent part:
(1) [A]n administrator may be demoted, suspended, dismissed or not reemployed for the following
reasons:
. . . .
(d) Insubordination;
. . . .
(k) Failure to comply with such reasonable requirements as a board may prescribe;
. . . .
v. Welliver, 60 Nev. at 158, 104 P.2d at 190-191, quoting Sausbier v. Wheeler, 299 N.Y.S.
466, 472 (App.Div. 1937).
In this case, the district has predicated its action upon a charge of insubordination. We
have defined this term as a willful disregard of express or implied directions, or such a
defiant attitude as to be equivalent thereto. Rebellious,' mutinous,' and disobedient' are
often quoted as definitions or synonyms of insubordinate.' Richardson v. Bd. Regents,
supra, 70 Nev. at 367, 269 P.2d at 276. We suggested that the authority of the superior to
promulgate the order, or the reasonableness of the order in question might also be
considered in an appropriate case. Id.
Insubordination has elsewhere been defined as constant or continuing intentional
refusal to obey a direct or implied order, reasonable in nature, and given by and with proper
authority.' Board of Trustees v. Holso, 584 P.2d 1009, 1015 (Wyo. 1978), quoting Ray v.
Minneapolis Board of Education, Special School District No. 1, 202 N.W.2d 375, 378 (Minn.
1972). The Wyoming court also noted that [t]he better-reasoned decisions place emphasis on
the presence of a persistent course of willful defiance. 584 P.2d at 1016. Thus, a number of
courts have refused to find cause supporting dismissal in a single instance of being absent
without prior permission of school authorities. See, e.g., Midway School Dist. of Kern
County v. Griffeath, 172 P.2d 857 (Cal 1946); Oakdale Union School District v. Seamen, 104
Cal.Rptr. 64 (Cal.App. 1972); Tucker v. Bd. of Ed. of Town of Norfolk, 418 A.2d 933 (Conn.
1979); Beverlin v. Board of Ed. of Lewis County, 216 S.E.2d 554 (W.Va. 1975).
In Beverlin the court found that dismissal for an unauthorized absence, on the ground of
insubordination, was arbitrary and capricious. 216 S.E.2d at 559. The court stressed that the
pupils did not suffer in his absence, and that the reason for his absence was laudable. Here,
the district does not claim that the students or the school were detrimentally affected by Rust's
absence, for which he apparently made dutiful advance preparation. Further, the reason for his
absence, while personal, is deserving at least of consideration and respect. As the court said
of Beverlin, his unexcused absence best might be described as an error of judgment,
resulting in no harm to his employers. Id. at 558.
It appearing that the penalty is excessive, we reverse the judgment of the district court and
remand the case with instruction to return the matter to the school district Board of Trustees
for imposition of a penalty consistent with the views expressed in this opinion.
Trustees for imposition of a penalty consistent with the views expressed in this opinion.
Manoukian, C. J., and Springer, and Gunderson, JJ., and Griffin, D. J.
2
, concur.
____________________

2
The Governor designated the Honorable Michael R. Griffin, Judge of the First Judicial District Court, to sit
in the place of The Honorable Thomas L. Steffen, Justice, who voluntarily recused himself. Nev. Const., art. 6,
section 4.
____________
100 Nev. 376, 376 (1984) SIIS v. Buckley
v. CATHERINE BUCKLEY, Respondent.
CATHERINE BUCKLEY, Cross-Appellant, v. MacARTHUR NOYES, M.D.; T. W.
CHRISTIANSEN, M.D.; I. VIGIL and HUMANA, INC., dba SUNRISE HOSPITAL,
Cross-Respondents.
No. 14612
June 29, 1984 682 P.2d 1387
Appeal from judgment ordering compensation by State Industrial Insurance System and
cross-appeal from judgment dismissing defendants in consolidated tort action. Eighth Judicial
District Court, Clark County; Carl J. Christensen, Judge.
Petition by injured emergency room technician for judicial review of an adverse decision
of the State Industrial Insurance System was consolidated with a tort suit against the System
and the attendant doctors and assistants and the hospital. The district court entered judgment
determining that injury was compensable, but dismissed tort claim, and the System appealed
and the technician cross-appealed. The Supreme Court held that statutory provision to effect
that coronary thrombosis, coronary occlusion, or any other ailment or disorder of the heart,
and any death or disability ensuing therefrom shall not be deemed an injury by accident in the
course of employment is not applicable when a claimant shows he has suffered an injury by
accident arising out of or in the course of employment regardless of whether the injury
suffered is an injury to the heart or to some other portion of the body.
Affirmed.
[Rehearing denied August 31, 1984] Darla R.
Darla R. Anderson, Las Vegas, for Appellant.
John P. Foley, and Elizabeth Foley, Las Vegas, for Respondent and Cross-Appellant.
Galatz, Earl & Catalano, and Daniel F. Polsenberg, Las Vegas, for Cross-Respondents
Noyes and Christiansen.
Lyles & Austin, and Michael B. McDonnell, Las Vegas, for Cross-Respondents Vigil and
Humana, Inc.
Emergency room technician, who sustained a mitral valve prolapse as a result of a shock she received
when a defibrillator was activated without warning while she was drawing blood from a patient, suffered a
compensable injury by accident arising out of or in course of employment where exclusion extended to
coronary thrombosis, coronary occlusion, or other ailment or disorder of the heart was not explicable.
NRS 616.110, subds. 1, 2, 616.370, subd. 1.
Statutory provision to effect that coronary thrombosis, coronary occlusion, or any other ailment or
disorder of the heart, and any death or disability ensuing therefrom shall not be deemed an injury by
accident in the course of employment is not applicable when a claimant shows he has suffered an injury by
accident arising out of or in the course of employment regardless of whether the injury suffered is an injury
to the heart or to some other portion of the body. NRS 616.110, subd. 2.
A reasonable, liberal and practical construction of the compensation statute is preferable to a narrow one
since the statutes are enacted for the purpose of protecting the interest of the injured worker and his
dependents.
Assignments of error which were contained in conclusory arguments which lacked substantive citation to
relevant authority and failed to address pivotal issues in case were not reviewable.
OPINION
Per Curiam:
On December 24, 1979, Catherine Buckley was working as a blood gas technician in the
emergency room of Sunrise Hospital in Las Vegas. As she was drawing blood from a patient,
a defibrillator
1
was activated without warning, inflicting a shock on Buckley which knocked
her away from the patient. Buckley was hospitalized twice in October, 19S0, complaining of
symptoms such as shortness of breath, dizziness, nausea and palpitations, which she
described as having begun some six weeks after the incident.
____________________

1
A defibrillator is a machine which is used to administer a strong electric shock to the heart, usually in cases
of cardiac arrest. See Stedman's Medical Dictionary, 527, 368 (5th ed. 1982).
was hospitalized twice in October, 1980, complaining of symptoms such as shortness of
breath, dizziness, nausea and palpitations, which she described as having begun some six
weeks after the incident. She was diagnosed as having a mitral valve prolapse.
2

Buckley first sought compensation from the State Industrial Insurance System (SIIS),
3
contending that she had suffered a compensable injury as a result of a work-related accident.
On the basis of the unanimous report of a medical panel, the SIIS denied her claim, finding
that there was no cause and effect relationship between the incident and the mitral valve
prolapse. On October 6, 1981, a hearing officer denied her claim, on the grounds that there
was insufficient evidence that the mitral valve prolapse was caused by the incident on
December 24, 1979, and also that in any case, the Nevada Industrial Insurance Act (NIIA)
precluded acceptance of any claim based upon coronary thrombosis, coronary occlusion, or
any other ailment or disorder of the heart. NRS 616.110(2).
4
The hearing officer concluded
that therefore it was unnecessary to determine whether the shock may have caused a
pre-existing asymptomatic condition to become symptomatic.
On November 12, 1981, Buckley appealed this decision. The Administrative Appeals
Officer dismissed the appeal on the ground that Buckley had failed to meet the statutory
deadline of thirty days and that he was therefore without jurisdiction to consider the appeal.
Buckley thereafter filed a petition for judicial review in District Court.
Meanwhile, the day before the running of the applicable statute of limitations, Buckley had
filed a civil tort suit for personal injury, naming the attendant doctors and assistants, the
hospital, and the SIIS, as defendants, and alleging that as a direct and proximate result of the
shock she suffered injuries. The defendants moved for dismissal of the tort action against
them on the grounds that as co-employees of the plaintiff, they were immunized from tort
liability under the NIIA.
____________________

2
A mitral valve prolapse is an inverted condition of the valve between the left ventricle and left atrium of the
heart. See Stedman's Medical Dictionary, supra, at 1146, 1530. See generally P. Cantor, ed., 8 Traumatic
Medicine and Surgery for the Attorney, 624-38 Heart DiseasesMitral Valve Disease (1962).

3
The agency was then known as the Nevada Industrial Commission, see 1981 Nev. Stats. ch. 642, p. 1449.

4
For the purposes of this chapter, coronary thrombosis, coronary occlusion, or any other ailment or
disorder of the heart, and any death or disability ensuing therefrom, shall not be deemed to be an injury
by accident sustained arising out of and in the course of the employment.
on the grounds that as co-employees of the plaintiff, they were immunized from tort liability
under the NIIA. See NRS 616.560.
5
The plaintiff responded that her heart condition was not
compensable under the NIIA, and that there consequently could be no immunity for the
defendants under the Act. She also moved for consolidation of the tort action with the petition
for judicial review. The doctors in reply responded that the statutory exclusion of coronary
thrombosis, coronary occlusion or any other ailment or disorder of the heart was not
intended to apply to a condition such as plaintiff's. The SIIS simply contended that it was not
a proper party to the common law action and opposed the motion for consolidation. It did not
argue the merits of the statutory issue.
The district court ordered consolidation and then ruled that plaintiff's injury, the mitral
valve prolapse, was an industrial injury, not excluded from NIIA coverage by NRS
616.110(2), precluding a common law action against the medical defendants. The court
further ruled that plaintiff had a compensable claim under the NIIA which he ordered the
SIIS to accept and pay.
From the portion of the judgment ordering it to accept and pay Buckley's claim, the SIIS
has appealed. Buckley filed a cross-appeal from the judgment insofar as it dismissed the
medical defendants from her civil tort action.
The major issue presented on this appeal is focused on the construction of NRS
616.110(2), as applied to a case in which an injury to the heart occurs on the job and is caused
by a sudden, unforeseen, and violent application of force, such as an electric shock.
6
The
NIIA provides an exclusive remedy in workmen's compensation for any employee "on
account of an injury by accident sustained arising out of and in the course of the
employment."

____________________

5
NRS 616.560(1) specifies certain instances in which an employee may bring a civil action to recover
damages [w]hen an employee coming under the provisions of this chapter receives an injury for which
compensation is payable under this chapter and which injury was caused under circumstances creating a legal
liability in some person, other than the employer or a person in the same employ.
The rights and remedies provided in this chapter for an employee on account of an injury by accident
sustained arising out of and in the course of the employment shall be exclusive, except as otherwise
provided in this chapter, of all other rights and remedies of the employee, his personal or legal
representatives, dependents or next of kin, at common law or otherwise, on account of such injury.

6
All of those parties arguing the merits of this issue have assumed, for purposes of the summary judgment
motion, that the plaintiff's mitral valve prolapse was caused by the electric shock she received during the
defribrillation procedure. This Court will therefore similarly so assume for purposes of this argument.
The NIIA provides an exclusive remedy in workmen's compensation for any employee on
account of an injury by accident sustained arising out of and in the course of the
employment. NRS 616.370(1). An accident is defined in NRS 616.020 as an unexpected
or unforeseen event happening suddenly and violently, with or without human fault, and
producing at the time objective symptoms of an injury. An injury is defined in the statute,
NRS 616.110(1), as a sudden and tangible happening of a traumatic nature, producing an
immediate or prompt result, including injuries to artificial members.
It is clear that on the basis of the facts as alleged, plaintiff did indeed suffer an injury by
accident as those terms have been generally defined in the statute. See, e.g., American Int'l
Vacations v. MacBride, 99 Nev. 324, 661 P.2d 1301 (1983); Kennecott Copper Corp. v.
Reyes, 75 Nev. 212, 337 P.2d 624 (1959). Cf. Periss v. Nevada Industrial Commission, 55
Nev. 40, 24 P.2d 318 (1933); Hartford Acc. & Indem. Co. v. Industrial Com., 299 P. 1026
(Ariz. 1931), as cited in Pierce v. Phelps Dodge Corporation, 26 P.2d 1017 (Ariz. 1933).
[Headnote 1]
The question is whether, nevertheless, a claimant in such circumstances is precluded from
recovering under the workmen's compensation statute because of the provision of NRS
616.110(2) that coronary thrombosis, coronary occlusion, or any other ailment or disorder of
the heart, and any death or disability ensuing therefrom, shall not be deemed to be an injury
by accident in the course of employment.
[Headnote 2]
In Spencer v. Harrah's, Inc., 98 Nev. 99, 641 P.2d 491 (1982), we held that where it was
claimed that hot and windy weather aggravated a pre-existing heart condition, but where the
long standing heart condition was the actual cause of death, the statutory provision would
operate to exclude coverage. As we explained:
[W]here, as here, death does not result substantially from employment, but instead from
other infirmities in combination with a pre-existing heart disorder, NRS 616.110(2)
precludes recovery. Mr. Spencer's debilitated state was not occasioned by his
employment. Rather, the debilitated state which developed on the day of Mr. Spencer's
death was of a type likely to occur at any time, anywhere.
Id. at 102, 641 P.2d at 483. In this case, on the other hand, under the facts as alleged, the
employee's very disorder was the result of an accident which arose out of and occurred in
the course of employment.
result of an accident which arose out of and occurred in the course of employment. Under
such circumstances, we agree with the courts of those jurisdictions which held similar
statutory provisions, denying workmen's compensation coverage for heart conditions or
disease, to be inapplicable to a situation in which a work-related accident has caused the heart
condition itself.
In Makalous v. Kansas State Highway Commission, 565 P.2d 254 (Kan. 1977), for
example, compensation was upheld when a myocardial infarction (heart attack) was the
direct result of a hemorrhage which was precipitated and produced by the work environment.
Given the evidence that an extreme external force was a substantial causative factor in
producing the injury and resulting disability, the court simply found inapplicable the so-called
heart amendment, which would have required a showing of unusual exertion in cases of
coronary or coronary artery disease or cerebrovascular injury.
In a case similar to the case at bar, the Supreme Court of Colorado, in Prestige, Homes,
Inc. v. Legouffe, 658 P.2d 850 (Colo. 1983), refused to apply the test set forth in the statutory
provision relevant to heart attacks when the evidence was that the claimant's heart attack was
the result of an electric shock. The court held that where the claimant alleges that his heart
attack was causally related to an accident as defined by the statute, the claimant is not
required to show that the injury also met the test set forth in the section specifically referring
to cases involving injury or death from heart attack.
[Headnote 3]
We have long held that we should construe the [NIIA] broadly and liberally, to protect
the interest of the injured worker and his dependents. A reasonable, liberal and practical
construction is preferable to a narrow one, since these acts are enacted for the purpose of
giving compensation, not for denial thereof. Industrial Commission v. Peck, 69 Nev. 1, 11,
239 P.2d 244, 248 (1952).
We therefore agree with the approach taken by these courts, and hold that NRS 616.110(2)
is inapplicable when a claimant shows that he has suffered an injury by accident arising out
of or in the course of employment, regardless of whether the injury suffered is an injury to the
heart or to some other portion of the body. We therefore affirm the judgment of the district
court that under the facts, as alleged, plaintiff's exclusive remedy was with the NIIA, and the
common law action against the medical defendants must be dismissed.
[Headnote 4]
As to the SIIS, its counsel has not seen fit to argue the merits of the finding against it.
Rather, this Court has been supplied with two pages of conclusory arguments, lacking
substantive citation to relevant authority, and failing to address the pivotal issues in the case.
Under these circumstances, we decline to consider its assignments of error.
7
Smith v. Timm,
96 Nev. 197, 606 P.2d 530 (1980); Gilbert v. Warren, 95 Nev. 296, 594 P.2d 696 (1979);
Holland Livestock v. B & C Enterprises, 92 Nev. 473, 553 P.2d 950 (1976).
The judgment of the district court is affirmed.
____________________

7
The briefs filed for the SIIS in this case were not filed by present counsel of record.
____________
100 Nev. 382, 382 (1984) County of Clark v. Alper
COUNTY OF CLARK, a Political Subdivision of the State of Nevada, Appellant
and Cross-Respondent, v. ARBY W. ALPER and RUTH ALPER,
Respondents and Cross-Appellants.
No. 13732
July 3, 1984 685 P.2d 943
Appeal and cross-appeal from a judgment upon jury verdict for damages in an inverse
condemnation proceeding brought by property owners against a county; Eighth Judicial
District Court, Clark County; Stephen L. Huffaker, Judge.
Landowners, whose property had been taken by eminent domain, brought inverse
condemnation action. The district court ruled that landowners were entitled to recover the
value of their property as determined at the time of trial, to prejudgment interest from date of
the taking, and to an award of attorney fees, and cross appeals were taken. The Supreme
Court held that: (1) court properly refused to allow certain ordinances to be considered by
jury in determining value of the property taken; (2) court erred in refusing to introduce an
ordinance imposing a ten-foot setback on a portion of the property taken, for purposes of
determining value of the property, however, such error was harmless; (3) court erred in
allowing expert testimony as to value of the property based upon planning guides adopted as
a preliminary step to the actual taking, however, such error was harmless; (4) landowners
were entitled to have the property valued as of date of trial; (5) landowners were entitled to an
award of prejudgment interest; (6) legal interest rate established by statute and in effect at
time of the judgment established the postjudgment interest rate; {7) landowners were
entitled to be reimbursed for property taxes paid after the land was taken; but {S)
landowners were not entitled to an award of attorney fees.
rate established by statute and in effect at time of the judgment established the postjudgment
interest rate; (7) landowners were entitled to be reimbursed for property taxes paid after the
land was taken; but (8) landowners were not entitled to an award of attorney fees.
Robert J. Miller, District Attorney, Melvin R. Whipple, Deputy District Attorney, Clark
County, for Appellant and Cross-Respondent.
George Rudiak and Brent A. Larsen, Las Vegas, for Respondents and Cross-Appellants.
1. Eminent Domain.
Term just compensation, as used in constitutional guarantee that private property may not be taken for
public use without just compensation, requires that the market value of the property be determined by
reference to the highest and best use for which the land is available and for which it is plainly adaptable.
Const. art. 1, 8.
2. Eminent Domain.
In determining what constitutes just compensation for the taking for public use of private property, every
factor which affects the value of the property and which would influence a prudent purchaser should be
considered, including an existing zoning ordinance applicable to the property. Const. art. 1, 8.
3. Eminent Domain.
Trial court properly refused to admit into evidence county ordinances which allegedly indicated that a
parcel of private property taken for public use fell entirely within the setback lines of an abutting road as
the abutting road was either a class C' highway or a section line road, for purposes of determining just
compensation to be awarded to owners of the property, where county failed to demonstrate that the
ordinances in fact applied to the property. Const. art. 1, 8.
4. Zoning and Planning.
Zoning ordinances carry with them a presumption of validity.
5. Eminent Domain.
Court erred in failing to admit into evidence a county ordinance imposing a ten-foot setback on certain
private property taken for public use, for purposes of determining a just compensation; however, the error
was harmless since any effect that the ten-foot setback requirement would have had on the value of the
parcel was nonexistent or de minimus in comparison to the zoning restrictions that jury was entitled to
consider. Const. art. 1, 8.
6. Eminent Domain.
Ordinarily, zoning restrictions permitting a viable economic use of private property taken for public use
may be considered for valuation purposes; however, the court must exclude any evidence of the
depreciation in value caused by the prospective taking once the government has announced its commitment
to the project. NRS 342.230, subd. 3.
7. Eminent Domain; Evidence.
Allowance of expert testimony that private property taken for public use had only a nominal value based
upon information contained in a county master plan and transportation study was error, where adoption of
the transportation study and master plan were preliminary steps to the actual taking; however, such error
was harmless in view of fact that jury rejected the testimony in its award of a substantial verdict in favor of
property owners.
8. Eminent Domain.
A county cannot delay formal eminent domain proceedings on expectation that the landowner will file an
action for inverse condemnation and thereby avoid its obligation to bring the matter to trial within two
years in order to avoid having the compensation valued as of date of service of summons or of trial. NRS
37.120, subd. 1(b).
9. Eminent Domain.
Inverse condemnation proceedings are the constitutional equivalent to eminent domain actions and are
governed by same rules and principles that are applied to formal condemnation proceedings.
10. Eminent Domain.
Statute allowing valuation of private property taken for public use to be made as of date of service of
summons or date of trial if the issue is not tried within two years after date of commencement of the action
was applicable to valuation of parcel of private property taken by county for public use, where county
failed to initiate formal eminent domain proceedings after the taking and landowners were forced to bring
inverse condemnation action. NRS 37.120, subd. 1(b).
11. Eminent Domain.
In order for the owner of private property which is taken for a public purpose to be compensated fully, he
or she must be put in as good position pecuniarily as he would have been if his property had not been
taken. Const. art 1, 8.
12. Eminent Domain.
Where the market value of private property taken for a public use is not paid contemporaneously with the
taking, the owner is entitled to interest for the delay in payment from the date of the taking until the date of
payment, in order that the landowner may be compensated for the delay in the monetary payment. Const.
art. 1, 8.
13. Eminent Domain.
When a governmental body does not bring a condemnation action to trial within statutory two-year
period, the government must bear the burden of the inflated value. NRS 37.120, subd. 1(b).
14. Eminent Domain.
An award of prejudgment interest in an eminent domain proceeding wherein the value of the property was
fixed as of date of trial is proper notwithstanding fact that the property's value at time of trial was more
than its value at time of the taking. Const. art. 1, 8.
15. Eminent Domain.
Owners of property which was taken for public use were entitled to an award of prejudgment interest,
even though the property was valued for compensation purposes as of date of the inverse condemnation
trial. NRS 37.120, subd. 1(b).
16. Eminent Domain.
Determination of proper rate of prejudgment interest to which owner of property taken by
eminent domain is entitled is a question of fact.
owner of property taken by eminent domain is entitled is a question of fact.
17. Eminent Domain.
District court was not bound by language of amendment to statute setting the legal interest rate, which
limited the increased rate to actions arising on or after the amendment's effective date, in determining rate
of prejudgment interest awarded to owners of property taken by eminent domain; the statutory interest rate
established a prima facie base for determining a fair rate but was not controlling if some other rate was
required to meet the constitutional requirement of just compensation. NRS 37.175.
18. Eminent Domain.
Statute establishing legal interest rate and in effect at time of judgment awarding landowners'
compensation for the taking of their property by eminent domain was applicable to award of post judgment
interest, since the constitutional requirement of just compensation had been satisfied once the taking was
reduced to a judgment. NRS 37.175.
19. Eminent Domain.
Landowners, whose property had been taken by eminent domain, were entitled to reimbursement for
property taxes actually paid by them on the land after it was taken by the county.
20. Eminent Domain.
An owner who is dispossessed from his or her land when it is taken for public use is no longer obligated
to pay the property taxes.
21. Costs.
Attorney fees generally may not be awarded unless provided for by statute or by contract.
22. Civil Rights; Eminent Domain.
Landowners, who sought just compensation for the taking of their property by eminent domain, were not
entitled to an award of attorney fees pursuant to the Relocation Assistance and Real Property Acquisition
Policies Act or pursuant to federal statute allowing an award of attorney fees in actions brought under the
Civil Rights Act, where landowners did not produce evidence that federal funds had been received by
county to acquire or widen that portion of road which was subject to the inverse condemnation proceeding,
and landowners neither initiated the action under the Civil Rights Act nor argued that county violated their
civil rights in taking their property for public use. NRS 342.120, subd. 1, 342.220 et seq., 342.320, subd.
2; 42 U.S.C.A. 1983, 1988; Const. art. 1, 8.
OPINION
Per Curiam:
This is an inverse condemnation case in which the Alpers seek compensation from Clark
County for a strip of land 50 by 1,000 feet in dimension.
The parties stipulate that the property, which currently lies within the roadbed of Flamingo
Road, was taken for public use on June 1, 1972.1 The district court ruled that the Alpers
were entitled to recover the value of the property, determined at the time of trial, and to
prejudgment interest from the date of taking.
on June 1, 1972.
1
The district court ruled that the Alpers were entitled to recover the value of
the property, determined at the time of trial, and to prejudgment interest from the date of
taking. A jury returned a verdict of $1,020,833.00 based on the value of the property at the
time of trial. The court awarded an additional $667,205.73 as pre-judgment interest computed
from the date of taking, $675,215.47 in attorney's fees, and $93,966.16 in costs, for a total
judgment of $2,457,220.36.
The county challenges the judgment below on numerous grounds. First, the county argues
that the court below erred in refusing to allow the jury to consider various zoning ordinances
in determining the highest and best use of the property taken. Second, the county contests the
trial court's ruling that the value of the property is to be determined as of the date of the trial.
Third, the county asserts that if the land was properly valued as of the date of the trial, the
award of prejudgment interest from the date of the taking was improper. Finally, the county
questions whether the trial court correctly assessed costs and attorney's fees against it.
The Alpers cross-appeal, claiming that the jury was allowed to consider constitutionally
prohibited evidence in valuing the property and that they are entitled to a tax refund for
property taxes paid by them after the taking.
Admissibility of Zoning Ordinance and Eisner-Stewart
General Plan in Determining Just Compensation
[Headnotes 1, 2]
Under article 1, section 8 of the Nevada Constitution, private property may not be taken
for public use without just compensation. The term just compensation requires that the
market value of the property should be determined by reference to the highest and best use for
which the land is available and for which it is plainly adaptable.
____________________

1
In 1959, the Alpers purchased 5.68 acres of land located at the southeast corner of Las Vegas Boulevard
South and Flamingo Road in Las Vegas. In November, 1966, the Alpers leased the entire 5.68 acres to the
Bonanza Hotel interests for a term ending in May, 1972, with an option to renew the lease for an additional 50
years. In March, 1967, as a condition for securing a building permit, Bonanza granted the county a 52-year
easement over the 50 by 1,000 foot strip of land adjacent to Flamingo Road. Pursuant to this easement, Flamingo
Road was widened in May, 1967. On May 31, 1972, the original term of the lease expired after Bonanza had
filed for bankruptcy. Per stipulation, the parties agreed that the Alpers owned the 50 by 1,000 foot strip of land
free and clear of any easement or lease. For further elaboration see Alper v. Clark County, 93 Nev. 569, 571
P.2d 810 (1977), cert. denied, 436 U.S. 905 (1978). For a related appeal, see also County of Clark v. Bonanza
No. 1, 96 Nev. 643, 615 P.2d 939 (1980).
and for which it is plainly adaptable. Skyland Water v. Tahoe Douglas Dist., 95 Nev. 289,
593 P.2d 1066 (1979); Sorenson v. State ex rel. Dep't of Hwys., 92 Nev. 445, 552 P.2d 487
(1976). Every factor which affects the value of the property and which would influence a
prudent purchaser should be considered. Tacchino v. State ex rel. Department of Highways,
89 Nev. 150, 152, 508 P.2d 1212 (1973). As a restriction on land use, an existing zoning
ordinance is generally regarded as a proper matter for the jury's consideration. United States
v. Eden Memorial Park Asso., 350 F.2d 933 (9th Cir. 1965).
[Headnote 3]
In the proceedings below, the county was prevented from introducing various county
ordinances which indicated that the Alper parcel fell entirely within the setback lines of
Flamingo Road. The county argues on appeal that Flamingo Road is either a class C'
highway or a section line road under the provisions of Clark County Code sections
29.064.040(A)(3) and 29.064.040(B) and that it was therefore error for the district court not
to have allowed the jury to consider zoning restrictions that are applicable to the Alper parcel
as well as all similar parcels abutting Flamingo Road.
2

In reviewing the record, we conclude that the district court properly refused to allow these
ordinances to be considered by the jury. In order for the setback provisions of Clark County
Code section 29.64.040(A) to apply, a street that the property abuts must be designated on
the master plan of streets and highways or by ordinance as a class A,' B' [or] C' highway.
. . . Clark County Code 29.64.040(A). No evidence was presented to the court below
indicating that Flamingo Road had ever been designated on a master plan or by county
ordinance as a class C' highway. Moreover, the county admits that Flamingo Road lies
approximately 200 feet south of the actual section line, and it is, therefore, not a section line
road under Clark County Code section 29.64.040(B). Since the county has failed to
demonstrate that the ordinances apply, they must be considered to be irrelevant to the
present controversy.
____________________

2
Clark County Code 29.64.040 provides in part:
29.64.040 Special provisions for setback lines. Notwithstanding any of the foregoing provisions of
this chapter, special provisions are adopted as follows:
(A) Those streets designated on the master plan of streets and highways or by ordinance as class A,
B and C highways as follows:
. . . .
(3) Class C highways, from the established centerline fifty feet on each side thereof;
(B) From the section lines of every section of land within Clark County, fifty feet from every section
line on each side thereof. . . .
they must be considered to be irrelevant to the present controversy. In respect to this matter,
the district court is affirmed.
The county additionally argues that even if Flamingo Road is not deemed to be a Section
Line Road or a Class C Highway, it falls within the setback requirements of Clark County
Code section 29.064.040(E). Under this ordinance, property that abuts any street is subject to
a 30-foot setback from the center line of the road.
3
The district court improperly held this
ordinance to be unconstitutionally vague on the basis that one would have to guess at where
the centerline should be located.
[Headnotes 4, 5]
Zoning ordinances carry with them a presumption of validity. McKenzie v. Shelly, 77 Nev.
237, 362 P.2d 268 (1961). In construing the present ordinance, it is clear that the centerline
must be determined before the street was widened, not after, as the county contends. A
contrary interpretation would lead to the unacceptable conclusion that the centerline would be
subject to repeated change upon each successive expansion of the roadway. Since the
centerline of Flamingo Road was located 20 feet north of the Alper parcel before the 1967
expansion, Clark County Code section 29.64.040(E) imposes a 10-foot setback on the
northern 1,000-foot border of the Alpers' land. It was therefore error for the district court not
to have let this ordinance be considered by the jury in valuing the property. Nevertheless,
although the county was not allowed to introduce Clark County Code section 29.064.040(E),
it was permitted to introduce the general zoning restrictions that apply to all lots in an H-1
zoning district as well as setback restrictions that apply to all lots bordering Las Vegas
Boulevard South. According to testimony by Greg Borgel, a principal planner employed by
Clark County, since the western 50-foot border of the Alper parcel is contiguous with Las
Vegas Boulevard South, no structure could be built within 72 feet from the boulevard's
curbline. Additionally, under Clark County Code section 29.30.070, no building or structure
may cover over 60 percent of the area of a lot located in a H-1 zoning district. Therefore, any
effect that the 10-foot setback requirement would have had on the value of the parcel is
non-existent or de minimus in comparison to the zoning restrictions that the jury was entitled
to consider. The failure to submit Clark County Code section 29.064.040(E) to the jury was
therefore harmless.
____________________

3
Clark County Code 29.64.040(E) imposes a general setback requirement on every other street, whether
designated as a street, highway, thoroughfare, parkway, throughway road, avenue, drive, lane, boulevard, place
or however otherwise designated, thirty feet from the centerline on each side thereof.
In their cross-appeal the Alpers claim that the district court erred in allowing the county to
produce expert testimony that the land in question had only a nominal value of $10,000 since
no legal economic uses could be made of the property. The expert's appraisal was based
largely on information contained in the Eisner-Stewart General [Master] Plan and the Las
Vegas Valley Transportation Study indicating that Flamingo Road, which traversed the
northern 1,000-foot long boundary of the Alper parcel, would eventually be widened to
alleviate the traffic congestion anticipated from the continual growth of the Las Vegas
community.
4
Under the county's planning guides, the Alpers' parcel fell entirely within the
future width lines of the Flamingo Road expansion project. From this information, the expert
concluded that, in all likelihood, neither the county planning commission nor the county
commissioners would authorize a building permit or a conditional use permit for the
development of the property and that, therefore, the property has only a nominal value.
The Alpers contest the county's nominal value theory on the ground that it is based on
constitutionally impermissible evidence. We agree.
[Headnote 6]
Ordinarily, zoning restrictions permitting a viable economic use of the property may be
considered for valuation purposes. See United States v. Eden Memorial Park Asso., 350 F.2d
933 (9th Cir. 1965). However, as noted in United States v. Virginia Electric & Power Co.,
365 U.S. 624, 636 (1961), it would be manifestly unjust to permit a public authority to
depreciate property values by a threat of a construction of a government project and then to
take advantage of this depression in price when the property is eventually condemned. See
Lower Nueces River Water Supply District v. Collins, 357 S.W.2d 449, 454 (Tex.Civ.App.
1962); Board of Comm'rs of State Inst. v. Tallahassee Bank & Trust Co., 108 So.2d 74
(Fla.App. 1958). The court must therefore exclude any evidence of the depreciation in value
caused by the prospective taking once the government has announced its commitment to the
project. State Dept. of Highways v. Copper Mountain, 624 P.2d 936 (Colo.App. 1981); Dade
County v. Still, 377 So.2d 689 (Fla. 1979); Klopping v. City of Whittier, 104 Cal.Rptr. 1 (Ct.
1972); United States v. Virginia Elec. & Power Co., above; see also Annot., 5 A.L.R.3d 901
{1966).5
____________________

4
The appraiser also considered the unique shape of the parcel, its physical location, the general restrictions
applicable to all properties located in an H-1 zoning district, as well as the street dedication requirements which
are typically imposed on a developer as a condition for obtaining a building permit or conditional use permit.
States v. Virginia Elec. & Power Co., above; see also Annot., 5 A.L.R.3d 901 (1966).
5

[Headnote 7]
In the case at hand, Clark County obtained a 52-year easement from Bonanza Hotel for the
purpose of putting the Eisner-Stewart General Plan and the Las Vegas Valley Transportation
Study into effect. The adoption of the general plan and the transportation study by the county
commissioners was equivalent to a public announcement that the Alper parcel would be
subject to the future widening of Flamingo Road. Based on these planning guides, it would be
apparent to the prudent purchaser that the county would not approve any use or development
which is inconsistent with the widening project or which would not alleviate the traffic
congestion. Since the adoption of the planning guides by the county commissioners was
merely a preliminary step to the actual taking, it was error for the trial court to have allowed
the county's expert to base his opinion in part on either the general plan or the transportation
study. Nevertheless, in reviewing the record before us, it is clear that the jury, in awarding
more than one million dollars for the value of the Alper parcel, rejected the appraiser's
testimony that the land was only worth $10,000. We, therefore, consider the introduction of
such testimony to be harmless.
In conclusion, when determining the market value of a parcel of land at its highest and best
use, due consideration should be given to those zoning ordinances that would be taken into
account by a prudent and willing buyer.
6
Nevertheless, the impact on the fair market value
that resulted from the taking itself should be excluded. The property is to be valued as if the
government project that resulted in the taking was neither contemplated nor carried out. In the
present appeal, although the county's appraisal was based on community planning guides
which ultimately were carried into effect when Flamingo Road was enlarged, the introduction
of such evidence was harmless. The trial court is therefore affirmed on these issues.
____________________

5
This rule has been codified in NRS 342.230(3) applicable to condemnation projects funded in whole or in
part by the federal government. This statute provides in part:
Any decrease or increase in the fair market value of real property to be acquired prior to the date of
valuation caused by the public improvement for which the property is acquired, or by the likelihood that
the property would be acquired for such improvement, . . . will be disregarded in determining the
compensation for the property.

6
Nothing in this opinion should be construed as limiting the holding of Sorenson v. State ex rel. Dep't of
Hwys., 92 Nev. 445, 552 P.2d 487 (1976), that the reasonable possibility of obtaining a zoning change may be
considered by the jury.
Time of Valuation
The county appeals from the lower court's ruling that the property should be valued as of
the time that the action was brought to trial rather than the time that the property was taken.
The district court based its holding on NRS 37.120(1)(b), which allows valuation to be made
as of the time of trial in formal eminent domain proceedings not brought to trial within a
two-year period.
7
In response, the county argues that NRS 37.120(1)(b) is applicable only to
eminent domain proceedings brought by the condemnor under the authority of NRS Chapter
37 and is not applicable to inverse condemnation suits.
We agree with the district court that the Alper parcel should properly be valued as of the
time of the trial. In formal condemnation proceedings, NRS 37.120(1)(b) places the burden
on the government to move the case to trial within two years after the action is commenced. If
it does not, and the delay is not primarily caused by the actions of the landowner, the
government must account for the increased value of the property.
[Headnotes 8-10]
In the case at hand, the county's easement for Flamingo Road was extinguished on May 31,
1972, when the Bonanza Hotel lease was terminated. The parties stipulated that the land was
subsequently taken for public use on June 1, 1972. Upon the wrongful taking, the county
should have initiated formal eminent domain proceedings under Chapter 37 of the Nevada
Revised Statutes. Because it did not, the Alpers filed the present action on July 31, 1972, for
inverse condemnation. We hold that the county cannot delay formal eminent domain
proceedings on the expectation that the landowner will file an action for inverse
condemnation and thereby avoid its obligation to bring the matter to trial within two years.
Inverse condemnation proceedings are the constitutional equivalent to eminent domain
actions and are governed by the same rules and principles that are applied to formal
condemnation proceedings. See Pierpont Inn, Inc. v. State, 74 Cal.Rptr. 521 (Ct. 1969) (time
of trial statute for eminent domain proceedings that are not brought to trial within one year
applied to an action for inverse condemnation). Thus the district court did not err in applying
NRS 37.120{1){b) in valuing the Alper parcel at the time of the trial.
____________________

7
NRS 37.120(1)(b) provides in pertinent part:
In any action commenced after April 4, 1965, in which the issue is not tried within two years after the
date of commencement of the action, unless the delay is caused primarily by the defendant, the right to
compensation and damages shall be deemed to have accrued at the date of service of summons or at the
date of trial, whichever results in the greater compensation and damages.
NRS 37.120(1)(b) in valuing the Alper parcel at the time of the trial.
Prejudgment Interest
The district court awarded prejudgment interest from the 1972 stipulated date of taking.
The county argues that an award of prejudgment interest is improper under the facts of this
case since the Alpers were given the benefit of the appreciated land value when the lower
court applied NRS 37.120(1)(b) in valuing the property at the time of the trial. The county
contends that to award prejudgment interest on a value determined at the time of the trial
would permit the Alpers to receive a double credit for the factor of inflation. We disagree.
[Headnotes 11, 12]
When private property is taken for public use, the owner must be paid just
compensation. As stated in Tacchino v. State ex rel. Department of Highways, The word
just' is used to intensify the meaning of the word compensation' and conveys the idea that
the equivalent to be rendered for the property taken shall be real, substantial, full and ample.
89 Nev. at 152 (citations omitted). In order for the landowner to be compensated fully, he or
she must be put in as good position pecuniarily as he would have been if his property had
not been taken. Seaboard Air Line Ry. v. United States, 261 U.S. 299 (1923) (citations
omitted). Where the market value of the property is not paid contemporaneously with the
taking, the owner is entitled to interest for the delay in payment from the date of the taking
until the date of the payment. Saunders v. State, 70 Nev. 480, 273 P.2d 970 (1954); see also
Miller v. United States, 620 F.2d 812, 837 (Ct. Cl. 1980); Annot., 36 A.L.R.2d 337, 46-71
(1954). The purpose of awarding interest is to compensate the landowner for the delay in the
monetary payment that occurred after the property had been taken. Refining Co. v. Director of
Public Works, 244 A.2d 853, 855 (R.I. 1968).
[Headnotes 13, 14]
The district court's award of prejudgment interest does not give the Alpers a double
recovery, as suggested by the county. The time of trial valuation is merely an alternative
method of valuing land in protracted condemnation proceedings. When a governmental body
does not bring a condemnation action to trial within the statutory two-year period, NRS
37.120(1)(b) prescribes that the government must bear the burden of the inflated value.
Although the landowner has been benefited by the time of trial valuation, he or she has still
been deprived of the use of the proceeds that should have been paid at the time of the taking.
of the taking. It is this loss that the award of interest compensates. Such an award is proper
notwithstanding the fact that the value of the property was fixed as of the date of trial and the
fact that the property's value at the time of trial was more than its value at the time of the
taking. See Mehl v. People ex rel. Dep't of Public Works, 119 Cal.Rptr. 625 (Ct. 1975);
Pierpont Inn, Inc. v. State, above; City of San Rafael v. Wood, 301 P.2d 421 (Cal.App. 1956);
Metropolitan Water District v. Adams, 107 P.2d 618 (Cal. 1940).
[Headnote 15]
We note that a contrary ruling would require the landowner to choose, at his peril, whether
to forego prejudgment interest when seeking a time of trial valuation or whether to waive the
two-year trial requirement contained in NRS 37.120(1)(b) and recover interest from the time
of the taking. As indicated by the award in the present case, prejudgment interest may be very
substantial in protracted condemnation proceedings and may in fact exceed the inflated value
of the land. The intent of the legislature by enacting NRS 37.120(1)(b) was not to create such
an election, but to force the government to bring a condemnation action to trial. We therefore
hold that the Alpers are entitled to an award of prejudgment interest. We nevertheless
conclude that the trial court erred in computing damages.
The district court allowed prejudgment interest from the date of taking at seven percent per
annum under NRS 37.175. The court below nevertheless refused to amend the judgment to
conform with the 1979 and 1981 amendments to NRS 37.175, increasing the interest rate
from seven percent to eight and twelve percent, respectively.
8
The Alpers contend that the
district court should have applied the eight percent interest rate prospectively from July 1,
1979, and a twelve percent rate prospectively as to both the prejudgment and postjudgment
interest from July 1, 1981. The amendments increasing the interest rates under NRS 37.175
were expressly made applicable only to actions that arose on or after July 1st of their
respective years.
9
In their cross-appeal the Alpers argue that the district court erroneously
concluded that it was prevented by law from applying the increased interest rates to actions
which did not arise on or after the effective date of the amendment. Although we agree that
the district court is not bound in its award of prejudgment interest by the statutory provisions
referred to above, we disagree with the Alper's contention that they are entitled to a twelve
percent postjudgment interest.
____________________

8
See 1981 Nev. Stats., ch. 739 2 at 1859; 1979 Nev. Stats., ch. 448, 3 at 830.

9
See 1981 Nev. Stats., ch. 739 6; 1979 Nev. Stats., ch. 448 6.
[Headnotes 16, 17]
As stated in the preceding section, where the compensation is not paid contemporaneously
with the taking, interest shall be included in the award as compensation for the delay in
payment. The determination of the proper rate of interest, as with any other type of
compensation under the fifth and fourteenth amendments, is a question of fact. See Miller v.
United States, 620 F.2d 812, 837 (Ct. Cl. 1980): [t]he determination of just compensation
under the fifth amendment is exclusively a judicial function. Miller, above at 837 (citations
omitted). The district court is therefore not bound by the language of the amendment to NRS
37.175 limiting the increased interest rates to actions which arise on or after the amendment's
effective date.
In the proceedings below, the Alpers did not present any evidence on the actual market
rate of interest during the years in question. Instead, the Alpers contend that the 1979 and
1981 amendments to NRS 37.175 implicitly recognize the rise of interest rates during the
nine years that preceded the trial. Therefore, the Alpers argue that the lower court's adherence
to the pre-1979, seven percent rate of interest, was facially inadequate.
The statutory interest rate establishes at least a prima facie basis for determining a fair rate
and is not controlling if some other rate is required to meet the constitutional requirement of
just compensation. United States v. 412.715 Acres of Land, 60 F.Supp. 576 (1946). As stated
in Miller v. United States, above, the rate of interest set by a statute can be applied to a claim
for just compensation if such rate is reasonable and judicially acceptable. 620 F.2d at 837
(citations omitted). Statutory interest rates as applied to prejudgment interest are generally
considered as a floor on the rate allowable for compensation under the fifth amendment.
United States v. Blankinship, 543 F.2d 1272, 1276 (9th Cir. 1976). When NRS 37.175 was
amended in 1979 and 1981, the legislature recognized the rise of interest rates that occurred
in the late 1970's and early 1980's. This recognition should be applied to the present
proceeding as prima facie proof of the increase in interest rates from 1972 until the judgment
on October 1, 1981. Therefore the award of prejudgment interest is remanded to the district
court to be recomputed in light of the 1979 and 1981 amendments to NRS 37.175.
[Headnote 18]
Although the district court was not restricted by the statutory rate of interest in
compensating for the prejudgment interest, a similar argument cannot be made as to
postjudgment interest.
interest. Disregard of the statutory rate for prejudgment interest was based on the principle
that compensation under the fifth and fourteenth amendments to the United States
Constitution is a question of fact that may not be restricted by statute. See Miller, above.
Nevertheless, once a taking has been properly reduced to a judgment, the constitutional
requirement of just compensation has been satisfied. Application of the statutory
restrictions will not interfere with the landowners right to seek full and complete
compensation. Since the statutory provisions apply, the district court correctly held that the
1979 and 1981 amendments to NRS 37.175 were not applicable. The district court's award of
postjudgment interest is therefore affirmed.
Reimbursement of Taxes
[Headnotes 19, 20]
The Alpers claim that they should be reimbursed by the county for all taxes paid by them
since the June 1, 1972 date of taking. We agree. An owner who is dispossessed from his or
her land when it is taken for public use is no longer obligated to pay taxes. See Chicago Park
Dist. v. Downey Coal Company, 115 N.E.2d 223 (Ill. 1953). The district court is therefore
reversed with instructions to reimburse the Alpers for property taxes actually paid after the
land was taken by the county.
Attorney's Fees
[Headnotes 21, 22]
The district court awarded attorney's fees under NRS 342.320(2) and 42 U.S.C. section
1988. Attorney's fees generally may not be awarded unless provided for by statute or by
contract. Kelly Broadcasting v. Sovereign Broadcast, 96 Nev. 188, 606 P.2d 1089 (1980). In
reviewing the record before us, we agree with the county's contention that neither statutory
provision applies.
Under NRS 342.320(2), attorney's fees may be awarded pursuant to the Relocation
Assistance and Real Property Acquisition Policies Act.
10
In order for the provisions of this
act to apply, the public body administering the programs or projects must be funded in
whole or in part by the federal government.
____________________

10
NRS 342.320 provides in pertinent part:
2. In any proceeding brought against a public body to recover compensation for the taking of
property, when such compensation is awarded to the plaintiff, the court, or the public body effecting a
settlement of any such proceeding, shall award or allow to such plaintiff, as a part of the judgment or
settlement, a sum which will reimburse such plaintiff for his reasonable costs, disbursements and
expense, including reasonable attorney, appraisal and engineering fees, actually incurred because of such
proceeding.
apply, the public body administering the programs or projects must be funded in whole or in
part by the federal government. NRS 342.120(1). Since the Alpers did not produce evidence
that federal funds had been received by the county to acquire or widen that portion of
Flamingo Road which is subject to the present inverse condemnation proceeding, NRS
342.320(2) does not apply.
The Alpers were additionally awarded attorney's fees under 42 U.S.C. section 1988.
11
Such fees are proper when an action is brought under the Civil Rights Act. In reviewing the
record before us we note that the Alpers neither initiated an action under 42 U.S.C. section
1983 nor argued that the county violated their civil rights. They merely sought compensation
for the taking of their land for public use. Since 42 U.S.C. section 1983 does not apply to the
present proceeding, the award of attorney's fees under 42 U.S.C. section 1988 was improper.
The award is therefore reversed.
As to the remaining allegations of error argued by the appellant and cross-appellants, we
find them to be without merit.
____________________

11
42 U.S.C. 1988 (1979) provides as follows:
In any action or proceedings to enforce a provision of Sections 1982, 1983, 1985 and 1986 of this
Title, Title IX of Public Law 92-318, or any civil action or proceeding, by and on behalf of the United
States of America, to enforce, or charging a violation of the provision of the United States Internal
Revenue Code, or Title VI of the Civil Rights Act of 1964, the Court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.
____________
100 Nev. 396, 396 (1984) Cunningham v. State
JERALD CLARENCE CUNNINGHAM, Appellant, v.
No. 14945
July 3, 1984 683 P.2d 500
Appeal from judgment of conviction of one count each of sexual assault, attempted sexual
assault and lewdness with a minor; First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
Defendant was convicted before the district court of one count each of sexual assault,
attempted sexual assault and lewdness with a minor, and he appealed. The Supreme Court
held that: (1) rationale or purpose behind statute permitting introduction of prior consistent
statements was clearly served by introduction of prior consistent statement to rebut later
charge of improper influencing, and fact that there was another motivation to fabricate,
which happened to arise before prior consistent statement, did not diminish rehabilitative
value of statement, and {2) since time was not an element of offenses charged, state was
not absolutely required to allege exact date of commission of the offenses.
by introduction of prior consistent statement to rebut later charge of improper influencing,
and fact that there was another motivation to fabricate, which happened to arise before prior
consistent statement, did not diminish rehabilitative value of statement, and (2) since time
was not an element of offenses charged, state was not absolutely required to allege exact date
of commission of the offenses.
Affirmed.
Thomas E. Perkins, State Public Defender, and Laura FitzSimmons, Deputy Public
Defender, Carson City, for Appellant.
Brian McKay, Attorney General; William A. Maddox, District Attorney, Carson City, for
Respondent.
1. Witnesses.
Rationale or purpose behind statute permitting admission of prior consistent statements was served by
introduction of prior consistent statement to rebut later charge of improper influencing, and fact there was
another motivation to fabricate, which happened to arise before prior consistent statement, did not diminish
rehabilitative value of statement, and thus district court did not err in admitting it. NRS 51.035, subd.
2(b).
2. Indictment and Information.
Unless time is an essential element of defense charged, there is no absolute requirement that state allege
the exact date in an information; state may instead give approximate date on which it believes crime
occurred.
3. Assault and Battery; Infants.
Since time is not an element of sexual assault, attempted sexual assault and lewdness with a minor, state
in its information charging such offenses was not absolutely required to allege exact date of their
commission.
Although state is not absolutely required to allege exact date of commission of offenses of which time is
not an element, state cannot fail to allege any date whatsoever in information or indictment, since such a
failure would clearly deprive defendant of adequate notice of charge against him; moreover, state should,
whenever possible, allege the exact date on which it believes a crime was committed, or as closely thereto
as possible.
OPINION
Per Curiam:
Following a jury trial, appellant was convicted of one count each of sexual assault,
attempted sexual assault and lewdness with a minor. On appeal from the judgment of
conviction, appellant contends that the district court committed error at his trial by
permitting the introduction of a prior consistent statement made by the victim shortly
before appellant's arrest.
trial by permitting the introduction of a prior consistent statement made by the victim shortly
before appellant's arrest. Appellant further contends that the information which had been filed
against him prior to his trial in this matter failed to give him adequate notice of the charges
against him. For the reasons set forth below, we disagree with both of these contentions, and
we therefore affirm appellant's judgment of conviction.
[Headnote 1]
At appellant's jury trial, the fourteen-year-old victim in this case testified that appellant,
her stepfather, had committed or attempted to commit several acts of sexual abuse and
lewdness on her person on numerous occasions since the time she was eight or nine years old.
Apparently out of fear of the stepfather, the victim did not tell anyone of these incidents until
she eventually told her mother in November of 1982.
On cross-examination of the victim, defense counsel sought to impeach her credibility
primarily by showing that the victim had been improperly influenced by her mother prior to
trial. In this regard, defense counsel elicited testimony from the victim to the effect that
shortly after the mother was informed of the sexual abuse incidents she told the victim that
she wanted appellant to go to prison as a result of his actions. Defense counsel also elicited
testimony from the victim to the effect that shortly after the victim informed her mother of the
offenses, the mother told the victim, for the first time ever, that appellant was not her real
father.
The defense also sought to impeach the victim's credibility by demonstrating that even
prior to the acts in question the victim had been somewhat jealous of the attention the
appellant had given to the victim's sister, and by eliciting testimony from the victim that she
did not feel good about the fact that appellant paid more attention to the sister than to
herself.
In an attempt to rehabilitate the victim's credibility against these attacks, the state called
the mother to the stand to testify concerning the contents of the victim's statement to her in
November of 1982, in which the victim advised the mother of appellant's conduct towards
her. Appellant objected to the admission of this statement on hearsay grounds, but the trial
court admitted the statement into evidence, apparently on the ground that it was admissible as
a prior consistent statement pursuant to NRS 51.035(2)(b).
1
Appellant now contends that the
statement was erroneously introduced into evidence since at the time the victim made the
statement she had a motive to fabricate in that she was jealous of appellant's attention to
her sister as discussed above.
____________________

1
NRS 51.035(2)(b) provides that a statement is not hearsay if:
2. The declarant testifies at the trial . . . and is subject to cross-examination concerning the statement,
and the statement is:
the statement was erroneously introduced into evidence since at the time the victim made the
statement she had a motive to fabricate in that she was jealous of appellant's attention to her
sister as discussed above.
This court has interpreted NRS 51.035(2)(b) as requiring prior consistent statements to
have been made at a time when there was no motive on the part of the declarant to fabricate.
See, e.g., Daly v. State, 99 Nev. 564, 665 P.2d 798 (1983); Gibbons v. State, 97 Nev. 299,
629 P.2d 1196 (1981). The above requirement was originally imposed by this court because a
prior consistent statement would have no rehabilitative value whatsoever if it was made at a
time when there already existed the very motive to fabricate for which the rehabilitation was
said to be needed. See Gibbons v. State, 97 Nev. at 301-02, 629 P.2d at 1197.
In this case, however, we are presented with a somewhat unique situation; here, the victim
had two possible motivations to fabricate, one which arose before she made the prior
consistent statement, and one which arose shortly thereafter. Defense counsel's attack on the
victim's credibility related primarily to the charge of improper influencing which allegedly
occurred after the prior consistent statement was made, and the state therefore was primarily
in need of rehabilitating the victim's testimony from the latter charge.
Since NRS 51.035(2)(b) was designed to rebut charges of fabrication or improper
influencing arising after a prior consistent statement was made, the rationale or purpose
behind the statute was clearly served by the introduction of the prior consistent statement in
this case to rebut the latter charge of improper influencing; the fact that there was another
motivation to fabricate, which happened to arise before the prior consistent statement had
been made, does not diminish the rehabilitative value of the statement. As such, the district
court did not err in admitting the statement.
Appellant next contends that the information which was filed against him in this matter
was deficient since it did not allege the exact date of the commission of the present offenses,
but instead simply alleged that one of the acts of which he was convicted occurred "on or
about the calendar year of 19S1," and that the other two acts occurred "on or about the
calendar years of 19S1 and 19S2, but prior to November 15, 19S2."
____________________
. . . .
(b) Consistent with his testimony and offered to rebut an express or implied charge against him of
recent fabrication or improper influence or motive.
To the extent that the district court may have admitted the evidence on other grounds, we deem this to be of
no importance to our holding in this case. See generally Hotel Rivera, Inc. v. Torres, 97 Nev. 399, 632 P.2d
1155 (1981) (where lower court's decision was otherwise correct, error will not be found despite the fact that
court gave wrong reasons in support of its decision).
but instead simply alleged that one of the acts of which he was convicted occurred on or
about the calendar year of 1981, and that the other two acts occurred on or about the
calendar years of 1981 and 1982, but prior to November 15, 1982. We disagree.
[Headnotes 2, 3]
Unless time is an essential element of the offense charged, there is no absolute requirement
that the state allege the exact date, and the state may instead give the approximate date on
which it believes the crime occurred. See Brown v. State, 81 Nev. 397, 404 P.2d 428 (1965);
Martinez v. State, 77 Nev. 184, 360 P.2d 836 (1961); see generally 41 Am. Jur. 2d
Indictments and Informations 115 (1968). Time is clearly not an element of the offenses
charged in the present case. See Martinez v. State, supra (time is not an element of the
offense of rape); see also People v. Wrigley, 443 P.2d 580 (Cal. 1968) (time is not an
essential element of the crime of committing lewd and lascivious acts upon a minor). As
such, the state was not absolutely required to allege the exact date of the commission of the
present offenses.
[Headnote 4]
This does not mean, however, that the state may fail to allege any date whatsoever in the
information or the indictment, since such a failure would clearly deprive the defendant of
adequate notice of the charge against him. See Grant v. Sheriff, 95 Nev. 211, 591 P.2d 1145
(1979); see generally Simpson v. District Court, 88 Nev. 654, 503 P.2d 1225 (1972).
Moreover, the state should, whenever possible, allege the exact date on which it believes a
crime was committed, or as closely thereto as possible.
Cases such as the present one, however, pose special problems for the state in attempting
to allege the exact date of the commission of the crime. Generally speaking, in a case
involving a child victim, the child is often unable to indicated to the state with any precision
the exact time of the commission of the offense. This problem is compounded in cases
involving sexual abuse, since there are usually no witnesses to the offense other than the
child. Additionally, in cases such as the present one which involve the sexual abuse of
children by members of their own family, the children are often understandably reluctant to
tell anyone of such occurrences, and often do not tell anyone until quite some time later. By
that time, as here, the child is often unable to remember more than the general period in
which the offense took place. Faced with such problems, it clearly cannot be said that the
state had an absolute obligation to draft an information with any more particularity than
was done here.
clearly cannot be said that the state had an absolute obligation to draft an information with
any more particularity than was done here. As noted by the Idaho Supreme Court:
It would be a very weak rule of law that would permit a man to ravish a fifteen year old
girl . . . and then say in effect: You cannot convict me of this crime, as you did not
guess the right date.
See State v. Rogers, 283 P. 44, 45 (Idaho 1929).
We have considered appellant's remaining contention and have found it to be without
merit. Accordingly, appellant's judgment of conviction is hereby affirmed.
____________
100 Nev. 401, 401 (1984) Sheriff v. Anderson
SHERIFF OF WASHOE COUNTY, STATE OF NEVADA, Appellant, v. THOMAS
FRANKLIN ANDERSON, Respondent.
No. 15769
July 3, 1984 683 P.2d 503
Appeal from order granting pretrial writ of habeas corpus, Second Judicial District Court,
State appealed from order of the district court granting a pretrial writ of habeas corpus.
The Supreme Court held that district court erred by granting habeas relief based on its review
of magistrate's ruling on prosecutor's motion for continuance, since court merely substituted
its judgment for that of magistrate on a discretionary matter.
Reversed.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Washoe
County, for Appellant.
David G. Parraguirre, Public Defender, Washoe County, for Respondent.
1. Habeas Corpus.
If jurisdictional procedural requirements are met, district court lacks jurisdiction to review a magistrate's
discretionary granting of a continuance at preliminary hearing stage of a prosecution.
100 Nev. 401, 402 (1984) Sheriff v. Anderson
2. Habeas Corpus.
District court erred by granting habeas relief based on its review of magistrate's ruling on prosecutor's
motion for continuance, since it merely substituted its judgment for that of magistrate on a discretionary
matter.
OPINION
Per Curiam:
This is an appeal from a district court order granting a pretrial writ of habeas corpus.
Respondent was charged with one count each of grand larceny and possession of stolen
property, and has been incarcerated because of these charges since January 10, 1984.
Respondent's preliminary examination was scheduled for March 26, 1984. A motion for
continuance was filed by the district attorney on March 6, 1984, supported by an affidavit
averring that a key witness would not be available until April 1, 1984. This motion was
granted by the justice's court on March 20, 1984. On that date, respondent filed a writ of
habeas corpus with the district court. The district court granted the writ of habeas corpus
based on its determination that the prosecution failed in its burden of proof to show good
cause for the continuance of the preliminary hearing. Because the district court exceeded its
jurisdiction, we reverse.
[Headnotes 1, 2]
If the jurisdictional procedural requirements set forth in Hill v. Sheriff, 85 Nev. 234, 452
P.2d 918 (1969) are met, the district court lacks jurisdiction to review a magistrate's
discretionary granting of a continuance at the preliminary hearing stage of a prosecution.
Sheriff v. Blackmore, 99 Nev. 827, 673 P.2d 137 (1983). In the present case, the affidavit
filed by respondent fully satisfied the Hill requirements. The district court merely substituted
its judgment for that of the magistrate on a discretionary matter. Accordingly, the district
court erred by granting habeas relief based on its review of the magistrate's ruling on the
prosecutor's motion for continuance.
1
The order granting habeas is therefore reversed.
____________________

1
The habeas petition was filed on March 20, 1984. The preliminary hearing was held, and respondent was
bound over for trial, on April 2, 1984. Thereafter, on May 15, 1984, the district court granted the writ. We
express no opinion at this time as to whether the grant of habeas relief was improper on the additional ground
that the preliminary hearing and subsequent bind-over cured any illegality in the detention in this case. See
Sheriff v. Myles, 99 Nev. 817, 672 P.2d 639 (1983).
____________
100 Nev. 403, 403 (1984) Law v. Nevada Gaming Commission
RICHARD LAW, Appellant, v. NEVADA GAMING COMMISSION and the STATE
GAMING CONTROL BOARD, Respondents.
No. 13693
July 3, 1984 683 P.2d 1337
Appeal from district court order denying a motion to alter or amend a judgment affirming
an administrative decision to terminate appellant's employment. Eighth Judicial District
Court, Clark County; Robert G. Legakes, Judge.
Employee of State Gaming Control Board appealed administrative decision to terminate
his employment. The district court denied employee's motion to alter or amend its judgment
affirming decision to terminate employment, and employee appealed. The Supreme Court
held that failure of employee's supervisor to comply with administrative regulations and lack
of substantial evidence supporting termination entitled employee to declaration that Board
wrongfully terminated his employment and that employee was entitled to recovery of official
comp time accrued as of date of his suspension.
B. Mahlon Brown, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; John A. Godfrey, Deputy Attorney General,
Las Vegas, for Respondents.
Supervisor's failure to initially provide employee of State Gaming Control Board with oral notification of
facts giving rise to disciplinary action pursuant to Commission's regulation warranted declaration that
employee was wrongfully terminated and entitled to recovery of official comp time he involuntarily utilized
after his suspension.
Review of administrative tribunals' for cause employment terminations requires substantial evidence
standard. NRS 463.080, subd. 6.
Evidence that employee of State Gaming Control Board had missed work because of illness and
hospitalization and had utilized unofficial comp time with Board's acquiescence did not support Board's
for cause termination of employee for abuse of sick leave policy, abuse of comp time policy and
excessive absenteeism; employee's absences legitimately attributed to existing policies of the Board could
not support termination for cause merely because they added up to excessive percentage of possible work
days in Board's opinion. NRS 463.080, subd. 6.
OPINION
Per Curiam:
This is an appeal from a district court order which denied appellant Richard Law's motion
to alter or amend the judgment affirming respondents' administrative decision to terminate
Law's employment. For the reasons set forth hereinafter, the judgment is reversed and the
case is remanded for the purpose of determining the compensation owed to Law for the
official comp time which he involuntarily utilized.
Less than one year after joining the audit division of the State Gaming Control Board
(Board), Richard Law was promoted to senior agent by Dennis Gomes, the chief of the audit
division. As Gomes' chief assistant during the investigation of a massive slot machine
skimming operation, Law accumulated remarkable amounts of overtime, which were
apparently credited to him as comp time.
The Board established a policy limiting the amount of overtime that officially could be
accumulated to 120 hours. After Law reached this limit, however, Gomes directed him to
work additional overtime hours. Gomes told Law that these excess overtime hours would
represent unofficial comp time for which Law could receive equal time off as comp leave.
Unofficial comp time, however, was not compensable, even upon termination, and could be
taken only as assignments allowed. Gomes' unofficial comp time program was undertaken
with the Board's apparent knowledge and acquiescence. The criminal report on the skimming
operation was completed after one year's work and delivered to the district attorney. Soon
thereafter, Gomes resigned.
George Tsacoyeanes succeeded Gomes and promoted Law to Deputy Audit Division
Chief. Tsacoyeanes also appointed Law to direct an expanded administrative investigation of
the skimming case. Tsacoyeanes continued the unofficial comp time program instituted by
Gomes. The Board was also aware of the Tsacoyeanes' policy. The administrative report was
completed after an additional eighteen month's work and was delivered to the Board. Then,
Law had accumulated 1450 hours (181 eight-hour work days) of unofficial comp time beyond
his 120 hours of official comp time.
At that time, Law was also physically and mentally exhausted. Law additionally suffered
medical problems which were later diagnosed as a probable case of multiple sclerosis. He
looked forward to utilizing some of his unofficial comp time in order to recuperate. During
the next five months Law was absent from work forty-seven days and present forty-four days.
days. Of his forty-seven absences, six were charged to official comp time, fourteen to annual
leave and twenty-seven to unofficial comp time.
In January of 1980, Tsacoyeanes resigned. Jeff Kahn was appointed to be the new Audit
Division Chief on January 7, 1980. From January 7 until January 28, 1980, Law was present
11 1/2 working days and absent 3 1/2 days, which absences were charged to unofficial comp
time. Due to his absenteeism, Kahn advised Law not to take any more unofficial comp time.
Law complied. From January 28 to February 15, 1980, Law was present 5 1/2 days and absent
9 1/2 days. One day was charged to official comp time and 8 1/2 days to sick leave. Of the
time charged to sick leave, 2 1/2 days were spent undergoing hospital tests.
On February 15, 1980, Kahn sent Law a letter suspending him with pay pending Law's
response to Kahn's allegations of excessive absenteeism. Law responded by writing a letter to
the Board's chairman. Kahn then sent Law a letter notifying him that the February 15 letter
served as a written reprimand pursuant to Nevada Gaming Commission Regulation 2.110(7),
that Law's absence that day prevented Kahn's making the required oral notification, that Law
would have a meeting with his immediate supervisor pursuant to Regulation 2.110(10) and
that he was being placed on official comp time vacation.
After the meeting between Kahn and Law, Kahn recommended to the Board's chairman
that Law be dismissed pursuant to Regulation 2.110(8) and sent a copy of the
recommendation to Law. Law appealed Kahn's recommendation to the Board's chairman,
who granted him a hearing.
The State Gaming Control Board held a hearing for Law. Afterwards, the Board
terminated Law, effective May 2, 1980, and ordered that he be paid all benefits, salary and
accrued leave up to that date.
Law appealed the Board's decision to the Nevada Gaming Commission, apparently seeking
to have the charges against him dropped so that he could voluntarily resign. Law did not
seek reinstatement, apparently because he intended to resign, effective August of 1980, in
order to attend graduate school. Law planned to utilize his accumulated official comp time
and annual leave in order to vacation from May until August of 1980. The Commission
affirmed the action of the Board.
Law then petitioned for judicial review. The district court found that the Commission's
decision was supported by substantial evidence and ordered that Law's petition be denied and
the Commission's decision be affirmed. Law then made a motion to alter or amend judgment
and to determine separate findings and conclusions, which the district court denied.
findings and conclusions, which the district court denied. Law now appeals that denial.
Law's first contention is that Kahn's failure to initially give oral notification to him of the
facts giving rise to disciplinary action violates Commission Regulation 2.110(7), which
provides as follows:
An employee subject to disciplinary action shall be advised by his immediate
supervisor of the facts giving rise to such disciplinary action. Such notification shall
first orally be made, and thereafter, if the matter has not then been rectified, a written
reprimand, specific in detail, shall be given to the employee and a copy placed in the
employee's personnel folder; if thereafter the matter is still unresolved, disciplinary
action may be taken against the employee as provided for in section 6 of this regulation
and the board's personnel manual.
It is undisputed that Kahn knew the requirements of the regulation. Kahn in his February 15
letter even alluded to his duty to provide oral notification and excused his failure to do so
because of Law's absence on the afternoon the letter was sent. Kahn also knew that
suspension with pay is a disciplinary action, because it involuntarily utilizes the employee's
official comp time.
[Headnote 1]
The stated purpose of Regulation 2.110(7) is to provide employees the opportunity to
rectify personnel matters before any disciplinary action is instituted by way of formal, written
reprimand. One can easily conceive of countless situations when an oral discussion between
an employee and his supervisor would clear up an imaginary problem or nip a potential
disciplinary matter in the bud. By violating Regulation 2.110(7) here, Kahn and the Board
deprived Law of the opportunity to rectify, resolve or explain any possible problems before
disciplinary action was taken. This violation, together with our finding that no substantial
evidence supports the reasons given for Law's termination, entitles Law to the remedy he
seeks, that is, our declaration that the Board wrongfully terminated Law's employment and
recovery of the official comp time he involuntarily utilized after his suspension.
[Headnote 2]
As mentioned above, we agree with Law's second contention that the record on appeal
does not contain substantial evidence to support the Board's decision to terminate Law's
employment. Substantial evidence, not any evidence, is the proper standard for judicial
review of the administrative decisions here.
proper standard for judicial review of the administrative decisions here. NRS 463.080(6), as
well as Regulations 2.110(1) and (8) adopted pursuant to that statute, provides that Board
employees cannot be disciplined or terminated except for cause. We have consistently held
that review of administrative tribunals' for cause terminations requires the substantial
evidence standard. McCracken v. Fancy, 98 Nev. 30, 31, 639 P.2d 552, 553 (1982); Lapinski
v. City of Reno, 95 Nev. 898, 901, 603 P.2d 1088, 1090 (1979); State ex rel. Sweikert v.
Briare, 94 Nev. 752, 755-58, 588 P.2d 542, 544-46 (1978); Paulson v. Civil Service
Commission of the City of Reno, 90 Nev. 41, 44, 518 P.2d 148, 150 (1974).
[Headnote 3]
Kahn listed three reasons for initiating disciplinary action against Law: (1) abuse of the
Board's sick leave policy; (2) abuse of the Board's comp time policy; and (3) excessive
absenteeism. The Board and Commission adopted the three grounds in support of Law's
termination. We conclude that the record on appeal does not support any of these reasons for
terminating Law's employment. The Board and Commission first concluded that Law's
absences from January 7 to February 15 constituted an abuse of sick leave policy. Regarding
those absences, Law testified that he missed 5 days with the flu, 2 1/2 days due to hospital
tests, 1/2 day resting at home after returning from the hospital and 1/2 day due to stomach
pains from a long-standing illness. Respondents admit that they did not in fact know whether
or not Law was actually sick during the days in question. Respondents, moreover, offered no
evidence to refute Law's testimony.
Second, the Board and Commission determined that Law's utilization of unofficial comp
time during that same six week period constituted an abuse of the Board's comp time policy.
It seems clear that the Board acquiesced in the institution of the unofficial comp time
program by Gomes and its continuation by Tsacoyeanes. After Kahn's appointment, Law
charged 3 1/2 days to unofficial comp time. Thereafter, Kahn notified Law that unofficial
comp time would no longer be allowed. Despite having over 1170 hours of unused unofficial
comp time, Law complied with Kahn's mandate and took no more unofficial comp time after
he received notice of the policy change.
Third, the Board and Commission concluded that Law's twelve absences attributed to sick
leave and unofficial comp time in addition to one day's absence charged to official comp time
over the thirty work days in question constituted excessive absenteeism. We do not agree that
a worker's absences, which are legitimately attributed to existing policies of the Board,
merely because they add up to some "excessive" percentage of possible work days in the
Board's opinion, can support that employee's termination for cause.
merely because they add up to some excessive percentage of possible work days in the
Board's opinion, can support that employee's termination for cause. If that were the case,
employees who had to undergo major surgery or who even went on vacation would be in
danger of losing their jobs. In conclusion, the record does not contain substantial evidence in
support of finding that Law was terminated for cause. We hold that the Board and
Commission wrongfully terminated Richard Law. The judgment of the district court,
therefore, is reversed.
With regard to damages, law at oral argument waived any right to compensation except for
official comp time, and respondents agreed to compensate Law for the official comp time he
had accrued as of February 15, 1980, the date he was suspended. Law's counsel also
represented that no action for wrongful termination would be pursued by Law in the event
this Court ruled in Law's favor on that issue. The case is therefore remanded for determining
the amount of official comp time credited to Law at the time of his suspension and entering
judgment for Law in conformity therewith.
1

____________________

1
Subsequent to oral argument appellant's counsel petitioned this Court by letter for costs and attorney's fees.
Respondent opposed appellant's informal request to the Court. Cause appearing, we decline to grant appellant's
request as to attorney's fees.
____________
100 Nev. 408, 408 (1984) Galatz v. District Court
NEIL G. GALATZ and ELAINE GALATZ, Petitioners, v. THE EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, Respondent.
No. 14015
July 3, 1984 683 P.2d 26
Original petition for writ of mandamus, Eighth Judicial District Court, Clark County; Paul
S. Goldman, Judge.
Petition was filed for writ of mandamus, challenging order of district court quashing
service of summons and complaint on nonprofit membership corporation. The Supreme Court
held that: (1) corporation had transacted business in Nevada within meaning of long-arm
statute; (2) cause of action arose from corporation's activities within Nevada; and (3)
corporation had substantial enough connection with Nevada to render exercise of in personam
jurisdiction over it reasonable and not offensive to judicial notions of fair play and
substantial justice.
not offensive to judicial notions of fair play and substantial justice.
Writ granted.
Galatz, Earl & Biggar, Las Vegas, for Petitioners.
Jones, Jones, Bell, Close & Brown, and Kenneth A. Woloson, Las Vegas, for Respondent.
1. Corporations.
Nonprofit corporation transacts business within meaning of long-arm statute when it performs any of
the functions for which it was organized within the state of Nevada. NRS 14.065.
2. Corporations.
Nonprofit membership corporation which conducted horse shows was transacting business in Nevada
within meaning of long-arm statute, although corporation had no office or place of business in Nevada and
had not sold any products or provided any services for profit, where corporation has 278 members in
Nevada, collected dues from those members and made collections from participating nonmembers, had
registered judges in Nevada, recognized horse shows held in Nevada, mailed publications to Nevada, and
selected and paid for veterinarians to test for drugs at Nevada horse shows. NRS 14.065.
3. Corporations.
Horse owners' cause of action against nonprofit membership corporation arose from and related to
corporation's activities in Nevada for purposes of applying long-arm statute, despite fact that incident upon
which action was based took place in California, where horse owners' were induced to attend California
horse show through material sent to them in Nevada by corporation, they attended show in reliance upon
corporation's assurances that show was recognized by corporation and would be governed by corporation
rules, and sought recovery for corporation's alleged breach of its Constitution and rules by failing to
provide owners with means of redress authorized by corporation's rules after owners' horse was disqualified
from show. NRS 14.065.
4. Corporations.
Nonprofit membership corporation's actions of encouraging, promoting and soliciting members in
Nevada, coupled with such activities as collecting dues, registering judges within state and mailing
publications to state, were such that corporation should have reasonably anticipated that it might be subject
to litigation in Nevada; thus, exercise of in personam jurisdiction over corporation pursuant to state
long-arm statute was reasonable and not offensive to traditional notions of fair play and substantial justice.
NRS 14.065.
OPINION
Per Curiam:
This original petition for a writ of mandamus challenges an order of the district court
quashing service of a summons and complaint on the American Horse Shows Association
{hereinafter "AHSA"), the real party in interest.
complaint on the American Horse Shows Association (hereinafter AHSA), the real party in
interest.
Petitioners are Nevada residents and are members of AHSA, a non-profit membership
corporation with offices in New York. AHSA holds itself out as a worldwide organization for
the benefit of horse enthusiasts. Its membership includes individual horsemen and
horsewomen, and recognized horse shows that are conducted in accordance with AHSA's
rules. AHSA undertakes to promote horse show competition through various means. In May
of 1981, a horse show entitled the Morgan Classic Royale was held in California. The show
was recognized by AHSA and was operated under AHSA's rules. Petitioners entered their
Morgan Stallion in the horse show; the horse won first place in its class. The animal was
subsequently disqualified, however, and the award was withdrawn due to alleged rule
violations. Petitioners immediately lodged a protest and sought a hearing before the show
committee. A hearing was not granted.
After returning to Nevada, the petitioners sought review of the show committee's actions
by writing to AHSA's Hearing Committee in New York. The Hearing Committee
subsequently met and summarily denied petitioners' request for a hearing, on the ground that
the controversy involved a nonappealable matter.
Thereafter, in September of 1981, the petitioners filed a complaint in district court against
AHSA. The complaint alleged that AHSA had violated its constitution and internal rules by
failing to provide petitioners with a hearing; by failing to rule upon the specific items
contained in their protest; and by improperly considering certain evidence in opposition to
their protest without providing them an opportunity to respond. Petitioners sought recovery of
their transportation, food and lodging expenses incurred in attending the California show, and
sought a return of the first place prize. Additionally, they requested an award of damages to
compensate them for the humiliation and embarrassment sustained as a result of the horse's
disqualification, and for the loss to the horse's reputation as a performance and breeding
stallion.
In response, AHSA moved to quash service of the summons and complaint, contending
that it lacked sufficient contacts with Nevada to support the exercise of personal jurisdiction
and that the petitioners' cause of action against AHSA did not arise from any of its activities
within Nevada. The district court granted the motion to quash, and this petition followed.
Service of process upon AHSA was purportedly made pursuant to our long-arm statute,
NRS 14.065. Under NRS 1+.06S{2){a), an out-of-state defendant submits to the
jurisdiction of Nevada courts as to any cause of action which arises from the transaction
of business within this state.1 This court has previously held that the broad language
used in the long-arm statute discloses a legislative intention to reach the outer limits of
federal constitutional due process.
14.065(2)(a), an out-of-state defendant submits to the jurisdiction of Nevada courts as to any
cause of action which arises from the transaction of business within this state.
1
This court
has previously held that the broad language used in the long-arm statute discloses a legislative
intention to reach the outer limits of federal constitutional due process. See Certain-Teed
Prods. v. District Court, 87 Nev. 18, 23, 479 P.2d 781, 784-85 (1971).
[Headnotes 1, 2]
In the present case, AHSA contends that it has not transacted business in Nevada because
it has no office or place of business in Nevada, and has not sold any products, provided any
services for profit, or conducted any business in Nevada such as to invoke the benefits and
protections of our laws. We disagree. A non-profit corporation's business is whatever
functions it has been organized to perform. Steel Joist Institute, Inc. v. J. H. Mann, III, Inc.,
171 So.2d 625, 627 (Fla.Dist.Ct.App. 1965). Thus, a non-profit corporation, such as AHSA,
transacts business within the meaning of NRS 14.065(2)(a) when it performs any of the
functions for which it was organized within the State of Nevada. Id. According to AHSA's
constitution, AHSA was organized:
(a) To serve and promote the best interests of Recognized Shows, Combined
Training Events, Dressage Competitions, Driving Competitions and of the Exhibitors
who participate in them.
(b) To make adequate and fair rules governing competitions and to enforce them for
the common benefit.
(c) To license Judges, Stewards, and Technical Delegates.
. . . .
(e) To adjudicate questions of violation of the rules and to inflict penalties therefor
in accordance with the rules.
. . . .
(i) To educate and inform the public by publishing a newspaper, magazine, rule
book, other educational pamphlets on the various phases of equestrian sport.
____________________

1
NRS 14.065(2) provides in pertinent part:
Any person who . . . does any of the acts enumerated in this subsection thereby submits himself . . . to
the jurisdiction of the courts of this state as to any cause of action which arises from the doing of such
acts:
(a) Transacting any business . . . within this state;
. . . .
In 1983, the Nevada Legislature amended NRS 14.065(2); the statute was not changed in any material way.
. . . .
(k) To promote the interest of horse and pony breeding.
. . . .
(m) To further the art of riding and to encourage horsemastership and the welfare of
horses and ponies.
. . . .
(o) To protect the welfare of horses insofar as the Association's finances will permit
by conducting tests for narcotics and inspections for cruelty to animals.
. . . .
(q) Otherwise to assist in connection with the exhibition of horses insofar as the
Association's facilities and finances permit.
Our review of the record indicates that many of these very objectives or functions were
performed in Nevada. For example, in 1981, AHSA had 278 members in Nevada; AHSA
collected $6950 in dues from those Nevada members and collected $21,424 from
participating nonmembers. Further, AHSA had seven registered judges and seven certified
stewards residing in Nevada, and recognized 24 horse shows held in Nevada. AHSA also
mailed membership-related materials into Nevada, as well as prize lists, premium lists, the
Horseshow Magazine, AHSA's 1981 rule book, amateur cards, entry blanks, membership
applications, and advertisements promoting AHSA. Finally, AHSA apparently selected and
paid for veterinarians to test for drugs at five Nevada horse shows. Thus, we conclude, based
on these activities and contacts, that AHSA was transacting business in Nevada within the
meaning of NRS 14.065(2)(a).
[Headnote 3]
AHSA also contends that the petitioners' cause of action against it does not arise from
AHSA's activities within Nevada. See NRS 14.065(2)(a) and (3); Shapiro v. Pavlikowski, 98
Nev. 548, 654 P.2d 1030 (1982). In particular, AHSA argues that petitioners' cause of action
arose from an alleged incident occurring outside the State of Nevada in California, at a horse
show which was merely recognized by the AHSA, and that the conduct, management and
control of that independent horse show . . . rested solely with such show and not with the
AHSA. The complaint filed below against AHSA, however, seeks recovery for AHSA's
alleged breach of its constitution and rules by failing to provide the petitioners with the means
of redress authorized by AHSA's rules. The constitution and rules promulgated by AHSA
expressly assure its members of the fairness of the rules governing horse show competitions,
and assure that questions of the violation of those rules will be adjudicated.
adjudicated. Even the AHSA membership application states that members are assured the
highest degree of fairness and equality through AHSA's active committee programs . . . and
[of] the right to appeal to the Association's Hearing Committee. AHSA solicits members,
such as the petitioners, for its organization in Nevada; presumably those members join the
AHSA in reliance upon its constitution and rules. Thus, the cause of action does appear to
arise from AHSA's activities in Nevada. Significantly, petitioners allege that they were
induced to attend the California horse show through material sent to them in Nevada by
AHSA. Further, they allege that they attended this horse show in reliance upon AHSA's
assurances that the show was recognized by AHSA and would be governed by AHSA rules.
Thus, although the cause of action may have come to fruition in California, where their horse
was disqualified, or in New York, where AHSA's Hearing Committee denied their request for
a hearing, we conclude that it nevertheless arises from and relates to AHSA's activities in
Nevada. See, e.g., Higgins v. American Society of Clinical Pathologists, 227 A.2d 712
(N.J.Super.Ct.App.Div. 1967) (personal jurisdiction over nonresident nonprofit corporation
upheld), rev'd on other grounds, 238 A.2d 665 (1968).
[Headnote 4]
Finally, based on the foregoing, we conclude that AHSA has a substantial enough
connection with Nevada to render the exercise of in personam jurisdiction over the
association reasonable and not offensive to traditional notions of fair play and substantial
justice. See Certain-Teed Prods. v. District Court, 87 Nev. at 23, 479 P.2d at 784. AHSA's
actions of encouraging, promoting and soliciting members in Nevada, coupled with the other
activities and contacts mentioned above, are such that AHSA should have reasonably
anticipated that it might be subject to litigation in this state. See World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 297 (1980). The district court therefore erred in quashing
service of process upon AHSA.
For the reasons set forth above, a writ of mandamus shall issue requiring the district court
to accept personal jurisdiction over AHSA in the proceedings below.
____________
100 Nev. 414, 414 (1984) In re Three Minors
IN THE MATTER OF THREE MINORS,
Nos. 14208, 14583, 14603
RICKELL W., A Minor, Appellant, v. THE STATE
No. 14208
KEVIN P., A Minor, Appellant, v. THE STATE
No. 14583
ANGELO W., A Minor, Appellant, v. THE STATE
No. 14603
July 3, 1984 684 P.2d 1121
Consolidated appeals from orders certifying juveniles for criminal proceedings; Second
Judicial District Court, Washoe County; Grant L. Bowen, Judge (Case No. 14208); Eighth
Judicial District Court, Clark County; Stephen L. Huffaker, Judge (Case Nos. 14583, 14603).
Consolidated appeals were taken from orders of the district courts certifying juveniles to
an adult court for criminal proceeding. The Supreme Court, Springer, J., held that: (1)
procedurally the juvenile courts in each case should have filed a statement of reasons for the
transfer decisions and should have required a showing of prospective merit by the prosecution
for the transfers through evidence upon which a grand jury could be expected to return an
indictment, and (2) substantively the juvenile courts should have considered, as primary
factors in making their decisions, the nature and seriousness of the charged offense or
offenses and the persistency and seriousness of past adjudicated or admitted criminal
offenses.
David Parraguirre, Public Defender, Robert George, Deputy Public Defender, Washoe
County, for Appellant Rickell W.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Michael L.
Mahaffey, Deputy District Attorney, Washoe County, for Respondents.
Morgan D. Harris, Public Defender, Victor John Austin, Deputy Public Defender, Clark
County, for Appellants Kevin P. and Angelo W.
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney, James
Tufteland, Deputy District Attorney, for Respondents.
1. Infants.
A juvenile subject of a certification or transfer proceeding to an adult court must be given a hearing in
which he is to be provided with counsel, access to relevant court studies and reports, and a statement of
reasons for any decision to waive juvenile jurisdiction.
2. Infants.
Statement of reasons to which a juvenile is entitled on determination to certify or transfer him to an adult
court need not be in the form of conventional findings of fact, but it must be sufficient to show that the
statutory requirement of full investigation has been met so as to permit meaningful appellate review.
3. Infants.
Term prosecutive merit for certifying or transferring a juvenile to an adult court for commission of a
felonious offense means that there must be evidence upon which a grand jury would be expected to return
an indictment and that there is probable cause to believe that juvenile committed charged felony.
4. Infants.
A juvenile court should not consider certifying or transferring a juvenile to an adult court until after it has
been determined that a sound basis for prosecution exists in event transfer is effectuated.
5. Infants.
The first business of the juvenile court in a transfer proceeding should be a resolution of the threshold
requirement of prosecutive merit.
6. Infants.
A determination of probable cause for transfer of a juvenile to adult court can be made preliminarily by
juvenile court on basis of written record without holding an adversary hearing and may be based on
evidence taken from petition, sworn investigative reports, witnesses' affidavits, police affidavits, or other
informal but reliable evidence.
Due process does not require that a juvenile be given an adversary hearing in a transfer proceeding
comparable to a preliminary examination. NRS 171.010 et seq.; U.S.C.A.Const. Amend. 6.
8. Infants.
Transfer proceedings are essentially dispositional in nature and not adjudicatory, so that no determination
of guilt or innocence need be made, and the state may be said to have met its initial burden of showing
prosecutive merit if informal but reliable evidence on probable cause can be presented.
9. Constitutional Law; Infants.
Fairness and due process require that some kind of hearing be conducted in order that a juvenile be
afforded an opportunity to present contrary evidence in opposition to a preliminary probable cause finding
in a transfer proceeding, but this does not mean that juvenile is entitled to a full adversary hearing, and
means only that he should not be foreclosed from presenting his side of the case, with the nature and
extent of such informal hearing being left to the sound discretion of the hearing
judge. NRS 171.010 et seq.; U.S.C.A.Const.
and extent of such informal hearing being left to the sound discretion of the hearing judge. NRS 171.010
et seq.; U.S.C.A.Const. Amend. 6.
10. Infants.
Failure to make a preliminary probable cause determination in a juvenile transfer proceeding did not
require reversal when there was ample evidence to support such a finding in any event.
11. Infants.
Statement that the district attorney believes the evidence currently available merits prosecution was
purely conclusory in nature and, hence, did not warrant transfer of juvenile to an adult court.
12. Infants.
Juvenile courts may consider, as primary factors in making a decision to transfer a juvenile to an adult
court, nature and seriousness of charged offense or offenses and persistency and seriousness of past
adjudicated or admitted criminal offenses, and may also consider mitigating circumstances which appear
from an evaluation of juvenile's personal characteristics such as age, maturity, character, personality,
attitude, family relationships, and the like.
13. Infants.
Juveniles who come within statutory jurisdictional age limits of juvenile court should not be transferred
to adult court because a treatment program is supposedly unavailable to juvenile court or because the
juvenile has an unfortunately bad attitude.
14. Infants.
Transfer to an adult court should not be based more on unavailability of customary juvenile court services
for infant than on his record or seriousness of charged offense.
OPINION
These three consolidated cases involve the certification or transfer of juveniles Rickell W.,
Kevin P., and Angelo W. from juvenile to adult court. The three cases are reversed and
remanded to juvenile court for reconsideration in accord with the constitutional requirements
of Kent v. United States, 383 U.S. 541 (1966) and the substantive standards set out in In the
Matter of Seven Minors, 99 Nev. 427, 664 P.2d 947 (Adv. Opn. No. 90, June 9, 1983).
I. PROCEDURAL CONSIDERATIONS.
A. Necessity for Statement of Reasons for Transfer Decision.
[Headnotes 1, 2]
In the case of Angelo, no statement of reasons for the transfer decision was given by the
juvenile court. In Kent the United States Supreme Court applied to transfer proceedings a
procedural standard of fundamental fairness.
States Supreme Court applied to transfer proceedings a procedural standard of fundamental
fairness. Such a standard requires that juveniles be given a hearing, the right to counsel,
access to relevant court studies and reports, and a statement of reasons for the waiver
decision. The statement of reasons need not be in the form of conventional findings of fact,
but there must be a statement of reasons which is sufficient to show that the statutory
requirement of full investigation has been met so as to permit meaningful appellate review.
B. Prosecutive Merit.
[Headnote 3]
The triggering event for the institution of transfer proceedings is the charged commission
of a felonious offense by a juvenile 16 years of age or older. As mentioned in Seven Minors
there must [be] prosecutive merit to the charge.
1
Prosecutive merit exists if there is
evidence upon which a grand jury would be expected to return an indictment; that is to say,
when probable cause exists to believe that the subject juvenile committed the charged felony.
[Headnote 4]
Requiring the state to establish prosecutive merit of the felony charge serves two purposes.
The first is the furtherance of judicial economy. There is no point in the court's considering
the difficult transfer issues until after it has been determined that a sound basis for
prosecution exists in the event that transfer is effectuated.
____________________

1
Prosecutive merit is a term that entered the juvenile justice scene by way of an appendix rather
gratuitously attached to the Kent decision. The appendix sets out a policy memorandum that had been put into
use by a judge of the juvenile court of the District of Columbia. This memorandum enumerated eight
determinative factors which will be considered by the Judge in deciding whether the Juvenile Court's
jurisdiction over such offenses will be waived. Among these factors are listed several substantive dispositional
factors such as the nature and seriousness of the offense and the past record of the juvenile. Also included are
such nondispositional factors as the desirability of trial and disposition of the entire offense in one court when
the juvenile's associates in the alleged offense are adults and whether there is evidence upon which a Grand
Jury may be expected to return an indictment, that is to say prosecutive merit. These two items on the list,
sending juveniles to adult court when they had adult partners-in-crime and making sure there was sound basis for
prosecution in the event of transfer, are based on judicial expediency and do not relate directly to the
dispositional merits of the transfer process.
While it can be said that a minor has the right to an adversarial hearing on the substantive issues relating to
the transfer decision, this is not true of non-dispositive, non-dispositional issues such as prosecutive merit and
joinder of adult and juvenile prosecutions. These matters are not critically important (see Kent at 556) to the
transfer decision; and this is another reason for holding that a juvenile does not have a right to an adversary
probable cause hearing. In this state juveniles are given such a hearing only for the purposes mentioned in the
body of the opinion.
the difficult transfer issues until after it has been determined that a sound basis for
prosecution exists in the event that transfer is effectuated.
Another purpose in requiring a showing of prosecutive merit is that it provides a
reasonable safeguard against juveniles' being made subject to inherently fruitless transfer
proceedings or to having to defend against unsupportable criminal prosecutions.
[Headnotes 5, 6]
Because of these considerations the first business of the juvenile court in a transfer
proceeding should be a resolution of the threshold requirement of prosecutive merit. The
necessary determination of probable cause can be made preliminarily by the court on the basis
of the written record. An adversary hearing is not required, and the probable cause finding
may be based on evidence taken from the petition, sworn investigative reports, witnesses'
affidavits, police affidavits, or other informal but reliable evidence.
[Headnote 7]
Due process does not require that a juvenile be given an adversary hearing comparable to
the preliminary examination provided for in NRS Chapter 171. The process of finding
probable cause in transfer matters is comparable to the finding that must be made in
pre-adjudication detention matters.
In detention cases the standardprobable cause to believe the suspect has committed a
crimetraditionally has been decided by a magistrate in a nonadversary proceeding on
hearsay and written testimony, and the Court has approved these informal modes of proof.
Gerstein v. Pugh, 420 U.S. 103, 120 (1975). After such an informal proof a youth may be
properly and constitutionally detained; there is no reason why similar proof cannot support a
finding of the existence of the level of prosecutive merit necessary to serve the ends of
judicial economy and individual protection referred to above.
[Headnote 8]
Transfer proceedings are essentially dispositional in nature and not adjudicatory. No
determination of guilt or innocence is made. A juvenile should not be entitled to two
preliminary examinations, one at the juvenile level and another at the adult level.
Consequently, the state may be said to have met its initial burden of showing prosecutive
merit if proofs consistent with the holding in Gerstein can be presented.
Even though there is no fundamental right to an adversarial hearing on the prosecutive
merit issue, the court is not completely without restriction in making the necessary probable
cause determination.
cause determination. For example, fairness requires that probable cause not be based entirely
on unsworn hearsay evidence. Likewise, the determination cannot be based solely on the
opinion of prosecutorial officials. See Gerstein at 118.
[Headnote 9]
Similar concerns about fairness arise when a preliminary probable cause finding is
challenged by the juvenile. In the concluding summary of Seven Minors we allude to the need
for a hearing in such instances. Fairness and due process do require that some kind of hearing
be conducted in order that a juvenile be afforded an opportunity to present contrary evidence
in opposition to the preliminary finding. This does not mean that the juvenile is entitled to a
full adversary hearing; it does mean that he should not be foreclosed from presenting his side
of the case. The nature and extent of such informal hearings will be left to the sound
discretion of the hearing judge.
2

[Headnote 10]
Applying these principles to the case at hand, it is apparent first in Rickell that even though
a preliminary probable cause determination was not made, there was ample evidence to
support such a finding. Therefore, we decline to reverse Rickell on this issue.
[Headnote 11]
In the cases of Angelo and Kevin, the element of prosecutive merit appears to have been
based solely on a statement that the district attorney believes the evidence currently available
merits prosecution. This conclusory statement is clearly not enough under Gerstein and the
ruling of this case; therefore, Angelo and Kevin are reversed and remanded for failure to
establish properly the required finding of prosecutive merit.
II. SUBSTANTIVE CONSIDERATIONS.
As pointed out in Seven Minors, the juvenile courts have in the past necessarily focused
their interest on the welfare of the individual child before the court. As a consequence,
juvenile courts have, in making transfer decisions, centered their attention on the child's best
interests and have been concerned primarily with the question of whether the child before the
court was likely to benefit from the juvenile court system. If, under the traditional rule, a
child was determined to be "amenable" to juvenile court treatment, the child was
retained within the jurisdiction; if not, the child would be transferred to the adult criminal
court.
____________________

2
It is noted that these matters could be expedited by rule or order requiring advance notice of the juvenile's
intention to contest the probable cause issue. Although the ultimate judgment on prosecutive merit and the merits
of the transfer decision must be made by the juvenile judge, there is no reason why a contested issue of probable
cause could not be referred to a master or a referee for findings and recommendations.
the traditional rule, a child was determined to be amenable to juvenile court treatment, the
child was retained within the jurisdiction; if not, the child would be transferred to the adult
criminal court.
Seven Minors presents a departure from traditional juvenile court jurisprudence. Instead of
allowing considerations concerning the welfare of the child to predominate, juvenile courts
will emphasize the public interest and will concern themselves with whether or not justice
and the public interest require that the offender be punished as an adult. Some youthful
offenders, by reason of their conduct, can no longer be properly considered as children to be
received by a children's court. Such offenders must, in the public interest and in the interest of
justice, be removed from the childrens' court, the juvenile court, and be subjected to the
punishment and accountability which we all must face if we engage in the commission of
criminal offenses.
[Headnote 12]
In Seven Minors substantive standards for transfer were declared. These standards were
based primarily on the conduct of the minor rather than on a subjective evaluation as to how
the minor might respond to juvenile court treatment. Thus, juvenile courts consider, as
primary factors in making the transfer decision, the nature and seriousness of the charged
offense or offenses and the persistency and seriousness of past adjudicated or admitted
criminal offenses; that is to say, they are interested primarily in the conduct of a minor rather
than in subjective predictions about what might or might not happen in the juvenile's life if he
is kept and treated in the juvenile court system. Juvenile courts may also consider other,
subjective factors, for example, mitigating circumstances which appear from an evaluation of
a minor's personal characteristics such as age, maturity, character, personality, attitude, family
relationships, and the like. Such factors alone may not be used to support a decision to
transfer, but they may be considered in deciding that justice does not require transfer in the
particular case.
[Headnote 13]
Adoption of these objective, public interest oriented standards serves the ends of justice
and is far more likely to hold youthful criminal offenders accountable for their crimes.
Applying such standards will not allow for lenient treatment in juvenile courts for those who
commit serious or repetitive offenses. Also, the practice of transferring, out of frustration,
older youths who have committed relatively minor or trivial offenses cannot take place.
offenses cannot take place. We disapprove of any practice which results in young persons
who come within the statutory jurisdictional age limits of the juvenile court being transferred
to adult court because a treatment program is supposedly unavailable to the juvenile court
or because the youth has an unfortunately bad attitude. If minors are transferred to the adult
court under the standards established in Seven Minors, they will be transferred largely
because they deserve it or because the public interest demands it.
It is quite apparent from the record that the Seven Minors standards were not applied in
these cases. They were all decided before Seven Minors, and it is understandable that
generally accepted child welfare standards were applied in these cases.
Examination of the records in the three cases reveals that consideration under the Seven
Minors standard might bring about different results.
A. Rickell W. (Case No. 14208).
The record in this case shows that the juvenile had no past delinquency record; he has
never voluntarily admitted nor has he been adjudicated to have committed any criminal
offense. He stands charged now with a number of property offenses, all of which originate out
of the same criminal episode. The record indicates that officials encouraged some of this
conduct by way of their attempts to further a sting-type of operation. It may be that when
considered in light of Seven Minors, it will appear to the juvenile court that the charged
offenses are so serious and threatening as to require adult prosecution and adult punishment;
it may not. In any event, this case should be considered in accordance with the rule stated in
Seven Minors. The case is reversed and remanded with instructions to reconsider the transfer
decision accordingly.
B. Kevin P. (Case No. 14583).
[Headnote 14]
The case of Kevin P. also calls for reevaluation under Seven Minors standards for it
appears that Seven Minors standards were not applied and that if they were, transfer would be
unlikely. Kevin's record consists of his having had possession of a stolen moped. He is now
charged with possession of a stolen Datsun. Transfer quite possibly was improperly based
more on unavailability of customary juvenile court services for Kevin, who was seventeen at
the time, than on his record or seriousness of the charged offense. This question must be
resolved upon reconsideration by the juvenile court of the proper Seven Minors factors
thought to support transfer; the case is therefore reversed and remanded for this purpose.
C. Angelo W. (Case No. 14603).
Examination of the record in Angelo W. shows that Angelo has previous adjudications of
burglary and larceny and that he has been committed to the Nevada Youth Training Center.
We do not find any substantive abuse of discretion under Seven Minors, and although this
case must be reversed on procedural grounds, it is not reversible on substantive grounds.
III. CONCLUSION.
The three cases are reversed and remanded so that they can be reconsidered in the light of
Seven Minors and this opinion.
Manoukian, C. J., Mowbray, Steffen, and Gunderson, JJ., concur.
____________
100 Nev. 422, 422 (1984) Dalton Properties, Inc. v. Jones
DALTON PROPERTIES, INC., Appellant, v. ROSCOE JONES, dba ROSCOE'S
JANITORIAL SERVICE, Respondent.
No. 14774
July 3, 1984 683 P.2d 30
Appeal from a judgment awarding damages for breach of contract, Eighth Judicial District
Court, Clark County; Thomas J. O'Donnell, Judge.
Subcontractor, employed to remove trash and other debris from a housing complex that
was in the process of being renovated, brought an action for a breach of a subcontract that
stated that prime contractor reserved the absolute right to terminate the agreement. The
district court entered judgment in favor of subcontractor, and prime contractor appealed. The
Supreme Court held that damages for lost profits could not be recovered for the breach of a
subcontractor's agreement that was terminable at will without cause, where there was neither
a showing nor a finding of special reliance, unconscionability, oppression, or intentional
concealment of terminable-at-will provision.
Reversed.
George R. Carter, Las Vegas, for Appellant.
Leonard P. Smith, Las Vegas, for Respondent.
1. Contracts.
Where contract provides that either party may terminate agreement at will, party so terminated may not
recover damages for those profits that he purportedly could have gained over the
maximum life of the contract.
profits that he purportedly could have gained over the maximum life of the contract.
2. Damages.
Object of compensatory damages in an action for breach of contract is merely to place the injured party in
the position that he would have been in had the contract not been breached.
3. Contracts.
So-called bad faith defense to a termination-at-will clause is limited to those circumstances where it
appears that a special element of reliance exists between the two parties.
4. Contracts.
Damages for lost profits could not be recovered for breach of a subcontractor's agreement that was
terminable at will without cause, where there was neither showing nor finding of special reliance,
unconscionability, oppression, or intentional concealment of terminable-at-will provision.
OPINION
Per Curiam:
The present appeal questions the appropriateness of an award of monetary damages in an
action for the breach of a subcontractor's agreement which is terminable without cause. Under
the agreement, Jones was employed as a subcontractor to remove trash and other debris from
a HUD housing complex which was in the process of being renovated. The subcontract stated
that the prime contractor reserves the absolute right to terminate this agreement.
From the record it appears that Jones performed under the terms of the agreement for
approximately three months until a dispute arose between Jones and Dalton Properties.
According to Jones, he and his men were wrongfully accused of stealing appliances out of the
apartments that they had been cleaning and as a result were ordered off the job site on
February 7, 1980. Five months later, Jones requested and received a hearing before the State
Contractor's Board to determine whether an amiable solution could be worked out.
Unfortunately, the record does not contain any information as to what the parties discussed at
the hearing or what the board's recommendation was. All that is known is that, as a result of
the hearing, Jones was allowed to resume work on the project.
A complaint was subsequently filed against Dalton Properties in November, 1980, seeking
general damages in excess of $10,000 for the loss of income over the five-month period
which otherwise would have been received had Jones not been terminated from the project.
Following a trial before the bench, judgment was entered in favor of Jones. The lower court
specifically found that Jones had been wrongfully terminated from the project from
February to August, 1980. As a result, the court awarded Jones $S,000 plus interest from
February, 19S0.
a result, the court awarded Jones $8,000 plus interest from February, 1980.
In the present appeal, Dalton Properties contends that damages for lost profits may not be
recovered for the breach of a contract that is terminable at will or without cause. We agree.
[Headnotes 1, 2]
The courts have long recognized the validity of contracts that provide either party the
option of terminating the contract at will. See Shain v. Washington National Insurance
Company, 308 F.2d 611 (8th Cir. 1962); Pardee Oil Co., Inc. v. Phillips Petroleum Co., 320
A.2d 769 (Del.Ch. 1974), aff'd, 343 A.2d 610 (Del. 1975); Universal Sales Corp. v.
California Press Mfg. Co., 118 P.2d 291 (Cal. 1941); cf., Aluevich v. Harrah's, 99 Nev. 215,
660 P.2d 986 (1983) (lease terminable at will). Where a contract provides that either party
may terminate the agreement at will, the party so terminated may not recover damages for
those profits that he purportedly could have gained over the maximum life of the contract.
Osborn v. Commanche Cattle Industries, Inc., 545 P.2d 827 (Okla.App. 1975). The object of
compensatory damages in an action for breach of contract is merely to place the injured party
in the position that he would have been in had the contract not been breached. Since a party to
a contract which is terminable at the will of another cannot rely on duration of the contract, if
damages for lost profits were permitted, the injured party would be in a better position than
the terms of the contract allowed. Osborn, above.
[Headnote 3]
Various courts have engrafted the qualification that the party exercising the termination
clause must do so in good faith. See Fortune v. National Cash Register Company, 364 N.E.2d
1251 (Mass. 1977). In Nevada, the so-called bad faith defense to the termination-at-will
clause is limited to those circumstances where it appears that a special element of reliance
exists between the two parties. See Aluevich, above, 660 P.2d at 987.
[Headnote 4]
In the case at hand, there is no allegation or proof of special reliance. In fact, Jones is a
subcontractor and ostensibly has equal bargaining power with the prime contractor. The
agreement in question clearly states that Dalton Properties reserves the absolute right to
terminate the contract. There is neither a showing nor a finding of unconscionability,
oppression, or intentional concealment of the provision. Under the holding of Osborn, above,
the award of damages for lost profits during the five-month period in 1980 is in error. Based
on this reason, the district court is reversed.
____________
100 Nev. 425, 425 (1984) Washington v. Clark County
MICHAEL WASHINGTON, Appellant, v. CLARK COUNTY LIQUOR AND GAMING
LICENSING BOARD and THALIA DONDERO, R. J. RONZONE, WOODROW WILSON,
MANUEL CORTEZ, JACK PETITTI, and BRUCE WOODBURY; and DANIEL J.
FITZPATRICK, Director of Clark County Business License Department, Respondents.
No. 15060
July 3, 1984 683 P.2d 31
Appeal from district court order denying petition for writ of certiorari; Eighth Judicial
District Court, Clark County, Thomas A. Foley, Judge.
Owner and operator of escort service filed petition for writ of certiorari after county liquor
and gaming licensing board upheld a cease and desist order issued against owner by county
business license department on ground that his escort service engaged in impermissible
advertisements of the availability of sexual services. The district court denied the petition,
and owner appealed. The Supreme Court held that the board did not act arbitrarily and
capriciously in entering its order upholding cease and desist order, and the district court
properly denied owner's petition for writ of certiorari, where evidence indicated escort service
engaged in impermissible advertisements of the availability of sexual services.
Affirmed.
Keith E. Galliher, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney and S.
Mahlon Edwards, Deputy District Attorney, Clark County, for Respondents.
1. Certiorari.
In the Nevada Supreme Court, a certiorari proceeding is generally limited to review of whether a lower
court had jurisdiction to enter a particular order.
When a party seeks review in the district court of a ruling of an administrative agency not governed by
the Administrative Procedure Act, an extraordinary writ, such as certiorari, is the proper vehicle for seeking
judicial review of the merits of the agency's actions to determine whether the agency acted arbitrarily or
capriciously. NRS 233B.010 et seq.
3. Certiorari.
District court was required to go beyond merely deciding whether county liquor and gaming licensing
board had jurisdiction to uphold cease and desist order issued by county business license department
against owner and operator of escort service; district court should have reviewed the merits of the
board's order following owner's filing petition for writ of certiorari.
have reviewed the merits of the board's order following owner's filing petition for writ of certiorari.
4. Licenses.
County liquor and gaming licensing board did not act arbitrarily and capriciously in entering its order
upholding cease and desist order issued by county business license department against owner of escort
service, and the district court properly denied owner's petition for writ of certiorari, where the evidence
indicated escort service engaged in impermissible advertisements of the availability of sexual services.
5. Prostitution.
Under county code provision prohibiting advertising of sexual services, advertising clearly can be
accomplished by way of telephone conversations.
6. Prostitution.
Escort service employee's reference to special services, in response to police investigator's request for
sexual satisfaction, was sufficient reference to availability of sexual services to come within intent and
scope of county code provision prohibiting escort services from advertising the availability of sexual
services.
7. Licenses.
County liquor and gaming licensing board's intent in enacting county code provision prohibiting escort
services from advertising the availability of sexual services was to hold escort service licensees liable for
the acts of their employees, at least in terms of licensing consequences, given that the provision prohibits
both a licensee and its employee from engaging in the advertisement of sexual services; accordingly, cease
and desist order was properly issued by county business license department against owner and operator of
escort service for employee's advertising the availability of sexual services to a police investigator.
OPINION
Per Curiam:
Appellant Michael Washington is the owner and operator of a Las Vegas business
establishment known as Swinging Suzies Escorts, which is licensed by the Clark County
Business License Department as an escort service. On October 21, 1983, the Las Vegas
Police Department conducted an undercover investigation of Swinging Suzies, by having
an investigator phone the service and request an escort for the specific purpose of providing
him with sexual satisfaction. According to the investigator, the employee who answered the
phone responded to the request by stating that the price for an escort was $100.00 per hour
and that the investigator should discuss with the escort herself any special services he
wanted.
The investigator then requested that an escort be sent to his motel room. When the escort
arrived, she advised him that the escort fee was $100.00 and that she also worked for
"tips."
escort fee was $100.00 and that she also worked for tips. The escort further advised him
that she was required to split the $100 fee with the escort service, but that she would keep
enough of the tip for herself. She then offered to perform sexual services for the sum of
$200. When the investigator agreed, the escort disrobed, and was immediately arrested for
soliciting prostitution.
Based on the investigator's report in this matter, the Clark County Business License
Department issued a cease and desist order against appellant, on the ground that appellant's
escort service had engaged in impermissible advertisements of the availability of sexual
services, in violation of Chapter 8.32.120(A) of the Clark County Code.
1
Appellant appealed
the issuance of the cease and desist order to the Clark County Liquor and Gaming Licensing
Board (hereinafter Board). Following a hearing on the matter, the Board voted to uphold the
cease and desist order. Appellant then filed a petition for a writ of certiorari in the district
court, contending that the cease and desist order should not have been upheld by the Board.
The district court denied the petition and this appeal followed.
Appellant first contends that the district court erroneously failed to review the merits of the
Board's order to determine if that order had been entered arbitrarily and capriciously.
Respondent, on the other hand, contends, inter alia, that the district court did in fact review
the merits of the Board's order.
It is unclear from our review of the record whether the district court did in fact review the
merits of the Board's order. Certain of the district court's comments at the hearing, however,
do indicate that the court believed that its scope of review of the Board's order was limited to
whether the Board exceeded its jurisdiction in entering the order in question. We conclude
that these comments do evidence a misunderstanding of the district court's scope of review.
[Headnotes 1-3]
The district court's confusion apparently stemmed from the principle that in the Nevada
Supreme Court a certiorari proceeding is generally limited to a review of whether a lower
court had jurisdiction to enter a particular order.
____________________

1
This chapter reads as follows:
8.32.120 AdvertisingImplying services other than service oriented escorts. (A) Any publication,
dissemination or display whether by hire, contract or otherwise by any escort, escort bureau or owner,
manager or employee of an escort bureau . . . directly or indirectly in any newspaper, magazine or other
publication, by any radio, television, telephone or pictorial display . . . which contains any statement
which is known or through the exercise of reasonable care would suggest to a reasonable, prudent person
that sexual stimulation or sexual gratification is offered or provided, is prohibited.
principle that in the Nevada Supreme Court a certiorari proceeding is generally limited to a
review of whether a lower court had jurisdiction to enter a particular order. See Goicoechea v.
District Court, 96 Nev. 287, 607 P.2d 1140 (1980). When a party seeks review in the district
court of a ruling of an administrative agency not governed by the Administrative Procedure
Act, however, an extraordinary writ, such as certiorari, is the proper vehicle for seeking
judicial review of the merits of the agency's actions to determine whether the agency acted
arbitrarily or capriciously.
2
See e.g., Urban Renewal Agcy. v. Iacometti, 79 Nev. 113, 119,
379 P.2d 466, 469 (1963). As such, the district court was required to go beyond merely
deciding whether the Board had jurisdiction to act; the district court should have reviewed the
merits of the Board's order in this case.
[Headnote 4]
As noted above, we are unable to determine from a review of the record whether the
district court did in fact review the merits of the Board's decision. From our independent
review of the record, however, we have concluded that the Board did not act arbitrarily and
capriciously in entering its order upholding the cease and desist order, and that the district
court therefore did not err in denying the petition. Cf. Titanium Metals Corp. v. Clark County,
99 Nev. 397, 663 P.2d 355 (1983) (supreme court's review of administrative matter is
identical to district court's review).
[Headnotes 5, 6]
One of appellant's primary contentions in support of the petition involved the question of
whether the telephone conversation described above could constitute advertising of sexual
services in violation of Chapter 8.32.120(A) of the Clark County Code. Under the specific
provisions of Chapter 8.32.120(A) advertising clearly can be accomplished by way of
telephone conversations, see note 1, supra; despite its one-to-one nature, the conversation
nevertheless served to disseminate information to a member of the general public, thereby
constituting advertisement for the purposes of this Chapter.
3
See generally Feather River
Trailer Sales v. Sillas, 158 Cal. Rptr. 26 {Ct.App.
____________________

2
Under the Administrative Procedure Act, NRS 233B.010 et seq., a party aggrieved by a final decision in a
contested case involving a state agency falling within the purview of the Act, is expressly authorized to file a
petition for judicial review of the agency's decision. See NRS 233B.130.

3
We note, however, that a more restrictive approach to defining advertising might be applied if criminal
sanctions were involved. See Planned Parenthood Committee v. Maricopa County, 375 P.2d 719 (Ariz. 1962).
(Ct.App. 1979) (representations made by a seller to a prospective buyer on a one-to-one basis
can constitute advertising). We also conclude that the employee's reference to special
services, in response to the investigator's request for sexual satisfaction, was a sufficient
reference to the availability of sexual services; even arguably indirect references to sexual
services such as this clearly come within the intended scope of the ordinance. See note 1,
supra.
[Headnote 7]
Finally, we disagree with appellant's contention that the cease and desist order was
erroneously issued on the ground that the record did not reflect that appellant had
authorized or ratified the actions of his employees in engaging in the above telephone
conversation. We conclude that the Board's intent in enacting Chapter 8.32.120 was to hold
escort service licensees liable for the acts of their employees, at least in terms of licensing
consequences, given that the ordinance prohibits both a licensee and its employees from
engaging in the advertisement of sexual services.
4
See generally Tax Com. v. Mackie, 75
Nev. 6, 333 P.2d 985 (1959) (licensee of gaming establishment held strictly liable for acts of
its employees despite licensee's disavowal of any knowledge of employee's acts).
Appellant's petition for a writ of certiorari was properly denied, and the district court's
order denying the petition is therefore affirmed.
____________________

4
Conceivably a case might arise where a licensee is able to demonstrate affirmatively that the licensee took
all possible steps to prevent an employee from engaging in a prohibited act, which might warrant our finding a
limited exception to the strict liability doctrine set forth above. See Ford Dealers v. Department of Motor
Vehicles, 650 P.2d 328, 336 n. 8 (Cal. 1982). The facts in this case, however, do not present such a situation,
and we therefore decline to decide whether there could be a limited exception of this type.
____________
100 Nev. 430, 430 (1984) Warden v. Lyons
WARDEN, NEVADA STATE PRISON, Appellant, v.
HAROLD TRAVIS LYONS, Respondent.
No. 15084
July 3, 1984 683 P.2d 504
Appeal from order granting post-conviction petition for writ of habeas corpus, Eighth
Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Warden appealed from an order of the district court which granted defendant
post-conviction petition for a writ of habeas corpus and declared void ab initio pleas of nolo
contendere entered by petitioner in two criminal prosecutions. The Supreme Court held that:
(1) prosecutor's filing of an habitual criminal allegation three days before trial after petitioner
elected not to plead guilty did not violate petitioner's due process rights or result in
involuntary pleas, and (2) by entering his nolo pleas, petitioner waived all constitutional
claims based on events occurring prior to entry of the pleas, except those involving the
involuntariness of the pleas themselves.
Reversed.
[Rehearing denied August 27, 1984]
Brian McKay, Attorney General, Carson City, and Thomas P. Wright, Deputy Attorney
General, for Appellant.
John J. Momot, Las Vegas, for Respondent.
1. Constitutional Law; Criminal Law.
Prosecutor's filing of an habitual criminal allegation three days before trial after petitioner elected not to
plead guilty did not violate petitioner's due process rights or result in involuntary pleas. U.S.C.A.Const.
Amend. 14.
2. Criminal Law.
By entering his nolo pleas, petitioner waived all constitutional claims based on events occurring prior to
entry of the pleas, except those involving the involuntariness of the pleas themselves.
3. Criminal Law.
Petitioner's counsel was not ineffective under either traditional farce and sham or the modern
reasonably effective assistance standard.
OPINION
Per Curiam:
The warden appeals from an order granting a post-conviction petition for writ of habeas
corpus. The order declared void ab initio pleas of nolo contendere entered by respondent in
two Washoe County criminal prosecutions.
ab initio pleas of nolo contendere entered by respondent in two Washoe County criminal
prosecutions. For the reasons set forth below, we reverse the order granting the petition and
reinstate the pleas.
On December 1, 1980, respondent pleaded nolo contendere to one count each of slot
cheating and attempted possession of a cheating device, in a case involving events which
transpired at the MGM Grand casino. Before sentencing, he was arrested for cheating
offenses at the Sahara-Reno. Respondent left the state and was not located and returned until
January of 1982. In subsequent proceedings he was sentenced in the MGM matter consistent
with the original plea bargain, and was allowed to plead nolo contendere to another cheating
offense in the Sahara case. He was sentenced to ten years and five years, concurrent, in the
former matter, and to a concurrent five years in the latter.
In June of 1982, respondent filed the instant petition for habeas relief, challenging the
validity of his pleas in the MGM case.
1
The petition contended that respondent had pleaded
without the effective assistance of counsel, and that his pleas had been coerced by the use
of illegally seized evidence and by the filing of an habitual criminal allegation the Friday
before trial. In supplemental points and authorities, respondent raised the additional claim
that both his MGM and his Sahara-Reno pleas were invalid under Hanley v. State, 97 Nev.
130, 624 P.2d 1387 (1981). The district court concluded that respondent's pleas were not
properly taken and granted the habeas petition, declaring the pleas void ab initio for the
reasons and on the grounds set forth in the petition and supplemental points and authorities.
The warden now argues that there was no factual or legal basis for the grant of habeas
relief. We agree.
[Headnote 1]
Respondent argued below that his MGM pleas were coerced and obtained in violation of
due process by the state's filing of an habitual criminal allegation three days before trial. He
argues that such a practice is unequivocal evidence of prosecutorial vindictiveness triggered
by a defendant's refusal to plead and the concomitant assertion of the constitutional right to a
trial. The United States Supreme Court, however, has approved this practice and held that a
prosecutor may file an habitual criminal allegation in response to an accused's election not
to plead guilty.
____________________

1
The district court determined that respondent had shown good cause why his petition should be
entertained notwithstanding his failure to appeal from the judgments of conviction. See Junior v. Warden, 91
Nev. 111, 532 P.2d 1037 (1975). The good cause finding is not at issue on appeal, and we express no opinion
thereon.
file an habitual criminal allegation in response to an accused's election not to plead guilty.
The Court specifically indicated that absent a decision to file the allegation based on an
arbitrary factor such as race, an inference of vindictiveness is not compelling in light of the
give-and-take of the plea bargaining process and the prosecutor's power to have filed the
allegation at the outset of the plea negotiations. See Bordenkircher v. Hayes, 434 U.S. 357
(1978). We have embraced the Bordenkircher analysis under facts fairly similar to those of
this case. See Schmidt v. State, 94 Nev. 665, 584 P.2d 695 (1978). Moreover, respondent
gave no indication of any feeling of coercion at the MGM plea canvass, and told the court he
was entering his pleas freely and voluntarily and without compulsion. Accordingly, we
conclude that the prosecutor's conduct in this case did not violate respondent's due process
rights or result in involuntary pleas.
2

[Headnote 2]
Respondent also argued below that his MGM pleas were coerced by the use of
illegally seized evidence. By entering his nolo pleas, however, respondent waived all
constitutional claims based on events occurring prior to the entry of the pleas, except those
involving the voluntariness of the pleas themselves. See Cline v. State, 90 Nev. 17, 518 P.2d
159 (1974). Accordingly, his fourth amendment claim was not cognizable on his petition for
habeas relief.
[Headnote 3]
Respondent also argued below that his attorney in the MGM proceeding did not provide
effective assistance in advising him to forego trial and plead nolo contendere. The United
States Supreme Court has recently adopted the reasonably effective assistance standard for
ineffective counsel in criminal cases. This constitutional standard supplants Nevada's
traditional farce and sham test. See Strickland v. Washington, ___ U.S. ___ 52 U.S.L.W.
4565 (May 14, 1984). It is not entirely clear whether the Strickland case applies prospectively
only, or to cases still pending on direct appeal. In any event, we have examined the various
claims of ineffectiveness and have concluded that counsel was not ineffective under either the
traditional "farce and sham" or the modern "reasonably effective assistance" standard.3
____________________

2
In his answering brief, respondent relies on State v. Sather, 564 P.2d 1306 (Mont. 1977), which disapproves
of the filing of an habitual criminal allegation under circumstances similar to those of this case. Sather relied
heavily on Hayes v. Cowan, 547 F.2d 42 (6th Cir. 1976), which was overruled in Bordenkircher. Sather is
doubtful validity in the wake of the Bordenkircher ruling.
tional farce and sham or the modern reasonably effective assistance standard.
3

We have considered the argument that the nolo pleas violated the rule of Hanley v. State,
supra, and have found the argument meritless.
Having concluded that the record before us shows no factual or legal basis for the grant of
habeas relief, we hereby reverse the order granting the post-conviction petition for writ of
habeas corpus, and we hereby reinstate respondent's pleas of nolo contendere.
____________________

3
In particular, we note that counsel was not ineffective for failing to file a motion to suppress. Although
respondent's substantive fourth amendment claim was not cognizable on his petition for post-conviction habeas,
he was entitled to argue, as he did, that counsel was ineffective for failing to seek suppression. We have
concluded, however, that notwithstanding decisions from other jurisdictions, the motion would have been
without merit under federal and Nevada law. See Burdeau v. McDowell, 256 U.S. 465 (1921); Radkus v. State,
90 Nev. 406, 528 P.2d 697 (1974).
____________
100 Nev. 433, 433 (1984) Wilkes v. Anderson
LONNIE J. WILKES, Appellant, v. KEVIN
J. ANDERSON, Respondent.
No. 15147
July 3, 1984 683 P.2d 35
Appeal from order granting judgment notwithstanding the verdict; Eighth Judicial District
Court, Clark County; Donald M. Mosley, Judge.
Appeal was taken from a decision of the district court which granted judgment in
motorist's favor notwithstanding a verdict for pedestrian in action for personal injury damages
stemming from an automobile accident. The Supreme Court held that evidence amply
supported an inference of negligence on part of motorist, whose automobile struck pedestrian
who was crossing a major thoroughfare without using the crosswalk, and therefore trial court
erred in granting judgment in motorist's favor notwithstanding verdict for pedestrian.
Reversed.
Reid & Alverson, Las Vegas, for Appellant.
Leavitt & Leavitt, Las Vegas, for Respondent.
1. Judgment.
In passing upon a motion for judgment notwithstanding the verdict, district court must view the evidence
in light most favorable to party against whom motion is made and neither credibility nor weight of the
evidence may be considered; district court may only grant the motion if the evidence was such that
reasonable men would have necessarily reached a different conclusion.
2. Judgment.
Evidence amply supported an inference of negligence on part of motorist, whose automobile struck
pedestrian who was crossing a major thoroughfare without using the crosswalk, and therefore trial court
erred in granting judgment in motorist's favor notwithstanding verdict for pedestrian.
3. Negligence.
Issues of negligence are considered issues of fact and not of law, such issues are for jury to decide; a
party's negligence becomes a question of law only when evidence will support no other inference.
4. Interest.
Judgment including prejudgment interest on entire verdict without distinguishing between past and future
damages violated applicable statute. NRS 17.130.
OPINION
Per Curiam:
This is an appeal from a district court judgment in respondent's favor notwithstanding a
verdict for appellant, in an action for personal injury damages stemming from an automobile
accident. We reverse.
[Headnote 1]
We first note that in passing upon a motion for judgment notwithstanding the verdict
(JNOV), the district court must view the evidence in the light most favorable to the party
against whom the motion is made; neither the credibility of witnesses nor the weight of the
evidence may be considered. Air Service Co. v. Sheehan, 95 Nev. 528, 594 P.2d 1155 (1979).
The district court may only grant the motion if the evidence was such that reasonable men
would have necessarily reached a different conclusion. See Drummond v. Mid-West
Growers, 91 Nev. 698, 704, 542 P.2d 198, 203 (1975); Air Service Co. v. Sheehan, supra;
see also Jacobson v. Manfredi, 100 Nev. 226, 679 P.2d 251 (1984); NRCP 50(b).
[Headnote 2]
Viewed most favorably to appellant, the evidence disclosed that on March 3, 1981,
appellant was a high school student in Las Vegas who had eaten lunch at a fast-food
restaurant near the school. He started to return to his school by crossing a major
thoroughfare, but he did not use the crosswalk.
major thoroughfare, but he did not use the crosswalk. Before appellant reached the median,
he heard someone at the restaurant yell to him; he pivoted to turn around, in the direction of
the oncoming traffic, and took one or two steps back toward the restaurant. He was then
struck by respondent's automobile. Immediately before the accident, respondent had been
distracted, and his attention was not fully on the road ahead of him although he had seen
appellant and others crossing the street. At the time of the accident, respondent was speeding.
The jury found that both appellant and respondent were negligent. Under comparative
negligence instructions, the jury allocated responsibility for the accident as follows: forty-four
percent to appellant, and fifty-six percent to respondent. The district court granted the motion
for JNOV on the sole ground that there was no proof of negligence on the respondent's part
that contributed to the accident. The record does not support that conclusion. See Air Service
Co. v. Sheehan, supra.
[Headnote 3]
As this court has recently held, issues of negligence are considered issues of fact and not
of law in Nevada; such issues are for the jury to decide, and a party's negligence becomes a
question of law only when the evidence will support no other inference. See Shepard v.
Harrison, 100 Nev. 178, 678 P.2d 670 (1984); see also Early v. N.L.V. Casino Corp., 100
Nev. 200, 678 P.2d 683 (1984). In this case, the district court erred by granting the JNOV
motion; the evidence amply supported an inference of negligence of respondent's part.
Respondent made several different contentions in his post-trial motions, but the district
court ruled only on the contention discussed above. At oral argument, counsel for respondent
requested that this case be remanded to the district court, for consideration of appellant's other
post-trial contentions, in the event the JNOV was overturned. We note that respondent has
provided no authority indicating that such a remand is proper in these circumstances.
We have nevertheless reviewed the record on appeal, including respondent's post-trial
motion for new trial and other relief, and have concluded that a new trial could not properly
have been granted. See NRCP 59(a) (providing grounds upon which a new trial may be
granted).
[Headnote 4]
The record reveals, however, that the judgment on the verdict included prejudgment
interest on the entire verdict without distinguishing between past and future damages, in
apparent contravention of NRS 17.130.
contravention of NRS 17.130. See Jacobson v. Manfredi, supra; Stickler v. Quilici, 98 Nev.
595, 655 P.2d 527 (1982).
Accordingly, the order granting JNOV is reversed. Respondent's request for remand is
denied, except that the district court may entertain further proceedings only on that portion of
respondent's post-trial motion that dealt with the allowance of prejudgment interest. Judgment
shall otherwise be entered in accordance with the jury's verdict.
____________
100 Nev. 436, 436 (1984) City Council, Reno v. Travelers Hotel
THE CITY COUNCIL OF THE CITY OF RENO, STATE OF NEVADA, and Members
Thereof Consisting of PETE SFERRAZZA, RICHARD SCOTT, JANICE PINE,
FLORENCE LEHNERS, JAMES THORNTON and DAVE HOWARD, Appellants, v.
TRAVELERS HOTEL, LTD., A California Limited Partnership, Respondent.
No. 15201
July 19, 1984 683 P.2d 960
Appeal from judgment granting peremptory writ of mandamus; Second Judicial District
Court, Washoe County; John W. Barrett, Judge.
A judgment of the district court granted peremptory writ of mandamus, and city council
and members appealed. The Supreme Court held that: (1) the substantial evidence
requirement to support city council's decision denying special use permit was not met by
statements of counsel for interested parties or by opinions of council members, unsupported
by proof, and (2) denial of special use permit by city council was an abuse of discretion not
supported by substantial evidence, and same was true despite contention that proposed
hotel-casino would be near high school, in view of fact that, since decision below, two
hotel-casino operations that were the same distance from the school had been approved by the
council.
Affirmed.
Robert L. Van Wagoner, City Attorney, Reno, for Appellants.
Stephen C. Mollath, Reno, for Respondent.
The substantial evidence requirement to support city council's decision denying special use
permit was not met by statements of counsel for interested parties or by opinions of
council members, unsupported by proof.
decision denying special use permit was not met by statements of counsel for interested parties or by
opinions of council members, unsupported by proof.
Denial of special use permit by city council was an abuse of discretion not supported by substantial
evidence, and same was true despite contention that proposed hotel-casino would be near high school, in
view of fact that, since decision below, two hotel-casino operations that were the same distance from the
school had been approved by the council.
In special use permit case, Supreme Court, like the district court, was limited to record made before the
city council.
OPINION
Per Curiam:
This is an appeal from a judgment granting respondent Travelers Hotel, Ltd. (Travelers) a
peremptory writ of mandamus ordering issuance of a special use permit for the building of a
hotel casino. The district court held that denial of the permit by appellant The City Council of
the City of Reno (City Council) constituted an abuse of discretion and was not supported by
substantial evidence. We agree, and affirm.
Travelers seeks to build a fifteen story, 305 room hotel-casino complex upon a one and
one-half acre site at the corner of Villanova Drive and Airmotive Way in Reno. Although the
area's C-2 zoning specifically permits gaming in hotels with more than 100 rooms, see Reno
Municipal Code sec. 18.06.250,
1
Travelers must obtain a special use permit before building
because its hotel-casino constitutes a major project. See RMC sec. 18.06.050(h)(Supp. No.
2, 1982).
2

In the spring of 1983, Travelers applied for a special use permit. The Department of
Planning and Community Development reviewed the application and prepared a detailed
"Staff Report" considering the factors listed in RMC sec.
____________________

1
RMC sec. 18.06.250 provides in pertinent part:
C-2 local commercial.
(a) Permitted uses: Uses permitted on a lot or parcel having the required width:
(1) Any use permitted in the C-1 zones;
(2) Specific uses, such as the following, within a building: . . . gaming in hotels with more than one
hundred (100) rooms . . . ;

2
RMC sec. 18.06.050(h) provides in pertinent part:
Major projects categories requiring special use permits:
(1) A major project means any proposed development which falls within any one or more of the
following categories:
a. [T]ransient occupancy facilities (hotels, . . . etc.) containing eighty (80) units or more . . . ;
b. Any gaming facility. . . .
Staff Report considering the factors listed in RMC sec. 18.06.050(h).
3
Their report
recommended approval of the application. On May 4, 1983, the Planning Commission held a
public hearing to consider the application. See RMC sec. 18.06.400(a)(3). No objections from
the public were presented at the hearing. The Commission recommended approval subject to
conditions specified in the staff report.
On June 13, 1983, the City Council held a public hearing to review the application.
Counsel for certain potential competitors of Travelers objected to the issuance of the permit.
In addition, one lay witness testified as to her concern that the hotel-casino would be located
too close to a high school in the vicinity. The City Council voted 4-2 to deny the application,
without stating any reasons therefor.
On June 30, 1983, Travelers filed an application for writ of mandamus challenging the
action of the City Council. An alternative writ of mandamus was issued that day, and a
hearing on the peremptory writ was held August 12, 1983. The district court found that the
City Council's denial of the special use permit was an abuse of discretion and not supported
by substantial evidence. It entered judgment for Travelers, and ordered the City Council to
issue to [Travelers] a Special Use Permit . . . subject to the conditions set forth in the Staff
Report. . . .
[Headnotes 1, 2]
The record supports the findings of the trial court. The staff report addressing specific
areas of concern was before the City Council, and recommended approval. The minutes of the
hearing reveal that, with one minor exception,4 the only other evidence presented
consisted of statements by interested parties or their counsel, and the opinions of council
members.
____________________

3
RMC sec. 18.06.050(h) further provides in pertinent part:
(2) All proposed major projects shall require the issuance of a special use permit, following review by
the regional planning commission. Major projects requiring additional title 18 action by the regional
planning commission (with the exception of zone change applications and requests for variance) shall be
consolidated into one public hearing.
(3) The regional planning commission shall consider the following factors, among others, in making
the findings required by section 18.06.400(a)(1) a. and b.
a. Availability of, and the impact of the proposed development on housing and public services
including, without limitation, schools, police and fire protection, transportation (including traffic and
parking), employment sewage collection and treatment facilities, recreation and parks, noise, air quality
and the quality and quantity of water;
b. Conformance with the adopted master plan;
c. Special consideration will be given to proposed developments which will provide low income
affordable housing.
ing reveal that, with one minor exception,
4
the only other evidence presented consisted of
statements by interested parties or their counsel, and the opinions of council members. Such
statements and opinions alone do not justify denial of a special use permit. This Court has
held that the substantial evidence requirement supporting such a decision is not met by
statements of counsel for interested parties, Henderson v. Henderson Auto, 77 Nev. 118, 359
P.2d 743 (1961), or opinions of council members, unsupported by proof. State ex rel. Johns v.
Gragson, 89 Nev. 478, 515 P.2d 65 (1973).
As this Court stated in Henderson v. Henderson, supra:
Respondent, as plaintiff before the trial court, was required to establish abuse of
discretion on the part of the city council in the denial by that body of respondent's
application for a use permit. Such showing of an abuse of the discretion vested in the
council was established before the trial court by respondent's showing of a lack of
substantial evidence before the council, which served as a basis for its action in denying
respondent's application. Concededly, the action taken by the city council in its
administrative capacity, upon the matter properly before it, would not warrant
interference by the trial court except where there was a manifest abuse of discretion.
Here, however, where there was no evidence to support the council's actions, the trial
court's action [issuing a peremptory writ of mandate] was proper. [Citations omitted.]
The exercise of discretion by the city council as an administrative board [sic] could not
be sustained in court on the basis of conclusions reached by the city council in the
absence of circumstances which reasonably justified such conclusions. [Citation
omitted.]
Id. at 122, 359 P.2d at 745, as quoted in State ex rel. Johns v. Gragson, 89 Nev. at 482, 515
P.2d at 68.
[Headnote 3]
Like the district court, we are limited to the record made before the City Council in our
review of the council's decision. State ex rel. Johns v. Gragson, 89 Nev. at 482, 515 P.2d at
68; McKenzie v. Shelly, 77 Nev. 237
____________________

4
The City Council's argument that the lay witness' remarks concerning the location of the hotel-casino near a
high school constituted a basis for its decision is considerably weakened by the council's approval, since the
decision below, of two hotel-casino operations that are the same distance from the school. See also Zajac v.
Zoning Hearing Bd. of Mifflin Tp., 398 A.2d 244, 247 (Pa. Commw. 1979) (lay objections, to be substantial,
must have some specificity.).
McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961). In the instant case the City Council
gave no reasons for its decision, and there is no substantial evidence in the record to support
the denial of Travelers' special use permit.
We affirm the judgment.
____________
100 Nev. 440, 440 (1984) In re Monteiro
In the Matter of JOSEPH MONTEIRO, Attorney at Law.
No. 15736
July 26, 1984 684 P.2d 506
Petition for bar discipline, State Bar of Nevada Disciplinary Board, Southern District.
On petition for bar discipline filed by the State Bar of Nevada Disciplinary Board, which
sought an order temporarily suspending attorney from the practice of law pending the
disposition of a criminal indictment filed against him, the Supreme Court held that the Board
failed to demonstrate sufficient justification for temporary suspension.
Petition denied.
Paul R. Hejmanowski, Chairman, Southern Nevada Disciplinary Board, and Michael Barr,
Bar Counsel, Las Vegas, for the State Bar of Nevada.
Marilyn V. Romanelli, Las Vegas, for Joseph Monteiro.
Purpose of Supreme Court Rule, allowing the Court to temporarily suspend an attorney and temporarily
restrict his handling of client funds if Disciplinary Board establishes, by affidavit, that the attorney
appears to be causing great harm by misappropriating funds to his own use, or by other clearly identified
acts . . . is to provide a summary procedure for the immediate prehearing suspension of attorneys when
exigent circumstances exist. SCR 102, subd. 4(a).
Where the only relevant factual allegation contained in Disciplinary Board's affidavit, filed in support of
its petition for attorney's temporary suspension from the practice of law, was that a criminal indictment had
been filed against the attorney, this sole allegation, without more, was insufficient to justify summary
suspension and the immediate imposition of temporary restrictions. SCR 102, subd. 4(a), 111, subd. 1.
Supreme Court Rule, which allows the Court to temporarily suspend an attorney and temporarily restrict
his handling of client funds if Disciplinary Board establishes, by affidavit, that the attorney
"appears to be causing great harm by misappropriating funds to his own use, or by
other clearly identified acts . . ." does not contemplate that every attorney charged or
indicted with a felony will be automatically suspended; rather, the relief provided by
the rule is reserved for those cases in which the Board makes a strong showing of
exigent circumstances which would warrant the immediate imposition of temporary
restrictions, and for those cases in which the Board makes a showing of prosecutorial
merit in the underlying criminal charges pending against attorney.
if Disciplinary Board establishes, by affidavit, that the attorney appears to be causing great harm by
misappropriating funds to his own use, or by other clearly identified acts . . . does not contemplate that
every attorney charged or indicted with a felony will be automatically suspended; rather, the relief provided
by the rule is reserved for those cases in which the Board makes a strong showing of exigent circumstances
which would warrant the immediate imposition of temporary restrictions, and for those cases in which the
Board makes a showing of prosecutorial merit in the underlying criminal charges pending against attorney.
SCR 102, subd. 4(a).
Attorneys in bar disciplinary proceedings are entitled to a presumption of innocence like any defendant in
a criminal action.
OPINION
Per Curiam:
The State Bar of Nevada Disciplinary Board for the Southern District has petitioned this
court, pursuant to SCR 102(4), for an order temporarily suspending attorney Joseph Monteiro
from the practice of law pending the disposition of a criminal indictment filed against him in
the United States District Court for the District of Nevada. Additionally, the Board requests
that Monteiro be precluded from accepting any new cases while suspended, and that he be
required to deposit into a trust account all funds received from his clients with certain
restrictions on withdrawal imposed. Monteiro opposes the petition and denies any
wrongdoing. We have reviewed the petition and the supporting affidavit; for the reasons set
forth below we have concluded that the Board has not demonstrated sufficient justification
for temporary suspension under SCR 102(4)(a).
[Headnote 1]
The record reveals that in April of 1984, attorney Monteiro was indicted by a federal grand
jury in Las Vegas for receiving $40,000 in stolen bank funds, a violation of 18 U.S.C.
2113(c). Under SCR 102(4)(a), this court may temporarily suspend an attorney and
temporarily restrict the attorney's handling of client funds if the Disciplinary Board
establishes, by affidavit, that the attorney appears to be causing great harm by
misappropriating funds to his own use, or by other clearly identified acts. . . .
1
The purpose
of SCR 102(4)(a) is to provide a summary procedure for the immediate pre-hearing
suspension of attorneys when exigent circumstances exist.
____________________

1
SCR 102(4) provides in pertinent part:
(a) On the petition of a disciplinary board, signed by its chairman or vice chairman, supported by an
affidavit alleging facts personally known to the affiant which shows that an attorney appears to be causing
great harm by misappropriating funds to his own use, or by other clearly identified acts, the supreme
court may issue an order,
vide a summary procedure for the immediate pre-hearing suspension of attorneys when
exigent circumstances exist. See Burleigh v. State Bar of Nevada, 98 Nev. 140, 146, 643 P.2d
1201, 1204 (1982).
[Headnote 2]
In the present case, the Board contends that Monteiro should be temporarily suspended
pending the resolution of this criminal charge, and pending a formal hearing into his conduct,
because the charge against him constitutes a serious crime for which discipline would be
warranted under SCR 111(1) if Monteiro were convicted. We agree that the charge contained
in the indictment against Monteiro is a serious one. The affidavit submitted in support of this
petition, however, does not contain any factual allegations whatsoever which would lead us to
believe that there is a basis or substance to the charge, or that Monteiro is currently causing
great harm by either misappropriating funds or by other clearly identified acts. See SCR
102(4)(a). Indeed, the only relevant factual allegation contained in the Board's affidavit is that
a criminal indictment has been filed against Monteiro. This sole allegation, without more, is
insufficient to justify his summary suspension and the immediate imposition of temporary
restrictions.
[Headnote 3]
SCR 102(4)(a) does not contemplate that every attorney charged or indicted with a felony
will be automatically suspended. Rather, the relief provided by SCR 102(4)(a) is reserved for
those cases in which the Board makes a strong showing of exigent circumstances which
would warrant the immediate imposition of temporary restrictions, and for those cases in
which the Board makes a showing of prosecutorial merit in the underlying criminal charges
pending against the attorney. In either case the Board's request for immediate restrictions
must be supported by an affidavit containing facts which would provide this court with a
basis on which to act. The affidavit in the present case contains no such facts.
2

____________________
with notice as the court may prescribe, imposing temporary conditions of probation on the attorney,
temporarily suspend him, or both. . . .
(b) A temporary order may restrict an attorney in the handling of funds entrusted to him or over which
he has the power of disposition, or, if appropriate, direct him to establish a trust account in accordance
with conditions prescribed in the order. . . .

2
The petition also contains a bald assertion that Monteiro's preoccupation with the defense of this charge
establishes [an] inability to continue representation of clients in a competent manner. This assertion is
speculative and totally unsupported by the affidavit; it is therefore entitled to no weight under SCR 102(4)(a).
[Headnote 4]
This court gives serious consideration to the recommendations of the Disciplinary Board.
We recognize the important function performed by the Disciplinary Board in maintaining the
integrity of the Bar. In the present case, however, the Board's petition for temporary
suspension of attorney Monteiro is based solely upon the mere fact of a criminal charge or
indictment. Attorneys in bar disciplinary proceedings are entitled to a presumption of
innocence like any defendant in a criminal action. Therefore, without facts demonstrating
prosecutorial merit in the underlying charge, or without a demonstration of the existence of
exigent circumstances which would justify preconviction suspension, the Board has simply
not provided us with a basis upon which to grant relief under SCR 102(4)(a).
Accordingly, we deny the petition for temporary suspension without prejudice to the
Board's refiling of a properly supported petition.
____________
100 Nev. 443, 443 (1984) Stackiewicz v. Nissan Motor Corp.
ELIZABETH STACKIEWICZ, Appellant and Cross-Respondent, v. NISSAN MOTOR
CORPORATION IN U.S.A., a California Corporation, Respondent and Cross-Appellant and
CARSON CITY INVESTORS, a Nevada Corporation, dba CARSON CITY DATSUN AMC
JEEP, Respondent.
No. 14084
August 7, 1984 686 P.2d 925
Appeal from orders of judgment notwithstanding the verdict, of conditional new trial upon
reversal, and dismissing defendant vehicle dealer; cross-appeal from order denying
unconditional new trial; Second Judicial District Court, Washoe County, Roy L. Torvinen,
Judge.
In products liability action against automobile distributor arising from automobile
accident, the district court entered orders of judgment notwithstanding verdict in favor of
plaintiffs of conditional new trial upon reversal and dismissing defendant vehicle dealer.
Distributor appealed and plaintiff cross-appealed. The Supreme Court, Mowbray, J., held
that: (1) evidence of steering malfunction which resulted in driver losing control of vehicle
could properly be accepted by trier of fact as sufficient circumstantial proof of defect or
unreasonably dangerous condition without direct proof of mechanical cause of malfunction;
{2) district judge did not err in denying motion for new trial predicated upon alleged juror
misconduct; and {3) award of approximately $3,100,000 for pain and suffering was not so
excessive as to suggest intrusion of passion and prejudice upon jury's deliberations.
of malfunction; (2) district judge did not err in denying motion for new trial predicated upon
alleged juror misconduct; and (3) award of approximately $3,100,000 for pain and suffering
was not so excessive as to suggest intrusion of passion and prejudice upon jury's
deliberations.
Orders entering judgment notwithstanding the verdict, granting conditional new
trial, reversed; orders denying unconditional new trial and dismissing dealer affirmed;
jury verdict reinstated.
[Rehearing denied October 4, 1984]
Smith & Gamble, Ltd., and David R. Gamble, Carson City; Leonard Sacks, Esq.,
Northridge, California for Appellant and Cross-Respondent.
Lionel, Sawyer & Collins, and Steve Morris and David Frederick, Las Vegas; Eugene J.
Wait, Reno, for Respondent and Cross-Appellant Nissan Motor Corporation in U.S.A.
Cromer, Barker, Michaelson, Gillock & Rawlings, Reno, for Respondent Carson City
Investors.
Kent R. Robison, Reno, for Nevada Trial Lawyers' Association, and Robert E. Cartwright,
San Francisco, California, for Association of Trial Lawyers of America, Amicus Curiae.
1. Judgment.
In opposing motion for judgment notwithstanding the verdict, plaintiff in action against automobile
distributor was not required to produce direct evidence of specific product defect or to negate alternative
causes of accident.
2. Products Liability.
Proof of unexpected dangerous malfunction may suffice to establish prima facie case of existence of
product defect.
Where other identifiable causes are absent and when there is evidence of dangerous condition, fact finder
in products liability suit can find that mere evidence of malfunction is sufficient evidence of defect.
Evidence of steering malfunction which resulted in driver losing control of vehicle could properly be
accepted by trier of fact as sufficient circumstantial evidence of defect or unreasonably dangerous
condition, without direct proof of mechanical cause of malfunction.
When products liability plaintiff has presented circumstantial evidence that defect caused accident in
question, credibility of such evidence is issue to be left to jury.
6. New Trial.
Question of prejudice arising from juror misconduct so as to warrant new trial is ultimately question of
fact.
7. New Trial.
Even if alleged independent inquiry regarding possible cause of accident constituted juror misconduct, no
prejudice resulted to automobile distributor in products liability action so as to warrant new trial.
8. New Trial.
Mere mention of effect of income taxes upon award during jury deliberations is not misconduct
warranting new trial.
9. Damages.
Where 22-year-old automobile accident victim was permanent paraplegic with life expectancy of 57.2
years, award of approximately $3,100,000 for pain and suffering was not so excessive as to suggest
intrusion of passion and prejudice upon jury's deliberations.
OPINION
Appellant Elizabeth Stackiewicz brought this action to recover damages for injuries she
sustained while driving a Datsun B210 automobile, distributed and sold by respondents
Nissan Motor Corporation in U.S.A. and Carson City Investors.
At the conclusion of Elizabeth's case in chief, the District Judge granted the motion of the
dealer, Carson City Investors, to dismiss all causes of action against the dealer. The court
further granted respondent Nissan's motion to dismiss Elizabeth's causes of action against
Nissan predicated on negligence and misrepresentation, and reserved ruling on the strict
liability cause of action until the end of the trial. Nissan then presented its defense. At the
conclusion of the case the jury found in favor of Elizabeth and awarded her $3,775,000 in
damages.
Nissan filed motions for judgment notwithstanding the verdict and for a new trial. The trial
court granted Nissan's motion for a judgment n.o.v., and further ruled that in the event the
judgment notwithstanding the verdict was reversed on appeal, a new trial would be ordered
unless Elizabeth accepted a remittitur reducing the verdict by $1,559,013.
The plaintiff appealed the order of judgment n.o.v., the dismissal of the dealer, and the
order of remittitur. The defendants, on cross-appeal, argue that they were entitled to an
unconditional order for a new trial on the basis of juror misconduct.
THE FACTS
The Datsun was purchased new from the dealer, Carson City Investors and was operated
normally in Carson City and the surrounding area. Nothing unusual was observed in the
operation of the vehicle from the date of purchase to the date of the accident about two
months later.
accident about two months later. At the time of the accident the vehicle had been driven
approximately 2,400 miles.
The vehicle was given a 1,000 mile service check by the respondent dealer prior to the
accident and no significant complaints were made to the dealer concerning its mechanical
operation. The only unusual matter that Elizabeth noted concerning the Datsun was a clicking
in the steering column.
On the day of the accident, Elizabeth, her mother, Veronica Wright, and Kimberly Seames,
a friend, departed Carson City in the Datsun for Reno. Elizabeth was driving. Mrs. Wright
was in the passenger seat, and Kimberly Seames was seated in the middle of the rear seat.
They were proceeding north on Highway 395, a limited access divided highway. The weather
was clear and dry. There was no significant wind.
Highway 395 northbound had two 12-foot lanes, a 3-foot shoulder on the west and a
10-foot shoulder on the east in the area of the accident. There was a 60-foot median west of
the highway which divided the northbound and southbound lanes.
Elizabeth was in the right-hand lane, behind another vehicle, when she proceeded to pass
that car on the left. She was traveling at 50-55 miles per hour. After Elizabeth passed the car,
her own vehicle kept turning to the left. She attempted to turn the car back to the right. The
steering wheel locked and would not turn. The testimony was that all four wheels of the car
were still on the pavement at that time. Elizabeth's mother told her to turn the car back on the
road. Elizabeth told her mother she could not turn the car and Mrs. Wright reached over to
help her. The steering wheel would not turn. The car then hit a highway marker and rolled
over and down the median, ending in an upright position.
Immediately after the accident the occupants of the car told persons at the scene that
something had gone wrong with the steering. The investigating police officer, Nevada
Highway Patrolman Conely, testified that when he first talked with Mrs. Wright, Kimberly
Seames and Elizabeth at the hospital on the day of the accident, they all stated that the
steering wheel would not respond and that this malfunction occurred before the vehicle left
the highway.
Elizabeth's counsel retained various experts who were unable to find a defect in the
steering mechanism. Professor Lindley Manning, an expert called by Elizabeth, testified that
defects are difficult to locate but that the existence of a defect should not be eliminated
because it had not been found. Professor Manning testified that the brakes on the vehicle were
applied at a point which would place the vehicle entirely on the road at the time of their
application. It was his opinion that the locking of the steering wheel caused the vehicle to go
off the road.
THE JUDGMENT NOTWITHSTANDING
THE VERDICT
This Court held in Dudley v. Prima, 84 Nev. 549, 445 P.2d 31 (1968), the power to grant
such motions [for j.n.o.v.] should be cautiously exercised. Id. at 551, 445 P.2d at 32.
In determining whether to render a judgment non obstante veredicto, the court is not
justified in trespassing on the province of the jury to be the judge of all questions of fact
in the case, and the party favored by the verdict is entitled to have the testimony read in
the light most advantageous to him, and to be given the benefit of every inference of
fact fairly deducible therefrom. Accordingly, an application for such judgment will be
refused where there is evidence tending to support the verdict, or where there is a
conflict of evidence, so that the jury could properly decide, either way. . . .'
Id. at 551, 445 P.2d at 32, quoting Ries v. Sanders, 34 F.R.D. 468, 470 (N.D.Miss. 1964). See
also Jacobson v. Manfredi, 100 Nev. 226, 679 P.2d 251 (1984); Cleveland v. Bally
Distributing Co., 96 Nev. 552, 612 P.2d 684 (1980).
[Headnote 1]
Applying this standard in the case at bar we find that the trial court erred in granting the
judgment n.o.v. Nissan's principal argument, which the trial court accepted in granting the
j.n.o.v., was that the plaintiff failed to introduce sufficient evidence to show that the accident
was caused by a defect existing when the product was marketed, which defect would support
a finding that the product was subject to strict tort liability. Nissan contends that the plaintiff
was required to produce direct evidence of a specific product defect, and was further required
to negate any alternative causes of the accident. We do not agree that such a restriction may
be placed, as a matter of law, upon the form of proof that is required to establish a defective
product.
In 1966 this Court adopted the doctrine of strict tort liability against the manufacturer and
distributor of a bottled beverage. Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 420 P.2d
855 (1966). We set forth the rationale for this rule as follows:
[P]ublic policy demands that one who places upon the market a bottled beverage in a
condition dangerous for use must be held strictly liable to the ultimate user for injuries
resulting from such use, although the seller has exercised all reasonable care, and the
user has not entered into a contractual relation with him. Perhaps the supporting policy
reasons are best expressed by William L. Prosser in his article, "The Fall of the
Citadel," 50 Minn. L. Rev. 791, 799 {1966): "The public interest in human safety
requires the maximum possible protection for the user of the product and those best
able to afford it are the suppliers of the chattel. By placing their goods upon the
market, the suppliers represent to the public that they are suitable and safe for use;
and by packaging, advertising and otherwise, they do everything they can to induce
that belief. . . ."
article, The Fall of the Citadel, 50 Minn. L. Rev. 791, 799 (1966): The public
interest in human safety requires the maximum possible protection for the user of the
product and those best able to afford it are the suppliers of the chattel. By placing their
goods upon the market, the suppliers represent to the public that they are suitable and
safe for use; and by packaging, advertising and otherwise, they do everything they can
to induce that belief. . . .
Id. at 441-442, 420 P.2d at 857. We further quoted with approval Justice Traynor's
observation that Even if there is no negligence . . . public policy demands that responsibility
be fixed wherever it will most effectively reduce the hazards to life and health inherent in
defective products that reach the market. Escola v. Coca-Cola Bottling Co. of Fresno, 150
P.2d 436, 440 (Cal. 1944) (concurring). Rather than proof of negligence, or privity, we held
that the plaintiff's case in strict liability would simply consist of proof that his injury was
caused by a defect in the product, and that such defect existed when the product left the hands
of the defendant. 82 Nev. at 443, 420 P.2d at 858.
In Ginnis v. Mapes Hotel Corporation, 86 Nev. 408, 470 P.2d 135 (1970), we extended
our ruling in Shoshone to the designers and manufacturers of all types of products. We further
determined that a plaintiff established a sufficient case for the jury that a product was
defective by showing that it failed to perform in the manner reasonably to be expected in
light of its nature and intended function and was more dangerous than would be contemplated
by the ordinary user having the ordinary knowledge available in the community. Id. at 413,
470 P.2d at 138. Such a condition is, in the words of the Restatement (Second) of Torts,
Section 402A(1) (1965), unreasonably dangerous. See also Ward v. Ford Motor Co., 99
Nev. 47, 657 P.2d 95 (1983).
[Headnote 2]
Thus we have held that proof of an unexpected, dangerous malfunction may suffice to
establish a prima facie case for the plaintiff of the existence of a product defect. The origins
of this approach in the implied warranty breach of the antecedents of strict liability is
illustrated in the following language found in Lindsay v. McDonnell Douglas Aircraft
Corporation, 460 F.2d 631, 639 (8th Cir. 1972), which adopted the doctrine of strict liability
in tort in federal maritime law:
Proof of the specific defect in construction or design causing a mechanical
malfunction is not an essential element in establishing breach of warranty. When
machinery malfunctions, it obviously lacks fitness regardless of the cause of the
malfunction.
of the cause of the malfunction. Under the theory of warranty, the sin is the lack of
fitness as evidenced by the malfunction itself rather than some specific dereliction by
the manufacturer in constructing or designing the machinery.' Greco v. Bucciconi
Engineering Co., [283 F.Supp. 978, 982 (W.D.Pa. 1967), aff'd, 407 F.2d 87 (3d Cir.
1969)].
Quoting MacDougall v. Ford Motor Company, 257 A.2d 676, 679 (Pa.Super. 1969).
[Headnote 3]
It has been held that a specific defect in the product is not an essential element in
establishing a cause of action,' since in the field of products liability the focus is on the
product and not necessarily on its component parts.' Kileen v. General Motors Corp., 421
A.2d 874, 875 (Conn.Super. 1980). When there is evidence of some dangerous condition, the
factfinder can find, where other identifiable causes are absent, that the mere evidence of a
malfunction is sufficient evidence of a defect. Id. at 876.
In Tweedy v. Wright Ford Sales, Inc., 357 N.E.2d 449 (Ill. 1976), which the district judge
cited but declined to follow in the instant case, the defendant manufacturer alleged that the
plaintiff had not made a sufficient case for the jury, when the plaintiff had offered evidence of
a brake malfunction at the time of the accident. The automobile in question was
approximately six months old and had been driven approximately 7,500 miles without any
brake problems. Plaintiff's daughter testified that she had experienced a temporary brake
failure. Plaintiff testified that the brakes went out completely several hours later on the same
day while the car was being driven carefully at a reasonable rate of speed, on dry roads and in
good weather. Plaintiff did not offer any expert testimony concerning the presence of a
specific defect, while defendant's expert testified that there was no defect. The Illinois
Supreme Court affirmed judgment for plaintiff, holding that both a defect and its existence
when it left the manufacturer were established by proof that the product failed to perform in
the manner reasonably to be expected in light of its nature and intended function, in the
absence of abnormal use or reasonable secondary causes. The failure of the brakes to function
in the manner reasonably to be expected, in itself and without more, established the defect.
In the leading and oft-cited case of Greco v. Bucciconi Engineering Co., supra, 407 F.2d
87 (3d Cir. 1969), affirming 283 F.Supp. 978 (W.D.Pa. 1967), the plaintiff was injured when
a magnetic steel piler malfunctioned while being used as it was intended to be used.
intended to be used. The defendants, the manufacturer and seller of the piler, contended that
plaintiff failed to sustain his burden of showing the existence of a defect at the time of sale.
The only evidence of a defect was that the machine malfunctioned, and was a relatively new
machine, having been in operation about six months prior to the accident.
The Court of Appeals, applying Pennsylvania law, held that a defective condition is
established, within the meaning of [Restatement (Second) of Torts] Section 402A by
proving that the product functioned improperly in the absence of abnormal use and reasonable
secondary causes, 407 F.2d at 89-90. Although defendants contended that an electrical
problem in the control panel, which defendants neither manufactured nor supplied, caused the
malfunction, the Court of Appeals held that the jury could nevertheless properly have inferred
that the malfunction was caused by a defect in defendants' product. Id. at 91 n. 7.
Other courts have had occasion to apply these principles to the malfunctioning of the
steering or control mechanism of a car. In Vanek v. Kirby, 450 P.2d 778, rehearing denied,
454 P.2d 647 (Or. 1969), plaintiff was unable to allege a specific defect in his pleading, but
alleged that while riding as a passenger in a new Ford automobile he became injured when
the vehicle become uncontrollable in normal operation and left the highway. Id. at 780. The
court held that proof of these allegations would support a recovery and therefore the
complaint stated a cause of action.
Dennis v. Ford Motor Co., 332 F.Supp. 901 (W.D.Pa. 1971), aff'd, 471 F.2d 733 (3d Cir.
1973), also involved evidence similar to that at bar in that plaintiff's employee was driving a
new (2-day old) tractor-trailer combination which left the highway, causing loss of the
property. The driver testified that he felt the right front wheel give way and he then lost
steering control. Construing the law under Restatement (Second) of Torts, Section 402A, the
District Court said that the evidence was sufficient to establish that the accident was caused
by a malfunction of the steering mechanism. 332 F.Supp. at 903. The court held that
evidence of a malfunction of a vehicle is sufficient to establish liability without proof of the
specific defect causing the malfunction. Id.
[Headnote 4]
On the facts presented in this case, we conclude that evidence of a steering malfunction
which resulted in the driver losing control of the vehicle might properly be accepted by the
trier of fact as sufficient circumstantial proof of a defect, or an unreasonably dangerous
condition, without direct proof of the mechanical cause of the malfunction.1
fact as sufficient circumstantial proof of a defect, or an unreasonably dangerous condition,
without direct proof of the mechanical cause of the malfunction.
1

In this case, Elizabeth testified that the four tires were on the pavement when the steering
wheel froze. She further testified that the four tires were on the pavement when her mother
tried to turn the steering wheel back to the right. Finally, Elizabeth testified that the steering
wheel would not turn to the right.
Veronica Wright testified that when she noticed the car was veering gradually to the left,
the four tires were on the pavement. She heard no gravel striking the underside of the car.
When asked to describe how the steering wheel felt, Mrs. Wright said:
Like it does in my car when the steering is locked. There was just no give at all. If I
could grab the steering wheel and go like that (indicating), I was trying to get the car to
come back to the right. There was no response whatsoever.
The passenger, Kimberly Seames, also testified regarding the sequence of events. She
recalled first hearing Elizabeth's voice, in frightened tones, saying something to the effect of,
Mom, the steering won't work. She also testified that the four tires were on the pavement
when Elizabeth and her mother were trying to steer the car back to the right. When asked if
she had formed any opinion as the cause of the car's movement to the left, she replied:
Not in any definite opinion. I felt like the steering locked, and they weren't able to move
it to the right and so the car kept going off the road.
Professor Manning testified that it was his opinion that the brakes were applied when the
vehicle was on the road and that the locking of the steering wheel caused the Datsun to go off
the pavement.
____________________

1
Other cases holding to similar effect include: Knight v. Otis Elevator Company, 596 F.2d 84 (3d Cir. 1979)
(Pa. law); Stewart v. Ford Motor Co., 553 F.2d 130 (D.C. Cir. 1977); Price v. Admiral Corp., 527 F.2d 412 (5th
Cir. 1976) (Miss. law); Franks v. National Dairy Products Corporation, 414 F.2d 682 (5th Cir. 1969) (Tex. law);
Stewart v. Budget Rent-A-Car Corporation, 470 P.2d 240 (Haw. 1970); Farmer v. International Harvester
Company, 553 P.2d 1306 (Id. 1976); Brownell v. White Motor Corp., 490 P.2d 184 (Or. 1971). See also P.
Rheingold, Proof of Defect in Product Liability Cases, 38 Tenn. L. Rev. 325, 329 (1971); Comment,
Products Liability and the Problem of Proof, 21 Stan. L. Rev. 1777 (1969); 2 L. Frumer & M. Friedman,
Products Liability, Sections 16A[4][e][ii], and 16A[4][f][i] at 3B-120.3 (1984 ed.).
[Headnote 5]
We agree with the Supreme Court of Oregon that when the plaintiff has presented
circumstantial evidence that a defect caused the accident in question, the credibility of such
evidence is an issue to be left to the jury. If the jury believes plaintiffs' evidence, the
defendants, as is true in any case when the jury initially believes the plaintiffs' evidence, must
come forward and convince the jury that the plaintiffs' evidence is incorrect, or the inferences
to be drawn from plaintiffs' evidence do not lead to the conclusion that a defect in the vehicle
was the cause of the damage. Brownell v. White Motor Corporation, supra, 490 P.2d at 186.
Defendants are not entitled to short-circuit the normal adversary process by convincing the
court, rather than the jury, of the virtue of their position.
In commenting upon the trial court's proper role in considering a 41(b) motion, this Court
has held:
There may well be merit to defendant's theory of the case, but the function of the trial
judge is not to determine the respective merits. . . . It is not for him to weigh or compare
or balance the inferences in favor of the one party and against the other. Conflicting
inferences from known facts are for jury determination.
Roche v. Schartz, 82 Nev. 409, 412-13, 419 P.2d 779, 781 (1966).
Applying these principles to the evidence presented in the case at bar, we conclude that the
jury's verdict was permissible, and that the district judge erred when he overturned the jury's
verdict.
THE NEW TRIAL/JUROR MISCONDUCT
[Headnotes 6, 7]
Nissan argues in its cross-appeal that the district court abused its discretion in failing to
issue an unconditional order for a new trial, on the basis of alleged juror misconduct,
including an allegation that a juror made independent inquiry regarding a possible cause of
the accident. As to particular instances of overt conduct by certain jurors, the district court
found that even if those acts constituted misconduct, no prejudice resulted to Nissan. The
question of prejudice is ultimately a question of fact. It is for the trial court to determine in
the first instance . . . and its judgment thereon will not be overturned unless abuse of
discretion is manifest.' Barker v. State, 95 Nev. 309, 313, 594 P.2d 719, 721-722 (1979).
The record supports the trial court's determination, and we accordingly do not find an abuse
of discretion.
[Headnote 8]
Nissan also submitted affidavits by several jurors stating that during their deliberations the
effect of income taxes upon the award was mentioned. Mere mention of such factors is not
misconduct. See Cornejo v. Probst, 630 P.2d 1202 (Kan.App. 1981); cf. Holden v. Porter, 405
F.2d 878 (10th Cir. 1969) (mention of insurance coverage not misconduct). The district judge
did not err in denying the motion for a new trial predicated upon alleged juror misconduct.
DAMAGES
In his order of remittitur the district judge found Elizabeth's medical and special damages
to be $656,973. This amount was not remitted. The balance of the verdict, $3,118,027,
represented the jury's award to Elizabeth for past and future physical and mental pain and
suffering. The district judge reduced this part of the verdict by half, $1,559,013, reaching a
new verdict of $2,215,986.
After the accident, Elizabeth was treated by Cameron Lindberg, an orthopedic surgeon. Dr.
Lindberg testified that when Elizabeth was brought to the hospital by ambulance on the day
of the accident, she had no movement in her lower extremities and was suffering from severe
back and shoulder pain. X-rays revealed that Elizabeth's ninth thoracic vertebra was crushed,
that her tenth thoracic vertebra was also fractured and that her spinal cord was severed. In
addition, Elizabeth suffered a fractured clavicle.
Dr. Lindberg testified that as a result of her injuries, Elizabeth was rendered a paraplegic
at the level of T9, meaning she had no muscle or sensory function of any significant degree
below the waist. She cannot function without a wheelchair. Dr. Lindberg further testified that,
because of her disability, Elizabeth is likely to be employed only under very special
circumstances, and that it is not a realistic expectation that she will enter the usual work
force. Before her injury, plaintiff intended to become a psychologist.
Dr. Walter J. Treanor, who specializes in rehabilitation, also treated Elizabeth. Dr. Treanor
testified that, as a result of her injuries, Elizabeth is a paraplegic, that she has lost the use of
her legs. He also testified that Elizabeth would be able to perform sedentary employment, but
will have problems with access.
Dr. Treanor also testified that Elizabeth will incur future medical expenses. These future
medical expenses were considered by Dennis Goslin, a professor of mathematics, in
determining the extent of plaintiff's economic loss. According to Mr.
Mr. Goslin, Elizabeth's life expectancy as of the time of the trial was 57.2 years. Using this
life expectancy, Goslin testified that the present value of Elizabeth's future medical expenses
is $136,410. When this amount is added to the loss attributable to Elizabeth's restricted
employment opportunities, the present value of Elizabeth's total economic losses ranges from
approximately $325,000 to $640,000. In addition, Elizabeth had incurred medical expenses of
$79,623 from the date of the accident to the date of trial. There was no dispute concerning the
extent of Elizabeth's injuries and the amount of her economic losses.
The standard of review of an order granting a motion for a new trial unless the plaintiff
accepts a remittitur of the verdict is set forth in Harris v. Zee, 87 Nev. 309, 311-312, 486 P.2d
490, 491-492 (1971):
When the trial judge orders a remittitur damnum and we are asked to review his action,
the test is whether he abused his discretionary power. [Citation omitted.] This is an
elusive standard. We must accord deference to the point of view of the trial judge since
he had the opportunity to weigh evidence and evaluate the credibility of witnessesan
opportunity foreclosed to this court. To this extent the appeal is weighted in favor of the
order entered, and when there is a material conflict of evidence as to the extent of
damage, a challenge to the trial court's exercise of discretion is substantially repelled.
However, this is not so when the evidence regarding damage is not in conflict. The
order to remit immediately becomes suspect unless the amount awarded by the jury
standing alone, is so excessive as to suggest the intrusion of passion and prejudice
upon its deliberations. (Emphasis added.)
We have long held that [i]n actions for damages in which the law provides no legal rule
of measurement it is the special province of the jury to determine the amount that ought to be
allowed, so that a court is not justified in reversing the case or granting a new trial on the
ground that the verdict is excessive, unless it is so flagrantly improper as to indicate passion,
prejudice or corruption in the jury. Forrester v. Southern Pacific Co., 36 Nev. 247, 295-296,
134 P. 753, 768 (1913), quoted in Southern Pacific Co. v. Watkins, 83 Nev. 471, 495, 435
P.2d 498, 513-514 (1967). Similarly in Brownfield v. Woolworth Co., 69 Nev. 294, 296, 248
P.2d 1078, 1079-1081, reh. den., 69 Nev. 297, 251 P.2d 589 (1952), we noted that [t]he
elements of pain and suffering are wholly subjective. It can hardly be denied that, because of
their very nature, a determination of their monetary compensation falls peculiarly within the
province of the jury. . . .
the province of the jury. . . . We may not invade the province of the fact-finder by arbitrarily
substituting a monetary judgment in a specific sum felt to be more suitable.
In reversing a district court's order granting a new trial on the issue of damages, we
recently noted that the mere fact that a verdict is large is not in itself conclusive that it is
the result of passion or prejudice.' Beccard v. Nevada National Bank, 99 Nev. 63, 66 n. 3
657 P.2d 1154, 1156 n. 3 (1983), quoting Miller v. Schnitzer, 78 Nev. 301, 309, 371 P.2d
824, 828 (1962). Similarly, in Automatic Merchandisers, Inc. v. Ward, 98 Nev. 282, 646 P.2d
553 (1982), although we found the award unusually high, we did not find it so flagrantly
improper as to suggest jury passion, prejudice or corruption. In General Electric Co. v. Bush,
88 Nev. 360, 368, 498 P.2d 366, 371 (1972), this Court refused to set aside an award of
$3,000,000 when the evidence of special damages went uncontroverted at trial. We refused to
substitute our opinion of damages for that of the jury, when the award, in view of the extent
of personal injuries to the victim, did not shock our judicial conscience.
[Headnote 9]
Here, the evidence established that at the time of trial, the 22-year-old plaintiff was a
permanent paraplegic, with a life expectancy of 57.2 years. Her legs are paralyzed; she cannot
move without a wheelchair, she has no feelings below her waist; she has lost normal control
over her bowel and sexual functions. In view of this permanent disabling injury suffered by
plaintiff, the extent of which is not in conflict, an award of approximately $3,100,000 for pain
and suffering is not so excessive as to suggest the intrusion of passion and prejudice upon the
jury's deliberations. See General Electric Co. v. Bush, supra; Wry v. Dial, 503 P.2d 979
(Ariz.App. 1972). The jury's award of damages was proper. The district court's order of
remittitur was error.
THE DEALER
With regard to the appellant's claim of error in the district court's dismissal of the dealer,
respondent Carson City Investors, we note that appellant has chosen to deal summarily with
the issue, citing only secondary authority. Respondents have similarly failed to address the
issue. In view of the strong suggestion that, under the circumstances of this case appellant is
not actually aggrieved by the dismissal of the dealer so long as judgment will be available
from the distributor, we decline to consider this claim of error. Smith v. Timm, 96 Nev. 197,
606 P.2d 530 (1980).
CONCLUSION
The judgment notwithstanding the verdict is reversed. The jury verdict on the issues of
liability and damages is reinstated. The court's orders denying an unconditional new trial and
dismissing Carson City Investors are affirmed.
2

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

2
In view of our opinion validating the jury's verdict as to both liability and damages, it is manifestly clear that
Elizabeth shall not be subjected to a choice between acceptance of a remittitur or new trial as originally ordered
by the district court.
____________
100 Nev. 456, 456 (1984) Lewis v. State
RONALD LEWIS and CALVIN LIGHTFORD, Appellants,
v. THE STATE OF NEVADA, Respondent.
No. 13956
ROOSEVELT MILLER, Appellant, v. THE STATE
No. 14078
August 24, 1984 686 P.2d 219
Consolidated appeals from judgments of conviction in trial for multiple counts of bribery
and conspiracy. Eighth Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Defendants were convicted in the district court of conspiracy to sell heroin and of bribery
in furtherance of conspiracy, and first and third defendants were also convicted of conspiracy
to sell cocaine. On appeal, the Supreme Court held that: (1) defendants were properly charged
and convicted of separate acts of bribery, despite their contention that each of the payments
actually constituted installments upon a single agreement, rather than separate statutory
offenses; (2) affidavit supporting order of authorization permitting gathering of wiretap
evidence supplied necessary factual basis to satisfy statutory requirements; and (3) indictment
charging second defendant with bribery counts was sufficient, despite defendant's contention
that state merely alleged his participation in a conspiracy with third defendant.
Affirmed.
Morgan D. Harris, Public Defender, and Susan Deems Roske, Deputy Public Defender,
Clark County, for Appellant Ronald Lewis.
100 Nev. 456, 457 (1984) Lewis v. State
Charles L. Garner, Las Vegas, for Appellant Calvin Lightford.
Gary E. Gowen, Las Vegas, for Appellant Roosevelt Miller.
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney, James
1. Criminal Law.
Where defendants approached police officers at distinct times with various propositions, and paid police
officers for use of their influence in distinct periods of time, approaches were clearly separate transactions,
and thus, defendants were properly charged and convicted of separate acts of bribery, despite their claim
that payments actually constituted installments upon a single agreement, rather than separate statutory
offenses. NRS 197.020.
Affidavit supporting order of authorization permitting gathering of wiretap evidence, which contained
specific and well-corroborated information, based upon observations of police officers, documenting both
dangers and difficulties of investigation of alleged drug dealers, supplied necessary factual basis to satisfy
statute requiring full and complete statement as to use of other investigative procedures or why such
procedures reasonably appeared to be unlikely to succeed if tried or to be too dangerous in order to
authorize gathering of wiretap evidence. NRS 179.470, subd. 1(c).
3. Criminal Law.
Evidence of participation in a conspiracy may, in itself, be sufficient evidence of aiding and abetting act
in furtherance of conspiracy to subject participant to criminal liability as a principal pursuant to statute.
NRS 195.020.
4. Bribery.
Notwithstanding defendant's contention that state merely alleged his participation in a conspiracy,
indictment charging defendant with bribery counts was sufficient, since evidence of participation in a
conspiracy may, in itself, be sufficient to subject participant to criminal liability as a principal pursuant to
statute. NRS 179.500, 195.020.
5. Criminal Law.
Effectiveness of counsel claims may be reviewed after an evidentiary hearing has been held in which
counsel can testify regarding his performance. U.S.C.A.Const. Amend. 6.
6. Criminal Law.
Defendant's claim that he was deprived of right to effective assistance of counsel would not be considered
on appeal, since counsel's testimony, which was focused on whether transcript of wiretap testimony had
been made available, fell short of constituting hearing required prior to review of effectiveness of counsel.
OPINION
Per Curiam:
Appellants Ronald Lewis, Calvin Lightford and Roosevelt Miller were jointly tried and
convicted of conspiracy to sell heroin and of various counts of bribery in furtherance of
that conspiracy.
100 Nev. 456, 458 (1984) Lewis v. State
Miller were jointly tried and convicted of conspiracy to sell heroin and of various counts of
bribery in furtherance of that conspiracy. Miller and Lewis were also convicted of a
conspiracy to sell cocaine. Their appeals have been consolidated for purposes of argument
and disposition. Of the numerous issues raised, we find that only four merit discussion, and
finding no error, affirm the convictions.
THE FACTS
On August 27, 1980, members of the Las Vegas Metropolitan Police Department arrested
appellant Miller after execution of a search warrant on the Mo-Mart Motel on the west side of
Las Vegas, and the consequent discovery of heroin and a concealable firearm. Miller asked
Detective John Henricksen, the arresting officer, if they could speak in private, and
Henricksen gave him his phone number.
Miller met Detective Henricksen on September 10, 1980. He complained that the police
presence in his area was hurting his heroin business, and offered to pay $150.00 to $200.00
per day to keep the police away. Henricksen said that he would have to check first with his
superior, and thus began Operation Pay Day, an undercover operation in which police
officers appeared to cooperate with requests for protection or favors, in exchange for money.
Over the course of the next two months, Henricksen's superior, Sergeant Albright, met
numerous times with Miller, and on one occasion with Lightford. At their meetings, Miller
made specific requests for favors such as bail reduction for certain individuals and protection
for particular locations such as Lightford's home. Lightford requested that an arrest warrant be
buried. Following each of these meetings, a drop or drops would be made by leaving
various amounts of cash in Albright's car, unless Miller simply delivered the money directly
to Albright during their meeting.
Ronald Lewis was present several times when Sergeant Albright met with Miller. At two
meetings Lewis expressed his concern that they might have an informant, and asked Sergeant
Albright to check certain names. At these meetings Miller described his operation. He
explained that Lightford was his runner, who would bring heroin from California. Lewis
was one of his most trusted employees. The security system included a telephone tie-in
between the Mo-Mart Motel and the residences of Miller and Lightford.
Appellants were tried upon a 32 count grand jury indictment. After five weeks of
testimony, the jury found Miller guilty of thirteen counts of bribery, one count of
conspiracy to sell heroin, and one of conspiracy to sell cocaine.
100 Nev. 456, 459 (1984) Lewis v. State
guilty of thirteen counts of bribery, one count of conspiracy to sell heroin, and one of
conspiracy to sell cocaine. Lightford was found guilty of five counts of bribery, and one count
of conspiracy to sell heroin. Lewis was found guilty of four counts of bribery and conspiracy
to sell heroin and cocaine.
Appellants seek reversal predicated upon a number of assignments of error.
MULTIPLE BRIBERY COUNTS
[Headnote 1]
Appellants contend that they were improperly charged, convicted and sentenced for
multiple counts of bribery because the payments actually constituted installments upon a
single agreement, rather than separate statutory offenses. We cannot agree with this
characterization, either upon the facts or the law.
Appellants were convicted under NRS 197.020, which provides, in pertinent part:
Every person who gives, offers or promises, directly or indirectly, any compensation,
gratuity or reward to a person executing any of the functions of a public officer . . . with
intent to influence him with respect to any act, decision, vote or other proceeding in the
exercise of his powers or functions, shall be punished by imprisonment in the state
prison for not less than 1 year nor more than 10 years, and may be further punished by a
fine of not more than $10,000.
In this case, the police officers were approached at distinct times, with various propositions,
and were paid for the use of their influence in distinct periods of time. These were clearly
separate transactions.
Other courts which have examined similar statutes have concluded that they were intended
to punish, as separate offenses, distinct acts of bribery, or the illegal giving or receiving of
money to or by public officers, at different times, even if for the same general purpose, such
as protection. E.g., Biddle v. Wilmot, 14 F.2d 505 (8th Cir. 1926); Patton v. United States,
42 F.2d 68 (8th Cir. 1930); United States v. Anderson, 509 F.2d 312 (D.C. Cir. 1974), cert.
denied, 420 U.S. 991 (1975); State v. Hebert, 402 So.2d 675 (La. 1981). Cf. United States v.
Alaimo, 297 F.2d 604 (3d Cir. 1961), cert. denied, 369 U.S. 817 (1962) (separate bi-monthly
illegal receipts of money by employee representative from employer constituted separate
offenses).
Under the facts presented the appellants were properly charged and convicted of the
separate acts of bribery.
100 Nev. 456, 460 (1984) Lewis v. State
WIRETAP EVIDENCE
[Headnote 2]
Appellants argue that the affidavit supporting the order of authorization which permitted
the gathering of wiretap evidence in this case did not meet the requirements of NRS
179.470(1)(c).
1
We do not agree.
The statute requires that the affidavit demonstrate either that other investigative
procedures have been tried and failed or that such procedures reasonably appear to be
unlikely to succeed . . . or to be too dangerous if tried. The affidavits in this case contained
specific and well-corroborated information, based upon the observations of police officers,
which documented both the dangers and the difficulties of the investigation. The affidavit
therefore supplied the necessary factual basis to satisfy the requirement of the statute. See
United States v. Turner, 528 F.2d 143 (9th Cir. 1975), cert. denied sub nom. Grimes v. United
States, 423 U.S. 996 (1975) and cert. denied sub nom. Hackett v. United States, 429 U.S. 837
(1976).
CONSPIRATOR LIABILITY
Appellant Lightford challenges his indictment on the ground that in charging him with the
bribery counts, the state merely alleged his participation in a conspiracy with Miller.
2

[Headnotes 3, 4]
NRS 173.075(2) permits incorporation of the allegations of one count in another count of
an indictment. It is settled in this state that evidence of participation in a conspiracy may, in
itself, be sufficient evidence of aiding and abetting an act in furtherance of the conspiracy to
subject the participant to criminal liability as a principal pursuant to NRS 195.020. See
McKinney v. Sheriff, 93 Nev. 70, 560 P.2d 151 (1977); State v. Beck, 42 Nev. 209, 174 P.
714 (1918). We therefore reject this contention.
EFFECTIVENESS OF COUNSEL
[Headnotes 5, 6]
Appellant Lewis raises the claim that he was deprived of the right to the effective
assistance of counsel, see Strickland v. Washington, ___ U.S. ___, 104 S.Ct.
____________________

1
NRS 179.470(1)(c) requires:
A full and complete statement as to whether or not other investigative procedures have been tried and
failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.

2
Lightford's pretrial challenge to the indictment by way of petition for a writ of habeas corpus was denied by
the district court; his subsequent challenge in this Court by way of a petition for a writ of prohibition was denied
without prejudice to his right to raise the issue on this appeal. (Order of March 6, 1981, Case No. 13081).
100 Nev. 456, 461 (1984) Lewis v. State
right to the effective assistance of counsel, see Strickland v. Washington, ___ U.S. ___, 104
S.Ct. 2052 (1984). Effectiveness of counsel may be reviewed after an evidentiary hearing has
been held in which counsel can testify regarding his performance. Gibbons v. State, 97 Nev.
520, 522, 634 P.2d 1214, 1216 (1981).
3
We therefore will not now review this issue. The
remaining assignments of error are meritless.
CONCLUSION
We affirm the convictions of each of the three appellants, without prejudice to Lightford's
right to raise the ineffectiveness of counsel issue in a petition for post-conviction relief.
____________________

3
Although appellant's counsel took the stand and testified as to matters relevant to the effectiveness issue, the
focus of the inquiry was whether transcripts of wiretap testimony had been made available, as required by NRS
179.500. It thus falls short of the hearing contemplated under Gibbons.
____________
100 Nev. 461, 461 (1984) State v. Merolla
THE STATE OF NEVADA, Appellant, v. ALPHONSE MEROLLA, ALPHONSE
MICHAEL MEROLLA, ROBERT P. AMIRA, HENRY MOTTA and
JOSEPH COLOMBO, Jr., Respondents.
No. 14024
August 24, 1984 686 P.2d 244
Appeal from order dismissing indictment, Eighth Judicial District Court, Clark County;
Joseph S. Pavlikowski, Judge.
Defendants were charged with one count of conspiracy, a gross misdemeanor, and 15
counts of obtaining money under false pretenses, a felony. The district court dismissed the
indictment, and state appealed. The Supreme Court held that: (1) the conspiracy charge was
governed by one year statute of limitations, and (2) record showed that grand jury concurred
on felony charges.
Affirmed in part; reversed in part and remanded.
James Tufteland, Deputy District Attorney, Clark County, for Appellant.
Howard Ecker, Las Vegas, for Respondents Merolla, Merolla, Motta and Colombo.
Charles M. Damus, Las Vegas, for Respondent Amira.
Before statute of limitations for criminal offense expires, legislature may amend statute and extend
limitations period without violating ex post facto clause. U.S.C.A.Const. art. 1, 10, cl. 1.
2. Statutes.
Generally, statute must be construed to have only prospective effect, unless contrary legislative intent is
clearly indicated by express terms of statute.
3. Criminal Law.
Criminal statutes of limitations are to be liberally construed in favor of accused.
4. Criminal Law.
Absent express legislative intent to contrary, amendment extending period of limitations for criminal
offense operates prospectively only.
5. Criminal Law.
Conspiracy charge was governed by one year statute of limitations; 1981 amendment to statute of
limitations extending period to two years, effective subsequent to the last date of commission of alleged
conspiracy, applied prospectively only. NRS 171.090.
6. Criminal Law.
Statute tolling statute of limitations when criminal offense is committed in secret manner was not
applicable to conspiracy charge, a gross misdemeanor, as 1981 amendment to tolling statute to include
gross misdemeanors became effective subsequent to last date of commission of alleged conspiracy. NRS
171.090, 171.095.
Record showed grand jury concurred on 15 felony counts of obtaining money under false pretenses as
forewoman, who had stated that they returned true bill on 16 counts of gross misdemeanor conspiracy and
had been corrected by prosecutor in that proposed indictment was one count of conspiracy and 15 counts of
obtaining money under false pretenses, had misspoke herself, in view of fact that during presentation of
state's case grand jury had before them copy of proposed indictment questions posed by grand jurors
indicated familiarity with contents of proposed indictment, evidence presented was focused on commission
of 15 substantive offenses and one conspiracy, forewoman did not dispute that grand jury concurred on 15
felony offenses after being corrected by prosecutor, and forewoman returned indictment in open court
representing that indictment including 15 felony counts accurately reflected product of grand jury's
deliberations.
OPINION
Per Curiam:
The state appeals from an order dismissing an indictment charging respondents with one
count of conspiracy, a gross misdemeanor, and fifteen counts of obtaining money under false
pretenses, a felony. For the reasons hereinafter set forth, we affirm the order as to the
conspiracy count, reverse as to the remaining counts, and remand this matter to the district
court for further proceedings.
remaining counts, and remand this matter to the district court for further proceedings.
The indictment alleged that between January 1 and August 1, 1980, respondents conspired
to obtain money under false pretenses from the Dunes Casino. Pursuant to their conspiracy,
respondents allegedly conspired to present air travel tickets to casino cashiers, and to
represent the tickets as those of select casino patrons entitled to cash reimbursements for their
air fare in return for their patronage. The indictment alleged that respondents' representations
were false, that the tickets had not been used for air travel and the persons named in the
tickets were not patrons entitled to air fare reimbursement, and that respondents fraudulently
obtained cash reimbursements from the Dunes with the assistance of respondent Amira, a
casino employee. Count I of the indictment alleged the conspiracy; Counts II through XVI
alleged, in considerable detail, fifteen felony counts of obtaining money under false pretenses,
each offense involving a specific cash reimbursement for specific air travel tickets.
Respondents moved to dismiss the indictment in its entirety, arguing that the conspiracy
count was barred by the statute of limitations and that the felony counts should be dismissed
because of a certain alleged defect in the grand jury proceedings. The district court granted
the motion and dismissed the indictment.
The state contends that the district court erred by dismissing the conspiracy count as barred
by the statute of limitations. We disagree. The state alleged that the conspiracy took place
between January 1 and August 1, 1980. During that time the statute of limitations for gross
misdemeanors was one year from the date of commission of the offense, under the provisions
of NRS 171.090 then in effect. See Bonnenfant v. Sheriff, 84 Nev. 150, 437 P.2d 471 (1968).
Because the last date of commission of the alleged conspiracy was August 1, 1980, the
conspiracy charge had to have been filed no later than August 1, 1981. The indictment in this
case was not filed until September 18, 1981; the conspiracy charge was thus filed beyond the
one-year period of limitations. The state contends, however, that a subsequent amendment to
NRS 171.090, extending the statute of limitations, applies to this case and permits the charge.
Effective July 1, 1981, before the original one-year limitations period expired, the
legislature amended NRS 171.090 and extended the statute of limitations for gross
misdemeanors to two years. The state argues that this amendment applies retroactively to the
alleged 1980 conspiracy, and extends the period of limitations well beyond the date the
charge was filed. We conclude, however, that the 19S1 amendment to the statute cannot
be construed to apply retroactively to offenses committed before its effective date.
conclude, however, that the 1981 amendment to the statute cannot be construed to apply
retroactively to offenses committed before its effective date.
[Headnote 1]
Before the statute of limitations for a criminal offense expires, a legislature may amend the
statute and extend the limitations period without violating the ex post facto clause. See Falter
v. United States, 23 F.2d 420 (2nd Cir.), cert. denied, 277 U.S. 590 (1928). The question
presented by this case, however, is not whether the legislature had the power to extend the
statute of limitations retroactively, but whether the legislature actually intended to do so by
enacting the 1981 version of NRS 171.090. The amended statute is silent on the question of
its retroactive application.
[Headnotes 2, 3]
Generally, a statute must be construed to have only prospective effect, unless a contrary
legislative intent is clearly indicated by the express terms of the statute. See Hassett v. Welch,
303 U.S. 303 (1938); see also Shepley v. Warden, 90 Nev. 93, 518 P.2d 619 (1974).
Moreover, criminal statutes of limitations are to be liberally construed in favor of the accused.
Toussie v. United States, 397 U.S. 112, 114-15 (1970). In light of these considerations, it has
been held that an amendment to a criminal statute of limitations, silent on the question of its
retroactive application, must be construed as prospective only and cannot apply to an offense
committed before its effective date. United States v. Richardson, 393 F.Supp. 83 (W.D.Pa.
1974), aff'd, 512 F.2d 105 (3rd Cir. 1975).
[Headnotes 4-6]
We agree with the Richardson rationale, and hold that absent an express legislative intent
to the contrary, an amendment extending the period of limitations for a criminal offense
operates prospectively only. Consequently, the conspiracy charge against respondents was
governed by the one-year statute of limitations; since the charge was filed after the expiration
of the one-year limitations period, it was properly dismissed by the district court.
1
[Headnote
7]
[Headnote 7]
____________________

1
We have considered and rejected the state's argument that the broad scope of the 1981 amendment is
somehow indicative of a legislative intent of retroactive application. We also reject the state's argument that even
if the applicable limitations period is one year, NRS 171.095 tolled the running of the statute of limitations. NRS
171.095 provides that when an offense is committed in a secret manner, the limitations period is tolled until
the discovery of the crime. The conspiracy in this case was
[Headnote 7]
The state also contends that the district court erred by dismissing the fifteen felony counts
of obtaining money under false pretenses. We agree and reverse this portion of the order of
dismissal.
The district court based its dismissal on the following colloquy that occurred between the
prosecutor and the forewoman of the grand jury at the conclusion of deliberations:
THE FOREWOMAN: Mr. District Attorney, by a vote of 12 jurors, a true bill has
been returned against the defendants Alphonse Merolla, Alphonse Michael Merolla,
Robert P. Amira, Henry Motta, and Joseph Colombo, Jr. The charge is the crime of
conspiracy to obtain money under Counts I, II, III, IV, V, VI, VII, VIII, IX, X, XI, XII,
XIII, XIV, XV, and XVI, all under the name of obtaining money under false pretenses.
You are instructed to prepare an indictment and submit it to us.
MR. O'NEALE [district attorney]: Madam Foreman [sic] Count I of the proposed
indictment is conspiracy; the remaining counts of obtaining money under false
pretenses.
THE FOREWOMAN: Okay. Count I, conspiracy, and the remaining counts is [sic]
obtaining money under false pretenses.
The district court apparently agreed with respondents' contention that this statement
evidenced a failure of the grand jury to concur on the fifteen felonies, and in fact suggested
they actually concurred on sixteen counts of gross misdemeanor conspiracy. On the state of
this record, respondents' position is without merit.
The record reveals, and the parties agree, that during the presentation of the state's case the
grand jurors had before them a copy of the proposed indictment, alleging one count of
conspiracy and fifteen felony counts of obtaining money under false pretenses. The questions
posed by the grand jurors during the presentation indicate their familiarity with the contents
of the proposed indictment. The evidence presented was clearly focused on the commission
of fifteen substantive offenses and one conspiracy, not sixteen separate conspiracies.
____________________
arguably committed in a secret manner. During the time the conspiracy was allegedly committed and arguably
discovered, however, NRS 171.095 applied only to felonies and misdemeanors. It was amended in July of 1981
to include gross misdemeanors within its purview. Since gross misdemeanors were excluded from the tolling
statute at all times relevant to the alleged conspiracy, the state may not avail itself of its provisions.
one conspiracy, not sixteen separate conspiracies. We conclude, as the state contends that the
forewoman of the grand jury merely misspoke herself and was duly corrected by the
prosecutor. At the conclusion of the quoted colloquy, the forewoman did not dispute that the
grand jury concurred on the fifteen felony offenses. Moreover, when the forewoman returned
the indictment in open court, she represented to the district judge that the indictment,
including the fifteen felony counts, accurately reflected the product of the grand jury's
deliberations.
In light of these facts, we find no merit to respondents' position that the record does not
show the grand jury concurred on the felony charges.
2
We therefore conclude that the district
court's dismissal of these counts was error.
The order dismissing the indictment is affirmed as to Count I, the conspiracy count, and
reversed as to Counts II through XVI, the remaining felony counts. This matter is remanded
to the district court with instructions to reinstate the indictment, without the conspiracy
charge, and to conduct further proceedings thereon.
____________________

2
Respondents argue that the brevity of the period of grand jury deliberation adds support to their position.
This argument is meritless. The brevity of deliberation, under the facts of this case, does not suggest in any way
a lack of understanding of the contents of the proposed indictment, or of the thrust of the evidence presented.
____________
100 Nev. 466, 466 (1984) Randall v. Salvation Army
ANNE RANDALL, ALICE KEEFER and THOMAS J. RANDALL, Appellants,
v. THE SALVATION ARMY, Respondent.
No. 14309
August 24, 1984 686 P.2d 241
Appeal from a special jury verdict in a will contest and from an order denying a motion for
judgment notwithstanding the verdict or a new trial. Eighth Judicial District Court, Clark
County; Michael Wendell, Judge.
An action was brought challenging the validity of a holographic will offered for probate.
The district court denied a motion for judgment notwithstanding the verdict or a new trial,
and parties opposing the will appealed. The Supreme Court held that: (1) two-page
holographic will, for which existing page one was substituted for another page one which
was destroyed, was valid; {2) trial court did not abuse its discretion in excluding evidence
that testator had converted his stepdaughter's estate in 1954; and {3) trial court did not
err in excluding from the courtroom as nonparty witnesses on an objection to the probate
of the will in question parties seeking to probate another will of the testator.
ing page one was substituted for another page one which was destroyed, was valid; (2) trial
court did not abuse its discretion in excluding evidence that testator had converted his
stepdaughter's estate in 1954; and (3) trial court did not err in excluding from the courtroom
as nonparty witnesses on an objection to the probate of the will in question parties seeking to
probate another will of the testator.
Affirmed.
Wiener, Waldman & Gordon, Las Vegas, for Appellants.
Lionel, Sawyer & Collins, Las Vegas, for Respondent.
1. Wills.
Fact that an instrument bears more than one date does not necessarily make its date uncertain or
otherwise prevent it from being probated as a holographic will. NRS 133.090, subd. 1.
2. Wills.
Two-page holographic will, for which existing page one was substituted for another page one which was
destroyed, was valid, where appearance of the will indicated that testator intended that the two pages
physically form one document, both pages of the will were found together in testator's safety deposit box
after his death and copies were found in his home safe, and testator meant to integrate the two pages into
one document and intended to have it accepted as his will. NRS 133.090, subd. 1.
3. Wills.
Trial court, in will contest case, did not abuse its discretion in ruling that evidence that testator had
converted his stepdaughter's estate in 1954 was too remote, more prejudicial than probative, and would
involve jury in a collateral matter outside the issue of testamentary capacity. NRS 48.035, subd. 1.
4. Action; Trial.
Term consolidation is used in different senses; one use is where several actions are combined into one,
lose their separate identities, and become a single action, and another use is where several actions are tried
together but each retains its separate character.
5. Action.
An order consolidating actions does not necessarily work a merger of the issues and render the litigants
parties to each other's suits.
6. Action.
In will contest case involving petitions to probate three wills of testator, trial court did not err in
excluding from the courtroom as nonparty witnesses on an objection to the probate of the third will those
parties seeking to probate the first will, since there was no merger of the petitions to probate the three wills.
Supreme Court declined to consider arguments regarding asserted errors that were unsupported by
citation to relevant authority or supported only by citation to legal encyclopedias.
OPINION
Per Curiam:
This is an appeal from a verdict in a will contest. Appellants challenged the validity of a
holographic will offered for probate by respondent. The bases for their challenge are that the
will was improperly executed and that the testator lacked testamentary capacity at the time the
will was executed. Both issues were decided against appellants in the district court. We
affirm these decisions.
Appellants, Anne and Thomas Randall and Alice Keefer, are the children and stepchild of
the testator, James P. Randall. When the elder Mr. Randall died in February of 1978, he left
behind evidence of at least three wills. The first of these, the children's will, was a copy of a
formal will dated October 7, 1969, in which he bequeathed his entire estate to the three
children. Appellants petitioned to have this copy admitted to probate as a lost will. The
second will is a holographic instrument dated November 2, 1975, in which Randall left the
bulk of his estate to his sister, Madge Jacobs. Mrs. Jacobs petitioned for the admission of this
will to probate, but only in the event that the later Salvation Army will was declared
invalid. The third will, and the one with which this appeal is primarily concerned, is a
two-page holograph. This will was offered for probate by respondent, the Salvation Army,
which is the chief beneficiary under its terms.
The Salvation Army will consists of two handwritten pieces of paper, entirely in the
handwriting of the deceased and signed at the bottom of the second page. The first page is
dated July 8, 1978, and the second page July 6, 1978. This will was found in Randall's safety
deposit box after his death, and a copy of it was found in his home safe.
Appellant Anne Randall filed an opposition to the admission of this will to probate,
contending that it did not comply with the requirements of NRS 133.090(1) in that it was
neither dated nor executed properly.
1
She also claimed that her father lacked testamentary
capacity at the time he executed the document. Anne filed a motion for summary judgment,
seeking to have the will declared invalid on the basis of the alleged defects in its execution.
This motion was denied.
____________________

1
A holographic will is one that is entirely written, dated and signed by the hand of the testator himself.
It is subject to no other form, and may be made in or out of this state and need not be witnessed.
The petitions for probate of the children's will and the Salvation Army will were
consolidated for trial. However, by order of the court, no evidence pertaining to the children's
1969 will was to be heard unless the later Salvation Army will was found invalid.
After several days of testimony, the question of Randall's testamentary capacity at the time
he executed the Salvation Army will was submitted to the jury for a special verdict. The jury
unanimously found that Randall had enjoyed testamentary capacity when he wrote the will.
Appellants first assign error to the trial court's failure to grant summary judgment
declaring the will invalid because of the allegedly defective execution of the document. As
noted, page one of the will is dated two days later than page two. In addition, the last three
lines of page one are condensed, apparently to accommodate the writing on the existing page
two. Appellants agree that the most logical explanation for the appearance of the documents
is that the two sheets of paper were prepared on different days, the now existing page one
presumably having been substituted for another page one which was destroyed.
[Headnote 1]
Appellants contend that the existence of the two dates on the will actually renders the will
dateless. We do not agree. The fact that the instrument bears more than one date does not
necessarily make its date uncertain or otherwise prevent it from being probated as a
holographic will. See, e.g., In re Moody's Estate, 257 P.2d 709, 713 (Cal.App. 1953), in
which the court noted that [i]t is not essential that the entire [holographic] will be written on
the same date; its writing need not have been a single, continuous performance.
Neither does the fact that the signature appears only on page two of the will persuade us
that it was not executed properly. In the case of In re Dumas Estate, 210 P.2d 697 (Cal. 1949),
the court held that additions may be made to a holographic will, if done in the testator's
handwriting, without the necessity of resigning or redating, on the theory that the old
signature and date are adopted and the several writings are integrated into one document.
[I]ntegration
. . . occurs when there is no reference to a distinctly extraneous document, but it is clear that
two or more separate writings are intended by the testator to be his will. . . . Thus several
writings, connected by sequence of thought . . . folded together . . . or physically forming one
document . . . have been admitted to probate as constituting an holographic will. 210 P.2d at
700.
[Headnote 2]
These general rules are clearly applicable in this case. The appearance of the will indicates
that the testator intended that the two pages physically form one document. Further, both
pages of the will were found together in Randall's safety deposit box after his death, and
copies were found in his home safe. It is clear that the testator meant to integrate the two
pages into one document, and intended to have it accepted as his will. Accordingly, we
conclude that the court did not err in denying summary judgment on the basis of the alleged
defects in execution of the document.
[Headnote 3]
During trial on the question of Randall's testamentary capacity, appellants sought to
introduce evidence that Randall had converted his stepdaughter's estate in 1954. The trial
court ruled that the evidence was too remote, more prejudicial than probative, and would
involve the jury in a collateral matter outside the issue of testamentary capacity. This decision
was within the discretion of the trial court and will not be disturbed on appeal absent an
abuse, not here apparent. NRS 48.035(1); Southern Pac. Trans. Co. v. Fitzgerald, 94 Nev.
241, 577 P.2d 1234 (1978).
The final question which must be addressed is whether it was reversible error for the trial
court to exclude Thomas Randall and Alice Keefer from the courtroom during trial on Anne
Randall's objection to the probate of the Salvation Army will. Appellants contend that it
was, on the theory that the consolidation of the petitions for probate made them parties to
Anne's suit.
[Headnotes 4-6]
The term consolidation is used in different senses. One use is where several actions are
combined into one, lose their separate identities and become a single action; another is where
several actions are tried together but each retains its separate character. Herstein v. Kemker,
94 S.W.2d 76 (Tenn.App. 1936). An order consolidating actions does not necessarily work a
merger of the issues and render the litigants parties to each other's suits. See Mikulich v.
Carner, 68 Nev. 161, 228 P.2d 257 (1951); Wineglass Ranches, Inc. v. Campbell, 473 P.2d
496 (Ariz.App. 1970). In the instant case, there was no merger of the actions, and the trial
court did not err in excluding Thomas and Alice from the court room as nonparty witnesses.
[Headnote 7]
Appellants' arguments regarding other asserted errors are unsupported by citation to
relevant authority or are supported only by citation to legal encyclopedias.
only by citation to legal encyclopedias. We therefore decline to consider them. See Smith v.
Timm, 96 Nev. 197, 606 P.2d 530 (1980); Holland Livestock v. B & C Enterprises, 92 Nev.
473, 553 P.2d 950 (1976).
Affirmed.
____________
100 Nev. 471, 471 (1984) Smith v. State
WILLIAM CHESTER SMITH, Appellant, v. THE
No. 14515
August 24, 1984 686 P.2d 247
Appeal from judgment of conviction of sexual assault, Third Judicial District Court, Lyon
County; Mario G. Recanzone, Judge.
Defendant was convicted in the district court of sexually assaulting his stepdaughter, and
he appealed. The Supreme Court held that prejudicial error resulted from admission of prior
consistent statements of the victim.
Paul J. Malikowski, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City; William Rogers, District Attorney, Lyon
County, for Respondent.
1. Criminal Law; Witnesses.
Where prior consistent statements made by victim of alleged sexual assault were made at a time when the
victim had a motive to fabricate, admission of the statements was error, and, even though prosecutor did
not emphasize the prior consistent statements during closing argument, where the independent evidence of
defendant's guilt was far from overwhelming and was virtually insignificant without the testimony of the
victim, where there was no physical evidence of sexual assault, and there were no eyewitnesses to the
offense, and where one of the prior consistent statements was introduced through testimony by law
enforcement officer, the victim's credibility was bolstered to the detriment of the defense and thus the error
was not harmless.
2. Criminal Law.
For improper admission of prior consistent statements to be prejudicial error, it is not necessary that
prosecutor emphasize the prior consistent statements during closing argument; prejudice may result solely
from the presentation of prior consistent statements to the jury.
OPINION
Per Curiam:
Appellant William Chester Smith was convicted of sexually assaulting his stepdaughter
and sentenced to twenty years in prison.
100 Nev. 471, 472 (1984) Smith v. State
assaulting his stepdaughter and sentenced to twenty years in prison. Because prejudicial error
resulted from the admission of prior consistent statements of the victim, we reverse and
remand.
The trial of this matter was essentially a contest of credibility between the victim and
appellant. Smith testified and denied the assault; his defense was that the victim had
fabricated the charge for various reasons developed by the evidence. Over defense objections,
the district court admitted two sets of the victim's prior consistent statements to rebut the
defense charge of fabrication. See NRS 51.035.
1
One set of statements was admitted through
the testimony of the victim's girlfriend, who repeated the victim's statements concerning
incriminating comments appellant allegedly made after the assault. The other set was
admitted through the testimony of a sheriff's deputy, who repeated a detailed account of the
sexual assault given him by the victim during his investigation.
Appellant now contends that the district court erred by admitting the prior consistent
statements. We agree.
NRS 51.035 provides that a witness' prior consistent statements are admissible to rebut a
charge of recent fabrication. A witness' credibility thus assailed may be rehabilitated by the
admission of prior statements consistent with his or her trial testimony. We have twice held,
however, that to be admissible a prior consistent statement must have been made at a time
when the witness had no motive to fabricate. Daly v. State, 99 Nev. 564, 665 P.2d 798
(1983); Gibbons v. State, 97 Nev. 299, 629 P.2d 1196 (1981). If prior consistent statements
are made when the witness had a motive to fabricate, the statements do not rehabilitate
credibility but only reinforce trial testimony claimed to be false. In both the Daly and Gibbons
cases, we found error when the prior consistent statements of a sexual assault victim were
admitted, because the statements were made at a time when the victim had the same motive to
fabricate she allegedly had at the time of trial.
[Headnotes 1, 2]
The record in this case reveals, and the state so conceded at oral argument, that the prior
consistent statements were made at a time when the victim had a motive to fabricate.
____________________

1
Hearsay means a statement offered in evidence to prove the truth of the matter asserted unless:
2. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the
statement, and the statement is:
(a) Inconsistent with his testimony;
(b) Consistent with his testimony and offered to rebut an express or implied charge against him of
recent fabrication or improper influence or motive. . . .
100 Nev. 471, 473 (1984) Smith v. State
at a time when the victim had a motive to fabricate. We are therefore compelled to conclude,
in light of the rule expressed in Gibbons and reaffirmed in Daly, that the admission of the
victim's prior consistent statements was error.
2
It remains for us to determine whether the
error is harmless or mandates reversal of the judgment.
In both Gibbons and Daly we found prejudicial error. In Gibbons, we stressed that the
state's case rested entirely on the credibility of the victim, and that Gibbons was so
intoxicated at the time of the alleged offense that he could neither confirm nor deny its
commission. We also referred to the prosecutor's highlighting of the prior consistent
statements in closing argument to the jury. We concluded that in light of these factors, the
admission of the statements resulted in an improper and prejudicial advantage to the state.
97 Nev. at 302, 629 P.2d at 1197. In Daly, we stressed that the prosecutor emphasized the
corroborative character of the prior consistent statements in his closing argument, that Daly
denied the offense, and that the state's case rested entirely on the victim's credibility.
The state now argues that this case differs from Daly and Gibbons because the prosecutor
did not emphasize the prior consistent statements during closing arguments. We have never
ruled, however, that emphasis in closing argument is a necessary prerequisite to a finding of
prejudicial error in this context. Prejudice may result solely from the presentation of prior
consistent statements to the jury; we are not persuaded that the absence of emphasis at closing
argument, under the circumstances of this case, diminishes the prejudice caused by the
erroneous admission of the statements.
The state also argues that the error is harmless because, unlike Gibbons and Daly, the
prosecution's case did not rest entirely on the credibility of the victim. The state has
referred us to what it considers to be evidence of guilt independent of the erroneously
admitted statements and the victim's testimony. We conclude, however, that the presence of
some independent evidence in this case does not dictate a finding of harmless error.
The independent evidence of guilt is far from overwhelming, and is virtually insignificant
without the testimony of the victim. The state was unable to present any physical evidence of
a sexual assault, and there were no eyewitnesses to the offense. Even though the state's case
did not rest entirely on the victim's credibility, the presence of independent but minimal
evidence of guilt will not render the error harmless.
____________________

2
The state's reliance on Crew v. State, 100 Nev. 38, 675 P.2d 986 (1984), is misplaced. Although we upheld
the admission of a witness' prior consistent statements to rehabilitate his credibility, we did so on a ground
unrelated to the rule espoused by Daly and Gibbons. See 675 P.2d at 990.
100 Nev. 471, 474 (1984) Smith v. State
dence of guilt will not render the error harmless. As in Daly, the trial was a contest of
credibility between appellant and the victim. The admission of the prior consistent
statements, especially through the testimony of a law enforcement officer, bolstered the
victim's credibility to the detriment of the defense. Although in Daly and Gibbons we
appeared to couch the test for harmless error in terms of whether the state's case rested
entirely on the victim's credibility, our underlying concern is whether, in the circumstances
of a specific case, the admission of the statements caused an improper and prejudicial
advantage to the state. Gibbons v. State, supra at 302, 629 P.2d at 1197. Under the
circumstances of the case now before us, we cannot conclude that the error was harmless.
The judgment of conviction is reversed and this matter is remanded to the district court for
a new trial.
____________
100 Nev. 474, 474 (1984) Peterson v. Colonial Ins. Co.
CATHERINE DIANE PETERSON, Appellant, v. COLONIAL INSURANCE COMPANY
OF CALIFORNIA, A California Corporation, Respondent.
No. 14806
August 24, 1984 686 P.2d 239
Appeal from judgment of dismissal; Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Passenger on motorcycle appealed judgment of the district court dismissing suit seeking to
recover benefits from insurer as unnamed insured under uninsured/underinsured motorist
coverage on motorcycle. The Supreme Court held that passenger on insured motorcycle was
not entitled to recover benefits under both bodily injury and uninsured/underinsured
motorist coverages afforded by the policy.
Affirmed.
Leavitt and Leavitt, Las Vegas, for Appellant.
Edwards, Hunt, Pearson & Hale, Las Vegas, for Respondent.
Insurance.
Passenger on insured motorcycle was not entitled to recover benefits under both bodily injury and
uninsured/underinsured motorist coverages afforded by policy.
OPINION
Per Curiam:
This is an appeal from a judgment of dismissal in an insurance coverage dispute.
ance coverage dispute. The dispositive issue is whether appellant Peterson is entitled to
recover benefits under both the bodily injury and the uninsured/underinsured motorist
coverages afforded by a single insurance policy. We hold that she is not, and we therefore
affirm.
Peterson suffered personal injuries while riding as a passenger on a motorcycle that
collided with another vehicle. Asserting that the driver of the motorcycle had been careless,
Peterson made a claim against him under an insurance policy issued by respondent (Colonial)
to the owner of the motorcycle.
1
Colonial paid Peterson $15,000 under that portion of the
insurance policy that provided coverage for liability for bodily injuries. The amount of
$15,000 represented the maximum benefits available under this particular form of coverage
provided by the insurance policy.
In light of her allegation that her damages exceeded $15,000, Peterson also sought to
recover benefits from Colonial as an unnamed insured under the uninsured/underinsured
motorist coverage also afforded by the insurance policy. Colonial, however, refused to pay
Peterson any uninsured/underinsured motorist benefits. Peterson therefore filed this lawsuit
against Colonial. Colonial successfully moved to dismiss the suit, and this appeal followed.
Peterson argues that under both statutory and case law, Colonial cannot limit its exposure
to one item of coverage provided by the insurance policy, i.e., tortfeasor liability for bodily
injury. Specifically, Peterson cites NRS 687B.145(2) for the proposition that she is also
entitled to recover uninsured/underinsured motorist benefits. At all times relevant to this case
the statute read as follows:
Insurance companies doing business in this state must offer uninsured motorist
coverage equal to the limits of bodily injury coverage sold to the individual
policyholder. Uninsured motorist coverage must include a provision which enables the
insured to recover any amount of damages for bodily injury from his insurer to which
he is legally entitled but which exceeds the limits of the bodily injury coverage carried
by the owner or operator of the other vehicle.
2
Peterson argues that the object of this
statute is to promote full recovery for damages by innocent accident victims.

____________________

1
Peterson claimed that the driver of the motorcycle was a permissive user of that vehicle.

2
An amended version of NRS 687B.145(2) was enacted by the Legislature in 1983. The amended version
took effect after the district court issued the judgment of dismissal in this case, and thus is not pertinent to this
lawsuit.
Peterson argues that the object of this statute is to promote full recovery for damages by
innocent accident victims. See Bond v. Commercial Union Assur. Co., 407 So.2d 401, 407
(La. 1981) (op'n on reh'g).
Peterson also cites, among other Nevada cases, Sullivan v. Dairyland Insurance Co., 98
Nev. 364, 649 P.2d 1357 (1982), for the proposition that an individual may recover multiple
forms of insurance coverage under a single policy. In Sullivan, an automobile passenger
incurred damages that greatly exceeded the driver's liability coverage. We held that the
passenger could recover under both the liability and medical expenses coverages provided by
the driver's policy.
In response, Colonial argues that NRS 687B.145(2) contemplates that an individual cannot
recover both bodily injury benefits and uninsured/underinsured motorist benefits under the
same policy. Colonial suggests that the philosophy behind uninsured/underinsured motorist
insurance is to give the prudent individual the opportunity to procure protection for himself or
others against the tortfeasor who has inadequate insurance. Masters v. Lester, 366 So.2d 471
(Fla. 1979). In this vein, Colonial notes that Peterson could obtain her own
uninsured/underinsured motorist coverage.
We agree with Colonial's position. Given the object of uninsured/underinsured motorist
coverage, if we concluded that Peterson could recover both uninsured/underinsured benefits
and liability or bodily injury benefits under a single policy, we would essentially be
increasing the bodily injury coverage provided by the Colonial policy. We decline to so
rewrite the policy.
Our conclusion is supported by NRS 687B.145(2). The language and purpose of the statute
clearly contemplate the tortious involvement of a party and vehicle other than the insured and
the insured's vehicle.
We also believe that Sullivan v. Dairyland Insurance Co., supra, and other cases holding
that an individual may be protected by multiple forms of first-person coverage under a single
insurance policy, are distinguishable from the case at hand. Sullivan, for example, held that
medical expenses coverage could be cumulative to liability coverage under a single policy.
Given the different purpose and philosophy underlying medical expense coverage and
uninsured/underinsured motorist coverage, our reasoning and holding here does not conflict
with Sullivan. In Sullivan, we held that the offset clause in the policy regarding medical
expenses served only to assure against the payment of duplicative damages by the insurer.
Otherwise, medical coverage is akin to first-person accident insurance for which the insured
has paid a separate premium.
which the insured has paid a separate premium. Rando v. Calif. St. Auto Ass'n, 100 Nev. 310,
684 P.2d 501 (Adv. Opn. No. 64, June 26, 1984). Uninsured motorist coverage has also been
the subject of permitted stacking under our opinions, but only in the context of first-person
coverage available to an insured and other specified beneficiaries injured by another who is
uninsured or underinsured. See Allstate Ins. Co. v. Maglish, 94 Nev. 699, 586 P.2d 313
(1978); State Farm Mut. Auto. v. Christensen, 88 Nev. 160, 494 P.2d 552 (1972); United
Services Auto. Ass'n v. Dokter, 86 Nev. 917, 478 P.2d 583 (1970). At no time have we
suggested that uninsured motorist coverage could be added to third-party bodily liability
coverage under the same policy for the purpose of increasing the latter coverage.
We affirm the district court's judgment of dismissal.
Affirmed.
____________
100 Nev. 477, 477 (1984) Sheriff v. Aesoph
SHERIFF, NYE COUNTY, NEVADA, Appellant, v.
GERALD JOSEPH AESOPH, Respondent.
No. 14972
August 24, 1984 686 P.2d 237
Appeal from order granting a pretrial petition for writ of habeas corpus, Fifth Judicial
District Court, Nye County; Robert G. Legakes, Judge.
Sheriff appealed from grant of pretrial petition for writ of habeas corpus by the district
court as to one count of kidnapping with use of deadly weapon. The Supreme Court held that
information setting forth two alternative and distinct theories of prosecution, namely, that
defendant allegedly committed kidnapping with either intent to hold victim for ransom or
with intent to rob the victim, did not fail to give defendant adequate notice of the charge
against him, but, instead, provided adequate notice to him that he had to be prepared to
defend at trial against both of those theories.
Brian McKay, Attorney General, Carson City; A. D. Demetras, District Attorney, Nye
County, for Appellant.
Goodman, Terry, Stein & Quintana, Las Vegas, for Respondent.
Indictment and Information.
Information setting forth two alternative and distinct theories of prosecution, namely, that defendant had
allegedly committed kidnapping with either intent to hold victim for ransom or with intent to rob the
victim, did not fail to give defendant adequate notice of the charge but, instead, provided adequate notice
that defendant had to be prepared to defend at trial against both of those theories. NRS 173.075, subds.
1, 2.
OPINION
Per Curiam:
The district court granted respondent Aesoph's pretrial petition for a writ of habeas corpus
as to one count of kidnapping with the use of a deadly weapon. The Sheriff of Nye County
appealed from the district court's order granting the writ, contending that the district court's
order was in error. We agree.
In its order granting the writ, the district court stated that it agreed with Aesoph's
contention that the kidnapping count in the information failed to give Aesoph adequate notice
of the charge against him as is required under NRS 173.075(1)
1
and Simpson v. District
Court, 88 Nev. 654, 503 P.2d 1225 (1972). Aesoph's contention in this regard centered on the
fact that the information set forth two alternative and distinct theories of prosecution since it
alleged that he had committed the kidnapping with either the intent to hold the victim for
ransom, or, alternatively, with the intent to rob the victim. Aesoph contended that the
allegations of alternative theories rendered the information inadequate and insufficient since
the state would have then been able to change its theory of prosecution at will during the
course of trial, in violation of Simpson v. District Court, supra.
Aesoph's reliance on Simpson is misplaced. In Simpson, we were concerned with a
situation in which the state failed to allege any theory of prosecution whatsoever in a murder
indictment which had been filed against the defendant. Here, however, the state alleged two
specific theories of prosecution with respect to the kidnapping count. This clearly provided
adequate notice to Aesoph that he had to be prepared to defend at trial against both of these
theories of prosecution. Cf. NRS 173.075(2);
2
State v. Kirkpatrick, 94 Nev. 628, 584 P.2d
670 {197S) {where one offense may be committed by one or more specified means,
accused must be prepared to defend against all means alleged).
____________________

1
NRS 173.075(1) provides in part that:
The indictment or the information shall be a plain, concise and definite written statement of the
essential facts constituting the offense charged.

2
NRS 173.075(2) provides in part that:
It may be alleged in a single count that the means by which the defendant committed the offense are
unknown or that he committed it by one or more specified means.
(1978) (where one offense may be committed by one or more specified means, accused must
be prepared to defend against all means alleged). See also Simpson v. District Court, supra,
88 Nev. at 658 n.4, 503 P.2d at 1228 (NRS 173.075(2) permits state to allege that the exact
manner or means of committing an offense are unknown).
3

We therefore conclude that the district court erred in granting the writ. The district court's
order is reversed and the matter is remanded to the district court for trial on the merits.
____________________

3
We decline to rule at this time concerning whether a charging document alleging numerous alternative
theories of prosecution or means by which a crime has been committed would be invalid as failing to provide an
accused with adequate notice; the holding in our opinion is instead limited to the specific factual situation at
hand in which only two alternative theories of prosecution have been alleged.
____________
100 Nev. 479, 479 (1984) Wilson v. Pacific Maxon, Inc.
GINA WILSON, aka REINA FUCHIGAMI, Appellant, v. PACIFIC MAXON, INC.,
a California Corporation; EDWARD MAXWELL and BETTY MAXWELL, Respondents.
No. 15016
August 24, 1984 686 P.2d 235
Appeal from money judgment. Third Judicial District Court, Churchill County; Howard D.
McKibben, Judge.
Purchasers brought action against seller for rescission of contract for sale of operating
brothel. Seller counterclaimed for foreclosure. The district court entered judgment for seller,
and purchasers appealed. The Supreme Court, 96 Nev. 867, 619 P.2d 816, affirmed in part,
reversed in part, and remanded. On remand, the district court entered judgment rescinding the
contract and, after offsetting for damages to the premises, awarded remainder of purchaser
price to purchasers. Seller appealed. The Supreme Court held that: (1) amount of offsets
awarded was supported by the evidence; (2) trial court could consider seller's fraud and
misrepresentation with respect to altered appraisal report in awarding offset for punitive
damages; and (3) trial court erred by awarding 12% prejudgment interest when statutory rate
was 7% at time complaint was filed.
Affirmed, as modified.
[Rehearing pending August 9, 1985]
Ronald J. Logar, Reno, for Appellant.
Gary R. Silverman, Mary Anne Decaria, Reno, for Respondents.
In purchasers' action against seller for rescission of contract for sale of operating brothel, trial court's
findings in support of conclusion to offset damages to the premises from the purchase price to be returned
to purchasers was supported by substantial evidence.
2. Damages.
Trier of fact, in assessing punitive damages, may consider all circumstances attending particular
transaction involved, including any mitigating circumstances which may operate to reduce without wholly
defeating such damages.
3. Damages.
In offsetting $10,000 in punitive damages from amount to be awarded purchasers of operating brothel
upon rescission of the contract for sale of the brothel, trial court did not err in considering seller's fraud and
misrepresentations with respect to altered appraisal report.
4. Interest.
Interest to be awarded and included in judgment shall be determined in accordance with applicable
statutes and not necessarily by current statutory rate in effect on date judgment is entered.
5. Interest.
In purchaser's action against seller for rescission of contract for sale of operating brothel, trial court erred
in awarding purchasers 12% prejudgment interest on amount of purchase price to be returned to them
where statutory rate was 7% at time suit was filed. NRS 99.040.
OPINION
Per Curiam:
This is an appeal from a judgment awarding respondents $76,329.00 plus twelve percent
(12%) interest from October 17, 1977. For the reasons set forth hereinafter, the judgment is
affirmed, as modified.
Respondents Pacific Maxon, Inc. and Edward and Betty Maxwell (hereinafter referred to
collectively as PMI) purchased an operating brothel from appellant Gina Wilson. At the time
of purchase, the brothel was fully furnished and stocked with food and liquor. After PMI
learned that Wilson had altered the appraisal report on the business, it instituted this action
seeking rescission of the parties' sales contract and restitution of the purchase price. Wilson
counterclaimed to foreclose on the property, which was then in default.
The district court, despite finding that Wilson had in fact intentionally misrepresented the
value of the business by altering the appraisal report, ordered PMI to surrender the premises
to Wilson due to the default.1 The court reasoned that PMI had not justifiably relied on
the altered report, because PMI had independent indications of the value of the business.
to Wilson due to the default.
1
The court reasoned that PMI had not justifiably relied on the
altered report, because PMI had independent indications of the value of the business. PMI
appealed that judgment to this Court.
While the appeal was pending, PMI returned the brothel to Wilson. By all accounts, the
premises were in a shambles after PMI vacated. Witnesses described torn out bathroom and
lighting fixtures, burned drapes and bathtubs, holes in the walls, missing furniture and linens,
exhausted food and liquor supplies and open gas valves which had filled the premises with
propane gas.
After PMI's appeal was heard by this Court, we reversed in part and remanded the case in
Pacific Maxon, Inc. v. Wilson, 96 Nev. 867, 619 P.2d 816 (1980). Upon remand, the district
court ordered rescission of the parties' contract as well as briefing on the issues of return of
PMI's down payment and Wilson's offsets thereto. The case was tried before Judge McKibben
on those limited issues. The court concluded that PMI had deposited $153,493.00 in
connection with the purchase of the brothel. The court also determined that Wilson was
entitled to the following offsets: $30,000.00 for the fair rental value of the premises during
PMI's occupation; $37,164.00 for damages incurred restoring the premises to their pre-sale
condition; and $10,000.00 for punitive damages for willful and malicious removal of property
from and damage to the brothel. Wilson, therefore, was deemed to owe PMI $76,329.00 plus
prejudgment interest at twelve percent (12%) from October 17, 1977. Wilson now appeals
that judgment.
[Headnote 1]
Wilson first contends that the evidence supports her entitlement to increased offsets
representing compensatory damages. We have carefully reviewed the record on appeal and
have determined that there is substantial evidence in the record to support the findings and
judgment of the district court. Indeed, the trial judge is to be commended for his painstaking
effort in balancing the parties' competing claims. The findings and judgment in this respect,
having substantial support in the record, will not be set aside on appeal. Pace v. Linton, 97
Nev. 103, 625 P.2d 84 (1981).
[Headnotes 2, 3]
Wilson's second contention is that the district court erred by reducing her offset for
punitive damages due to her fraudulent alteration of the appraisal report.
____________________

1
The district court judge who initially heard this case is not the same judge who rendered the judgment
presently before this Court.
alteration of the appraisal report. After finding that PMI willfully, maliciously and without
legal justification removed property from and damaged property in the brothel before
vacating the premises, the court determined punitive damages were appropriate in the amount
of $10,000.00. The court added that the damages would have been more substantial in the
absence of Wilson's fraud and misrepresentations with respect to the altered appraisal report.
Wilson primarily argues that with regard to punitive damages our stated policies to punish
the wrongdoer . . . and to deter others from acting in similar fashion, Bader v. Cerri, 96 Nev.
352, 358, 609 P.2d 314, 318 (1980), would be offended if punitive damages were subject to
reduction by reason of any fault of the injured party. We disagree. We hold that the trier of
fact, in assessing punitive damages, may consider all the circumstances attending the
particular transaction involved, including any mitigating circumstances which may operate to
reduce without wholly defeating such damages. Hannahs v. Noah, 158 N.W.2d 678, 683
(S.D. 1968), quoting 22 Am.Jur.2d Damages 263; accord Rinaldi v. Aaron, 314 So.2d 762,
763 (Fla. 1975). The award of $10,000.00 as punitive damages, moreover, is not so
inadequate as to shock the conscience of this Court. Truckee-Carson Irrigation District v.
Baber, 80 Nev. 263, 268, 392 P.2d 46, 48 (1964).
[Headnotes 4, 5]
Wilson's third contention is that the district court erred by awarding PMI prejudgment
interest at the rate of twelve percent (12%) when the statutory rate was seven percent (7%) at
the time PMI filed its complaint. Wilson is correct. The twelve percent (12%) rate and the
prior eight percent (8%) rate were made applicable only to actions filed after July 1, 1981 and
July 1, 1979, respectively.
2
PMI filed its complaint in 1977 when NRS 99.040 provided for
seven percent (7%) interest upon judgments rendered by a court on all money from the
time it becomes due.
3
Although NRS 99.040 did not specifically allow awards for
prejudgment interest, the statute's provision for payment of interest "upon all money from
the time it becomes due" contemplates judgments granting interest from the time money
is due until the date of judgment.
____________________

2
See 1981 Nev. Stats. ch. 739, 6, at 1859; 1979 Nev. Stats. ch. 448, 6, at 831.

3
In Bing Construction Company of Nevada v. Vasey-Scott Engineering Company, Inc., 100 Nev. 72, 74 n. 1,
674 P.2d 1107, 1108 n. 1 (1984), we stated that: The interest to be awarded under NRS 99.040 is that which is
statutorily provided for at the time the judgment is entered. By way of clarification, this statement merely
reflects the principle that the interest to be awarded and included in the judgment shall be determined in
accordance with applicable statutes and not necessarily by the current statutory rate in effect on the date
judgment is entered.
for payment of interest upon all money from the time it becomes due contemplates
judgments granting interest from the time money is due until the date of judgment. We have
recognized, moreover, awards of prejudgment interest when the principal amount, due date
and interest rate have been determined. Paradise Homes, Inc. v. Central Surety and Insurance
Corporation, 84 Nev. 109, 116, 437 P.2d 78, 83 (1968). In the instant case, substantial
evidence supports the district court's findings that Wilson, after receiving credit for offsets,
owed PMI the principal amount of $76,329.00 and that this sum was due commencing
October 17, 1977. As we have explained, the statutory interest rate was seven percent (7%).
The judgment entered below, therefore, must be modified to provide for prejudgment interest
at the rate of seven percent (7%) instead of twelve percent (12%). We have considered
Wilson's other contentions and conclude that they are without merit.
Accordingly, this case is affirmed as modified and remanded to the district court for entry
of judgment consistent with this opinion.
____________
100 Nev. 483, 483 (1984) City of Reno v. Nevada First Thrift
THE CITY OF RENO, Appellant, v. NEVADA
FIRST THRIFT, Respondent.
No. 15159
August 24, 1984 686 P.2d 231
Appeal from order granting writ of mandamus. Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
Construction lender petitioned for writ of mandamus requiring city to issue business
license and certificate of occupancy for apartments owned by it following foreclosure on
builder. The district court granted writ, and city appealed. The Supreme Court held that: (1)
where building permit had been issued, vested rights against changes in zoning laws existed
after permittee incurred considerable expense in reliance thereon, and city could not
retroactively apply modified building rules and zoning changes in denying business license
and certificate of occupancy; (2) mandamus was proper remedy; and (3) order granting writ
was not barred by prior denial, on basis of builder's failure to comply with building code, of
builder's petition for writ of mandamus, as prior decision was not final judgment on
merits.
builder's petition for writ of mandamus, as prior decision was not final judgment on merits.
Affirmed.
Robert L. Van Wagoner, City Attorney, Reno, for Appellant.
C. Nicholas Pereos, Lance VanLydegraf, and Paul C. Giese, Reno, for Respondent.
When building permit has been issued, vested rights against changes in zoning laws exist after permittee
has incurred considerable expense in reliance thereon.
Where building permit was issued and builder completed apartments, thus incurring considerable expense
in reliance on existing zoning laws, vested rights against changes in zoning laws existed and city could not
deny business license and certificate of occupancy for apartments based on retroactive enforcement of
reinterpreted zoning laws or assertion of previously waived building code infractions.
3. Mandamus.
City's denial of business license and certificate of occupancy for apartments which were constructed with
building permit in reliance on zoning laws then in existence was properly corrected by writ of mandamus.
4. Mandamus.
District court did not exceed its jurisdiction in issuing writ of mandamus to check city's arbitrary and
capricious conduct in refusing to issue business license and certificate of occupancy for apartments which
were constructed with building permit in reliance on existing zoning regulations.
5. Judgment.
For res judicata or collateral estoppel to be applied, issue decided in prior adjudication must be identical
with one presented in action in question, there must have been final judgment on merits on issue, and party
against whom plea is asserted must have been party or in privity with party to prior adjudication.
6. Judgment.
Order issuing writ of mandamus to construction lender following foreclosure on apartment project was
not barred by prior denial to builder of writ of mandamus for same purpose of compelling city to issue
business license and certificate of occupancy on completed apartments, where prior denial of equitable
relief was based on unclean hands doctrine for builder's failure to comply with building code and was, thus,
not final judgment on merits.
OPINION
Per Curiam:
This is an appeal from an order granting a writ of mandamus requiring appellant City of
Reno (City) to issue a business license and certificate of occupancy for the Buena Vista
Apartments {Buena Vista) owned by respondent Nevada First Thrift {NFT).
license and certificate of occupancy for the Buena Vista Apartments (Buena Vista) owned by
respondent Nevada First Thrift (NFT). For the reasons set forth hereinafter, the order granting
the writ is affirmed.
Buena Vista is a common kitchen complex consisting of thirty-two bedrooms and eight
kitchens. Each kitchen serves four bedrooms. The apartments are situated on a lot of
approximately 11,000 square feet; zoning is R-3, requiring 1,000 square feet per dwelling
unit.
Vari-build, the original owner and developer of the Buena Vista project, submitted
construction plans to the City. The City approved the project and Vari-build received a
building permit on February 17, 1981. One month later, NFT closed a construction loan with
Vari-build to finance the project.
After two months of construction, a neighbor near the project complained to the City that
Buena Vista constituted a violation of the zoning laws. The assistant City attorney responded
with a memo to the mayor, City council and City manager concluding that the project
complies with all applicable zoning code requirements. Regarding dwelling unit density, he
also opined, citing Reno Municipal Code 16.12.030(b)(15) and (16), that the project
complies with the definition of living unit, because [i]n this type of project one counts the
number of kitchens not the number of bedrooms, to determine dwelling units.
1
He further
indicated that the City's ordinances regarding common kitchens units in major projects
were inapplicable to Buena Vista because it contained only thirty-two bedroomsless than
half the number required for major project status.
2
City enacted new ordinances in 1982
numbering common kitchen dwelling units based on the sum of the bedrooms.
____________________

1
R.M.C. 16.12.030(b) allowed common kitchens to be shared by four persons living as a single
housekeeping unit:
(15) Dwelling' means:
. . . .
(E) Living unita building or portion thereof containing one kitchen designed and/or used to
house not more than one family, including necessary employees of such family.
(16) Family' means one person living alone, or two or more persons related by blood, marriage, or
legal adoption, or group not exceeding four persons living as a single housekeeping unit.

2
R.M.C. 16.12.050 provided in part that each bedroom in a common kitchen major project' constitutes a
dwelling unit:
(h) Major Projects Categories Requiring Special Use Permits.
(1) Definition. A major project means any proposed development which falls within any one or
more of the following categories:
(A) Multiple dwellings (apartments, condominiums, etc.) or transient occupancy facilities (hotels,
motels, apartment hotels,
Three months after project commencement, the apartments were eighty-five percent
completed. At that time, neighbors instituted administrative proceedings which halted
construction. Vari-build obtained an injunction against the City to remove the stopwork
order. Soon thereafter the apartments were completed.
The City's Board of Adjustment determined at a subsequent public hearing that common
kitchen density would no longer be determined by the number of kitchens, but by the number
of bedrooms. One week later, the City issued Vari-build a certificate of occupancy for Buena
Vista. Vari-build thereupon applied for a business license for the apartments. Shortly
thereafter, the City council affirmed the Board of Adjustment's interpretation dealing with
common kitchen apartments and denied Vari-build's application for a business license.
After exhausting administrative remedies without success, Vari-build filed suit in district
court and sought an order compelling issuance of a business license based on the doctrine of
estoppel. The district court agreed that an estoppel would be appropriate if relief were to be
accorded solely on the common kitchen issue, but then concluded that equitable relief was not
available because the builder had unclean hands with respect to certain building code
violations. Judge Breen determined that, despite approval of the building code violations by
City authorities either on the original plans or after construction, the violations in light of the
builder's lengthy experience had sufficiently soiled his hands to warrant a denial of equity.
Because Vari-build was unable to rent the Buena Vista Apartments, it had no income to
cover debt service and therefore defaulted on its loan agreement with NFT. NFT foreclosed
on the project and commenced this action seeking a writ of mandamus.
3

After a show cause hearing before the district court, Judge Bowen granted the writ of
mandamus ordering the City to issue a business license and certificate of occupancy to NFT
for the Buena Vista Apartments. Having complied with the writ, the City now appeals the
order.
____________________
vacation time sharing projects, etc.) containing eighty units or more, or phased developments, additions
or expansions which would result in a cumulative total of eighty units in the development. In any
development utilizing common kitchens, each bedroom shall be considered as one unit. . . .

3
NFT also applied unsuccessfully for a business license. The City denied NFT the license because the project
violated zoning density provisions. NFT did not appeal the denial of the license by the City since it had been told
that the City would never issue a business license for Buena Vista's use as common kitchen apartments.
[Headnotes 1, 2]
City's first contention is that it does not owe NFT any duty which could provide a basis for
a claim for relief. City maintains that even if it acted negligently in enforcing and interpreting
the zoning and building codes, any such negligence would not be actionable by NFT since
any duty of care relating thereto exists only as to the public in general and not to any
individual party seeking relief based on estoppel. We disagree. It would be an abuse of
discretion in the instant case and contrary to principles of equitable estoppel and the vested
rights doctrine if the City were allowed to retroactively enforce reinterpreted zoning laws or
to assert previously waived building code infractions after funds had been loaned and
construction nearly completed. We hold that when a building permit has been issued, vested
rights against changes in zoning laws exist after the permittee has incurred considerable
expense in reliance thereupon.
4
See Town of Paradise Valley v. Gulf Leisure Corporation,
557 P.2d 532, 540 (Ariz.App. 1976); see also annot. 89 A.L.R.3d 1051 (1979). As was the
court in Town of Paradise Valley, we are persuaded by the position succinctly summarized in
Deer Park Civic Association v. City of Chicago, 106 N.E.2d 823, 825 (Ill.App. 1952):
The general rule is that any substantial change of position, expenditures, or incurrence
of obligations under a building permit entitles the permittee to complete the
construction and use the premises for the purpose authorized irrespective of subsequent
zoning or changes in zoning. 8 McQuillin Municipal Corporations, 272 (3rd ed.).
It would also offend sound public policy if cities were allowed to retroactively apply modified
building rules and zoning changes so late in the life of a project. Construction lenders would
have small assurance, indeed, in the credit worthiness of Nevada projects approved by
governmental authority.
[Headnote 3]
We have previously held, moreover, that such abuse is properly corrected by a writ of
mandamus.
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.
____________________

4
This is not a case where the building permit was initially denied and the appellant had actual or constructive
knowledge of zoning changes which were pending or had been legislatively mandated before appellant acquired
a property interest in the project in question. Cf. Kings Castle Limited Partnership v. Washoe County Board of
County Commissioners, 88 Nev. 557, 502 P.2d 103 (1972); Williams v. Griffin, 91 Nev. 743, 542 P.2d 732
(1975).
enjoins as a duty resulting from office. State ex rel. List v. County of Douglas, 90 Nev.
272, 524 P.2d 1271 (1974); Armstrong v. State Bd. of Examiners, 78 Nev. 495, 376
P.2d 492 (1962). That writ also is available to correct a manifest abuse of discretion by
the governing body, and occasionally has been so utilized in zoning cases. State ex rel.
Johns v. Gragson, 89 Nev. 478, 515 P.2d 65 (1973); Henderson v. Henderson Auto, 77
Nev. 118, 359 P.2d 743 (1961).
Board of County Commissioners v. Dayton Development Company, 91 Nev. 71, 75, 530 P.2d
1187, 1189 (1975). The remedy employed by the district court, therefore, was correct and
legally sound.
[Headnote 4]
City's second contention is that the district court exceeded its jurisdiction and acted as a
super board of adjustment when it issued the writ of mandamus. While we have said that
courts are not super boards of adjustment, we have nevertheless recognized that they can
properly act as judicial overseers, drawing the limits beyond which local regulation may not
go. Coronet Homes, Inc. v. McKenzie, 84 Nev. 250, 256, 439 P.2d 219, 223 (1968). More
importantly, we have held that where the decision of an administrative body is arbitrary,
oppressive, or accompanied by manifest abuse, this court will not hesitate to interfere. State
ex rel. Johns v. Gragson, 89 Nev. 478, 483, 515 P.2d 65, 68 (1973). The district court here
properly acted to check such arbitrary and capricious conduct by the City.
[Headnotes 5, 6]
Finally, City contends that Judge Breen's denial of Vari-build's petition for a writ of
mandamus should have barred Judge Bowen's order granting the same relief by reason of res
judicata or collateral estoppel. In order for res judicata or collateral estoppel to be applied
here, each of three questions must be answered affirmatively: Was the issue decided in the
prior adjudication identical with the one presented in the action in question? Was there a final
judgment on the merits? Was the party against whom the plea is asserted a party or in privity
with a party to the prior adjudication? Paradise Palms Community Association v. Paradise
Homes, 89 Nev. 27, 31, 505 P.2d 596, 599 (1973), cert. denied, 414 U.S. 865 (1973).
Because our review of Judge Breen's prior opinion convinces us that it was not a final
judgment on the merits, we conclude, without analyzing the other two elements, that Judge
Bowen's subsequent order was not barred by res judicata or collateral estoppel.
In his opinion, Judge Breen clearly recognized that the City knowingly approved the
building code violations and acted unfairly by attempting to retroactively enforce the new
interpretation of common kitchen density. Judge Breen nevertheless decided that a builder
with twenty years of experience should have adhered to the building code despite City's
approval of the violations and, therefore, should not receive equitable relief. We, of course,
have no occasion to pass on the propriety of that ruling. Judge Breen's decision was
influenced more by Vari-build's unclean hands than the merits of the case. The primary issues
relating to the merits of the case were not adjudicated by reason of the builder's unclean
hands. The prior adjudication was not a final judgment on the merits. We have considered the
City's other contentions and have concluded that they likewise cannot be sustained.
For the reasons stated above, we have determined that the City's appeal of the district
court's order granting a writ of mandamus is without merit. Accordingly, the order is
affirmed.
____________
100 Nev. 489, 489 (1984) Bowen v. Warden
WAYNE L. BOWEN, Appellant, v. WARDEN OF THE
NEVADA STATE PRISON, Respondent.
No. 15240
August 24, 1984 686 P.2d 250
Appeal from order dismissing post-conviction petition for writ of habeas corpus, First
Judicial District Court, Carson City; Michael E. Fondi, Judge.
Petitioner appealed from order of the district court dismissing his post-conviction petition
for writ of habeas corpus. The Supreme Court held that challenge to punitive segregation
spoke only to conditions and not validity of petitioner's confinement, and thus did not raise
claim for relief cognizable on habeas corpus.
Affirmed.
Thomas E. Perkins, State Public Defender, and Norman Y. Herring, Special Deputy State
Public Defender, Carson City, for Appellant.
Brian McKay, Attorney General, and Brooke A. Neilsen, Deputy Attorney General, Carson
City, for Respondent.
100 Nev. 489, 490 (1984) Bowen v. Warden
Habeas Corpus.
Challenge to punitive segregation spoke only to conditions and not validity of petitioner's confinement,
and thus did not raise claim for relief cognizable on habeas corpus.
OPINION
Per Curiam:
Inmate Wayne L. Bowen appeals from an order of the district court dismissing his
post-conviction petition for a writ of habeas corpus. The petition challenged the
constitutionality of a prison disciplinary proceeding which resulted in Bowen's being removed
from the general prison population and placed in punitive segregation. The district court
dismissed the petition on the ground that the challenge to punitive segregations spoke only to
the conditions and not the validity of Bowen's confinement, and thus did not raise a claim for
relief cognizable on habeas corpus. We agree and affirm.
We have repeatedly held that a petition for writ of habeas corpus may challenge the
validity of current confinement, but not the conditions thereof. See Director, Dep't Prisons v.
Arndt, 98 Nev. 84, 640 P.2d 1318 (1982); Rogers v. Warden, 84 Nev. 539, 445 P.2d 28
(1968); Rainsberger v. Leypoldt, 77 Nev. 399, 365 P.2d 489 (1961), cert. denied, 368 U.S.
516 (1962). In Rogers, we held that a claim of brutal treatment at the hands of prison officials
was not cognizable on a habeas petition, because the claim spoke to the conditions and not
the validity of confinement. In Arndt, we left open the specific question raised by this appeal,
whether the imposition of a qualitatively more restrictive type of confinement within the
prison, such as punitive segregation, may be challenged by a petition for writ of habeas
corpus. We now hold that such a challenge speaks only to the conditions of confinement and
therefore may not be raised by a habeas corpus petition. See Rogers v. Warden, supra.
The district court correctly ruled that the instant claim for relief was not cognizable in a
habeas corpus proceeding. The order dismissing the petition is affirmed.
1

____________________

1
We need not reach appellant's ancillary claims that the disciplinary proceeding led to a loss of work time
credit and to a subsequent denial of parole. Since the district court found no evidentiary basis for either claim,
we need not decide the issue of whether these claims for relief were themselves properly raised in a habeas
proceeding.
____________
100 Nev. 491, 491 (1984) City of Las Vegas v. O'Donnell
CITY OF LAS VEGAS, NEVADA, Petitioner, v. THOMAS J. O'DONNELL, District Judge,
Eighth Judicial District Court of the State of Nevada, Respondent.
No. 15503
August 24, 1984 686 P.2d 228
Original petition for writ of certiorari.
Defendant was convicted in a Las Vegas Municipal Court of driving under the influence of
intoxicating liquor, and he appealed. The district court remanded, determining that municipal
court erred in admitting evidence of intoxilyzer breath test, and city petitioned for writ of
certiorari. The Supreme Court held that: (1) district court was without jurisdiction to remand
case to municipal court for trial de novo, since it was required by statute to hold a trial de
novo to determine for itself question of defendant's guilt or innocence; (2) failure of state to
preserve defendant's breath samples used in intoxilyzer breath analysis test did not deny
defendant due process; and (3) state law did not require suppression of test results due to
failure to preserve breath samples, since law enforcement agents were not acting in bad faith
in failing to preserve samples and since defendant was unable to demonstrate that he had been
prejudiced by loss of the samples.
Petition granted.
George F. Ogilvie, Jr., City Attorney, and Mark Zalaoras, Deputy City Attorney, Las
Vegas, for Petitioner.
Chris Maglaras, Jr., Las Vegas, for Respondent.
1. Municipal Corporations.
District court was without jurisdiction to remand prosecution for driving under the influence of
intoxicating liquors to municipal court for trial de novo following its determination that municipal court
erred in determining that evidence of intoxilyzer tests was not to be admitted at trial, since district court
was required by statute to hold a trial de novo to determine for itself question of defendant's guilt or
innocence. NRS 266.565.
Due process does not require the state to save breath samples which are taken from a defendant for use in
an intoxilyzer test. U.S.C.A.Const. Amends. 5, 14.
Failure of state to save breath samples which were taken from defendant for use in an intoxilyzer test, the
results of which state sought to introduce at defendant's trial, did not deny defendant due process, since
failure to preserve breath samples would not unduly prejudice his case; only arguable relevance
that breath samples might have had would be for purposes of impeaching final test
results, and such results could be impeached by various other methods, such as
introduction of evidence to demonstrate ways in which machine might malfunction
and by cross-examining person who conducted defendant's test to determine
whether any operator error might have occurred.
prejudice his case; only arguable relevance that breath samples might have had would be for purposes of
impeaching final test results, and such results could be impeached by various other methods, such as
introduction of evidence to demonstrate ways in which machine might malfunction and by cross-examining
person who conducted defendant's test to determine whether any operator error might have occurred.
U.S.C.A.Const. Amends. 5, 14; NRS 484.389, subd. 3.
4. Criminal Law.
In prosecution for driving while under the influence of intoxicating liquor, state law did not require that
intoxilyzer test results be suppressed, since law enforcement agents were not acting in bad faith in failing to
preserve defendant's breath samples used in conducting intoxilyzer breath analysis test, and since defendant
was unable to demonstrate that he had been prejudiced by loss of breath samples. NRS 484.379.
In prosecution for driving while under the influence of intoxicating liquor, defendant's claim that
admission of intoxilyzer tests without preservation of breath would violate right to equal protection of law
because samples of blood or urine tests were allegedly routinely preserved was not properly before
Supreme Court, since such requirements had not been imposed by either Legislature or Supreme Court and
since defendant failed to present any facts in record indicating whether law enforcement agents in state did
in fact routinely preserve such samples. U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
David Furniss, real party in interest, was originally charged in a Las Vegas municipal court
proceeding with one count of driving under the influence of intoxicating liquor in violation of
NRS 484.379. Prior to trial, Furniss moved to have evidence of an intoxilyzer breath analysis
test suppressed on the ground that the state had failed to preserve samples of his breath at the
time of the testing. The motion was denied, and Furniss was ultimately found guilty as
charged.
Furniss then filed a notice of appeal from the judgment of conviction to the Eighth Judicial
District Court pursuant to NRS 266.565.
1
According to the provisions of that statute, the
district court was required to conduct a trial de novo on the question of Furniss' guilt. The
district court, however, instead determined, on the basis of the written pleadings presented to
him by the parties, that the municipal court which had originally conducted Furniss' trial
had erred in admitting the evidence of the intoxilyzer breath tests.
____________________

1
NRS 266.565 provides that:
The practice and proceedings in the municipal court shall conform, as nearly as practicable, to the
practice and proceedings of justices' courts in similar cases except that an appeal perfected transfers the
action to the district court for trial anew. (Emphasis added.)
him by the parties, that the municipal court which had originally conducted Furniss' trial had
erred in admitting the evidence of the intoxilyzer breath tests. The district court then
remanded the case to the municipal court for a trial de novo in that court, with instructions
that the evidence of the intoxilyzer tests were not to be admitted at the trial.
In the present petition, the City of Las Vegas seeks a determination by this court that the
district court exceeded its jurisdiction in remanding the case to the municipal court rather
than holding a trial de novo itself. The City also contends that the district court erred in
determining that the evidence of intoxilyzer tests should be suppressed at trial. We agree with
the City with respect to both contentions.
[Headnote 1]
First, the district court was clearly without jurisdiction to remand the case to the municipal
court for a trial de novo. The district court was instead required to hold a trial de novo to
determine for itself the question of Furniss' guilt or innocence.
2
See NRS 266.565, supra,
note 1. Upon remand, the district court shall conduct such a trial.
[Headnotes 2, 3]
Second, the evidence of the intoxilyzer breath tests will be admissible at the trial on this
matter. Contrary to Furniss' argument, due process does not require the state to save breath
samples which are taken from a defendant for use in an intoxilyzer test. See California v.
Trombetta, 52 U.S.L.W. 4744 (U.S. June 11, 1984). As the Court in Trombetta noted, the
failure to preserve the breath samples will not unduly prejudice a defendant's case; the only
arguable relevance that breath samples might have to a defendant's case would be for
purposes of impeaching the final intoxilyzer test reports, by attempting to show that the tests
somehow incorrectly calculated the alcohol level in the sample. As the Supreme Court noted,
however, intoxilyzer test results can be impeached by various other methods, such as by the
introduction of evidence to demonstrate to the jury ways in which an intoxilyzer machine
might malfunction, and by cross-examination of the person who conducted the defendant's
test in an attempt to determine whether any operator-error might have occurred.
____________________

2
Although the district court purported to have conducted a trial based on the stipulated facts given by the
parties, the court clearly did not make a determination as to Furniss' guilt or innocence. Instead, the parties filed
points and authorities concerning the propriety of admitting the intoxilyzer tests into evidence, and the court's
decision appears to have been based solely on the finding that the municipal court committed error in admitting
the evidence at Furniss' trial.
Id.; see generally NRS 484.389(3) (defendant is entitled upon request to full information
concerning the blood-alcohol test to which he submitted).
Additionally, like California, Nevada has enacted extensive regulations to insure the
accuracy of the machines and methods used in breath testing, as well as to insure that only
qualified persons are allowed to administer such tests. See NRS 484.388, 484.3882,
484.3884, 484.3886, 484.389. Although these regulations were adopted by the Nevada
Legislature subsequent to the administration of the intoxilyzer test in the present case, Furniss
will nevertheless be protected from the possibility of the introduction of inaccurate test results
in his upcoming trial by NRS 484.389(4), which provides that blood-alcohol tests are not
admissible against a defendant unless it can be shown that the law enforcement agency which
administered the test calibrated the testing device and otherwise maintained it as required by
the regulations of the committee on testing for intoxication. Moreover, Furniss has failed to
include any facts in the record to persuade this court that Nevada's general procedure of
administering the intoxilyzer tests is in any way defective or any more likely to lead to
inaccurate results than were the procedures under consideration in Trombetta, and we
perceive no reason to distinguish the two cases in this regard.
[Headnotes 4, 5]
Finally, as in Trombetta, there is no indication that the law enforcement agencies in this
case were in any way acting in bad faith by not preserving the breath samples used in this
method of testing, and it appears that they were instead simply following their standard
procedures. Since the law enforcement agents were not acting in bad faith, and since Furniss
has been unable to demonstrate to this court that he has been prejudiced by the loss of the
breath samples, Nevada law also does not require that this evidence be suppressed. Cf. Boggs
v. State, 95 Nev. 911, 604 P.2d 107 (1979) (motion to dismiss for loss of evidence may only
be granted where defendant can show that the state was acting in bad faith or that the
defendant was prejudiced by the loss). Since neither due process nor Nevada law requires the
preservation of breath samples, we conclude that the district court erred in ruling that the
intoxilyzer test results should be suppressed.
3
On remand, the test results will be admissible
in evidence.
____________________

3
Furniss also contends that the admission of the intoxilyzer tests without preservation of his breath samples
would violate his right to the equal protection of the law because when blood or urine tests in this state are
conducted on DUI defendants, samples from those tests are allegedly routinely preserved. Neither the Nevada
Legislature nor this court, however,
Accordingly, we grant the petition for writ of certiorari. The district court's order is hereby
vacated, and the matter is remanded to the district court for trial on the merits in accordance
with the dictates of this opinion.
____________________
has ever imposed the requirement that such samples must be preserved, and neither party has presented any facts
in the record concerning whether law enforcement agents in this state do in fact routinely preserve such samples.
Accordingly, we must conclude that this issue is not properly before this court at this time. Cf. Garcia v. Dist.
Court, 21st Jud. Dist., 589 P.2d 924, 929 n.3 (Colo. 1979) (where Colorado legislature specifically required
preservation of blood and urine samples, equal protection was found to have been violated where similar
requirement was not imposed with respect to preservation of breath samples).
We also note that Furniss made an alternative argument in the district court to the effect that NRS
484.381(2)(c) creates an unconstitutional conclusive presumption of a defendant's guilt. See generally
Sandstrom v. Montana, 442 U.S. 510 (1979). The district court, however, did not rule on this question in its
order purporting to remand this case to the municipal court, and Furniss has failed to address this issue in his
answer to the present petition; as such, we find it unnecessary to address it at this time.
____________
100 Nev. 495, 495 (1984) Vix v. State of Wisconsin
JAMES VIX, Appellant, v. STATE OF WISCONSIN,
ex rel. LONNIE L. VIX, Respondent.
No. 15154
August 24, 1984 686 P.2d 226
Appeal from order in a URESA proceeding awarding child support payments, Eighth
Judicial District Court, Clark County; Stephen Huffaker, Judge.
Former husband appealed from order of the district court ordering him to pay his former
wife $175 per month for child support. The Supreme Court held that where prior modified
divorce decree had maintained former husband as custodial parent, former husband's financial
obligations could not be altered in proceeding under the Uniform Reciprocal Enforcement of
Support Act, brought after former wife took child, refused to return him, and received county
aid for his support, to require former husband to pay child support; such a change could only
be made in proceeding on motion to modify the original divorce decree or subsequent custody
order.
Reversed.
Darrell Lincoln Clark, Las Vegas, for Appellant.
Robert J. Miller, District Attorney, and Sally L. Loehrer, Deputy District Attorney, Clark
1. Parent and Child.
In a proceeding under the Uniform Reciprocal Enforcement of Support Act, district court has jurisdiction
only to order enforcement of pre-existing duty of child support and is prohibited from modifying or
nullifying pre-existing duty to any extent. NRS 130.280.
2. Divorce.
Where prior modified divorce decree had maintained former husband as custodial parent, former
husband's financial obligations could not be altered in proceeding under the Uniform Reciprocal
Enforcement of Support Act, brought after former wife took child, refused to return him, and received
county aid for his support, to require former husband to pay child support; such a change could only be
made in proceeding on motion to modify the original divorce decree or subsequent custody order. NRS
130.280, 130.290.
OPINION
Per Curiam:
This is an appeal from an order of the district court ordering appellant James Vix to pay
his former wife, Lonnie Vix, $175 a month in child support payments. For the reasons set
forth below, we conclude that the district court was without jurisdiction to enter this order,
and we therefore reverse the district court's order in this case.
James Vix and Lonnie Vix were divorced in Las Vegas in 1976, with the district court
awarding custody of their only child, John Vix, to James. Lonnie subsequently brought a
motion in the district court to modify the divorce decree, seeking, among other things, to gain
custody of the child and to obtain a support order for the child's maintenance. In 1978, the
district court entered a modified divorce decree, reaffirming the initial award of custody of
the child to James. Meanwhile, in violation of the custody award, Lonnie took the child to
Wisconsin, and refused to return him to James.
While in Wisconsin, Lonnie received some $14,000 in county aid for the support of the
child. In 1980, the State of Wisconsin filed an action in the Eighth Judicial District Court of
Nevada under the Uniform Reciprocal Enforcement of Support Act (URESA), NRS 130.010
et seq., to obtain reimbursement for its past aid in support of the Vix child, and for an order
setting James' future support obligations. The district court ultimately determined that the
State of Wisconsin was not entitled to reimbursement, but nevertheless entered an order
awarding prospective child support to Lonnie in the amount of $175 a month.
prospective child support to Lonnie in the amount of $175 a month.
James has appealed from this order, contending that the district court was without
jurisdiction to award child support in the present URESA proceeding. We agree.
[Headnotes 1, 2]
In a URESA proceeding, a district court only has jurisdiction to order the enforcement of a
pre-existing duty of child support, and furthermore is prohibited from modifying or nullifying
a pre-existing duty to any extent. See NRS 130.280;
1
Salins v. Gulick, 100 Nev. 125, 676
P.2d 801 (1984); State ex rel. Welfare Div. v. Hudson, 97 Nev. 386, 632 P.2d 1148 (1981);
Foster v. Marshman, 96 Nev. 475, 478, 611 P.2d 197, 199 (1980). Cf. Peot v. Peot, 92 Nev.
388, 551 P.2d 242 (1976) (Nevada statutes prior to 1981 permitted modification of a support
award in a URESA proceeding, but only if specifically provided by the URESA court). Here,
the duties of the parties with respect to the child's support were already determined by the
district court which reaffirmed James' right to custody of the child; in that proceeding, the
court determined that James was to be the custodial parent of the child and sub silencio
determined that James was to have full financial responsibility for the child, with Lonnie
having no duty of support. In the URESA proceeding, however, the court altered these
obligations, in essence changing James' status to that of a non-custodial parent owing partial
child support in the specific sum of $175 a month to Lonnie; thus, not only did the court's
URESA order purport to alter James' financial obligations to Lonnie, it essentially changed
the custodial status of the parties.
Such changes in the custodial status and financial obligations of the parties were clearly
outside of the scope of a URESA proceeding. See NRS 130.280, supra note 1; NRS 130.290;
2
Salins v. Gulick, supra; State ex rel. Welfare Div. v. Hudson, supra. Such changes may
only be made in a proceeding in which a party has brought a motion to modify the original
divorce decree or any subsequent custody or support orders.
____________________

1
1. A support order made by a court of this state pursuant to this chapter does not nullify and is not
nullified by a support order made by a court of this state pursuant to any other law or by a support order
made by a court of any other state pursuant to a substantially similar law or any other law, regardless of
priority of issuance.

2
1. The provisions of this chapter apply only with respect to proceedings for the enforcement of duties
of support and do not apply to the determination of any collateral issue such as . . . custody. . . .
divorce decree or any subsequent custody or support orders. See State ex rel. Welfare Div. v.
Hudson, 97 Nev. at 389 n.1, 632 P.2d at 1150. Cf. NRS 425.360(2) (Nevada Welfare
Division may act in the capacity of a party in seeking modification of a district court's support
order).
Since the present proceeding was brought in the context of a URESA action only, the
district court's order was entered in excess of its jurisdiction. Accordingly, the district court's
order is hereby reversed.
____________
100 Nev. 498, 498 (1984) Hargrove v. State
THOMAS RANDALL HARGROVE, Appellant, v. THE
No. 14551
August 24, 1984 686 P.2d 222
Appeal from order denying a post-conviction motion to withdraw a guilty plea, Ninth
Judicial District Court, Douglas County; Howard D. McKibben, Judge.
Defendant, convicted of making a bomb threat pursuant to a guilty plea, filed a
post-conviction motion to withdraw his guilty plea. The district court denied his motion, and
defendant appealed. The Supreme Court held that: (1) a post-conviction order denying a
motion to withdraw a guilty plea is appealable as an order refusing a new trial, under statute
providing that the state or a defendant may appeal from orders granting a motion to dismiss, a
motion for acquittal or a motion in arrest of judgment, or granting or refusing a new trial; (2)
defendant's motion to withdraw his guilty plea, which alleged that he entered his plea without
effective assistance of counsel, that his plea was the product of his fear of an habitual
criminal sentence, and that he was in fact innocent of bomb threat charge and could so
establish by newly discovered evidence, consisted primarily of bare and naked claims for
relief, unsupported by any specific factual allegations that would, if true, have entitled
defendant to withdrawal of his plea, and thus, his motion did not entitle defendant to an
evidentiary hearing; and (3) trial court correctly denied defendant's motion to withdraw his
guilty plea.
Affirmed.
Menchetti & Herring, Incline Village, for Appellant.
Brian McKay, Attorney General, Carson City; Brent T. Kolvet, District Attorney, and
Michael P. Gibbons, Deputy District Attorney, Douglas County, for Respondent.
1. Criminal Law.
Except in certain special proceedings, appeals in criminal cases are governed by statute providing that the
state or the defendant may appeal from orders granting a motion to dismiss, a motion for acquittal, a
motion in arrest of judgment, or granting or refusing a new trial. NRS 177.015.
2. Criminal Law.
Both a motion for a new trial and a motion to withdraw a guilty plea may be made after conviction. NRS
176.165, 176.515.
3. Criminal Law.
A defendant whose guilt is predicated upon a verdict may raise a post-conviction challenge to the
verdict's validity by means of a motion for new trial, and has the right to appeal from an order refusing such
relief. NRS 177.015.
4. Criminal Law.
If a defendant challenges a guilty plea before entry of judgment, an order denying withdrawal of the plea
is reviewable on direct appeal from the judgment as an intermediate order in the proceedings. NRS
177.045.
5. Criminal Law.
An order denying a post-conviction motion to withdraw a plea of guilty is appealable as an order
refusing a new trial, within meaning of statute providing that the state or the defendant may appeal from
orders granting a motion to dismiss, a motion for acquittal, or a motion in arrest of judgment, or granting or
refusing a new trial. NRS 177.015, 177.015, subd. 1(b).
6. Criminal Law.
Defendant's post-conviction motion to withdraw his plea of guilty to charges of making a bomb threat,
which stated he was denied effective assistance of counsel, that his plea was product of his fear of an
habitual criminal sentence, and that he was in fact innocent of the bomb threat charge and could so
establish by newly discovered evidence, consisted primarily of bare or naked claims for relief, unsupported
by any specific factual allegations that would, if true, have entitled him to withdrawal of his plea, and thus,
defendant's motion did not entitle him to an evidentiary hearing. NRS 176.165, 202.840.
7. Criminal Law.
To the extent that defendant's motion to withdraw his guilty plea to charge of making a bomb threat
raised allegations supported by factual claims, such factual claims were belied by the record, especially
transcript of change of plea canvass; under such circumstances, defendant's factual claims did not entitle
him to an evidentiary hearing on his motion. NRS 176.165, 202.840.
8. Criminal Law.
A defendant seeking post-conviction relief is not entitled to an evidentiary hearing on factual allegations
belied or repelled by the record. NRS 177.315, 177.385.
9. Criminal Law.
Defendant's contention that he pled guilty to making a bomb threat out of fear of an aggravated sentence
as an habitual criminal, offered to support his motion to withdraw his guilty plea, did not
entitle him to an evidentiary hearing on his allegations, where record revealed that
defendant's plea was knowing and voluntary.
offered to support his motion to withdraw his guilty plea, did not entitle him to an evidentiary hearing on
his allegations, where record revealed that defendant's plea was knowing and voluntary. NRS 176.165,
202.840.
10. Criminal Law.
Question of an accused's guilt or innocence is generally not at issue in a motion to withdraw a guilty plea.
NRS 176.165.
11. Criminal Law.
Defendant who asserted his innocence of a bomb threat charge, but who pleaded guilty to avoid
punishment on a more serious charge of transportation of explosives and as an habitual criminal, was not
entitled to have his guilty plea withdrawn based on his allegations that he was innocent of the charge. NRS
176.165, 202.840.
12. Criminal Law.
Trial court properly denied defendant's post-conviction motion to withdraw his plea of guilty to making a
bomb threat. NRS 176.165, 202.840.
OPINION
Per Curiam:
Thomas Randall Hargrove appeals from an order of the district court denying his
post-conviction motion to withdraw his plea of guilty. We sua sponte ordered appellant to file
supplemental authorities speaking to the issue of whether an order denying a post-conviction
motion to withdraw a guilty plea is an appealable determination. For the reasons set forth
below, we conclude that such an order is appealable, and affirm.
1

On February 1, 1982, appellant entered a plea of guilty to one count of making a bomb
threat, NRS 202.840. In exchange, the state agreed to dismiss a second and more serious
charge of unlawful transportation of explosives, and agreed not to seek enhanced punishment
of appellant under the habitual criminal statute. After conducting a thorough plea canvass, the
district court accepted appellant's guilty plea and sentenced him to the statutory maximum of
six years. Appellant filed but later withdrew a notice of appeal from the judgment of
conviction.
On June 8, 1982, about four months after entry of the judgment of conviction, appellant
filed a motion to withdraw his plea pursuant to NRS 176.165. That statute permits a trial
court to order a plea withdrawn after conviction upon a showing of manifest injustice.
2
In
the motion and supplemental points and authorities, Hargrove raised several challenges to
the validity of his plea, including an allegation that he entered his plea without the
effective advice and assistance of counsel.
____________________

1
Cause appearing, we hereby submit this appeal on the briefs and record. NRAP 34(f)(1).

2
[A] motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is
imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence
may set aside the judgment of conviction and permit the defendant to withdraw his plea. (Emphasis
added.)
points and authorities, Hargrove raised several challenges to the validity of his plea, including
an allegation that he entered his plea without the effective advice and assistance of counsel.
He also claimed he was innocent of the bomb threat offense, and could so establish by certain
newly-discovered evidence if his plea was withdrawn and he was permitted to proceed to
trial. Hargrove argued that the allegations of his petition, and his expected testimony at an
evidentiary hearing, would be sufficient to establish a manifest injustice and entitle him to
relief under NRS 176.165.
The district court denied the motion on its merits but without an evidentiary hearing,
ruling that appellant's challenges to his plea presented no potential basis for relief and did not
demonstrate a manifest injustice. The court entered a written order denying the motion to
withdraw, and this appeal ensued.
[Headnote 1]
We must first decide whether an order denying a post-conviction motion to withdraw a
guilty plea is an appealable order. Except in certain special proceedings, appeals in criminal
cases are governed by NRS 177.015, which provides, inter alia, that the state or the defendant
may appeal from orders granting a motion to dismiss, a motion for acquittal or a motion in
arrest of judgment, or granting or refusing a new trial. NRS 177.015(1)(b). The statute
makes no specific provision for appeals from orders denying post-conviction motions to
withdraw. In response to our order for supplemental briefing of the appealability question,
appellant contends that a post-conviction order denying a motion to withdraw a guilty plea is
an order refusing a new trial within the meaning of NRS 177.015. We find this argument
persuasive.
[Headnote 2]
Both a motion for a new trial and a motion to withdraw a guilty plea may be made after
conviction. See NRS 176.515; NRS 176.165. Both motions serve an identical function, since
both argue that the predicate of guilt, whether it be plea or verdict, is suspect or defective and
must be set aside. In both cases, denial of the motion generally results in continued
incarceration under the judgment of conviction; granting the motion results in a setting aside
of the predicate of guilt and generally entails further proceedings on the charges originally
filed.
[Headnotes 3-5]
A defendant whose guilt is predicated upon a verdict may raise a post-conviction challenge
to the verdict's validity by means of a motion for new trial, and has the right to appeal from an
order refusing such relief. A defendant whose guilt is predicated upon a plea may make a
similar post-conviction challenge by means of a motion to withdraw, but under the literal
wording of NRS 177.015 has no right to appeal from an order denying relief.3 The
anomaly of this disparity is compounded by the availability of the right to appeal from
orders denying post-conviction challenges to the validity of a plea raised either by a
petition for writ of habeas corpus, see NRS 34.3S0, or by a petition for post-conviction
relief, see NRS 177.315, 177.3S5.
predicated upon a plea may make a similar post-conviction challenge by means of a motion to
withdraw, but under the literal wording of NRS 177.015 has no right to appeal from an order
denying relief.
3
The anomaly of this disparity is compounded by the availability of the right
to appeal from orders denying post-conviction challenges to the validity of a plea raised either
by a petition for writ of habeas corpus, see NRS 34.380, or by a petition for post-conviction
relief, see NRS 177.315, 177.385. The ability to appeal in these two types of cases
unquestionably evidences a legislative judgment that post-conviction challenges to guilty
pleas should be subject to appellate review. To further this legislative judgment, and because
of the functional similarity of motions for a new trial and motions to withdraw a guilty plea,
we conclude that an order denying a post-conviction motion to withdraw a plea of guilty is
appealable as an order refusing a new trial within the meaning of NRS 177.015.
We now turn to the merits of this appeal. In his motion to withdraw and his supplemental
points and authorities, appellant advanced numerous allegations in support of his claim that
his plea should be set aside to correct a manifest injustice. Hargrove contended, inter alia,
that he pleaded without the effective advice and assistance of counsel, that his plea was the
product of his fear of an habitual criminal sentence, and that Hargrove was in fact innocent
of the bomb threat charge and could so establish by newly-discovered evidence. The district
court found that appellant's allegations were not sufficient to entitle him to an evidentiary
hearing on his motion, and that appellant had not raised a meritorious challenge to his plea.
Appellant now argues that it was error to deny the motion without an evidentiary hearing, and
that his motion sufficiently demonstrated a manifest injustice. We disagree.
[Headnotes 6-8]
Appellant's motion consisted primarily of bare or naked claims for relief, unsupported
by any specific factual allegations that would, if true, have entitled him to withdrawal of his
plea. Specifically, appellant's claim that certain witnesses could establish his innocence of the
bomb threat charge was not accompanied by the witness' names or descriptions of their
intended testimony. As such, to the extent that it advanced merely naked allegations, the
motion did not entitle appellant to an evidentiary hearing. See Vaillancourt v. Warden, 90
Nev. 431, 529 P.2d 204 (1974); Fine v. Warden, 90 Nev. 166, 521 P.2d 374 (1974); see also
Wright v. State, 619 P.2d 155, 158
____________________

3
If a defendant challenges a guilty plea before entry of the judgment, an order denying withdrawal would be
reviewable on direct appeal from the judgment as an intermediate order in the proceedings. See NRS 177.045.
(Kan.Ct.App. 1980) (to entitle defendant to an evidentiary hearing, a post-conviction petition
must set forth a factual background, names of witnesses or other sources of evidence
demonstrating . . . entitlement to relief). To the extent that the motion and supplemental
authorities raised allegations supported by factual claims, particularly the allegation of
ineffective counsel, we note that the factual claims were belied by the record, especially the
transcript of the change of plea canvass. A defendant seeking post-conviction relief is not
entitled to an evidentiary hearing on factual allegations belied or repelled by the record. See
Grondin v. State, 97 Nev. 454, 634 P.2d 456 (1981).
[Headnote 9]
We conclude that the district court correctly denied the motion without an evidentiary
hearing. We also note that the motion to withdraw was without merit in any event. In
particular, appellant's claim that he pleaded out of fear of an aggravated sentence as an
habitual criminal is meritless. The record in this case shows a knowing and voluntary plea.
Furthermore, a defendant's desire to plead guilty to an original charge in order to avoid the
threat of the habitual criminal statute will not give rise to a claim of coercion. Schmidt v.
State, 94 Nev. 665, 667, 584 P.2d 695, 696 (1978); see Whitman v. Warden, 90 Nev. 434,
529 P.2d 792 (1974).
[Headnotes 10, 11]
Appellant's contention that his plea should have been withdrawn because he is actually
innocent of the charge is also without merit. The question of an accused's guilt or innocence
is generally not at issue in a motion to withdraw a guilty plea. See Kercheval v. United States,
274 U.S. 220, 224 (1927); State v. District Court, 85 Nev. 381, 455 P.2d 923 (1969). Even if
the question were at issue in this case, appellant's argument is nevertheless without merit. The
record of the plea canvass shows that appellant essentially entered a guilty plea under the
concept espoused in North Carolina v. Alford, 400 U.S. 25 (1970); appellant asserted his
innocence of the bomb threat charge, but pleaded guilty to avoid punishment on the more
serious charge of transportation of explosives and as an habitual criminal. As such, his claim
of innocence is essentially academic.
[Headnote 12]
We have examined the remaining arguments raised in the petition and have determined
that they are without merit. The district court correctly denied the motion to withdraw.
Accordingly, the order denying the appellant's post-conviction motion to withdraw his guilty
plea is affirmed.
____________
100 Nev. 504, 504 (1984) Hernandez v. City of Salt Lake
RICHARD LEON HERNANDEZ, Appellant and Cross-Respondent, v. CITY OF SALT
LAKE, Respondent and Cross-Appellant.
No. 14797
August 24, 1984 686 P.2d 251
Appeal from an order disallowing prejudgment interest and retaxing costs; cross-appeal
from order denying alternative motions for a new trial, judgment notwithstanding the verdict,
or remittitur; Second Judicial District Court, Washoe County; James H. Thompson, Judge.
Action alleging false arrest and false imprisonment, involving an imprisonment lasting 42
days, was brought against city. The district court entered judgment on a jury verdict in favor
of plaintiff, awarding general damages of $225,000, and city appealed. The Supreme Court
held that: (1) city was not insulated from liability by the issuance of a warrant valid on its
face; (2) jury was not required to find that city and its employees acted with prudence and
diligence concerning circumstances surrounding the arrest of plaintiff; (3) award was not
excessive and did not shock the judicial conscience; and (4) plaintiff was not entitled to
prejudgment interest from date of service of summons.
Affirmed.
Nada Novakovich, Reno, for Appellant and Cross-Respondent.
Lionel, Sawyer & Collins, and Wayne A. Shaffer, Reno, for Respondent and
Cross-Appellant.
1. False Imprisonment.
City was not insulated from liability for false imprisonment by the issuance of a warrant valid on its face,
where the arrest pursuant to the warrant was effected by an authority other than the city police department.
Rule that an arresting authority, which arrests pursuant to a warrant valid on its face, is insulated from
liability for false arrest and false imprisonment is to protect the police officer who arrests an individual on
the reliance of a duly issued warrant.
3. Judgment.
A judgment notwithstanding the verdict is inappropriate where there is any substantial evidence to
support the verdict, with the plaintiff given the benefit of every reasonable inference in support of the
verdict.
Jury was not required to find that city and its employees acted with prudence and diligence in
circumstances surrounding issuance of arrest warrant and in subsequent actions which
resulted in the false arrest and false imprisonment of plaintiff.
arrest warrant and in subsequent actions which resulted in the false arrest and false imprisonment of
plaintiff.
Issue of whether city of a foreign state was immune from false arrest and false imprisonment suit by
Nevada citizen in Nevada courts on ground that statutes of the foreign state protected foreign city from suit
in the foreign state was not considered on appeal, where the issue was neither raised nor briefed in the trial
court.
6. States.
Recognition of a foreign state's limitation of its own liability is a matter of the law of the forum state.
In a suit for false imprisonment, Supreme Court is justified in reversing a verdict due to excessive
damages or granting a new trial conditioned upon acceptance of remittitur only if the verdict is so
flagrantly improper as to indicate passion, prejudice or corruption in the jury; fact that a verdict is large is
not, in itself, a sufficient basis for such a finding.
Award of $225,000 for false arrest and false imprisonment, which involved an imprisonment of 42 days,
did not shock the judicial conscience.
9. Interest.
Plaintiff, whose suit for false arrest and false imprisonment was filed January 28, 1977, was not entitled
to prejudgment interest from date of service of summons pursuant to statute allowing prejudgment interest,
since the statute expressly provided that the provisions of the act would apply to actions and proceedings
filed on or after July 1, 1979. NRS 17.130; St. 1979, c. 448, 6.
OPINION
Per Curiam:
This is an appeal and cross-appeal from judgment in favor of Hernandez and against the
City of Salt Lake upon a complaint for false arrest and false imprisonment.
This action arises out of a complaint filed January 28, 1977. Plaintiff Richard Leon
Hernandez charged the City of Reno, City of Salt Lake, County of Washoe, and County of
Salt Lake with false arrest and a subsequent false imprisonment of some forty-two days. The
County of Salt Lake was removed from the suit when the district court granted its motion to
quash service. Jury trial with the remaining defendants began on April 8, 1979. At the
conclusion of plaintiff's case, the district court granted the motions of each of the defendants
for involuntary dismissal of the action, pursuant to NRCP 41(b). Plaintiff appealed the
judgment to this court, which upheld the dismissal of each of the defendants except the City
of Salt Lake. Hernandez v. City of Reno, 97 Nev. 429, 634 P.2d 668 (1981). On remand, a
new trial was held with the City of Salt Lake the sole defendant.
Lake the sole defendant. The jury returned a verdict in favor of plaintiff, awarding him
general damages of $225,000.00. The defendant's motions for new trial, judgment
notwithstanding the verdict, or remittitur were denied.
The defendant's motion to allow interest on the award from the date of judgment, rather
from the date of service or process, was granted. Both parties appeal.
The City of Salt Lake contends that it was entitled to a new trial, or to a judgment
notwithstanding the verdict because, as a matter of law, it had established probable cause or
justification for Hernandez's incarceration. We cannot agree.
In summary, the evidence was that in the course of a burglary investigation, two officers of
the City of Salt Lake spoke with an individual who identified himself by the name of Richard
Hernandez. Later, two roommates of the suspect corroborated that such was indeed the
suspect's name and implicated the suspect in the wrongdoing. They also suggested that he had
a prior record in Los Angeles. When a photograph and fingerprints of the plaintiff arrived, the
officers relied upon those same roommates to verify that the photograph was indeed that of
the suspect whom the officers had previously met. On this basis the City of Salt Lake
published a warrant for plaintiff's arrest. When plaintiff was arrested in Reno, he protested
that he had been employed at a local casino for the entire period in question and had not been
to Utah. City of Salt Lake officials, however, confirmed that plaintiff was the suspect they
sought, despite specific inquiry from the district attorney's office in Reno relating to the
matter of identity. After extradition, when plaintiff finally appeared in court in Salt Lake City
for the first time, the investigating officer recognized that he was not the suspect with whom
they had spoken. The roommates could not be located and Hernandez was released the
following day.
[Headnotes 1, 2]
We are not persuaded by Salt Lake City's argument that it is insulated from liability by the
issuance of a warrant valid on its face. The rationale for the rule is to protect the police officer
who arrests an individual on the reliance of a duly issued warrant. Broughton v. State, 373
N.Y.S.2d 87 (1975). In the case at hand, the arrest pursuant to the warrant was effected by the
Reno Police Department and not Salt Lake City. Since Salt Lake City has not relied on a
validly issued warrant in having the plaintiff arrested, the rationale behind the rule does not
apply.
[Headnotes 3, 4]
A judgment notwithstanding the verdict is inappropriate when there is any substantial
evidence to support the verdict, and plaintiff must be given the benefit of every reasonable
inference in support of the verdict. Jacobson v. Manfredi, 100 Nev. 226, 679 P.2d 251
(1984); see also Stackiewicz v. Nissan Motor Corp., 100 Nev. 443, 686 P.2d 925. The jury
proceeded under an unchallenged instruction that if they found from the evidence that the
City of Salt Lake did not use prudence and diligence then they must find there was not
probable cause for plaintiff's arrest and imprisonment. We are unable to say, as a matter of
law, that the jury was required to find that appellant and its employees acted with prudence
and diligence in this matter.
[Headnote 5]
The City of Salt Lake also argues that it should be immune from suit by citizens of this
state in our courts because its statutes would protect it from suit in Utah. We decline to grant
the city such protection in our courts.
[Headnote 6]
The United States Supreme Court had determined that the federal constitution does not
require the recognition of one state's limitation of its own liability when it is sued in the
courts of another state. Nevada v. Hall, 440 U.S. 410 (1978). Rather, recognition of such
limitation is a matter of the law of the forum state. We have held that recognition of another
state's limitation of its own liability will turn upon Nevada's policies and whether this State
would permit itself to be sued if it had engaged in the conduct assigned the foreign state in a
given action. Mianecki v. District Court, 99 Nev. 93, 658 P.2d 422 (1983). Since these issues
were neither raised nor briefed in the court below, we will not consider them for the first time
on appeal. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 623 P.2d 981 (1981).
[Headnotes 7, 8]
The City of Salt Lake contends that the damages were excessive. We have held, however,
that in a suit for false imprisonment [a] successful plaintiff is entitled to compensation for all
the natural and probable consequences of the wrong, including injury to the feelings from
humiliation, indignity and disgrace to the person, and physical suffering. The injury to health
may be due to mental suffering. Lerner Shops v. Marin, 83 Nev. 75, 79, 423 P.2d 398
(1967). In discussing similar damages in an action for malicious prosecution, we recognized
that [t]hese elements of damages are wholly subjective" and that therefore "[t]he extent
of such damages, by its very nature, falls peculiarly within the province of the trier of
fact."
elements of damages are wholly subjective and that therefore [t]he extent of such damages,
by its very nature, falls peculiarly within the province of the trier of fact. Miller v. Schnitzer,
78 Nev. 301, 308, 371 P.2d 824 (1962). In such cases, we are not justified in reversing, or
granting a new trial conditioned upon acceptance of remittitur, unless the verdict is so
flagrantly improper as to indicate passion, prejudice or corruption in the jury. Forrester v.
Southern Pacific Co., 36 Nev. 247, 296, 134 P. 753 (1913). The fact that a verdict is large is
not, in itself a sufficient basis for such a finding. See Automatic Merchandisers, Inc. v. Ward,
98 Nev. 282, 646 P.2d 553 (1982). The award, while substantial, does not shock our judicial
conscience, and we decline to substitute our judgment for that of the jury.
[Headnote 9]
Hernandez contends that he should have been awarded prejudgment interest from the date
of service of summons, pursuant to NRS 17.130. This contention is without merit. At the time
the legislature amended the statute in 1979 to allow prejudgment interest, it expressly
provided that the provisions of the act would apply to all actions and proceedings filed on or
after July 1, 1979. 1979 Nev. Stats. ch. 448 6, at 831. The complaint in this case was filed
January 28, 1977. Accordingly, prejudgment interest was not authorized by the statute in this
case. See Jacobson v. Manfredi, 100 Nev. 226, 679 P.2d 251 (1984).
The remaining contentions of counsel for appellant and cross-appellant are either disposed
of by our analyses above or are without sufficient merit to warrant discussion. Accordingly,
we affirm the judgment below.
____________
100 Nev. 509, 509 (1984) State of Nevada v. City of Fallon
STATE OF NEVADA and EDMOND McGOLDRICK, as Labor Commissioner of the State
of Nevada, Appellants, v. THE CITY OF FALLON, a Municipal Corporation, and
CHURCHILL COUNTY, NEVADA, a Political Subdivision of the State of Nevada,
Respondents.
No. 14804
THE STATE OF NEVADA and EDMOND McGOLDRICK, in His Representative Capacity
as Labor Commissioner of the State of Nevada, Appellants, v. DOUGLAS COUNTY,
NEVADA, a Political Subdivision of the State of Nevada, Respondent.
No. 14940
THE STATE OF NEVADA and FRANK T. MacDONALD, as Labor Commissioner of the
State of Nevada, Appellants, v. ELKO COUNTY SCHOOL DISTRICT, a
Political Subdivision of the State of Nevada, Respondent.
No. 15206
August 24, 1984 685 P.2d 1385
Appeal from judgment declaring portion of statute null and void, and granting permanent
injunction; Third Judicial District Court, Churchill County, Richard J. Legarza, Judge. (Case
No. 14804).
Appeals from orders granting preliminary injunction; Ninth Judicial District Court,
Douglas County, Norman C. Robison, Judge (Case No. 14940); Fourth Judicial District
Court, Elko County, Joseph O. McDaniel, Judge (Case No. 15206).
Appeal was taken from a judgment of the district court which held a portion of the statute
governing the prevailing wage rate or minimum wage which public bodies in the state are
required to pay in contracts for public works projects null and void and in granting a
permanent injunction. Appeals were also taken from orders of the district courts which
granted a preliminary injunction precluding the Commissioner from enforcing the preliminary
wage rates he had determined. The Supreme Court held that: (1) the Labor Commissioner
exceeded his statutory authority by determining that a district for purposes of determining
the prevailing wage rate or minimum wage which public bodies in the state are required to
pay in contracts for public works projects might be composed of numerous counties, not
conforming to the boundaries of a public body or any recognized political subdivision, and
(2) when interested parties have duly submitted objections to the prevailing wage rate as
preliminarily determined by the Commissioner and have accompanied those objections with
independent evidence corroborating the assertion that there is a discrepancy between the
established wage rate and the actual wage rate prevailing in the relevant local political
entity or subdivision, the Commissioner is required to conduct a hearing and to base his
final determination upon the evidence presented at the hearing.
independent evidence corroborating the assertion that there is a discrepancy between the
established wage rate and the actual wage rate prevailing in the relevant local political entity
or subdivision, the Commissioner is required to conduct a hearing and to base his final
determination upon the evidence presented at the hearing.
Cases No. 14940 and 15206 affirmed; Case No. 14804 affirmed in part, reversed in
part.
Brian McKay, Attorney General and Pamela M. Bugge, Deputy Attorney General, Carson
City, for Appellants in Cases Nos. 14804, 14940 and 15206.
John W. Diehl, City Attorney, Fallon, and William E. Cooper, District Attorney, and John
S. Hill, Special Deputy District Attorney, Churchill County, for Respondents in Case No.
14804.
Brent T. Kolvet, District Attorney, and Stephen C. Balkenbush, Chief Deputy District
Attorney, Douglas County, for Respondent in Case No. 14904.
Thomas L. Stringfield, Elko, for Respondent in Case No. 15206.
Paul H. Lamboley, Northern and Southern Nevada Building Trades Councils, and
Southern Nevada Heavy and Highway Committee, Amicus Curiae in Case No. 14804.
1. Injunction.
Injunction precluding Labor Commissioner from enforcing against city, counties and school district
which were not in metropolitan areas the prevailing wage rate or minimum wage which public bodies in
state are required to pay in contracts for public works projects as set by his office in accordance with rates
paid in two large districts, rather than by local political subdivision, was sufficiently specific. NRS
338.010, subd. 2, 338.015, subd. 1, 338.020, subd. 1.
2. Injunction.
City, counties and school district which were not in metropolitan areas would suffer sufficient irreparable
harm if required to pay prevailing wage rate or minimum wage which public bodies in state are required
to pay in contracts for public works projects to justify injunction against enforcing prevailing wage rate
as had been set by Labor Commissioner's office in accordance with rates paid in two large districts,
rather than by local political subdivision. NRS 338.010, subd. 2, 338.015, subd. 1, 338.020, subd. 1.
3. Labor Relations.
Statute under which Labor Commissioner determines prevailing wage rate or minimum wage which
public bodies in state are required to pay in contracts for public works projects does not authorize
Commissioner to create amorphous districts, covering vast geographic areas and including
disparate communities stretching far beyond boundaries of any locality in which
public work is to be performed as the unit in which the prevailing wage is to be
established, rather than using the local political subdivision awarding public works
contracts.
and including disparate communities stretching far beyond boundaries of any locality in which public work
is to be performed as the unit in which the prevailing wage is to be established, rather than using the local
political subdivision awarding public works contracts. NRS 338.010, subd. 2, 338.015, subd. 1,
338.020, subd. 1.
4. Labor Relations.
Where local governing bodies, individually and collectively, presented Labor Commissioner's office with
evidence and support of their contentions that prevailing wage rates established by Commissioner's office
did not accurately reflect prevailing wage rates as actually paid in their communities, assertion by
Commissioner that he was not in doubt as to prevailing wage rates in those localities was insufficient to
deny public bodies the hearings to which they were entitled under statute requiring public bodies to pay
prevailing wage rate or minimum wage which public bodies in state are required to pay in contracts for
public works projects. NRS 338.010, subd. 2, 338.015, subd. 1, 338.020, subd. 1.
5. Labor Relations.
When parties interested in determination of prevailing wage rate or minimum wage which public
bodies in state are required to pay in contracts for public works projects have submitted objections to
prevailing wage rate as preliminarily determined by Labor Commission, and have accompanied those
objections with independent evidence corroborating assertion that there is discrepancy between established
wage rate and actual wage rate prevailing in relevant local political entity or subdivision, Commissioner is
required to conduct a hearing and to base his final determination upon evidence presented at that hearing.
NRS 338.010, subd, 2, 338.015, subd. 1, 338.020, subd. 1.
6. Labor Relations.
Provisions of Administrative Procedure Act governing contested case applied to hearings required
when interested parties have submitted objections to prevailing wage rate as preliminarily determined by
Labor Commissioner and have accompanied those objections with independent evidence corroborating
assertion that there is discrepancy between established wage rate and actual wage rate prevailing in relevant
local political entity or subdivision. NRS 233B.010 et seq., 233B.032, 338.030.
7. Labor Relations.
Labor Commissioner's failure to accept relevant evidence offered by local governmental bodies who
challenged Commissioner's preliminary determination of prevailing wage rate, or minimum wage which
public bodies in state are required to pay in contracts for public works projects, and to accord those bodies
a reasonable opportunity to be heard rendered his determination of prevailing wage rate based on two
districts in state invalid as based on unlawful procedure and in excess of statutory authority. NRS
233B.010 et seq., 233B.032, 233B.140, subd. 5(b), (c), 338.030, 338.030, subd. 1.
OPINION
Per Curiam:
These cases, consolidated for purposes of this opinion, all arise from similar disputes over
the manner in which the Labor Commissioner of the State of Nevada (Commissioner)
1
has
determined the "prevailing wage rate," or minimum wage which public bodies of this
state are required to pay in contracts for public works projects, pursuant to NRS
33S.020{1).2 The respondents are "public bodies" subject to this statute, NRS
33S.010{2),3 and the Commissioner is charged with the statutory duty of enforcing this
requirement.
____________________

1
During these proceedings, on February 1, 1983, Franklin T. MacDonald replaced Edmond McGoldrick as
Labor Commissioner of the State of Nevada.
determined the prevailing wage rate, or minimum wage which public bodies of this state
are required to pay in contracts for public works projects, pursuant to NRS 338.020(1).
2
The
respondents are public bodies subject to this statute, NRS 338.010(2),
3
and the
Commissioner is charged with the statutory duty of enforcing this requirement. NRS
338.015(1).
4

The gist of respondents' complaint against the Commissioner is that in establishing the
prevailing wage rate, the Commissioner has made no effort to determine the actual wage
rates in their separate localities, but rather has merged all counties and cities in the state into
two districts, northern and southern, and then effectively established the wage rate paid by
urban contractors in Reno and Las Vegas who have signed collective bargaining agreements
as the prevailing wage rates for those entire portions of the state.
5
Respondents include a
school district, a city and two counties which are not in these metropolitan areas, and which
contend that the actual prevailing wages in their localities are significantly lower than those
determined by the Commissioner. They claim that despite their presentation of substantial
evidence of such discrepancies to the Commissioner, whether in the form of surveys of local
contractors, surveys of contractors bidding in their localities, statistics from surveys of the
Nevada Employment Security Department, or actual bids submitted in alternative form,
6
the
Commissioner refused to alter his determination of the prevailing wage rates in their
localities or conduct public hearings regarding such rates, in violation of NRS
33S.030{2).7
____________________

2
Every contract to which a public body of this state is a party, requiring the employment of skilled
mechanics, skilled workmen, semiskilled mechanics, semiskilled workmen or unskilled labor in the
performance of public work, must contain in express terms the hourly and daily rate of wages to be paid
each of the classes of mechanics and workmen. The hourly and daily rate of wages must not be less than
the rate of such wages then prevailing in the county, city, town or district in this state in which the public
work is located, which prevailing rate of wages must have been determined in the manner provided in
NRS 338.030.

3
Public body means the state, county, city, town, school district or any public agency of this state or
its political subdivisions sponsoring or financing a public work.

4
The labor commissioner shall enforce the provisions of NRS 338.010 to 338.130, inclusive. When
informed of violations thereof he shall report such violations to the district attorney of the county in
which such violations occurred.

5
The southern district includes Las Vegas and is composed of Clark, Esmeralda, Lincoln and a portion of
Nye counties, while the rest of the state, including Reno, is considered the northern district.

6
For two public works projects in Elko County, for example, the school district requested two bids. [I]n
addition to the bid requested utilizing the
Commissioner refused to alter his determination of the prevailing wage rates in their localities
or conduct public hearings regarding such rates, in violation of NRS 338.030(2).
7

Respondents claim that as a result of the Commissioner's determinations their taxpayers
are paying, or will pay, tens of thousands of dollars for artificially high labor costs in their
public works projects. They have requested that prevailing wage rates for their particular
localities be set by the Commissioner, and that hearings be held for that purpose, or that the
Commissioner be enjoined from enforcing the rates derived from Reno and Las Vegas
agreements in their localities.
The Commissioner, on the other hand, has refused to establish prevailing wage rates for
such particular localities, contending that he is authorized by statute to set such rates for a
district of his own designation. He further has contended that he is not obligated to conduct
a hearing unless he is in doubt regarding a prevailing wage rate, and that he has never had
such doubt.
8
In the three cases presented on this appeal, the district courts each ruled in
favor of the respondents and against the position of the Commissioner, characterizing his
actions as arbitrary and capricious, or in violation of the statute.

____________________
prevailing customary and reasonable wage rates established by you as the contractor, we would request that a
second bid be prepared utilizing the prevailing wage rates established by the Labor Commissioner. Among the
completed bids meeting specifications, discrepancies ranged from 4 to 23 percent, with an average difference of
10 percent in the total costs of the bids. The City of Fallon reported to the Commissioner a discrepancy of 22
percent in the total alternative bids of the winning contractor on a major public works project. It also submitted
data showing that the wage rates established by the Commissioner were some 84 percent higher than the rates
reflected in a survey of the Nevada Employment Security Department for listed construction jobs in rural
Nevada, after the latter were adjusted for inflation. Douglas County presented the Commissioner with the
results of a survey of approximately 25 contractors bidding on Douglas County projects.

7
When the labor commissioner is in doubt as to the general prevailing rate of per diem wage he shall
hold a hearing in the locality in which the work is to be executed. Notice of the hearing shall be
advertised in a newspaper nearest to the locality of the work once a week for 2 weeks prior to the time of
the hearing. At the hearing, organizations such as the crafts affiliated with the state federation of labor or
other recognized national labor organizations and the contractors of the locality or their representatives
shall be heard. From the evidence presented the labor commissioner shall determine the general
prevailing rate of per diem wage.

8
In the Douglas County case (No. 14940), former Commissioner McGoldrick testified: I'm of the opinion
that, in order to be placed in doubt, I have to have some kind of formula so that I can justify that I'm holding a
hearing. With regard to the division of the entire state into two districts, the former Commissioner testified:
That was a policy that I inherited. It's been there for 10 or 20 years, I heard. I can't explain it. The current
Commissioner, Franklin T. MacDonald, testified in the Fallon/Churchill County Case (No. 14804) that he would
consider himself
In the three cases presented on this appeal, the district courts each ruled in favor of the
respondents and against the position of the Commissioner, characterizing his actions as
arbitrary and capricious, or in violation of the statute. As a result, the Commissioner has been
enjoined from enforcing against respondents the prevailing wage rate as set by his office in
accordance with rates paid in two large districts, rather than by local political subdivision,
and upon evidence developed at public hearings in such localities. In Case No. 14804, the
district judge declared null and void that portion of NRS 338.030(2) which limits the hearing
requirement to circumstances in which the Commissioner is in doubt.
[Headnotes 1, 2]
The Commissioner has appealed the judgments, raising various procedural and substantial
objections to the injunctions. We address the merits of his contentions as to the proper
statutory authority of the Commissioner below. The Commissioner's objections to the form of
the injunctions on the ground of lack of specificity do not merit discussion beyond the brief
observation that we can see no justification for a remand for a clarification of the obvious.
Withrow v. Larkin, 421 U.S. 35, 45-46 (1975). Appellant's other contentions, including the
argument that no irreparable harm would result to the plaintiffs, in the face of their specific
evidence of the substantial additional cost of on-going and imminent public works projects,
which concededly would not be recoverable by the taxpayers should the Commissioner's rate
be enforced, are similarly without merit.
[Headnote 3]
In essence, the respondents below contended, and the district courts agreed, that the Labor
Commissioner had exceeded his statutory authority by determining that a district, for
purposes of determining prevailing wage rates pursuant to NRS Chapter 33S, might be
composed of numerous counties, not division of the entire state into two "districts," is in
excess of his statutory authority.
____________________
in doubt so as to justify conducting a hearing if there was overwhelming information that far exceeded the
rates. In other words, if we had all of the employers that are in the area or that are going to be bid[ding] in the
area, if their wage rates were quite different than the prevailing wage rate, then there would be doubt. With
regard to the districts, MacDonald testified in the Elko County case (No. 15206) that The two major areas
which would have been your metropolitan areas in the north and the south were used as a base. He further
testified that information about wages in these districts had previously been obtained simply by contacting
contractor and labor organizations in these areas and inquiring as to the wages in their association contracts, but
that he was endeavoring to broaden the inquiry by a mailing to all licensed contractors in the state, since by that
time, as he put the matter, [W]e've been in Court several times and this has prompted me to lay a trail, a paper
trail, to make any determinations.
Chapter 338, might be composed of numerous counties, not division of the entire state into
two districts, is in excess of his statutory authority.
conforming to the boundaries of a public body or any recognized political subdivision. We
agree that the Commissioner's
The Commissioner has predicated his claim primarily upon the language of NRS
338.020(1), which provides that the rate of wages paid by a public body in a contract for
public work must be not less than the rate of such wages then prevailing in the county, city,
town or district in this state in which the public work is located. (Emphasis added.) We
cannot join the Commissioner in reading the term so broadly.
The definition of the term district as a territorial division (as of a nation, state, county
or city) marked off or defined for administrative . . . purposes, Webster's Third New
International Dictionary 660 (1976), denotes specific political or administrative boundary
lines. The term was added to the predecessor of NRS 338.020(1) in 1941, at the same time
that the Legislature added a new provision defining a public body subject to the act as the
state, county, city, town, village, school district or any public agency of this state or its
political subdivisions. 1941 Nev.Stat. ch. 139, secs. 2 and 3, at 390.
We find nothing in the statute which authorizes the Commissioner to create amorphous
districts, covering vast geographic areas and including disparate communities stretching far
beyond the boundaries of any locality in which the public work is to be performed, as the
unit within which the prevailing wage is to be established. As was said by the Supreme Court
of New Mexico of a similar practice:
The law does not give the defendant the power to set a minimum scale of what he
thinks they should be, but only to determine the prevailing wages being paid in a
municipality or political subdivision, and set them out in his order as the minimum
wage to be paid. Here he made one order covering the entire state, thus finding the
same wage scale prevailing in the severely depressed and boom counties, which in
itself, is sufficient to cast serious doubt on the bona fides of his action.
City of Albuquerque v. Burrell, 326 P.2d 1088, 1091 (1958). In this case, as well, respondents
were entitled to a determination of the prevailing wage rates within their own boundaries.
Appellant acted arbitrarily and capriciously, and in excess of his statutory authority, in
making prevailing wage rate determinations on the basis of northern and southern
districts, rather than for the local political subdivisions awarding public works contracts.
[Headnote 4]
Furthermore, we conclude that the refusal of the Commissioner to conduct hearings in
these localities in accordance with the provisions of the statute was arbitrary and capricious.
Respondents individually and collectively presented the Commissioner's office with evidence
in support of their contentions that the wage rates established by his office did not accurately
reflect the prevailing wage rates as actually paid in their communities, including their own
wage surveys, the surveys of an independent state agency, and actual bids upon public works
projects. In the face of such evidence, we hold that the assertion by the Commissioner that he
was not in doubt as to the prevailing wage rates in these localities insufficient to deny the
respondents the hearings to which they were entitled under the statute.
NRS 338.030(2) provides that [w]hen the labor commissioner is in doubt as to the
general prevailing rate of per diem wage he shall hold a hearing in the locality in which the
work is to be executed. (Emphasis added.) The provision specifies the notice that must be
given, and requires that organizations affiliated with state or national labor organizations, as
well as the contractors of the locality or their representatives be heard. The statute further
mandates that [f]rom the evidence presented the labor commissioner shall determine the
general prevailing rate of per diem wage. (Emphasis added.) The clear import of these
statutory commands may not be avoided by the claim of the Commissioner that he
subjectively lacks doubt, regardless of the state of the evidence or objections presented to
him and regardless of the inadequacy of his own prior investigations.
Under a similar statutory scheme, the commission charged with administration of a
prevailing wage rate statute in Missouri had made an initial determination, similar to that
made by the Commissioner here, based upon collective bargaining agreements of wide
geographic application. City of Kennett v. Labor & Indus. Rel. Com'n, 610 S.W.2d 623 (Mo.
1981). Upon due notice of objection by the City of Kennett that the preliminary determination
did not reflect the prevailing wage in that city, however, the Commission undertook its own
survey of wages in the locality, and scheduled a hearing at which both the Commission and
the City presented their evidence. Under these circumstances, the Supreme Court of Missouri
rejected the city's challenge to the Commission's determination. It cannot be said that the
Commission failed to consider wages paid generally in the county including wages paid on
private construction projects, or that the Commission's decision was unsupported by
substantial and competent evidence. Id. at 627.
The procedure employed by the Commissioner in this case stands in marked contrast to
that approved by the Missouri court. Despite efforts to develop information on their own,
respondents were not granted the opportunity to participate in hearings. Nor did the
Commissioner make any effort to establish an evidentiary record in support of his
determination of the prevailing rate in each locality, as required by the statute.
[Headnotes 5-7]
We hold that when interested parties have duly submitted objections to the prevailing
wage rate as preliminarily determined by the Commissioner, and have accompanied such
objections with independent evidence corroborating the assertion that there is a discrepancy
between the established wage rate and the actual wage rate prevailing in the relevant local
political entity or subdivision, the Commissioner is required, under the terms of NRS
338.030, to conduct a hearing as set forth in the statute, and to base his final determination
upon the evidence presented at such hearing. We further note that the provisions of the
Nevada Administrative Procedure Act governing a contested case apply to hearings so
required. NRS 233B.032.
9
The Commissioner's failure in these cases to accept relevant
evidence and to accord interested parties affected by his action a reasonable opportunity to be
heard renders his action invalid as based upon unlawful procedure, Checker Cab v. State,
Taxicab Authority, 97 Nev. 5, 621 P.2d 496 (1981), as well as invalid as in excess of his
statutory authority. NRS 233B.140(5)(b) and (c).
Accordingly, we affirm the judgments below insofar as they enjoined the Commissioner
from enforcing provisions of the prevailing wage law with regard to contracts of the
respondents, until hearings are conducted in accordance with the mandate of the statute, and
prevailing wage rates are established by the Commissioner for each relevant locality, on the
basis of the evidence presented at such hearings. In light of our interpretation of the statute,
we reverse the portion of the judgment in Case No. 14804, which declared the in doubt
provision of NRS 338.030(1) to be null and void.
____________________

9
NRS 233B.032 provides:
Contested case means a proceeding, including but not restricted to rate making and licensing, in
which the legal rights, duties or privileges of a party are required by law to be determined by an agency
after an opportunity for hearing, or in which an administrative penalty may be imposed.
____________
100 Nev. 518, 518 (1984) Gilloon v. Humana, Inc.
RICHARD A. GILLOON, Individually and as Administrator of the Estate of WINIFRED
GILLOON, Deceased, Appellant, v. HUMANA, INC., dba
SUNRISE HOSPITAL; CHARTER MEDICAL CORPORATION; and
HOWARD ZELLHOEFER, M.D., Respondents.
No. 13892
September 14, 1984 687 P.2d 80
Appeal from judgment of dismissal, Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Action was brought to recover for alleged wrongful death of plaintiff's mother due to
asserted improper medical treatment. The district court rendered summary judgment for
defendants, and plaintiff appealed. The Supreme Court, Gunderson, J., held that in a wrongful
death action, the term injury in the limitations statute refers to injury to the plaintiff through
death of the decedent and not to injury to the decedent through negligent medical treatment
which led to his/her death.
Wilkin & Gellner, Las Vegas, for Appellant.
Dickerson, Miles, Pico & Mitchell, Las Vegas; Beckley, Singleton, DeLanoy & Jemison,
Las Vegas; Johnson, Pilkington & Reynolds, Las Vegas, for Respondents.
1. Death.
In a wrongful death action, term injury in the limitations statute providing that action for injury or death
against provider of health care shall not be commenced more than four years after date of injury or two
years after plaintiff discovers the injury refers to injury to the plaintiff through death of the decedent and
not to injury to a decedent through negligent medical treatment which led to death. NRS 41.085,
41A.097.
2. Death.
Statute creates an independent cause of action in the heirs and personal representatives of one whose
death is caused by wrongful act or neglect of another and the right of action is not concerned with the
wrong done to the decedent but only with the wrong done to the heirs through decedent's death and the
right of action has no existence before death of the decedent. NRS 41.085.
OPINION
By the Court, Gunderson, J.:
This is an action for the wrongful death of Winifred Gilloon, in which the trial court
granted summary judgment
1
on the grounds that the applicable statute of limitations, NRS
41A.097,2 had run before appellant filed his complaint.
____________________

1
Since both parties appear to assume that the district court treated respondents' motion to dismiss as one for
summary judgment, as provided in NRCP 12(b), we will likewise proceed on that assumption.
grounds that the applicable statute of limitations, NRS 41A.097,
2
had run before appellant
filed his complaint. All parties appear to agree that the trial court's ruling was error if this
court construes NRS 41A.097 in accordance with the reasoning of the California Supreme
Court in Larcher v. Wanless, 557 P.2d 507 (Cal. 1976). Because we adopt the holding of the
California court, we reverse the trial court's judgment.
A brief outline of the facts will suffice. Appellant alleged in his complaint that in January
of 1976 his mother, Winifred Gilloon, underwent surgery for a total knee replacement at
respondent Humana's Sunrise Hospital. As a result of the negligent treatment she received
there, she developed bedsores. The bedsores worsened, and, for the next few years, Winifred
Gilloon was transferred through a series of hospitals and nursing homes, allegedly receiving
improper treatment at each. In September of 1976, appellant placed her in Moffitt Hospital in
San Francisco where for the first time her condition was properly diagnosed and treated. By
this time, however, the complications arising from her maltreatment necessitated surgery, as a
result of which she died on October 8, 1979.
3
On August 13, 1981, appellant filed this
action.
[Headnote 1]
NRS 41A.097 provides that an action may not be commenced more than four years after
the injury has occurred or more than two years after plaintiff has or should have discovered it.
The question presented to us is whether, in a wrongful death action, the term injury refers
to the injury to the decedent through the negligent treatment which led to his or her death or,
rather, refers to injury to the plaintiff through the death of the decedent. Respondents contend,
and the trial court assumed, that the former interpretation is the correct one. We disagree. We
hold that in an action for wrongful death, the injury contemplated by NRS 41A.097 is the
death of the malpractice victim and the two-year period of limitation begins to run from
the time of death or the discovery thereof.4
____________________

2
NRS 41A.097 provides in pertinent part:
1. Except as provided in subsection 2, an action for injury or death against a provider of health care
shall not be commenced more than 4 years after the date of injury or 2 years after the plaintiff discovers
or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for:
(a) Injury to or wrongful death of a person, based upon alleged professional negligence of the
provider of health care;
(b) Injury to or wrongful death of a person from professional services rendered without consent; or
(c) Injury to or wrongful death of a person from error or omission in practice by the provider of health
care.

3
Appellant does not allege any negligence in the operation. His contention is that but for his mother's
negligent treatment at respondents' hands, surgery would not have been necessary and she would not have died.
These facts are gleaned from appellant's complaint and affidavits. In an appeal from a summary judgment we
must of course accept them as true. See Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963).
death, the injury contemplated by NRS 41A.097 is the death of the malpractice victim and the
two-year period of limitation begins to run from the time of death or the discovery thereof.
4

[Headnote 2]
This result follows logically from the nature of the wrongful death cause of action. NRS
41.085 creates an independent cause of action in the heirs and personal representatives of one
whose death is caused by the wrongful act or neglect of another. The right of action is not
concerned with the wrong done to the decedent but only with the wrong done to the heirs
through the decedent's death; consequently, it has no existence before the death of the
decedent has occurred. See Perry v. Tonopah Mining Co., 13 F.2d 865 (D. Nev. 1915); Peers
v. Nevada Power, Light and Water Co., 119 F. 400 (D. Nev. 1902); see also Parker v.
Chrysler Motors Corp., 88 Nev. 560, 502 P.2d 111 (1972). With these principles in mind, we
are not persuaded that the Legislature intended to modify the general rule by using the term
injury to refer to the harm to the decedent rather than to the heirs.
The California Supreme Court reached the same conclusion in Larcher v. Wanless, 557
P.2d 507 (Cal. 1976), when construing the California medical malpractice statute of
limitations, which in relevant part is nearly identical to ours. The court considered the harsh
results that would flow from a construction allowing the limitation period to commence with
the heirs' discovery of the victim's injury. If the malpractice victim lived long enough after the
discovery of the negligent treatment, the statute of limitations would extinguish the cause of
action in the heirs before it had ever accrued.
5
The court found no evidence of a legislative
purpose to so truncate the recovery rights of the heirs of malpractice victims. Id. at 511.
The legislative objective had been to circumscribe the discovery doctrine, under which as
long as the plaintiff had no knowledge of the injury, the commencement of the limitation
period could be indefinitely postponed. The statute limited the length of time during which
the possibility of suit could be perpetuated, by providing for an absolute four-year
limitation beginning from the date of the injury.
____________________

4
It is to be presumed that the Legislature intended the term injury to have the same meaning in the parallel
two-year and four-year limitation periods of the statute. Consequently, in an action for wrongful death the
overall four-year period of limitation commences from the death of the malpractice victim. Because in most
cases the death of the victim and its discovery by the heirs are contemporaneous, the four-year limitation is likely
to be of less importance than in actions for malpractice.

5
Under NRS 41A.097 this would happen if the victim lived for more than two years after the discovery of the
maltreatment. Under the California statute the analogous period is one year. See California Code of Civil
Procedure 340.5.
of time during which the possibility of suit could be perpetuated, by providing for an absolute
four-year limitation beginning from the date of the injury. This legislative purpose would still
be accomplished by a limitation period commencing on the date that the death of the decedent
first created a right of recovery in the heirs.
The legislative history of NRS 41A.097 indicates that it was based on the California
statute construed in Larcher. See Hearing on A.B. 303 before the Assembly Comm. on the
Judiciary, 56th Session (March 11, 1971) (Comm. Minutes p. 259-260). The minutes show
that the Legislature decided to change the one-year discovery period of the California statute
to a more generous two-year period, although the former would have led to greater reduction
in malpractice exposure. Respondents' interpretation of NRS 41A.097 would attribute to the
Legislature a single-minded purpose to limit liability for medical malpractice even at the cost
of barring potential plaintiffs from court before they had ever had a chance to bring suit. In
line with the reasoning of Larcher v. Wanless, supra, we consider this to be a harsh and
inequitable result, and we do not find either in the statute, or in the circumstances surrounding
its enactment, evidence that such was the legislative intent.
Our construction is also consistent with our reasoning in Massey v. Litton, 99 Nev. 723,
669 P.2d 248 (1983), in which we held that in an action for malpractice the term injury in
NRS 41A.097 means legal injury, i.e. the essential elements of a cause of action, and does not
refer merely to the physical harm. The death of the decedent being an essential element of the
cause of action for wrongful death, there can be no legal injury until the death has occurred.
Inasmuch as appellant appears to acknowledge that he can obtain all the relief he seeks in a
wrongful death action, there is no need to consider other questions. Accordingly, we reverse
the judgment of the trial court and remand for proceedings consistent with this opinion.
Manoukian, C. J., and Springer, Mowbray, and Steffen, JJ., concur.
____________
100 Nev. 522, 522 (1984) Groso v. Lyon County
ERNEST GROSO and GENEVIEVE GROSO, Appellants, v. LYON COUNTY, NEVADA;
BOARD OF COUNTY COMMISSIONERS OF LYON COUNTY; EX OFFICIO BOARD
OF HIGHWAY COMMISSIONERS, JOHN POLI, JOHN McNOWN, and EDWARD
MALONEY, Constituting the Members of Said Board; LYON COUNTY PLANNING
COMMISSION, BOBBIE MILLER, MELVIN PURSEL, NEIL MORTENSEN, NELSON
SCIARINI, CAROL BONDS, GEORGIA FULSTONE and CLAUDE WILLIAMS,
Constituting the Members of Said Board; LYON COUNTY RECORDER WARREN LEWIS
and JAMES COMPSTON; EXECUTIVE CONSULTANTS, INC., a Nevada Corporation;
LESLIE E. PETERS and PATRICIA M. PETERS, Husband and Wife; WILLIAM O'BRIEN,
MILDRED O'BRIEN, Respondents.
No. 14261
October 4, 1984 688 P.2d 302
Appeal from a judgment approving an administrative decision and declaring a roadway
public. Third Judicial District Court, Lyon County; Michael R. Griffin, Judge.
The district court ratified the county planning commission's approval of three parcel maps
and declared a certain road public, and owners of property through which road passed
appealed. The Supreme Court held that: (1) trial court did not err in concluding that road had
become public, and (2) county planning commission did not abuse its discretion in approving
the three parcel maps and in accepting the road as sufficient offsite access for the planned
parcels.
Affirmed.
Daniel R. Walsh, Carson City, Nevada, for Appellants.
William Rogers, District Attorney, Lyon County, Nevada, Woodburn, Wedge, Blakey &
Jeppson, Reno, Nevada, Ronald T. Banta, Yerington, Nevada, George M. Keele,
Gardnerville, Nevada, Don Cory Clapp, San Carlos, California, for Respondents.
1. Adverse Possession.
Whether use of servient estate is permissive or adverse is question of fact.
2. Highways.
Trial court's determination that use of road which passed through private property was adverse was based
on substantial evidence and would not be disturbed.
3. Easements.
Easement by prescription is established by five years of adverse, continuous, open and peaceable use.
4. Highways.
Since all the elements of prescriptive easement were established, trial court did not err in concluding that
road which passed through private property had become public.
County planning commission did not abuse its discretion in approving three parcel maps notwithstanding
contention that submission of the three parcel maps was an attempt to circumvent subdivision statute and
that resulting parcels actually constituted subdivision. NRS 278.462, 278.462, subd. 3.
County planning commission did not abuse its discretion in accepting county road which passed through
private property as sufficient offsite access for planned parcel.
OPINION
Per Curiam:
This appeal concerns the district court's ratification of the approval of three parcel maps by
the Lyon County Planning Commission. The maps were submitted to the Commission by
respondent James Compston. At least one of these maps identified the Hoye Canyon Road,
which passes through appellants' property, as the only offsite access to the proposed parcels.
Appellants contend that this road is a private thoroughfare as it passes through their land.
They appeal the district court's finding that it is a public road. They also contend that the
Commission's approval of the parcel maps was an abuse of discretion in that the parcels are
actually a subdivision under state law and have not been demonstrated to have adequate
offsite access. For the reasons stated below, we affirm the district court's judgment for
respondents.
The lower court found that the portion of Hoye Canyon Road passing through appellants'
property had become a public road by prescriptive use by virtue of the open, continuous,
adverse use by the general public . . . for at least seventy years. Appellants' sole contention
on appeal relative to this finding is that the evidence showed only a permissive use which
could not ripen into a prescriptive right.
[Headnotes 1-4]
Whether the use of a servient estate is permissive or adverse is a question of fact. Jackson v.
Hicks, 95 Nev. 826, 604 P.2d 105 (1979). The trial court's determination that the use was
adverse in this case is based on substantial evidence and will not be disturbed. See Jacobson
v. Best Brands, Inc., 97 Nev. 390, 632 P.2d 1150 {19S1).
632 P.2d 1150 (1981). An easement by prescription is established by five years of adverse,
continuous, open and peaceable use. Dean v. Pollard, 93 Nev. 105, 560 P.2d 911 (1977).
Since all the elements of a prescriptive easement were established, the court did not err in
concluding that the road had become public.
[Headnote 5]
The trial court also correctly determined that the Commission did not abuse its discretion
in approving the three parcel maps. Appellants argue that respondent Compston's seriatim
submission of three parcel maps was an attempt to circumvent the subdivision statute and that
the resulting parcels actually constitute a subdivision under state law. In support of their
argument, appellants cite Pratt v. Adams, 40 Cal.Rptr. 505 (Cal.App. 1964), and Bright v.
Board of Supervisors, 135 Cal.Rptr. 758 (Cal.App. 1977). These cases, however, construe the
California subdivision statutes which are distinctly different from the applicable Nevada
statutes. NRS 278.462(3) clearly contemplates the further development of property by the use
of parcel map where contiguous property has already been approved for development in a
previously submitted parcel map.
1
Approval of the proposed development is committed to
the discretion of the local planning authority. A review of the record convinces us that the
commission did not abuse its discretion in this case.
[Headnote 6]
Appellants' further argument that the acceptance of the Hoye Canyon Road as offsite
access for the parcels somehow violated the law or the established policy of the County
Commission is also meritless. The fact that the Hoye Canyon Road provides legal public
access to the parcels in question has been established. A review of the record indicates that it
was not uncommon for the Commission to accept existing county roads as sufficient offsite
access for planned parcels.
Appellant's other arguments have been considered and are without merit.
Affirmed.
2

____________________

1
NRS 278.462 provides in relevant part:
The governing body may require:
. . .
(3) For a second or subsequent parcel map with respect to a single parcel or contiguous tract of land
under the same ownership any reasonable improvement, but not more than would be required if the parcel
were a subdivision.

2
The Honorable Noel E. Manoukian, Chief Justice, voluntarily disqualified himself. Nev. Const., art. 6, 19,
SCR 10.
____________
100 Nev. 525, 525 (1984) Zugel v. Miller
KEVIN ZUGEL, by LAWRENCE ZUGEL, Guardian Ad Litem, Appellant, v. GEORGE
PARKER MILLER and ARLENE MILLER, Respondents.
No. 14456
October 4, 1984 688 P.2d 310
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Injured motorcycle passenger brought suit against parents of driver contending that they
had negligently permitted their minor son to drive motorcycle on a public roadway, and that
passenger had incurred certain injuries as a result of that negligence. The district court entered
summary judgment against injured passenger, and appeal was taken. The Supreme Court held
that genuine issues of material fact were raised whether parents knowingly permitted their son
to ride motorcycle on public roadway, in violation of statute, so that they could be held liable
on a negligence per se theory, and whether parents could be held liable for negligently
entrusting motorcycle to their son, thereby precluding summary judgment.
Burns & Pritchard, Las Vegas, for Appellant.
Dickerson, Miles, Pico & Mitchell, Las Vegas, for Respondents.
1. Judgment.
In suit brought by injured motorcycle passenger against parents of driver contending that they had
negligently permitted their minor son to drive motorcycle on a public roadway, and that passenger had
incurred certain injuries as a result of this negligence, genuine issues of material fact were raised whether
parents of driver knowingly permitted their son to ride motorcycle on public roadway in violation of
statute, entitling passenger to relief on a negligence per se theory of liability, and whether parents of driver
were liable because they negligently entrusted motorcycle to their son, thereby precluding summary
judgment. NRS 483.580.
2. Automobiles.
Under doctrine of negligent entrustment of a motor vehicle, a person who knowingly entrusts a vehicle
to an inexperienced or incompetent person, such as a minor child unlicensed to drive a motor vehicle, may
be found liable for damages resulting thereby.
3. Automobiles.
Under doctrine of negligent entrustment of a motor vehicle, entrusting person need not have known that
the motor vehicle was going to be driven on the public roadway in order to be held liable.
4. Automobiles.
A parent who entrusts his child with a motor vehicle may be found liable under doctrine of negligent
entrustment even when the parent expressly instructs child not to use the vehicle on a public roadway.
5. Automobiles.
Key elements under doctrine of negligent entrustment of a motor vehicle are whether an entrustment
actually occurred, and whether the entrustment was negligent.
6. Automobiles.
Fact that parents might have told their minor son not to ride motorcycle on public roadways did not
automatically bar injured passenger's cause of action for negligence pursuant to doctrine of negligent
entrustment of a motor vehicle.
7. Automobiles.
Parents of driver of motorcycle could not avoid liability to injured passenger under doctrine of negligent
entrustment on ground that their son had much experience driving motorcycle in off-road situations, since
son was legally incompetent to drive motorcycle on public roadways, and presumably had no training or
experience in that type of driving.
OPINION
Per Curiam:
Appellant filed a complaint against respondents contending that they had negligently
permitted their minor son to drive a motorcycle on a public roadway, and that appellant had
incurred certain injuries as a result of this negligence. On respondents' motion, the district
court granted summary judgment against appellant, and this appeal ensued. We have
determined that triable issues of fact remain for trial, and we therefore reverse the summary
judgment and remand the matter for further proceedings.
The undisputed facts of this case indicate that respondents' son was thirteen years old at
the time of the accident. Although he did not have a driver's license, he was driving a
motorcycle on a public roadway with appellant as a passenger when he ran a stopsign. As a
result thereof, an accident occurred in which appellant received various injuries.
The motorcycle had been purchased and used by respondents' son with respondents'
permission for some three weeks prior to the accident. The parents had expressly instructed
their son not to ride the motorcycle on a public roadway, but had freely let the son ride the
motorcycle without supervision in off-road situations.
Respondents contended, and the district court apparently agreed, that as a matter of law
respondents could not be found liable for their son's actions under these circumstances. We
disagree.
[Headnote 1]
There are at least two possible theories upon which respondents could be found liable
under the facts of this case. The first possible theory of liability is premised upon the
following statute, NRS 483.580; No person shall cause or knowingly permit his child or
ward under the age of 1S years to drive a motor vehicle upon any highway when such
minor is not authorized under the provisions of NRS 4S3.010 to 4S3.630, inclusive, or in
violation of any of the provisions of NRS 4S3.010 to 4S3.630, inclusive.1
No person shall cause or knowingly permit his child or ward under the age of 18 years
to drive a motor vehicle upon any highway when such minor is not authorized under the
provisions of NRS 483.010 to 483.630, inclusive, or in violation of any of the
provisions of NRS 483.010 to 483.630, inclusive.
1

If appellant were able to demonstrate at trial that respondents violated this statute, that
appellant's injuries were proximately caused by the violation, and that the statute was
designed to protect members of a class to which appellant belonged, then appellant would be
entitled to relief on a negligence per se theory of liability. See Barnes v. Delta Lines, Inc., 99
Nev. 688, 669 P.2d 709 (1983).
Respondents concede that their son purchased and used the motorcycle with their
knowledge and consent, and they admit that the son was not legally authorized to drive the
vehicle on a public roadway pursuant to the provisions set forth above. They nevertheless
contend that, as a matter of law, appellant failed to present sufficient facts to establish that
they knowingly permitted their son to ride the motorcycle on a public roadway. The son stated
in his deposition, however, that he routinely rode his motorcycle on a portion of a public
roadway near his home. From this fact alone the jury could have inferred that respondents
possessed knowledge of their son's activities of driving the motorcycle on public roadways.
Indeed, respondents did not deny that they had such knowledge.
Moreover, this court has held that the question of whether a defendant may be found liable
under a negligence per se theory of liability is in general a question of fact for a jury. Id.; see
also Nehls v. Leonard, 97 Nev. 325, 630 P.2d 258 (1981) (questions of negligence are in
general questions of fact for jury to resolve). As such, there remains a triable issue of fact for
the jury concerning whether respondents could be found liable under this theory. Summary
judgment was therefore improper.
[Headnotes 2-5]
A second possible theory of liability in this case is that of negligent entrustment of a
motor vehicle. Under this doctrine, a person who knowingly entrusts a vehicle to an
inexperienced or incompetent person, such as a minor child unlicensed to drive a motor
vehicle, may be found liable for damages resulting thereby.
2
See, e.g., McCart v. Muir, 641
P.2d 384 (Kan. 1982); Sedlacek v. Ahrens, 530 P.2d 424 {Mont.
____________________

1
These provisions provide, among other things, that a child may not in general be issued a driver's license
until age 16 years, but may be issued a restricted license in certain specified situations when the child is
between the ages of 14 and 16 years. See NRS 483.250, 483.267, 483.270.

2
Contrary to respondents' contention, entrustment of a motorcycle may come within the purview of the
doctrine of negligent entrustment
(Mont. 1974); see also Connell v. Carl's Air Conditioning, 97 Nev. 436, 634 P.2d 673 (1981)
(doctrine of negligent entrustment held not to apply under particular facts of case). See
generally 7A Am.Jur.2d Automobiles and Highway Traffic 643-45 (1980). Under this
theory of liability, the entrusting person need not have known that the motor vehicle was
going to be driven on a public roadway. See, e.g., Sedlacek v. Ahrens, supra. In fact, a parent
who entrusts his child with a motor vehicle may be found liable under a theory of negligent
entrustment even when the parent expressly instructs the child not to use the vehicle on a
public roadway. Id. The key elements are whether an entrustment actually occurred, and
whether the entrustment was negligent.
3
See McCart v. Muir, supra at 389.
[Headnotes 6, 7]
As noted above, respondents consented to their thirteen-year-old son's acquisition and use
of the motorcycle, and they knew that their son had no license to drive the motorcycle on a
public roadway. Contrary to respondents' contention, the fact that they may have told their
son not to ride the motorcycle on public roadways does not automatically bar appellant's
cause of action for negligence. See Sedlacek v. Ahrens, supra. We also disagree with
respondents' contention that, as a matter of law, their entrustment was not negligent because
their son had much experience driving the motorcycle in offroad situations. The son was
legally incompetent to drive the motorcycle on public roadways, and presumably had no
training or experience in this type of driving.
Moreover, as noted above, the question of whether a defendant was negligent in a
particular situation is a question of fact for the jury to resolve. See Nehls v. Leonard, supra.
Summary judgment is only proper where the moving party is entitled to judgment as a matter
of law, and no genuine issue of fact remains for trial. See Nehls v. Leonard, supra. Accepting
all evidence favorable to appellant, it appears that factual issues exist concerning whether
respondents were negligent under either of the above two theories of liability.
Accordingly, we conclude that the district court erred by granting summary judgment in
favor of respondents. The district court's judgment is therefore reversed and the matter is
remanded for further proceedings.
____________________
of a motor vehicle. See, e.g., Sedlacek v. Ahrens, infra; see also NRS 483.090 (defines motor vehicle as
including every vehicle which is self-propelled).

3
Respondents' reliance on Muma v. Brown, 148 N.W.2d 760 (Mich. 1967) in this regard is misplaced. In that
case, the parents did not entrust the child with a motor vehicle since they never permitted the child to drive the
vehicle under any conditions.
____________
100 Nev. 529, 529 (1984) Stoltz v. Grimm
ROSS E. STOLTZ, Appellant, v. W. RAY GRIMM, RICHARD E. TAYLOR,
and THE CITY OF RENO, Respondents.
No. 14527
October 4, 1984 689 P.2d 927
Appeal from a judgment granting specific performance of a land sales contract, equitable
accounting, and denying the appellant's third party complaint against the City of Reno;
Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Specific performance was sought of a land sales contract, and vendor filed third party
complaint against city which had sought to require dedication of road right-of-way. The
district court granted specific performance and equitable accounting, and denied the third
party complaint, and vendor appealed. The Supreme Court held that: (1) specific performance
was not precluded on claim of impossibility on ground that required dedication of road
prevented vendor from conveying 44 trailer spaces required by contract, where purchasers
waived the defect; (2) required dedication of road did not preclude specific performance on
theory of undue hardship; (3) it was not necessary to specific performance that the purchasers
had paid substantial portion of the purchase price or made substantial improvements, or that
the failure to give relief would amount to unconscionable forfeiture; (4) certain costs awarded
purchasers in connection with the equitable accounting were too remote; and (5) the road
dedication requirement was proper.
Affirmed in part; reversed in part.
Leonard T. Howard, Reno, for Appellant.
Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane, Reno for Respondents Grimm and
Taylor.
Cromer, Barker, Michaelson, Gillock & Rawlings; Charles W. Spann, Reno for
Respondent City of Reno.
Specific performance on behalf of purchasers of contract to sell a mobile home park was not precluded
on ground of impossibility, though dedication of a road required by city prevented vendor from conveying
enough land to provide the 44 trailer spaces required by the contract, where purchasers had waived that
defect in vendor's title and were willing to purchase the property as burdened by the road easement.
Vendor may not rely on deficiency in his own title to defeat purchaser's right to specific performance.
Specific performance on behalf of purchasers of land sales contract was not precluded on theory of undue
hardship to vendor, by reason of fact that performance would require city's approval of a parcel map which
in turn would require reflection of a road easement affecting not only the parcel at issue but other property
of the vendor, where any such hardship was foreseeable in that vendor knew of city's intended use of road
when he entered into the contract.
Where subject matter of sales contract was real property, and thus unique, specific performance was
available to purchasers when they were ready, willing, and able to perform, and it was not necessary that
purchasers had paid a substantial portion of the purchase price or made substantial improvements, or that
failure to give requested relief would amount to unconscionable forfeiture.
In granting specific performance, court of equity may award monetary compensation as incidental relief
where a specific performance does not by itself afford complete relief.
Where purchaser of land is awarded specific performance of purchase contract, he or she is entitled to
allowance for losses occasioned by vendor's delay in conveying the property, but is not entitled to recover
for losses which were not the natural and direct result or proximate cause of the failure to convey as
planned.
In equitable accounting in connection with specific performance awarded purchasers of a land sales
contract, it was error to award purchasers additional costs relating to sewer construction and fencing arising
from ownership of adjacent parcel because of delay in acquiring the parcel at issue, where the adjacent
parcel had not been purchased when the parties entered into the present contract, so that the additional
costs were too remote.
8. Public Lands.
Where land patents from the United States were issued subject to easement for road right-of-way,
voluntary dedication by patentee of a road strip along the northern boundary of the property was not in
satisfaction of the patent reservation, so that the city's subsequent dedication requirement of a strip along
the western boundary of the property was proper.
OPINION
Per Curiam:
This is an appeal from a judgment granting specific performance of a land sales contract
with an accompanying equitable accounting. The central issue in this appeal is the propriety
of the trial court's order granting specific performance of Stoltz's agreement to sell a certain
five-acre parcel of land known as the Covered Wagon Mobile Home Park to the respondents,
Grimm and Taylor. Stoltz repudiated the contract after being informed by the City of Reno
that he was required to dedicate a 33-foot strip of land for a roadway easement as a
condition for the approval of a parcel map subdividing Stoltz's property.
33-foot strip of land for a roadway easement as a condition for the approval of a parcel map
subdividing Stoltz's property.
Historically, the parcel of land at the heart of this dispute originated from two 1952 land
patents from the U.S. Government covering 10 acres of contiguous land. Both parcels
contained the following reservation:
This patent is issued subject to an easement for a road-way not exceeding 33 feet in
width, to be constructed across said land, or as near as possible, to the exterior
boundaries.
On November 1, 1962, Stoltz dedicated a 33-foot strip of land across the northern
boundary for the development of Hoge Road. Stoltz testified that he never inquired into
whether the Hoge Road dedication satisfied the reservation in the land patent and that he
could not remember whether the county requested the dedication or not.
Over the years, the original 10-acre parcel was divided into three separate lots, designated
as lots A, B, and C. On lot A, Stoltz constructed a barn and a residence. Lot B was developed
into the Covered Wagon Mobile Home Park. Lot C was left undeveloped.
In April of 1969, the City of Reno prepared a layout for the proposed acquisition of Stoltz
Road. According to the proposed plan, the Stoltz Road right-of-way would traverse the
western edge of all three lots owned by Stoltz by 33 feet and would pass directly over the
barn constructed by Stoltz on lot A. Although Stoltz maintained that the 33-foot reservation
contained in the land patent had been satisfied by his 1962 dedication, various landowners
abutting Stoltz Road, including Stoltz's son, dedicated the 33-foot right-of-way to the city.
In January, 1978, respondents Grimm and Taylor entered into an agreement for the
purchase of the 5-acre mobile home park located on lot B. Under the terms of the agreement,
Stoltz was required to have the property surveyed and a parcel map for the subdivision of the
property approved by the city.
1
The agreement did not mention either the City of Reno's
proposed acquisition or the 33-foot reservation in the land patent.
Shortly after entering into the contract to purchase the Mobile Home Park, Grimm and
Taylor purchased lot C from Stoltz and developed it into the Bonanza R. V. Park.
In March, 1978, a parcel map prepared under the direction of Stoltz was submitted to the
City of Reno. The submitted parcel map did not reflect the proposed development of Stoltz
Road.
____________________

1
NRS 278.461(1) reads in part:
A Person who proposes to divide any land for transfer or development into four or fewer lots shall file
a parcel map in the office of the County recorder. . . .
parcel map did not reflect the proposed development of Stoltz Road. Accordingly, the City of
Reno informed Stoltz that the parcel map would not be approved unless modified to show the
existence of the road.
In early April, 1978, Stoltz informed Grimm and Taylor that he would not proceed with
the sale because of the dedication required by the city. Grimm and Taylor were prepared to go
through with the agreement despite losing the western 33 feet of the property and therefore
filed a complaint for specific performance on April 26, 1978. Stoltz appeals from a judgment
granting specific performance, awarding damages pursuant to an equitable accounting, and
denying Stoltz's third party complaint against the City of Reno.
Specific Performance
[Headnotes 1, 2]
Stoltz contends that specific performance was improper under the circumstances of this
case for a number of reasons. Initially, Stoltz seeks relief from his contractual obligations
under the doctrine of impossibility, arguing that the required dedication of Stoltz Road
prevented him from conveying enough land to provide 44 trailer spaces on lot B as required
by the contract.
In reviewing the record, we are not persuaded by Stoltz's claim of impossibility. Grimm
and Taylor have waived the defect in Stoltz's title and are willing to purchase the property as
burdened by the easement. A seller may not rely on the deficiency in his own title to defeat
the buyer's right to specific performance. Carcione v. Clark, 96 Nev. 808, 618 P.2d 346
(1980) (buyer waived defect in title due to lis pendens on property).
[Headnote 3]
Stoltz next claims that the required dedication of portions of lot A to the City of Reno as a
condition for obtaining a parcel map amounts to undue hardship. We disagree. The trial court
found that Stoltz knew of the city's intended use of Stoltz Road when he entered into the
contract for the sale of lot B to Grimm and Taylor.
2
Despite this knowledge, Stoltz obligated
himself to obtain the city's approval of a parcel map.
____________________

2
In the case at hand, there is substantial evidence to support the district court's finding that Stoltz was aware
of the easement claimed by the city on all parcels abutting Stoltz Road prior to his entering into a contract with
Grimm and Taylor. Stoltz testified that he was aware of the reservation in his patent; that he knew of the city's
claims against abutting landowners along Stoltz Road who dedicated the western portion of the road; and that he
discussed the city's claimed easement with his son, C. D. Stoltz, who owned the northwest parcel adjacent to
Stoltz's land and which similarly had been subject to the 1962 Hoge Road dedication.
to obtain the city's approval of a parcel map. Stoltz therefore assumed the risk that the city
would require the Stoltz Road easement to be reflected on the parcel map. Any hardship
resulting from the specific performance of the agreement was foreseeable.
[Headnote 4]
Finally, Stoltz cites McCann v. Paul, 90 Nev. 102, 520 P.2d 610 (1974), for the
proposition that specific performance is only proper if the purchaser has paid a substantial
portion of the purchase price, or has made substantial improvements on the property, or if the
failure to give the requested relief would amount to an unconscionable forfeiture.
Stoltz's reliance upon McCann is misplaced. McCann concerned a trial court's failure to
grant specific performance requested by a buyer who tendered performance 29 days late. In
affirming the trial court's decision not to grant specific performance, the court stated:
In these instances where equitable relief is granted to the purchaser, we normally find
that he has paid a considerable portion of the purchase price, or has entered upon the
property and enhanced its value by placing improvements thereon, or some other
circumstances that would constitute a forfeiture of substance, if such relief were not
given.
90 Nev. at 104 (citations omitted).
The language quoted above is merely illustrative of the factors that are generally present
when specific performance is granted and is not phrased in mandatory terms as Stoltz
contends. Instead, our decision in Carcione is dispositive. In Carcione, the purchasers of a
residential home sought specific performance to compel the sellers to convey. The district
court found that the buyers had attempted to fully perform but that the conveyance was
hindered by the seller's refusal to convey. In discussing whether specific performance was
appropriate the court stated:
Equity regards as done what in good conscience ought to be done. Specific performance
is available when the terms of the contract are definite and certain, the remedy at law is
inadequate, the plaintiff has tendered performance and the court is willing to order it.
96 Nev. at 811 (citations omitted).
In the case at hand, the subject matter of the contract was real property, and as such is
unique. See Locken v. Locken, 98 Nev. 369, 372, 650 P.2d 803 (1982). An action at law for
breach of damages would therefore be inadequate. Carcione, above.
Since Grimm and Taylor are ready, willing, and able to perform, under the holding of
Carcione, the district court did not abuse its discretion in granting specific performance.
Equitable Accounting
Stoltz claims a number of errors were committed by the trial court in allowing certain
items in the equitable accounting. In most of these matters the court's conclusions and
judgment were based on substantial evidence and were properly awarded. However, in
allowing recovery to Grimm and Taylor for costs of a sewer system and for costs of
construction of a fence we believe the trial court erred.
The record discloses that Grimm and Taylor intended to operate a recreational vehicle park
on lot C in conjunction with the mobile home park on lot B. Their plans included the
construction of a gravity sewage system which would transport waste from lot C through the
subject mobile home park on lot B. They claim that by reason of Stoltz's repudiation of the
contract such a gravity system could not be installed and that, instead, a more expensive
sewer lift station had to be put in place.
Grimm and Taylor also claim that they are entitled to recover the cost of installing a fence
on lot C which was required by a city ordinance as a condition for operating the recreational
vehicle park because the properties were not, in view of the repudiation, commonly owned.
[Headnotes 5, 6]
In granting specific performance of a contract, a court of equity may award monetary
compensation as incidental relief where specific performance does not by itself afford
complete relief. Fleischer v. Buccilli, 163 N.W.2d 637 (Mich.App. 1967). Where a purchaser
of land is awarded specific performance of the purchase contract, he or she is entitled to an
allowance for the losses occasioned by the vendor's delay in conveying the property. Miller v.
Talbott, 211 A.2d 741, 748 (Md.App. 1965). The purchaser is not, however, entitled to
recover for losses which were not the natural and direct result or proximate cause of the
failure to convey as planned. White v. Felkel, 82 S.E.2d 813 (S.C. 1954).
[Headnote 7]
In the case at hand, both the sewer lift station and the installment of the fence were
expenses relating to the use and operation of a parcel of land which had not even been
purchased when the parties entered into the present contract. As such, the increased costs did
not naturally flow from the delay in conveying lot B as originally planned, but instead
resulted from the subsequent decision by Grimm and Taylor to acquire lot C and to operate
both businesses jointly.
subsequent decision by Grimm and Taylor to acquire lot C and to operate both businesses
jointly. The costs are therefore too remote. The award of compensation for the additional
costs of the sewer lift station and the fence is reversed and the matter remanded to the trial
court for the judgment to be reduced accordingly.
As to the remaining allegations of error argued by Stoltz against the judgment in favor of
Grimm and Taylor, we find them to be without merit.
Liability of the City of Reno
[Headnote 8]
The remaining question to be considered is whether the trial court correctly ruled that the
city had the power to require the inclusion of the Stoltz Road right-of-way in the parcel map
as a condition for obtaining the approval of the submitted map by the city.
The city argues that Stoltz was required to dedicate the land to the city under the language
in the 1952 land patents. We agree. There is substantial evidence to support the trial court's
finding that the 1962 dedication of Hoge Road by Stoltz was voluntary. Stoltz has therefore
failed to prove that the reservation contained in the 1952 land patent had been previously
satisfied. Since the 1962 dedication was voluntary and not in satisfaction of the patent
reservation, the 1979 dedication requirement was proper.
The award of the increased costs associated with the sewer lift station and the fence are
reversed. The rest of the judgment is affirmed.
____________
100 Nev. 535, 535 (1984) Mercado v. State
MICHAEL THOMAS MERCADO, Jr., and PATRICK RUSSELL PRICE,
Appellants, v. THE STATE OF NEVADA, Respondent.
No. 14550
October 4, 1984 688 P.2d 305
Appeal from judgment of conviction of first-degree murder and imposition of sentence of
life without the possibility of parole for appellant Mercado and sentence of life with the
possibility of parole for appellant Price; First Judicial District Court, Carson City, Howard D.
McKibben, Judge; sentences imposed by panel composed of Judges Howard D. McKibben,
Michael J. Wendell and Mario G. Recanzone.
Two defendants were convicted in the district court of first-degree murder. A panel of
three judges sentenced one defendant to life without possibility of parole and sentenced the
other defendant to life with possibility of parole, and defendants appealed. The Supreme
Court held that whether defendants' rights were violated by prosecutor's alleged changing of
the theory of the case during rebuttal argument was not properly preserved for review, since
defense counsel raised no objection at the time prosecutor made his comments.
Affirmed.
Aebi, FitzSimmons, & Lambrose, Carson City, for Appellant Michael T. Mercado, Jr.
Robison, Lyle, Belaustegui & Robb, Reno, for Appellant Patrick R. Price.
Brian McKay, Attorney General, Dan R. Reaser, Deputy Attorney General, Carson City,
for Respondent.
1. Criminal Law.
Credibility of witnesses is for jury to evaluate.
2. Criminal Law.
Supreme Court does not independently weigh evidence and credibility of witnesses at trial; rather, it
scrutinizes the record to determine whether there is sufficient evidence from which a rational jury, acting
reasonably, could have reached its verdict.
3. Homicide.
Sufficient evidence existed to support jury verdict finding two inmates guilty of first-degree murder by
participating in the strangulation of another inmate.
4. Criminal Law.
Supreme Court is not obligated to consider issues that have not been properly preserved for review.
5. Criminal Law.
Supreme Court was not obligated to consider whether murder defendants' rights were violated by the
prosecutor's alleged changing of the theory of the case during rebuttal argument, since defense counsel
raised no objection at time prosecutor made his comments, since the issue, therefore, had not been properly
preserved for review, and since there was sufficient evidence in the record to support jury's findings.
OPINION
Per Curiam:
A jury convicted Patrick Russell Price and Michael Thomas Mercado, Jr., of first-degree
murder in the death of Danny Lee Jackson.
1
The jury was unable to agree on the penalty to
be imposed, and three judges were empaneled pursuant to NRS 175.556 to decide
appellants' sentences.
____________________

1
Jackson's real name was Donald Lee Colvett. Since Jackson was the name used by the witnesses at trial and
by the parties in their briefs, that is the name we shall use in our opinion.
imposed, and three judges were empaneled pursuant to NRS 175.556 to decide appellants'
sentences. Although the State had sought imposition of the death penalty, the three-judge
panel sentenced appellant Price to a term of life with the possibility of parole and appellant
Mercado to a term of life without the possibility of parole. We affirm both judgments of
conviction.
At the time of the murder appellants were inmates at the Nevada State Prison in Carson
City, Nevada. On November 5, 1980, inmate Danny Jackson was strangled to death in a
prison bathroom. The record indicates that Jackson was killed by members of the Aryan
Warriors, a well-known Nevada prison gang, apparently because he was unwilling to
jeopardize his chances for parole by continuing to supply members of the gang with drugs.
2
Several members of the Aryan Warriors testified at trial in exchange for immunity from
prosecution for their participation in Jackson's murder. According to their testimony, some
inmates led Jackson into the bathroom and strangled him with a piece of rope while other
inmates, including many of those testifying against appellants, blocked the bathroom window
and engaged in energetic horseplay in the prison yard to divert the guards' attention.
Appellants were charged with aiding and abetting in Jackson's murder.
3
Specifically, the
charging information alleged that appellants acting in concert with James Edward Russo and
other persons, did . . . kill . . . Danny Lee Jackson . . . by aiding and abetting, counseling and
encouraging each other to restrain and immobilize . . . Jackson; so that a cord-like material
could be placed around the neck of . . . Jackson . . . . Conflicting evidence was presented at
trial regarding whether appellants were in the bathroom when Jackson was killed. Appellants'
defense was that they had not been in the bathroom; both took the stand and testified that they
were playing basketball in the prison yard at the time of the murder. Several of the State's
witnesses, however, testified to the contrary. Several inmates testified that they saw appellant
Mercado going into the bathroom; inmate Ricky Weber testified that he saw Mercado
bending over Jackson; inmate Christopher Sevey testified that he saw Mercado pulling the
rope around Jackson's neck and that Mercado subsequently described how Jackson had
gurgled while being strangled. Sevey also testified that he saw Price in the bathroom.
____________________

2
Appellant Mercado, who has the Aryan Warrior tattoo, admitted that he was a member of the gang.
Appellant Price does not have an Aryan Warrior tattoo; conflicting evidence was presented at trial regarding
Price's membership in the Aryan Warriors.

3
A third inmate, James Russo, was charged with directly strangling Jackson, and was separately tried. He was
convicted and sentenced to life imprisonment without the possibility of parole.
[Headnotes 1-3]
Appellants point out that most of these witnesses had themselves participated in Jackson's
murder and had been given immunity in exchange for their testimony; furthermore, evidence
casting doubts on their credibility and the accuracy of their observations had been presented
at trial. However, credibility of witnesses is for the jury to evaluate. Bolden v. State, 97 Nev.
71, 624 P.2d 20 (1981); Wheeler v. State, 91 Nev. 119, 531 P.2d 1358 (1975). As an
appellate court, we do not independently weigh the evidence and the credibility of the
witnesses at trial; rather, we scrutinize the record to determine whether there is sufficient
evidence from which a rational jury, acting reasonably, could have reached its verdict. See
generally Hunt v. State, 92 Nev. 536, 554 P.2d 255 (1976); Sanders v. State, 90 Nev. 433,
529 P.2d 206 (1974). The record before us contains sufficient evidence to support the verdict
of the jury.
Appellant's principal contention on appeal concerns certain comments made by the
prosecutor at closing argument. Appellants contend that their rights were violated because at
rebuttal argument the prosecutor changed the theory of the case. Specifically, the prosecutor
told the jury that in order to convict appellants it did not have to find that they had been in the
bathroom physically participating in Jackson's murder; appellants were guilty if they had been
in the prison yard, diverting attention from the killing. Up to this point, appellants maintain,
the State had proceeded in conformity with the information on a theory that appellants had
actually participated in strangling Jackson inside the bathroom; appellants' defense had been
structured to meet that theory alone.
[Headnotes 4, 5]
Nevertheless, we note that appellants' counsel raised no objection at the time the
prosecutor made his comments. We are not obligated to consider an issue that has not been
properly preserved for our review. Hooper v. State, 95 Nev. 924, 604 P.2d 115 (1979); Kelso
v. State, 95 Nev. 37, 588 P.2d 1035 (1979). Had an objection been raised, the court could
have alleviated the possibility of error by instructing the jury that the prosecutor's comments
did not reflect the theory pleaded in the information and presented at trial. The jury returned a
general verdict, and we do not know under which theory it found appellants guilty.
4
Appellants themselves concede that the entire trial had proceeded on the theory that
appellants had been in the bathroom when Jackson was killed.
____________________

4
Appellants also contend that the jury instructions allowed the jury to find appellants guilty of aiding and
abetting although without any criminal intent. At trial appellants objected to the instruction on aiding and
abetting on grounds that it was not sufficiently specific and that it allowed the
entire trial had proceeded on the theory that appellants had been in the bathroom when
Jackson was killed. As we have previously discussed, there is sufficient evidence in the
record to support such a finding with respect to both appellants. We cannot conclude that the
jury's deliberations were tainted because of one remark, any prejudicial effect of which could
have been cured had an objection been raised at trial.
5

We have reviewed appellants' other contentions and have concluded that they are without
merit. Accordingly, we order both judgments of conviction affirmed.
____________________
jury to convict them without finding that they had been in the bathroom. Appellants proffered an alternative
instruction, which was refused. However, appellants did not object to the part of the instruction dealing with
criminal intent. Appellants' failure to raise a sufficiently particularized objection precludes our consideration of
this issue. Turner v. State, 98 Nev. 103, 641 P.2d 1062 (1982).

5
We note that the attorneys who are representing appellants Mercado and Price on appeal are not the same
attorneys who represented them in the trial court proceedings below.
____________
100 Nev. 539, 539 (1984) Hylton v. State
LANCELOT JULIAN HYLTON, Appellant, v.
No. 14606
October 4, 1984 688 P.2d 304
Appeal from judgment of conviction for first degree murder with use of a deadly weapon,
robbery with use of a deadly weapon, and conspiracy to commit robbery, Eighth Judicial
District Court, Clark County, Howard D. McKibben, Judge.
Defendant was convicted in the district court of first degree murder with the use of a
deadly weapon, robbery with use of a deadly weapon, and conspiracy to commit robbery, and
he appealed. The Supreme Court held that prosecutor's compounded violation of defendant's
spousal privilege by forcing invocation of the privilege in the presence of the jury and
commenting to the jury on the claim of privilege was reversible error.
Reversed and remanded for new trial.
John J. Momot, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney, James
Tufteland, Deputy, Las Vegas, for Respondent.
1. Criminal Law.
It was improper for prosecutor to force invocation of defendant's spousal privilege in the presence of the
jury where prosecutor knew of relationship between defendant and witness when he initially called her to
the stand and where witness was not present at scene of crime and could provide no material evidence
pertaining to defendant's guilt or innocence. NRS 49.295, subd. 1(a).
2. Criminal Law.
It was improper for prosecutor to comment to jury on state's inability to present defendant's wife as its
witness. NRS 49.295, subd. 1(a).
3. Criminal Law.
In murder prosecution, prosecutor's compounded violation of defendant's spousal privilege by forcing
invocation of privilege in presence of jury and commenting on claim of privilege to jury was reversible
error where, of the two primary witnesses for the prosecution, one was found to be defendant's accomplice
and the corroborating witness changed her testimony at trial after being granted immunity from any perjury
she may have committed at preliminary hearing.
OPINION
Per Curiam:
A jury found the appellant, Lancelot Julian Hylton, guilty of first degree murder with the
use of a deadly weapon, robbery with the use of a deadly weapon, and conspiracy to commit
robbery.
Hylton seeks reversal of his judgment of conviction predicated upon twenty-five
assignments of error, including the violation of Hylton's spousal privilege that his wife not
testify during the jury trial.
The victim, Alexander Hamilton, a cocaine dealer, was shot and killed during a drug
transaction involving Hylton. Hylton was present when at least one shot was fired. He was
tried on the theory that he and two other men had planned to rob Hamilton. The testimony at
trial indicated that one of the other men did the shooting.
At trial the prosecution called Hylton's wife, Susan Burke, also known as Susan Hylton, as
a witness. Before she was sworn to testify, defense counsel objected to calling her as a
witness because she was Hylton's wife. The trial judge did not immediately rule on the
objection. After Susan was sworn and identified herself as the wife of Hylton, defense
counsel again objected. The objection was then sustained. Susan did not testify further.
Nevertheless, in his closing argument, the prosecutor stated to the jury that the state could not
call Susan as a witness.
[Headnotes 1, 2]
Calling Susan to the stand was a violation of NRS 49.295(1)(a) which provides: A
husband cannot be examined as a witness for or against his wife without her consent, nor a
wife for or against her husband."
as a witness for or against his wife without her consent, nor a wife for or against her
husband. It is improper for a prosecutor to force the invocation of the spousal privilege in
the presence of the jury. Emerson v. State, 98 Nev. 158, 643 P.2d 1212 (1982). The record
shows that the prosecutor knew of the relationship between Hylton and Susan when he
initially called her to the stand. The state concedes that Susan was not present at the scene of
the shooting and that she could provide no material evidence pertaining to Hylton's guilt or
innocence. It was also improper for the prosecutor to comment to the jury on the state's
inability to present Susan as its witness. George v. State, 98 Nev. 196, 644 P.2d 510 (1982)
(citing NRS 49.405 which prohibits the prosecutor or the court from commenting on any
claim of privilege). Under these circumstances, the prosecutor's action constitutes flagrant
misconduct.
[Headnote 3]
We cannot agree with the state's argument that this error was harmless. The prosecutor's
actions presented to the jury the basis for impermissible inferences arising from Hylton's
claim of privilege. Of the two primary witnesses for the prosecution, one was found to be an
accomplice of Hylton's, and the corroborating witness changed her testimony at trial after
being granted immunity for any perjury she may have committed at the preliminary hearing.
In this context, we find that the compounded violation of Hylton's spousal privilege is
reversible error. The remaining assignments of error may not appear on retrial and therefore
need not be addressed.
Accordingly, we reverse the judgment of conviction and remand for a new trial.
____________
100 Nev. 541, 541 (1984) Jorgensen v. State
WILLIAM GENE JORGENSEN, Appellant, v. THE
No. 14667
October 4, 1984 688 P.2d 308
Appeal from judgment of conviction of escape from custody, First Judicial District Court,
Carson City; Michael E. Fondi, Judge.
Defendant was convicted in the district court of escape from prison custody, and he
appealed. The Supreme Court held that: (1) the following conditions must exist in order for
the necessity defense to excuse the crime of escape: prisoner is faced with specific threat of
death, forcible sexual attack or substantial bodily injury in immediate future, there is no
time for a complaint to the authorities or there exists a history of futile complaints which
make any result from such complaints illusory, there is no time or opportunity to resort to
the courts, there is no evidence of force or violence used towards prison personnel or
other innocent persons in the escape, and prisoner immediately reports to proper
authorities when he has attained a position of safety from the immediate threat, and {2)
defendant bore burden of proving defense of necessity and state bore no burden of
disproving the defense as necessity defense does not negate mental state of the crime of
prison escape.
bodily injury in immediate future, there is no time for a complaint to the authorities or there
exists a history of futile complaints which make any result from such complaints illusory,
there is no time or opportunity to resort to the courts, there is no evidence of force or violence
used towards prison personnel or other innocent persons in the escape, and prisoner
immediately reports to proper authorities when he has attained a position of safety from the
immediate threat, and (2) defendant bore burden of proving defense of necessity and state
bore no burden of disproving the defense as necessity defense does not negate mental state of
the crime of prison escape.
Affirmed.
Thomas E. Perkins, State Public Defender, and Laura FitzSimmons and Robert Bork,
Deputy State Public Defenders, Carson City, for Appellant.
Brian McKay, Attorney General, and Ernest E. Adler and David F. Sarnowski, Deputy
Attorneys General, Carson City, for Respondent.
1. Escape.
In order for the necessity defense to excuse the crime of escape, all of the following conditions must
exist: prisoner is faced with specific threat of death, forcible sexual attack or substantial bodily injury in the
immediate future, there is no time for a complaint to authorities or there exists history of futile complaints
which make any result from such complaints illusory, there is no time or opportunity to resort to the courts,
there is no evidence of force or violence used towards prison personnel or other innocent persons in the
escape, and the prisoner immediately reports to proper authorities when he has attained a position of safety
from the immediate threat. NRS 212.090.
2. Criminal Law.
When a defense negates an element of the offense, state must disprove the defense because of the
prosecution's burden to prove all elements of the charged offense beyond a reasonable doubt.
3. Criminal Law.
State bore no burden of disproving defense of necessity to crime of prison escape and defendant bore
burden or proving such defense as necessity defense does not negate mental state of crime of prison escape,
but rather, crime of escape is excused as a matter of public policy when valid necessity defense is
established. NRS 194.010.
OPINION
Per Curiam:
William Gene Jorgensen appeals from a judgment of conviction of escape from prison
custody, NRS 212.090. We hold that both of his assignments of error are without merit, and
affirm.
At his jury trial, appellant raised the defense of necessity, claiming he had to escape
because he had been threatened with death by a group of unidentified inmates. The district
court instructed the jury on the necessity defense as defined in People v. Lovercamp, 118
Cal.Rptr. 110 (Ct.App. 1975). Appellant now contends that the court erred by giving the
Lovercamp instruction, and that the court should have instructed the jury on the less
restrictive definition of the defense adopted in other jurisdictions. We reject this argument.
The Lovercamp court ruled that in order for the necessity defense to excuse the crime of
escape, all of the following conditions must exist:
1. The prisoner is faced with a specific threat of death, forcible sexual attack or
substantial bodily injury in the immediate future;
2. There is no time for a complaint to the authorities or there exists a history of
futile complaints which make any result from such complaints illusory;
3. There is no time or opportunity to resort to the courts;
4. There is no evidence of force or violence used towards prison personnel or other
innocent persons in the escape; and
5. The prisoner immediately reports to the proper authorities when he has attained a
position of safety from the immediate threat.
118 Cal.Rptr. at 115. The Lovercamp definition requires the inmate to satisfy all five of these
conditions before he or she can establish a valid defense. This approach has been adopted by
at least two states, and is consistent with federal law. See State v. Horn, 566 P.2d 1378
(Hawaii 1977); State v. Stuit, 576 P.2d 264 (Mont. 1978); see also United States v. Bailey,
444 U.S. 394 (1980).
Other jurisdictions have rejected the Lovercamp approach and have adopted the less
restrictive definition of the defense urged upon us by appellant. Under this definition, the
inmate need not satisfy all five of the Lovercamp conditions, but need only establish that the
escape was reasonable under its attendant circumstances. The five conditions are not
prerequisite to a valid defense, but are matters to be considered by the jury in assessing the
weight and credibility of the evidence proffered in support of the defense. See People v.
Unger, 362 N.E.2d 319 (Ill. 1977); People v. Luther, 232 N.W.2d 184 (Mich. 1975); Esquibel
v. State, 576 P.2d 1129 (N.M. 1978).
[Headnote 1]
We are persuaded that Lovercamp sets forth the correct definition of the elements of the
necessity defense to a charge of escape from custody. [T]he Lovercamp conditions provide
clear-cut guidelines against which the trial court and the jury may judge [necessity] defenses.
. . . The conditions set forth in the Lovercamp decision serve to clarify the issues and to
narrow the class of cases in which the defense of [necessity] can be raised. State v. Miller,
313 N.W.2d 460, 463 (S.D. 1981) (Woolman, C.J., concurring specially). We hereby adopt
Lovercamp as the controlling law in this state. Consequently, we conclude that the district
court did not err by giving the Lovercamp instruction. This assignment of error is therefore
without merit.
1

[Headnote 2]
Appellant also contends that the district court erred by instructing jury that the defense
bore the burden of proving the necessity defense by a preponderance of the evidence.
Appellant argues that necessity negates the mens rea of the crime of escape, and that
consequently the state bears the burden of disproving the defense. Appellant correctly argues
that when a defense negates an element of the offense, the state must disprove the defense
because of the prosecution's burden to prove all elements of the charged offense beyond a
reasonable doubt. See Mullaney v. Wilbur, 421 U.S. 684 (1975); Carl v. State, 100 Nev. 164,
678 P.2d 669 (1984); Kelso v. State, 95 Nev. 37, 588 P.2d 1035, cert. denied, 442 U.S. 921
(1979). Appellant errs, however, by asserting that the defense of necessity negates the mens
rea of the crime of escape.
[Headnote 3]
Appellant reasons that the defense of necessity is really one of duress, and that duress
negates the mens rea, because NRS 194.010 declares that a person acting under duress is
incapable of committing a crime. This reasoning underscores the confusion of terminology
engendered by the prison escape defense. The defense has been referred to as duress and
necessity interchangeably, although the two defenses are distinct. See, e.g., People v.
Unger, supra. For the reasons cogently expressed in People v. Condley, 138 Cal.Rptr. 515
(Ct.App. 1977), however, we conclude that the prison escape defense is actually one of
necessity, not duress. While expressing no opinion on whether duress negates the mens rea of
a crime, we agree with the Condley court that the necessity defense does not negate the
mental state of the crime of prison escape.
____________________

1
We note that we have previously cited Lovercamp with approval, and that certain elements of the
Lovercamp definition have long been embodied in Nevada law. See Wolfe v. State, 95 Nev. 240, 591 P.2d 1155
(1979); State of Nevada v. Davis, 14 Nev. 439 (1880).
with the Condley court that the necessity defense does not negate the mental state of the crime
of prison escape. Rather, the escapee forms the requisite intent, but the crime of escape is
excused as a matter of public policy when a valid necessity defense is established. For this
reason, the state bears no burden of disproving the defense of necessity, and there is no
constitutional impediment to allocating the burden of proof to the defendant. See People v.
Condley, supra.
Having concluded that both of appellant's contentions are without merit, we hereby affirm
the judgment of conviction.
____________
100 Nev. 545, 545 (1984) Contrail Leasing v. Executive Service
CONTRAIL LEASING PARTNERS, Ltd. dba CONTRAIL AIRLINES; WILLIAM G.
BALL, DAVID H. JAMES, RUSSEL R. CAPRIO, and CHARLES J. MITCHELL,
Appellants, v. EXECUTIVE SERVICE CORPORATION; EXECUTIVE PRODUCTIONS,
Inc.; LLOYD EDGER PERCELL; ROARING FORK STEAMSHIP, NAVIGATION AND
AEROPLANE Co., Inc.; JAMES PERRY; W. B. McCARTER, Jr., and BONANZA
AIRLINES, Inc., Respondents.
No. 14678
October 4, 1984 688 P.2d 765
Appeal from a judgment of the district court and from an order denying appellant's
application for a default judgment; Eighth Judicial District Court, Clark County; James
Brennan, Judge.
Purchaser of promissory note at an execution sale brought action against the payor. The
district court dismissed the payor's cross-claims and counter-claims, and denied the payor's
request to enter a default judgment against the payee for damages arising out of a breached
lease agreement and for cancellation of the note, which resulted in a judgment being entered
against payor and in favor of the purchaser of the note. The payor appealed. The Supreme
Court held that: (1) dismissal of the payor's cross-claims and counter-claims for failure to
present a prima facie case was proper; (2) since purchaser had notice of the payor's
cross-claim against the payee for damages under a lease agreement and for cancellation of the
note at the time it purchased the note at the execution sale, it took the note subject to the
payor's cross-claim defenses; (3) payor was allowed to assert against purchaser set off
resulting from damages under lease agreement; and (4) the trial court should have entered
default judgment in favor of the payor if the payor could substantiate its claim for damages
against the payee.
if the payor could substantiate its claim for damages against the payee.
John P. Foley, Las Vegas, for Appellants.
Eric Zubel, Las Vegas; Wright, Shinehouse & Stewart, Las Vegas; Gentile & Massi, Las
Vegas, for Respondents.
1. Trial.
At close of cross-claimant's case, trial court may dismiss action on ground that upon facts and law
cross-claimant failed to prove sufficient case for court or jury. NRCP 41(b).
In evaluating appeal from involuntary dismissal of action at close of cross-claimant's case,
cross-claimant's evidence and all inferences that reasonably can be drawn from it must be deemed admitted
and evidence must be interpreted in light most favorable to plaintiff. NRCP 41(b).
3. Trial.
Cross-claims of payor on promissory note against cross-defendants on theories of corporate alter ego,
third-party beneficiary, promissory estoppel, agency, conspiracy, and conversion, and its cross-claims
against plaintiffs on basis of fraudulent misrepresentation were properly dismissed for failure to present a
prima facie case. NRCP 41(b).
4. Pleading.
Where payor of promissory note sued upon failed to plead affirmatively and with particularity in its
answer to the judgment debtor's cross-claim that purchaser of note at execution sale failed to comply with
procedural requirements of execution sale and thus lacked standing and capacity to sue on note, such
failure to so plead constituted waiver. NRCP 8(c), 9(a).
5. Bills and Notes.
In order to take an instrument free from all claims and defenses of any parties to instrument, holder must
be holder in due course. NRS 104.3305.
6. Bills and Notes.
Purchaser of note, who had notice of cross-claim of payor of promissory note against payee for damages
under lease agreement and for cancellation of note when it purchased note at execution sale, was not holder
in due course, and therefore took the note subject to the payor's cross-claim defenses against payee. NRS
104.3302, 104.3305, 104.3306.
7. Setoff and Counter-Claim.
Setoff is usually allowed where, through course of separate transactions, two parties become indebted to
each other; if one of parties becomes insolvent, the other, instead of paying his debt in full and receiving
dividend on what is owed him, is held only for difference, if any, between his debt and the insolvent's.
8. Bills and Notes.
Payor of promissory note was allowed to assert setoff of damages under lease agreement with payee
against party who purchased note at execution sale with full knowledge of setoff claim by payor.
9. Judgment.
Where lessee failed to appear and defend cross-claim to recover damages for its breach of the lease and
to cancel note between itself and lessor, trial court should have entered default judgment in favor of lessor
if lessor could substantiate its claim for damages.
10. Costs.
Court did not have to consider request for attorney fees which lacked relevant authority. NRAP 38.
OPINION
Per Curiam:
This appeal is divisible into two parts. The first part relates to appellant Contrail's
contention that the trial court erred in dismissing its cross-claim and counter-claim pursuant
to NRCP 41(b). The second part relates to the refusal of the trial court to enter a default
judgment in favor of Contrail against cross-defendant Bonanza Airlines.
1. In the litigation below Contrail asserted cross-claims against cross-defendants Perry
and McCarter on theories of corporate alter ego, third party beneficiary, promissory estoppel,
agency, conspiracy, and conversion. Contrail also counter-claimed against plaintiffs
Executive Service Corporation, Executive Productions, and Percell claiming fraudulent
misrepresentation on the part of Percell. The trial court concluded that Contrail had failed to
present a prima facie case on either its cross-claims or counter-claims and accordingly
granted motions for dismissals under NRCP 41(b).
[Headnotes 1, 2]
At the close of a cross-claimant's case, a trial court may dismiss an action on the ground
that upon the facts and the law the [cross-claimant] has failed to prove a sufficient case for
the court or jury. NRCP 41(b). In evaluating an appeal from an involuntary dismissal of an
action at the close of the cross-claimant's case, [cross-claimant's] evidence and all inferences
that reasonably can be drawn from it must be deemed admitted and the evidence must be
interpreted in the light most favorable to plaintiff. Hernandez v. City of Reno, 97 Nev. 429,
433, 634 P.2d 668 (1981); Bates v. Cottonwood Cove Corp., 84 Nev. 388, 391, 441 P.2d 622
(1968); Gordon v. Cal-Neva Lodge, Inc., 71 Nev. 336, 291 P.2d 1054 (1955).
[Headnote 3]
After examining the record we must agree with the trial court's ruling, and, without
delving into specificities of proof offered by Contrail in support of its claims, uphold the trial
court and affirm its NRCP 41(b) rulings.
2. The second part of the appeal involves the refusal of the trial court to grant judgment in
favor of Contrail on its cross-claim against Bonanza Airlines, notwithstanding Bonanza's
default in defending against the cross-claim.
Contrail's cross-claim against Bonanza arises out of the following facts. Contrail leased an
airplane called Foxtrot to Bonanza Airlines, Inc. Bonanza took possession of Foxtrot and
used it in its passenger-carrying charter service. Pursuant to the lease, on February 24, 1978,
Contrail made and delivered what was denominated as a promissory note to Bonanza, payable
in the indeterminate amount of $40,000 or so much thereof as may be advanced by
Bonanza. Bonanza was to loan to Contrails the sum of $10,000 per month up to a maximum
of $40,000, to be paid directly to the secured creditor of Foxtrot and applied to the account
of Contrail on its obligation under a purchase agreement.
The time of payment of whatever principal and interest might be due was based on the
occurrence of one of five contingencies. The parties conceded that four of these contingencies
did not take place, and the note became due, if at all, on the date which is six months after
termination of the lease.
1

Bonanza defaulted on the lease. As a result, Contrail was unable to make payments on the
purchase agreement of Foxtrot, and the airplane was repossessed. Contrail sought in its
cross-claim against Bonanza to recover damages for Bonanza's breach of the lease and to
cancel the note between Bonanza and Contrail. Default on the cross-claim was entered by the
clerk of the district court on August 11, 1981.
For reasons unexplained by any party to this litigation, the district court refused to carry
the judicial process to its conclusion and denied Contrail's request to enter a default judgment
against Bonanza for damages arising out of the breach of the lease agreement and for
cancellation of the described note. This refusal resulted in a judgment's being entered against
Contrail and in favor of Executive Services, which had purchased the note at an execution
sale in which Bonanza was the judgment debtor. Executive then brought suit against Contrail
for the amount due on the note. Judgment was entered against Contrail in the sum of $30,000
plus interest, $30,000 being the amount advanced by Bonanza under the note.
____________________

1
The district court found that the lease was terminated by the parties on July 17, 1978 upon the retaking of
the aircraft by the secured party. There is some question as to whether a default and subsequent repossession
necessarily constitute the termination of a lease. Since the issue was neither raised nor argued by the parties,
however, it need not be considered.
[Headnote 4]
In order to sustain Executive's judgment against Contrail on the mentioned
Contrail-to-Bonanza note it is necessary to find that Contrail gained ownership of the note
free from the defenses Contrail asserts against Bonanza. Executive obtained, in this litigation,
a default judgment against Bonanza in the sum of $50,806.45. Executive, claiming that the
note from Contrail to Bonanza was a liquidated and indefensible asset of Bonanza's estate,
purchased the note as an asset of its judgment debtor's estate, thereby transferring entitlement
to the note from Bonanza to Executive.
2
Executive did not, however, take ownership or
other entitlement to the note free of Contrail's defenses against Bonanza.
[Headnote 5]
In order to take an instrument free from all claims and defenses of any party to the
instrument, the holder must be a holder in due course. NRS 104.3305. A holder in due
course is a holder who takes the instrument: (a) For value; and (b) In good faith; and (c)
Without notice . . . of any defense against or claim to it on the part of any person. NRS
104.3302.
[Headnote 6]
The parties agree that Executive is not a holder in due course of the note because
Executive had notice of Contrail's cross-claim against Bonanza for damages under the lease
agreement and for cancellation of the note. One who is not a holder in due course takes the
instrument subject to: 1. All valid claims to it on the part of any person; and 2. All defenses of
any party which would be available in an action on simple contract. . . . NRS 104.3306.
3
Therefore, when Executive purchased the note at the execution sale, it took the note subject to
Contrail's cross-claim defenses against the obligor.
[Headnote 7]
Executive contends that the term defenses as used in the code was not intended to cover
setoffs.
4
Specifically, Executive alleges that Contrail's cross-claim against Bonanza arises
out of a transaction separate and distinct from the promissory note and cannot be used as
a setoff against monies owing on the note.
____________________

2
Contrail asserts that Executive failed to comply with the procedural requirements of an execution sale and
thus lacks standing and capacity to sue on the note. NRCP 8(c) and NRCP 9(a) require this allegation to be plead
affirmatively and with particularity. Contrail failed to plead any such affirmative defense in its answer to
Executive's cross-claim and failure to so plead constitutes waiver. See Tobler & Oliver Construction v. Nevada
State Bank, 89 Nev. 269, 510 P.2d 1364 (1973).

3
At oral argument and in the trial below, Executive conceded that it took the note subject to whatever
defenses Contrail had on the obligation to Bonanza.

4
Executive cites United Overseas Bank v. Veneers, Inc., 375 F.Supp. 596 (1974), in support of this
argument. In that case, however, the court
alleges that Contrail's cross-claim against Bonanza arises out of a transaction separate and
distinct from the promissory note and cannot be used as a setoff against monies owing on the
note. We disagree.
Setoff is usually allowed where, through a course of separate transactions, two
parties become indebted to each other. If one of the parties becomes insolvent, the
other, instead of paying his debt in full and receiving a dividend on what is owed him,
is held only for the difference, if any, between his debt and the insolvent's. The reason
for such a rule is said to lie in the injustice of a contrary rule. Carr v. Hamilton, 129
U.S. 252, 255, 9 S.Ct. 295, 32 L.Ed. 669 (1889).
Korlann v. E-Z Pay Plan, Inc., 428 P.2d 172 (Or. 1967) (en banc).
[Headnote 8]
If Bonanza Airlines had brought suit against Contrail for the amount due on the note,
Contrail would be allowed to offset that amount owned by Bonanza on the lease. Contrail is
likewise allowed to assert the setoff against Executive, who purchased the note with full
knowledge of the setoff claim by Contrail. See Wear v. Farmers and Merchant's Bank, 605
P.2d 27, reh'g granted, 606 P.2d 1278 (Alaska 1980).
[Headnote 9]
In an affidavit filed in open court, Contrail set forth the amount of money allegedly owed
by Bonanza.
5
The district court made no finding with regard to this offer of proof, and from
a review of the record it appears to be supported by the evidence. Instead, the court
inexplicably refused to enter a default judgment in favor of Contrail. If Contrail can
substantiate its claim for damages against Bonanza, the default judgment should be entered.
Any damages attributable to Bonanza's default in lease payments are then subject to setoff
from the amount due under the promissory note. This setoff is available against Executive,
which, by its own admission, is not a holder in due course of the note.
____________________
was faced with a negotiable instrument. Because the note in this case is not a sum certain, it is not negotiable,
and the principles of United Overseas would not apply. Additionally, in Community Bank v. Ell, 564 P.2d 685,
reh'g denied, 566 P.2d 903 (Or. 1977), the Supreme Court of Oregon held that a setoff may be asserted in an
action by the transferee of a negotiable instrument, unless the transferee is a holder in due course.

5
Contrail contends that $45,000 was owed by Bonanza under the lease agreement alone.
[Headnote 10]
3. Respondents' requests for attorney's fees, pursuant to NRAP 38, lack relevant authority
and need not be considered. Plankinton v. Nye County, 95 Nev. 12, 588 P.2d 1025 (1979);
Woods v. State, 94 Nev. 435, 581 P.2d 444 (1978). Moreover, we find the contentions
without merit.
We can find no reason or justification for the trial court's refusal to grant money judgment
in favor of Contrail. This was error, and the matter is therefore remanded for entry of
judgment if properly substantiated by Contrail.
Accordingly, judgment in favor of Executive and against Contrail is reversed and the case
is remanded.
____________
100 Nev. 551, 551 (1984) Jones v. Addesha Corp.
ROBERT K. JONES, Appellant, v. ADDESHA CORPORATION, a Nevada Corporation;
WILLIAM L. DAVIS, and FLOYD E. LOVE, Individually and
as Co-Partnership, Respondents.
No. 14763
October 4, 1984 688 P.2d 298
Appeal from a judgment quieting title to various unpatented mill sites and from an award
of attorney's fees and costs; Sixth Judicial District Court, Humboldt County; Richard J.
Legarza, Judge.
Suit was instituted to quiet title to two five-acre mill site claims. The district court entered
judgment quieting title in original transferee, and successor to transferors appealed. The
Supreme Court held that title to mill site claims should not have been quieted in individual
who succeeded to interest of transferors on basis of installment sales agreement with
transferee, notwithstanding that individual recorded a notice of failure to cure default and
election to terminate agreement and to repossess claims, where there was no basis under
agreement for transferors and, ultimately, the successor to declarant of default as to transferee
for nonpayment of rent or any other reason alleged.
Affirmed.
Robert R. Hager, Reno, for Appellant.
Thomas F. Eck, Carson City, for Respondents.
1. Mines and Minerals.
Transferors, required under installment sales agreement to file required annual information with the
bureau of land management with respect to mill site claims in question, were expressly
obligated to convey legal title, free and clear of all encumbrances, upon transferee's
completion of purchase price and were also impliedly obligated to maintain such title
until time for transfer had matured.
respect to mill site claims in question, were expressly obligated to convey legal title, free and clear of all
encumbrances, upon transferee's completion of purchase price and were also impliedly obligated to
maintain such title until time for transfer had matured. Federal Land Policy and Management Act of 1976,
314(a)(1), (c), 43 U.S.C.A. 1744(a)(1), (c).
Transferor could not declare a default with respect to mill site claims by reason of late payments and late
penalties owed by transferee where notice of default allowed transferee ten days within which to cure and,
by the time the period had elapsed, payment had been made, and no contractual provision or
extemporaneous oral agreement between parties provided for payment of late fees. Federal Land Policy
and Management Act of 1976, 314(a)(1), (c), 43 U.S.C.A. 1744(a)(1), (c).
Failure of transferee to remove a door from an abandoned refrigerator and to install a septic tank was not
a basis for transferors to declare a default with respect to mill site claims in that installment sales agreement
did not contain any provision requiring transferee to either maintain mill site in compliance with state laws
or to install a septic tank.
A default with respect to mill site claims could not be declared by transferor on ground that transferee
allowed site to fall into disrepair since, aside from fact that waste was not a specific basis for terminating
agreement between parties, contract did not impose obligation on transferee of maintaining mill.
Failure of a transferee to comply with covenant in sales agreement prohibiting removal of personal
property from mill site claims was not a basis for transferor to declare a default inasmuch as sales
agreement only required transferee to replace items with articles of like utility and value and did not
authorize transferors to declare a default.
Although transferee was required under its sales agreement with transferors with respect to mill site
claims to provide proof of fire insurance, its failure to do so was not a basis for transferors to declare a
default inasmuch as it was only a minor breach and was insufficient to provide for termination of entire
agreement.
Title to mill site claims should not have been quieted in individual who succeeded to interest of
transferors on basis of installment sales agreement with transferee, notwithstanding that individual recorded
a notice of failure to cure default and election to terminate agreement and to repossess claims, where there
was no basis under agreement for transferors and, ultimately, the successor to declarant of default as to
transferee for nonpayment of rent or any other reason alleged.
OPINION
Per Curiam:
This is an appeal from a judgment quieting title in two five-acre mill site claims in
Humboldt County.
The mill sites in question were originally located and perfected by Elmer and Marion
Gordon in May, 1964. In May, 1980, the Gordons entered into an installment sales agreement
to sell the mill sites to the respondent, Addesha Corporation, upon the payment of
$35,000.00. Both parties have stipulated that the Gordon's title to the mill sites was valid at
the time that this contract was entered into.
Under the administrative regulations promulgated by the Bureau of Land Management
(BLM), upon the transfer of any part of a mining claim, including an unpatented mill site, the
transferee must file with the BLM within 60 days, the serial number of the assigned claim and
the name and address of the person to whom the claim was transferred. 43 C.F.R. 3833.3(a).
Failure to file will not void the claim, but merely subjects the claim to be contested by the
BLM without personal notice to the transferee. 43 C.F.R. 3833.5(d). It appears to be
undisputed that Addesha failed to file the required information with the BLM.
On June 24, 1981, the Nevada state office of the Bureau of Land Management issued an
administrative decision declaring the mining claims to be abandoned and void for failure to
file annual information required by federal law.
1
Because Addesha had not filed a notice of
transfer, it was not personally notified of the decision. Instead, the notice was sent to the last
known owners of record, Elmer and Marion Gordon. The notice stated that the BLM decision
could be appealed for up to 30 days after it was received.
Upon receiving notice of the BLM decision, Elmer Gordon relocated two mill site claims
on the exact same land. On July 24, 1981, the day that the 30-day period of appeal lapsed,
Gordon filed two certificates of location on the contested sites. Gordon never notified
Addesha of the BLM decision.
After perfecting the new claims Sellers proceeded to resell the relocated claims to
appellant Jones. Although Jones had been aware of Addesha's interests in the mill sites under
the installment sales contracts, Jones stated that he didn't believe that Addesha had any
present interest in the claims because of the BLM decision. Nevertheless, on August 15,
1981, Jones purchased both the Addesha contract as well as whatever interest Gordon had in
the relocated mill sites for $25,000.00.
2
On the same day that Gordon sold his interests to
Jones, Gordon deposited the August check from Addesha.
____________________

1
Federal law requires the owner to file annually with the BLM a notice of intent to hold the mining claim or a
detailed report of the assessment work performed on the claim within the past year. 43 U.S.C. 1744(a)(1); 43
C.F.R. 3833.2-1. Under 43 U.S.C. 1744(c) the failure to file shall be deemed conclusively to constitute an
abandonment of the mining claim or mill or tunnel site by the owner. . . . See also 43 C.F.R. 3833.4.

2
At the time of the August 15th sale to Jones, $25,000.00 remained outstanding on the Addesha installment
contract.
the same day that Gordon sold his interests to Jones, Gordon deposited the August check
from Addesha.
Addesha was never notified by Gordon of either the BLM decision or the sale to Jones.
Addesha was therefore not aware that the monthly payments should be made to Jones.
Addesha first became concerned with title problems to the claims when it received a notice of
default from Jones in late August.
On August 25, 1981, Jones sent a Notice of Default and Election to Terminate the
Contract to Addesha. The notice informed Addesha that Jones had succeeded to the interest
of Gordon under the original contract and that certain provisions of that contract had been
breached. On September 4, 1981, Jones recorded a Notice of Failure to Cure Default and
Election to Terminate Agreement and to Repossess the Gordon mill sites.
Jones appeals from a judgment by the trial court quieting title to the mill sites in favor of
Addesha. Jones contends that the BLM decision declaring the mill sites to be void
extinguished all legal and equitable title in the claims and in turn allowed the Gordons to
re-establish new title, free and clear of Addesha's interests. We disagree.
[Headnote 1]
In construing the installment contract entered into by Addesha and the Gordons, the
district court found that the duty to file the required annual information with the BLM rested
with the Gordons. We agree with the district court's interpretation. Under the agreement, the
Gordons were expressly obligated to convey legal title, free and clear of all encumbrances,
upon Addesha's completion of the purchase price. Since the Gordons were required to transfer
legal title to Addesha, it is implied in the agreement that they are obligated to maintain such
title until the time for transfer has matured. The mere fact that they were for a brief time
unable to convey does not relieve them of their ultimate contractual obligation to convey once
title was re-established.
It is unnecessary to decide whether Addesha's equity could be cut off by a bona-fide
purchaser for value, as Jones cannot conceivably qualify for this status. The only real issue,
then, is whether Addesha was in default in its obligations to the Gordons and to Jones as the
Gordon's successor. This issue was decided by the trial court in a manner favorable to
Addesha, and we affirm the trial court's decision.
Under the language of the sales contract, there is only one instance where the agreement
may be terminated because of defaultnon-payment of rent. The original contract with
Addesha provides that if the payments are not made on time the Sellers may send Addesha a
written notice of default and that Addesha has 10 days within which to cure any default.
the Sellers may send Addesha a written notice of default and that Addesha has 10 days within
which to cure any default. If it is not cured, the seller may either declare the contract in
default and retake possession or sue for the amount of that payment. There is no acceleration
clause.
[Headnote 2]
Although Elmer Gordon, one of the sellers, testified that Addesha was consistently 12 to
14 days late with its payments, the contractual procedure for declaring the contract in default
and terminating the agreement was not complied with by either the Gordons or by Jones.
First, the August 25, 1981 Notice of Default does not claim that Addesha failed to make its
monthly payments, only that it owed $2,000 in late penalties. Nevertheless, even if it had
failed to make timely payment, a default could not properly be declared. Addesha apparently
made its August payment on August 10, 1981. The notice of default was sent on August 25,
1981. Since the notice allows Addesha 10 days within which to cure, and since the payment
had already been made, Jones could not declare the contract as being in default. Second, it is
undisputed that there was no contractual provision or extemporaneous oral agreement for the
payment of late fees. Therefore, Jones was not entitled to the $2,000 and could not terminate
the contract on this basis.
[Headnote 3]
The default notice also alleges that Addesha failed to comply with state laws applicable to
the use and occupancy of the property. Specifically, Jones contends that Addesha failed to
remove a door from an abandoned refrigerator and failed to install a septic tank. However, the
contract does not contain any provision requiring Addesha to maintain the mill site in
compliance with state laws or that Addesha must install a septic tank. Therefore, Addesha's
failure to do so is not a breach of the contract.
[Headnote 4]
Jones additionally contends that Addesha allowed the mill site to fall into disrepair and
therefore the contract should be terminated on the ground of waste. Aside from the fact that
waste is not a specific basis for terminating the agreement, the contract does not impose the
obligation on Addesha of maintaining the mill. The contract only provides that Addesha is
responsible for maintaining any improvements or alterations made on the property by
Addesha. As to existing improvements, the contract is silent. Nevertheless, even if Addesha
had the affirmative duty to maintain the mill, the district court heard testimony that Addesha
had invested $13,500 in excess of the contract price for improving and working the mill
sites.
the contract price for improving and working the mill sites. Therefore, there appears to be
substantial evidence to support the district court's finding that Addesha had not committed
waste and that the contract was not breached.
[Headnote 5]
The next ground for default alleged by Jones was that Addesha removed equipment and
personal property from the mill sites. In the second full paragraph on page 6 of the contract,
Addesha covenants not to remove personal property from the land. Nevertheless, the remedy
established in the contract for removing personal property is to require Addesha to replace the
items with articles of like utility and value, not default. Since Jones did not pray for damages
for any alleged removal, and since the mere removal of personal property is not a ground for
default, the district court properly found against Jones on this issue.
[Headnote 6]
The last allegation of default is the failure of Addesha to provide proof of insurance.
Although Addesha is required to provide fire insurance, the failure to do so is not a basis for
terminating the agreement listed in the contract. Moreover, the failure to provide insurance
may have been viewed by the district court as a minor breach of the contract, not sufficient to
allow the termination of the entire agreement.
[Headnote 7]
In reviewing the allegations of default, the district court appears to be correct in
concluding that there was no proper basis on which to declare the contract in default. The
district court must therefore be affirmed.
____________
100 Nev. 556, 556 (1984) Gray v. State
GARY LEE GRAY, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 14788
October 4, 1984 688 P.2d 313
Appeal from judgment of conviction of one count of possession of stolen property, Eighth
Judicial District Court, Clark County; Michael J. Wendell, Judge.
Defendant was convicted before the district court of possession of stolen property, and he
appealed. The Supreme Court held that defendant who possessed stolen property under
circumstances that were such as to put a reasonable person on notice as to stolen nature
of goods possessed could properly be convicted of possession of stolen property.
100 Nev. 556, 557 (1984) Gray v. State
that were such as to put a reasonable person on notice as to stolen nature of goods possessed
could properly be convicted of possession of stolen property.
Affirmed.
Morgan D. Harris, Public Defender, and Thomas C. Naylor and Susan Deems Roske,
Deputy Public Defenders, Clark County, for Appellant.
Chris J. Owens and Michael Amador, Deputy District Attorneys, Clark County, for
Respondent.
Receiving Stolen Goods.
Defendant who possessed stolen property under circumstances that were such as to put a reasonable
person on notice as to stolen nature of goods possessed could properly be convicted of possession of stolen
property. NRS 205.275, subd. 1(b).
OPINION
Per Curiam:
Following a jury trial, appellant was convicted of one count of possession of stolen
property. At trial, appellant's primary defense was that he was not aware of the stolen nature
of the property which he possessed at the time of his arrest.
Over appellant's objection, the trial court advised the jury that appellant could be found
guilty of possession of stolen property if he possessed the property knowing that the goods
or property were [stolen] or [u]nder such circumstances as should have caused a reasonable
man to know that such goods or property were [stolen]. Appellant now contends that this
instruction was erroneous, on the ground that possession of stolen property requires actual
knowledge of the stolen nature of the goods. We disagree.
The Nevada Legislature has specifically provided that a person can be convicted of
possession of stolen property without actual knowledge of the stolen nature of the goods, and
that it is enough to show that the goods were possessed under such circumstances as should
have caused a reasonable man to know that such goods or property were so obtained. See
NRS 205.275(1)(b). Appellant contends that we should nevertheless ignore the clear mandate
of the Legislature, and reject the reasonable person standard, primarily on the ground that a
person is not given adequate notice of what type of conduct constitutes a violation of the
statute under such a standard of guilt.
100 Nev. 556, 558 (1984) Gray v. State
guilt. See generally Sheriff v. Smith, 91 Nev. 729, 542 P.2d 440 (1975) (statute must give
adequate warning or notice of prohibited conduct); see also People v. Johnson, 564 P.2d 116
(Colo. 1977) (court rejects state legislature's imposition of reasonable person standard in
cases involving possession of stolen property). We disagree with this reasoning.
When a person possesses property under such circumstances as would have caused a
reasonable person to know that such property was stolen, he is given notice by those very
circumstances that he is committing a crime. See State v. Rockett, 493 P.2d 321, 323
(Wash.Ct.App. 1972); see also McGlothlin v. State, 229 A.2d 428 (Md.Ct.Spec.App. 1967).
Appellant's argument is therefore without merit, and we hold that a person may be found
guilty of possession of stolen property in Nevada where the circumstances are such as to put a
reasonable person on notice as to the stolen nature of the goods he possessed.
1

The state concedes that the reasonable person standard includes consideration of a
defendant's particular mental deficiencies. In some cases, therefore, the test will be whether a
reasonable person with the defendant's mental deficiencies would have known that the
property was stolen. The appellant in the present case, however, did not argue that he suffered
from any mental deficiencies which would have affected a reasonable person's ability to
ascertain the stolen nature of the property he possessed, and he requested no jury instruction
on this particular theory.
Having considered appellant's remaining contentions and having found them to be without
merit, we hereby affirm appellant's judgment of conviction.
Affirmed.
____________________

1
To the extent that Dutton v. State, 94 Nev. 461, 581 P.2d 856 (1978), and Staab v. State, 90 Nev. 347, 526
P.2d 338 (1974), are inconsistent with the view set forth in this opinion, they are hereby disapproved.
____________
100 Nev. 559, 559 (1984) Sheridan Acres Water Co. v. Douglas County
SHERIDAN ACRES WATER COMPANY, a Nevada Corporation, Appellant, v. DOUGLAS
COUNTY and KEN KJER, Its Chairman and HERB WITT, BARBARA COOK, M. D.
Doc MEYER, and BOB OSWALD, Its Members, Respondents.
No. 14812
October 4, 1984 688 P.2d 297
Appeal from judgment denying declaratory relief, Ninth Judicial District Court, Douglas
County; Norman C. Robison, Judge.
Privately owned public utility supplying water to residents of subdivision brought suit for
a judgment declaring that it was entitled to collect fire hydrant standby fees from county. The
district court entered judgment in favor of county, and public utility appealed. The Supreme
Court held that the public utility could not collect fire hydrant fees from county despite Public
Service Commission's issuance of an order declaring that county was obligated to pay said
fees, since county did not require installation of the fire hydrants.
Affirmed.
Jack Sheehan, Minden, for Appellant.
Brent Kolvet, District Attorney, Stephen C. Balkenbush, Chief Deputy District Attorney,
Douglas County, for Respondents.
William H. Kockenmeister, Assistant Legal Counsel, Carson City, for Public Service
Commission, Amicus Curiae.
1. Waters and Water Courses.
Public utility could not collect fire hydrant fees from county despite Public Service Commission's
issuance of an order declaring that county was obligated to pay said fees, since county did not require
installation of the fire hydrants. NRS 704.660.
2. Waters and Water Courses.
Under statute governing fees a public utility may charge for furnishing water for fire protection, if a
county or other entity requires fire hydrants to be installed, the public utility providing water to the area in
question must install and maintain the fire hydrants, thereby becoming entitled to collect from the entity the
fees that are set by the Public Service Commission. NRS 704.660.
OPINION
Per Curiam:
Sheridan Acres Water Company (Sheridan) appeals from a judgment of the district court
declaring that Sheridan is not entitled to collect from Douglas County fire hydrant standby
fees authorized by the Public Service Commission. Finding no error, we affirm.
Sheridan is a privately owned public utility supplying water to residents of the Sheridan
Acres Subdivision in Douglas County, Nevada. Sheridan serves approximately seventy-two
customers in the subdivision; the remaining three families obtain their water from domestic
wells.
Pursuant to Sheridan's application, in November of 1980 the Public Service Commission
issued an order adopting a new rate structure for Sheridan. The new rates included a monthly
fire hydrant fee of $10.00 per fire hydrant, representing a standby charge for the privilege of
having the fire hydrants available in case of need. Sheridan billed Douglas County for the fire
hydrant fees; the County, which does not pay standby charges for fire hydrants anywhere
within its boundaries, refused to pay. The Public Service Commission issued an order
declaring that Douglas County was obligated to pay the fire hydrant fees. The County still
refused to pay, and Sheridan brought suit for a judgment declaring that it was entitled to
collect fire hydrant fees from Douglas County. The district court granted judgment for the
County, and Sheridan appealed to this court.
We note that the district court found that the County did not require the installation of the
fire hydrants as a condition of approval of the subdivision. The County, in fact, had no voice
in the installation of the fire hydrants. Sheridan and the Public Service Commission
nonetheless claim that the County must pay standby charges for the fire hydrants pursuant to
NRS 704.660, which provides in pertinent part:
1. Any public utility which furnishes, for compensation, any water for domestic
purposes shall furnish each city, town, village or hamlet which it serves with a
reasonably adequate supply of water at reasonable pressure for fire protection and at
reasonable rates, all to be fixed and determined by the commission.
2. The duty to furnish a reasonably adequate supply of water provided for in
subsection 1 includes the laying of mains with all necessary connections for the proper
delivery of water for fire protection and also the installing of appliances to assure a
reasonably sufficient pressure for fire protection.
[Headnotes 1, 2]
Under Sheridan's interpretation of the statute, a water company would have the duty to
install appliances for fire protection within its service area whether or not the governmental
entity responsible for the area had requested them; furthermore, the governmental entity
would be forced to pay standby charges for appliances it had not requested.
1
We do not
believe that the legislature intended such a result. Rather, under our reading of the statute, if a
county or other entity requires fire hydrants to be installed, the public utility providing water
to the area in question must install and maintain the fire hydrants, thereby becoming entitled
to collect from the entity the fees that are set by the Public Service Commission.
In the case before us, the district court found that Douglas County did not require the
installation of the fire hydrants. The record discloses evidence to support this finding.
Consequently, Sheridan cannot collect fire hydrant fees from the County.
2
Accordingly, we
affirm the judgment of the district court.
____________________

1
This is the first time that this court is called upon to construe NRS 704.660. The sole interpretation of the
statute that has been cited to us is in an opinion of the Public Service Commission, Lyon County v. Mason Water
Company, decided November 5, 1979, in which the Commission decided that Lyon County should pay Mason
Water Company standby charges for fire hydrants provided by the company. We have rejected the Commission's
interpretation of the statute in this opinion. We note, however, that its decision in Lyon County is sustainable
under our analysis since there is some indication that Lyon County had specified the location for the installation
of the water company's fire hydrants.

2
Sheridan argues that it must collect the fire hydrant fees if it is to remain financially solvent. We are
sympathetic to Sheridan's financial plight; however, its need to collect the fees, however compelling, does not in
itself entitle it to collect them from the County. Sheridan is free to apply to the Public Service Commission for
authorization to bill its customers for the fire hydrant fees.

100 Nev. 562, 562 (1984) Bailey v. State
DANNY RAY BAILEY, Appellant, v. THE STATE
No. 14827
October 4, 1984 688 P.2d 320
Appeal from judgment of conviction of two felony offenses, Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
Defendant was convicted in the district court of robbery and attempted voluntary
manslaughter as lesser included offense of charge of attempted murder, and he appealed.
The Supreme Court held that: (1) defendant's conviction for attempted involuntary
manslaughter would be reversed since such crime did not exist despite defendant's failure to
object to instruction on such offense, and (2) defendant's claim that retrial on charge of
attempted murder following reversal of conviction for attempted involuntary manslaughter
would be barred by double jeopardy was premature, since State had not refiled the attempted
murder charge; double jeopardy claim could be raised on remand if State did refile such
charge.
Affirmed in part; reversed in part and remanded.
Morgan D. Harris, Public Defender and Craig D. Creel, and Jackie Naylor, Deputy Public
Defenders, Clark County, for Appellant.
1. Criminal Law.
The crime of attempt requires that the accused formulate the intent to commit the crime attempted; absent
proof of the element of intent, a conviction for attempt cannot stand.
2. Homicide.
Because there is no such criminal offense as an attempt to achieve an unintended result, crime of
attempted involuntary manslaughter is logically impossible. NRS 200.070.
3. Criminal Law.
Defendant's conviction for attempted involuntary manslaughter would be reversed since such crime did
not exist, despite defendant's failure to object to instruction on such offense as a lesser included offense of
attempted murder. NRS 200.070.
4. Criminal Law.
Crime whose existence is logically impossible cannot be given the breath of life by a procedural
dereliction of counsel.
5. Criminal Law.
Defendant's claim that retrial on charge of attempted murder following reversal of conviction for lesser
included offense of attempted involuntary manslaughter," which was a nonexistent
offense, would be barred by double jeopardy was premature, since State had not
refiled the attempted murder charge; double jeopardy claim could be raised on
remand if State did refile such charge.
involuntary manslaughter, which was a nonexistent offense, would be barred by double jeopardy was
premature, since State had not refiled the attempted murder charge; double jeopardy claim could be raised
on remand if State did refile such charge. U.S.C.A.Const. Amend. 5.
OPINION
Per Curiam:
On August 24, 1982, appellant Danny Ray Bailey met the victim in this case and visited
his home. Later that evening, Bailey robbed the victim at gunpoint of several items of
personal property. He then fired several shots at the victim, wounding him at least three
times. Bailey claimed he shot the victim out of fear and harbored no intent to kill. The victim
survived, and Bailey was convicted of robbery and attempted involuntary manslaughter as a
lesser-included offense of the original charge of attempted murder. The jury found that Bailey
used a deadly weapon in the commission of both offenses. He was sentenced to six years for
the attempted manslaughter and a consecutive thirty years for the robbery.
1
On appeal, he
raises three assignments of error, one of which necessitates reversal of the attempted
manslaughter conviction.
Appellant first contends that his conviction for attempted involuntary manslaughter must
be reversed because that particular crime does not exist in our jurisprudence. We agree.
[Headnotes 1, 2]
Involuntary manslaughter is by definition an unintentional killing. See NRS 200.070; see
also Parsons v. State, 74 Nev. 302, 329 P.2d 1070 (1958). The crime of attempt, however,
requires that the accused formulate the intent to commit the crime attempted; absent proof of
the element of intent, a conviction for attempt cannot stand. See Moffett v. State, 96 Nev.
822, 618 P.2d 1223 (1980). Appellant argues that it is logically impossible to attempt to
commit an unintentional act. This contention has merit. Because [t]here is no such criminal
offense as an attempt to achieve an unintended result, People v. Viser, 343 N.E.2d 903, 910
(Ill. 1975), the crime of attempted involuntary manslaughter is logically impossible. See
People v. Van Broussard, 142 Cal.Rptr. 664 (Ct.App. 1977); State v. Almeda, 455 A.2d 1326
(Conn. 1983); Com. v. Hebert, 368 N.E.2d 1204 (Mass. 1977); Gonzales v. State, 532
S.W.2d 343 (Tex.Crim.App. 1976). See also La Fave & Scott, Handbook of Criminal Law
430 (1972); Smith, Two Problems in Criminal Attempts, 70 Harv.L.Rev. 422, 434 (1957). Cf.
Ramos v. State, 95 Nev. 251, 592 P.2d 950 (1979) (reversing conviction of attempted
second degree murder where no showing of intent to kill, and citing Viser with
approval).2
____________________

1
Both sentences include the appropriate enhancements for use of a deadly weapon. See NRS 193.165.
conviction of attempted second degree murder where no showing of intent to kill, and citing
Viser with approval).
2

[Headnotes 3, 4]
Since the crime of attempted involuntary manslaughter does not exist, appellant's
conviction therefor must be reversed. We reach this result notwithstanding the failure of
defense counsel to object to the instruction on this offense as a lesser-included offense of
attempted murder. A crime whose existence is logically impossible cannot be given the breath
of life by a procedural dereliction of counsel.
[Headnote 5]
Anticipating our ruling in his favor on the issue just discussed, appellant next argues that
retrial on the originally charged offense of attempted murder, as well as all of its
lesser-included offenses, is barred by double jeopardy. Appellant refers us to the implied
acquittal rule laid down in Green v. United States, 355 U.S. 184 (1957), which he claims
bars retrial on attempted murder and attempted voluntary manslaughter, and of course
reasserts his position that attempted involuntary manslaughter is a non-existent crime.
3
We
conclude, however, that unless and until the state refiles the attempted murder charge, the
double jeopardy claim is premature; accordingly, we decline to address it at this time. On
remand, if the state refiles the murder charge, appellant may raise his double jeopardy claim
in district court by the appropriate motion.
Finally, appellant contends that both of his convictions are infected by Franklin error.
Franklin v. State, 94 Nev. 220, 577 P.2d 860 (1978); see LaPena v. State, 98 Nev. 135, 643
P.2d 244 (1982). Of course, this contention is academic with respect to the attempted
manslaughter conviction. With respect to the robbery conviction, we have concluded that the
record before us demonstrates that no Franklin error occurred.
Appellant has raised no meritorious challenge to his conviction for robbery with the use of
a deadly weapon. Accordingly, we hereby affirm that conviction. For the reasons set forth
above, appellant's conviction for attempted involuntary manslaughter is reversed. This
matter is remanded to the district court for a determination of whether the state intends to
refile the original attempted murder charge, and for subsequent consideration of appellant's
double jeopardy claim if and when such claim is properly presented to the district court.
____________________

2
The state conceded the merit of this issue at oral argument.

3
Appellant's argument does not address itself to the lesser-included offense of battery with a deadly weapon,
on which the jury was instructed but apparently returned no verdict.
____________
100 Nev. 565, 565 (1984) Deere v. State
LLOYD RICHARD DEERE, Appellant, v. THE STATE
No. 14893
October 4, 1984 688 P.2d 322
Appeal from judgment of conviction of multiple felony offenses, Eighth Judicial District
Court, Clark County; John F. Mendoza, Judge.
Defendant was convicted in the district court of kidnapping, battery with intent to commit
a crime, and sexual assault and he appealed. The Supreme Court held that state's allegedly
negligent failure to impound and preserve victim's blouse and undergarment did not warrant
dismissal.
Affirmed.
Marc D. Risman, Las Vegas, for Appellant.
1. Criminal Law.
When accused seeks dismissal because of state's good-faith loss or destruction of material evidence, he
must show prejudice from the unavailability of the evidence by making some showing that it could
reasonably be anticipated that the evidence sought would be exculpatory.
2. Criminal Law.
Because defendant could not demonstrate that it was reasonably likely that presentation at trial of victim's
blouse and undergarment would be exculpatory on the issue of force or use of a weapon, defendant was not
entitled to dismissal based on state's allegedly negligent failure to impound and preserve the evidence.
OPINION
Per Curiam:
In August of 1982, appellant Lloyd Richard Deere kidnapped, beat, handcuffed and
sexually assaulted a Las Vegas prostitute. He was convicted of one count each of first degree
kidnapping and battery with intent to commit a crime, and four counts of sexual assault. On
appeal, he raises eleven assignments of error. We conclude that appellant has failed to
demonstrate prejudicial error, and affirm.
Appellant's principal contention is that the district court erred by denying a motion to
dismiss based on the state's allegedly negligent failure to impound and preserve material and
potentially exculpatory evidence, namely the blouse and undergarment of the victim.
According to the victim's testimony, the undergarment had been torn and the blouse
slashed with a knife during the sexual assaults.
100 Nev. 565, 566 (1984) Deere v. State
undergarment had been torn and the blouse slashed with a knife during the sexual assaults.
Appellant argued in his motion that the evidence would have been exculpatory on the issue of
the use of force or a weapon during the assaults. He based his motion primarily on our
decision in State v. Havas, 95 Nev. 706, 601 P.2d 1197 (1979), in which a majority of this
Court upheld dismissal of a forcible rape charge because of the state's negligent failure to
obtain and preserve the victim's undergarments, which were considered material and
potentially exculpatory on the issue of the use of force.
[Headnotes 1, 2]
We are persuaded that the motion to dismiss was properly denied. The general rule in this
area is well settled. When an accused seeks dismissal for the state's good-faith loss or
destruction of material evidence, he or she must show prejudice flowing from the
unavailability of the evidence. To establish prejudice, the accused must make some showing
that it could be reasonably anticipated that the evidence sought would be exculpatory. Boggs
v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979). See Crockett v. State, 95 Nev. 859, 603
P.2d 1078 (1979). From our review of the record, we have concluded that appellant cannot
demonstrate that it was reasonably likely that the lost evidence would have exculpated him;
he thus cannot make the requisite showing of prejudice. Accordingly, the motion to dismiss
was properly denied, and this assignment of error is without merit.
Nothing in Havas compels a contrary result. Havas was decided on its own facts, which
are readily distinguishable from those of this case. The Havas majority's ruling hinged on the
reasoning that the victim's undergarments were potentially exculpatory because her testimony
on the use of force was not only ambiguous, but subject to serious challenge concerning the
manner the crime assertedly occurred. 95 Nev. at 709, 601 P.2d at 1198 (Gunderson, J.,
concurring). The underpinnings of the Havas majority's ruling are simply not present in the
case before us, wherein the victim's testimony was not ambiguous and was amply
corroborated by other testimony and by physical evidence.
Appellant appears to argue that Havas states a per se rule that a rape victim's
undergarments are always material and potentially exculpatory evidence, at least where the
garments are allegedly removed by force. This interpretation of Havas is erroneous. That
decision does not state a per se rule, and does not alter or detract from the general rule as set
forth in Boggs. The materiality and potentially exculpatory character of lost or destroyed
evidence must be determined on an ad hoc basis on the facts of each particular case.
100 Nev. 565, 567 (1984) Deere v. State
the facts of each particular case. Any language to the contrary in the Havas majority opinion
is hereby disapproved.
We have considered appellant's remaining assignments of error, and have concluded that
they are either without merit or do not warrant reversal. Accordingly, the judgment of
conviction is affirmed.
____________
100 Nev. 567, 567 (1984) SIIS v. Hicks
STATE INDUSTRIAL INSURANCE SYSTEM,
Appellant, v. CHARLES HICKS, Respondent.
No. 15061
October 4, 1984 688 P.2d 324
Appeal from order on a petition for judicial review, Eighth Judicial District Court, Clark
County; Robert G. Legakes, Judge.
State Industrial Insurance System appealed from order of the district court reversing
administrative decision denying claimant's request to reopen his claim. The Supreme Court
held that industrial compensation claimant who submitted letter from chiropractor stating that
claimant had degenerative disc condition attributable by history to his industrial accident
failed to demonstrate change of circumstances in kind or degree that would warrant reopening
of claim, and thus, appeals officer did not abuse its discretion in finding that claimant simply
reiterated same complaints for which he was granted a permanent partial disability award.
Reversed.
Glade A. Myler and Denise M. Lightford, Associate General Counsel, Las Vegas, for
Appellant.
King, Clark, Gross & Sutcliffe, Las Vegas, for Respondent.
Judicial review of an administrative decision arising out of claim for industrial compensation is limited to
review of decision of the appeals officer. NRS 616.543, subd. 2.
Burden of proof is on party seeking to reopen industrial compensation claim, and such burden is usually
satisfied by a preponderance of the evidence. NRS 616.545, subd. 1.
Industrial compensation claimant who submitted letter from chiropractor stating that claimant had
degenerative disc condition attributable by history to his industrial accident failed to demonstrate change of
circumstances in kind or degree that would warrant reopening of claim, and thus, appeals officer did
not abuse its discretion in finding that claimant simply reiterated same complaints for
which he was originally granted a permanent partial disability award.
100 Nev. 567, 568 (1984) SIIS v. Hicks
and thus, appeals officer did not abuse its discretion in finding that claimant simply reiterated same
complaints for which he was originally granted a permanent partial disability award. NRS 616.545,
subd. 1.
OPINION
Per Curiam:
The State Industrial Insurance System (SIIS) appeals from an order of the district court
reversing an administrative decision on an industrial insurance claim.
On April 13, 1980, Charles Hicks sustained a compensable injury to his back while
working in the course and scope of his employment. During the course of his treatment,
Hicks complained of pins and needles pain, and was diagnosed as having possible disc
involvement. On March 5, 1981, Hicks received a six percent permanent partial disability
rating from SIIS and his case was closed.
On May 20, 1981, Hicks submitted a written request to the SIIS, asking that his claim be
reopened. He also submitted a letter from his chiropractor in support of his request. The letter
stated that Hicks was complaining of pins and needles pain. The letter stated further that
Hicks' problems were real, based on positive exam findings and that his problem could
have resulted from the industrial injury.
The SIIS denied Hicks' request to reopen on June 2, 1981, because the indications for
reopening [were] not well defined. Hicks appealed this decision to the hearing division of
the Nevada Department of Administration, which upheld the prior denial.
On August 14, 1981, Hicks filed an appeal with the appeals officer of the Department of
Administration. The chiropractor submitted another letter, stating that he had employed
several different tests which indicated that Hicks had a deteriorating disc condition
attributable by history to his industrial accident. The appeals officer found that the letter
provided only a reiteration of Claimant's subjective complaints without supporting objective
findings, and [showed] no change in claimant's medical conditions. . . . Hicks' request to
reopen his claim was again denied.
On March 15, 1982, Hicks filed a petition for judicial review of the appeals officer's
decision. The district judge concluded that Hicks had met his burden of proof by showing a
change of circumstances sufficient to reopen his claim. An order was then entered reversing
the decision of the appeals officer and remanding the case to the SIIS for reopening of the
claim. This appeal followed.
The sole issue in this appeal is whether the district court's order reversing the decision of
the appeals officer was proper.
100 Nev. 567, 569 (1984) SIIS v. Hicks
order reversing the decision of the appeals officer was proper. Appellant argues that the
district court erred by substituting its judgment for that of the appeals officer as to the weight
of the evidence on a question of fact, thereby violating NRS 233B.140(5). We agree.
[Headnote 1]
When a decision of an administrative body is challenged, the function of this court is
identical to that of the district court. It is to review the evidence presented to the
administrative body and ascertain whether that body acted arbitrarily or capriciously, thus
abusing its discretion. Gandy v. State ex rel. Div. Investigation, 96 Nev. 281, 282, 607 P.2d
581, 582 (1980). Judicial review of an administrative decision arising out of a claim for
industrial compensation is limited to a review of the decision of the appeals officer. See NRS
616.543(2).
[Headnote 2]
NRS 616.545(1) requires that an application to reopen an industrial compensation claim
must be accompanied by the certificate of a physician, or a chiropractor if the change of
circumstances reasonably indicates treatment that is within the lawful scope of chiropractic,
showing a change of circumstances which would warrant an increase or rearrangement of
compensation. . . . The burden of proof is on the party seeking to reopen the claim. See
generally 3 Larson, Workmen's Compensation Law, 81.33(c), pp. 15-554.72-.73; 101 CJS
Workmen's Comp. 860, p. 256. See also Avon Products, Inc. v. Lamparski, 293 A.2d 559
(Del. 1972); Griffith v. Blair, 430 S.W.2d 337 (Ky. 1968). The burden is usually satisfied by
a preponderance of the evidence. See generally, Larson, supra, 81.33(c), pp. 15-554.77 et
seq. Hicks conceded below that the burden was upon him to show a comparative change of
circumstances, either in kind or degree.
[Headnote 3]
With the foregoing principles in mind, the disposition of this case is clear. Nowhere in the
administrative proceedings below did Hicks demonstrate a change of circumstances in kind or
degree that would warrant the reopening of his claim. The appeals officer found that Hicks
simply reiterated the same complaints for which he was granted a permanent partial disability
award. Our review of the record reveals no abuse of discretion by the appeals officer, and
accordingly we reverse the decision of the district court.
____________
100 Nev. 570, 570 (1984) Smith v. State
JERRY FRANK SMITH, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 15309
October 4, 1984 688 P.2d 326
Appeal from a judgment of conviction of nine counts of sexual assault, Eighth Judicial
District Court, Clark County; Donald M. Mosley, Judge.
Defendant was convicted in the district court of sexually assaulting his girl friend's
six-year-old daughter, and he appealed. The Supreme Court held that: (1) trial court did not
abuse its discretion in admitting expert testimony concerning dynamics of intrafamily child
sexual abuse, and (2) testimony of victim, who was seven years old at time of trial, was not so
inherently improbable as to justify reversing trial court's finding of competency.
Affirmed.
Goodman, Terry, Stein & Quintana, Las Vegas, for Appellant.
1. Criminal Law.
Admissibility of expert testimony lies within the sound discretion of the trial court.
2. Criminal Law.
District court, in prosecution of defendant for sexually assaulting his girl friend's six-year-old daughter,
did not abuse its discretion in admitting expert testimony concerning dynamics of intrafamily child sexual
abuse and in ruling that the testimony would assist the jury in understanding the superficially unusual
behavior of the victim, in delaying reporting incident to other family members, and of the mother, in
delaying three days after child told her of the sexual assaults before she took child to be examined by
doctor and reported assaults to police. NRS 50.275.
3. Criminal Law.
The Supreme Court will not disturb a finding of competency to testify absent a clear abuse of discretion.
4. Criminal Law.
Testimony of sexual assault victim, who was seven years old at time of trial, was not so inherently
improbable as to justify reversing trial court's finding of competency, upon consideration of victim's voir
dire examination, as well as her testimony at trial, which was clear, relevant, and coherent.
100 Nev. 570, 571 (1984) Smith v. State
OPINION
Per Curiam:
Appellant was convicted by a jury of sexually assaulting his girlfriend's six-year-old
daughter. He presently challenges the propriety of allowing certain witnesses to testify at his
trial. For the reasons expressed below, we affirm.
The case involves child sexual abuse in a family setting. Appellant lived with his girlfriend
and her daughter. Testimony indicated that the child looked upon appellant as her father.
While appellant's girlfriend worked, he stayed home and supervised the child. On September
20, 1982, the child told her mother that appellant had been sexually molesting her. The
mother waited for three days before she took the child to be examined by a doctor and
reported the assaults to the police. Thereafter, appellant was tried and convicted of nine
counts of sexual assault.
Appellant now contends that the district court erred by allowing a witness for the state to
give expert testimony concerning the dynamics of intrafamily child sexual abuse. Appellant
does not complain that the witness was unqualified to give such expert testimony. He does
assert, however, that the testimony invaded the province of the jury in determining the facts
of the case.
Prior to allowing the witness to testify, the district court heard arguments from counsel
regarding the need for expert testimony. The prosecutor noted that the defense had raised
certain issues regarding the behavior of the mother and child. For example, on
cross-examination of the child, defense counsel asked her why she had delayed in reporting
the attacks to her mother. On cross-examination of the mother, defense counsel asked why
she had delayed in reporting the attacks to the police and why she had delayed in seeking
medical aid for her daughter. The prosecutor concluded that expert testimony would assist the
jurors in understanding this seemingly unusual behavior. Defense counsel, on the other hand,
argued that the jurors could understand the behavior of the family members based on their
own common knowledge and experience. He concluded that the testimony would not aid the
jurors in determining facts, and would only serve to bolster the credibility of the state's
witnesses.
The district court thereafter determined that the expert should be allowed to testify. The
expert explained, among other things, that family members often delay in reporting that the
father or father figure has been sexually abusing his children.
100 Nev. 570, 572 (1984) Smith v. State
[Headnote 1]
Our statute regarding expert testimony provides that the testimony should be allowed if it
will assist the trier of fact to understand the evidence or to determine a fact in issue. NRS
50.275. The admissibility of expert testimony lies within the sound discretion of the trial
court. See Childers v. State, 100 Nev. 280, 680 P.2d 598 (1984).
In State v. Middleton, 657 P.2d 1215 (Or. 1983) the court dealt with the subject of expert
testimony in a sexual abuse case. After the rape, but before trial, the child ran away from
foster care, skipped school, and wanted to retract her charge of rape against her father. An
expert testified that the child's post-crime behavior was similar to that of other sexually
abused children. The Oregon Supreme Court held that the expert's testimony did not invade
the province of the jury. In so holding, the court ruled as follows:
If a complaining witness in a burglary trial, after making the initial report, denied
several times before testifying at trial that the crime had happened, the jury would have
good reason to doubt seriously her credibility at any time. However, in this instance we
are concerned with a child who states she has been the victim of sexual abuse by a
member of her family. The experts testified that in this situation the young victim often
feels guilty about testifying against someone she loves and wonders if she is doing the
right thing in so testifying. It would be useful to the jury to know that not just this
victim but many child victims are ambivalent about the forcefulness with which they
want to pursue the complaint, and it is not uncommon for them to deny the act ever
happened. Explaining this superficially bizarre behavior by identifying its emotional
antecedents could help the jury better assess the witness's credibility. Id. at 1219-20.
[Headnote 2]
We agree with the court's holding in Middleton. In this case we are concerned with a child
who stated that she had been a victim of sexual abuse by her father figure. The expert testified
that in this situation the young victim often feels guilty about testifying against someone she
loves, and the victim therefore delays in reporting the incidents to other family members. The
expert also testified that once the abuse is disclosed to the child's mother, the mother often
delays in reporting the crime because she feels torn between her love for the child and her
love for the father figure. Under these circumstances, the district court did not abuse its
discretion by admitting the expert testimony and by ruling that the testimony would assist the
jury in understanding the superficially unusual behavior of the victim and her mother.
100 Nev. 570, 573 (1984) Smith v. State
in understanding the superficially unusual behavior of the victim and her mother.
Appellant's remaining contention concerns the admissibility of the testimony of the victim,
who was seven years old at the time the case was tried. Appellant now contends that the
victim was not competent to testify at trial.
[Headnotes 3, 4]
This court will not disturb a finding of competency absent a clear abuse of discretion.
Terrible v. State, 78 Nev. 159, 370 P.2d 51 (1962). The standard of competence for a child
witness is that the child must have the capacity to receive just impressions and possess the
ability to relate them truthfully. Wilson v. State, 96 Nev. 422, 423, 610 P.2d 184, 185
(1980). Upon reviewing the voir dire examination of the witness, as well as her testimony at
trial, we cannot say that the child's testimony was so inherently improbable as to justify
reversing the trial court's finding of competency. Id. at 424, 610 P.2d at 186. Furthermore, the
majority of the child's testimony was clear, relevant and coherent. Cf. Lanoue v. State, 99
Nev. 305, 661 P.2d 874 (1983) (competency determination was improper where trial
testimony of a five-year-old witness was not clear, relevant and coherent and suggested a
substantial amount of coaching).
Appellant's contentions are meritless. Accordingly, the judgment of conviction is affirmed.
____________
100 Nev. 573, 573 (1984) AMFAC Distrib. Corp. v. Housing Authority
AMFAC DISTRIBUTION CORPORATION dba AMFAC ELECTRIC Co., Appellant, v.
HOUSING AUTHORITY OF THE CITY OF LAS VEGAS, NEVADA; JOHN E. YOXEN
COMPANY and SAFECO INSURANCE COMPANY OF AMERICA, Respondents.
No. 15348
October 4, 1984 688 P.2d 318
Appeal from summary judgment; Eighth Judicial District Court, Clark County; James
Brennan, Judge.
Materialman sued general contractor and surety to obtain satisfaction out of payment bond
for materials delivered to default subcontractor. The district court entered summary judgment
in favor of general contractor and surety, and materialman appealed. The Supreme Court held
that materialman who gave general contractor both initial and final notice of delivery of
materials, even though initial notice was more than 30 days after first delivery of materials,
could recover under payment bond for all material supplied to defaulting subcontractor in
30 days prior to initial notice.
delivery of materials, could recover under payment bond for all material supplied to
defaulting subcontractor in 30 days prior to initial notice.
Bilbray & Gibbons and Lester A. Berman, Las Vegas, for Appellant.
Edwards, Hunt & Hale; and Earl & Earl, Las Vegas, for Respondents.
Principal and Surety.
Materialman who gave general contractor both initial and final notice of delivery of materials, even
though initial notice was more than 30 days after first delivery of materials, could recover under payment
bond for all material supplied to defaulting subcontractor in 30 days prior to initial notice. NRS 339.035,
subd. 2(a).
OPINION
Per Curiam:
This is an appeal from a summary judgment in favor of a general contractor and its surety
and against a subcontractor's materialman on a payment bond.
Defendant-respondent John E. Yoxen Company was the general contractor on a public
works project in Las Vegas. As required by NRS 339.025(1)(b)
1
Yoxen obtained a payment
bond from defendant-respondent surety, Safeco Insurance Company of America. Beginning
on July 20, 1982, plaintiff-appellant Amfac Distribution Corporation supplied materials to
R.I.C. Electric, one of Yoxen's subcontractors on the project. On September 2, 1982, Amfac
notified Yoxen that it was supplying materials to R.I.C. On September 27, 1982, R.I.C.
became insolvent and stopped working on the project. Amfac's last delivery was on
September 30, 1982. Unpaid by R.I.C., Amfac sought payment from Yoxen and Safeco under
the payment bond. Yoxen and Safeco contended, and the trial court agreed, that since Amfac
had failed to give its initial statutory notice to Yoxen within thirty days of its first delivery to
R.I.C., that Amfac was barred from recovery for any of the material, including that supplied
within thirty days prior to the notice and thereafter.
____________________

1
NRS 339.025(1)(b) requires of contractors on public works:
A payment bond in an amount to be fixed by the contracting body, but not less than 50 percent of the
contract amount. The bond must be solely for the protection of claimants supplying labor or materials to
the contractor to whom the contract was awarded, or to any of his subcontractors, in the prosecution of
the work provided for in such contract.
including that supplied within thirty days prior to the notice and thereafter. We disagree.
According to NRS 339.035(2)
2
a claimant in a contractual relationship with a
subcontractor but not in privity with a contractor can recover under a payment bond when the
claimant has satisfied a dual notice requirement. The claimant must give the contractor initial
written notice of the nature of the materials or labor being provided, the person contracting
for them, and the site for performance within 30 days after furnishing the first of such
materials or performing the first of such labor. NRS 339.035(2)(a). The claimant must also
give the contractor final written notice of the amount claimed and the name of the person for
whom the work was performed or material supplied within 90 days from the date the
claimant performed the last of the labor or furnished the last of the materials. NRS
339.035(2)(b). The double notice provision of NRS 339.035 is unique to the payment bond
statute of Nevada. Garff v. J. R. Bradley Co., 84 Nev. 79, 82 fn. 3, 436 P.2d 428 (1968).
The parties do not dispute that Amfac fully complied with the final notice requirement or
that the contents of its initial notice were adequate. Only the timeliness of the initial notice is
at issue here. The trial court strictly interpreted NRS 339.035(2)(a) and found Amfac had no
right to recover for any material provided because it gave initial notice to Yoxen forty-five
days after if first supplied R.I.C. with materials. We find this strict interpretation produces an
unnecessarily harsh result not intended by the legislature. For example, a materialman's first
shipment to a subcontractor may have been paid for in cash while the second shipment,
forty-five days later, may have been on credit.
____________________

2
Any claimant who has a direct contractual relationship with any subcontractor of the contractor who gave
such payment bond, but no contractual relationship, express or implied, with such contractor, may bring
an action on the payment bond only:
(a) If he has, within 30 days after furnishing the first of such materials or performing the first of such
labor, served on the contractor a written notice which shall inform the latter of the nature of the materials
being furnished or to be furnished, or the labor performed or to be performed, and identifying the person
contracting for such labor or materials and the site for the performance of such labor or materials; and
(b) After giving written notice to such contractor within 90 days from the date on which the claimant
performed the last of the labor or furnished the last of the materials for which he claims payment. Each
written notice shall state with substantial accuracy the amount claimed and the name of the person for
whom the work was performed or the material supplied, and shall be served by being sent by registered
or certified mail, postage prepaid, in an envelope addressed to such contractor at any place in which he
maintains an office or conducts business, or at his residence.
first shipment to a subcontractor may have been paid for in cash while the second shipment,
forty-five days later, may have been on credit. The supplier would have no reason to notify
the general contractor within thirty days of the first shipment since it had already been
reimbursed for it. Under the district court's reading of NRS 339.035(2)(a), even if the supplier
gave notice the day after the second shipment, it would be too late, and the supplier would
recover nothing for that or any later delivery.
The payment bond statute is solely for the protection of claimants supplying labor or
materials to the contractor . . . or to any of his subcontractors. NRS 339.025(1)(b). However,
NRS 339.035(2)(a) provides that this protection shall be no more than thirty days retroactive
from the date of the initial notice. Consequently we read NRS 339.035(2)(a) to allow
recovery where both initial and final notice are given, even if the initial notice is more than
thirty days after the first delivery of materials, but limit this recovery to the value of material
or labor supplied in the thirty days prior to the initial notice or any time thereafter. This
interpretation best serves the interest of the claimant in recovering his cost while also limiting
the liability of the contractor to no more than thirty days before he received notice, as the
legislature intended.
Amfac alleges that it gave Yoxen the initial notice on September 2, 1982. In accordance
with NRS 339.035(2)(a) Amfac can recover under the payment bond for all material supplied
to R.I.C. in the thirty days prior to September 2, 1982 and afterwards. The value of the
material supplied during this period is in dispute. Therefore, summary judgment was
improper and we reverse and remand for further proceedings consistent with this opinion.
____________
100 Nev. 576, 576 (1984) Keever v. Jewelry Mountain Mines
VIRGIL V. KEEVER, ANNETTE KEEVER and CARVER CHAPLE, Appellants, v.
JEWELRY MOUNTAIN MINES, Inc., JOHN M. TRIPP and NICHOLAS
M. HUGHES, Respondents.
No. 15365
October 4, 1984 688 P.2d 317
Appeal from a judgment setting aside a stock transfer and awarding compensatory as well
as punitive damages; Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Derivative action was brought. The district court set aside stock transfer and awarded
damages, and defendant controlling shareholders appealed.
shareholders appealed. The Supreme Court held that where plaintiff was a shareholder at time
of alleged wrongful acts but sold all his stock to another with full knowledge of defendant's
actions almost one year before lawsuit was filed the plaintiff was without standing,
notwithstanding contention that he had equitable rights because of violation of agreement
with defendants to maintain equal ownership.
Reversed.
Jolley, Urga & Wirth, Las Vegas, for Appellants.
Edwin J. Dotson, Las Vegas, for Respondents.
1. Corporations.
Requirement that representative plaintiff in a derivative action have an ongoing proprietary interest in the
corporation ensures that the corporation's interest will be adequately represented. NRCP 23.1.
2. Corporations.
Where although plaintiff was a shareholder at time of alleged wrongful acts he had sold all his stock to
another with full knowledge of majority shareholders' actions almost one year before derivative action was
commenced the plaintiff was without standing, notwithstanding contention that he had equitable rights in 9
percent of the stock which was purchased by defendants in violation of agreement with plaintiff to maintain
equal ownership. NRCP 23.1.
OPINION
Per Curiam:
The present controversy involves a derivative action lawsuit brought by John Tripp, a
minority shareholder in Jewelry Mountain Mines, Inc., and Nicholas Hughes, a former
shareholder, against the controlling shareholders, Virgil and Annette Keever. In this appeal,
we concern ourselves with the question of whether Nicholas Hughes had standing to bring a
derivative action suit, on behalf of Jewelry Mountain Mines, Inc., against the Keevers.
[Headnote 1]
Under the contemporaneous ownership requirements of NRCP 23.1, a representative
plaintiff must have owned stock in the corporation at the time of the transaction of which he
complains and throughout the pendency of the suit.
1
Lewis v. Knutson, 699 F.2d 230 (5th
Cir. 1983). The requirement that the representative plaintiff has an ongoing proprietary
interest in the corporation ensures that the corporation's interests in the derivative action
will be adequately represented.
____________________

1
NRCP 23.1 provides, in pertinent part:
In a derivative action brought by one or more shareholders or members to enforce a right of a
corporation or of an unincorporated association, the corporation or association having failed to enforce a
right which may properly be asserted by it, the complaint shall be
representative plaintiff has an ongoing proprietary interest in the corporation ensures that the
corporation's interests in the derivative action will be adequately represented. See Schupack v.
Covelli, 498 F.Supp. 704 (1980).
It is undisputed that at the time of the alleged wrongful conduct by the Keevers, John
Tripp was not a shareholder in the corporation. Accordingly, the trial court found that Tripp
did not have standing to bring the derivative action suit against the controlling shareholders.
See Gascue v. Saralegui L. & L. Co., 70 Nev. 83, 255 P.2d 335 (1953). This finding has not
been appealed.
[Headnote 2]
We therefore turn our attention to the standing of Hughes. The evidence introduced in
district court indicates that although Hughes was a shareholder at the time of the alleged
wrongful acts, Hughes sold all of his stock to Tripp with full knowledge of the defendant's
actions almost one year before the present lawsuit was commenced. Despite this sale to Tripp,
Hughes argues that he had equitable rights in 9 percent of the corporate stock which was
purchased by the Keevers in violation of an agreement with Hughes to maintain equal
ownership in the corporation. We disagree. When Hughes voluntarily sold his interests to
Tripp, he precluded any possibility that equality of ownership could be maintained between
himself and the Keevers. We therefore hold that Hughes has waived his rights under the
agreement. Since Hughes was neither a legal nor an equitable owner of shares in Jewelry
Mountain Mines, Inc. when the action was filed, he did not have standing to maintain the
derivative action. The judgment is therefore reversed.
____________________
verified and shall allege that the plaintiff was a shareholder or member at the time of the transaction of
which he complains or that his share or membership thereafter devolved on him by operation of law.
(Emphasis added).
____________
100 Nev. 579, 579 (1984) Daniels v. State
HOSEY DANIELS, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 15419
October 4, 1984 688 P.2d 315
Motion to remand appeal for evidentiary hearing, Eighth Judicial District Court, Clark
County; Thomas A. Foley, Judge.
Defendant was convicted in the district court of robbery, and he appealed. After briefing
was concluded, defendant filed a motion seeking remand of the appeal to the District Court
for an evidentiary hearing on the issue of ineffective trial counsel. The Supreme Court held
that remand of a direct appeal for an evidentiary hearing on the issue of ineffective trial
counsel was unnecessary and inappropriate.
Motion to remand denied.
Graves, Leavitt & Cawley, Las Vegas, for Appellant.
1. Criminal Law.
Claim of ineffective trial counsel is generally based on factual allegations which must be explored at
evidentiary hearing. U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Claim of ineffective trial counsel is properly raised in proceedings for post-conviction relief.
3. Criminal Law.
Because of usual need for evidentiary hearing to resolve claim of ineffective counsel, failure to raise
claim on direct appeal does not constitute waiver of claim for purposes of post-conviction proceedings.
4. Criminal Law.
Proceeding on petition for post-conviction relief is separate from appeal of conviction and Supreme
Court has no jurisdiction over such proceeding while it is still pending in district court and has no authority
to order the district court to conduct an evidentiary hearing.
5. Criminal Law; Habeas Corpus.
Legislature has provided at least two means for bringing post-conviction challenges to criminal
convictions, namely, petition for post-conviction relief and post-conviction petition for writ of habeas
corpus, and both procedures encompass claims of ineffective trial counsel and provide for exploration of
actual underpinnings of such claims at evidentiary hearings. NRS 34.380, 177.315 et seq.
6. Criminal Law.
Remand of direct appeal for evidentiary hearing on claim of ineffective trial counsel was unnecessary and
inappropriate as petition for post-conviction relief and post-conviction petition for writ of habeas corpus
adequately preserve rights of defendant allegedly aggrieved by ineffective counsel at
trial.
adequately preserve rights of defendant allegedly aggrieved by ineffective counsel at trial. NRS 34.380,
177.315 et seq; U.S.C.A.Const. Amend. 6.
7. Criminal Law.
Defendant had not properly invoked abeyance procedure whereby direct appeal is held in abeyance
pending resolution of post-conviction proceeding raising issue of ineffective trial counsel where defendant
had requested remand of direct appeal for evidentiary hearing on issue of ineffective trial counsel and he
had not recited that he had filed or intended to file petition for post-conviction relief. NRS 34.380,
177.315 et seq.; U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
A jury convicted appellant Hosey Daniels of robbery. On appeal, he raised numerous
assignments of error. By a motion filed after briefing was concluded, appellant seeks remand
of this appeal to the district court for an evidentiary hearing on the issue of ineffective trial
counsel.
1
For the reasons set forth below, we deny the motion.
[Headnotes 1-3]
A claim of ineffective trial counsel is generally based on factual allegations which must be
explored at an evidentiary hearing. Consequently, a claim of ineffective trial counsel is
properly raised in proceedings for post-conviction relief. See Lewis v. State, 100 Nev. 456,
686 P.2d 219 (1984); Bolden v. State, 99 Nev. 181, 659 P.2d 886 (1983); Gibbons v. State,
97 Nev. 520, 634 P.2d 1214 (1981). Because of the usual need for an evidentiary hearing to
resolve a claim of ineffective counsel, the failure to raise the claim on direct appeal does not
constitute a waiver of the claim for purposes of post-conviction proceedings. Bolden v. State,
supra.
[Headnote 4]
Appellant seeks remand of this appeal to the district court for an evidentiary hearing on the
issue of ineffective trial counsel, in accordance with the statutes governing hearings on
petitions for post-conviction relief. Appellant has not recited that he has filed or intends to
file such a petition. Of course, a proceedings on a petition for post-conviction relief would be
a separate one; we would have no jurisdiction over the proceeding while it was still pending
in the district court, and would have no authority to order the district court to conduct an
evidentiary hearing. We therefore treat appellant's somewhat ambiguous request as seeking
remand for an evidentiary hearing as part of the appellate process. We conclude that appellant
seeks an evidentiary hearing on the claim of ineffective counsel which may later be
reviewed as part of the direct appeal procedure, as an alternative to raising the claim by
post-conviction relief.
____________________

1
Current counsel for appellant did not represent him at trial.
seeks an evidentiary hearing on the claim of ineffective counsel which may later be reviewed
as part of the direct appeal procedure, as an alternative to raising the claim by post-conviction
relief. We decline to adopt or approve this procedure.
[Headnotes 5, 6]
The Legislature has provided at least two means for bringing post-conviction challenges to
criminal convictions. See NRS 177.315 et seq. (petition for post-conviction relief); NRS
34.380 (post-conviction petition for writ of habeas corpus). Both procedures encompass
claims of ineffective trial counsel, and provide for the exploration of the factual
underpinnings of such claims at evidentiary hearings. Id. We consider these procedures to
preserve adequately the rights of defendants allegedly aggrieved by ineffective counsel at
trial. Remand of a direct appeal for an evidentiary hearing is therefore unnecessary.
Moreover, the remand of an appeal for the exploration of such claims would expand the
record beyond the facts of the proceeding which resulted in the judgment under direct review.
We therefore conclude that the remand requested by appellant is inappropriate.
[Headnote 7]
In a few prior cases, we have ordered direct appeals held in abeyance pending the
resolution of post-conviction proceedings raising the issue of ineffective trial counsel. In
those cases, however, the appellants recited that a petition for post-conviction relief had in
fact been filed, and affirmatively requested us to refrain from deciding the appeal until the
resolution of the post-conviction proceeding. Moreover, the claims of ineffective counsel
were of prima facie merit. In the appropriate case, wherein these procedural prerequisites are
met, we would no doubt give serious consideration to a request for abeyance, since a
favorable ruling on a claim of ineffective trial counsel would most likely render a direct
appeal moot. As this opinion demonstrates, however, there are distinct differences between
the abeyance procedure and the remand requested in this case, and appellant has not
properly invoked the abeyance procedure.
The motion for remand is denied.
2

____________________

2
Counsel for appellant, who became involved in this case after the opening brief was filed, has also moved
for leave to argue the issues raised for the first time in his reply brief. Cause appearing, the motion is granted.
Counsel has also moved to supplement the record on appeal with certain documents attached to the reply brief.
Cause appearing, the motion is granted, and the documents shall be considered part of the record on appeal. See
NRAP 2; NRAP 10(g). Respondent's motion to strike portions of the reply brief is hereby denied, but respondent
shall have thirty (30) days from the date of this opinion to file a supplemental answering brief responding to the
new issues raised in the reply brief.
____________
100 Nev. 582, 582 (1984) Wayne v. State
DAVID RICHARD WAYNE, Appellant, v. THE
No. 13981
December 6, 1984 691 P.2d 414
Appeal from judgment of conviction of second degree kidnapping, possession of a deadly
weapon by an incarcerated person, battery with use of a deadly weapon, and possession of a
Schedule II controlled substance; two counts of false imprisonment; and setting a deadly
weapon as a trap resulting in noninjury to a human being; First Judicial District Court, Carson
City; Michael R. Griffin, Judge.
Defendant was convicted in the district court of second degree kidnapping, possession of a
deadly weapon by an incarcerated person, battery with use of a deadly weapon, possession of
a Schedule II controlled substance, and three gross misdemeanors, and he appealed. The
Supreme Court held that: (1) defendant's waiver of right to assistance of counsel was
knowingly and intelligently made; (2) defendant was not prejudiced by trial court's failure to
canvass him concerning his waiver of his right to counsel; and (3) thus, failure of trial court
to canvass defendant concerning his waiver of his right to counsel did not mandate reversal of
defendant's convictions.
Affirmed.
Thomas E. Perkins, State Public Defender, Robert A. Bork, Chief Deputy, Laura
FitzSimmons, Deputy, Carson City, for Appellant.
Brian McKay, Attorney General, Dan R. Reaser, Deputy, Carson City, for Respondent.
1. Criminal Law.
Defendant convicted of four felonies and three gross misdemeanors made a knowing and intelligent
waiver of his right to counsel and was not prejudiced by trial court's failure to canvass him concerning his
waiver of his right to counsel.
2. Criminal Law.
Failure of trial court, in defendant's prosecution for four felonies and three misdemeanors, to canvass
defendant concerning his waiver of his right to counsel did not mandate reversal of defendant's convictions,
where defendant made a knowing and intelligent waiver of his right to counsel and was not prejudiced by
trial court's failure.
3. Criminal Law.
A criminal accused has right to represent himself under both the State and Federal Constitutions.
4. Criminal Law.
Exercise of the right to self-representation necessarily requires a waiver of the accused's right to
assistance of counsel.
100 Nev. 582, 583 (1984) Wayne v. State
5. Criminal Law.
A valid waiver of right to assistance of counsel must be knowingly and intelligently made.
6. Criminal Law.
Prior exposure of a defendant to self-representation may not in every case justify a failure to canvass the
accused concerning his waiver of his right to counsel.
7. Criminal Law.
Defendant's waiver of right to counsel in his prosecution for four felonies and three gross misdemeanors
was knowingly and intelligently made, and therefore valid, where defendant was willing and able to
proceed in pro per, where defendant's ability was known to the trial judge who had presided in one of the
previous trials in which defendant had represented himself and had been acquitted, and where defendant
stated explicitly that he was aware of dangers and disadvantages of self-representation as a result of his
experiences.
OPINION
Per Curiam:
A jury found appellant David Richard Wayne guilty of four felonies: one count each of
second degree kidnapping, possession of a deadly weapon by an incarcerated person, battery
with use of a deadly weapon, possession of a Schedule II substance, and three gross
misdemeanors: setting a trap resulting in noninjury to a human being, and two counts of false
imprisonment. Wayne admitted the facts constituting the crimes charged but he offered the
defense of necessity at trial. Wayne was found to be an habitual criminal and he was
sentenced to life imprisonment with the possibility of parole.
On October 26, 1980 Wayne, who was an inmate at the Nevada State Prison in Carson
City, took two nurses and a correctional officer hostage in the prison infirmary. There he
fashioned a deadfall, a device designed to injure another person which could be triggered if
Wayne were injured. Wayne placed a nurse in the apparatus. He then released the correctional
officer and began negotiating with authorities for various concessions relating to his
confinement. Twelve hours after commencing his siege, Wayne released his remaining
hostages and surrendered.
[Headnotes 1, 2]
On appeal Wayne has presented several claims of error, only one of which merits
discussion: the issue of the trial judge's failure to canvass Wayne concerning his waiver of his
right to counsel. Wayne does not claim that the waiver was not knowingly and intelligently
made, but he argues that the absence of a specific canvass mandates reversal. This Court has
not held that a failure to canvass alone, when the record otherwise supports the finding that
the accused made an intelligent and knowing waiver of his right to counsel, is reversible
error.
100 Nev. 582, 584 (1984) Wayne v. State
of his right to counsel, is reversible error. We decline to do so in the case at bar. We hold that
Wayne did make a knowing and intelligent waiver of his right to counsel and that he was not
prejudiced by the trial court's failure to canvass him. Therefore we affirm Wayne's judgment
of conviction.
At his arraignment, Wayne was informed of the charges in the amended information and
of the possible penalties for each charge. He indicated that he understood the charges. Wayne
sought to represent himself and stated in his affidavit supporting the motion: I am aware of
the problems of self-representation as I have recently represented myself during three separate
criminal trials that led to my acquittal in each case. One of these trials was before the very
trial judge in the present case. The district judge granted Wayne's motion with the further
provision that a state public defender advise and assist Wayne. Deputy Public Defender
Annabelle Hall, or her office, prepared pretrial motions and motions in limine on Wayne's
behalf. The Defender argued the motions and was active is assisting in preparing and
presenting Wayne's defense. Wayne called over forty witnesses and often conferred in court
and outside the courtroom with the Defender. Wayne also testified in his own defense with
the assistance of the Defender.
[Headnotes 3-5]
A criminal accused has the right to represent himself under both the United States and the
Nevada Constitutions. Faretta v. California, 422 U.S. 806 (1974); Wheby v. Warden, 95 Nev.
567, 598 P.2d 1152 (1979). The exercise of the right to self-representation necessarily
requires a waiver of the accused's right to the assistance of counsel. United States v.
Dujanovic, 486 F.2d 182, 185 (9th Cir. 1973). A valid waiver of this right must be
knowingly and intelligently made. Faretta, supra, at 835, citing Johnson v. Zerbst, 304
U.S. 458, 464-65 (1937). Further, the determination of whether there has been an intelligent
waiver of the right to counsel must depend, in each case, upon the particular facts and
circumstances surrounding that case, including the background, experience, and conduct of
the accused. Johnson, supra, at 464. This Court has reversed criminal convictions where the
trial court granted the accused's request to represent himself without adequate inquiry into
whether the waiver of the right to counsel was knowingly and intelligently made. Anderson v.
State, 98 Nev. 539, 654 P.2d 1026 (1982); Cohen v. State, 97 Nev. 166, 625 P.2d 1170
(1981). In Cohen, the defendant asked to represent himself after his request to present his
own summation was denied, and this Court found no indication from the record that the trial
judge conducted any canvass to determine whether appellant's waiver was valid."
100 Nev. 582, 585 (1984) Wayne v. State
valid. 97 Nev. at 168, 625 P.2d at 1171. The defendant in Anderson made his second motion
for appointment of new counsel on the day of trial. The trial court denied it and told him he
could proceed with his appointed counsel or represent himself. Without being canvassed or
advised of the disadvantages of self-representation, the defendant chose to proceed without
counsel, under the coercion of the court. 98 Nev. at 541, n. 1, 654 P.2d at 1027. In both
cases, we reversed where there was no canvass or other facts or circumstances to suggest the
waivers were knowing and intelligent.
In the case at bar, Wayne specifically requested to proceed in pro per. The trial court
granted his motion after Wayne stated he had represented himself and that he had been
acquitted in three prior criminal trials, and that he was aware of the problems of
self-representation. The trial judge failed to question Wayne formally about his knowledge of
certain aspects of the case and his awareness of the problems of self-representation. Wayne
argues that the omission of a canvass is reversible error under Cohen and Anderson without
claiming that his waive was not knowing and intelligent. This argument ignores the purpose
underlying the canvass. Trial courts are urged to canvass defendants concerning their waiver
of the right to counsel to ensure that a waiver is knowing and intelligent and that its validity is
clearly reflected on the record. See, Anderson, supra, at 541, 654 P.2d at 1027-28. However,
this Court has not reversed a conviction because of a failure to canvass where the record
otherwise indicates that the waiver was knowingly and intelligently made. We note that the
Ninth Circuit's interpretation of its own similar rule, set forth in United States v. Dujanovic,
486 F.2d 182, 185 (9th Cir. 1973), is in accord with our decision in this case. In Cooley v.
United States, 501 F.2d 1249, 1252 (9th Cir. 1974), cert. denied, 419 U.S. 1123 (1975) the
court held, with regard to the requirement for addressing a defendant who seeks to represent
himself: While the procedure described may be preferred, its omission is not, per se,
reversible error, where it appears from the whole record that the defendant knew his rights
and insisted upon representing himself. Furthermore, the court has suggested that prior
self-representation could justify an application of this exception. United States v. Harris, 683
F.2d 322 (9th Cir. 1982).
[Headnotes 6, 7]
Although we agree that it will be only the rare case . . . in which an adequate waiver will
be found on the record in the absence of a specific inquiry by the trial judge, United States v.
Aponte, 591 F.2d 1247, 1250 (9th Cir. 1978), we find the record in this case provides ample
evidence that Wayne's waiver was knowingly and intelligently made, and therefore valid.
100 Nev. 582, 586 (1984) Wayne v. State
knowingly and intelligently made, and therefore valid. Unlike the defendants in Cohen and
Anderson, Wayne was willing and able to proceed in pro per. In addition, Wayne's ability was
known to the trial judge who had presided in one of the previous trials in which Wayne had
represented himself and had been acquitted. Wayne also stated explicitly that he was aware of
the dangers and disadvantages of self-representation as a result of his experiences. Prior
exposure to self-representation may not in every case justify a failure to canvass the accused.
However, Wayne's extensive and successful history of self-representation provides the
necessary assurance that an accused knows what he is doing and his choice is made with his
eyes open when he waives his right to counsel. Adams v. United States ex rel. McCann, 317
U.S. 269, 279 (1942). Further, Wayne was fully informed of and understood the charges
against him and the possible penalties for each charge. He chose the defense of necessity and
called over forty witnesses and testified in his own behalf. In this context, it is clear that
Wayne knowingly and intelligently waived his right to counsel. Further, members of the
public defender's office actively assisted Wayne in preparing for and conducting the trial.
Therefore, he was not prejudiced by the trial court's failure to canvass him formally.
Because we find under the unique facts of this case that Wayne's waiver was valid despite
the lack of a canvass, we affirm his conviction.
____________
100 Nev. 586, 586 (1984) Watson v. G.C. Associates Ltd.
AVONNA WATSON, Appellant, v. G.C. ASSOCIATES LIMITED PARTNERSHIP,
BRIAN GREENSPUN, SUSAN GREENSPUN FINE, DANIEL GREENSPUN, and
JANE GREENSPUN, As Partners of G.C. ASSOCIATES LIMITED
PARTNERSHIP, Respondents.
No. 14549
December 6, 1984 691 P.2d 417
Appeal from order of summary judgment in action for personal injury. Eighth Judicial
Workmen's compensation claimant, who had received compensation under workmen's
compensation statutes for her injury, brought action seeking to impose third-party liability
upon limited partnership which leased building to claimant's employer. The district court
granted summary judgment in favor of limited partnership and the partners, and claimant
appealed. The Supreme Court held that limited partnership was immune from liability for
acts of its partners, where the general partners were co-employees of claimant and
therefore immune from common law liability.
Supreme Court held that limited partnership was immune from liability for acts of its
partners, where the general partners were co-employees of claimant and therefore immune
from common law liability.
Affirmed.
Leavitt and Leavitt, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy & Jemison, R. Richard Costello, Las Vegas, for Respondents.
A person is same employ as a workmen's compensation claimant is relieved from common law liability
for damages resulting from injuries compensated under the workmen's compensation statute, even if the
co-employee may have been liable to claimant on basis of some other role or status unrelated to his
employment. NRS 616.560.
2. Partnership.
The Uniform Partnership Act is based upon a common law or aggregate theory of partnership, as opposed
to an entity theory which would have endowed the partnership with a separate legal personality apart from
its partners. NRS 87.010 et seq.
Limited partnership, which leased building to workmen's compensation claimant's employer, was immune
from liability for any acts of its partners which may have resulted in the accident causing injury to claimant,
who had recovered for the injury under the workmen's compensation statutes, where general partners of the
partnership were co-employees of claimant and therefore immune from common law liability. NRS
87.010 et seq., 88.270, 616.010 et seq., 616.560.
OPINION
Per Curiam:
Appellant Avonna Watson appeals from a summary judgment granted in favor of the
respondents, a limited partnership and the partners as such. After recovery from the Nevada
Industrial Commission, now the State Industrial Insurance System, Watson sought to impose
third-party liability upon respondents for the results of an injury by accident occurring in the
course and scope of her employment. The theory of Watson's complaint was that respondents,
as landlords, had been negligent in their maintenance of the building which they own and
lease to her employer, the Las Vegas Sun, Inc.
Respondents sought summary judgment below, in part upon the ground that the named
general partners of the partnership, Brian Greenspun, Susan Greenspun Fine, and Daniel
Greenspun, were co-employees of the plaintiff, and therefore immune from common law
liability pursuant to the Nevada Industrial Insurance Act {NIIA), NRS 616.560.
(NIIA), NRS 616.560. On appeal, Watson concedes the dismissal of the limited partner, Jane
Greenspun, as well as the general partners, apparently also recognizing that a limited partner
is not a proper party to a suit against a limited partnership. NRS 88.270, see Richard
Mathews, Jr., Inc. v. Vaughn, 91 Nev. 583, 540 P.2d 1062 (1975).
Despite the fact that all the general partners of the partnership are concededly immune
from liability as co-employees as a result of the workmen's compensation statute, Watson
asks this Court to address the issue of the common law liability of the partnership, as if it
were an entity independent of its partners. This we decline to do. To do so would require us to
ignore the policies of both the Uniform Partnership Act, NRS chapter 87, and the Nevada
Industrial Insurance Act, NRS chapter 616.
[Headnote 1]
Under NRS 616.560, a person in the same employ as a claimant is relieved from
common law liability for damages resulting from injuries compensated under the workmen's
compensation statute. See Howard v. District Court, 98 Nev. 87, 640 P.2d 1320 (1982);
Aragonez v. Taylor Steel Co., 85 Nev. 718, 462 P.2d 754 (1969). This is so, even if the
co-employee may have been liable to the claimant on the basis of some other role or status
unrelated to his employment. Thus, in Noland v. Westinghouse Electric Corporation, 97 Nev.
268, 628 P.2d 1123 (1981), we specifically refused to abrogate the statutory immunity of
co-employees by application of the dual capacity doctrine. Therefore, the fact that
respondents were also the landlords of the claimant's employer has no effect upon their
immunity under the act. See, e.g., Heritage v. Van Patten, 453 N.E.2d 1247 (N.Y. 1983)
(co-employee immune from liability as landlord); cf. Jansen v. Harmon, 164 N.W.2d 323
(Iowa 1969) (employer immune from liability as landlord).
We have held that [o]ne of the principal purposes of the NIIA . . . is to protect employees
from the possible financial burden arising from injuries to co-employees as a result of their
negligence. Noland v. Westinghouse, supra, 97 Nev. at 270, 628 P.2d at 1125. The granting
of immunity to the respondent partners in this case is required to satisfy this purpose. To
uphold this immunity while allowing suit against their partnership, however, would
undermine this important policy.
[Headnote 2]
Under the Uniform Partnership Act, NRS chapter 87, a partnership is defined as an
association of two or more persons to carry on as co-owners a business for profit. NRS
87.060(1). As the drafter of the act explained at the time of its proposal, this language was
intended to make clear that the act was based upon a common law or aggregate theory of
partnership, as opposed to an entity theory which would have endowed the partnership
with a separate legal personality.
a common law or aggregate theory of partnership, as opposed to an entity theory which would
have endowed the partnership with a separate legal personality. Lewis, The Uniform
Partnership Act, 24 Yale L.J. 617, 638-40 (1915). See also Lewis, The Uniform ActA Reply
to Mr. Crane's Criticism, 29 Harv. L. Rev. 158 (1915), and 29 Harv. L. Rev. 291 (1916).
Under the act, the partnership is liable for loss or injury resulting from any wrongful act or
omission of any partner acting in the ordinary course of the business . . . to the same extent as
the partner so acting or omitting to act, NRS 87.130, and all partners are liable jointly and
severally for everything chargeable to the partnership under NRS 87.130. NRS 87.150(1).
To hold the partnership liable in this case would, therefore, necessarily be to hold the partners
liable as well, despite the policy of the NIIA.
Faced with a similar problem, the New York Court of Appeals held that a partnership was
immune from liability for the tortious acts of a partner who was himself immune from
liability. Caplan v. Caplan, 198 N.E. 23 (N.Y. 1935). The court noted that [i]n the field of
liability for torts [where liability is joint and several] it is especially apparent that a
partnership cannot be regarded as an entity independent of the persons who compose it. Id.
at 25. See also Belleson v. Skilbeck, 242 N.W. 1 (Minn. 1932). Cf. Sumner v. Brown, 167 A.
315 (Pa. 1933) (no right of action remains against partnership when neither partner is liable).
Contra, Eule v. Eule Motor Sales, 170 A.2d 241 (N.J. 1961) (entity theory). In the field of
workmen's compensation, it has been held, analogously, that where the partnership was
immune as an employer under the act, a partner could not be liable for negligence in his
capacity as a landlord. Williams v. Hartshorn, 69 N.E.2d 557 (N.Y. 1946). Other courts have
similarly refused to allow suits against partners when the partnerships were immune under
workmen's compensation statutes. Carlson v. Carlson, 346 N.W.2d 525 (Iowa 1984);
Mazzuchelli v. Silberberg, 148 A.2d 8 (N.J. 1959); Candler v. Hardware Dealers Mutual Ins.
Co., 203 N.W.2d 659 (Wis. 1973).
[Headnote 3]
For the same policy reason, to avoid creating an artificial distinction which would have the
effect of abrogating the policy of our workmen's compensation statute regarding immunity of
employers or co-employees, we are unwilling to treat the respondent partnership in this case
as a separate entity, subject to common law liability, though all the general partners who
compose the partnership are protected under the act. In other contexts, we have also refused
to allow those protected under the act to suffer indirectly an exposure to liability from which
the NIIA was intended to shelter them. See, e.g., Kellen v. District Court, 98 Nev. 133, 642
P.2d 600 (1982) (employer and co-employee insulated from contribution); Corrao Constr.
Co. v. Curtis, 94 Nev. 569, 5S4 P.2d 1303 {197S) {employer insulated from contractual
indemnity); Outboard Marine Corp. v.
insulated from contribution); Corrao Constr. Co. v. Curtis, 94 Nev. 569, 584 P.2d 1303
(1978) (employer insulated from contractual indemnity); Outboard Marine Corp. v.
Schupbach, 93 Nev. 158, 561 P.2d 450 (1977) (employer insulated from implied indemnity).
We similarly refuse to allow the respondent partners, co-employees of the plaintiff, to be
exposed to an indirect liability by allowing suit against their partnership.
Our decision in this regard is not affected by the fact that in this instance we deal with a
limited partnership. Such an organization is, after all, simply a partnership, with the added
feature that some, but never all, of the partners may limit their liability. See NRS 88.020. Nor
are we persuaded that the fact that our statutes permit a partnership to be sued in its own
name should affect the substantive rights at issue in the instant case. As other courts have
observed, common name statutes were intended to provide a procedural convenience to
litigants, not to affect the substantive rights, liabilities and duties of partners or partnerships.
See, e.g., Carlson v. Carlson, supra; Candler v. Hardware Dealers Mutual Ins. Co., supra;
Thomas v. Industrial Commission, 10 N.W.2d 206, 210 (Wis. 1943).
Accordingly, we affirm the judgment of the court below.
____________
100 Nev. 590, 590 (1984) Dearing v. State
JEFFREY LIDE DEARING, Appellant, v. THE STATE
No. 14643
December 6, 1984 691 P.2d 419
Appeal from judgment of conviction upon jury verdict of one count of sexual assault and
one count of lewdness with a minor, Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Defendant appealed from judgment of conviction on jury verdict of one count of sexual
assault and one count of lewdness entered in the district court. The Supreme Court held that:
(1) testimony by victim's father repeating victim's description of assault, given minutes after
assault and prompted by father's observation that victim was agitated and nervous, was
admissible as excited utterance; (2) testimony of police detective who interviewed victim
about one and one-half hours after assault, in which he repeated description of assault given
by victim while she was nervous and upset, was admissible as excited utterance; and (3)
victim's mother's testimony, during which she repeated victim's description of assault, was
admissible as attempt to rehabilitate victim's credibility by offering prior consistent
statements following defense counsel's cross-examination of victim attempting to raise
implication of fabrication.
rehabilitate victim's credibility by offering prior consistent statements following defense
counsel's cross-examination of victim attempting to raise implication of fabrication.
Affirmed.
Jeffrey D. Sobel, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney, William T.
Koot and Nancy Oesterle, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
In prosecution which resulted in conviction of sexual assault and lewdness with minor, testimony by
victim's father repeating victim's description of assault made minutes after assault and prompted by father's
observation that victim was agitated and nervous was admissible as excited utterance. NRS 51.095.
2. Criminal Law.
Trial court's reason for admitting testimony is not important in determining whether testimony was
admissible, even if that reason was incorrect.
3. Criminal Law.
In prosecution which resulted in conviction of sexual assault and of lewdness with minor, testimony of
police detective who interviewed victim about one and one-half hours after assault, repeating victim's
description of assault given while victim was nervous and upset, was admissible as excited utterance. NRS
51.095.
4. Witnesses.
In prosecution which resulted in conviction of sexual assault and of lewdness with minor, victim's
mother's testimony, during which she repeated description of assault given by victim a few days after it
occurred was admissible as attempt to rehabilitate victim's credibility by offering prior consistent
statements following defense counsel's cross-examination of victim attempting to raise implication of
fabrication. NRS 51.035, subd. 2(b).
5. Criminal Law.
Contention that criminal defendant received ineffective assistance of counsel is more appropriately raised
in post-conviction proceeding in district court than on appeal from judgment of conviction. U.S.C.A.Const.
Amend. 6.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction upon a jury verdict of one count of sexual
assault and one count of lewdness with a minor. For the reasons expressed below, we affirm
the conviction.
Appellant raises several assignments of error in this appeal. The only issue requiring
discussion, however, is appellant's assertion that the testimony of three witnesses was
erroneously admitted over hearsay objections.
assertion that the testimony of three witnesses was erroneously admitted over hearsay
objections.
[Headnotes 1, 2]
The first such item of testimony was given by the victim's father, and consisted essentially
of his repetition of the victim's description of the assault. The victim's recitation occurred
only minutes after the attack, and the father's conversation with the victim was prompted by
his observation that she was agitated and nervous. Accordingly, the testimony was properly
received as an excited utterance. See NRS 51.095; United States v. Nick, 604 F.2d 1199 (9th
Cir. 1979); see generally C. McCormick, McCormick on Evidence 297 (3rd ed. 1984). It is
of no import that the district court gave a different reason for admitting the testimony, even if
that reason was incorrect. See Cunningham v. State, 100 Nev. 396 n. 1, 683 P.2d 500 (1984).
[Headnote 3]
The second item of testimony objected to was that of a police detective who interviewed
the victim about one and one-half hours later. The testimony was substantively similar to that
of the victim's father. Again, however, the victim was at that time nervous and upset, and
the time between the event and the statement was relatively short. Accordingly, in light of the
authorities cited above, the testimony was properly admitted despite the district court's
apparent reliance upon a different rationale.
[Headnote 4]
The third item of testimony was that of the victim's mother, during which she repeated the
victim's description of the attack. We note that appellant's trial counsel cross-examined the
child witness at considerable length with the apparent intention of implying that the child's
credibility was questionable. Although counsel did not suggest any specific motive for
fabrication or indicate where or when such a motive might have arisen, counsel's heavy
cross-examination of the victim was directed at impugning her credibility. In light of the
heavy cross-examination, the state attempted to rehabilitate the victim's credibility by offering
prior consistent statements which the victim had made to her mother just a few days after the
attack.
We conclude that the district court did not abuse its discretion by admitting the mother's
testimony regarding the prior consistent statements. See State v. Pitts, 382 P.2d 508 (Wash.
1963). As the court states in Pitts: Repetition adds stature to imputations and insinuations
and may well infer recent fabrication. The trial court saw and heard the live performance; it
was in a position to weigh any innuendoes and nuances, and it admitted [the prior
consistent statement] for the limited purpose stated." Id. at 510-11.
weigh any innuendoes and nuances, and it admitted [the prior consistent statement] for the
limited purpose stated. Id. at 510-11. Given the circumstances of the present case, we cannot
say that the district court erred in allowing the mother to testify regarding statements made by
the child, which rebutted the implication of fabrication raised by defense counsel. Cf.
Gibbons v. State, 97 Nev. 299, 629 P.2d 1196 (1981) (where the defense suggests a motive to
fabricate, corroborative testimony introduced for the purpose of rehabilitation must
affirmatively show that the repeated statement was originally made at a time when the
declarant had no motive to fabricate); see also NRS 51.035(2)(b).
[Headnote 5]
Appellant's remaining contentions have been considered and are without merit.
1
Accordingly, we affirm the district court's judgment of conviction.
____________________

1
We express no opinion on appellant's contention that he received ineffective assistance of counsel. That
contention is more appropriately raised in post-conviction proceedings in the district court. Gibbons v. State, 97
Nev. 520, 634 P.2d 1214 (1981).
____________
100 Nev. 593, 593 (1984) Mahban v. MGM Grand Hotels
ALEXANDER MAHBAN, Individually and dba PERSONALIZED NAME SHOP;
and dba PERSIAN RUG SHOP, Appellant, v. MGM GRAND HOTELS, INC.,
dba MGM GRAND HOTEL, Respondent.
No. 14714
December 6, 1984 691 P.2d 421
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Addeliar
D. Guy, Judge.
Lessee of floor space within hotel arcade area brought breach of lease action against lessor.
The district court granted lessor's motion for summary judgment, and lessee appealed. The
Supreme Court held that letter from lessor's manager to lessee more than two months after
fire forcing lessee to vacate floor space, which letter stated that manager hoped to be able to
notify lessee sometime late in February when lessee would be able to begin remodelling
within arcade area and that all plans for reconstruction were required to be submitted to
manager for approval, could be read to have encouraged acts or evidenced intent by lessor
inconsistent with termination of lease, thus raising material questions of fact as to
whether lessor waived or would be equitably estopped from asserting its contractual right
to terminate pursuant to destruction of premises clause, precluding summary judgment.
intent by lessor inconsistent with termination of lease, thus raising material questions of fact
as to whether lessor waived or would be equitably estopped from asserting its contractual
right to terminate pursuant to destruction of premises clause, precluding summary judgment.
Bilbray & Gibbons and Lester A. Berman, Las Vegas, for Appellant.
Lionel Sawyer & Collins and Rodney M. Jean, Las Vegas, for Respondent.
1. Estoppel.
In certain factual scenarios, there is potential for both theory of waiver and theory of equitable estoppel to
afford relief to an aggrieved party.
2. Estoppel.
Requirement of actual knowledge of true facts on part of party to be equitably estopped does not apply to
a party whose affirmative conduct, consisting of either acts or representations, has misled another.
3. Estoppel.
Waiver is the intentional relinquishment of a known right, which may be implied from conduct which
evidences an intention to waive a right, or by conduct which is inconsistent with any other intention than to
waive the right.
4. Estoppel.
Whether there has been a waiver is a question for the trier of facts.
5. Judgment.
In breach of lease action brought by lessee of floor space within hotel arcade against lessor, letter from
lessor's manager to lessee more than two months after fire forcing lessee to vacate floor space, which letter
stated that manager hoped to be able to notify lessee sometime late in February when lessee would be able
to begin remodelling within arcade area and that all plans for reconstruction were required to be submitted
to manager for approval, could be read to have encouraged acts or evidenced intent by lessor inconsistent
with termination of lease, thus raising material questions of fact as to whether lessor waived or would be
equitably estopped from asserting its contractual right to terminate pursuant to destruction of premises
clause, precluding summary judgment.
6. Estoppel.
Court's power to seek and do equity under doctrine of equitable estoppel is not limited in Nevada by
requirement that equitable estoppel is a defense, not a cause of action for money damages.
7. Estoppel.
Even if equitable estoppel could be asserted only as a defense, lessee was not precluded from raising
equitable estoppel as bar to lessor's assertion of its contractual right to terminate under destruction of
premises clause in lease agreement, since estoppel was being asserted as a defense to a defense, rather than
as a claim for relief.
OPINION
Per Curiam:
This is an appeal from a summary judgment. Because genuine issues of fact have not been
resolved, we must reverse.
Respondent, MGM Grand Hotel, leased floor space within the hotel arcade area to
appellant, who operated two shops in the arcade. The lease agreements each contain a clause
which permits either party to terminate the lease if the Leased Premises are damaged or
destroyed during the Lease Term to such an extent that they cannot be put into tenantable
condition by Lessor within one hundred eighty (180) days after such damage or destruction.
On November 21, 1980, the hotel was damaged by fire to an extent sufficient to invoke the
right to terminate provided for in the leases.
On January 30, 1981, appellant received a letter from the MGM arcade manager informing
appellant, in pertinent part, as follows:
I would like to let you know additionally, that sometime late in February, our target
date to re-open should be finalized. I hope to be able to notify you at that time when
you will be able to begin remodeling within the arcade area.
All plans for reconstruction must be submitted for approval, in advance of any work
beginning, to me at my office . . . .
Appellant alleges that in reliance upon this letter he proceeded to order merchandise for
restocking one of the shops.
On March 17, 1981, appellant received a letter from respondent which sought to terminate
the leases for both shops pursuant to the destruction-of-premises section of the leases.
Appellant thereafter filed the instant action, seeking, among other relief, money damages for
breach of the lease agreements,
1
based on the contention that the January 30, 1981 letter
induced his reasonable reliance on the indication therein that respondent would not terminate
his leases. The district court concluded that, as a matter of law, appellant could not have
reasonably relied on the letter . . . because the letter contained no representation as to whether
defendant MGM intended to waive its contractual rights pursuant to the
destruction-of-premises clause. We disagree, and therefore reverse.
____________________

1
It appears that one of the shops was a month-to-month tenancy, which was duly terminated by a thirty day
notice on April 23, 1981, thereby rendering appellant's claims upon that lease moot.
[Headnote 1]
The primary issue here is whether the language of the letter, read in the light most
favorable to appellant, is sufficient to support appellant's claim. See Mullis v. Nevada
National Bank, 98 Nev. 510, 654 P.2d 533 (1982). Appellant contends on appeal that triable
issues are established under the theory of equitable estoppel. In certain factual scenarios, there
is a potential for both the theory of waiver and the theory of equitable estoppel to afford relief
to an aggrieved party. Rights may themselves be waived by a lessor, or he may by his conduct
become estopped to assert them. See Reno Realty v. Hornstein, 72 Nev. 219, 225, 301 P.2d
1051 (1956). It is unclear whether the district court relied only on the theory of waiver in
granting summary judgment. We conclude, however, that triable questions remain on both the
waiver and equitable estoppel theories.
[Headnote 2]
This court has previously characterized equitable estoppel as generally comprised of the
following four elements:
(1) The party to be estopped must be apprised of the true facts; (2) he must intend that
his conduct shall be acted upon, or must so act that the party asserting estoppel has the
right to believe it was so intended; (3) the party asserting the estoppel must be ignorant
of the true state of facts; (4) he must have relied to his detriment on the conduct of the
party to be estopped.
Cheqer, Inc. v. Painters & Decorators, 98 Nev. 609, 614, 655 P.2d 996, 998-99 (1982).
The requirement of actual knowledge of the true facts on the part of the party to be estopped
does not apply to a party whose affirmative conduct, consisting of either acts or
representations, has misled another. 3 Pomeroy, Equity Jurisprudence 809 pp. 217-18 (5th
ed. 1941).
[Headnotes 3, 4]
A waiver is the intentional relinquishment of a known right. Reno Realty v. Hornstein,
supra. A waiver may be implied from conduct which evidences an intention to waive a right,
or by conduct which is inconsistent with any other intention than to waive the right. Reynolds
v. Travelers' Ins. Co., 28 P.2d 310 (Wash. 1934). See also Lindley & Co. v. Piggly Wiggly,
55 Nev. 458, 39 P.2d 903 (1935) (waiver may be inferred when the conduct of a conditional
vendor is inconsistent with the idea that he still expects to enforce a return of the goods if the
conditions are not performed). Whether there has been a waiver is a question for the trier of
facts. Bowman v. Webster, 269 P.2d 960 (Wash. 1954).
[Headnote 5]
We turn now to an examination of the contents of the letter. On January 30, 1981, more
than two months after the fire, respondent wrote to appellant to inform him, in part, that I
hope to be able to notify you at that time [sometime late in February] when you will be able
to begin remodeling within the arcade area. This language allows an inference of an intent
on the part of respondent, as of the time of the letter, not to exercise its termination right. The
letter further informs that All plans for reconstruction must be submitted [to me] for
approval, in advance of any work beginning, . . . . Plans for reconstruction are generally
acquired only at a substantial expense to one who obtains them. Although the record is
unclear as to whether appellant actually invested in plans, the letter can be read to have
encouraged acts or evidenced intent inconsistent with termination of the lease. Accordingly,
we conclude that material questions of fact exist on both the waiver and estoppel issues.
[Headnotes 6, 7]
Respondent contends, nevertheless, that equitable estoppel is a defense, not a cause of
action for money damages. Although some jurisdictions agree with respondent's contention,
we have not so limited the power of the courts of this state to seek and do equity. See Nevada
Pub. Emp. Ret. Bd. v. Byrne, 96 Nev. 276, 607 P.2d 1351 (1980). Moreover, the underlying
action in the present case sought damages for breach of the lease agreement. The doctrine of
equitable estoppel has been raised as a bar to respondent's assertion of its right to terminate
under the destruction-of-premises clause in the lease agreement.
2
As applied here, estoppel
is, therefore, essentially a defense to a defense, rather than a claim for relief.
Because material questions of fact remain, the summary judgment was inappropriate. We
therefore reverse the summary judgment against appellant, and we remand the case for further
proceedings.
____________________

2
Black's Law Dictionary 483 (rev. 5th ed. 1979) defines equitable estoppel as:
The doctrine by which a person may be precluded by his act or conduct, or silence when it is his duty
to speak, from asserting a right which he otherwise would have had.
____________
100 Nev. 598, 598 (1984) State of Nevada v. City of Burbank
THE STATE OF NEVADA, THE NEVADA DEPARTMENT OF TAXATION, NEVADA
TAX COMMISSION, and CLARK COUNTY, NEVADA, Appellants and
Cross-Respondents, v. CITY OF BURBANK, a Municipal Corporation; CITY OF
GLENDALE, a Municipal Corporation; CITY OF PASADENA, a Municipal Corporation;
CITY OF LOS ANGELES, a Municipal Corporation; THE DEPARTMENT OF WATER
AND POWER OF THE CITY OF LOS ANGELES, and
THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA,
Respondents and Cross-Appellants.
No. 14830
December 6, 1984 691 P.2d 845
Appeal and cross-appeal from judgment declaring tax statutes, as applied, violated the
Commerce Clause and federal statute, and ordering reimbursement of taxes paid under
protest. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
California cities, department of water and power of one city, and Metropolitan Water
District of Southern California challenged constitutionality of statute which imposed tax upon
value of any right to receive electrical power directly from exempt real estate or personal
property by political subdivision of any other state, seeking reimbursement of taxes paid
under protest. The district court declared that the tax statutes, as applied, but not facially,
violated the commerce clause and federal statute, and ordered reimbursement. The State, the
State Department of Taxation, the State Tax Commission, and county appealed, and plaintiff
cities cross-appealed. The Supreme Court held that: (1) tax statutes facially violated the
federal statute which prohibits discriminatory taxation of the generation or transmission of
electricity and, consequently, the supremacy clause of United States Constitution, and (2) the
cities were entitled to reimbursement of tax monies previously paid under protest, as well as
interest on that sum.
Affirmed as modified.
Brian McKay, Attorney General, Marta Adams, Deputy Attorney General, Carson City;
Robert J. Miller, District Attorney, Stanley W. Parry, Special Deputy District Attorney, Clark
County, for Appellants and Cross-Respondents.
David W. Hagen, Reno, for Respondents and Cross-Appellants.
Presumption that statute is constitutional must prevail absent clear contravention of constitutional
principles.
2. States.
Purported difference in subject matter between federal statute which prohibits discriminatory taxation of
generation or transmission of electricity, and state statutes which tax value of right to receive electricity, is
without distinction. 15 U.S.C.A. 391; NRS 361.157, 361.157, subd. 2, 361.159, 361.159, subd. 2.
3. Taxation.
Impact of statutes which impose tax upon any right to receive electrical power directly from exempt real
estate or personal property by political subdivision of any other state, upon out-of-state cities, who in turn,
must increase cost of electrical power to their resident consumers, would be permissible providing that
resident consumers of state were subject to same burden. 15 U.S.C.A. 391; NRS 361.157, subd. 2,
361.159, subd. 2.
4. Taxation.
Federal statute which prohibits discriminatory taxation of generation or transmission of electricity
forecloses right of states to directly or indirectly yoke generation and transmission of electricity with
unequal burden, despite contention that in-state citizens are taxed in different forms thereby compensating
for added tax burden imposed out of state. 15 U.S.C.A. 391.
5. States.
Inclusion of in-state subcontractors within purview of statutes which impose tax upon value of any right
to receive electric power directly from exempt real estate or personal property by natural person,
association, partnership or corporation or by political subdivision of any other state did not save those
statutes from invalidation under federal statute which prohibits discriminatory taxation of generation or
transmission of electricity and under supremacy clause of United States Constitution, since political
subdivisions of state remain exempt from tax. 15 U.S.C.A. 391; U.S.C.A.Const. art. 6, cl. 2; NRS
361.157, 361.157, subd. 2, 361.159, 361.159, subd. 2.
6. States.
Statutes which imposed tax upon value of any right to receive electrical power directly from exempt real
estate or personal property by natural person, association, partnership or corporation or by political
subdivision of any other state facially violate federal statute which prohibits discriminatory taxation of
generation or transmission of electricity and, consequently, supremacy clause of United States Constitution.
15 U.S.C.A. 391; U.S.C.A.Const. art 6, cl. 2; NRS 361.157, 361.157, subd. 2, 361.159, 361.159,
subd. 2.
7. Taxation.
Since paragraph of statutes which imposed tax upon value of any right to receive electrical power directly
from exempt real estate or personal property by natural person, association, partnership, corporation or by
political subdivision of any other state is unconstitutional on its face, out-of-state cities were entitled to
reimbursement of tax monies previously paid under protest and to interest on that sum. NRS 361.157,
361.157, subd. 2, 361.159, 361.159, subd. 2, 361.420, subd. 7.
OPINION
Per Curiam:
This is an appeal and cross-appeal from a judgment declaring that certain state tax statutes,
as applied, violate the Commerce Clause and a federal statute and ordering reimbursement of
taxes which were paid under protest. For the reasons set forth hereinafter, the judgment is
affirmed as modified by this opinion.
Hoover Dam provides electrical power for Nevada, Arizona and California. The dam, the
power plant, the transmission lines to the switchyards and the switchyards themselves are
owned by the United States. Some of the generators are located in Arizona and some in
Nevada. Federal property in Nevada is exempt from taxation by the state. NRS 361.050. In
1941 when the dam was completed, the United States entered into contracts to provide power
directly to allottees, including the State of Nevada (through the Colorado River Commission,
a state agency) and each of the California respondents (Cities).
The State of Nevada has not been a consumer of the electricity it has purchased. Instead, it
has subcontracted its entitlement to Nevada Power Company, Kerr-McGee Chemical
Corporation, Titanium Metals Corporation of America, Stauffer Chemical Company, Lincoln
County Power District, Overton Power District, Basic Management, Inc. and Gemstar
(Subcontractors). Subcontractors' power is generated on both the Nevada and Arizona sides
of the dam and delivered over federally owned transmission lines principally to transformers
in Henderson, Nevada. Boulder City, Nevada also receives its power from Hoover Dam,
pursuant to a 1958 Congressional statute transferring the entitlement from the United States.
The power for Boulder City is produced by generators located in Nevada.
Respondent Cities receive their power at the federally owned switchyards and transmit it
to California over towers and lines owned by Cities, which property and its associated real
estate in Nevada apparently have been taxed for a substantial period of time.
In 1965, the Nevada Legislature enacted NRS 361.157 and 361.159, which provided that
real estate and personal property otherwise exempt from taxation may be taxed if it is used by
a business conducted for profit. Clark County thereafter sought to tax several of the
respondents here. This Court affirmed a lower court's judgment that the tax was illegal and
that monies paid must be returned, because the respondents were not engaged in a business
conducted for profit. Clark County v. City of Los Angeles, 91 Nev. 309, 535 P.2d 158 (1975).
In 1977 the Nevada Legislature amended the two statutes by adding what is currently
paragraph 2 of both NRS 361.157 and 361.159. NRS 361.157(2) reads as follows:
When any real estate which is exempt from taxation by reason of its public ownership
is used for the generation of electric power, the value of any right to receive electric
power directly from the exempt real estate by a natural person, association, partnership
or corporation or by a political subdivision of any other state is taxable as though the
holder of that right were the owner of the real estate in the same proportion which his
right bears to the total of all rights to receive electric power generated through the use
of that real estate.
NRS 361.159(2) is identical, except that it applies to personal property instead of real
estate.
Pursuant to the amended statutes, Clark County taxed Cities from 1977 through 1982 at
total of $694,012.74, which Cities paid under protest. All out-of-state purchasers of electricity
generated from the Nevada side of Hoover Dam were taxed. No in-state purchaser was taxed,
including Subcontractors and political subdivisions. Cities eventually filed suit to avoid
payment of the tax and obtain reimbursement of the taxes paid under protest.
Josephine Cowperthwaite, a supervisor for the Nevada Department of Taxation, testified at
trial that she eliminated from assessment the State of Nevada's Colorado River Commission
(CRC) and the Subcontractors, because the state is normally exempt and the Subcontractors'
power, she believed, was generated on the Arizona side of the dam. Cowperthwaite also
testified that she did not learn until the trial that some of the Subcontractors' power which
went through the station in Henderson was generated on the Nevada side of the dam.
During trial, the district court judge visited the dam and its facilities. While on the tour, the
judge apparently questioned a representative of Clark County. At the conclusion of the trial,
the district court determined: that Cities, as well as certain private corporations, come within
the scope of the statutes; that the statutes do not facially violate 15 U.S.C.A. 391
prohibiting taxes discriminatory to out-of-state consumers of electricity, but do so as applied;
that the statutes do not facially violate the Commerce Clause of the U.S. Constitution, but do
so as applied; that the statutes do not violate Art. 4, 20, 21 of the Nevada Constitution,
which prohibit local or special laws for the assessment and collection of taxes; that Cities are
entitled to reimbursement of all taxes paid under protest, plus interest; and that no further
payments can be required of Cities until the statutes are uniformly applied.
further payments can be required of Cities until the statutes are uniformly applied. Both
appellants and Cities appeal portions of the judgment entered below.
[Headnote 1]
The threshold issue before this Court is whether paragraph two of the amended statutes is
unconstitutional on its face. Our analysis commences with a presumption of constitutionality
which must prevail absent a clear contravention of constitutional principles. State of Nevada
v. Glusman, 98 Nev. 412, 420, 651 P.2d 639, 644 (1982).
We do not question the legislative prerogative to establish the tax specified in paragraph
two. Nor do we perceive error in the lower court's conclusion that Subcontractor fall within
the purview of the statute. The CRC serves as a conduit through which the right to receive
electrical power came to Subcontractors. It is clear, however, that Subcontractors still receive
electric power directly from the exempt real estate. The fact that the right derives from the
contracting authority of CRC is of no significance under the language of the statute. The
source of the right has no role as a tax determinant in the statutory scheme; rather, it is the
value of any right to receive electrical power directly from the exempt real estate that
establishes the criterion for the tax.
Unfortunately, the remaining aspect of the statute requiring our scrutiny leaves no room
for constitutional validation. The plain language of the paragraph restricts its impact, in
relevant part, to the political subdivisions of any other state. The clear and inescapable
import of the term other is that the political subdivisions of the State of Nevada are exempt
from the tax imposed by the statutes. Such an exemption comports with Nevada law
providing for such exemptions, NRS 361.060, and the factual history of the nonpayment of
the tax by Boulder City, a municipality within our state.
[Headnotes 2, 3]
It is unnecessary to decide the issue of the statutes' compatibility with the Commerce
Clause of the federal constitution. Although grave doubt may exist as to whether the statutes
could survive such an analysis, there is no latitude for equivocation when scrutinizing the
statutes under the proscriptive standards of 15 U.S.C.A. 391. The latter statute reads as
follows:
No State, or political subdivision thereof may impose or assess a tax on or with respect
to the generation or transmission of electricity which discriminates against out-of-State
manufacturers, producers, wholesalers, retailers, or consumers of that electricity. For
purposes of this section a tax is discriminatory if it results, either directly or indirectly
in a greater tax burden on electricity which is generated and transmitted in
interstate commerce than on electricity which is generated and transmitted in
intrastate commerce.
discriminatory if it results, either directly or indirectly in a greater tax burden on
electricity which is generated and transmitted in interstate commerce than on electricity
which is generated and transmitted in intrastate commerce.
The specific subject matter of the quoted federal statute is the discriminatory taxation of
the generation or transmission of electricity. Although paragraph two of our amended statutes
purports to tax only the value of the right to receive electricity, the difference is one without a
distinction. Nevada's tax directly impacts on the transmission of electricity to Cities, who in
turn, must increase the cost of electrical power to their resident-consumers. Under 391 such
an impact would be permissible providing the resident-consumers of Nevada were subject to
the same burden. They are not.
[Headnote 4]
We reject the notion that Nevada's citizens are taxed in different forms thereby
compensating for the added tax burden imposed by paragraph two on Cities. This contention
is unsound simply because 391 eliminates its availability. Regardless of a given state's
choice of taxing alternatives, the United States Congress has clearly foreclosed the right of
states to directly or indirectly yoke the generation and transmission of electricity with an
unequal burden. See Arizona Public Service Company v. Snead, 441 U.S. 141 (1979).
Obviously, when all out-of-state receivers of power are taxed and no in-state receivers are
taxed, the statutes have resulted either directly or indirectly, in a greater tax burden on
interstate commerce than intrastate commerce. Id.
[Headnotes 5, 6]
Again, it must be emphasized that the inclusion of Subcontractors within the purview of
the statutes will not save them since Boulder City and other Nevada political subdivisions
remain exempt from the tax. We therefore hold that the statutes facially violate 15 U.S.C.A.
391 and, as a result, the Supremacy Clause of the U.S. Constitution.
[Headnote 7]
In view of our determination that paragraph two of the amended statutes is
unconstitutional on its face, we are left with no alternative other than to affirm the district
court's conclusion that Cities are entitled to the reimbursement of tax monies previously paid
under protest. They are likewise entitled to interest on the sums so paid in accordance with
NRS 361.420(7) (formerly (6)).
We have considered the other contentions raised by appellants and cross-appellants and
have concluded that they are without merit or need not be decided as a result of our holding.
Accordingly, the judgment of the district court is affirmed as modified by this opinion.
____________
100 Nev. 604, 604 (1984) Henderson v. March
WALTER E. HENDERSON, SENIOR, and HAZEL M. HENDERSON, Husband and Wife,
as Joint Tenants, Appellants, v. THEODOR MARCH, Respondent.
No. 15008
December 6, 1984 691 P.2d 424
Appeal from a judgment for respondent in a property dispute, Third Judicial District
Court, Churchill County; Mario G. Recanzone, Judge.
District court entered judgment in favor of respondent in an ejectment action based on his
determination that the parties or their predecessors in interest had established a boundary by
acquiescence, and an appeal was taken. The Supreme Court held that agreed boundary by
acquiescence was not established where there was no evidence of the requisite dispute or
uncertainty between the parties or their predecessors in interest as to the true boundary.
Reversed.
John C. Hope, Jr., Reno, for Appellants.
John R. McCormick, Fallon, for Respondent.
1. Boundaries.
An agreed boundary by acquiescence is established where the following is shown: a dispute or
uncertainty as to the boundary; possession to a certain line; possession for a specified period of time; and
acquiescence to that possession from which an agreement is implied; it is essential to show that a previous
dispute or uncertainty existed regarding the true boundary and that element cannot be implied by the
passage of time alone.
2. Boundaries.
Agreed boundary by acquiescence was not established where there was no evidence of the requisite
dispute or uncertainty between the parties or their predecessors in interest as to the true boundary.
OPINION
Per Curiam:
Appellants and respondent own abutting tracts of property. Appellants sought to eject
respondent from a portion of the property to which appellants claim title. The district court
entered judgment for respondent, based upon its determination that the parties or their
predecessors in interest had established a boundary by acquiescence. This is an appeal from
that judgment. Because we have determined that the evidence was not sufficient to establish a
boundary by acquiescence, we reverse.
On March 16, 1979, appellants purchased the parcel of property abutting the property
owned by respondent. Appellants had their property surveyed on March 13, 1981, and
discovered at that time that a wood fence separating appellants' and respondent's parcels of
property was situated about two feet onto appellants' property. The evidence indicates that
fences of various sorts were in essentially the same location as the present fence, since as
early as 1956.
[Headnote 1]
An agreed boundary by acquiescence is established where the following is shown: (a)
dispute or uncertainty as to the boundary; (b) possession to a certain line; (c) possession for a
specified period of time, and (d) acquiescence to that possession, from which an agreement is
implied. Sceirine v. Densmore, 87 Nev. 9, 479 P.2d 779 (1971). It is essential to show that a
previous dispute or uncertainty existed regarding the true boundary; this element cannot be
implied by the passing of time alone. Sceirine v. Densmore, 87 Nev. at 14.
[Headnote 2]
The record in the present case discloses no evidence of the requisite dispute or uncertainty
between the parties or their predecessors in interest. The district court found that there was
an implication that the predecessors in interest of plaintiffs and defendants had a dispute as
to the actual location of their mutual boundary. As in the case of Sceirine, however, the
instant case discloses neither evidence of a dispute, nor evidence of affirmative conduct on
the part of appellants or their predecessors in interest to show that at one time in history they
realized that the fence might not be the true boundary, but that they acquiesced in the
respondent's possession of the disputed property. See Sceirine v. Densmore, supra at 14.
Therefore the district court erred by implying an element of an agreed boundary by
acquiescence which needed to be proven.
implying an element of an agreed boundary by acquiescence which needed to be proven.
Accordingly, we reverse the district court's order.
____________
100 Nev. 606, 606 (1984) Breedlove v. Breedlove
NANCY J. BREEDLOVE, Appellant, v. CHARLES
BREEDLOVE aka DAVID BERGER, Respondent.
No. 15075
December 6, 1984 691 P.2d 426
Appeal from post-judgment order, Eighth Judicial District Court, Clark County; Michael J.
Wendell, Judge.
Former wife moved to have the homestead exemption ruled inapplicable to her judgment
against former husband for support. The district court denied the motion. Former wife
appealed. The Supreme Court, Manoukian, C. J., held that the homestead exemption did not
protect the former husband from a judgment for support.
Springer, J., dissented.
Jones, Jones, Bell, Close & Brown, Las Vegas, for Appellant.
Eric Zubel, and Lance A. Landers, Las Vegas, for Respondent.
1. Homestead.
Former wife who was seeking to enforce support judgment was not a creditor of the sort against whom
legislature sought to protect the homesteader and it would be extremely unfair to permit homestead to be
used as shield to insulate father from being forced to pay support he owed to his own children. NRS
115.010, 115.010, subd. 2(b); Const. art. 4, 30.
2. Homestead.
Fact that former husband was living in home with his second wife and her children from a former
marriage did not override rights of his former wife and children and, therefore, was appropriate to find
public policy exception to homestead exemption in order to enforce support judgment. NRS 115.010,
115.010, subd. 2(b); Const. art. 4, 30.
OPINION
The parties in this case had five children together during the course of their marriage,
which ended by divorce in 1968. The Indiana trial court which conducted the divorce
proceedings awarded custody of all five children to appellant, and further ordered
respondent to pay child support to appellant in the sum of $175 per week.
Indiana trial court which conducted the divorce proceedings awarded custody of all five
children to appellant, and further ordered respondent to pay child support to appellant in the
sum of $175 per week.
It is undisputed that respondent subsequently defaulted on his child support payments and,
in 1980, appellant obtained a judgment from the Indiana trial court, awarding her
approximately $90,000 in child support payment arrearages and $2,260 in attorney fees.
Appellant duly recorded the judgment in the Clark County district court, and respondent, who
is a resident of Clark County, was given notice of the judgment. Respondent, however, failed
to pay any amount of the judgment, and appellant began a lengthy series of attempts to secure
payment, with respondent in turn going to even greater lengths to avoid making payment. In
one instance respondent, after being notified of the judgment against him, placed his major
attachable asset, his home in Las Vegas, into a family trust. The trust, however, was later
ordered set aside primarily because the district court found that it had been created for the
sole purpose of defrauding appellant in her attempt to execute on the judgment.
Shortly after the trust was set aside, respondent filed a homestead exemption on his home
pursuant to NRS 115.010,
1
again frustrating appellant in her attempt to execute on the
judgment.
2
Appellant then moved in the district court to have the homestead exemption
ruled inapplicable to her judgment against respondent, primarily contending that public policy
requires an exception to the homestead laws in cases where a party is seeking to enforce a
child support award against the homesteader. The district court, however, denied the motion,
concluding that respondent could use the homestead exemption to prevent appellant from
executing on his home. Appellant contends that the district court erred in this determination.
We agree.
On its face, the homestead law in this state seems to indicate that a homestead exemption
is always enforceable against a party seeking to execute on the homestead, unless the
party can demonstrate that he or she comes within one of the statutory exceptions.
____________________

1
NRS 115.010 provides in pertinent part that:
1. The homestead . . . is not subject to forced sale on execution, or any final process from any court,
except as provided by subsection 2.
2. The exemption provided in subsection 1 does not extend to process to enforce the payment of
obligations contracted for the purchase of the premises, or for improvements made thereon, including any
mechanic's lien lawfully obtained, or for legal taxes, or for:
(a) Any mortgage or deed of trust thereon executed and given; or
(b) Any lien to which prior consent has been given through the acceptance of property subject to any
recorded declaration of restrictions, deed restriction, restrictive covenant or equitable servitude, by both
husband and wife, when that relation exists. . . .

2
The record reflects that the home is the only item of respondent's which is now left for appellant to execute
on since, for reasons unknown, all attempts to execute on respondent's remaining properties have been
unsuccessful.
that a homestead exemption is always enforceable against a party seeking to execute on the
homestead, unless the party can demonstrate that he or she comes within one of the statutory
exceptions. See NRS 115.010, supra, note 1; see also Nev. Const. art. 4, 30. Applying the
statute in a strictly technical fashion, it would appear that appellant does not come within one
of the listed exceptions.
3
Nevertheless, we agree with appellant that to interpret the statute in
such a highly technical fashion would in this case lead to absurd results, and would in fact
contravene the legislature's clear intent in enacting this statute.
[Headnote 1]
Homestead laws in this country were designed for the purpose of protecting families and
making families secure in their homes from creditors they are unable to pay. See, e.g., Bickel
v. Bickel, 495 P.2d 154 (Ariz.Ct.App. 1972); Winter v. Winter, 145 N.W. 709 (Neb. 1914);
see generally Annot., 54 A.L.R.2d 1422 (1957). As such, when an ex-wife or child attempts
to enforce court-ordered support payments, the rationale behind upholding the homestead
exemption can no longer be said to apply since the policy of protecting the family would no
longer be served by such an application. See Bickel v. Bickel, supra; Winter v. Winter, supra.
A former family member attempting to enforce a support judgment can hardly be said to be a
creditor of the sort against which the legislature sought to protect the homesteader, and it
would be extremely unfair to permit the homestead to be used as a shield under these
circumstances to insulate a father from being forced to pay the support that is owed to his
own children. See Bickel v. Bickel, supra; Winter v. Winter, supra.
[Headnote 2]
Respondent nevertheless cites cases from other jurisdictions which have refused to find a
public policy exception to their own homestead laws in cases involving enforcement of
support benefits. See Yager v. Yager, 60 P.2d 422 (Cal. 1936); Putz v. Putz, 572 P.2d 970
(Okla. 1977). The courts in these cases reasoned that if a person owing child support
payments remarried and created a new family and home, the second family had a right to be
secure in the home, and that this right essentially overrode the right the first family had to
seek enforcement of a support award. Respondent contends that since he is now living in the
home with his second wife and her children from a former marriage, the public policies of
Nevada would be served by applying the homestead laws to protect his second family.
____________________

3
Appellant did argue that her judgment against respondent should be treated as a lien on the home such as
to bring it within the statutory exception listed in NRS 115.010(2)(b). See supra, note 1. We conclude, however,
that even if we were to deem the judgment to be a lien, it would not be one to which respondent gave his prior
consent and would therefore not fit within this particular exception.
public policies of Nevada would be served by applying the homestead laws to protect his
second family.
We cannot agree with this reasoning. Respondent owed his first family a duty of support
long before the second marriage arose, and he entered into the second marriage well aware of
that duty. As the Nebraska Supreme Court stated:
The [homestead] law ought not to permit [the defendant-husband] to construct a
shield that will protect him in his marital and domestic recklessness. By getting married
again, he ought not to be permitted to relieve himself from the burden of supporting the
child that he caused to come into the world.
Winter v. Winter, supra, at 712.
To permit the application of the homestead laws to protect respondent's second family, at
the expense of depriving his first family of the support to which they are entitled, was clearly
not a result intended by the Nevada Legislature in enacting the homestead laws.
We further note that respondent's argument is especially disingenuous in light of the
particular facts of this case, and that the application of the Yager and Putz rationale would in
this case lead to an absurd and unwarranted result. The record reflects that respondent is a Las
Vegas medical doctor, and that he is by no means unable to pay the judgment in this case. We
further note that respondent's home, estimated by respondent himself to be worth at least
$160,000, was purchased after he had already defaulted on his child support payments.
Clearly it cannot be said that the homestead laws were designed to protect an otherwise
financially solvent former spouse, such as respondent, who has defaulted on his support
payments to his own children, and who seeks to suffer absolutely no consequences as a result
thereof.
In sum, respondent is not the type of debtor whom the legislature sought to protect, and
appellant, in turn, is not the type of creditor from whom the legislature intended to protect
homesteaders. See Bickel v. Bickel, supra.
Accordingly, the judgment is reversed, and the matter is remanded to the district court for
further proceedings in accordance with this opinion.
Mowbray, Steffen and Gunderson, JJ., concur.
Springer, J., dissenting:
I dissent because I agree with the trial judge, who took the position that any additional
specific exceptions to the homestead exemption should be created by the legislature and not
by the courts.
Nevada Revised Statutes Chapter 115 withdraws the homestead from the reach of creditors
except where the debt relates to the purchase of the premises or to improvements made on the
premises. This opinion creates a new exception, namely, indebtedness arising out of child
support obligations.
The creation of this new exception requires resolution of a public policy issue: the priority
of the claim of a creditor for child support over the rights of a family to keep its living place
inviolate from creditors' claims. There is arguable merit to either side of the issue, but it is an
issue that should be resolved by the democratic process and with the illumination of
legislative debate.
The trial court followed the prudent and proper course in this matter, and I would affirm its
decision.
____________
100 Nev. 610, 610 (1984) Smith v. Smith
LESLIE H. SMITH, Appellant, v. SHARON
KAY SMITH, Respondent.
No. 15078
December 6, 1984 691 P.2d 428
Appeal from post-judgment orders denying appellant's request for return of monies paid,
holding him in contempt and requiring him to sign a promissory note and deed of trust and to
pay attorney's fees. Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Following remand by the Supreme Court, 98 Nev. 395, 649 P.2d 1374, the district court in
property phase of bifurcated divorce proceeding, entered orders finding, inter alia, that it had
jurisdiction over parties' property matters and that husband was in contempt. Husband
appealed. The Supreme Court held that: (1) trial court, by referring parties' property matters to
a master for his recommendation, necessarily implied a reservation of jurisdiction for parties'
property settlement, and thus, trial court had jurisdiction to enter orders necessary to enforce
parties' marital termination agreement, and (2) phase of bifurcated divorce proceedings
relating to parties' property settlement was an action for divorce within meaning of statute
permitting award of reasonable attorney fees to either party to an action for divorce, and thus,
award of attorney fees to wife, who properly prayed for attorney fees in her motion for order
to show cause why her husband should not be held in contempt, was within sound discretion
and authority of trial court.
Affirmed.
100 Nev. 610, 611 (1984) Smith v. Smith
Christopher G. Gellner, Las Vegas, for Appellant.
Phillips & Kelley, Las Vegas, for Respondent.
1. Divorce.
Trial court in divorce proceeding, by referring parties' property matters to a master for his
recommendation, necessarily implied a reservation of jurisdiction for parties' property settlement, and thus,
trial court had jurisdiction to enter orders necessary to enforce parties' marital termination agreement.
2. Divorce.
Phase of bifurcated divorce proceedings relating to parties' property settlement was an action for
divorce within meaning of statute permitting award of reasonable attorney fees to either party to an action
for divorce, and thus, award of attorney fees to wife, who properly prayed for attorney fees in her motion
for order to show cause why her husband should not be held in contempt, was within sound discretion and
authority of trial court. NRS 125.150, subd. 3.
OPINION
Per Curiam:
This is an appeal from post-judgment orders by the district court denying a request by
appellant for return of monies paid, holding him in contempt and requiring him to sign a
promissory note and deed of trust and to pay attorney's fees. For the reasons set forth
hereinafter, the orders are affirmed.
Appellant Leslie H. Smith (Les) and respondent Sharon Kay Smith (Sharon) were married
in 1974. Sharon filed for divorce in 1977 and trial eventually commenced in 1980. On the
second day of trial, the parties advised the district court that negotiations regarding a property
settlement were nearly completed and requested a six-day recess. Les' counsel then stated:
The court indicated the other day that you would grant a divorce today; and we wondered if
we could follow through on that. The district court expressed its reluctance to grant the
divorce until after the parties presented the results of their negotiations. The court then told
the parties that regardless of those results, it would grant the divorce and bifurcate the
property settlement issues. Neither party objected.
At the status check six days later, Sharon's counsel stated that an agreement had not been
reached and requested that the decree of divorce not be granted at that time. Les' counsel
objected and the matter was continued. The next week the matter was still unresolved. The
court then granted Sharon an absolute decree of divorce and ordered that the parties'
community property rights be determined with the aid of a master, who was to make a
recommendation to the court within one month.
100 Nev. 610, 612 (1984) Smith v. Smith
One month later, Les' counsel advised the court that the matter may be settled and that he
was drafting a property settlement agreement. The parties then executed a Marital
Termination Agreement (MTA) on August 4, 1980. The MTA in part provides for Les to pay
Sharon $70,000.00. From August 1 to December 1, 1980, Les was to pay Sharon $750.00
each month. On January 1, 1981, Les was to execute a note to Sharon for the balance of the
$70,000.00 owed at an interest rate equal to the average of the prime rates charged by the
three largest U.S. banks on the day the note was signed.
On October 29, 1980, counsel advised the court that the MTA had been prepared, but that
the interest rate on the note remained a bone of contention. Further testimony and evidence
subsequently were presented to the court regarding the interest rate to be used in the MTA.
The court found the rate to be the average prime rate charged by the three largest U.S. banks
as of December 1, 1980.
Sharon thereafter made a motion for an order to show cause why Les should not be held in
contempt for his failure to execute the note and make payments pursuant to the MTA; she
also prayed for attorney's fees. On December 3, 1981, the district court ordered Les, pursuant
to the MTA, to deliver to Sharon a promissory note for the outstanding principal plus interest.
On December 16, 1981, the court ordered Les to sign a note and a deed of trust securing the
note within thirty days.
Les appealed the December 16 order to this Court. While the appeal was pending,
however, Les signed the note and deed of trust on June 16, 1982 and paid $10,000.00 to
Sharon. Due to the action by Les and Sharon's apparent belief that the December 16 order was
only an enforcement order which did not affect the underlying obligation set forth in the
December 3 order, she elected not to respond to the appeal. Sharon waived the filing of an
answering brief and did not respond to this Court's order to show cause. This Court elected to
treat Sharon's conduct as a confession of error and instructed the district court to vacate its
order of December 16, see Smith v. Smith, 98 Nev. 395, 649 P.2d 1374 (1982), which it did.
The district court then requested briefing by the parties regarding the effect of the vacated
order on the validity of the note and deed of trust and on the present status of the case.
In its order dated June 10, 1983, the district court in relevant part concluded that: (1) the
note and deed of trust are void as a result of the vacated order; (2) the district court has
jurisdiction over the parties' property matters, specifically those relating to the MTA; (3) the
district court's order of December 3, 1981 constitutes a final judgment on issues relating to
the terms and conditions of the Promissory Note and Deed of Trust to be signed by [Les]
pursuant to the terms and conditions of the [MTA]"; {4) the district court's order of
December 16, 19S1 was an enforcement order and is null and void; {5) voiding the
December 16 order "does not in any way alter [Les'] responsibility to execute a
Promissory Note secured by a Deed of Trust and its corroborating documents as
invisioned [sic] by the [MTA]"; and {6) Les' request for return of monies paid to Sharon is
denied.
100 Nev. 610, 613 (1984) Smith v. Smith
conditions of the Promissory Note and Deed of Trust to be signed by [Les] pursuant to the
terms and conditions of the [MTA]; (4) the district court's order of December 16, 1981 was
an enforcement order and is null and void; (5) voiding the December 16 order does not in
any way alter [Les'] responsibility to execute a Promissory Note secured by a Deed of Trust
and its corroborating documents as invisioned [sic] by the [MTA]; and (6) Les' request for
return of monies paid to Sharon is denied.
On that same day, the district court conducted a hearing based on its order to show cause
why Les should not be held in contempt for violating prior orders and failing to comply with
the MTA. The court, in its order dated June 16, 1983, found Les to be in contempt and
ordered him confined in the county jail until he signed the new note, deed of trust and
corroborating documents envisioned by the MTA and ordered Les to pay attorneys' fees in the
sum of $2,500.00. Les now appeals the district court's orders of June 10, 1983 and June 16,
1983.
[Headnote 1]
Les first contends that the district court lacked jurisdiction to enter orders enforcing the
parties' MTA through the divorce proceedings after it had already entered an absolute decree
of divorce. Les relies primarily upon Gojack v. District Court, 95 Nev. 443, 596 P.2d 237
(1979). Although we did hold in Gojack that a trial court is without jurisdiction to enter a
final decree of divorce without contemporaneously disposing of the community property of
the parties, id. at 445, 596 P.2d at 239, we also recognized an exception where the parties
have stipulated to a bifurcated trial. Cf. Ellett v. Ellett, 94 Nev. 34, 573 P.2d 1179 (1978),
where the parties stipulated to separate trials on the issues but no final judgment was entered
until the close of all the proceedings.
1
Id. n. 3. Contrary to the court in Ellett, the district
court in the instant case unfortunately granted the parties an absolute decree of divorce before
conducting the separate proceedings dealing with the parties' community property interest.
Two other facts, nevertheless, compel us to conclude that the instant case more closely
resembles Ellett than Gojack. First, Les requested on the second day of trial that the court
follow through with granting a divorce before the property matters had been settled. Les,
moreover, failed to make a proper and timely objection to the bifurcation. Second, the district
court in the divorce decree referred the parties' property matters to a master for his
recommendation, which necessarily implies a reservation of jurisdiction by the court over the
parties' property settlement.
____________________

1
Despite our acceptance of the separate trials in this particular case, we wish to emphasize that bifurcated
divorce proceedings and the problems they are likely to engender are disfavored and should generally be
avoided.
100 Nev. 610, 614 (1984) Smith v. Smith
Having reserved the issue relating to property settlement, the district court had jurisdiction to
enter orders necessary to enforce the parties' MTA. Ellett, 94 Nev. at 37-38, 573 P.2d at 1181.
[Headnote 2]
Les secondly contends that the district court had no authority to award Sharon attorney's
fees. NRS 125.150(3), however, permits the court to award a reasonable attorney's fee to
either party to an action for divorce if those fees are in issue under the pleadings. Sharon
properly prayed for attorney's fees in her motion for an order to show cause why Les should
not be held in contempt. We interpret an action for divorce to include the bifurcated
proceedings in the instant case relating to the parties' property settlement. The award to
Sharon of attorney's fees, therefore, was within the sound discretion and authority of the trial
court. We have reviewed Les' other contentions and conclude that they are without merit.
Accordingly, the orders of the district court are affirmed.
____________
100 Nev. 614, 614 (1984) Sierra v. State
ANDREW RUSS SIERRA, Appellant, v. THE
No. 15093
December 6, 1984 691 P.2d 431
Appeal from judgment of conviction of multiple criminal offenses, Second Judicial
District Court, Washoe County; Robert L. Schouweiler, Judge.
Pursuant to a plea bargain, defendant pleaded guilty in the district court to three counts of
sexual assault and one count of lewdness with a child under age of 14 years. He appealed.
The Supreme Court held that record of plea hearing, which indicated that defendant was
advised that possible sentence he could receive for each of three sexual assault counts was
ten to life, with each sentence to run consecutively or concurrently at trial court's discretion,
when in fact, only possible sentence defendant could have received for each offense was life
with possibility of parole, because victim was alleged to have been under age of 14, did not
affirmatively demonstrate full understanding by defendant of consequences of plea, and thus,
did not reflect that plea was entered knowingly and voluntarily, even if it was highly unlikely,
given facts of case, that a lesser sentence would have even been considered by district court.
David G. Parraguirre, Public Defender, and Jane G. McKenna, Deputy Public Defender,
Brian McKay, Attorney General, Carson City; Mills B. Lane, District Attorney, and Edwin
T. Basl, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Requirement of voluntary guilty plea that plea be entered with understanding of consequences of plea,
including possible range of punishments, is not met when a defendant is expressly given misinformation by
state or the district court at time of entry of his plea to effect that mandatory minimum sentence he might
receive is much less than what is actually possible under statute.
2. Criminal Law.
Record of plea hearing, which indicated that defendant was advised that possible sentence he could
receive for each of three sexual assault counts was ten to life, with each sentence to run consecutively or
concurrently at trial court's discretion, when in fact, only possible sentence defendant could have received
for each offense was life with possibility of parole, because victim was alleged to have been under age of
14, did not affirmatively demonstrate full understanding by defendant of consequences of plea, and thus did
not reflect that plea was entered knowingly and voluntarily, even if it was highly unlikely, given facts of
case, that a lesser sentence would have even been considered by district court. NRS 200.366, 200.366,
subd. 2(c).
3. Criminal Law.
In situations in which a defendant has been misinformed of maximum possible sentence he might receive
for a guilty plea, court will simply modify defendant's actual sentence to comport with his understanding of
maximum possible sentence; however, when defendant is told that mandatory statutory minimum sentence
is less than what sentence actually provides, sentence modification or remand for resentencing would be
inappropriate, since modification or remand might result in imposition of a lighter sentence than
contemplated by legislature, and would therefore result in usurpation of legislature's function.
OPINION
Per Curiam:
Pursuant to a plea bargain, appellant pleaded guilty to three counts of sexual assault, NRS
200.366, and one count of lewdness with a child under the age of fourteen years, NRS
201.230. Appellant now appeals from the conviction, challenging the validity of the plea on
the ground that he did not understand the actual consequences of his plea in terms of the
possible range of punishments. We agree.
At his plea hearing, appellant was advised that the possible sentence he could receive for
each of the three sexual assault counts was "ten to life," with each sentence to run
consecutively or concurrently at the trial court's discretion.
counts was ten to life, with each sentence to run consecutively or concurrently at the trial
court's discretion. As appellant points out, however, the victim of the sexual assaults in this
case was alleged to have been under the age of fourteen years; consequently, the only possible
sentence appellant could have received for these offenses was life with the possibility of
parole. See NRS 200.366(2)(c). As such, appellant was misinformed concerning the
mandatory minimum sentence he would receive for the sexual assault offenses.
[Headnote 1]
In Hanley v. State, 97 Nev. 130, 624 P.2d 1387 (1981), this court held that a guilty plea
will be considered to have been involuntarily entered unless the plea hearing transcript
affirmatively demonstrates, among other things, that the plea was entered with an
understanding of the consequences of the plea, including the possible range of
punishments. 97 Nev. at 133, 624 P.2d at 1389. When a defendant is expressly given
misinformation by the state or the district court at the time of the entry of his plea, to the
effect that the mandatory minimum sentence he might receive is much less than what is
actually possible under the statute, we cannot say that this requirement has been met. See
Hunter v. Fogg, 616 F.2d 55 (2nd Cir. 1980); Ingram v. State, 450 P.2d 161, 165 (Alaska
1969); see generally Fed.R.Crim.P. 11(c)(1); Wright, Federal Practice and Procedure,
Criminal 2d 173 (1982).
Respondent contends that appellant's plea was nevertheless entered knowingly and
voluntarily because appellant was correctly informed of the maximum possible sentence, and
no guarantees were made to him to the effect that he would receive anything less than the
maximum possible sentence. In this regard, respondent asserts that it was highly unlikely
given the facts of this case that a lesser sentence would have even been considered by the
district court. These factors, however, do not in any way affect our determination that
appellant's plea was not voluntarily entered. If appellant had been provided with an accurate
description of the full possible range of punishments for his offense, the minimum of which
was actually substantially higher than what he was told, appellant may very well not have
been willing to enter his guilty plea at all.
[Headnotes 2, 3]
Since appellant's misunderstanding in this regard resulted from express misrepresentations
made to him by the state and the district court on the record at the time of the entry of
appellant's plea, we cannot say that the record affirmatively demonstrates a full understanding
of the consequences of the plea as required by Hanley v. State, supra. Cf. Rouse v. State, 91
Nev. 677
Hanley v. State, supra. Cf. Rouse v. State, 91 Nev. 677. 541 P.2d 643 (1975) (the mere
subjective belief of a defendant as to the possibility of receiving a lesser sentence,
unsupported by any promises to the defendant by the state or court, is insufficient to render a
guilty plea involuntary). Accordingly, since the record does not reflect that the plea was
entered knowingly and voluntarily, appellant's judgment of conviction is reversed, and this
matter is remanded to the district court for further proceedings.
1

____________________

1
We note that in situations in which a defendant has been misinformed of the maximum possible sentence he
might receive for a guilty plea, this court will simply modify the defendant's actual sentence to comport with his
understanding of the maximum possible sentence. See David v. Warden, 99 Nev. 799, 671 P.2d 634 (1983).
When, as here, a defendant is told that the mandatory statutory minimum sentence is less than what the statute
actually provides, however, a sentence modification or remand for resentencing would be inappropriate; such a
modification or remand might result in the imposition of a lighter sentence than that contemplated by the
legislature, and would thereby result in a usurpation of the legislature's function. See generally Lapinski v. State,
84 Nev. 611, 446 P.2d 645 (1968) (function of prescribing penalties for a given offense is vested solely with
legislature).
____________
100 Nev. 617, 617 (1984) Crawford v. State
ESTEL JACK CRAWFORD, JR., Appellant, v. THE STATE
No. 15368
December 6, 1984 691 P.2d 433
Appeal from judgment of conviction, First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
Defendant was convicted in the district court of mayhem, and he appealed. The Supreme
Court held that specific intent to disfigure is not a required element of the crime of mayhem
as defined by statute.
Affirmed.
Thomas E. Perkins, State Public Defender, and Robert A. Bork, Chief Deputy State Public
Defender, Carson City, for Appellant.
Brian McKay, Attorney General; William A. Maddox, District Attorney, and Charles P.
Cockerill, Deputy District Attorney, Carson City, for Respondent.
Mayhem.
Specific intent to disfigure is not a required element of the crime of mayhem as defined by statute. NRS
200.280.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction of mayhem. The sole issue in this appeal
is whether the specific intent to disfigure is required for a conviction of mayhem under NRS
200.280.
Crawford initially started choking the victim during an argument. He then bit the victim's
finger, and later bit off approximately one-third of her outer left ear. That portion could not be
reattached, and the victim's ear is permanently disfigured.
At trial, the district court judge gave the following instruction setting forth the required
elements for mayhem:
Every person who willfully, unlawfully and voluntarily and of purpose slits the ear
of another, is guilty of the crime of mayhem.
In order to find the Defendant guilty of the crime of mayhem, each of the following
elements must be proved beyond a reasonable doubt:
1. That defendant willfully and unlawfully and by means of physical force slit the
ear of another person, and
2. That defendant did so voluntarily and of purpose, that is, maliciously.
The word maliciously means to wish to vex, annoy or injure another person, or an
intent to do a wrongful act.
The instruction defined the term maliciously in accordance with the statutory definition in
NRS 193.010(13).
Crawford requested an instruction which differed from the one actually given in that it
required the jury to find that he acted . . . voluntarily and of purpose, that is, with the
malicious intent to disfigure. Crawford contends that, because specific intent to disfigure is
required for a conviction of mayhem, his offered instruction should have been given. We
disagree.
Although our prior cases on this subject have indicated that malice or malicious intent is
required for mayhem, none have held that a specific intent to disfigure or maim is required.
See Ex Parte Ralls, 71 Nev. 276, 279, 288 P.2d 450, 451 (1955); see also Lomas v. State, 98
Nev. 27, 29, 639 P.2d 551, 553 (1982); Lamb v. Cree, 86 Nev. 179, 182, 466 P.2d 660, 662
(1970). Furthermore, NRS 200.280 does not expressly require the specific intent to disfigure
in its definition of mayhem. Therefore, we conclude that the specific intent to disfigure is not
a required element of the crime of mayhem under NRS 200.280. See Cal. Penal Code 203
(West 1970); Goodman v. Superior Court of Alameda County, 14S Cal.Rptr.
Alameda County, 148 Cal.Rptr. 799, 800 (Ct.App. 1978). Because the jury was properly
instructed on the elements of the crime, its verdict will not be disturbed.
Affirmed.
____________
100 Nev. 619, 619 (1984) Sheriff v. Killman
MICHAEL WALTER KILLMAN, Respondent.
No. 15654
December 6, 1984 691 P.2d 434
Appeal from order granting a pretrial petition for a writ of habeas corpus; Eighth Judicial
Defendant was charged with one count of unauthorized signing of a credit card transaction
document. The district court granted defendant's petition for writ of habeas corpus dismissing
information, and state appealed. The Supreme Court held that even if statutory scheme
making unauthorized signing of a credit card document a felony and the offense of
unauthorized use of a credit card misdemeanor prescribes two different penalties for what is
essentially the same conduct, equal protection rights of defendant charged with unauthorized
signing of a credit card transaction document were not violated, since defendant failed to
show that he was singled out for prosecution on more serious offense for a reason which was
offensive to Constitution.
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney and
Thomas R. Green, Deputy District Attorney, Clark County, for Appellant.
Morgan D. Harris, Public Defender, and Michael L. Hines, Deputy Public Defender, Clark
Defendant alleging that two statutes prescribe different penalties for same conduct will be able to
demonstrate that a violation of his equal protection rights has occurred only if he can show that he was
singled out for prosecution on the more serious offense for a reason which is offensive to the Constitution;
overruling Stanfill v. State, 99 Nev. 247, 660 P.2d 1003. U.S.C.A.Const. Amend. 14.
Even if statutory scheme making unauthorized signing of a credit card document a felony and the offense
of unauthorized use of a credit card a misdemeanor prescribes two different penalties for
what is essentially the same conduct, equal protection rights of defendant charged
with unauthorized signing of a credit card transaction document were not violated,
since defendant failed to show that he was singled out for prosecution on more
serious offense for a reason which was offensive to Constitution.
card a misdemeanor prescribes two different penalties for what is essentially the same conduct, equal
protection rights of defendant charged with unauthorized signing of a credit card transaction document
were not violated, since defendant failed to show that he was singled out for prosecution on more serious
offense for a reason which was offensive to Constitution. U.S.C.A.Const. Amend. 14; NRS 205.750,
205.760, 205.760, subd. 2(b).
OPINION
Per Curiam:
Respondent Killman was charged by way of a criminal information with one count of
unauthorized signing of a credit card transaction document, in violation of NRS 205.270.
Killman then brought a pretrial petition for a writ of habeas corpus in the district court
seeking dismissal of the information. The district court granted the habeas petition and the
state has now appealed. For the reasons set forth below, we have concluded that the petition
was erroneously granted and that the district court's order must be reversed and the matter
remanded for trial on the merits.
Killman was alleged to have presented a department store sales clerk with a credit card,
which was not his own and which he was not authorized to use, in an attempt to obtain a pair
of boots priced at $62.39, and to have actually signed a credit card transaction document
during the course of this attempt. In his habeas petition, Killman contended that under
Nevada's statutory scheme, the prosecutor in this case had the discretion to charge him with
either the offense of unauthorized signing of a credit card document, a felony under NRS
205.750, or the offense of unauthorized use of a credit card, a misdemeanor under NRS
205.760(2)(b).
1
Killman argued that by giving the prosecutor the discretion to proceed
under either of these two statutory offenses, which provide for disparate results in terms
of the possible sentence, this statutory scheme violated his fourteenth amendment right
to the equal protection of the law.
____________________

1
Any person, except the cardholder or a person authorized by the cardholder, who signs a credit card,
sales slip, sales draft or instrument or the payment of money which evidences a credit card transaction
with intent to defraud shall be punished by imprisonment in the state prison for not less than 1 year nor
more than 10 years . . . .
1. Any person who, with intent to defraud:
(a) Uses a credit card for the purpose of obtaining money, goods, property, services or anything of
value where such credit card was obtained or retained in violation of NRS 205.690 to 205.750, inclusive,
or where such person knows the credit card is forged, expired or revoked; or
(b) Obtains money, goods, property, services or anything else of value by representing, without the
consent of the cardholder, that he is the
discretion to proceed under either of these two statutory offenses, which provide for disparate
results in terms of the possible sentence, this statutory scheme violated his fourteenth
amendment right to the equal protection of the law.
While it appears that Killman may be correct in his assertion that by enacting the above
two statutes, the Nevada Legislature prescribed two different penalties for what is essentially
the same conduct, we find it unnecessary to determine this issue. Instead, we have concluded
that the statutory scheme in question would not violate equal protection even if the two
statutes did prescribe different penalties for the same conduct.
The United States Supreme Court recently had occasion to address this same issue in
United States v. Batchelder, 442 U.S. 114 (1979). In Batchelder, the Court held that neither
due process nor equal protection were violated under federal constitutional principles by
virtue of the fact that the government prescribed different penalties in two separate statutes
for the same conduct. Id. at 124-25. Instead, the Court held that a defendant's rights are
adequately protected in this area by the constitutional constraints on a prosecutor's
discretion, which prevent the prosecutor from selectively enforcing the law based on such
unjustifiable criteria as race or religion. Id. at 125.
[Headnotes 1, 2]
A defendant will therefore only be able to demonstrate that a violation of his equal
protection rights has occurred when he can show that he was singled out for prosecution on
the more serious offense for a reason which is offensive to the Constitution. Since Killman
has made no such claim in the present case, the district court erred in concluding that
Killman's equal protection rights were violated by the existence of the statutory scheme under
consideration in this case.
2

Accordingly, the district court's order granting Killman's pretrial petition for a writ of
habeas corpus is hereby reversed, and the matter is remanded for trial on the merits.
____________________
authorized holder of a specified card or that he is the holder of a card where such card has not in fact
been issued, is guilty of a public offense and shall be punished as provided in subsection 2.
2. Where the amount of money or the value of the goods, property, services or other things of value
so obtained in any 6-month period is:
. . . .
(b) Less than $100, the violator shall be punished for a misdemeanor.

2
To the extent that our opinion in Stanfill v. State, 99 Nev. 247, 660 P.2d 1003 (1983) is inconsistent with
this opinion, it is hereby overruled. See also Stanfill v. State, 99 Nev. 499, 665 P.2d 1146 (1983) (opinion on
rehearing).
____________
100 Nev. 622, 622 (1984) El Dorado Hotel v. Brown
EL DORADO HOTEL, INC., Appellant, v. COOLIDGE
BROWN, Respondent.
No. 13955
December 6, 1984 691 P.2d 436
Appeal from judgment on jury verdict awarding damages for false arrest and negligence,
Second Judicial District Court, Washoe County; James H. Thompson, Judge.
Guest of hotel who was arrested for violation of gaming statutes while playing slot
machines at hotel brought action against proprietor of hotel. The district court entered
judgment on jury verdict in favor of guest, and proprietor appealed. The Supreme Court,
Gunderson, J., held that: (1) evidence that guest of hotel was playing two slot machines at
once, that one of machines was out of adjustment, resulting in more frequent payoffs, that
hotel proprietor knew or should have known that machine was out of adjustment, that hotel
employees called Gaming Control Board and pointed guest out as man to watch, and that
employees withheld information which bore favorably on guest's conduct was sufficient to
allow jury to find that proprietor breached its duty to protect guest from foreseeable injuries
by third persons while on its premises; (2) evidence was sufficient to support finding that
guest's arrest by State Gaming Control agents was reasonably foreseeable to hotel proprietor,
and thus, arrest was not a superseding cause relieving hotel proprietor from liability for
breach of duty to guest; and (3) jury did not act unreasonably or as a result of passion and
prejudice in awarding damages of $25,000 to guest.
Affirmed.
Steffen, J., and Manoukian, C. J., dissented.
Cromer, Barker, Michaelson, Gillock & Rawlings, and Ken Bick, Reno, for Appellant.
Durney, Guinan & Brennan, Reno, for Respondent.
In reviewing a jury verdict, Supreme Court is limited to determining whether jury's findings are supported
by substantial evidence.
Supreme Court may not weigh evidence anew in reviewing jury verdict; it looks at facts from viewpoint
of prevailing party.
It is prerogative of trier of fact to evaluate credibility of witnesses and to decide whom to believe.
On appeal, Supreme Court assumes that jury believed all evidence favorable to prevailing party and drew
from evidence all reasonable inferences in his favor.
5. Innkeepers.
Duty of proprietor of a hotel is to use reasonable care to keep premises safe for its patrons.
6. Innkeepers.
Proprietor of a hotel has duty to take affirmative action to control wrongful acts of third persons where
proprietor has reasonable cause to anticipate act and probability of injury.
7. Innkeepers.
Evidence that guest of hotel was playing two slot machines at once, that one of machines was out of
adjustment, resulting in more frequent payoffs, that hotel proprietor knew or should have known that
machine was out of adjustment, that hotel employees were informed that guest was not a known slot
cheater, that hotel employees called Gaming Control Board and pointed guest out as man to watch, and
that employees withheld information which bore favorably on guest's conduct was sufficient to allow jury
to find that proprietor breached its duty to protect guest from foreseeable injuries by third persons while on
its premises.
8. Negligence.
Where an unforeseeable supervening cause intervenes between defendant's negligence and plaintiff's
injury, defendant is relieved of liability.
9. Negligence.
Where a third party's intervening intentional act is reasonably foreseeable, negligent defendant is not
relieved of liability.
10. Negligence.
Question of foreseeability of intervening act, for purposes of determining if act is superseding cause, is
generally one for jury.
11. Innkeepers.
Evidence that hotel employees called State Gaming Control and requested that it watch guest who was
playing slot machines and that employees neglected to inform them of circumstances tending to suggest
that guest was not cheating was sufficient to support finding that guest's arrest by State Gaming Control
Agents was reasonably foreseeable to hotel proprietor, and thus, arrest was not a superseding cause
relieving hotel proprietor from liability for breach of duty to guest.
12. Damages.
In action brought by hotel guest against hotel proprietor seeking damages arising from his arrest based on
incorrect belief that he had been cheating on slot machine, jury did not act unreasonably or as a result of
passion or prejudice in awarding guest $25,000 as compensation for the indignities he suffered, in light of
testimony that guest had enjoyed an unblemished record for 59 years, that he had achieved respected
position as civil servant, that he was forcibly detained and accused of cheating, that he was arrested, taken
to police station and subjected to booking procedures without being given opportunity to offer any
explanations, and that he was deeply shaken by episode.
OPINION
By the Court, Gunderson, J.:
This appeal is from a judgment entered on a jury verdict, which awarded damages against
appellant casino owner for false arrest and negligence. Because our review of the record
indicates that there was sufficient evidence to sustain the verdict on the theory of negligence,
we affirm.
Respondent Coolidge Brown is a respected career civil servant, employed as a government
contracts officer at the United States Naval Air Station at Alameda, California. His complaint
arose out of his arrest for cheating at appellant El Dorado Hotel and Casino (El Dorado) in
Reno, Nevada, on July 5, 1980. Prior to that incident Brown, a fifty-nine-year-old black man,
had never been arrested and had no criminal record whatever.
At the time of his arrest Brown and his wife were vacationing in Reno, and were duly
registered as paying guests of the El Dorado Hotel. At trial, Brown testified that on the day of
his arrest, he had left his wife in their hotel room and had gone to El Dorado's casino to take
advantage of the recreational gaming offered. He had approximately $1,400 in his possession.
After playing craps for approximately forty-five minutes and winning some eighty dollars,
Brown decided to try his luck on El Dorado's slot machines.
Brown began to play a one dollar slot machine located in the casino. As he played, he
noticed that a nearby machine being patronized by a third party appeared to be paying off
frequently. When the patron moved on to another machine, Brown began playing the new
machine, in addition to the machine he had been previously playing.
While Brown was engaged in playing the two machines, a slot mechanic
1
employed by
El Dorado noticed that the reels of the second machine were not working properly. The
mechanic testified that, depending upon how Brown pulled the handle of the machine, it
appeared the first reel on the machine would sometimes stick rather than spin normally.
Even though the slot mechanic knew the reels on a slot machine sometimes stick as a
result of wear through use, he somehow concluded that Brown was cheating. The mechanic
reported his observations to his shift supervisor, who in turn observed Brown playing the
machine for approximately forty-five minutes. During this period, the slot machine apparently
blacked out twice, terminating play and indicating a possible malfunction. Each time the
machine blacked out it was either filled or serviced by slot mechanics; these mechanics
returned the machine to operating status and allowed Brown to continue playing, wishing
him "Good Luckl" as they did so.
____________________

1
A slot mechanic is a casino employee trained in the service and maintenance of slot machines.
filled or serviced by slot mechanics; these mechanics returned the machine to operating status
and allowed Brown to continue playing, wishing him Good Luck! as they did so. No
attempt was made to remove the machine from service or to move Brown to a new machine.
After watching Brown play, the shift supervisor incorrectly decided that Brown was
manipulating the machine. The supervisor then contacted Griffin Investigations, a private
security company employed by the El Dorado specializing in the investigation of known
cheaters. When a Griffin agent arrived at the El Dorado, the shift supervisor pointed out
Brown as the individual suspected of cheating. The agent told the supervisor that Brown was
not a known cheater. Nevertheless, it appears he also erroneously decided that Brown was
in some fashion manipulating or taking advantage of the machine. The Griffin agent then
suggested that the El Dorado employees call the Nevada State Gaming Control Board. Again,
no attempt was made to remove the suspect machine from service, to inspect it, to move
Brown to a different machine, or to request Brown to identify himself.
Two Gaming Control Board agents eventually arrived at the casino in response to El
Dorado's request. After watching Brown play the machine for a few minutes, the agents
placed Brown under arrest for cheating. El Dorado employees made no effort to intervene on
Brown's behalf. The agents were never informed of the prior machine malfunctions. Brown
was taken to a Reno jail, where he was held until he posted bail several hours later. We do not
have the specific charges against Brown before us. However, they were apparently predicated
on our gaming statutes, which render it unlawful to alter the selection of criteria which
determine the amount or frequency of payment in a game. NRS 465.015; NRS 465.083.
Under these statutes it is unlawful for a player knowingly to take advantage of a defect that
permits manipulation of a slot machine's payoff criteria. However, although Brown was
arrested and charged, all charges against him were subsequently dropped by the district
attorney.
2

Brown subsequently brought an action against the El Dorado for false arrest and
negligence. At trial, testimony was adduced that the slot machine played by Brown had a
stop bracket which was out of adjustment and that this defective adjustment could have
caused the reels on the machine to stick without any intentional action on Brown's part.
Despite this testimony, at the end of the presentation of respondent's case, El Dorado moved
for involuntary dismissal under NRCP 41{b).
____________________

2
The district attorney dropped the charges after a preliminary hearing, concluding that there was insufficient
evidence to obtain a conviction. At the time the charges were dropped, Brown apparently signed an agreement
releasing the State Gaming Control Board from any civil liability stemming from his arrest.
moved for involuntary dismissal under NRCP 41(b). This motion was denied, and the jury
later returned a general verdict in Brown's favor awarding him $25,000 in damages. Special
interrogatories were not submitted to the jury, and the jury did not specify under which theory
it found liability. El Dorado moved for judgment notwithstanding the verdict; the court
denied the motion; judgment affirming the verdict was entered. El Dorado now appeals.
El Dorado maintains that there was insufficient evidence for the jury to have found in
respondent's favor under either a false arrest or a negligence theory. We disagree. We discern
sufficient evidence in the record to support a verdict under the theory of negligence, and we
affirm the judgment of the district court.
3

[Headnotes 1-4]
We begin by noting that in reviewing a jury verdict, we are limited to determining whether
the jury's findings are supported by substantial evidence. Steen v. Gass, 85 Nev. 249, 253,
454 P.2d 94, 97 (1969). We may not weigh the evidence anew; we look at the facts from the
viewpoint of the prevailing party. Smith v. Timm, 96 Nev. 197, 202, 606 P.2d 530, 532
(1980). It is the prerogative of the trier of fact to evaluate the credibility of the witnesses and
to decide whom to believe. Ewing v. Sargent, 87 Nev. 74, 78, 482 P.2d 819, 821-822 (1971).
On appeal we assume that the jury believed all the evidence favorable to the prevailing party
and drew from the evidence all reasonable inferences in his favor. Steen v. Gass, 85 Nev. at
253, 454 P.2d at 97; Smith v. Timm, 96 Nev. at 202, 606 P.2d at 532.
[Headnotes 5, 6]
With these principles in mind, we review some of the facts from which the jury could have
inferred that El Dorado had been negligent. We turn first to the question of El Dorado's duty
toward Brown. Brown was an invited guest of the hotel, utilizing the casino which had been
provided for his recreation. It was El Dorado's duty as a proprietor to use reasonable care to
keep the premises safe for its patrons. Early v. N.L.V. Casino Corp., 100 Nev. 200, 678 P.2d
683 (1984); see also Asmussen v. New Golden Hotel Co., 80 Nev. 260, 262, 392 P.2d 49, 49
(1964). [T]he proprietor's duty to protect an invited guest from injury caused by a third
person is circumscribed by the reasonable foreseeability of the third person's actions and the
injuries resulting from the condition or circumstances which facilitated the harm."
____________________

3
In light of our determination that there is sufficient evidence in the record to support a verdict on a
negligence theory, we do not address whether the award of damages could additionally have been sustained on
the basis of the false arrest cause of action.
harm. Early v. N.L.V. Casino Corp., 100 Nev. 200, 678 P.2d at 684. The proprietor has a
duty to take affirmative action to control the wrongful acts of third persons where he has
reasonable cause to anticipate the act and the probability of injury. Thomas v. Bokelman, 86
Nev. 10, 13, 462 P.2d 1020, 1022 (1970). Our examination of the record discloses ample
evidence from which the jury could have concluded that El Dorado's employees had
reasonable cause to anticipate that their actions would result in Brown's wrongful arrest for
cheating.
[Headnote 7]
From Brown's description of his behavior, the jury could infer that a prudent person could
have perceived Brown was behaving like any ordinary tourist. After all, Brown testified that
he was playing two machines at the same time. This practice is common among tourist
players, but could be viewed as unnatural for a slot cheater, who typically concentrates on the
machine he is manipulating. Brown testified that he was playing the machine in a normal
fashion, pulling the handle at random. El Dorado's witnesses testified to the contrary; the jury,
however, could choose to believe Brown's testimony.
It is undisputed that the slot machine in question had a stop bracket which was out of
adjustment. El Dorado had general knowledge that such a condition can occur without any
fault on anyone's part, simply as a result of ordinary wear and tear. El Dorado also knew that
sometimes slot machines are left broken by undetected slot cheaters. In either case, an
unsuspecting person can begin playing the machine and ascribe his winning streak to having
found a hot machine. The jury therefore could find that El Dorado employees knew, or
should have known, that the mere fact Brown was playing a machine which was out of
adjustment did not justify either a conclusion that Brown had broken the machine or that he
was intentionally taking advantage of its malfunction.
Furthermore, evidence was adduced at trial from which the jury could have concluded that
El Dorado knew or should have known the machine was out of adjustment. The mechanic
who brought Brown to the shift supervisor's attention had observed that the first reel was not
working properly. The mechanic chose to believe that Brown was in some fashion
manipulating the machine; however, at that point El Dorado, through its employee, clearly
had notice that something was wrong with the machine. Moreover, the shift supervisor who
was watching Brown play must have seen that the machine malfunctioned twice and had to be
repaired by El Dorado mechanics.
At trial, Brown introduced into evidence fill slips which indicated that the machine had to
be filled with coins four times in the twenty-four hours preceding Brown's arrest.
twenty-four hours preceding Brown's arrest. An expert witness for Brown unequivocally
testified that this number of fills within a twenty-four hour period was abnormal, and that it
would have been ordinary and prudent practice to check the machine under those
circumstances. Although El Dorado offered testimony to the effect that four fills would not
have been unusual given the high level of play over the July 4 weekend, we see no reason
why the jury, sitting as the finder of fact, could not have chosen to believe the testimony of
Brown's expert witness. Thus, again, based upon the testimony presented, the jury could
legitimately have found that El Dorado knew or should have known that the slot machine was
experiencing mechanical difficulties.
When El Dorado employees called Griffin Investigations, they were advised that Brown
was not a known slot cheater. As the jury was entitled to consider, they could easily have
ascertained Brown's identity and have discovered that he was a tourist, a registered guest of
their hotel, a man of impeccable credentials and background. Also, the casino employees
could have examined the slot machine before pursuing their suspicions against Brown.
Instead, they summoned agents of the Gaming Control Board.
El Dorado employees testified that they simply called the Gaming Control Board and
pointed Brown out as the man to watch. They stressed that the decision to arrest Brown was
made solely by the Gaming Control Board members. It may be inferred that El Dorado
employees never told the Gaming Control agents about the abnormal fill levels of the
machine. Furthermore, so far as appears, they did not mention that the machine had
malfunctioned while Brown was playing. They did not point out that Brown was a registered
guest of the hotel in whose casino he was supposedly cheating. Although Brown was their
guest and entitled to their protection against unreasonable intrusions, they not only made no
effort to ensure that he had the opportunity to explain his behavior; they withheld information
which bore favorably on his conduct.
[Headnotes 8-10]
On the basis of these facts, we believe the jury could legitimately have found that El
Dorado breached its duty to protect Brown from foreseeable injuries by third persons while
on its premises. El Dorado contends, however, that even if it had breached its duty of care
toward Brown, the decision of the Gaming Control agents to arrest Brown was a supervening
cause which operated to cut off El Dorado's liability. It is true that where an unforeseeable
supervening cause intervenes between a defendant's negligence and a plaintiff's injury, the
defendant is relieved of liability. See Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414, 633
P.2d 1220 {19S1).
Nev. 414, 633 P.2d 1220 (1981). However, where a third party's intervening intentional act is
reasonably foreseeable, a negligent defendant is not relieved of liability. Landeros v. Flood,
551 P.2d 389 (Cal. 1976). Further, the question of foreseeability is generally one for the jury.
See Merluzzi v. Larson, 96 Nev. 409, 610 P.2d 739 (1980).
[Headnote 11]
We believe that on the record presented in this case, the jury could have found that
Brown's arrest by State Gaming Control agents was reasonably foreseeable. Indeed, one
might infer that El Dorado desired just such a result when it called the agents to the casino
and neglected to inform them of circumstances tending to suggest that Brown had not been
cheating.
Our review of the briefs presented in this case leads us to the conclusion that El Dorado is
essentially attempting to re-litigate issues already determined by the trier of fact. It is well
established, however, that where a question of fact has been determined by the trier of fact,
this court will not reverse that determination unless the judgment is clearly erroneous and not
based on substantial evidence. Beverly Enterprises v. Globe Land Corp., 90 Nev. 363, 526
P.2d 1179 (1974). In this case, the jury decided to believe Brown's witnesses rather than El
Dorado's. Such was its prerogative. The record contains ample evidence to sustain the jury's
verdict.
[Headnote 12]
Given the facts we have just reviewed, the jury award of $25,000 to Brown does not
appear unreasonable. The damage he suffered was high. For fifty-nine years Brown had
enjoyed an unblemished record. He had achieved a respected position as a civil servant with
the United States government; he had raised five children. Two of his childrena daughter
who is a Deputy District Attorney at the Alameda County District Attorney's office and a son
who is a juvenile probation officertestified that their father had been deeply shaken by the
episode. His distress is understandable. While a guest of the El Dorado Hotel, playing the slot
machines in the hotel casino as the hotel encourages its guests to do, Brown was forcibly
detained and accused of cheating. Without being given the opportunity to offer any
explanations, he was arrested, taken to the police station, and subjected to the unpleasant
procedures which accompany booking. The jury, acting as the conscience of the community,
determined that Brown is entitled to $25,000 as compensation for the indignities he has
suffered. For our part, we cannot say the jury acted either unreasonably or as a result of
passion and prejudice.
The other issues raised by the parties have been considered, and are without merit.
Accordingly, we order the judgment affirmed.
Springer and Mowbray, JJ., concur.
Steffen, J., with whom Manoukian, C. J., agrees, dissenting.
I respectfully dissent.
In my judgment, the majority position creates an unsound precedent of such magnitude
and potential for untoward consequences that a detailed dissent is warranted.
My studied review of the record revealed a factual blend of different hue than that
described by the majority. I consequently find it necessary to draw in considerable depth from
the reservoir of facts in evidence.
On the evening of July 5, 1980, an El Dorado slot mechanic, Roland Renshaw, observed
Brown playing a dollar slot machine and reported to his shift supervisor, Mike Jones, what
appeared to be irregularities in the manner in which Brown was playing the machine.
According to Renshaw, depending on how Brown pulled the handle of the machine, the first
reel on the machine would either stick or spin normally. By manipulating the handle, Brown
could hold the first reel and usually did so when a cherry was in place, thus assuring a
winning play. Jones also observed Brown's play intermittently over approximately forty-five
minutes and concluded that Brown was deliberately manipulating the handle of the machine
in order to stop the first reel and produce a winning combination. After notifying Steve Batis,
an El Dorado employee assigned to internal security, who also observed Brown's activities, a
decision was made to summon the expertise of Griffin Investigations, a private agency that
verifies jackpots and check[s] for cheaters who may be working in gaming establishments.
The Griffin agent, Marlin Mills, who responded to the call, had been employed by the
enforcement division of the Nevada State Gaming Control Board (Board) for a period of
seven years and until just five days prior to the Brown incident. Mills was the senior agent
supervisor for the Board at the time of his departure to the Griffin agency. His expertise and
training included the detection of cheaters in both slot machines and table games, techniques
of cheating slot machines and making arrests. Mills watched Brown playing the slot machine
for ten to fifteen minutes and concluded that Brown was cheating. He testified that if
someone was watching Brown he would pull the handle in a normal fashion; if not, and if
Brown had a payout like a cherry on the first line, he would "slap the handle" and the first
reel would stop.
the first line, he would slap the handle and the first reel would stop. Mills recommended
that Jones call the Board.
In response to a call from El Dorado personnel, two Board agents arrived on the scene to
investigate the possibility of a slot cheater. They were asked by an El Dorado employee to
observe the play of Brown. After watching Brown for ten minutes, one of the Board agents,
Thomas Deck, identified himself to Brown and asked him to follow the two agents to the El
Dorado security office. Brown complied with agent Deck's instructions. Upon entering the
security office, Deck placed Brown under arrest and advised him of his rights. Prior to
confronting Brown, agent Deck testified that he observed Brown playing in a furtive manner
whereby he would manipulate the handle on winning combinations so as to cause the first
reel of the machine to remain stationary. Agent Deck further stated that no one encouraged or
influenced him to arrest Brown and that he alone made that decision. The Board agent also
testified that he was aware that there was a malfunction in the machine being used by Brown,
but that the machine malfunctioned only as a result of the technique employed by Brown in
manipulating the handle. Otherwise, to the normal player it would play fine. Brown
contradicted the foregoing testimony claiming that he did not manipulate the machine's
handle. He noted, however, that on two or three occasions the first reel moved slower than the
other reels.
1

Since the majority views the issue of negligent slot machine maintenance as a linchpin for
affirming liability against the El Dorado, it is appropriate to note the facts of record on the
subject. The slot machine in question was examined by a qualified slot mechanic on June 29,
1980 for any defect in reel movement and was determined to be free of problems. Also,
during the July 4, 1980 weekend when slot machine play was uncontrovertedly described as
exceptionally high, the machine had to be filled on four occasions. Although Brown's trial
expert described four fills within a twenty-four-hour period as abnormal, he also admitted that
the accuracy of that conclusion would depend on such variables as the volume of play and the
current payout cycle of the machine. Additionally, the unrefuted evidence indicates that
during the high volume weekend of July 4, 1980 several of El Dorado's machines had three or
more fills and that this was not considered unusual given the volume of play.
____________________

1
Interestingly, the majority contends that general knowledge by El Dorado employees that a machine can
fall into disrepair by ordinary wear and tear or by the intervention of slot cheats would justify a finding by the
jury that Brown's play on a defective machine did not warrant a conclusion that Brown had broken the machine.
. . . The record is utterly devoid of any testimony or evidence suggesting that anyone claimed or inferred that
Brown broke the machine.
this was not considered unusual given the volume of play. Moreover, in the usual course of
business, slot machine fills would not be analyzed by slot mechanics until the day following
the previous twenty-four-hour period during which a recap sheet was prepared reflecting the
number of fills on each machine. Daily worksheets and weekly computer sheets were also
routinely checked for comments or complaints concerning the machines and whether a
machine was holding its theoretical par. Finally, Brown testified that the machine blacked
out on two occasions prompting him to call for assistance. The record reflects that black
outs are common occurrences resulting from an empty or jammed hopper. Brown
observed that on one occasion the machine was simply refilled with coins and that he did not
know what was done on the other. In each instance, nevertheless, the machine was quickly
returned to service. The above recital represents the sum and substance of the evidence
concerning El Dorado's negligent maintenance of the machine. Expert testimony produced by
both parties indicated that the stop bracket of the machine in question was out of adjustment,
thereby creating a condition which would allow normal movement of all reels or stopping the
first reel, depending on the pull of the handle. Contrary to the majority's assertion, there was
no evidence or testimony indicating that the reels on the machine could stick without any
intentional action on Brown's part.
I view the so-called negligent maintenance issue as a red herring since it has no bearing on
the issue of El Dorado's liability. To be sure, the question of negligent maintenance lured the
trial judge into concluding that the jury should resolve the issue and determine whether El
Dorado's maintenance of the machine was the proximate cause of Brown's damages.
Maintenance, or the lack thereof, thus became the legal lifeline to a situation that virtually
demanded redress. Brown, after all, was a respected family man whose background of honest
toil and dedication to family were exemplary. He responded to Nevada's extensively
promoted recreational enticements and was sorely victimized for doing so. The parties
stipulated at trial that the district attorney dismissed the criminal case against Brown because
he did not feel he could prove the case beyond a reasonable doubt in a jury trial. A wise
judgment, in my opinion, for it appears evident to me that the real culprit in this entire
scenario is Nevada's law on the subject.
2
Board agent Deck testified that his decision to
arrest Brown was based on his belief that Brown was using a fraudulent scheme or
technique to win money.
____________________

2
At the time of the incident involving Brown, the statute in effect, but since repealed, NRS 465.080, read in
pertinent part, as follows:
1. It is unlawful for any . . . person playing any licensed gambling game:
. . . .
(c) To use any fraudulent scheme or technique, including but not limited to purposefully breaking or
damaging any part of any slot
decision to arrest Brown was based on his belief that Brown was using a fraudulent scheme or
technique to win money. The fraudulent scheme or technique was described by agent Deck
as the little handle pull used by Brown to enhance his winnings.
The Griffin agent, Mills, testified that a person could simply stumble across the handle
pulling technique used by Brown. Moreover, both Mills and Deck stated that no arrest would
be made if a machine consistently malfunctioned to a player's advantage under a normal
pull. So, under Nevada law as interpreted and implemented by the Board, if a patron runs
across a malfunctioning machine that can be profitably exploited by a normal pull of the
handle, he or she may do so indefinitely without criminal consequences. On the other hand, if
a patron exercises intelligent perception in discovering and exploiting a machine malfunction
which is produced by skillful handle manipulation, a crime is committed. Under such an
amorphous policy or law, Brown came to Nevada. He left as a victim. The state, as part of the
agreement to dismiss the criminal charge against Brown, received a release of liability. This
left the appellant, El Dorado, as the only potential source available for the financial redress of
the wrongs suffered by Brown.
Before reaching the issues, a further comment seems warranted concerning the dichotomy
that pervades the essence of this case. The enormity of gaming crimes, including slot
cheating, and the challenges they present to effective law enforcement are common
knowledge. Such crimes affect both gaming licensees who suffer from increased costs and
diminished profits, and the State of Nevada, which suffers from reduced tax revenues and
increased law enforcement costs. The commonality of interest between licensees and the state
in minimizing the incidence and magnitude of gaming crimes is apparent. On what is actually
the same side of the coin but the other side of the dichotomy is the gaming patron upon whose
patronage the gaming industry depends. Must it be inevitably concluded that a patron who
discovers and exploits an achilles heel on a one-armed bandit is a cheater who is
dishonestly motivated? I suggest not. It seems well within the realm of honest, human
rationalization for a slot player to conclude that any manipulation of a slot handle is fair,
legal and proper so long as it is within the mechanical options of the machine and is not
damaging to the machine.
____________________
machine or otherwise causing the machine to malfunction, to facilitate the alignment of any winning
combination or the removal of money from the machine.
In my opinion the new statute revising the definition of offenses, NRS 465.015, is no better in the
context of the type of situation that exists in this case. The latter statute, in pertinent part, states:
1. Cheat' means to alter the selection of criteria which determine:
(a) The result of a game; or
(b) The amount or frequency of payment in a game.
conclude that any manipulation of a slot handle is fair, legal and proper so long as it is within
the mechanical options of the machine and is not damaging to the machine. It is, I submit,
most unlikely that licensees or the state would ever place patrons on written notice that
pulling a slot machine handle in any manner other than as specified in the notice would
subject them to criminal prosecution.
There were two theories of liability considered by the jury. The first, false arrest, was
simply sidestepped by the majority. The second, negligence, is the basis upon which the
majority affirms the court below. The jury did not indicate the theory upon which its verdict
was based.
The evidence of record convinces me that as a matter of law, the El Dorado could not have
been liable for false arrest. This conclusion is based in part upon the fact that the evidence
conclusively shows that the El Dorado did not arrest Brown. It is well-settled law that where a
person provides facts to an arresting officer and the officer, acting on his own judgment and
discretion, makes a false arrest, the person providing the information is not liable for false
arrest. See Conley v. Commerce Bank of St. Charles, 599 S.W.2d 48 (Mo.App. 1980);
Johnson v. First National Bank & Trust Company of Lincoln, 300 N.W.2d 10 (Neb. 1980);
McCord v. Tielsch, 544 P.2d 56 (Wash.App. 1975); Delp v. Zapp's Drug & Variety Stores,
395 P.2d 137 (Ore. 1964). See also Restatement (Second) of Torts 45A comment c (1965).
Here, agent Deck's uncontroverted testimony plainly showed that the El Dorado's
employees neither requested nor directed him to arrest Brown. In fact, the record reflects no
evidence that El Dorado employees sought to influence Deck or anyone else to arrest Brown.
After the Griffin agent advised the El Dorado supervisor to contact the Board, El Dorado's
employees did nothing more than call the Board and thereafter apprise its agents of
respondent's location in the El Dorado. There was no evidence which indicated any scheme,
design or concerted action between Deck and the El Dorado to arrest respondent. Deck
testified that he arrested Brown based upon his own conclusion that Brown was cheating.
Under these facts, the El Dorado was not, as a matter of law, liable for false arrest.
Furthermore, the evidence indicates that Brown's arrest was made after a determination by
Deck that probable cause existed for an arrest under NRS 465.080. See footnote 2, supra.
Deck testified that he saw Brown vary the manner in which he pulled the slot machine's
handle, holding the first reel when a payout was visible on that reel. Upon that basis, Deck
determined that Brown was cheating.
Brown was cheating. Under these circumstances, it appears that probable cause existed to
arrest Brown.
Where an arrest or imprisonment is carried out under legal authority by a police officer
who has determined that probable cause exists to arrest, no liability for false arrest attaches to
that officer's actions. See Hernandez v. City of Reno, 97 Nev. 429, 634 P.2d 668 (1981). No
liability for false arrest could attach to Deck's actions, as the arrest was not, by definition,
false.
Where, as here, probable cause existed to arrest Brown, the El Dorado was statutorily
protected from civil liability. Even if the El Dorado's agents had questioned or detained
Brown, the El Dorado would have been protected from civil liability for false arrest or false
imprisonment under Nevada law.
3

In light of the foregoing, it was error for the trial court to allow Brown's claim of false
arrest to be considered by the jury.
I am equally convinced that Brown's allegations of negligence are without merit or legal
significance. As previously noted, evidence adduced at trial showed that at the time Brown
played the machine, the machine's stop brackets were out of adjustment. Brown charged that
the machine's maladjustment was attributable to faulty maintenance on the El Dorado's part,
that the El Dorado was on notice that the machine was mechanically malfunctioning and
that, consequently, respondent's "false" arrest was reasonably foreseeable by the El
Dorado.
____________________

3
At the time of Brown's arrest, NRS 465.101 provided, in pertinent part:
2. Any licensee, or his officers, employees or agents may question any individual in his
establishment suspected of violating any of the provisions of NRS 465.070 or 465.080. No licensee or his
officers, employees or agents is criminally or civilly liable on account of any such questioning.
3. Any licensee or his officers, employees or agents who have probable cause for believing that
there has been a violation of NRS 465.070 or 465.080 in his establishment by any person may take such
person into custody and detain him in the establishment in a reasonable manner and for a reasonable
length of time. Such taking into custody and detention does not render such licensee or his officers,
employees or agents criminally or civilly liable for false arrest, false imprisonment, slander or unlawful
detention unless such taking into custody and detention are unreasonable under all the circumstances.
4. No licensee or his officers, employees or agents are entitled to the immunity from liability
provided for in this section unless there is displayed in a conspicuous place in his establishment a notice
in boldface type clearly legible and in substantially this form:
Any gaming licensee, or his officers, employees or agents who have probable cause for believing
that any person has violated any provision of NRS 465.070 or 465.080 prohibiting cheating in
gaming may detain such person in the establishment for the purpose of notifying a peace officer.
The evidence adduced at trial indicated that a notice which complied with the statutory requirements
of NRS 465.101(4), above, was posted at the El Dorado on the day in question.
and that, consequently, respondent's false arrest was reasonably foreseeable by the El
Dorado. Thus, Brown concluded, any intervening actions by agent Deck in carrying out the
arrest did not relieve the El Dorado from liability for negligence.
Even assuming, arguendo, and contrary to the evidence, that the El Dorado was negligent
in the maintenance of the slot machine, there was no duty on El Dorado's part to protect
Brown from the foreseeable consequences of his method of play. As observed previously, the
trial testimony confirms that it is a crime in Nevada to take advantage of a mechanically
defective slot machine by causing it to malfunction through means of a calculated handle
pull. El Dorado was obligated to report suspected acts of cheating to Nevada's gaming
authorities. El Dorado was, however, under no duty to repair the machine and prevent the
potential for cheating.
The majority nevertheless suggest that the El Dorado should have removed the defective
machine from play, directed Brown to other machines, or at least taken measures to eliminate
the possibility of a malfunctioning machine before is caused law enforcement personnel to
analyze the lawfulness of Brown's conduct. Regrettably, the majority fails to recognize that
when a patron appears to be exploiting a defective machine by a special pull of the handle, a
licensee is not permitted the luxury of disregarding the play, placing the machine out of
service or directing the patron to another machine. It is the policy of Nevada law to detect and
deal with cheaters, and licensees are required to cooperate in that endeavor. Nevada's cheating
law applies with equal force to novices or professionals, villains or saints, the bucolic or
urbane and is in no way dependant upon whether a machine is defective because of negligent
maintenance or other causes.
The majority cites the case of Thomas v. Bokelman, 86 Nev. 10, 462 P.2d 1020 (1970), as
authority for the proposition that the El Dorado had the duty to take affirmative action to
control the wrongful acts of third persons so as to prevent injury to Brown. Unfortunately, the
authority cited has no applicability to the instant case for at least three reasons. First, it cannot
be said that the acts of the investigative personnel and gaming control agents were
wrongful. Second, the decision to arrest Brown for violation of Nevada's cheating law was
a lawful governmental act over which the El Dorado had no control. Third, NRS 465.101
provides a clear basis for immunity to a licensee or its agents who question any patron
suspected of violating Nevada's law against cheating. Additionally, such licensee and its
agents are immune from civil or criminal liability for false arrest, false imprisonment, slander
or unlawful detention where said licensee or its agents, having probable cause for believing
that a suspect is cheating, take such suspect into custody and detain him in a reasonable
manner for a reasonable length of time.
or its agents, having probable cause for believing that a suspect is cheating, take such suspect
into custody and detain him in a reasonable manner for a reasonable length of time. The
statute thus reflects a state policy not to subject licensees or their agents to criminal or civil
liability where they have questioned a suspect or reasonably taken a suspect into custody. In
the instant case, as noted previously, the licensee neither questioned Brown nor took him into
custody. Its agent simply directed the attention of qualified investigative personnel and
gaming authorities to Brown and left total determination of the nature of Brown's conduct to
the gaming control agent. A fortiori, the immunity intended by NRS 465.101 should apply.
In the context of this case, the majority's imposition of duty upon the El Dorado is in direct
conflict with the existing policy of Nevada law. Failing to more than theoretically recognize
that under current Nevada law, a gaming patron who causes a slot machine to malfunction to
his advantage by manipulating the handle is committing a crime, the majority effectually
proceeds to charge gaming licensees with the duty not to allow machine malfunctions to
occur. Clearly, if machine malfunctions could be eliminated, the problem of cheating by
handle manipulation would likewise become extinct. Meanwhile, a gaming licensee who
seeks to avoid the consequences of the majority ruling is faced with two apparent and equally
unpalatable alternatives: flawless machine maintenance or a disregard of the law. The former
is questionably feasible and clearly not required or anticipated under current Nevada law
providing civil and criminal immunity to a cooperating licensee who questions, detains or
reports a suspected gaming law violator. The latter would place a license at risk and be
contrary to public policy and unbecoming to this Court as instigator.
The majority's failure to recognize a licensee's duty under existing Nevada law is further
manifest by the conclusion that the El Dorado somehow breached a duty to Brown by not
advising the Board agents of the mechanical difficulties with the machine Brown was
playing. Board agent Deck testified at trial that he could see that the machine was defective,
thereby enabling Brown to provoke an advantageous malfunction by manipulating the handle.
It is thus apparent that even if it were to be assumed that El Dorado's duty to Brown
transcended its duty to abide by Board policy and Nevada law, the former duty was
effectively satisfied by the fact that the mechanically defective condition of the machine was
patently obvious to agent Deck. Brown's failure to prove a breach of duty by the El Dorado
should be fatal to his negligence claim.
Moreover, the record contains no evidence from which the jury could conclude that the El
Dorado "reasonably foresaw" that Brown would suffer injury at the hands of a third party
as a result of this negligence.
could conclude that the El Dorado reasonably foresaw that Brown would suffer injury at the
hands of a third party as a result of this negligence. Here, Brown's arrest is directly
attributable to agent Deck's actions, a supervening cause.
Where an unforeseeable supervening cause intercedes between a defendant's negligence
and a plaintiff's injury, the defendant is relieved of liability. See Van Cleave v. Kietz-Mill
Minit Mart, 97 Nev. 414, 633 P.2d 1220 (1981). On the other hand, where a third party's
interceding intentional act is reasonably foreseeable, a negligent party is not relieved of
liability. Landeros v. Flood, 551 P.2d 389 (Cal. 1976). Although the question of foreseeability
is generally one for the jury, Merluzzi v. Larson, 96 Nev. 409, 610 P.2d 739 (1980), it is
necessary that the plaintiff adduce some competent evidence from which an inference or
conclusion of foreseeability may reasonably be drawn. See Thomas v. Bokelman, supra.
Here, no such evidence was produced.
In this case, there was no evidence from which the jury could find that if the Board's
agents' actions were improper, such was a natural, probable and foreseeable consequence of
El Dorado's negligence in maintaining and operating the slot machine. The majority
nevertheless concludes that the El Dorado should have foreseen that a machine maintenance
failure could result in a cheating opportunity over which the Board might assume an
injudicious but rightful cognizance. I again conclude that the villain is Nevada's statutory law
on the subject. El Dorado's responsibility was to comply with the dictates of the law and its
enforcing agents. It is not a proper function of the law to facilitate liability against a licensee
on grounds that an inappropriate application of an arguably unsound law by state agents is
foreseeable to a cooperating licensee. A licensee should be able to rightfully assume lawful
conduct by Nevada gaming control authorities and should not be accountable for failing to
foresee contrary behavior by such officials.
Since the occurrence of the unfortunate incident here analyzed, the legislature has further
cemented its intention that the result occasioned by the majority's holding not occur. Under
NRS 465.101, as presently constituted: No licensee or any of his officers, employees or
agents is criminally or civilly liable: . . . (b) For reporting to the state gaming control board or
law enforcement authorities the person suspected of the [gaming crime] violation. I consider
the amended provision of NRS 465.101 just quoted as additional evidence of the legislative
intent to prevent the type of liability created by the majority ruling. See Woofter v. O'Donnell,
91 Nev. 756, 542 P.2d 1396 (1975). Here, the El Dorado fully complied with the statutory
requisites for immunity.
requisites for immunity. The record amply demonstrates that the El Dorado took every
precaution to see that Brown was not precipitously or unfairly embarrassed or subjected to
arrest and detention. Under such circumstances, an imposition of civil liability effectively
undermines the gaming control purposes of the statute.
Respondent's guilt or innocence is not an issue in this appeal. I have no hesitation in
concluding that Mr. Brown did not engage in intentional cheating. Nor did he deserve the
unfortunate chain of events prompting this litigation. Nevertheless, for reasons hereinbefore
stated, I do not perceive a sufficient evidential or legal basis upon which to affirm liability
against the El Dorado.
I am convinced that the legislature has sought to formulate a sound policy for the
promotion of lawful gaming activity. Licensees who, in good faith, seek to minimize gaming
infractions actually promote a healthy gaming environment for those who are attracted to
Nevada's gaming establishments. Fortunately, not all who are suspected of gaming crimes are
guilty. Recognition of this fact is implicit in the statute providing immunity for false arrest
and unlawful detention. Perhaps greater investigation and caution must be employed before
arresting patrons charged with cheating by handle manipulation. Or perhaps both the gaming
industry and the state need to reconsider the propriety of making handle manipulation to
exploit a defect in a slot machine a criminal act. Advancing technology, greater casino
surveillance and better servicing may provide a preferred alternative. There are no easy
solutions. Obviously, the legalizing of handle manipulation to exploit machine defects could
result in substantial additional revenue losses to gaming establishments and the state. It could
also facilitate skimming, an ever present concern for state gaming authorities. In any event, it
is clear that the El Dorado acted reasonably and responsibly under Nevada law in its approach
to the problem presented by the circumstances. The El Dorado is entitled to the immunity
provided by law. Moreover, I view with disfavor the prospect of the state obtaining a release
of liability in return for dismissal of criminal charges which did not include the cooperating
licensee. The state encourages or requires gaming licensees to report suspected gaming
violations, makes the determination to arrest, then changes its position without apparent
concern for the licensee in the release of liability.
For the reasons noted above, I would reverse.
____________
100 Nev. 640, 640 (1984) Champagne v. Welfare Division
PAUL CHAMPAGNE and PAMELA CHAMPAGNE, Appellants, v. WELFARE DIVISION
OF THE NEVADA STATE DEPARTMENT OF HUMAN
RESOURCES, Respondent.
No. 13677
JUDITH ANN FELSEN, Appellant, v. NEVADA
STATE WELFARE DIVISION, Respondent.
No. 14100
MELVIN MURPHY and JEENEAN GERTRUDE SNYDER MURPHY, Appellants,
v. THE WELFARE DIVISION OF THE STATE DEPARTMENT OF HUMAN
RESOURCES, Respondent.
No. 14653
CHERYL TOLLIVER HICKERSON, Appellant, v. DON
PINSON and KATHRYN PINSON, Respondents.
No. 14906
December 6, 1984 691 P.2d 849
Appeals from orders terminating parental rights; Fifth Judicial District Court, Nye County;
William P. Beko, Judge (No. 13677); Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge (No. 14100); Michael J. Wendell, Judge (No. 14653 and No. 14906).
Appeals were brought from orders terminating parental rights entered in the district courts.
The Supreme Court, Springer, J., held that: (1) where son had serious behavioral problems
which necessitated his removal from home for professional treatment and where daughters
had problems of social adjustment which appeared to be somewhat relieved after their
removal from home, but where parents were not shown to be unsuitable parents by reason of
neglect, unfitness, or other fault or incapacity, first proceeding would be remanded to allow
the attempt at reunification of family; (2) mother in second proceeding could not be charged
with neglect to provide proper or necessary subsistence, education, medical or surgical care,
or other care during a time when children were not in her custody; (3) evidence in third
proceeding that parents had police records involving narcotics, burglary and child abuse and
that children were frequently left unattended established good cause to conclude that under no
reasonable circumstances could children's interests be served by sustaining parental
relationship, thus establishing dispositional grounds for termination of parental rights; and
{4) evidence in fourth proceeding was sufficient to support conclusion that no reasonable
alternative, consistent with welfare of child, other than parental termination was
available.
grounds for termination of parental rights; and (4) evidence in fourth proceeding was
sufficient to support conclusion that no reasonable alternative, consistent with welfare of
child, other than parental termination was available.
Appeals No. 13677 and No. 14906, affirmed; Appeals No. 14100 and No. 14653,
reversed and remanded.
Robert W. Lueck, Las Vegas, for Appellants Champagne and Champagne.
Brian McKay, Attorney General, Carson City; Terrance P. Marren, Deputy Attorney
General, Las Vegas, for Respondent Welfare Division.
John G. Watkins, Las Vegas, for Appellant Felsen.
Brian McKay, Attorney General, Carson City; Israel L. Kunin, Deputy Attorney General,
Las Vegas, for Respondent Welfare Division.
Gerald W. Hardcastle, Las Vegas, for Appellants Murphy and Murphy.
Brian McKay, Attorney General, Carson City, Daniel Hollingsworth, Deputy Attorney
General, Las Vegas, for Respondent Welfare Division.
Thomas E. Shulman, Las Vegas, for Appellant Hickerson.
Gardner & Stoebling and R. Michael Gardner, Las Vegas, for Respondents Pinson and
Pinson.
1. Infants.
Termination of parental rights is to be based on substantial abandonment, neglect, parental unfitness or
child abuse. NRS 128.105, 128.110.
2. Infants.
There are two kinds of grounds necessary to be considered in proceedings for termination of parental
rights: one relates to parental conduct or incapacity and the parent's suitability as a parent, while the other
relates to best interest of the child. NRS 128.005 et seq., 128.105, 128.106, 128.110.
3. Infants.
Term incapacity refers to instances in which jurisdiction to terminate parental rights arises not out of
fault or misconduct of parent, but rather, out of parent's clear incapacity to be parent independent of any
fault; a jurisdictional basis for terminating parental rights can exist in cases where parental capacity is
lacking through no fault of parent. NRS 128.005 et seq., 128.106, 128.106, subd. 1.
4. Infants.
Jurisdictional question in proceedings for termination of parental rights is whether biological parent, by
behavior, has forfeited all rights in child, while dispositional question is whether terminating parental rights
would be in best interest of child; first question focuses on action, or inaction, of natural parent and second
focuses on placement which will be most beneficial to child.
5. Infants.
If it is first determined that parent has forfeited rights in children, then court moves on to placement
which will be most beneficial to child; on the other hand, if it is decided that biological parent's behavior
does not violate minimum standards of parental conduct so as to render parent unfit, then analysis ends and
termination of parental rights is denied. NRS 128.005 et seq.
6. Infants.
Jurisdictional aspect of proceedings for termination of parental rights focuses on fundamental liberty
interests of natural parents in care, custody, and management of their child, and such interest does not
evaporate simply because they have not been model parents or have lost temporary custody of child to
state.
7. Infants.
Because of the sacredness of parental rights, a higher standard of proof, that of at least clear and
convincing evidence, is required before children can be judicially taken away.
8. Infants.
Degree and duration of parental fault or incapacity necessary to establish jurisdictional grounds for
termination of parental rights is greater than that required for other forms of judicial intervention.
9. Infants.
Judicial determination that child has been neglected may call for varying degrees of state intervention,
ranging from mild reprimand to permanent termination of parental rights. NRS 128.014.
10. Infants.
To provide a jurisdictional basis for termination of parental rights, neglect must be serious and persistent
and be sufficiently harmful to child so as to mandate a forfeiture of parental rights; in such a case, a parent
may be judged to be unsuitable to maintain parental relationship and, therefore, to deserve to lose it. NRS
128.014.
11. Infants.
A parent does not deserve to forfeit sacred liberty right of parenthood unless such unfitness in failing to
provide proper care for child is shown to be severe and persistent such as to render parent unsuitable to
maintain parental relationship.
12. Infants.
Parent who by reason of persistent fault or state of incapacity deserves to have his or her parental rights
terminated or who must sacrifice such parental rights in interest of child, by reason of irremedial inability
to function as a proper and acceptable parent is unsuitable, which is distinguished for unfitness, the
latter being a statutorily defined condition capable of broad variations as to duration and degree. NRS
128.106.
Absent a showing of unsuitability of parent to care for child, invasion of liberty interest in parenthood is
not constitutionally warranted.
14. Infants.
Abuse of a child may or may not render parent unsuitable to be a parent; either risk of serious injury to
child in remaining at home may be mitigated, and child may be safely returned to home, or risk may be of
such magnitude and persistency as to render parent unsuitable and justify forfeiture of parental rights.
NRS 128.105.
15. Infants.
In proceeding for termination of parental rights, children's interests should be paramount, but their
interests cannot displace established liberty interests of natural parents.
16. Infants.
Children cannot be taken from poor parents and placed permanently in homes of substitute parents simply
because their emotional needs would be better served or because they might have a cleaner, neater, or
richer environment.
17. Infants.
Caution must be exercised not to allow proceedings for termination of parental rights to be carried out
absent a showing of unsuitability on part of parent by reason of parent's fault or incapacity.
18. Infants.
Courts must be extremely careful in concluding that a parent has crossed the line of unsuitability so as to
justify termination of parental rights, because of the vast power differential between state and welfare
client, the paucity of truly efficacious services that are or can be made available to client, and the usually
greatly diminished contact between welfare client parents and removed child.
19. Infants.
If a child is removed from the home, parent must exercise reasonably diligent efforts to seek child's return
and parent's failure to make such efforts may, under statutory scheme, result in court's finding that parent is
unsuitable by reason of unfitness or neglect in form of failing or refusing to adjust after child was removed;
parent, however, still must be shown to be at fault. NRS 128.107, 128.108.
20. Infants.
Parent cannot be judged unsuitable by reason of failure to comply with requirements and plans that are
unclear or have not been communicated to parent, or which are impossible for a parent to abide by; failure
of parental adjustment may provide a jurisdictional basis for termination of parental rights, but it is fraught
with difficulties and must be applied with caution. NRS 128.107, 128.108.
21. Infants.
It is possible for a court to find that a parent was unsuitable and still not be able to find requisite
dispositional grounds for termination of parental rights.
22. Infants.
If under no reasonable circumstances will child's best interest be served by sustaining parental tie,
dispositional grounds for termination of parental rights exists.
23. Infants.
Each proceeding for termination of parental rights must be considered on its own terms.
24. Infants.
Evidence in record that mother was unquestionably mentally competent and that mother was the
children's primary care giver, but that father could have mental deficiency, was insufficient
to provide jurisdictional grounds for termination of parental rights, even if father was
of questionable intelligence.
father could have mental deficiency, was insufficient to provide jurisdictional grounds for termination of
parental rights, even if father was of questionable intelligence. NRS 128.106, subd. 1.
25. Infants.
Record on appeal from proceedings in which parental rights were terminated, which did not contain case
plans for reuniting family, made it impossible to review record of such issue or to hold on basis of clear
and convincing evidence that parents did not fail to abide by supposed agreement or plan; therefore,
remand would be required. NRS 62.010 et seq., 128.0123, 128.106, subd. 7.
26. Infants.
Where son had serious behavioral problems which necessitated his removal from home for professional
treatment and where daughters had problems of social adjustment which appeared to be somewhat relieved
after their removal from home, but where parents were not shown to be unsuitable parents by reason of
neglect, unfitness, or other fault or incapacity, matter would be remanded to allow the attempt at
reunification of family.
27. Infants.
Petition charging mother with neglect, which stated that mother neglected children since at least May 15,
1979, did not put into issue acts of neglect occurring prior to such date, and even if it did, such incidents
appearing in such record were episodic and insufficient to justify termination of parental rights.
28. Infants.
Mother could not be charged with neglect to provide proper or necessary subsistence, education, medical
or surgical care, or other care during a time when children were not in her custody.
29. Infants.
Evidence in record, which indicated that mother's alleged major faults were her inability to get a steady
job and her failure to maintain a more steady contact with agency having custody of children, did not
clearly and convincingly establish that mother conducted herself in her relationship with welfare agency in
such a manner as to make her an unsuitable parent and to require that she forfeit her parental rights to her
four children, in light of other evidence that mother requested to visit children several times and was
denied. NRS 128.107, 128.108.
30. Infants.
Parents were not denied right to court-appointed counsel in proceeding for termination of parental rights
where recess had been granted in order that parents could secure a hearing, father could afford an attorney,
and parents stated that they had talked to several attorneys but had decided not to secure an attorney.
31. Infants.
Evidence that parents had police record involving narcotics, burglary and child abuse, that children were
frequently left unattended and that father was a chronic alcohol and substance abuser was sufficient to
establish parental unfitness and substantial neglect such that parents had clearly become unsuitable as
parents.
32. Infants.
Evidence that parents did not support children during two years children were in state custody, although
they were required to do so, and that children were frequently left unattended supported jurisdictional
finding of abandonment.
33. Infants.
Parents' failure to adjust in timely fashion to well-formulated case plan to reunite family provided
jurisdictional basis for termination of parental rights, in light of testimony of six witnesses who had all been
involved in efforts to reunite parents with children, all of whom believed that termination of parental rights
was in best interest of children.
34. Infants.
Evidence that parents had police records involving narcotics, burglary and child abuse, that children were
frequently left unattended, and that children had to put up with drunkenness and unacceptable family life
for years established good cause to conclude that under no reasonable circumstances could children's
interests be served by sustaining parental relationship, thus establishing dispositional grounds for
termination of parental rights.
35. Infants.
Evidence that mother drank and took drugs, that she invited violent and disreputable persons into home,
that home was in constant disarray and the child was deprived of love and attention to such degree as to
cause serious developmental problems was sufficient to support jurisdictional finding that mother was
unsuitable parent on grounds of neglect.
36. Infants.
In proceeding for termination of parental rights, testimony of social worker that terminating parental
relationship would not be in child's best interest, which was offered to court without objection, could be
considered as some evidence on dispositional issue.
37. Infants.
Evidence that child was well settled with his maternal grandmother, that mother drank and used drugs,
and that she invited violent and disreputable persons into her home was sufficient to support conclusion
that no reasonable alternative, consistent with welfare of child, other than parental termination was
available.
38. Infants.
Although trial court in proceeding for termination of parental rights was required by statute to consider
efforts being made by mother to modify conditions which brought about removal of child, fact that mother
was engaged in counseling program did not require determination that trial judge abused his discretion in
entertaining termination proceedings, since mother had been undergoing counseling on an intermittent
basis throughout child's entire life.
OPINION
This opinion considers four appeals in which the parental rights of fathers and mothers
have been permanently terminated by judicial decree. Severance of parental rights is an
exercise of awesome power, a power which we question closely as we consider the four
cases before us. Casper v. Huber, 85 Nev. 474, 477, 456 P.2d 436, 438 (1969).
TERMINATION OF PARENTAL RIGHTS: APPLICABLE LAW
[Headnote 1]
NRS 128.110 authorizes the courts to terminate the legal relationship of parent and child
upon finding grounds set out in the statute. NRS 128.1051 provides that a termination order
may be made on the grounds that the termination is in the child's best interest in light of the
considerations set forth in this section and NRS 128.106 to 128.108, inclusive. The
considerations set forth in the section include abandonment, neglect, unfitness of the
parent, child abuse and a rather hazy, probably redundant consideration phrased as [o]nly
token efforts by the parent to avoid or prevent abandonment, neglect, unfitness or abuse.
Whatever token efforts might mean, we read NRS 128.105 as a whole to mean that
termination of parental rights is to be based on substantial abandonment, neglect, parental
unfitness or child abuse.
By NRS 128.106 the court is given direction in determining neglect or unfitness of a
parent in that the courts are required to consider certain conditions which relate to
suitability as a parent. (Emphasis supplied.)
[Headnotes 2, 3]
From a reading of the foregoing sections and Chapter 128 as a whole we conclude that
there are two kinds of grounds necessary to be considered in termination proceedings. One
relates to parental conduct or incapacity
2
and the parent's suitability as a parent; the other
relates to the best interest of the child.
____________________

1
128.105 Grounds for terminating parental rights: Basic considerations. An order of the court for
termination of parental rights may be made on the grounds that the termination is in the child's best
interest in light of the considerations set forth in this section and NRS 128.106 to 128.108, inclusive:
1. Abandonment of the child;
2. Neglect of the child;
3. Unfitness of the parent;
4. Risk of serious physical, mental or emotional injury to the child if he were returned to, or remains
in, the home of his parent or parents;
5. Only token efforts by the parent or parents:
(a) To support or communicate with the child;
(b) To prevent neglect of the child;
(c) To avoid being an unfit parent;
(d) To eliminate the risk of serious physical, mental or emotional injury to the child; or
6. With respect to termination of parental rights of one parent, the abandonment by that parent.

2
The term incapacity is used to refer to instances in which jurisdiction to terminate arises not out of the
fault or misconduct of the parent, but, rather, out of the parent's clear incapacity to be a parent independent of
any fault. Statutory definitions of abandonment, neglect, abuse, and unfitness all
Putting it another way: there must be jurisdictional grounds for terminationto be found
in some specific fault or condition directly related to the parentsand dispositional
groundsto be found by a general evaluation of the child's best interest.
[Headnotes 4, 5]
We borrow from Ketcham and Babcock
3
to state the general proposition in these terms:
The jurisdictional question is whether the biological parent, by behavior, has forfeited all
rights in the child. The dispositional question is whether terminating parental rights would be
in the best interest of the child. The first question focuses on the action, or inaction, of the
natural parent. The second focuses on the placement which will be most beneficial to the
child. If it is first decided that the parent has forfeited his rights in the children, then the court
moves on to the second question. On the other hand, if it is decided that the biological
parent's behavior does not violate minimum standards of parental conduct so as to render the
parent unfit, then the analysis ends and termination is denied. In these latter instances, the
court never reaches the question of whether the child's future well-being would be better
served by placement with the substitute or psychological parent.
Jurisdictional Grounds
[Headnote 6]
The jurisdictional aspect of termination proceedings focuses on the fundamental liberty
interests of the natural parents in the care, custody, and management of their child, and this
interest does not evaporate simply because they have not been model parents or have lost
temporary custody of the child to the State. Santosky v. Kramer, 455 U.S. 745 (1982). The
importance of this [liberty] interest cannot easily be overstated. Few consequences of judicial
action are so grave as the severance of natural family ties. Even the convict committed to
prison and thereby deprived of his physical liberty often retains the love and support of
family members."
____________________
involve or imply fault by way of refusal to act or breach of some parental duty. Recent legislative enactments
make it clear, however, that a jurisdictional basis can exist in cases where parental capacity is lacking through no
fault of the parent. Principal examples of such incapacity are [e]motional illness, mental illness or mental
deficiency of the parent which renders the parent consistently unable to care for the immediate and continuing
needs of the child. NRS 128.106(1). Although one may question the justice of terminating the parental right of
the mentally handicapped, this seems to be the legislative intent.

3
Ketcham and Babcock, Statutory Grounds for the Involuntary Termination of Parental Rights, 29 Rutgers
L.Rev. 530 (1976). Note that this terminology and process have been judicially recognized. See In re Adoption
of Children by D., 293 A.2d 171 (N.J. 1972); In re Willis, 207 S.E.2d 129 (W.Va. 1973), cited in Ketcham, op.
cit.
deprived of his physical liberty often retains the love and support of family members.
Santosky, Rehnquist dissent, at 787.
[Headnotes 7, 8]
Because of the sacredness of parental rights a higher standard of proof, that of at least
clear and convincing evidence, is required before the children can be judicially taken away.
Santosky, above. Also, the degree and duration of parental fault or incapacity necessary to
establish jurisdictional grounds for termination is greater than that required for other forms of
judicial intervention.
[Headnotes 9, 10]
For example, a judicial determination that a child has been neglected may call for varying
degrees of state intervention, ranging from mild reprimand to permanent termination of
parental rights. Neglect is a relative term applied to a child who lacks the proper parental
care by reason of [parental] fault. NRS 128.014. Although it is difficult to define proper, it
is probably true that all parents are at one time or another guilty of neglecting to give their
children proper care. To provide a jurisdictional basis for termination, neglect must be
serious and persistent and be sufficiently harmful to the child so as to mandate a forfeiture of
parental rights.
4
In such a case a parent may be adjudged to be unsuitable to maintain the
parental relationship and, therefore, to deserve to lose it.
[Headnotes 11-13]
The same principles apply to the jurisdictional ground of unfitness. Unfitness is the other
side of the neglect coin. Neglect defines a condition of the child; unfitness describes a
condition of the parent. A neglected child is one who does not receive proper care; an unfit
parent is one who fails to provide a child with proper care. Again: all parents are guilty of
failure to provide proper care on occasion; and a parent does not deserve to forfeit the sacred
liberty right of parenthood unless such unfitness is shown to be severe and persistent and such
as to render the parent unsuitable
5
to maintain the parental relationship.
____________________

4
See, e.g., In re People in Interest of M.M., 520 P.2d 128 (Colo. 1974), holding that termination requires a
showing of serious neglect which would probably persist in the future. See also, Sec. 12 Model Statute of
Termination of Parental Right, National Council of Juvenile and Family Court Judges, in which this quality of
persistency is defined in terms of a parent's conduct or condition being unlikely to change in the foreseeable
future.

5
We use the term unsuitable (see NRS 128.106) in a special sense to describe a parent who by reason of
persistent fault or state of incapacity deserves to have his or her parental rights terminated or who must sacrifice
such parental rights in the interest of the child, by reason of irremedial inability to function as a proper and
acceptable parent. We distinguish
[Headnote 14]
In like manner, abuse of a child may or may not render a parent unsuitable to be a parent.
NRS 128.105 lists as a ground or consideration for termination [r]isks of serious physical,
mental or emotional injury to the child if he were returned to, or remains in the home. . . .
Such a risk may be mitigated, and a child may be safely returned to the home; or the risk may
be of such magnitude and persistency as to render the parent unsuitable and justify forfeiture
of parental rights.
Failure of Parental Adjustment
Our discussion of jurisdictional grounds cannot be complete without adding to abuse and
neglect, unfitness and abandonment, another ground revealed in the interstices of NRS
Chapter 128. It is difficult to give this ground a name or designation, but, essentially, it
consists in a parent's being unable or unwilling within a reasonable period of time to remedy
substantially conditions which led to a child's out-of-the-home placement, notwithstanding
reasonable and appropriate efforts on the part of the state and others to return the child.
[Headnotes 15, 16]
The new ground, finding its way into law in the 1981 legislative session, has its mediate
origin in the Juvenile Justice Standards Project, Standards Relating to Abuse and Neglect,
Standard 8. These standards, adopted jointly by the American Bar Association and the
Institute of Judicial Administration, are in turn largely based on theories published in a book
entitled Beyond the Best Interests of the Child.
6
The gist of the new ground, which might
be abbreviated as "failure of parental adjustment" finds its matrix in NRS 12S.107 and
12S.10S, which enumerate "specific considerations" applicable when a child is not in the
physical custody of a parent or when the child has been placed in a foster home.

____________________
unsuitability from unfitness, the latter being a statutorily defined condition capable of broad variations as to
duration and degree. Unsuitability may result from serious and persistent unfitness, abuse or neglect, or from
abandonment. Although the two words have been used interchangeably, we find the stated distinction between
unsuitability and the narrower concept of unfitness to be very useful in describing the essence of the
jurisdictional basis for termination. Absent a showing of unsuitability, invasion of the liberty interest in
parenthood is not constitutionally warranted. The United States Supreme Court has questioned the
constitutionality of termination absent such a finding. See Santosky, footnote 10 at 760: Nor is it clear that the
State constitutionally could terminate a parent's rights without showing unfitness [unsuitability as used here].

6
A full understanding of this jurisdictional ground for termination cannot be gained without understanding
the general trend toward diminishing the value of parental autonomy in its balance with the child's interest to a
stable and nurturing environment. This means a shift of emphasis from the jurisdictional to the dispositional
basis for termination, that is to say, away from parents' rights toward children's interests. This is particularly true
in cases of long term foster placements in which a relationship of psychological parent and child has been
established. This trend can be traced to certain
The gist of the new ground, which might be abbreviated as failure of parental adjustment
finds its matrix in NRS 128.107 and 128.108, which enumerate specific considerations
applicable when a child is not in the physical custody of a parent or when the child has been
placed in a foster home.
____________________
psychoanalytically-based theories announced in 1973 by the publication Beyond the Best Interests of the Child,
by Joseph Goldstein, Anna Freud, and Albert Solnit. The authors claim to present proposals for reforming the
child welfare system in a manner that is supported by psychoanalytic theory.
Goldstein, Freud, and Solnit base their program on two fundamental beliefs: that the law should make the
child's not the parent's needs paramount and that permanency of relationship is the first and most important
developmental need of a child. Under their theory the state should not disrupt the relationship of a child who has
been removed from his home when the child has developed a relationship with what the authors term a
psychological parent. The theory has brought about the institution of permanency programs which promote
termination of parental rights followed by adoption as being the best means of satisfying the children's
psychological needs. Accordingly, a foster parent who has established a relationship with a child would take
precedence over a natural parent, even if the natural parent has lost custody of the child through no fault of his
own.
The influence of Goldstein, Freud, and Solnit and permanency planning is evidenced in NRS 128.106 and
NRS 128.107, added to the Nevada Revised Statutes in 1981. This statute provides that in cases of foster
placement where the welfare agency's goal is to have the foster parents adopt the child, the court must consider
whether the child has become integrated into the foster family to the extent that his familial identity is with that
family. The court is even required to compare the real parents with the foster parents to see who can best give
the child love, affection and guidance and to continue the education of the child . . . and the capacity . . . to
provide the child with food, clothing and medical care . . . [and the] moral fitness, physical and mental health of
real parents versus new parents.
Under the mentioned psychoanalytic theory, poor and marginally adequate parents are always under a threat of
permanently losing their children. It is very difficult for such parents to avoid, at some time or another, finding
that they have failed to meet the standards of parenting which the more fortunate of us have grown to respect. If
they are so unlucky as to come in contact with agencies of the state and to suffer temporary loss of custody of
their children, they are likely to find themselves in a classic Catch-22 situation, thus: contact with their
children is made difficult or impossible; they are thrust into counseling and parenting programs in which they
have little chance of success; the children are likely to have grown used to neater, cleaner, and more intelligent,
possibly more permissive parents, with whom, although they still love their natural parents, they have developed
some degree of attachment.
The last step in this scenario is when the natural parents are told that their children now have some nice, new
parents, a scenario not too distant from what is presented in at least one of the cases before us.
Except in the Hickerson case, there is no evidence in any of the cases before us of the establishment of any
such extraparental relationship, and there is no direct applicability of the mentioned theories. We agree that
children's interests should be paramount; but their interests cannot displace established liberty interests of natural
parents. Children cannot be taken from poor parents and placed permanently in the home of substitute parents
simply because their emotional needs would be better served or because they might have a cleaner, neater, or
richer environment.
These specific considerations form a number of heterogeneous matters to be considered
in determining whether parental rights should be terminated. The list includes factors of
both jurisdictional and dispositional import. For example, in assessing the duties of a parent
who has been separated from his or her child, the court must consider the services provided or
offered to the parent to facilitate a reunion with the child and the effort of the parent to
adjust circumstances, conduct or conditions to justify the child's return home within a
reasonable length of time.
The idea of permanently taking a child from a parent by reason of the parent's failing to
adjust to circumstances, conduct or conditions prescribed by the state is an idea that is new
to public family law. The idea is part of what have been called permanency programs (see
footnote 6) which can be traced to the early 1970's. These programs call for increased efforts
to keep children in their natural families, mandatory periodic review of out-of-home
placements and, significantly, termination of parental rights to free children for adoption
when it appears that parents will be unable to resume custody within a reasonable period of
time.
[Headnotes 17, 18]
Certainly no one can quarrel with the idea of promoting permanency and stability in the
lives of children. Still, we must remember that poverty, sickness, and other such eventualities
may result in the separation of children of a loving and quite suitable parent. There is always
the risk that passage of time might result in a situation in which a child develops new
relationshipsbecomes integrated into a foster family or otherwise becomes estranged
from natural parents. Caution must be exercised not to allow termination proceedings to be
carried out absent a showing of unsuitability on the part of the parent by reason of the parent's
fault or incapacitation. We must be extremely careful in concluding that a parent has crossed
the line of unsuitability. This is true because of the vast power differential between the state
and the welfare client, the paucity of truly efficacious services that are or can be made
available to the client, the usually greatly diminished contact between welfare client-parents
and the removed child and the oft-seen ineptitude of the so-called inadequate parent. (See
footnote 7, below).
[Headnotes 19, 20]
On the other hand, there does come a time when society must give up on a parent. A child
cannot be kept in suspense indefinitely. If a child is removed from the home, a parent must
exercise reasonably diligent efforts to seek the child's return. A parent's failure to make such
efforts may, under our statutory scheme, result in the court's finding that the parent is
unsuitable by reason of unfitness or neglect in the form of failing or refusing to adjust
after the child was removed.
scheme, result in the court's finding that the parent is unsuitable by reason of unfitness or
neglect in the form of failing or refusing to adjust after the child was removed. The parent,
however, still must be shown to be at fault in some manner. The parent cannot be judged
unsuitable by reason of failure to comply with requirements and plans that are unclear or have
not been communicated to the parent, or which are impossible for the parent to abide by.
Failure of parental adjustment may provide a jurisdictional basis for termination, but it is
fraught with difficulties and must be applied with caution.
Dispositional Grounds
[Headnotes 21, 22]
In order to justify termination of parental rights the court must, after finding jurisdictional
grounds for termination, find dispositional groundsthat the child's interest would be served
by termination. It is certainly possible for the court to find that a parent was unsuitable and
still not be able to find the requisite dispositional grounds for termination. For example, the
Juvenile Justice Standards Relating to Abuse and Neglect, Standard 8.4(c), provides that a
court should not order termination (as it did here in the case of Billy Murphy) where, because
of the nature of a child's problems, the child is placed in a residential treatment facility, and
continuation of parental rights does not interfere with proper or necessary permanent
placement efforts. The Standards recognize that even where jurisdictional grounds exists,
there are cases in which termination is not indicated. As in the case of Billy Murphy, if a
disturbed child is placed in a treatment center, there is no point in depriving him of whatever
support the natural parents might give. Another example would be when an older child (ten or
older by Standard 8.4) expresses the wish not to have parental rights terminated. In these and
in a number of other possible examples, jurisdictional grounds may exist and the parent may
deserve to have parental rights terminated, but the interest of the child is not necessarily best
served by the termination. The test is this: If under no reasonable circumstances the child's
best interest can be served by sustaining the parental tie, dispositional grounds for termination
exist.
[Headnote 23]
Each case must be considered on its own terms. The court may consider [w]hether
additional services would be likely to bring about a lasting parental adjustment . . . within a
predictable period of time, NRS 128.107(4); it may consider the physical, mental, or
emotional conditions and needs of the child, including the child's desires, NRS 128.107(2); or
it may conclude that the natural parents are so depraved or so disinterested that it appears that
even having no parents is better than having this kind of parent.
that even having no parents is better than having this kind of parent. The overlying
dispositional issue is that of the welfare of the child; and, as said, when it appears that the
child's interest will not be served by preserving the relationship, the relationship should be
terminated.
Applying these principles to the cases before us, we affirm Champagne and Hickerson and
reverse Murphy and Felsen. We take up the reversals first.
MELVIN MURPHY and JEENEAN GERTRUDE SNYDER
MURPHY, No. 14653; Reversed
This is a case in which the district court found that Mr. and Mrs. Murphy were unfit
parents, that they had neglected their children, and that they would always continue to
neglect their children.
There are three children involved. Billy, now 13, is a serious behavioral problem who had
to be removed from the home and placed in a residential program for behaviorally disturbed
children. The two other children are girls, Tanya and Angela, now 12 and 10. The girls have
suffered from learning disabilities and some difficulties in school and in social development.
The three children have been placed in three different residential placements.
The separation of the girls from their parents and from each other seems to have been
precipitated by the visit and report of a volunteer worker who described the Murphy home as
filthy.
The volunteer made only the one visit to the Murphy home because [h]e wouldn't go into
the area they are in now. Nevertheless, after this one visit he recommended that parental
rights be terminated as soon as possible. This report prompted a neglect complaint which was
filed against the Murphys on April 23, 1981. The following day, a juvenile court services
officer removed Tanya and Angela from the Murphy home. The juvenile officer testified that
the action was based on the supposed mental deficiency of the parents accompanied by
destitution bordering on marginal environmental neglect. Interestingly, the officer stated
that he had seen more filthy homes than the Murphy residence. He also testified that when
he removed Tanya and Angela, they appeared to be all right. Their dress was normal. Their
clothes might have been a little larger than would have been normal, and they appeared to be
. . . not in hunger pains or anything like that.
7
Following a juvenile court hearing on June
16, 19S1, the girls were made wards of the court.

____________________

7
The Murphy's might, under one reading of the evidence, be said to be inadequate parents, this is certainly
not to say unsuitable parents. An understanding of what is meant by inadequate parenting can be gained from a
reading of the following:
Following a juvenile court hearing on June 16, 1981, the girls were made wards of the
court. On June 23, 1981, they were both placed in Child Haven. On February 12, 1982, the
state filed a petition to terminate the Murphys' parental rights as to all three children.
Following a hearing on June 25 and 28, 1982, the district court terminated the Murphys'
parental rights.
It does not appear from the record that termination in this case can be upheld on the basis
of the jurisdictional ground of neglect. There is no contention or finding that the Murphys
were in any way at fault (other than in being poor and wanting in neatness and cleanliness).
They are not unfit, neglecting, abusing, or abandoning parents; and any supportable
jurisdictional ground would have to have been based on a finding of parental unsuitability
based on the parents' supposed incapacity to raise their children in an acceptable manner.
There are only two possibilities of finding the Murphys to be unsuitable in the stated
manner; and both possibilities exist because of the language of NRS 12S.106, which, as
mentioned above, sets out "conditions which may diminish suitability as a parent."
____________________
Inadequate parenting
While no empirical studies provide a statistical breakdown of the reasons for intervention in neglect
cases, probably the largest category of cases involves persons thought to be inadequate parents. All
commentators agree that the great majority of neglect cases involve very poor families who are usually
receiving welfare. Most of the parents are not merely poor, however. In addition to the problems directly
caused by the povertypoor housing, inadequate medical care, poor nutritional practicesmany of these
parents can be described as extremely marginal people, that is they are continually at the borderline of
being able to sustain themselveseconomically, emotionally, and mentally.
Their plight is reflected in their home situations. Their homes are often dirty and run-down. Feeding
arrangements are haphazard. One or both parents may . . . be retarded, which may affect the quality of
their child care. . . .
Such parents may provide little emotional support for their children. While the children may not be
physically abused, left unattended, dangerously malnourished, or overtly rejected, they may receive little
love, attention, stimulation, or emotional involvement. . . .
It is certainly very tempting to intervene to help such children. Intervention might be justified both to
protect the children by providing them with an environment in which they can better reach their potential
and to protect the state, since it is claimed that such children will probably end up as delinquents,
criminals, or welfare recipients. Without intervention, we may be perpetuating a culture of poverty.
Despite the appeal of these arguments, parental inadequacy in and of itself should not be a basis for
intervention, other than the offer of services available on a truly voluntary basis. The term inadequate
home or inadequate parent is even harder to define than emotional neglect. There is certainly no
consensus about what types of inadequate behavior would justify intervention. Given the vagueness of
the standard, almost unlimited intervention would be possible.
. . . . In fact, by focusing solely on parental behavior, child-care workers often ignore the many
strengths a given child may be deriving
because of the language of NRS 128.106, which, as mentioned above, sets out conditions
which may diminish suitability as a parent. The two possibilities are found in subsections 1
and 7 of NRS 128.106.
[Headnote 24]
The condition mentioned in subsection 1 is [e]motional illness, mental illness or mental
deficiency which renders the parent consistently unable to care for the immediate and
continuing physical or psychological needs of the child for extended periods of time.
There are a number of reasons why this condition does not apply to the Murphy family.
First, it is noted that the only suggestion in the record of mental deficiency relates to Mr.
Murphy and not Mrs. Murphy. The record reflects that Mrs. Murphy, who is unquestionably
mentally competent, is the primary care giver. Thus, the family as a unit is competent to
care for the children; and even if Mr. Murphy were of questionable intelligence, it makes no
real difference under the circumstances of this case. The only evidence relating to mental
retardation of Melvin Murphy is found in the testimony of the director of Outreach Services,
an agency responsible for services to the mentally retarded.
____________________
from his environment. As I have stressed, the complexity of the process by which a child relates to any
environment defies any attempt to draft laws solely in terms of environmental influences.
Moreover, there is every reason be extremely pessimistic about the utility of coercive intervention.
The services necessary to help these families are generally unavailable. More day-care centers,
homemakers, health facilities, and job training programs would all be needed if intervention were to
mean anything more than periodic visits by a social worker. Such visits themselves are costly, have not
been shown to be effective, and may be resented by the parent who will blame the child for the outside
meddling.
Even when inadequate parents seek help, agencies often lack the recourses or ability to alleviate
undesirable home conditions. The chances of success are even lower when the family resists intervention.
Few communities have sufficient personnel and programs to permit meaningful intervention, even in
cases involving physical abuse or severe emotional damage. It is highly questionable whether limited
resources ought to be expended on families with less severe problems, unless the families request services
or accept them voluntarily.
Furthermore, when parents do not respond to the treater, the next step is to remove the children. Yet
there is no evidence demonstrating that children from such families are helped through placement.
In an ideal world, children would not be brought up in inadequate homes. However, our less than
ideal society lacks the ability to provide better alternatives for these children. The best we can do is to
expand the social welfare services now offered families on a voluntary basis.
M. Wald, State Intervention on Behalf of Neglected Children: A Search for Realistic Standards, 27 Stan. L.
Rev. 985, 1021-24 (1975), quoted in Wadlington, W., Whitebread, C., Davis, S., Children in the Legal System,
Foundation Press: New York, 747-49 (1983). (Footnotes omitted.)
Outreach Services, an agency responsible for services to the mentally retarded. The director,
who has degrees in education and counseling, mentioned off-handedly that although he fits
our criteria, he [Mr. Murphy] isn't the primary care giver. This is the only evidence relating
to Mr. Murphy's mental capacity. The record does not disclose the degree, if any, of Mr.
Murphy's supposed mental incapacity. There is no proof in the record that Mr. Murphy's
mental condition renders him in any way unable to care for his children, much less
consistently unable to care for them for extended periods of time. Mr. Murphy's
ill-described mental condition cannot provide jurisdictional grounds for termination.
[Headnote 25]
The second possible condition relates to the possibility of a finding of jurisdictional
grounds based on failure of parental adjustment. Under subsection 7 of NRS 128.106, the
[i]nability of appropriate public or private agencies to reunite the family despite reasonable
efforts on the part of the agencies can be considered as a factor which tends to diminish
suitability as a parent.
One of the state's witnesses characterized the Murphy's home thus: [T]his lifestyle is not
significantly different than that of other families in their income bracket and who live in the
apartment complex. The court expressly found that the Murphys were cooperative with
public agencies and that they love their children; still, the court went on to say that the
public agencies have become frustrated at the failure to solve the problems keeping this
family apart.
To dissolve a loving, cooperative family because of a welfare agency's frustration
appears on its face to be a bit Herodian; but this aside, the main problem with this case is that
on this record the Murphys do not appear to have been given a fair chance to cooperate with
the supposed efforts to reunite the family. In this case, the many plans proposed to the
Murphys failed to specify relevant criteria to determine successful completion. In People v.
C.A.K., 628 P.2d 136 (Colo.App. 1980), the lower court's order terminating parental rights
for the appellant's failure successfully to complete treatment plans was reversed. The
Colorado court held that if a trial court intends the successful completion of a treatment plan
as a condition for the return of a child, then the treatment plan must specify what the relevant
criteria will be to determine success. People v. C.A.K. at 140. NRS 128.0123 seems to
provide, in conjunction with NRS Chapter 62, for an agreement between parties, the court,
and the agency having custody of the child, which may impose conditions leading to return of
the child, or, if the parents refuse to comply, for freeing the child for adoption.
for freeing the child for adoption. Although the appellants designated all exhibits for the
record on appeal, the case plans are not included in the record. Also, without the case plans
it is impossible to review the record on this issue or to hold on the basis of clear and
convincing evidence that the Murphys did not fail to abide by the supposed agreement or
plan.
[Headnote 26]
It is true that Billy Murphy has a serious behavioral problem which necessitated his
removal from the home so that this disorder could be attended to professionally. No one is
waiting in the wings to adopt him and whisk him off to a loving, middle class family. Billy is
exactly the kind of child who needs the support of his family and who should not have his
parents' rights terminated. See Juvenile Justice Standards Project, Standard 8, above.
It is also true that the two girls were having problems in school and with problems of
social adjustment. These problems appear to have been relieved somewhat after their removal
from the home; but, here again there is no evidence that their lot would be improved, without
their consent, by the permanent loss of their natural parents.
Because of these latter conclusions it is also very doubtful that dispositional,
child's-best-interest grounds are present; but this need not be decided, for there are clearly
no jurisdictional grounds for termination. The Murphys have not been clearly or otherwise
shown to be unsuitable parents by reason of neglect, unfitness, or other fault or incapacity
which would justify taking their children away from them forever.
The termination order must be reversed. This court is not sufficiently informed to pass
judgment on the optimum placement of the children at this time. The matter must be
remanded for this purpose. The children have been split up and taken from their parents. Billy
may need continued residential treatment, but he still needs his parents. The two girls have
been placed out of the home for such a period of time that reunification with their parents will
probably be difficult; but the parents should have a chance, and the children should have a
chance to have the family brought together. If this cannot be done, it is possible that
termination proceedings could be later completed in conformance with this opinion.
JUDITH ANN FELSEN, No. 14100; Reversed
Judith Felsen is the mother of four children, who, at the time of the termination hearing,
were ten, nine, seven, and five. Although the petition charges parental unfitness, neglect, and
abandonment, the only finding of jurisdictional grounds in the order is that of neglect.
order is that of neglect. The court found that the allegation of neglect is true; specifically,
Judith Ann Pendleton Felsen, by clear and convincing evidence, has neglected the
above-named children.
The jurisdictional ground of neglect is not supported by the evidence.
[Headnote 27]
The charge of neglect as it appears in the petition states that the mother neglected or
refused to provide proper or necessary subsistence, education, medical or surgical care, or
other care necessary for the above-named minor children's health, morals or well being since
at least May 15, 1979. (Emphasis supplied.)
The meaning of since at least May 15, 1979 is not clear. Perhaps a sensible
interpretation of the phrase would be that the mother was neglectful for sure since (after) May
15, 1979, and was possibly neglectful at other unspecified timesnot a very definitive
allegation upon which to base a proceeding designed to take a mother's children away from
her permanently.
In our view, the charging allegation does not put into issue acts of neglect occurring prior
to May 15, 1979. Even if it did, incidents of such supposed neglect appearing in the record
are episodic and certainly do not amount to the type of serious and persistent misconduct that
would render Mrs. Felsen an unsuitable parent.
[Headnote 28]
With regard to neglect occurring after the children were taken away, it is obvious that the
mother cannot be charged with neglect to provide proper or necessary subsistence,
education, medical or surgical care, or other care during a time when the children were not
in her custody. See Chapman v. Chapman, 96 Nev. 290, 607 P.2d 1141 (1980). The only
possibility of the existence of jurisdictional neglect, in this case, would arise out of the
mother's failure to adjust after the removal of the children as discussed in the section of this
opinion entitled Failure of Parental Adjustment.
[Headnote 29]
In regard to the latter, failure of parental adjustment question, we focus on the testimony of
welfare officials who testified regarding the mother's conduct while her children were in
welfare custody. It appears that a case plan was drawn up in March of 1980, about a year
after the children were removed. During at least part of the time that she was separated from
her children the mother was not permitted to see her children. The case plan required the
mother to meet the following conditions: (1) to undergo mental health counseling, (2) to
obtain and maintain employment over a six month period, and (3) to obtain and maintain a
stable residency.
maintain a stable residency. The worker who drew up the case plan could not remember
whether a copy of the plan was sent to the mother or not.
Another worker took over the case in August of 1980. Mrs. Felsen was residing in Florida
at the time. On November 3, Mrs. Felsen notified her welfare worker that she had returned to
the State of Nevada. It is not entirely clear what Mrs. Felsen's status was with regard to the
case plan as contacts between her and welfare were infrequent. She did reside in Florida for a
while and consequently did not keep appointments at the Las Vegas Mental Health Clinic. It
is clear that during the year period that the second assigned welfare worker had the case, Mrs.
Felsen requested visitation several times and was denied.
At the time of the termination hearing Mrs. Felsen testified that she had a job and a nice
home for the children. She also testified:
I have nothing else on my mind except my children. This is the entire struggle that I
have been through, and the reason that it has been difficult many times is because when
a person losesI mean I am very close to all four of my children. My children mean
the world to me.
The district judge was, of course, free to reject or disregard Mrs. Felsen's testimony; but
even if this were done, it does not seem that Mrs. Felsen was given a fair chance. Her major
faults seem to have been her inability for some time to get a steady job and her failure to
maintain a more steady contact with the agency having custody of her children, even though
the agency would not, at certain times at least, permit her to see her children. All in all, it
cannot be said clearly and convincingly that this mother conducted herself in her relationships
with the welfare agency in such a manner as to make her an unsuitable parent and to require
that she forfeit her parental rights to her four children.
Because jurisdictional grounds have not been established, we do not discuss dispositional
issues. It is noted, however, that there is no finding or conclusion in the termination order that
the interests of all four children or any of them, would be best served by severing their
relationship with their mother. Neither does it appear that no reasonable alternative exists to
this drastic action. The order must be reversed.
PAUL CHAMPAGNE AND PAMELA CHAMPAGNE,
No. 13677; Affirmed
Paul and Pamela Champagne were formerly, but are no longer, husband and wife. At the
time of the hearing, held on April 6, 1981, they were living together. There are six children
involved in the proceeding. Paul Champagne is the natural father of Steven, Crystal, and Jon
Paul Champagne. Pamela Champagne is the natural mother of all six of the named children.
Right to Counsel
[Headnote 30]
The first error claimed by appellants Champagne is the refusal of the district judge to
appoint counsel to represent them in the proceedings below. In our opinion the district judge
acted properly and did not err in this regard.
The state's petition to terminate the Champagne's parental rights came on for hearing on
April 6, 1981. No answer or other denial of the allegations of the petition was filed at the time
nor has any formal response ever been file. The Champagnes appeared without counsel on
April 6, 1981, and the court inquired solicitously concerning their desires in this regard. It
appeared at this time that Paul earned $14.00 per hour and that he could afford to employ an
attorney. Pamela expressly advised the court that she was not asking the court to appoint an
attorney at the expense of the county.
The district judge was very emphatic in explaining to the Champagnes the importance of
having counsel during such hearings. The judge observed that he knew of nothing more
serious, short of facing a prison term, where there was greater need for representation by
counsel. He then adjourned the hearing, noting that Paul smelled of alcohol and clearly
advised the two that he wanted them back in court on May 11 without alcohol and with
counsel.
8

The order terminating parental rights recites that the Champagnes stated that they could, at
the time of the later, May 11 hearing, still afford an attorney, but that they had not secured
one. They further stated that they had talked to several attorneys but had decided not to secure
the services of an attorney.
Under such circumstances we do not find it necessary to discuss any further the claim that
the two were denied a right to court-appointed counsel; and we pass to the next point.
9

Propriety of Termination
The Champagnes claim that there is no substantial evidence to support termination of their
parental rights. There is.
____________________

8
Now I want you to make a note of it. [The May 11 date.] And I want you to make a note of two things. You
had better show up with a lawyer on that day, and you had better show up without any booze on your breath or I
am going to hold you in contempt of Court and lock you up.

9
It has been argued on behalf of Pamela that at the April 6 hearing she indicated an inability to pay for an
attorney and that Paul Champagne had no legal duty to pay for her attorney. The record, however, clearly shows
that they were pursuing the same course, and it is recited without contradiction that they had spoken to several
attorneys but decided not to employ counsel. The record fails to show that at the May 11 hearing Pamela had
desired to employ counsel but was financially unable to do so.
Both neglect and its mirror image, parental unfitness, are well-established in the record of
this case.
The Champagnes have police records involving narcotics, burglary, and child abuse. The
children were frequently left unattended. Mr. Champagne, it appears, has an unbridled
temper, particularly while under the influence of drugs or alcohol. He also had been a chronic
alcohol and substance abuser.
[Headnote 31]
A careful reading of this record discloses that by reason of the habits of the Champagnes'
the children suffered serious and continued neglect. The record reveals parents who are unfit
and who because of their unfitness and substantial neglect have become clearly unsuitable as
parents.
[Headnote 32]
On the issue of abandonment, the record further shows that the Champagnes did not,
although they were required to do so, support the children during the two years they were in
state custody. This and the general course of conduct engaged in by the Champagnes supports
the jurisdictional finding of abandonment in this case.
[Headnote 33]
A jurisdictional basis for termination can also be found in the Champagnes' failure to
adjust in a timely fashion to a well-formulated case plan. In November, 1979, the welfare
division entered into a service agreement with the parents. The state presented six witnesses,
two juvenile court officers, three welfare division social workers and a mental health
counselor, all had been involved in the effort to reunite the Champagnes with their children.
All six of these witnesses testified that in the circumstances of this case they believed that
termination of appellants' parental rights was in the best interest of the children.
[Headnote 34]
Ample jurisdictional grounds have been established for the termination order.
Dispositional grounds are also well-established. We have here children who for years have
had to put up with drunkenness and an unacceptable family life. The children have advised
welfare workers that they want a new life and that they want a new mother and father that
they can count on. I want a Mom and Dad like everyone else, one child was heard to say.
Under these circumstances, we cannot say that the district judge abused his discretion in
finding that the best interests of these children would be served by terminating parental rights.
There is good cause appearing in the record to conclude that under no reasonable
circumstances could the children's interests be served by sustaining the parental relationship.
The termination order is therefore affirmed.
CHERYL TOLLIVER HICKERSON, No. 14906; affirmed
[Headnote 35]
The jurisdictional ground for termination in this case is neglect. Evidence shows clearly
and convincingly that the mother was guilty of such severe and continuous neglect as to
render her unsuitable as a parent and to justify a permanent forfeiture of parental rights. There
is no point in recounting here the sad story of Jason, suffice it to say that during his whole
childhood Jason was forced to struggle, intermittently at least, with a mother who was drunk
or drugged, who invited vicious, violent, and disreputable persons into the home. The home
was in constant disarray and the child was deprived of love and attention to such a degree as
to cause serious developmental problems. A reading of the record reveals serious and
persistent neglect which clearly supports a finding that the mother is an unsuitable parent. We
have no difficulty in affirming on jurisdictional grounds.
The trial judge also clearly acted within his discretion in making the dispositional decision
that termination would be in the best interest of the child.
As we have pointed out above, evidence to support a jurisdictional finding of severe and
continuous neglect does not of itself justify termination. It must also be found that the child's
best interests would be clearly served by termination. This can only be done when it is found
that under no reasonable circumstances can the welfare of the child be served by continuation
of the parent-child relationship. There is substantial evidence in this record to support such a
conclusion.
[Headnote 36]
Appellant Hickerson makes two points on this issue that warrant discussion. The first is
that a Mr. Gorman, who is executive director of a family counseling service, testified that in
his opinion the child's best interest would not be served by severing the relationship between
Jason and his mother. Although Mr. Gorman is a social worker and not a psychiatrist or
clinical psychologist, his opinion was offered to the court without objection and may be
considered as some evidence on the dispositional issues. There is, it must be noted, a mass of
evidence which is contrary to Mr. Gorman's opinion.
[Headnote 37]
The petitioner in this case is the child's maternal grandmother. The boy is well-settled in
his grandmother's home, and there is much evidence that he is now living a happy and stable
family life for the first time. The child does not want to return to his mother's home.
The district judge acknowledged his need to consider all alternatives before making a
decision; and it is apparent that he did so. There is ample evidence to support the conclusion
in this case that no reasonable alternative, consistent with the welfare of the child, was
available. This conclusion is properly within the range of the judge's discretion,
notwithstanding Mr. Gorman's opinion to the contrary.
[Headnote 38]
The second significant point raised by the mother relates to the fact that she was engaged
in counseling at the time of the termination. Terminating her parental rights during such a
time, she claims, is violative of the spirit of NRS 128.107. This statute does require the
court to consider efforts being made by a parent to modify the conditions which brought
about removal of the child. The mother in this case has been undergoing counseling or
treatment on an intermittent basis throughout the child's entire life. The trial judge did not
abuse his discretion by entertaining termination proceedings simply because the mother was
again engaged in one of her counseling programs.
Since both jurisdictional and dispositional grounds for termination have been clearly and
firmly established, we affirm the order of the district court.
SUMMARY AND CONCLUSION
Termination of parental rights is essentially, of course, a statutory proceeding; but the
statute does not say it all. Overlying constitutional considerations, constantly recurring
statutory amendments, and the rapidly evolving nature of present-day social theory and public
policy make judicial interpretation an inevitable and indispensable part of critical legal
operation. Today we decide four cases, and in doing so set forth general principles applicable
to the process of severing the legal ties of parenthood.
We have held that one who institutes termination proceedings must be able to prove
clearly and convincingly that there are both jurisdictional and dispositional grounds for
termination. This means, first, that the parent must have provided some cause for the
termination. Specific groundsabandonment, abuse, neglect, unfitness, certain forms of
incapacity or failure to adjustmust support a conclusion of parental unsuitability before
termination of parental rights can be justified.
Jurisdictional grounds are not enough; it still must be shown that the child's interest would
be better served by termination than continuation of the natural parent's relationship: or, as we
put it, if under no reasonable circumstances the child's best interest can be served by
sustaining the parental tie, the second requirement, the dispositional ground, has been
fulfilled.
interest can be served by sustaining the parental tie, the second requirement, the dispositional
ground, has been fulfilled.
This approach to a difficult and emotionally charged field of law seems to us to strike the
best and fairest balance between sometimes opposing interests of parent and child.
Termination of parental rights is an extreme measure. Often guardianship, wardship, and
juvenile court custody decrees can be employed to serve and protect the interests and welfare
of children at risk. If the capital punishment of welfare law must be invoked, it should be
done only under the strictest of conditions as set forth in this opinion.
____________
100 Nev. 664, 664 (1984) Sheriff v. Hatch
WILLIAM L. HATCH, Respondent.
No. 15655
SHERIFF, WASHOE COUNTY, NEVADA, Appellant, v.
SHARON K. ANDERSON, Respondent.
No. 15957
December 6, 1984 691 P.2d 449
Appeal from orders granting pretrial writs of habeas corpus; Eighth Judicial District Court,
Clark County; Addeliar D. Guy, Judge (No. 15655); Second Judicial District Court, Washoe
County; Robert L. Schouweiler, Judge (No. 15957).
County sheriffs appealed from orders of district courts granting pretrial writs of habeas
corpus. The Supreme Court, Springer, J., held that because district courts made no finding of
illegal detention, writs of habeas corpus were improper.
Reversed; writs quashed.
Brian McKay, Attorney General, Carson City; Robert Miller, District Attorney, Clark
County, for Appellant Clark County Sheriff.
Foley and Foley, Las Vegas, for Respondent Hatch.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Washoe
County, for Appellant Washoe County Sheriff.
David G. Parraguirre, Public Defender, Washoe County, for Respondent Anderson.
1. Appeal and Error, Judgment.
Judicial action can be avoided or defeated in one of two different ways: by direct attack, ordinarily called
appeal, which is a complaint to a superior court that error has been committed by inferior one, whose
judgment or decision court above is called upon to correct or reverse; or by indirect or collateral attack,
which is attempt to avoid or defeat judicial decision or judgment in an independent proceeding which has
purpose other than that of impeaching or overturning decision or judgment.
2. Habeas Corpus.
Habeas corpus is a form of collateral attack, an independent proceeding instituted to determine whether
defendant is being unlawfully deprived of his or her liberty, and it is not an appropriate proceeding for
appeal-like review of discretionary decisions of a lower court.
3. Habeas Corpus.
District courts improperly granted writs of habeas corpus where they made no finding of illegal detention,
but rather found that inferior courts had erred in granting continuances of preliminary examination and of
misdemeanor trial.
4. Habeas Corpus.
Where an accused is detained unlawfully by reason of violation of jurisdictional requirements, denial of
speedy trial, or other proper grounds, district court may review legality of detention on habeas corpus.
5. Habeas Corpus.
Writs of habeas corpus were improperly granted on the grounds of conscious indifference to and
willful failure to comply with rules of procedure affecting defendants' rights where lower courts had
granted discretionary continuances of preliminary examination and of misdemeanor trial, because such
prosecutorial conduct is considered only in cases in which action against defendant had been properly
dismissed at preliminary examination stage, and state subsequently reinstated prosecution of case.
OPINION
These two appeals are from orders granting writs of habeas corpus releasing respondents
Hatch and Anderson from custody and dismissing criminal prosecutions against them. Writs
were granted on the ground that the justice's courts had erred in granting discretionary
continuance of a preliminary examination (Hatch) and of a misdemeanor trial (Anderson).
The writs will be quashed.
Impropriety of Habeas Corpus To Review Error of
Justice's Court In Granting Continuances
[Headnote 1]
It is fundamental that there are two different ways in which judicial action can be avoided
or defeated. One is by direct attack, which is a complaint to a superior court that error has
been committed by an inferior one, whose judgment or decision the court above is called
upon to correct or reverse.
attack, which is a complaint to a superior court that error has been committed by an inferior
one, whose judgment or decision the court above is called upon to correct or reverse. The
process is ordinarily called appeal.
An indirect or collateral attack, on the other hand, is an attempt to avoid or defeat a
judicial decision or judgment in an independent proceedinga proceeding which has a
purpose other than that of impeaching or overturning the decision or judgment.
[Headnote 2]
Habeas corpus is a form of collateral attackan independent proceeding instituted for the
purpose of testing the legality of detention. It is a separate action to determine whether a
defendant is being unlawfully deprived of his or her liberty and is not an appropriate
proceeding for appeal-like review of discretionary decisions of a lower court.
In the two cases before us, however, the district courts were clearly employing the
collateral writ process to correct perceived error on the part of justice's courts in their making
of discretionary decisions. This court expressly disapproved of this process in Sheriff v.
Sepulveda and Johnson, 99 Nev. 827, 673 P.2d 137 (1983), wherein it was held that the
district court does not have jurisdiction to review collaterally rulings of a magistrate at the
preliminary stage of a prosecution. For reasons analogous to those stated in Sepulveda, the
district court is also without the power to review, on habeas corpus, the discretionary decision
of a justice court in granting a continuance of a misdemeanor trial.
[Headnote 3]
Habeas corpus properly lies only to test the legality of detention. In these two cases the
courts made no finding of illegal detention nor is there any discernible basis for such a
finding. Rather, it appears that the district courts were not considering unlawful detention but
were acting as though they were courts of appeal on direct review of an inferior tribunal.
[Headnote 4]
In each case the district court found that its inferior court had erred in granting a
continuance. Hatch involves a continuance of a preliminary examination, and Anderson
involves a continuance of a misdemeanor trial. The principle in both cases, however, is the
same: habeas corpus cannot be employed as an appeal or writ of error. The correct procedure
for reviewing such discretionary decisions is by direct attack, by appeal, not by habeas
corpus.
1
The district courts in these two actions improperly granted the writs of habeas
corpus; and, accordingly, the writs will be quashed.
____________________

1
This is not to say that habeas corpus will never be an appropriate proceeding in a district court. We note
again, as we did in Sepulveda's companion case, Sheriff v. Blackmore, 99 Nev. 827, 673 P.2d 137 (1983),
granted the writs of habeas corpus; and, accordingly, the writs will be quashed.
Conscious Indifference and Willful Failure of Prosecution
[Headnote 5]
In both of these cases the district courts advert to prosecutorial dereliction in the form of
conscious indifference to rules of procedure affecting a defendant's right or in the form of
willful failure to comply with such rules. These concepts have no application to the cases now
before us. Such prosecutorial conduct is considered only in cases in which an action against a
defendant has been properly dismissed at the preliminary examination stage, and the state
subsequently reinstates prosecution of the case. For example, in Maes v. Sheriff, 86 Nev. 317,
468 P.2d 332 (1970), the state failed to observe the procedural requirements in seeking a
continuance of a preliminary examination, and the complaint was dismissed by the
magistrate. The state subsequently filed an identical complaint charging the same offense.
This court issued a writ of habeas corpus, holding that a new criminal proceeding was not
allowable when the original proceeding had been dismissed due to willful failure of the
prosecution to comply with required procedural preconditions.
We made a related ruling in State v. Austin, 87 Nev. 81, 482 P.2d 284 (1971). There we
upheld the district court's dismissal of a second accusation on the ground that the accused had
been denied the constitutional right to a speedy trial in a case in which there had been a
conscious indifference to rules of procedure affecting an accused's rights.
Since questions relating to the institution of a second criminal charge do not arise in either
of the cases now before us, matters of willful failure or conscious indifference relative to
procedural rights of an accused are irrelevant here. Such matters were not, therefore, the
proper subject of consideration by the district courts.
For the reasons stated, the writs of habeas corpus were improperly granted; the writs are
therefore quashed with instructions that the prosecutions may proceed in due course.
____________________
that where an accused is detained unlawfully by reason of violation of jurisdictional procedural requirements,
denial of speedy trial, or other proper grounds, a district court may review the legality of the detention on habeas
corpus.
____________
100 Nev. 668, 668 (1984) Robison v. Robison
CHARLES A. ROBISON, Appellant, v. SYLVIA A.
ROBISON, Respondent.
No. 14128
December 6, 1984 691 P.2d 451
Appeal from the district court's decree adjudicating separate and community property
assets and awarding spousal support pursuant to a decree of divorce; Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
Divorce action was brought. The district court entered a decree of divorce adjudicating
separate and community property assets and awarding spousal support, and husband
appealed. The Supreme Court held that: (1) court erred in characterizing certain real estate,
which was owned by wife prior to the marriage, exclusively as wife's separate property; (2)
findings in regard to court's valuation of a community owned business were insufficient in
that it could not be determined whether the findings were supported by the evidence; and (3)
court did not abuse its discretion in awarding wife $600 per month in spousal support for a
two-year period.
Denton & Denton, Las Vegas, for Appellant.
Manos & Cherry, Las Vegas; Fitzgibbons & Beatty, Las Vegas, for Respondent.
Where payments are made with community funds on real property which is owned by one spouse before
the marriage, the community is entitled to a pro tanto interest in such property in the ratio that the
community payments bear to payments made with separate funds, and mere fact that the post marriage
payments were principally derived from the earnings of the owner spouse is of no consequence.
Earnings of either spouse during the marriage are considered to be community funds regardless of which
spouse earns the greater income or which spouse supports the community.
3. Divorce.
Even though wife's income, all of which was spent in support of the community, greatly exceeded
husband's income, real property owned by wife prior to the marriage could not be considered exclusively as
wife's separate property, where $3,011 was paid on the purchase price of the property with community
funds following the marriage.
Court erred in failing to recognize community's interest in real estate, which had been purchased by wife
prior to the marriage as a home for her and her two children, where husband and two of his children
from his previous marriage moved into the house after the marriage and several
thousand dollars was subsequently paid on the purchase price from community
funds.
children from his previous marriage moved into the house after the marriage and several thousand dollars
was subsequently paid on the purchase price from community funds.
Where a spouse makes a conscious choice to use his or her separate property, rather than available
community property, to pay community expenses, use of the separate property constitutes a gift to the
community.
6. Trial.
In actions tried without a jury, district court is required to make specific findings of fact and conclusions
of law which are sufficient to indicate factual basis for the court's ultimate conclusions. NRCP 52(a).
7. Divorce.
Findings by trial court in divorce action as to its method of valuing a community owned business were
not sufficient to indicate whether the findings were supported by the evidence and, therefore, remand was
necessary so that a clear basis for valuation could be made manifest.
8. Divorce.
A trial court, when weighing evidence before it, may conclude in a particular situation that a business's
assets have a greater value than that reflected on the corporate balance sheet.
9. Divorce.
In valuing a community owned business in divorce proceeding, court erred in not considering that debts
on the corporate books reflected actual liabilities of the business in absence of an express finding that the
balance sheets misrepresented the long-term indebtedness.
10. Divorce.
In granting a divorce, the district court is given broad discretion in determining whether to award spousal
support to either the husband or the wife.
11. Divorce.
Court did not abuse its discretion in awarding wife $600 per month in spousal support for a two-year
period, even though wife had earned a very lucrative income as a cocktail waitress, where record indicated
that she was injured prior to the divorce and as a result had been unable to continue with her employment.
OPINION
Per Curiam:
The present appeal is based largely on what appellant claims to be an erroneous
characterization and valuation of various separate and community property assets owned by
Sylvia and Charles Robison during their marriage. Specifically, the appellant, Charles
Robison, contends that the district court erred by: (1) characterizing two parcels of real
property acquired by Sylvia Robison before the present marriage as her sole and separate
property although community funds had been used to pay a portion of the purchase price of
the property after the marriage; (2) picking figures out of the air in valuing the net worth of
the community-owned business; and {3) awarding Sylvia alimony and support.
community-owned business; and (3) awarding Sylvia alimony and support. We agree with the
first two contentions and therefore reverse and remand the matter to the district court. We
reject Charles's contention that the district court abused its discretion in awarding Sylvia
spousal support and therefore affirm the judgment in part.
Characterization of Property Purchased in Part with
Community Funds
Charles and Sylvia Robison were married in Las Vegas, Nevada, on January 1, 1972. Both
had been previously married and had children by their prior marriages. Sylvia Robison owned
two parcels of real property when she entered into the 1972 marriage with Charles. The first
parcel, located in Escondido, California, was awarded to Sylvia as her sole and separate
property in 1968 by a divorce decree terminating her previous marriage. Following her
marriage to Charles $3,011.00 was paid on the purchase price of the property with
community funds.
Despite the community's contribution toward the purchase price, the district court
characterized the parcel as Sylvia's sole and separate property. The district court reasoned that
since Sylvia's income, all of which was spent in support of the community, greatly exceeded
Charles's income, the payments out of community funds did not create a sufficient interest in
Sylvia's separate property to give it the quality of community property.
[Headnotes 1-3]
Where payments are made with community funds on real property which was owned by
one spouse before marriage, the community is entitled to a pro tanto interest in such property
in the ratio that the community payments bear to the payments made with separate funds. Sly
v. Sly, 100 Nev. 236, 679 P.2d 1260 (1984); Barrett v. Franke, 46 Nev. 170, 208 P. 435
(1922). The mere fact that the post-marriage payments were principally derived from the
earnings of the owner-spouse is of no consequence. The earnings of either spouse during the
marriage are considered to be community funds regardless of which spouse earns the greater
income or which spouse supports the community. See Cord v. Neuhoff, 94 Nev. 21, 573 P.2d
1170 (1978). It was therefore error for the district court to have characterized the Escondido
parcel exclusively as Sylvia's separate property.
[Headnote 4]
The second parcel owned by Sylvia was a residence located on Michael Way in Las Vegas,
Nevada. The Michael Way residence was purchased by Sylvia in 1969 as a home for her and
her two children.
children. Prior to the 1972 marriage to Charles, Sylvia paid $9,748.00 on the purchase price
of the Michael Way residence. After the marriage, Charles and two of his children from his
previous marriage moved into the house with Sylvia and her children. Eventually $19,923.00
was paid on the purchase price from community funds.
The Michael Way residence was characterized by the district court in a similar fashion as
the Escondido parcel. Aside from noting the disparity between Charles's and Sylvia's income,
the district court additionally considered the use and occupation of the property during the
marriage by Charles and his children. The lower court found that this benefit to Charles
exceeded any community interest in the property that he would have attained as a result of the
community payments.
As we have previously stated, where a portion of the purchase price of one spouse's
separate property is paid with community funds, the community acquires a pro tanto interest
in the property to the extent and in the proportion that the purchase price is paid with
community finds. Sly, above. The district court's failure to recognize the community's interest
in the Michael Way residence was therefore error.
[Headnote 5]
The district court considered the benefit that Charles received from the use and enjoyment
of the house during the marriage as offsetting the community's interest. This was error. Under
our holding in Cord v. Cord, 98 Nev. 210, 644 P.2d 1026 (1982), where a spouse makes a
conscious choice to use his or her separate property, rather than available community
property, to pay community expenses, the use of the separate property constitutes a gift to the
community. In the case at hand, the use of Sylvia's real property as a community residence is
equivalent to the use of one spouse's separate funds to pay community expenses. Since there
were sufficient community funds from which to support Charles and Sylvia, in the absence of
an agreement to the contrary, the use of the Michael Way property constitutes a gift of the
rental value of the property to the community.
1
The fact that Charles's children were allowed
to reside at the residence would not affect the nature of this gift.
In light of the principles stated above, the characterization of the Michael Way residence
and the Escondido parcel as Sylvia's separate property was error.
____________________

1
From the record it appears that Sylvia's $40,000.00 income was more than ample to support the community.
Thus, the use of the Michael Way house as the community's residence was not necessitated by the lack of
community funds to provide alternative housing.
separate property was error. Therefore, the case is reversed and remanded with instructions
that the district court reconsider the property distribution in accordance with this opinion.
Valuation of the Community Owned Business
In this appeal, Charles contests the district court's valuation of a community owned
business including two wholly owned subsidiary corporations. For the purposes of this
discussion, we do not consider it necessary to reiterate the complex financial history of each
business. Instead, we focus on the lower court's method of determining the net worth of the
enterprises. The district court determined the value of the ventures as follows:
With reference to the value of the businesses and the community property interest
therein, Defendant [Charles] offered the 1977, 1978 and 1979 financial statements and
the 1977 and 1978 corporate income tax returns from the businesses. Based on the
financial statements, the net assets of the three corporations are valued at $82,908.00.
There were investments in the corporation totaling $75,500.00. The gross income return
per year from the corporation to Defendant is approximately $30,000.00. The figure is
subject to an offset for the value of Defendant's labor in the amount of $20,000.00,
leaving a net annual income from corporate worth of $10,000.00 per year. Considering
the value of the net income to corporate worth based on a five-year recapture period,
such worth to the corporation is $50,000.00. Thus, the investment value, the net assets
and the net earned income value of the corporations is $208,405.00. [The correct sum is
$208,408.00.] To arrive at a net value of the corporations, this figure must be reduced
by the outstanding long-term indebtedness (purchase price of J.C.S.) of $90,000.00 and
the short-term indebtedness of $4,902.00, leaving a net value of the corporation, which
is a community asset, of $113,503.00. [The correct sum is $113,506.00.]
[Headnotes 6, 7]
Charles initially questions the lower court's finding that the net assets of the three
enterprises equals $82,908.00. Charles speculates that the term net assets was intended to
reflect the shareholder equity in the corporation. We find this interpretation of the lower
court's terminology to be doubtful since the shareholder's equity in the corporations is the
ultimate value to be determined when valuing the community's interest. If, on the other hand,
the court meant the value of the assets as encumbered (i.e., the equity value of each asset), the
lower court would be erroneously considering the corporate debts twicethe first time in
valuing the "net assets" as the term is used in the court's findings, and the second time in
subtracting the long and short term indebtedness of the corporation from the
corporations gross value.
erroneously considering the corporate debts twicethe first time in valuing the net assets
as the term is used in the court's findings, and the second time in subtracting the long and
short term indebtedness of the corporation from the corporations gross value. In actions tried
without a jury, the district court is required to make specific findings of fact and conclusions
of law. NRCP 52(a). The findings must be sufficient to indicate the factual basis for the
court's ultimate conclusions. Bing Constr. v. Vasey-Scott Eng'r, 100 Nev. 72, 674 P.2d 1107
(1984). In the case at hand, the lower court's terminology is unclear. Specifically, it is difficult
to understand why the district court determined net assets prior to subtracting the corporate
liabilities from the gross value of the enterprises. As a result of this ambiguity it is impossible
to determine whether or not the findings are supported by the evidence. Accordingly, it is
necessary to remand this case to the district court so that a clear basis for valuation of
corporation assets may be made manifest.
Charles's second allegation of error in the lower court's method of valuing the three
corporations stems from the finding that there were investments in the corporations totalling
$75,000.00. As is apparent from the portion of the court's finding quoted above, the lower
court added the sum of the investments with the net assets and the annual net income
in determining the gross value of the corporations. Charles surmises that the term
investments meant investment from community funds and argues that the evidence does not
support a finding of $75,000.00 in community investments.
In reviewing the record, we are equally confused by the term investments. Neither party
contests the fact that the parent corporation was initially financed with community funds and
that the subsidiary corporations were purchased with the earnings or credit of the parent
corporation. Accordingly, neither party contests the fact that the businesses are in essence,
community assets. Whatever the community initially contributed to the corporations' capital
is irrelevant. When the corporation is entirely a community asset, such contributions will
necessarily be reflected in the net worth of the company.
[Headnotes 8, 9]
Charles next disputes the lower court's finding that the aggregate long term debt of all
three corporations is $94,902.00. The financial statements clearly demonstrate that the long
term debt for the three corporations is $103,163.00. Although a trial court, when weighing the
evidence before it, could conclude a business's assets have a greater value than that reflected
on the corporate balance sheet, it is hard to imagine a situation where the debts are actually
less than that reflected on the books.
Without an express finding that the balance sheets misrepresented the long term indebtedness,
it is error not to consider that the debts on the corporate books reflect the actual liabilities of
the business.
In light of the fact that the valuation of the three community businesses must be remanded
to the district court, we consider the remaining allegations of error by the appellant to be
without merit.
Spousal Support
Aside from the dissolution of the marriage and distribution of the community property, the
district court awarded Sylvia $600.00 per month in spousal support for a two-year period. In
this appeal, Charles claims that the district court abused its discretion in granting spousal
support since Sylvia was awarded a disproportionate share of the community property and
since Sylvia earned approximately $40,000.00 a year as a cocktail waitress. We disagree.
We initially note that appellant's claim that Sylvia was awarded a disproportionate share of
the community stems from the failure of the district court to value properly the corporate
businesses or to acknowledge the community's interest in the Escondido and Michael Way
parcels. Since we are remanding these issues to the district court, no judgment can be made at
this time relating to claimed disproportionality of property distribution.
[Headnotes 10, 11]
In granting a divorce, the district court is given broad discretion in determining whether to
award spousal support to either the husband or the wife. Buchanan v. Buchanan, 90 Nev. 209,
523 P.2d 1 (1974). Although Sylvia earned a very lucrative income as a cocktail waitress for
the Sahara, the record indicates that she was injured prior to the divorce and as a result has
been unable to continue with her employment. Because of this sudden decrease in income, in
light of the fact that Charles retained the three businesses, the district court's decision to grant
spousal support is not an abuse of discretion. The award of spousal support to Sylvia is
therefore affirmed.
____________
100 Nev. 675, 675 (1984) Bates v. Chronister
ROBERT D. BATES and MARY L. BATES, Appellants, v. TROY F. CHRONISTER
and AUDREY CHRONISTER, Respondents.
No. 14759
December 7, 1984 691 P.2d 865
Appeal from order denying appellants' motion for judgment notwithstanding verdict,
granting respondents' motion for judgment notwithstanding verdict and denying appellants'
motion for attorney's fees. Second Judicial District Court, Washoe County; John E. Gabrielli,
Judge.
Buyers of mobile home lot brought action against sellers and sellers counterclaimed for
payment of promissory note. The district court entered orders denying sellers' motion for
judgment NOV to increase size of verdict and granted buyers' motion for judgment NOV.
Sellers appealed. The Supreme Court held that: (1) sellers made prima facie showing that trial
court erred in finding that parties intended that installment payments under note were due
only upon a consummated sale and that agreement constituted a rescission of the land sale
contract between buyer and third party; (2) evidence in record clearly demonstrated that
sellers were entitled to full balance of promissory note; and (3) sellers were entitled to
attorney fees upon buyers' default.
Reversed and remanded with instructions.
Terry M. McCoy, Reno, for Appellants.
David Dean, Reno, for Respondents.
Once appellant establishes prima facie showing of prejudice on partial record before court, it falls to
respondent to designate those portions of transcript which would support lower court's judgment.
On appeal from adverse judgment on counterclaim brought by sellers of mobile home lots against buyers
seeking to recover on promissory note which provided that installments were due under note when lots
were sold by buyers or title was transferred, sellers made prima facie showing on partial record before the
Supreme Court that lower court erred in setting aside verdict by showing that there were two equally
plausible interpretations arising from note's use of words sale or transfer of title, placing burden on
buyers to designate portions of trial transcript which would have supported trial court's finding that parties
intended installment payments be due and payable only upon consummated sale of each of lots; therefore,
buyers, who failed to include such portions of transcript, failed to meet burden.
3. Contracts.
For a subsequent agreement to constitute a rescission, it must be made with mutual consent of parties to
original contract.
4. Contracts.
One party to an executory contract, in the absence of fraud or a special reason, cannot rescind.
On appeal from adverse judgment as to counterclaim brought by sellers of mobile home lots against
buyers to recover under promissory note providing that sellers would pay installments to buyers upon sale
or transfer of lots by buyers, sellers established prima facie that trial court's finding of rescission of land
sale contract between buyers and third party was erroneous, since buyers were not party to the rescission
contract, since agreement was executory, and since buyers failed to designate any portion of partial
transcript submitted that would have indicated fraud or special circumstance.
6. Judgment.
A judgment notwithstanding the verdict in an amount greater than jury's verdict may be entered on
prevailing party's motion; order is proper, however, only where the evidence supporting it is uncontradicted
and unimpeached so that verdict could and should have been entered in the exact amount of judgment.
7. Sales.
Sellers of mobile home lots were entitled to recover from buyers full amount due on promissory note of
$13,863.43 upon acceleration, since record did not contain any contradictory evidence regarding amount
due upon acceleration.
Defendant's failure to respond in answering brief to plaintiff's contention that lower court erred in
denying a judgment NOV as to rate of interest would be treated as a confession of error on appeal. NRS
99.040.
On appeal from adverse judgment as to counterclaim brought by sellers of mobile home lots against
buyers to recover under promissory note, sellers, who provided no authority for their claim that late charge
should have been calculated from date of sale of lots by sellers, did not establish that trial court erred in
failing to find date of sale as date from which late charges were due and payable.
Since trial court did not value attorney's services at all based on its determination that, because issues
were close, no attorney fees were warranted under agreement, traditional abuse of discretion standard was
inapplicable.
Ordinarily, construction of a provision for compensation of an attorney is governed by same rules that
generally apply to all contracts.
Sellers of mobile home lots, who were prevailing party on jury verdict as to their counterclaim against
buyers on underlying note and whose note explicitly provided for attorney fees in the event of default,
made prima facie showing of error in trial court's ruling denying attorney fees on partial record before
Supreme Court, which showing was not rebutted by buyers, who failed to designate any portion of trial
transcript which would have supported trial court's findings. NRS 18.010, subd. 1; NRAP 31(c).
OPINION
Per Curiam:
This is an appeal from the trial court's ruling on cross motions for a judgment
notwithstanding the verdict and from an order denying attorney's fees. On the partial record
before the court, we find that the Bateses established prima facie error in those rulings. Since
the Chronisters failed to designate any pertinent portions of the trial transcript, we reverse all
of the lower court's orders and remand with instructions.
On April 3, 1980, Robert and Mary Bates agreed to sell to Troy Chronister three mobile
home lots located on Pearl Avenue in Sun Valley, Nevada. The sales price on the
Bates/Chronister contract was $50,000. Chronister made a down payment of $10,000,
assumed a first deed of trust in the amount of approximately $26,100 and agreed to pay the
balance in one-third installments as each lot is developed and sold with mobile home on it.
The promissory note Troy and Audrey Chronister executed, pursuant to the sales agreement,
provided that they would pay to the Bateses the sum of $4,621.14 upon sale or transfer of
title of any one [of the three lots]. The note also provided for acceleration of all of the
principal and interest due upon default and for payment of the costs of collection and
attorney's fees. The note was secured by a deed of trust.
On November 17, 1980, Chronister executed a land sale contract for one of the subject
parcels with Austin and Mabel Dunn. The purchase price for the lot was set at $28,000. The
Dunns gave only a $10 down payment but agreed that the balance was payable at $250 each
month at 17.5% interest until satisfied. Two months before they signed the sale agreement,
the Dunns had purchased a mobile home and moved it onto the lot they eventually agreed to
buy from Chronister.
On December 15, 1980, the Bateses made demand on the Chronisters for any and all sums
due under the promissory note. The Chronisters' attorney initially responded with a letter on
December 27, 1980, which admitted his clients' liability on the note but suggested two
alternatives for negotiation. The Bateses rejected the proffered settlements and on May 11,
1981, proceeded to swear out a notice of default and election to sell. Less than a month later,
the Dunns and Trailer Boy Troy, Inc. entered into an agreement for the removal of the Dunns'
mobile home from the subject lot. Trailer Boy contracted to assume all related expenses of
the move and the parties to the moving contract agreed that the Dunn/Chronister land sale
contract was null and void. Consequently, the Chronisters refused to satisfy the promissory
note.
The Chronisters commenced this litigation by filing a complaint against the Bateses and
First Financial Service Corporation, the payee on the first promissory note. The complaint
alleged many claims for relief including breach of contract, slander of title, nuisance, and
interference with contractual relations. Both defendants answered and the Bateses
counterclaimed for payment of the promissory note.
1
Following a six-day jury trial, a verdict
was returned in favor of the Bateses and First Financial on the complaint and in favor of the
Bateses on their counterclaim. The jury awarded the Bateses $4,621.15 in damages, with
interest at 12%, plus late charges in the sum of 5% of the outstanding balance on the
promissory note.
Dissatisfied with the size of the award, the Bateses filed a motion for a judgment
notwithstanding the verdict (JNOV). They requested that the award be increased to the full
accelerated amount of the note, $13,863.44. This request was accompanied by a motion for
attorney's fees under the contract and promissory note. The Chronisters opposed both these
motions and, in passing, argued that a JNOV should be granted in their favor because the
Chronister/Dunn sale was never consummated. The lower court ruled against the Bateses
on both motions and granted a JNOV in the Chronisters' favor. On appeal, the Bateses
challenge these orders.
1. Consummated Sale
In its order setting aside the jury's verdict, the lower court stated that the Dunn/Chronister
contract was never enforceable because the parties to the agreement rescinded it before it was
consummated. According to the lower court, the contract was not consummated because no
payment toward the purchase price had been made. The Bateses contend this ruling is
incorrect because the evidence supports the jury's verdict that a sale had occurred and that
the valid land sale contract between the Dunns and the Chronisters triggered the first
installment payment due under their note. The Chronisters contend that a consummated sale
was the condition precedent to payment under the note. No consummated sale occurred, the
Chronisters argue, because neither money nor title was transferred by the land sale contract
and, furthermore, the parties rescinded the contract.
[A] motion for [JNOV] may be granted only when, without weighing the credibility
of the evidence, there can be but one reasonable conclusion as to the proper judgment.
Where there is conflicting evidence or there is insufficient evidence to make a
one-way verdict proper, [JNOV] should not be awarded.
____________________

1
The parties have not argued any of the ramifications raised by the one action rule. NRS 40.430.
awarded. In considering the motion, the court must view the evidence in the light most
favorable to the party who secured the jury verdict.
5A Moore's Federal Practice 50.07 [2] (1984) (emphasis added). See also Pruett v. First
Nat'l Bank, 89 Nev. 442, 514 P.2d 1186 (1973); Twardowski v. Westward Ho Motels, 86
Nev. 784, 787, 476 P.2d 946, 947 (1970). Consequently, the lower court could have properly
granted a JNOV only if, without weighing the evidence, the only reasonable conclusion was
that the parties intended that the installments under the promissory note fell due only when
the Chronisters had received the full sale price for the lot and the Dunns had received legal
title to the subject lot.
[Headnote 1]
In the present case, the Bateses designated only a partial record on appeal. The record
contains all of the pleadings, motions, exhibits, instructions, verdicts and orders. It does not
contain a transcript of the six-day jury trial. Traditionally, when evidence on which the lower
court's judgment rests is not included in the record on appeal, it is assumed that the record
supports the district court's findings. Stover v. Las Vegas Int'l Country Club, 95 Nev. 66, 68,
589 P.2d 671, 672 (1979). Nevertheless, in Driscoll v. Erreguible, 87 Nev. 97, 482 P.2d 291
(1971), this court held that the appellant's failure to designate a trial transcript did not warrant
dismissal of the appeal. There, the appellant established a prima facie showing of prejudice
on the partial record before the court. Once the appellant met that burden, it fell to the
respondent to designate those portions of the transcript which would support the lower court's
judgment. Id. at 101-103, 482 P.2d at 294-295.
[Headnote 2]
The contract and the promissory note included in the partial record on appeal indicate that
the installments were due under the note when the lots were sold or title was transferred. In
Arizona Land Title & Trust Co. v. Safeway Stores Inc., 429 P.2d 686 (Ariz.App. 1967), the
Arizona court interpreted a contract which provided that the buyer's obligation to purchase
the subject realty was conditioned on the purchase of adjacent property. The trial court was
held to have erred in entering a summary judgment because a question of fact existed as to
whether the parties intended the words purchase or sale to mean a consummated
purchase or merely the execution of a contract for sale.
2
Id.
____________________

2
The only Nevada authority which the parties cite as providing a definition of sale is Kline v. Robinson, 83
Nev. 244, 428 P.2d 190 (1967), ovr'ld on
at 689-690. Cf. Williams v. First Fed. Sav. & Loan Ass'n etc., 651 F.2d 910 (4th Cir. 1981);
Century Fed. Savings & Loan Ass'n v. Van Glahn, 364 A.2d 558 (N.J. Super. Ct. Ch. Div.
1976); Annot., 60 A.L.R. 3d 713 10(b) (1976) (land sale contract held to convey realty
for purposes of due on sale clause because the purchaser received an equitable title to the
realty as well as immediate right to possession). Because two equally plausible interpretations
arise from the contract's and the promissory note's use of the words sale or transfer of title,
the Bateses have made a prima facie showing on the partial record before this court that the
lower court erred in setting aside the jury verdict. The burden then fell to the Chronisters to
designate those portions of the trial transcript which would have supported the lower court's
finding that the parties intended the installment payments to be due and payable only upon the
consummated sale of each of the lots. The Chronisters, however, have failed to include those
portions of the transcript which would have supported the lower court's findings.
[Headnotes 3-5]
2. Rescission of the Dunn/Chronister Contract
In its order granting a JNOV, the lower court also found that the June 1, 1981, agreement
between Trailer Boy Troy, Inc. and the Dunns constituted a rescission ab initio of the
Dunn/Chronister land sale contract. Interestingly, Chronister was not a party to the
rescission contract. That contract was between Trailer Boy Troy, Inc. and the Dunns. For a
subsequent agreement to constitute a rescission, it must be made with the mutual consent of
the parties to the original contract. Holland v. Crummer Corp., 78 Nev. 1, 7, 368 P.2d 63, 66
(1962). One party to an executory contract, in the absence of fraud or a special reason, cannot
rescind. First Nat. Bank of Julesburg v. Banking Bd., 663 P.2d 261 (Colo.App. 1983).
Because the Dunn/Chronister land sale agreement was executory, the Bateses have
established prima facie that the lower court's finding of a rescission was erroneous. The
Chronisters did not designate any portion of the transcript that would have indicted fraud or
special circumstances or that Trailer Boy was a mere alter ego of Chronister, that Chronister
had transferred his interest in the subject properties to the corporation, or that Trailer Boy
served as Chronister's agent.
____________________
other grounds, Pease v. Taylor, 88 Nev. 287, 496 P.2d 757 (1972). There, the court distinguished between a sale
and a loan to determine whether the usury statute applied. The Kline court stated that [a] sale is the transfer of
the property in a thing for a price in money. The transfer of the property in the thing sold for a price is the
essence of the transaction. The transfer is that of the general or absolute interest in property as distinguished
from a special property interest. Id. at 249, 428 P.2d at 194.
3. Denial of Bateses' Motion for JNOV Increasing Jury Verdict of $4,621.15 to
$13,863.44
The jury awarded the Bateses $4,621.15 with interest at 12%, late charges at 5% of the
outstanding balance on the promissory note from December 1, 1980 and all court costs.
Because the promissory note contained a standard acceleration clause, the Bateses moved for
a JNOV and argued that the award was inadequate. The lower court, however, denied this
motion on the ground that the jury had incorrectly found that a sale occurred. Although the
Bateses have challenged this decision on appeal, the Chronisters have confined their response
to the sale issue.
[Headnotes 6, 7]
A JNOV in an amount greater than the jury's verdict may be entered on the prevailing
party's motion. The order is proper, however, only where the evidence supporting it is
uncontradicted and unimpeached so that the verdict could and should have been entered in
the exact amount of the judgment. Hatchell v. McCracken, 132 S.E.2d 7 (S.C. 1963). See
also Sunset Oil, Co. v. Vertner, 208 P.2d 906 (Wash. 1949). In the present case, the
promissory note provided that the full amount due was $13,863.44. The note also stated that
in the event of a default in the payment of any installment the remaining unpaid principal and
interest shall be accelerated without notice. The Chronister/Dunn sale occurred on November
17, 1980, the Bateses made demand upon Chronisters on December 15, 1980, and a notice of
default was made on May 11, 1981. The partial record does not contain any contradictory
evidence on the amount due upon acceleration of the note, nor have the Chronisters
designated any portion of the transcript which would suggest a different result. In fact, an
instruction given by the court (#37) informed the jury that if they found for the Bateses on
their counterclaim the damages may include: the principal amount of the promissory note . .
. . Thus, the lower court erred in denying the Bateses' motion for a JNOV regarding the
accelerated balance.
4. Interest
[Headnotes 8, 9]
The jurors had been instructed that if they found for the Bateses they could award interest
on the principal amount from December 1, 1980, until the present time at the rate of 12%.
The jury's verdict regarding the interest award, however, was ambiguous. It stated interest
[at] 12%. The promissory note itself did not set a rate of interest. Nevertheless, the Bateses
contend that the lower court erred in denying a JNOV because NRS 99.040
3
provides that
"the rate of interest, when not otherwise stated, will be deemed to be the legal rate of
interest recognized in this state."

____________________

3
NRS 99.040 (1983) provides in relevant part:
When there is no express contact in writing fixing a different rate of
provides that the rate of interest, when not otherwise stated, will be deemed to be the legal
rate of interest recognized in this state. We elect to treat the Chronisters' failure to respond to
this argument in the three pages of argument in their answering brief as a confession of error.
4
A Minor v. Mineral Co. Juv. Dept., 95 Nev. 248, 592 P.2d 172 (1979); Moore v. State, 93
Nev. 645, 572 P.2d 216 (1977). Cf. James v. Abrams, 99 Nev. 98, 659 P.2d 296 (1983);
Nationwide Ins. v. Costa, 99 Nev. 157, 659 P.2d 883 (1983); NRAP 31(c). We, of course,
express no opinion regarding the merits of this issue.
5. Attorney's Fees and Costs of Collection
The lower court denied the Bateses' motion for attorney's fees because it believed this to be
a close case. Nevertheless, the promissory note signed by the Chronisters provided that [i]n
the event of such a default as defined hereinabove, the undersigned agrees to pay all costs of
collection and attorney fees with the payment and at the time of payment of such sum of
money and/or the performance of such acts as may be required to cure such default. In
support of their motion, the Bateses attached an affidavit from their counsel which stated that
$13,500 in attorney's fees had been expended.
On appeal, the Bateses challenge the order denying attorney's fees by arguing that NRS
18.010(1)
5
provides that attorney's fees are governed by the parties' agreement. Because the
Bateses were the prevailing party, they claim the lower court was required to award
reasonable fees. The Chronisters do not respond to this issue.
____________________
interest, interest must be allowed at the rate of 12 percent per annum upon all money from the time it becomes
due, in the following cases:
1. Upon contracts, express or implied, other than book accounts.
In 1980, the rate of interest provided by NRS 99.040 (1979) was eight percent.

4
The jury awarded the Bateses a 5% late charge on the outstanding balance of the note from December 1,
1980. The Bateses contend that the denial of their motion for a JNOV was erroneous because the late charge
should have been calculated from the date of the sale. The Bateses provide no authority for this proposition.
Furthermore, the late charge provision in the deed of trust provided that the 5% late charge was to be computed
on the installment payment due on the note if not paid more than 15 days after the sale. Thus, it appears that the
jury erred not in the date of computation but in allowing 5% of the remaining balance instead of the installment
payment. The Chronisters, however, did not raise a cross appeal. Consequently, we hold that the lower court did
not err in refusing to grant a JNOV marking the date of sale as the date from which the late charges were due and
payable.

5
NRS 18.010(1) provides that:
The compensation of an attorney and counselor for his services is governed by agreement, express or
implied, which is not restrained by law.
[Headnote 10]
Traditionally, the value to be placed on the services rendered by counsel lies in the
exercise of sound discretion by the trier of facts. Brunzell v. Golden Gate Nat'l Bank, 85 Nev.
345, 350, 455 P.2d 31, 33 (1969). In the present case, however, the lower court did not value
professional services. It determined that because the issues were close no attorney's fees were
warranted under the parties' agreement. Consequently, the abuse of discretion standard is
inapplicable.
[Headnote 11]
In most American jurisdictions, it is the rule that provisions in contracts for the payment of
attorney's fees in the event it is necessary to resort to aid of counsel for enforcement or
collection are valid and enforceable. These provisions have been upheld because they are
regarded as an agreement to indemnify a creditor from loss. S. Speiser, Attorney's Fees,
15:3-4 (1973). Ordinarily, construction of a provision for compensation of an attorney is
governed by the same rules that generally apply to all contracts. 7 Am. Jur. 2d Attorneys at
Law 247 (1980).
[Headnote 12]
In the present case, the Bateses were the prevailing party on the jury's verdict and should
have been the prevailing party on their motion for JNOV. The promissory note explicitly
provided for attorney's fees in the event of a default. On the partial record before us, the
Bateses have made a prima facie showing of error in the lower court's ruling. Again, the
Chronisters failed to designate any portion of the trial transcript which would have supported
the lower court's findings.
CONCLUSION
On the partial record on appeal, the Bateses have made a prima facie showing that the
lower court erred in finding that the parties intended that the installment payments under the
note were due only upon a consummated sale and that the June 1, 1981, Trailer Boy/Dunn
agreement constituted a rescission of the Chronister/Dunn land sale contract. Additionally,
the record clearly indicates that the Bateses were entitled to the full balance of the promissory
note and the Chronisters conceded under NRAP 31(c) that interest at 12% on the sum of
$13,863.44 should run from December 1, 1980. Finally, the promissory note plainly states
that the Bateses could collect attorney's fees upon Chronister's default.
Consequently, the lower court's orders denying the Bateses' motion for JNOV and for
attorney's fees and granting a JNOV setting aside the jury's verdict are all reversed.
motion for JNOV and for attorney's fees and granting a JNOV setting aside the jury's verdict
are all reversed. This case is remanded to the lower court with instructions that it enter a
JNOV in the Bateses' favor in accordance with this opinion [see Neeley v. Martin K. Eby
Construction Co., 386 U.S. 317 (1967)], and that it hold a hearing regarding the value of the
Bateses' attorney's services.
____________
100 Nev. 684, 684 (1984) Pink v. Busch
SAM PINK and ANNE PINK, Appellants, v. JOSEPH BUSCH, ANN BUSCH,
ALBERT J. BUSCH, III; JOHN E. CLARK, JUNE CLARK; JAMES ZELLERS,
CAROLE ZELLERS, Respondents.
No. 14581
December 7, 1984 691 P.2d 456
Appeal from judgment following bench trial. Eighth Judicial District Court, Clark County;
Joseph S. Pavlikowski, Judge.
Creditors brought action against three original guarantors of debts arising from sale of
business, and parties who had purchased business from original guarantors under personal
guarantees. Before trial, the creditors obtained a default judgment against one original
guarantor and summary judgment against the subsequent purchasers. In regard to the other
two original guarantors, the district court found either that they had been released, or that the
subsequent purchase agreement constituted a novation of the original guarantees, and
creditors appealed. The Supreme Court held that: (1) trial court's finding that consideration
existed for release of the original guarantors was clearly erroneous where no bargained for
exchange occurred; (2) creditors were not estopped from denying release of original
guarantors where one guarantor merely asserted that he relied on that release; and (3) the trial
court's finding of novation was clearly erroneous.
Reversed and remanded with instructions.
Oshins, Brown, Singer & Wells, Chartered, Las Vegas, for Appellants.
Wiener, Waldman & Gordon, Las Vegas, for Respondents.
1. Guaranty.
Since agreement of creditor to release guarantor from liability under guaranty contract is binding upon
creditor only if agreement possesses elements of a contract, releases must be supported by consideration.
100 Nev. 684, 685 (1984) Pink v. Busch
2. Contracts.
To constitute consideration, a performance or return promise must be bargained for, and a performance
or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given
by the promisee in exchange for that promise.
Findings of fact shall not be set aside unless clearly erroneous; however, where there is no evidence in
support of the lower court's findings, they are clearly erroneous and may be reversed.
4. Guaranty.
Trial court's finding that one creditor's oral release of guarantors was supported by consideration, viz.,
third parties' subsequent execution of their personal guarantees of indebtedness to creditors, was clearly
erroneous, where no bargained for exchange occurred between guarantors and creditor, and where the
third parties realized that their guarantees, though they ran to creditor's benefit, were not given in exchange
for discharge of original guarantors from their guarantees.
5. Estoppel.
Promissory estoppel can be used as consideration substitute to support release of liability under a
guaranty contract.
6. Estoppel.
To establish promissory estoppel, four elements must exist: party to be estopped must be apprised of true
facts, he must intend that his conduct shall be acted upon or must so act that party asserting estoppel has
right to believe it was so intended, party asserting estoppel must be ignorant of true state of facts, and he
must have relied to his detriment upon conduct of party to be estopped.
7. Estoppel.
Trial court's finding that guarantor relied upon creditor's oral promise to release guarantors was clearly
erroneous, where guarantor merely asserted that he relied on alleged release, but guarantor never owned
any stock in business from whose purchase the debt arose, guarantor never managed or took active role in
business, and, when business declared bankruptcy, it was owned by third party; thus, creditor was not
estopped from denying release of guarantors from their guarantees.
8. Novation.
Substitution of new obligation for existing one may be a novation if first debt is extinguished, all parties
are discharged on first contract, and all parties agreed at time of substitution that creditor's consent
constituted a discharge or original obligor and the new obligor took its place.
9. Novation.
Intent of parties to cause a novation must be clear; consent to an assignment is not enough.
10. Novation.
A novation may be inferred by the creditor's acceptance of part performance from new obligor.
11. Novation.
Trial court's finding of novation between obligee and original obligor was clearly erroneous, as payments
made on original sales contract by business were corporate obligations and, therefore, did not constitute
part performance by new obligors, and as creditor's acceptance of continuing guarantees of new obligors
did not constitute part performance.
100 Nev. 684, 686 (1984) Pink v. Busch
Where the material facts have been fully developed at trial and are undisputed such that the issues
remaining are legal rather than factual, the Supreme Court will, upon reversal, render final judgment or will
remand the case to the lower court with directions to enter judgment in accordance with the opinion or with
specific directions.
OPINION
Per Curiam:
This is an appeal from judgment following bench trial in which personal guarantors were
found to have been released by the obligee from their guarantees. Having reviewed the
record, we find that the lower court's alternative legal theories of release, promissory estoppel
and novation are without any factual support. The lower court's ruling enforcing the
appellants' oral promise to release the guarantors is clearly erroneous. Accordingly, we
reverse the judgment below and direct the lower court to enter judgment in appellants' favor
in accordance with this opinion.
Sam and Anne Pink founded Pink's Produce Company in 1958. Pink's Produce started as a
wholesale produce distribution company. The business expanded, however, until the
company was a complete food supplier. Starting in 1975, the Pinks began to consider selling
the produce company because of Sam's advancing age and his failing health.
On June 1, 1976, Sam and Anne agreed to sell 100% of their stock in Pink's Produce to a
newly-formed corporation known as Pink's Inc. The stated sales price was $400,000. The
stock sale agreement also acknowledged that Pink's Produce Company owed Sam and Anne
$52,000. Pursuant to the agreement, Pink's, Inc. assumed that debt and promised to pay the
balance to Sam and Anne over a 10 year period. At the time of the sale, the corporate officers
of Pink's Inc. were: Joseph Busch, president; his wife, Ann, secretary/treasurer; and his
brother, Albert, vice-president. Albert, Joseph and Ann Busch also personally guaranteed
Pink's Inc.'s indebtedness to Sam and Anne Pink.
Joseph Busch was at the time of the sale vice-president of the Convention Center Branch
of First Interstate Bank of Nevada. For approximately 12-14 years, Joseph Busch had served
as Sam's and Anne's banker. Joseph had planned to retire from the bank and to manage Pink's
Inc. Unfortunately, Joseph was not able to participate in the management because his
retirement plan at the bank had not vested. The Busches hired several managers for Pink's Inc.
but they apparently were unsatisfactory. On September 28, 1978, Albert Busch sold Pink's
Inc. to John E. Clark and James R. Zellers.
100 Nev. 684, 687 (1984) Pink v. Busch
The 1978 stock sale agreement recites that Albert owned 100% of the stock of Pink's Inc.
and that the selling price was $140,000. Additionally, the contract acknowledged that at the
time of the sale Pink's Inc. still owed Sam and Anne $293,608 on the 1976 contract and
$43,621 on a loan that Sam and Anne had made to Pink's Produce Company. Pursuant to the
1978 contract, John and June Clark and James and Carole Zellers personally guaranteed any
indebtedness Pink's Inc. and Albert Busch owed to Sam and Anne Pink. Finally, the parties to
the 1978 contract promised to use their best efforts to obtain a release of the personal
guarantees of Joseph and Ann Busch for their indebtedness to Sam and Anne Pink under the
earlier purchase agreement.
Sam and Anne Pink received the last installment payment from Pink's Inc. in March, 1979.
On September 10, 1979, the Pinks sued the Busches, the Clarks and the Zellers on their
personal guarantees. Later, the Clarks and the Zellers sued Albert Busch for fraud. Both cases
were consolidated for trial. Before trial, however, the Pinks obtained a default judgment
against Albert Busch and summary judgments against the Clarks and the Zellers. The Clarks'
and the Zellers' complaint alleging fraud against Albert Busch was apparently dismissed by
the lower court's summary judgment against a similar cross-claim they had raised against the
Busches. The Pinks allege that all the judgments they have obtained remain unsatisfied.
The only claims remaining for trial, then, involved the Pink's original cause of action
against Joseph and Ann Busch on their personal guarantees. Following a bench trial, the
lower court found either that Sam Pink had released the Busches from their guarantees or that
the 1978 agreement between Albert Busch, John Clark and James Zellers constituted a
novation of the Busches' personal guarantees. Sam and Anne Pink have appealed this
decision.
1. Release of Guarantors.
On sharply conflicting testimony, the lower court found that Sam Pink orally promised to
release Joseph and Ann Busch from their guarantees. The Pinks do not challenge this ruling.
Instead, they contend that any oral release Sam may have made was not enforceable because
it was not supported by legal consideration. In response, the Busches note that the lower court
found that the oral release was supported by the Clarks' and the Zellers' subsequent execution
of their personal guarantees of Pink's Inc.'s indebtedness to the Pinks.
[Headnotes 1, 2]
The agreement of a creditor to release a guarantor from liability under a guaranty contract
is binding upon the creditor only if the agreement possesses the elements of a contract. 38
Am. Jur.
100 Nev. 684, 688 (1984) Pink v. Busch
2d Guaranty 80 at 1087 (1968). Releases, then, must be supported by consideration. See
New England Merchants Nat. Bank v. Rosenfield, 679 F.2d 467 (5th Cir. 1982); Federal
Rubber Co. v. Pruett, 98 P.2d 849 (Ariz. 1940); Tally v. Atlanta Nat. Real Estate Trust, 246
S.E.2d 700 (Ga.App. 1978), aff'd, 253 S.E.2d 692 (Ga. 1979); Annot., Creditor's release of,
or promise to release, guarantor as affected by existence or sufficiency of consideration, 126
A.L.R. 1241 (1940). To constitute consideration, a performance or return promise must be
bargained for. A performance or return promise is bargained for if it is sought by the promisor
in exchange for his promise and is given by the promisee in exchange for that promise.
Restatement (Second) of Contracts 71(1), (2) (1982). See also Berge v. Fredericks, 95 Nev.
183, 591 P.2d 246 (1979) (For marriage to constitute consideration for purposes of recording
act it must be bargained for and exchanged in return for that received).
The record in the present case reveals that no bargained for exchange occurred between
Joseph Busch and Sam Pink. Admittedly, the Clarks' and the Zellers' guarantees ran to the
Pinks' benefit. Joseph Busch testified that he and Sam Pink discussed the impending sale of
Pink's Inc. to Clark and Zellers several times and that Sam Pink promised to release him from
the guarantee. At that time, however, Joseph Busch did not hold any stock in Pink's Inc. nor
was he a director or officer of that corporation. Busch admitted that he was not involved in
the negotiations which resulted in the 1978 sales contract or in procuring the Clarks' and the
Zellers' personal guarantees. Albert Busch, as the sole owner of Pink's Inc., was responsible
for the sales negotiations. Moreover, the best efforts clause contained in the 1978
agreement indicates that the Clarks and the Zellers realized that their guarantees were not
given in exchange for the discharge of the Busches from their guarantees.
[Headnotes 3, 4]
Findings of fact shall not be set aside unless clearly erroneous. Where there is no evidence
in support of the lower court's findings, they are clearly erroneous and may be reversed.
Burroughs Corp. v. Century Steel Inc., 99 Nev. 464, 470, 664 P.2d 354, 358 (1983). Thus, the
trial court's finding regarding consideration for Sam's release was clearly erroneous.
2. Promissory Estoppel.
Alternatively, the lower court found that Sam Pink was estopped from denying the release
of the Busches from their guarantees. Sam and Anne Pink argue that the lower court's finding
was clearly erroneous because there is no evidence of justifiable reliance by or detriment to
Joseph and Ann Busch. The Busches respond that Joseph did, in fact, rely on the release to
his detriment because he did not intervene in the management of Pink's Inc. as it slid into
bankruptcy.
100 Nev. 684, 689 (1984) Pink v. Busch
Busches respond that Joseph did, in fact, rely on the release to his detriment because he did
not intervene in the management of Pink's Inc. as it slid into bankruptcy.
[Headnotes 5-7]
Promissory estoppel, of course, can be used as a consideration substitute to support the
release of liability under a guaranty contract. See Tally v. Atlanta Nat. Real Estate Trust, 246
S.E.2d 700 (Ga.App. 1978). To establish promissory estoppel four elements must exist: (1)
the party to be estopped must be apprised of the true facts; (2) he must intend that his conduct
shall be acted upon, or must so act that the party asserting estoppel has the right to believe it
was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts;
(4) he must have relied to his detriment on the conduct of the party to be estopped. Cheqer,
Inc. v. Painters & Decorators Joint Committee, Inc., 98 Nev. 609, 614, 655 P.2d 996, 998-999
(1982). Here, Joseph Busch merely asserted that he relied on the release. We, however, are
unable to ascertain from the record on appeal in what manner Joseph relied on Sam's oral
promise to release Joseph from his personal guarantee. Joseph testified that he never owned
any stock in Pink's Inc. He also stated that he had decided to stay with the bank to protect his
retirement and that he never managed or took an active role with Pink's Inc. Moreover, when
Pink's Inc. declared bankruptcy on July 17, 1979, it was owned by John Clark and James
Zellers. Thus, the lower court's finding that Joseph Busch relied on Sam's oral promise to
release the Busches was clearly erroneous. Burroughs Corp. v. Century Steel, Inc., 99 Nev.
464, 470, 664 P.2d 354, 358 (1983).
3. Novation.
The lower court's final theory for enforcing Sam's release of the Busches from their
guarantees was premised on its finding that Sam intended that the Clarks' and the Zellers'
guarantees be substituted for and discharge the Busches from their guarantees. The Busches
argue that the novation occurred when Sam Pink promised to release the Busches, knowing of
the 1978 stock sale and of the Clarks' and the Zellers' personal guarantees in his favor. The
Pinks contend that this finding was also clearly erroneous.
[Headnotes 8, 9]
The substitution of a new obligation for an existing one may be a novation if the first debt
is extinguished, all parties are discharged on the first contract, and all parties agreed at the
time of the substitution that the creditor's consent constituted a discharge of the original
obligor and the new obligor took its place. See Zuni Constr. Co. v. Great Am. Ins. Co., 86
Nev. 364, 368, 468 P.2d 9S0, 9S2-9S3 {1970). "The intent of the parties to cause a
novation must be clear. Consent to an assignment is not enough." Id.
In Miami Nat.
100 Nev. 684, 690 (1984) Pink v. Busch
P.2d 980, 982-983 (1970). The intent of the parties to cause a novation must be clear.
Consent to an assignment is not enough. Id.
In Miami Nat. Bank v. Forecast Const. Corp., 366 So.2d 1202 (Fla.App. 1979), the failure
of the creditor to cancel the original note was held to negate one of the essential elements of a
novationthat the parties agreed to extinguish the original debt or obligation. There is no
evidence that the Pinks destroyed or canceled the Busches' guarantees or relinquished them to
the Busches. Again, the best efforts clause contained in the 1978 sales agreement suggests
that the Clarks and the Zellers realized that their guarantees were not given in exchange for
the discharge of the Busches from their guarantees.
The lower court, however, attempted to bolster the novation theory by creating an inferred
acceptance theory of novation. It found that when Sam allegedly released the Busches he was
aware of the 1978 contract and of the Clarks' and the Zellers' guarantees. Furthermore, the
court found that the Pinks accepted both the payments from the new owners of Pink's Inc. and
the new guarantees themselves.
[Headnote 10]
A novation may be inferred by the creditor's acceptance of part performance from the new
obligors. See Nev. Bank Comm. v. Esquire R. E., Inc., 86 Nev. 238, 241, 468 P.2d 22, 23
(1970). In Jacobsen v. Stern, 96 Nev. 56, 605 P.2d 198 (1980), an architect sued a corporate
promoter for money due on architectural services rendered. Although the corporation had
accepted the benefits of the services and was liable to the architect, this court held that the
promoter was not discharged. This court stated that to constitute a valid novation, however,
the creditor must assent to the substitution of a new obligor, but this assent may be inferred
from his acceptance of part performance by the new obligor, if the performance is made with
the [clear] understanding that a complete novation is proposed. Id. at 61, 605 P.2d at 201.
(Emphasis added.)
[Headnote 11]
In the present case, the payments made by Pink's Inc. on the original sales contract did not
constitute part performance by the new obligors. The original sales contract was a corporate
obligation. The fact that the stock of Pink's Inc. was held by Clark and Zellers is immaterial.
Likewise, the Pinks' acceptance of the Clarks' and the Zellers' continuing guarantees does not
constitute part performance. It is undisputed that neither the Clarks nor the Zellers have paid
the Pinks anything on their personal guarantees. Finding an inferred novation where the
creditor was simply aware of the execution of new guarantees by third parties and did not
accept any payments under the personal guarantees is tantamount to forcing new debtors
on the creditor.
100 Nev. 684, 691 (1984) Pink v. Busch
aware of the execution of new guarantees by third parties and did not accept any payments
under the personal guarantees is tantamount to forcing new debtors on the creditor.
Accordingly, the lower court's finding of a novation is also clearly erroneous. See Burroughs
Corp. v. Century Steel, Inc., 99 Nev. 464, 470, 664 P.2d 354, 358 (1983).
[Headnote 12]
This court has held that upon reversal, where the material facts have been fully developed
at trial and are undisputed such that the issues remaining are legal rather than factual, we will
render final judgment or will remand the case to the lower court with directions to enter
judgment in accordance with the opinion or with specific directions. Nyberg v. Kelly, 65 Nev.
42, 67-68, 188 P.2d 1006, 1017-18 (1948); Warren v. Wilson, 46 Nev. 272, 284-85, 212 P.
497, 497 (1923); Nixon v. Brown, 46 Nev. 439, 462, 214 P. 524, 532 (1923). See, e.g., Cobb
v. Osman, 83 Nev. 413, 433 P.2d 259 (1967). Here, admissions in the pleadings and disputed
testimony show that Sam and Anne sold their stock in Pink's Produce Company to Pink's Inc.
Pursuant to the stock sale agreement, Pink's Inc. executed two promissory notes in the sum of
$350,000 and $52,000. Additionally, Joseph, Ann and Albert Busch personally guaranteed
those promissory notes to the amount of $402,000. In March, 1979, Pink's Inc. defaulted on
its obligations to Sam and Anne. As of April 1, 1979, the unpaid balance of principal and
interest on the $350,000 note was $279,642.35 and the unpaid balance including principal
and interest on the $52,000 note was $41,546.79. None of the guarantors have ever honored
their obligations.
We have found Busches' alternative defenses of release, promissory estoppel and novation
to be without any factual support. Accordingly, reversal of the lower court's judgment is
mandated under the clearly erroneous standard of NRCP 52. Furthermore, the material facts
supporting the Pinks' claim on the personal guarantees have been fully developed and are
undisputed. Consequently, we hereby order the lower court to enter judgment in favor of
appellants, Sam and Anne Pink, and against the respondents, Joseph and Ann Busch, for the
sum of $321,189.14, together with interest thereon at the contract rate of 8% per annum from
April 1, 1979, until paid.
1

____________________

1
We have not addressed the propriety of attorneys fees or a cost award pursuant to the note signed by the
parties. This issue would be more properly handled in the district court.
____________
100 Nev. 692, 692 (1984) Young's Machine Co. v. Long
YOUNG'S MACHINE COMPANY, a Utah Corporation, Appellant, v. CATHY ANN
LONG, in Her Individual Capacity and as Guardian of Her Minor Child, RICHARD
LONG, Respondent.
No. 15160
December 7, 1984 692 P.2d 24
Appeal from an award of $350,000 in a wrongful death action based on strict products
liability. Second Judicial District Court, Washoe County; William N. Forman, Judge.
Wrongful death action was brought under the theory of strict products liability. The district
court entered judgment awarding $357,000 to plaintiff, and defendant appealed. The Supreme
Court, Manoukian, C. J., held that: (1) comparative negligence statute was not meant to
include strict products liability, and (2) principles of comparative negligence were not
applicable in wrongful death action brought under theory of strict products liability.
Affirmed.
Popelka, Allard, McGowan & Jones, San Jose, California, and Barker, Gillock & Perry,
Reno, Nevada, for Appellant.
Dufford, Waldeck, Ruland, Wise & Milburn, Grand Junction, Colorado, and John
Hawkins, Reno, Nevada, for Respondent.
Phillip W. Bartlett, Reno, for Association of Defense Counsel of Nevada, and David R.
Gamble, Carson City, for Nevada Trial Lawyers' Association, Amicus Curiae.
1. Negligence.
Negligence statute, precluding contributory negligence from being a bar to recovery if it is not greater
than negligence or gross negligence of person or persons against whom recovery is sought, cannot be
interpreted to include strict products liability in a class of actions as to which contributory negligence may
be asserted as a defense. NRS 41.141, subd. 1.
No showing of negligence is necessary in a strict products liability action.
The only defenses available in a strict products liability action are assumption of the risk and misuse of
the product; ordinary contributory negligence cannot be considered.
4. Negligence.
Comparative negligence principles could not be used to reduce award in wrongful death action brought
under theory of strict products liability. NRS 41.141, subd. 1.
Principles of comparative fault cannot be judicially adopted or extended beyond express legislative
declaration. NRS 41.141, subd. 1.
OPINION
This is an appeal from a judgment for respondent in a wrongful death action brought under
the theory of strict products liability. Appellant urges this court to recognize comparative
fault or causation principles in the strict products liability area, either by interpreting Nevada's
comparative negligence statute to include this type of action or by finding that the statute does
not preclude judicial recognition of the principles in this area and that public policy warrants
such recognition. Although the lower court permitted the appellant to argue that the
decedent's negligence was the sole proximate cause of his death, the court refused to instruct
the jury that it could use comparative fault principles to reduce the award. Because the lower
court correctly applied the law in Nevada as it exists today and because we decline to
interfere in the legislative function in this area, we affirm the judgment.
[Headnote 1]
Nevada's comparative negligence statute is clearly intended to apply to negligence actions:
In any action to recover damages for death or injury to persons or for injury to property
in which contributory negligence may be asserted as a defense, the contributory
negligence of the plaintiff or his decedent does not bar a recovery if that negligence was
not greater than the negligence or gross negligence of the person or persons against
whom recovery is sought, but any damages allowed must be diminished in proportion
to the amount of negligence attributable to the person seeking recovery or his decedent.
NRS 41.141(1). Appellant urges us to interpret this statute to include strict products liability
in that class of actions in which contributory negligence may be asserted as a defense. This
we refuse to do.
[Headnotes 2, 3]
In Davies v. Butler, 95 Nev. 763, 602 P.2d 605 (1979), we refused to interpret this same
statute as applying to actions based on willful and wanton misconduct. We were particularly
concerned with the difference in concepts between negligence and willful and wanton
misconduct. We stated: Read in light of our previous decisions carefully delineating the
concepts of willful and wanton misconduct, the legislature intended to leave such
behavior outside the purview of the comparative negligence statute."
previous decisions carefully delineating the concepts of willful and wanton misconduct, the
legislature intended to leave such behavior outside the purview of the comparative negligence
statute. 95 Nev. at 770. This rationale is equally appropriate here. A number of cases dealing
with the concept of strict products liability were before this court prior to the enactment of
NRS 41.141 in July, 1973. These cases indicate that no showing of negligence is necessary in
a strict products liability action. See Worrell v. Barnes, 87 Nev. 204, 206, 484 P.2d 573
(1971); Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966). Moreover, we
had recognized that the only defenses available in a strict products liability action were
assumption of the risk and misuse of the product; ordinary contributory negligence was not to
be considered. See General Electric Co. v. Bush, 88 Nev. 360, 365, 498 P.2d 366 (1972);
Restatement of the Law 2d (Torts) 402A, comments a and n.
[Headnote 4]
As in Davies, we limit the statute to its clear language. We assume the legislature was
aware of the above cases and agreed with us that strict products liability is based upon an
entirely different concept from negligence. Therefore, the legislature must not have intended
to include strict products liability within the comparative negligence statute.
1

[Headnote 5]
Appellant alternatively contends that, even if the statute does not literally apply to strict
products liability actions, the legislature's silence in this area indicates that the statute does
not preclude the court's adoption of comparative fault. While it is true that this court did
adopt the theory of strict products liability in Shoshone Coca-Cola v. Dolinski, 82 Nev. at
441, it is also true that we have consistently refused to judicially adopt principles of
comparative fault or to extend such principles beyond the express legislative declaration. See
Davies v. Butler, 95 Nev. at 770; Rice v. Wadkins, 92 Nev. 631, 632, 555 P.2d 1232 (1976);
Wells, Inc. v. Shoemake, 64 Nev. 57, 70, 177 P.2d 451 (1947); Cox v. L.A. & S.L.R.R. Co.,
56 Nev. 510, 511, 58 P.2d 373 (1936).
Appellant cites numerous cases and law review articles which urge adoption of
comparative fault principles in the strict products liability area as fair and equitable for all
parties. It does appear that some authorities have recognized comparative fault in this area.
See e.g., Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984); Kennedy v. City of
Sawyer, 618 P.2d 788 (Kan.
____________________

1
We do not view strict products liability as tantamount to negligence per se and so refuse to follow those
courts which do so. See Dippel v. Sciano, 155 N.W.2d 55 (Wisc. 1967).
1980); Murray v. Fairbanks Morse, 610 F.2d 149 (3d Cir. 1979); Daly v. General Motors
Corp., 575 P.2d 1162 (Cal. 1978) (three justices dissenting); Schwartz, Strict Liability and
Comparative Negligence, 42 Tenn. L. Rev. 171 (1974).
There is, however, substantial authority to the contrary. Not all courts are convinced of the
wisdom of applying comparative fault in the strict products liability field. See e.g., Correia v.
Firestone Tire & Rubber Co., 446 N.E.2d 1033 (Mass. 1983); Seay v. Chrysler Corp., 609
P.2d 1382 (Wash. 1982); Kinard v. Coates Co., Inc., 553 P.2d 835 (Colo. 1976) (superseded
by statute, Colo. Rev. Stat. 13-21-406); Robinson, Square Pegs (Products Liability) in Round
Holes (Comparative Negligence), 52 Cal.St.B.J. 16 (1977).
It is primarily because of this great diversity of authority that we believe that this issue is
one better left to the legislature. If that branch of government decides to entertain the issue, it
can give full consideration to the competing interests and policies in order to devise
comprehensive and well-reasoned guidelines.
We affirm the judgment below.
Springer, Mowbray, Steffen and Gunderson, JJ., concur.
____________
100 Nev. 695, 695 (1984) Shank v. Shank
WALTER BERT SHANK, Appellant/Cross-Respondent, v. ROSEMARY SHANK
aka ROSEMARY COLE, Respondent/Cross-Appellant.
No. 15312
December 10, 1984 691 P.2d 872
Appeal from order reinstating alimony payments, Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
Ex-wife petitioned to reinstate ex-husband's alimony obligations after she obtained a
decree annulling her subsequent bigamous marriage. The district court denied wife's request
for arrearages from date of wife's remarriage but reinstated alimony from the date of wife's
annulment, and husband appealed. The Supreme Court held that the term remarriage as
used in the divorce decree and statute governing alimony obligations means the solemnization
or ceremony of remarriage, without regard to whether the marriage is later determined to be
void or voidable and thus, husband's alimony obligations were terminated when wife
solemnized her remarriage even though the remarriage was later declared to be void.
Reversed.
100 Nev. 695, 696 (1984) Shank v. Shank
William R. Devlin and Edwin A. Adamson, Las Vegas, for Appellant/Cross-Respondent.
Marilyn V. Romanelli, Las Vegas, for Respondent/Cross-Appellant.
1. Divorce.
Term remarriage as used in parties' divorce decree and statute governing alimony payments means the
solemnization or ceremony of marriage, without regard to whether the remarriage is later determined to be
void or voidable. NRS 125.150, subd. 5, 125.290.
2. Divorce.
Ex-husband's alimony obligations were terminated pursuant to the divorce decree and the statute
governing alimony payments when ex-wife solemnized her remarriage even though her remarriage was
later declared to be void because her new husband had not divorced his first wife. NRS 125.150, subd.
5, 125.290.
OPINION
Per Curiam:
This is an appeal from an order reinstating alimony payments. Appellant contends that his
alimony obligations were terminated because of respondent's remarriage. We agree, and
therefore we reverse the district court's order.
Appellant and respondent were divorced on June 27, 1981. The divorce decree required
appellant to pay alimony of $400.00 per month for ten years, followed by $200.00 per month
for an additional ten years. The divorce decree provided, however, that alimony would
terminate if respondent remarried.
Appellant made timely alimony payments until December 12, 1981, when respondent
remarried. Appellant then stopped paying the alimony. Respondent later discovered that her
new husband had not divorced his first wife. Accordingly, on June 17, 1983, respondent
obtained a decree annulling her marriage to her new husband. Respondent then petitioned the
district court to reinstate appellant's alimony obligations and to award arrearages from
December 12, 1981, the date on which appellant stopped making his payments. The district
court denied respondent's request for all of the arrearages, but the court reinstated alimony
from the date of respondent's annulment. This appeal followed.
Pursuant to NRS 125.150(5) and the divorce decree in this case, alimony payments were to
cease upon remarriage.
1
Appellant contends that respondent's act of solemnizing the
remarriage was sufficient to terminate alimony obligations, even though the subsequent
marriage was later determined to be void.

____________________

1
NRS 125.150(5) provides, in part, as follows:
In the event of death of either party or the subsequent remarriage of the spouse to whom specific
periodic payments were to be made, all payments required by the decree must cease, unless it was
otherwise ordered by the court.
100 Nev. 695, 697 (1984) Shank v. Shank
Appellant contends that respondent's act of solemnizing the remarriage was sufficient to
terminate alimony obligations, even though the subsequent marriage was later determined to
be void. On the other hand, respondent contends that she never remarried because her
subsequent bigamous marriage was void from the beginning, pursuant to NRS 125.290. Thus,
respondent argues that appellant's alimony obligations never really ceased. The sole issue to
be resolved on appeal, therefore, is the meaning of the term remarriage as used in the
divorce decree and NRS 125.150(5).
Although this appeal presents an issue of first impression in Nevada, other jurisdictions
have addressed the issue. For example, in Glass v. Glass, 546 S.W.2d 738 (Mo.Ct.App.
1977), the court held that the mere act of solemnizing a remarriage is sufficient to terminate
alimony obligations even if the remarriage is later determined to be void or voidable. The
court discussed the following policy considerations:
(1) A former husband is entitled to rely on the remarriage ceremony of the former
wife to recommit assets previously used for alimony obligations to her.
(2) Unless the remarriage ceremony is taken as conclusive, any latent grounds for
annulment between the remarried spouse and her new husband may remain suspended
until the offended spouse seeks annulment, so that the former husband's alimony
obligations may never be certainly determined.
(3) Even though both former spouses may be innocent, the more active of the two,
[the one whose remarriage is later annulled] should bear the loss from the misconduct
of a stranger.
Id. at 741. See also Sefton v. Sefton, 291 P.2d 439 (Cal. 1955).
We are persuaded by the policy reasons expressed above. We also believe that our courts
should not be burdened with alimony claims asserted months or years after an event that, so
far as the parties are concerned, terminated all alimony obligations. Finally, we are persuaded
that divorced parties should be able to have certainty in their legal rights and obligations, and
that our adoption of respondent's position would cause enormous uncertainty for the parties.
[Headnotes 1, 2]
Accordingly, we hold that the term remarriage, as used in the divorce decree and NRS
125.150(5), means the solemnization or ceremony of remarriage, without regard to whether
the remarriage is later determined to be void or voidable. Appellant's alimony obligations,
therefore, were terminated when respondent solemnized her remarriage on December 12,
19S1, even though the remarriage was later declared to be void.
100 Nev. 695, 698 (1984) Shank v. Shank
solemnized her remarriage on December 12, 1981, even though the remarriage was later
declared to be void. Appellant was entitled to stop making alimony payments at that time, as
he did, and the district court erred by reinstating the alimony obligations.
Reversed.
Springer, Mowbray, Steffen, and Gunderson, JJ., and Zenoff, Sr. J.,
2
concur.
____________________

2
The Honorable David Zenoff, Senior Justice, participated in place of Chief Justice Manoukian, who recused
himself.
____________
100 Nev. 698, 698 (1984) Moore v. State
RONALD MOORE, Appellant, v. THE STATE
No. 15230
December 17, 1984 692 P.2d 1278
Appeal from judgment of conviction upon a jury verdict of one count of cheating at
gambling and one count of altering the result of a gambling game, Ninth Judicial District
Court, Douglas County; Norman C. Robison, Judge.
Defendant was convicted in the district court of cheating at gambling and of altering the
outcome of a gambling game, and he appealed. The Supreme Court held that: (1) the offense
of cheating at gambling is a lesser included offense of the offense of altering the outcome of a
gambling game, and (2) evidence was sufficient to sustain defendant's conviction of altering
the outcome of a gambling game.
Richard Davenport, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Brent Kolvet, District Attorney, Michael J.
Roeser and Harold Kuehn, Deputy District Attorneys, Douglas County, for Respondent.
The general test for determining the existence of a lesser included offense is whether the offense in
question cannot be committed without committing the lesser offense.
Offense of cheating at gambling is a lesser included offense of the offense of altering the outcome of a
gambling game. NRS 465.070, subd. 1, 465.083.
100 Nev. 698, 699 (1984) Moore v. State
3. Criminal Law.
Since cheating at gambling is a lesser included offense of altering the outcome of a gambling game,
defendant could be convicted of only one of the offenses. NRS 465.070, subd. 1, 465.083.
4. False Pretenses.
Evidence, including testimony of casino surveillance employee and a gaming control board agent, and a
showing of a videotape of the blackjack game that defendant was playing, were sufficient to support
defendant's conviction for altering the outcome of a gambling game. NRS 465.070, subd. 1.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction upon a jury verdict of one count of
cheating at gambling, NRS 465.083,
1
and one count of altering the outcome of a gambling
game, NRS 465.070(1).
2
At appellant's jury trial, the state presented evidence that appellant
had used a technique of removing a card from the blackjack game and substituting another
card in order to obtain a better hand and thus beat the dealer. The state's evidence consisted of
the testimony of a casino surveillance employee and a gaming control board agent, in
conjunction with the showing of a video tape of the blackjack game that appellant was
playing.
Appellant contends that his convictions for both NRS 465.083 and NRS 465.070(1)
constitute unconstitutional double punishment, on the ground that NRS 465.083 is a lesser
included offense of NRS 465.070(1). We agree.
[Headnote 1]
In Litteral v. State, 97 Nev. 503, 508, 634 P.2d 1226, 1229 (1981), we adopted the test set
forth in Blockburger v. United States, 284 U.S. 299, 304 (1932), to determine whether one
offense is necessarily included in another. [W]here the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision requires proof of a fact which the
other does not."
____________________

1
It is unlawful for any person, whether he is an owner or employee of or a player in an establishment,
to cheat at any gambling game.
Cheat is defined in NRS 465.015 as to alter the selection of criteria which determine: (a) the result of a game;
or (b) the amount or frequency of payment in a game.

2
It is unlawful for any person to alter or misrepresent the outcome of a game or other event on which
wagers have been made after the outcome is made sure but before it is revealed to the players.
100 Nev. 698, 700 (1984) Moore v. State
proof of a fact which the other does not. Blockburger v. United States, supra at 304. The
general test for determining the existence of a lesser included offense is whether the offense
in question cannot be committed without committing the lesser offense. See Lisby v. State,
82 Nev. 183, 187, 414 P.2d 592, 594 (1966).
[Headnote 2]
NRS 465.083 is violated when one cheats at a gambling game, which includes altering the
selection of criteria that determine the result of the game. NRS 465.070(1), on the other hand,
provides that it is unlawful to alter the outcome of a game after the outcome is made sure but
before it is revealed to the players. Both statutes require that the outcome of the game be
altered; the only distinction is the time at which the alteration occurs. NRS 465.070(1) is the
more specific statute; it prohibits conduct that alters the outcome of the game only after the
result has been made sure. NRS 465.083 prohibits the same conduct at any stage of the game.
One cannot violate NRS 465.070(1) without also violating NRS 465.083. Thus, under the
Lisby test, NRS 465.083 is a lesser included offense of NRS 465.070(1).
3

[Headnotes 3, 4]
Appellant could therefore be convicted of only one offense. See Givens v. State, 99 Nev.
50, 657 P.2d 97 (1983) (impermissible to convict defendant of both a greater and a lesser
included offense). Accordingly, appellant's conviction for cheating at gambling in violation of
NRS 465.083 is reversed. The judgment of conviction is affirmed in all other respects.
4

____________________

3
In light of our determination that NRS 465.083 is always a lesser included offense of NRS 465.070(1), we
need not address the particular facts of this case or the factually based test of Owens v. State, 100 Nev. 286, 680
P.2d 593 (1984).

4
Appellant's contention that his conviction of NRS 465.070(1) is not supported by sufficient evidence is
without merit. See Deveroux v. State, 96 Nev. 388, 610 P.2d 722 (1980) (circumstantial evidence alone may
sustain a conviction).
____________
100 Nev. 701, 701 (1984) Town & Country Electric v. Hawke
TOWN & COUNTRY ELECTRIC COMPANY, INC., and SEA GULL LIGHTING
PRODUCTS, INC., Appellants, v. JOHANNA A. HAWKE, Respondent.
No. 15219
December 17, 1984 692 P.2d 490
Appeal from order granting a new trial in a personal injury action. Second Judicial District
Court, Washoe County; John W. Barrett, Judge.
Tenant brought action against seller and installer of light fixture after fixture fell from
ceiling of her apartment and struck her on the head. The district court granted tenant new trial
after jury returned verdict in defendants' favor, and defendants appealed. The Supreme Court
held that evidence permitted finding that neither seller nor installer was liable; thus, new trial
was not required.
Reversed.
Barker, Gillock & Perry, Reno; Fahrenkopf Mortimer Sourwine Mousel & Sloane, Reno,
for Appellants.
Davenport & Perry, Carson City, for Respondent.
New Trial.
In action by tenant against seller and installer of light fixture arising after fixture fell from apartment's
ceiling, striking tenant on the head, evidence that fixture may have fallen due to stripped threads on end of
pipe, causing it to be insecurely fastened, permitted finding, under instructions given, that neither seller nor
installer was liable; thus, new trial was not required, following verdict for defendants, on theory that jury
manifestly disregarded instructions. NRCP 59(a), (a)(5).
OPINION
Per Curiam:
This is an appeal from an order granting a new trial to respondent Hawke after a jury
verdict in appellants' favor. For the reasons stated below, we reverse.
Respondent brought this action against appellants Town & Country Electric Company, Inc.
and Sea Gull Lighting Products, Inc., to recover for injuries she suffered as a result of an
accident in her apartment at the Alo Moana Apartments in Reno. Respondent had been
residing in the apartment for only nine days when the glass diffuser portion of the kitchen
light fixture fell, striking her on the head. After the accident, respondent's friend inspected the
fixture. He noticed that there was no locknut in the apparatus and that about one-half of the
threaded pipe which formerly held the glass diffuser had been threaded up into the socket
base on the ceiling.
and that about one-half of the threaded pipe which formerly held the glass diffuser had been
threaded up into the socket base on the ceiling. He also noticed that the lowest three or four
threads of the pipe had been stripped.
Respondent's theory at trial was that the lack of a locknut in the apparatus had been a
substantial cause of the light fixture's fall. She contended that the absence of the locknut was
either the result of the negligence of Town and Country in installing the fixture, or of the
marketing of a defective product by Sea Gull, or both. The jury heard testimony during trial
on the function of a locknut as a safety device to prevent the threaded pipe from being
screwed so far into the socket that there was insufficient pipe on which to attach the
ornamental knob holding the diffuser in place. The jury also heard testimony, however, on the
stripped condition of the threaded pipe.
The jury returned a general verdict finding neither defendant liable. On respondent's
motion, the trial court granted a new trial against both. Appellants contend that this was error.
We agree.
Respondent argues on appeal that the new trial is justified in light of the (m)anifest
disregard by the jury of the instructions of the court. NRCP 59(a)(5).
1
We have strictly
construed this rule. In determining the propriety of the granting of a new trial under NRCP
59(a)(5), the question is whether we are able to declare that, had the jurors properly applied
the instructions of the court, it would have been impossible for them to reach the verdict
which they reached. Weaver Brothers, Ltd. v. Misskelley, 98 Nev. 232, 234, 645 P.2d 438,
439 (1982); see also Groomes v. Fox, 96 Nev. 457, 611 P.2d 208 (1980); Price v. Sinnott, 85
Nev. 600, 460 P.2d 837 (1969).
The jury in this case was instructed, inter alia, on negligence, proximate cause and strict
products liability. It was further instructed that the fact that there had been an accident did not
necessarily mean that one of the defendants was liable. Given the testimony at trial, the jury
need not have found either of the defendants liable. The jury may have concluded that the
missing locknut was not the proximate cause of the accident, but rather that the stripped
threads on the end of the pipe had caused the ornamental knob to be insecurely fastened. It
may have inferred that this condition was caused by a previous tenant. The jury might also
have concluded that the light fixture was not unreasonably dangerous as manufactured, or that
the light was not negligently installed. We need not determine how the jury reached its
conclusion that neither defendant was liable; we need only determine whether it was possible
for the jury to do so. Since we have concluded that it was indeed possible for the jury to
reach a defense verdict on the evidence in this case, the trial court erred by granting a
new trial.
____________________

1
Respondent also claims that the verdict was against the weight of the evidence. This is not, however, a
ground upon which a new trial may be granted. NRCP 59(a).
concluded that it was indeed possible for the jury to reach a defense verdict on the evidence in
this case, the trial court erred by granting a new trial.
Accordingly, the order granting a new trial to respondent is reversed and the judgment in
favor of appellants is reinstated.
____________
100 Nev. 703, 703 (1984) Warmbrodt v. Blanchard
FRANCES A. WARMBRODT, ROBERT B. WARMBRODT, JR., and MARGARET L.
WARMBRODT, Individually and as Trustees for WARMBRODT'S, INC., a Nevada
Corporation, Appellants and Cross-Respondents, v. FRED B. BLANCHARD, ALEXANDER
GRANT & COMPANY, a Partnership, and ROBERT O. VAUGHAN,
and JACK HULL, Respondents and Cross-Appellants.
No. 14573
December 17, 1984 692 P.2d 1282
Appeal and cross-appeal from judgment and order amending judgment; Second Judicial
District Court, Washoe County; Roy L. Torvinen, Judge.
Clients brought malpractice action against their accountants and attorneys arising out of
failure to liquidate timely a corporation in order to avoid double taxation. The district court
granted summary judgment to attorneys, entered judgment against accountants, and clients
appealed and accountants cross-appealed. The Supreme Court held that: (1) clients could not
recover against attorneys; (2) it was error to submit the question of attorneys' negligence to
the jury under the applicable comparative negligence statute; and (3) clients were not entitled
to a punitive damages instruction in the absence of evidence regarding accountants'
oppression, fraud, or malice.
Robison, Lyle, Belaustegui & Robb, Reno, Attorneys for Appellants and
Cross-Respondents.
George K. Folsom, and Halley & Halley, Reno, Attorneys for Respondents and
Cross-Appellants Fred B. Blanchard and Alexander Grant & Company.
Barker, Gillock & Perry and Ken Bick, Reno, Attorneys for Respondents and
Cross-Appellants Robert O. Vaughan and Jack Hull.
Elements of legal malpractice action are existence of attorney-client relationship, existence of duty on
part of lawyer, failure to perform duty, and negligence of lawyer as proximate cause of damage to client.
It is contractual relationship creating duty of care upon attorney which is primary essential to recovery for
legal malpractice.
Attorney must be employed in such capacity as to impose duty of care with regard to particular
transaction connected to malpractice claim.
Even with regard to particular transaction or dispute, attorney may be specifically employed in limited
capacity for purposes of malpractice action against him.
5. Negligence.
In absence of breach of duty, there can be no negligence, as matter of law.
Where clients did not hold their attorneys accountable for timely filing of papers related to liquidation of
clients' corporation, clients could not recover against attorneys in malpractice suit arising out of failure to
liquidate timely a corporation in order to avoid double taxation.
7. Negligence.
In action against their accountants and attorneys for malpractice arising out of failure to liquidate timely a
corporation in order to avoid double taxation, once, trial court determined that attorneys could not be held
liable it was error to submit question of their negligence to jury under applicable comparative negligence
statute in that attorneys were then neither defendants nor parties. 1973 Nev. Stat. ch. 787, 1.
8. Negligence.
Comparative negligence statute, which substituted several, proportionate liability based on fault and
abolished joint and several liability among joint tortfeasors, did not limit liability of sole defendant or
group of defendants whose negligence was proximate cause of indivisible injury to plaintiff, where
recovery was not allowed against any other defendants or group of defendants. 1973 Nev. Stat. ch. 787,
1.
9. Accountants.
Clients were not entitled to a punitive damages instruction in malpractice action against accountants in
absence of evidence regarding accountants' oppression, fraud, or malice arising out of their alleged failure
to liquidate timely a corporation in order to avoid double taxation. NRS 42.010.
OPINION
Per Curiam:
This case is predicated on a malpractice suit brought by the sellers of a business initially
against their accountants for failure to liquidate timely a corporation in order to avoid double
taxation. Later, the plaintiffs joined their attorneys as defendants.
The attorneys were released from the litigation on a motion for summary judgment. The
district judge at the trial of the case, however, gave the jury a comparative negligence
instruction which permitted the jury to find that the attorneys were ten percent negligent
and the accountants ninety percent.
however, gave the jury a comparative negligence instruction which permitted the jury to find
that the attorneys were ten percent negligent and the accountants ninety percent. The district
judge then deducted ten percent from the total damage award.
The individual appellants, Robert and Margaret Warmbrodt, are the son and
daughter-in-law of appellant Frances Warmbrodt. Together they were the directors and sole
shareholders of Warmbrodt's Inc., a closely held Nevada corporation. The principal asset of
the corporation was the Crystal Theater, located in Elko, Nevada. In 1973, the Warmbrodts
decided to sell the theater, and they sought advice from their attorney, who advised them that
they should seek tax advice from an accountant as neither he nor his firm had any expertise in
that area.
This action was initiated by appellants against respondents Fred B. Blanchard and
Alexander Grant & Company (Accountants) to recover compensatory and punitive damages
for professional malpractice in connection with the sale of the theater and dissolution of the
corporation. Appellants alleged that in violation of their contractual and professional duties,
Accountants failed to file the appropriate liquidation papers within twelve months of the sale
of the corporation's principal asset as required by Internal Revenue Code Section 337. They
also alleged that Accountants concealed such dereliction from the plaintiffs. They claimed
that such conduct resulted in additional income tax liability of over $36,000, plus interest and
penalties. Plaintiffs sought such sums as damages, plus interest on the debt they incurred to
pay the tax liability, attorney's fees, and punitive damages. In their answer, Accountants
admitted that they had undertaken to act for appellants in the matter and to perform such
services in a proper, careful and skillful manner, but asserted as affirmative defenses the
contributory negligence or willful, wanton and reckless misconduct of the plaintiffs.
During the course of discovery, Accountants propounded a number of questions and
requests for admissions regarding whether plaintiffs had retained an attorney to advise them
in the matter of liquidation, to prepare the legal documents in connection with such
liquidation, and to advise them of the relevant deadlines. Plaintiffs generally denied that they
had retained an attorney for such purposes, although they did admit they had hired an attorney
to draft and file documents necessary to effectuate the sale, and had partially relied upon an
attorney to advise them when the twelve-month period expired. Plaintiffs asserted that they
were aware that Accountants were in communication with a law firm which had represented
the plaintiffs in the past, but that they had themselves hired only Accountants to accomplish
liquidation in accordance with Internal Revenue Service requirements. They noted that in
connection with the sale of the theater, legal counsel had stated to plaintiffs that neither
he nor his firm had any particular tax expertise, and counsel had made it clear to plaintiffs
that he was not acting as tax counsel in connection with the liquidation.
theater, legal counsel had stated to plaintiffs that neither he nor his firm had any particular tax
expertise, and counsel had made it clear to plaintiffs that he was not acting as tax counsel in
connection with the liquidation.
After deposing two of the partners in the law firm in question, Robert O. Vaughan and
Jack Hull, Accountants moved for summary judgment, contending that since it was
undisputed that these attorneys had in fact prepared and filed a number of documents in
relation to the sale and liquidation, it was the attorneys' failure to prepare and file the final
papers in a timely manner which had been the proximate cause of plaintiffs' damages.
Plaintiffs, the appellants before us, opposed the motion, but thereafter added Vaughan and
Hull (Attorneys) as defendants.
After filing their answer, Attorneys moved for summary judgment, arguing that by
plaintiffs' own admissions, Attorneys had breached no duty owed to them.
1
The motion was
granted, and the Attorneys were dismissed from the case.
At the conclusion of the jury trial, and over the objection of plaintiffs, the jury was given
an instruction requiring them to assess and compare the negligence of the Attorneys, the
plaintiffs and the Accountants. In accordance with this instruction, and the special verdict
form submitted to them, the jury found the Accountants ninety percent negligent, Hull and
Vaughan ten percent negligent, and plaintiffs not negligent at all. Although they assessed the
damages to the plaintiffs at $54,945.21, the district court in its judgment deducted ten percent
of that award.
2

Plaintiffs appeal, challenging the deduction of ten percent, or, alternatively, arguing that
Attorneys should not have been dismissed. They also challenge the district court's refusal to
give an instruction allowing an award of punitive damages. Respondent Accountants, on
cross-appeal, challenge the district court's refusal to allow into evidence certain testimony.
THE SUMMARY JUDGMENT AND
APPORTIONMENT OF DAMAGES
[Headnotes 1-4]
The elements of a legal malpractice action are the existence of an attorney-client
relationship, the existence of a duty on the part of a lawyer, failure to perform the duty, and
the negligence of the lawyer [as a] proximate cause of damage to the client."
____________________

1
Accountants filed notice of their appeal of the summary judgment and for a stay of proceedings. This appeal
was initially dismissed by this Court, however, for lack of NRCP 54(b) certification, and ultimately on the
ground that Accountants had failed to present their argument to the trial court. Orders of October 14, 1981, Case
No. 13577, and July 20, 1983, Case No. 14573.

2
The judgment was later amended to reflect recalculation of interest. That amendment is not challenged here.
part of a lawyer, failure to perform the duty, and the negligence of the lawyer [as a] proximate
cause of damage to the client. Hansen v. Wightman, 538 P.2d 1238, 1246 (Wash.App.
1975). Accord, Johnson v. Jones, 652 P.2d 650 (Idaho 1982). It is the contractual
relationship creating a duty of due care upon an attorney [which is] the primary essential to a
recovery for legal malpractice. Ronnigen v. Hertogs, 199 N.W.2d 420, 421 (Minn. 1972).
See also Houston General Ins. Co. v. Superior Court, 166 Cal. Rptr. 904 (Cal.App. 1980).
Furthermore, the attorney must be employed in such a capacity as to impose a duty of care
with regard to the particular transaction connected to the malpractice claim. Shropshire v.
Freeman, 510 S.W.2d 405 (Tex.Civ.App. 1974). Even with regard to a particular transaction
or dispute, an attorney may be specifically employed in a limited capacity. Kane, Kane and
Kritzer, Inc. v. Altagen, 165 Cal. Rptr. 534 (Cal.App. 1980).
[Headnotes 5, 6]
The existence of a contract is generally an issue and question of law, Houston General
Ins. Co. v. Superior Court, supra, 908. In the absence of a breach of duty, there can be no
negligence, as a matter of law. Elliott v. Mallory Electric Corp., 93 Nev. 580, 586, 571 P.2d
397, 401 (1977). In this case, the answers to the interrogatories submitted by the plaintiffs and
Attorneys before the court at the time of the summary judgment revealed that the plaintiffs
did not hold their Attorneys accountable for the timely filing of the papers related to the
liquidation of their corporation. In the absence of a contractual duty to plaintiffs to perform
the act which plaintiffs alleged as a cause of their damages, the court could properly find that
there was no genuine issue of material fact. The summary judgment was therefore properly
granted.
[Headnote 7]
Once the court had determined that Attorneys were entitled to summary judgment, it was
error to submit the question of their negligence to the jury under the applicable comparative
negligence statute.
[Headnote 8]
The comparative negligence statute applicable to this case was adopted in 1973. See Rice
v. Wadkins, 92 Nev. 631, 555 P.2d 1232 (1976). 1973 Nev. Stats., ch. 787, at 1772.
3
While
eliminating contributory negligence as a bar to a plaintiff's recovery, at least when
negligence of a tortfeasor, or several tortfeasors combined, was as great as plaintiff's or
greater, the statute also abolished joint and several liability among joint tortfeasors,
substituting several, proportionate liability based upon fault.4 One defendant who was
among several found responsible for the plaintiff's damages would therefore only be held
liable for damages "in proportion to his negligence," as determined by the trier of fact.
____________________

3
1973 Nev. Stat., ch. 787, at 1772, provided:
SECTION 1. Chapter 41 of NRS is hereby amended by adding thereto a new section which shall read
as follows:
1. In any action to recover damages for injury to persons or property in which contributory
negligence may be asserted as a defense, the
least when negligence of a tortfeasor, or several tortfeasors combined, was as great as
plaintiff's or greater, the statute also abolished joint and several liability among joint
tortfeasors, substituting several, proportionate liability based upon fault.
4
One defendant
who was among several found responsible for the plaintiff's damages would therefore only be
held liable for damages in proportion to his negligence, as determined by the trier of fact.
On the other hand we conclude that when, as in this case, recovery was not allowed against
any other defendant or group of defendants, the statute did not limit the liability of a sole
defendant, or group of defendants whose negligence was the proximate cause of an
indivisible injury to the plaintiff.
The plain language of the comparative negligence statute required apportioning of liability
among the defendants, and then only [w]here recovery is allowed against more than one
defendant in an action. 1973 Nev. Stats., ch. 787, Sec. 1(3)(b). (Emphasis added.) The
statutory scheme provided for comparison of the plaintiff's negligence with that of the
person or persons against whom recovery is sought, id. at sec. 1(a), or alternatively stated,
that "of the defendant or combined negligence of multiple defendants." Id. at sec.
____________________
contributory negligence of the plaintiff shall not bar a recovery if the negligence of the person seeking
recovery was not greater than the negligence or gross negligence of the person or persons against whom
recovery is sought, but any damages allowed shall be diminished in proportion to the amount of
negligence attributable to the person seeking recovery.
2. In such cases, the judge may, and when requested by any party shall instruct the jury that:
(a) The plaintiff may not recover if his contributory negligence has contributed more to the injury than
the negligence of the defendant or the combined negligence of multiple defendants.
(b) If the jury determines the plaintiff is entitled to recovery, it shall return by general verdict the total
amount of damages the plaintiff would be entitled to recover except for his contributory negligence.
(c) If the jury determines that a party is entitled to recover, it shall return a special verdict indicating
the percentage of negligence attributable to each party.
(d) The percentage of negligence attributable to the person seeking recovery shall reduce the amount
of such recovery by the proportionate amount of such negligence.
3. Where recovery is allowed against more than one defendant in such action:
(a) The defendants are severally liable to the plaintiff.
(b) Each defendants' liability shall be in proportion to his negligence as determined by the jury, or
judge if there is no jury. The jury or judge shall apportion the recoverable damages among the defendants
in accordance with the negligence determined.

4
This portion of the statute was amended in 1979, along with contribution statutes which in 1973 provided
for pro rata contribution among joint tortfeasors, so as to reinstitute joint and several liability to plaintiffs, while
providing for contribution among tortfeasors based upon comparative negligence. 1979 Nev. Stats., ch. 629, at
1355-6.
alternatively stated, that of the defendant or combined negligence of multiple defendants.
Id. at sec. 1(2)(a). The jury was to return, when appropriate, the special verdict indicating the
percentage of negligence attributable to each party. Id. at sec. 1(2)(c). No reference was
made to the negligence of other possible tortfeasors.
Thus the jury should not have been instructed to consider the negligence of the Attorneys
or to return a special verdict indicating their percentage of negligence when Attorneys were
then neither defendants nor parties. See Nat. Farmers U. Property & Cas. v. Frackelton, 650
P.2d 571 (Colo.App. 1981), aff'd, 662 P.2d 1056 (Colo. 1983); Mihoy v. Proulx, 313 A.2d
723 (N.H. 1973); see Howard v. Spafford, 321 A.2d 74 (Vt. 1974). Contra Brown v. Keill,
580 P.2d 867 (Kan. 1978).
OTHER ISSUES
[Headnote 9]
Appellants have also asserted as error the district court's refusal to give a punitive damages
instruction. Punitive damages are permitted under NRS 42.010 where a defendant has been
guilty of oppression, fraud, or malice. (Emphasis added.) The term malice as used in the
statute means malice in fact and denotes ill-will, or a desire to do harm for the mere
satisfaction of doing it. Bader v. Cerri, 96 Nev. 352, 359, 609 P.2d 314, 318-319 (1980).
It was permissible for the trial court to conclude that such evidence had not been received
in this case. Bader v. Cerri, id.; Village Development Co. v. Filice, 90 Nev. 305, 526 P.2d 83
(1974).
The remaining assignments of error are meritless.
CONCLUSION
The judgment is affirmed in all respects except for the ten percent deduction for
negligence attributable to Attorneys. The case is remanded to the district court for
recalculation of the award and issuance of judgment consistent with this opinion.
____________
100 Nev. 710, 710 (1984) First Western v. Vegas Continental
FIRST WESTERN FINANCIAL CORPORATION and FIRST WESTERN SAVINGS
ASSOCIATION, Appellants, v. VEGAS CONTINENTAL and LEROY CORPORATION
aka LEROY PROPERTIES AND DEVELOPMENT CORPORATION, Respondents.
No. 14570
December 17, 1984 692 P.2d 1279
Appeal from judgment granting motion to dismiss; Eighth Judicial District Court, Clark
County, Michael J. Wendell, Judge.
In condemnation proceeding issue arose as to entitlement of trustee and beneficiary under
deed of trust to entire award for partial condemnation. The district court found no impairment
of security and dismissed complaint, and appeal was taken. The Supreme Court held that
notwithstanding that trust deed purported to effectuate an assignment of entire award, the
trustee and beneficiary were required to demonstrate that the margin of security was
decreased by the condemnation.
Reversed.
Dickerson, Miles, Pico & Mitchell, and John M. Netzorg, Las Vegas, for Appellants.
Rudiak & Larsen, P.C., and Brent A. Larsen and George Rudiak, Las Vegas, for
Respondents.
Eminent Domain.
Effectiveness of provision of deed of trust purporting to assign entire award on partial condemnation to
trustee or beneficiary was limited by legal and equitable interests and could be enforced to extent that
trustee or beneficiary could show that security had been impaired, as by demonstrating that the margin of
security, or ratio of property securing the debt to amount of debt remaining, was decreased by the
condemnation.
OPINION
Per Curiam:
The sole issue on appeal is whether the beneficiary of a deed of trust encumbering property
is entitled to the full condemnation award that resulted from a partial taking of a lot by the
Department of Transportation. Appellants First Western Savings Association and First
Western Financial Corporation (collectively First Western) are the beneficiary and trustee,
respectively, of a deed of trust encumbering the property, and claim that they are entitled to
all of the award under a provision of the deed. Respondent Vegas Continental owns the lot,
and joined by the original trustor, Leroy Corporation {collectively owners), contends that
First Western should not be granted the condemnation award without a showing that the
partial taking impaired the value of their security.
Vegas Continental owns the lot, and joined by the original trustor, Leroy Corporation
(collectively owners), contends that First Western should not be granted the condemnation
award without a showing that the partial taking impaired the value of their security. The
district court agreed and, finding no impairment of First Western's security, dismissed their
claim with prejudice, certifying the issue for appeal pursuant to NRCP 54(b).
THE FACTS
The facts are not disputed. Respondent Leroy Corporation originally owned the property at
issue subject to a deed of trust in the amount of $1,104,000.00, dated April 1, 1966. This
amount was increased by an additional $26,000.00 in 1967. Leroy Corporation sold its
interest to Vegas Continental on April 1, 1969 for $1,716,000.00. The balance owing on the
first trust deed was then $1,088,594.04.
The property is known as the Stewart Plaza Apartments and consists of twenty six-unit
apartment buildings spread over 4.76 acres (207,345.6 square feet) of land in Las Vegas. The
northwest corner of the property, 3,775 square feet, stood in the path of a planned freeway
extension. In 1982, the State of Nevada, on relation of its Department of Transportation,
condemned this corner portion, which includes a substantial part of one of the twenty
apartment buildings. First Western and owners were among the defendants named in the
complaint.
The state moved for immediate occupancy pursuant to NRS 37.100. The district court
granted this motion contingent upon the deposit with its clerk of the property's appraised
value of $162,500.00. Owners made an application to withdraw the award. See NRS
37.100(4). First Western opposed the application and filed a cross-complaint against owners,
in which they claimed a contractual priority to the condemnation award based upon a clause
in their deed of trust purporting to assign to them any award of damages in connection with a
condemnation. Respondents moved to dismiss appellants' cross-claim, arguing that appellants
had not shown that the value of their security was impaired.
In support of their motion, the owners submitted the report of an independent appraiser
who had determined that the value of the complex before the taking was $3,350,000.00, while
the value after the taking would be $3,100,000.00. The balance due First Western at the time
of taking was $708,013.07. He valued the land and improvements taken at $154,110.00, with
severance damages of $95,890.00.
The district court denied First Western's claim to the deposit and entered an order that
notwithstanding the provision of the Trust Deed, the said beneficiary's security had not been
impaired and Vegas Continental and Leroy Properties are entitled to said deposit."
and Vegas Continental and Leroy Properties are entitled to said deposit. First Western's
cross-claim was dismissed with prejudice, and this appeal followed.
CONDEMNATION AWARD
First Western claims that under the assignment clause in the First Deed of Trust they are
entitled to the entire condemnation award, regardless of the circumstances. With this we
cannot agree. The clause upon which First Western relies provides that:
any award of damages in connection with any condemnation for public use of or injury
to said property or any part thereof is hereby assigned and shall be paid to beneficiary
who may apply or release such monies received by him in the same manner and with
the same effect as above prescribed for disposition of proceeds of fire or other
insurance.
We have already ruled that despite a clause similarly purporting to assign an entire
condemnation award to a mortgagee or beneficiary of a deed of trust, the effectiveness of
such a contract term is limited by the legal and equitable interest of the mortgagee or
beneficiary in the award. Halfon v. Title Ins. & Trust Co., 97 Nev. 421, 634 P.2d 660
(1981)(beneficiary entitled to award only to extent of deficiency remaining after trustee's
sale). Similarly, here, we agree with the court below that the effectiveness of such a clause is
limited to the extent to which a mortgagee or beneficiary can demonstrate that its security has
actually been impaired. See Milstein v. Security Pacific National Bank, 103 Cal.Rptr. 16
(Cal.App. 1972).
We do not agree, however, with the court's determination that under the circumstances of
this case First Western has failed to demonstrate an impairment of security which would
entitle it to an apportionment of the award. Owners argue that First Western's security has not
been impaired since the amount of the debt remaining is exceeded by the value of the
property remaining to secure the debt after the taking. We agree with those who have noted
that this debt equivalency analysis is unfair to lienholders and inconsistent with the
reasonable expectations of the parties. See People ex. rel. Dept. of Transportation v.
Redwood, 149 Cal.Rptr. 11, 15-16 (Cal.App. 1978). See also K. Miller, Valuation of the
Mortgagee's Interest Upon Partial Condemnation, 15 Loyola L.Rev. 227 (1982); H. Teague,
Condemnation of Mortgaged Property, 44 Tex.L.Rev. 1535 (1966). We are not unaware
that trust deed holders or mortgagees generally insist upon a reasonable margin of security
over and above the original indebtedness, and commonly bargain for such margin to increase
over the years. Accordingly we are of the view that a more reasonable and equitable measure
of the impairment of security of a mortgagee or trust deed holder is the extent to which the
actual margin of security is affected at the time of the taking.
of a mortgagee or trust deed holder is the extent to which the actual margin of security is
affected at the time of the taking.
In this case, it is undisputed that at the time of the taking, First Western held a trust deed
upon property worth $3,350,000.00, which secured a debt then amounting to $708,013.07. As
a result of the taking, however, the value of the property securing that debt was reduced, by
an amount which is still in dispute, but which owners contend may be $250,000.00. It is
apparent that the margin or ratio of secured debt to the property securing the debt has been
reduced accordingly. Using respondents' figures, the value of the property exceeded the debt
at the time of the taking by a ratio of 4.73 to 1, while after the taking it exceeded the debt by
only 4.38 to 1. In order to maintain the same ratio or margin after the taking, the debt owed to
First Western would have to be reduced by $52,836.79.
1
First Western would accordingly be
entitled to that amount from the compensation award. Since, however, the actual reduction in
value of the property and amount of the condemnation award remain to be litigated, we will
leave the final calculations to the court below.
CONCLUSION
We therefore conclude that a mortgagee or a trust deed holder is entitled to enforce an
assignment clause regarding a condemnation award to the extent that it can show that its
security has been impaired, by demonstrating that the margin of security, or ratio of the
property securing the debt to the amount of the debt remaining, is decreased by the
condemnation.
We therefore reverse the judgment dismissing appellants, and remand this case to the
district court for further proceedings in accordance with this opinion.
____________________

1
See Redwood, supra at 30, n. 18:
Where X is the amount the post-take secured debt must be to restore the pre-take ratio:
Debt at time of taking Value of property
Value of property at Value of property
time of taking = after taking
Debt at time of taking X
$3,350,000.00 = $3,100,000.00; X = $655,176.28
$708,013.07 X
This figure is then subtracted from the debt of $708,013.07, resulting in the required award of
$52,836.79.
____________

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